Brics Grab African Land And Sovereignty


Although there are many different analyses, one general approach to Brics relationships with the South asserts that they are distinguishable from traditional Northern donors (as opposed to investors which will be discussed below). [1] In particular, it is often claimed that South-South development cooperation does not attach policy conditionalities, provides assistance based on a win-win paradigm, and places emphasis on how to ensure economic sustainability of the receiving country.[2]

While China especially stresses the need to respect the sovereignty of the receiving country, all the Brics promote a development strategy based on equality, solidarity, mutual development and cooperation. These differences from Northern donors, it is said, contribute to more effective cooperation and to a better perception by local populations.

Some differences do exist between the way in which Northern donors and Brics conceive receiving countries’ sovereignty and their independence when official development assistance is at stake. But not so with foreign direct investments (FDI) in land for when access to this precious resource is at stake, the approaches and positions of both the North and the South toward low-income countries (LICs) countries converge more significantly than it might be thought.

The current ‘land rush’ is characterized by some peculiar features: it is happening at an unprecedented speed as a product of cumulative local and global forces; it has a direct impact on access to land and water, which have now become scarce resources; it is happening in a world inhabited by more than seven billion people, the majority of whose food security is everyday more at risk; it is almost never the consequence of wars or occupations, but is taking place within the boundaries of the existing legal framework.

However, even though land grabbing is a global phenomenon, it is firmly rooted in the local reality and it is this local reality that has to be studied in order to fully grasp its effects.[3] Land grabbing is bad not only because it takes the land away, but also because it implements an economic model which is socially, economically, politically and ethically unsustainable and unacceptable.

Looking at where the investments come from, the lack of a central driving region is striking. What we see is the coexistence of actors (public, private and mixed) from the North, Gulf States, emerging economies – including Brics – and, in some cases, from Low Income Countries themselves. On average, investors’ countries have a GDP per capita (four times higher than target countries) and this difference is even higher when we exclude countries that are both the origin and target of investment flows.[4]

A June 2011 study by the International Land Coalition suggested that land grabbing concerned around 80 million hectares, 64 percent of which are located in Africa,[5] whereas the latest update by the same organization refers to more than 200 million hectares, i.e. eight times the size of Britain, or the entire North-West Europe.[6]

 

Brics land grabs in Africa

Country and Total Land

Total Land and Regional Area

Target Countries

 

Brazil

 

28,000 ha

Eastern Africa 28,000 ha

 Mozambique, Ethiopia

 

India

 

1,924,509 ha

Central Africa: 15,000 ha

Eastern Africa: 1,761,800 ha

Northern Africa: 8,020 ha

South East Asia: 139,689 ha

Cambodia, Indonesia, Lao, Philippines, India, Cameroon, Ethiopia, Madagascar, Mozambique, Sudan

 

China

 

1,140,683 ha

Central Africa: 10,000 ha

Eastern Africa: 126,171 ha

South America: 348,972 ha

South-East Asia: 628,139

Western Africa: 26,000 ha

Cambodia, China, Sudan, Lao, Philippines, India, Bolivia, Peru, Argentina, Benin, Cameroon, Ethiopia, Mali, Democratic Republic of Congo, Uganda, Zimbabwe

 

South Africa

 

1,416,411 ha

Central Africa 340,000 ha

Eastern Africa: 367,174 ha

South America 55,794 ha

Western Africa 650,000 ha

Colombia; Angola; Benin; Ethiopia, Democratic Republic of Congo, Mozambique; Madagascar

 

 

According to the most recent data collected by the Land Matrix Initiative and elaborated by Anseuuw et al. (ibid), 83.2 million of hectares of land in developing countries have certainly been targeted by investors, 56.2 million of which are located in Africa, 17.7 million in Asia and 7 million in Latin America.[7] Moreover, the majority of reported acquisitions are concentrated in just a few countries.

Data shows that Brics investors play an increasingly crucial role (except Russia, which remains at the margin of the rush probably due to the amount of available land) demonstrating that land grabbing is happening not only from the traditional core to the peripheries, but also transversally on the geopolitical map of the world. There are zones of interest for each country, with a predilection toward neighbouring countries (especially in the case of Brazil, South Africa and China) and certain areas of the African continent depending on geographical proximity or linguistic ties.

Brics investors target low-income countries, while a recent report released by Oxfam has underlined the close relationship between weak internal governance and land grabbing.[8] Moreover, it can be affirmed that geographical proximity, regional integration, and cultural connections are other three factors that can determine the flow of the investments.

