1404 The Voluntary Guidelines: a valuable tool or window dressing?

Family farmers in developing countries must have access to land to produce sufficient food in order to enjoy their Right to Food. This fundamental right is being compromised due to increased pressure on farmland from wealthy investors acquiring huge areas of farmland. Amidst concerns of land grabbing and the corresponding lack of regulation civil society around the world has pressed for more regulation which has led to the endorsement in 2012, by the Committee on World Food Security[1], of the FAO[2] Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (hereafter the Voluntary Guidelines or VG). Since this endorsement, there have been a number of projects around the world aiming to implement these guidelines. However, it is still too early to measure the results of these projects.

 

The purpose of the VG is to be a reference for land governance in order to realise the Right to Food.[3] This means giving particular attention to the most important food producer in many developing countries: the small-scale producer. The VG do mention that small-scale producers should be supported and that their tenure rights be guaranteed. The question is whether these VG can contribute to modifying tenure systems that will guarantee access to land for small-scale family farmers, given the preference of many policy-makers for industrial agriculture and the dominance of large corporations in the global food system. 

 

In what follows we will discuss some strengths and shortcomings of the VG and particularly the tension between the VG and initiatives aiming to increase private investment in African agriculture.

 

Positive elements of the Voluntary Guidelines

 

The VG pay special attention to improving tenure security for the most vulnerable groups: the poor, women and small-scale producers. They also attempt to include all existing forms of tenure rights: customary, communal and informal tenure rights referred to as legitimate tenure rights[4]. The VG are inspired by existing Human Rights Treaties; legitimate tenure rights are approached in the same way as basic human rights. First of all, every state has the obligation to prevent violation of legitimate tenure rights within its territory, while non-state actors such as businesses have to respect legitimate tenure rights. What is more, the VG attempt to strengthen the extra-territorial human rights obligations of states. In the VG the responsibility of the home states of multinational companies investing overseas is broadened: home states have to assist host states and companies to avoid HR-abuses and provide judicial remedy for victims. Yet, despite the sound principles of the VG, the reality is different: foreign investors often can rely on better legal protection than local communities via Bilateral Investment Treaties.

 

Why “voluntary” will not be enough

 

The main shortcoming of the VG remains that they are voluntary and as such are not likely to inspire the agribusiness to implement them because this would require companies to pay to analyze local tenure systems before investing. The VG provide good instruments for States to improve the security of tenure for the local population. However, in reality they are often prevented from using these instruments. For instance, the VG encourage host states to apply safeguards to land transfers such as ceilings on the sale of land, parliamentary approval before transfer, independent impact assessments prior to investment and taxes to prevent speculation on land and concentration of land ownership. However, this is opposite of what the World Bank has been asking for decades of developing countries receiving conditional loans, namely liberalization (also of land markets), deregulation and opening the economy in order to create an enabling environment for investors. To receive the loan, governments often implement the reforms suggested by the World Bank.[5]     

 

The VG start from a participatory approach aiming to protect all kinds of tenure rights via transparent and accessible tenure system and they urge states to implement redistributive land reforms. The land reforms proposed by the VG are in general time-consuming but necessary given the complexity of customary and communal tenure rights. However, a country can also decide to undertake a simplified land reform, allowing family farmers to own the land they cultivate. If the land cannot be taken away from the farmer he or she will be more likely to invest in that land and this will have a positive impact on rural development.[6]

 

However, both short term logic and the preference for industrial agriculture persist in public-private partnerships promoted by donors aiming to increase investment of the private sector in African agriculture. An example of such a private-public partnership is the G8’s New Alliance on Food security and nutrition[7], through which the private sector obtained concessions from African governments. African countries pledged to change land, seed and tax laws and to make land available for commercial investment. These commitments will liberalize land markets at a fast pace facilitating land acquisitions by large companies. Such a liberalization of land markets is unlikely to take into account sufficiently the tenure rights of the local population.

 

Conclusion

 

In the end the, FAO’s VG provide valuable instruments for strengthening the land rights of vulnerable groups. However, these voluntary tools often vanish into thin air when confronted with investment projects of extractive agribusiness. It is unlikely that a set of voluntary guidelines will encourage those companies that are merely interested in short-term profits to implement safeguards preventing harm to the local population. For example, an analysis of local tenure systems prior to investment can prevent violation of the legitimate land rights of the population. Only binding legislation governing large-scale land acquisitions has the capacity to introduce legally enforceable safeguards for the population. Such legislation can be based on the VG, which provide protection for the local population’s land rights even when these rights are not documented. Enforceable land rights guarantee access to land that is essential for food producers, family farmers, pastoralists and the rural population to grow crops for consumption or income, and to sustain livelihoods. If nations around the world and United Nations bodies want to be effective in eliminating hunger and poverty, then binding legislation on the basis of the VG is indispensable to ensure that agricultural investments are beneficial for local communities.

 

Gino Brunswijck

Policy Officer