Indian investors are particularly active in Indonesia, Malaysia and in the eastern part of Africa (especially Ethiopia[9] and Kenya), while Brazilian interests appear to be reduced and limited to Eastern Africa. Interestingly, South African capital is crossing the borders of Mozambique, Zambia[10] and Swaziland,[11] but also of the Democratic Republic of Congo,[12] Angola, Benin, Congo and Ethiopia.[13] Finally, according to the available data, China is the most active investor, with more than five million hectares of land accessed in all the continents, with a stronger presence in Southern Asia,[14] Oceania and South America, rather than in Africa.[15]

Brazilian rhetoric – the ‘dawn of a new economic era between Africa and Brazil’ [16] – is belied by President Dilma’s recently-concluded agreement with Mozambique and Japan to develop a 14 million hectares agricultural project in the north of Mozambique.[17] Indeed Brazil is leading the pack when it comes to land grabbing.[18]

Brazil, Indian, South African and Chinese investors have already obtained access, via lease or purchase, to millions of hectares located in other Southern countries, directly competing with Northern and Gulf countries for the land and water resources which sustain millions of local communities (to say nothing of the environmental equilibrium and biodiversity).

Crucial for this land grab are the diplomatic and legislative strategies adopted by the governments of the Brics. As global players in need of economic expansion, energy and food, the Brics economies are enhancing and facilitating operations involving land abroad in a way that is inconsistent with their proclamations of sustainable development, cooperation, solidarity, and respect of foreign sovereignty.

China, India and South Africa have adopted legal reforms that favor the delocalization of food and energy production. In contrast, Brazil has used its legislative autonomy to reduce access to Brazilian land by foreign investors, while the ongoing accumulation of Russian land is the consequence of the privatization that took place in the 1990s.

The role of the South African in sustaining investments in land abroad is illustrative. Given that the crops produced abroad by South African investors are generally sold on the global market rather than imported back to South Africa, the efforts undertaken by the government primarily concern international trade, rather than the creation of legal incentives to guarantee food security through productive delocalization.

Minister of Agriculture Tina Joemat-Pettersson announced in 2010 a fund of six billion South African Rand (ZAR) (or about 680 million US dollars) for supporting South African farmers, half of which would be spent on projects beyond South Africa’s borders.[19]

Moreover, despite the rising concerns about the negative impact of land grabbing, both in South Africa and abroad, the African state has proposed no legal intervention to require a stronger and more effective respect of international human and environmental rights by national investors undertaking projects abroad. The African solidarity supposedly at the base of the relationship between South Africa and its neighbor countries appears particularly weak when it’s time to support national investments and profit generation.

Brazil’s approach toward large-scale investments in land is very strategic, not to say hypocritical. On the one hand, the Parliament has been debating for almost one year the introduction of new legislation to prohibit foreign ownership of Brazilian land[20] while at the same time pursuing a policy of land concentration and massive industrialization, both nationally and abroad, with specific attention to the production of agrofuels.

The fight against foreign ownership began in 2010 when limits on the area of land foreign companies can buy were imposed by a new interpretation of the existing law issued by the Brazilian attorney general’s office. However this does not appear to be accompanied by a fully coherent politics in favor of peasants and local realities.

While it is true that the Lula administration introduced some initiatives that were favourable to small-scale farmers, including the 2009 revision of the productivity indexes that determine which properties are subjected to expropriation, and while the pressure exercised by the Movimento dos Trabalhadores Sem Terra (MST) has achieved some good results such as securing access to land for 800,000 families, the power of agribusiness and levels of land concentration continues to rise.[21]

Brazil’s economic growth has been strongly dependent on the expansion of arable land and pastures, land consolidation through property regularization,market liberalization, and a clear commitment to agribusiness and agrofuel production – in particular in the area of the Cerrado, where the a ‘march toward the West’ was proclaimed by the state in order to occupy its ‘empty spaces.’[22]

This combination of policies and preferences has significantly affected the environmental and social equilibrium of vast tracts of the country, where it is estimated that 40-50 per cent of the vegetation has been destroyed.[23] Paradoxically, internal pressure against deforestation is significantly moving the attention of the government and of the investors toward peripheral countries.

Land grabbing has been facilitated by the expansion of bilateral investment treaties (BITs) which amplify economic and power asymmetries. The surge in BITs represents the switch from the universal multilateralism of the past to a more fragmented bilateralism. Investments are free to move, and take advantage of their mobility to force countries into a fierce competition whose outcome is a subordination of the collectivity to the interests and economic needs of the investor.

The number of BITs is exploding and the Brics are increasingly part of this trend. Between 1959 and 1991, over 400 BITs were signed, a figure that rose to 2600 by mid-2008, while BIT-like provisions have been written into a growing number of broader free trade agreements (FTAs).[24] By 2004, South-South BITs accounted for 28 per cent of the total number of BITs signed.[25]

These BITs are first of all utilized by states to create reinforced regional ties with target countries, so as to create an easily reachable zone for investors based on the subordination of sovereign prerogatives and a simpler access to factors of production, such as land and labour, and raw materials. BITs between the Brics and LICs with strongly pro-investor content rebuts, in reality, the South-South rhetoric of the Brics.

China has concluded BITs with developing and LICs countries (Chad, Costa Rica, Cuba, Republic of Korea, Cote d’Ivoire, Gabon, Seychelles, Laos, Libya, Mali, Myanmar/Burma, Madagascar, Ethiopia, Uganda, etc.). Sixty percent of the BITs concluded by China between 2002 and 2007 were with developing countries, mainly African.[26]

South Africa too has been extremely active in signing BITs since the end of the apartheid era, as it reorients its international relations according to the economic needs of national investors. In an official 2009 review of South Africa’s BITS, the Department of Trade and Industry stated, ‘given the sizable intra-Africa investments made by Republic of South Africa (RSA) companies, the RSA ought to assess how best such investments by its citizens may be safeguarded.’

As a consequence of the intra-regional expansion of South African investments, the Government has BIT-type agreements on the promotion and reciprocal protection of investment (plus related protocols) with Angola, Cameroon, Democratic Republic of the Congo (DCR), Gabon, Guinea, Ethiopia, Mauritania, Namibia, Sudan, Tanzania, Zambia and Zimbabwe.

In sum, rather than acting as institutional and legal laboratories for testing new rules and instead of constructing a parallel network of bilateral agreements based on new principles and new relationships between investors and states, South-South BITs reproduce the same logic and, in some cases, the same wording as North-South BITs.

And hypocrisy is evident, when in 2009 a notice of the Department of Trade and Industry referring to the ongoing review of bilateral investment treaties entered into by the Republic of South Africa since 1994 to date, states that the ‘Existing international investment agreements are based on a 50-year-old model that remains focused on the interests of investors from developed countries. Major issues of concern for developing countries are not being addressed in the BIT negotiating processes. BITs extend far into developing countries’ policy space, imposing damaging binding investment rules with far-reaching consequences for sustainable development.’ [27]

However, although RSA has decided to adopt a policy of not renewing BITs concluded during the apartheid period which impose a huge burden over State’s prerogatives – such as the ones with Luxembourg and Belgium[28] – in the same period, South Africa was adopting the same approach when concluding a BIT with Zimbabwe. Looking at the 2009 BIT concluded between the two African countries, it clearly replicates the same legal architecture that is so openly criticized – included an extremely generous expropriation clause which requires the state to fully compensate the market value in any case of nationalization, expropriation or equivalent measures, with no admitted exceptions.[29]

Likewise, South-South investment contracts in land replicate the same content as North-South agreements. One of the most striking elements contained in the contracts involving Brics investors is the use of sovereignty in order to define land as void and immediately disposable, particularly in the case of Sub-Saharan Africa.

Although studies conducted on the availability of land and the voices of the people themselves tell us that there is no underutilized or void land in Sub-Saharan Africa, the exercise of sovereignty over public land legitimizes the production of a different vision of reality that is then codified and crystallized in the clauses of the contract.

In the name of the people, the representatives of the states assume the obligation to ‘hand over vacant possession of the land’ or to ‘ensure that such lands shall be free from Encumbrances at the date of handover of such lands in accordance which the Development Project,’ and noncompliance would represent a contractual breach.[30]

According to the majority of the constitutions of African nations, non-titled land belongs to the public, the nation or the state, i.e. the institutionalized authority, which has the duty to manage but can never fully dispose of it. The occupation of the land by people without any official title is thus admitted but not legally recognized, and the state has the legitimate power to dispose of its natural resources.

Whenever it concludes an investment contract that defines occupied land as void and available, the state is therefore looking at the legal reality, leaving aside the evidence on the ground: acting as the owner of the land, and by maximizing its power and prerogatives, the state constructs a functional legal reality and has the coercive power to legitimately enforce it. Whoever does not respect the new legal canon defined into the contract is immediately wiped out from the sphere of legality, becoming illegal. Peasants who do not treat nature as an exploitable source, farmers who practice shifting cultivation, nomadic pastoralism or hunting and gathering, suddenly become legally non-existent or, even worse, outlaws. [31]

Despite the fact that investors and the state claim that the projects are taking place in ‘available marginal lands’ – i.e. marginal, under-utilized or un-used, empty or sparsely populated, geographically remote, and socio-politically and legally available lands – evidence shows that land investments around ‘flex crops’ and other food sectors also compete for fertile land, creating struggles that are silenced by the contracts.

In conclusion, the investment contract concluded between states and Brics investors allows a reinterpretation of reality according to the needs of the investor through the exercise of the prerogatives of the state, which is subsequently enforced by the possibility for the investor to trigger principles of international law in order to ensure the contract is respected. In this way, sovereignty is exercised neither autonomously nor for the good of people.

Millions of people have already been displaced or prevented from accessing their traditional land, and this is happening under the cover of a complex legal network formed by contract, national, international and investment law.

Moreover, in order to fully develop large-scale projects, investors frequently have to rely on massive inputs, including water which is frequently diverted from its natural course and utilized for their production. Wherever large-scale agriculture is adopted, water is crucial and its diversion can seldom be achieved in a way that is entirely consistent with the needs and survival of small-scale peasantry.

Interception, diversion or storage of water creates downstream effects or may place demands on upstream land users. Investment contracts are the legal instrument that legitimizes the appropriation of water for industrial needs and the codification of a power asymmetry that is detrimental to people’s fundamental rights.

In sum, my intention has been to look at whether the Brics rhetorics of ‘respect of national sovereignty’ and the ‘promotion of solidarity’[32] are valid and applicable in the case of the current large-scale investments in land, which is an issue of mounting global concern, and has been variously described as ‘land grabbing,’ ‘neo-colonialism,’ ‘modern imperialism,’ ‘green rush,’ ‘scramble for Africa,’ etc.

The dominant narrative about the Brics approach to development is based upon G77 principles that affirm South-South cooperation, equality, solidarity, mutual development and complementarity.[33] Yet in reality, the proliferation of South-South bilateral investment treaties together with an extraordinary level of capital mobility provides investors with the possibility to generate a regulatory competition between peripheral countries, who in turn utilize their sovereignty (in particular, their sovereignty over natural resources, ability to set taxes, etc.) to become more attractive than their neighbors. The consequence is that formally public or common goods such as land, water, labor and fiscal resources have been progressively privatized and accumulated under cover of private investment agreements.

As in the case of North-South investments by hedge funds, pension funds, and agrobusiness, Brics relationships with African LICs are based on investment contracts that emerge from asymmetrical positions, and codify and crystallize the legal order that best fits the interests of the investors. In this way, it is not only the communities and the environment that are kept outside the framework, but public scrutiny as a whole.

Instead of respecting national sovereignty and promoting solidarity, most Brics (not Russia) are utilizing international law and diplomatic powers in order to bind foreign governments in bilateral agreements which inherently favor the investors and reduce the scope for national autonomy.

Yet as we can see by the mounting tensions around the numerous Chinese investments in Brazilian land, Brics can also attack each other’s sovereignty over natural resources, a situation that could degenerate into the freezing of international relations and in deepening diplomatic tensions. Finally, Brics can also be competitors for the same finite resource, a contingency that could potentially produce a race to the top in the quality and content of the investments, but that could also degenerate in an acceleration of resource grabbing, exacerbating the negative impacts over people and the environment, but also creating deeper political instability.

The case of land demonstrates that South-South relationships have to be studied more deeply and critically and that the notion of Brics has to be fragmented in its pieces and tested on the ground. In order to do so, we need to re-centre the study of international relations in order to finally take people into account. Land grabbing as a form of neo-colonialism is not a matter of names and origins, but simply a matter of global expansion of the capitalist system.

Tomaso Ferrando is a PhD candidate from Sciences Po Law School in Paris, a former Visiting Researcher at the University of Cape Town Public Law Department, and a Visiting Researcher in Commercial Law at the University of Sao Paulo.

 



[1]. This article is a condensed version of a chapter that will appear in "Multipolar World: A Movement Reader" to be published by the Transnational Institute and Focus on the Global South in mid-2013; see http://www.tni.org.

[2]. Mwase N. and Y. Yongzheng, Brics’ philosophies for development and their implications for LICs, IMF Working Paper, WP/12/74, March 2012

[3]. Boaventura de Sousa Santos brilliantly affirms that ‘it does not exist a global problem which is not rooted in a local reality’ (Santos B.S., Globalizations, 23 Theory,

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