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7/28/2019 Sovereignty Human Rights and the Global Land Grab
1/23
SOVEREIGNTY, HUMAN RIGHTS AND THE
GLOBAL LAND GRAB
SHITTU JUBRIL A.
2013
7/28/2019 Sovereignty Human Rights and the Global Land Grab
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Shittu Jubril is a graduate with a Bachelors of Science degree in International Law and Diplomacy from
Babcock University, Nigeria. He is a member of Nigerian Society of International Law, and associated
with the Chartered Institute of Arbitrators, UK (Nigerian Branch). Please forward all correspondence to
ABSTRACT
The phenomenon of land grab in recent years has drawn the attention of variousinterests including international organizations, government and civil society. This isbecause of the speed at which such large scale acquisition are taking place, the nature ofmost deals and more importantly the unjustness in which most land deals do not takeinto consideration the right of the local communities and also small holder farmers. Theera of globalization has made it impossible for nations to exist without engaging in sometrade or contractual agreement with other state or private investor. States in legitimateexercise of their sovereignty attract foreign investors, but with such right is theresponsibility to respect the investor and protect their interests. States also exercisetheir sovereignty through membership of international organizations, establishment ofsovereign wealth funds and direct/indirect support to investors. States pursuecommitments at these levels, usually in terms of their national interest.
Human rights concerns and their protection guaranteed by numerous internationallegal instruments are a partial cause of the current trend in global land rush. Before the
advent of human rights protection most land acquisitions were based on agreementsbetween parties concerned or were based on the use of force. However, the Charter ofthe United Nations has frowned against unlawful threat or the use of force against anysovereign state. While land grabs are condemned because of the impact they have on thelocal population and the environment, it does not change the fact that most land dealsare legitimate. It is therefore argued that human rights capture important dimension ofthe values that are at stake when we discuss or modify the land rights and land use ofwomen, men and children and their should be the focus of states and internationalorganizations in addressing the issue of land grabs.
7/28/2019 Sovereignty Human Rights and the Global Land Grab
3/23
Shittu Jubril is a graduate with a Bachelors of Science degree in International Law and Diplomacy from
Babcock University, Nigeria. He is a member of Nigerian Society of International Law, and associated
with the Chartered Institute of Arbitrators, UK (Nigerian Branch). Please forward all correspondence to
TABLE OF CONTENTS1.0. INTRODUCTION 1
2.0. THE CONCEPT OF LAND GRAB 2
3.0. STATE SOVEREIGNTY AND NATIONAL INTEREST 5
4.0. HUMAN RIGHTS CONCERNS AS A CAUSE OF THE CURRENT TREND IN THE
GLOBAL LAND RUSH 8
5.0. ADDRESSING THE ISSUES 10
6.0. CONCLUSION 16
REFERENCE
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1.0. INTRODUCTIONThe global rush for land in developing countries is a growing concern among various
stakeholders and groups including international organizations, government and civil
society. Many scholars have identified the reasons for increased interest in huge
hectares of land by foreign countries and domestic investors alike to include the global
economic crisis, need to secure food access for the burgeoning population and the
search alternative sources of energy in the form of biofuels.
Various writers in the literature agree that the global land grab is different from other
land grabs which have occurred in times past. Jgerskog, A., Casco, A., Hrsmar, M.
and Kim, K. (2012) and GRAIN(2012) have stated that the global rush for land is
characterized by the need for green and virtual water, while others such as Landesa
(2011) and Deutsch (2012) have cited global crisis and need to secure food production
for their growing populations.
While it is agreed that there are implications of the current wave of global land
acquisition of overseas territory, most of the writings have failed to link the issue of
human rights as a factor responsible for the rush experienced mostly in the global south.
It is important to note that the current trend of land acquisition is a legitimate exercise
of sovereignty by the various nations involved in such acquisition and also those who
attract foreign investment. It is also to be emphasized that such deals are carried out in
the interest of the nations involved. States have sovereignty in economic relationships
especially in areas relating to FDI but with such rights come obligations which erode on
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the sovereignty of states even in the legitimate exercise of their sovereignty. However,
acquisitions which respect the rights of the sovereign state and protect the rights of the
investor while giving attention to the concerns of the population is to be encouraged.
This article shall, following a brief overview of the concept of land grab examine the
concept of sovereignty and national interest in the context of land grab while
highlighting human rights protections as a major cause of the current rush for land and
land based resources, before discussing how the issue of land grab can effectively be
tackled.
2.0. THE CONCEPT OF LAND GRABLand grabbing is the acquisition of overseas territory by foreign business in ways that
are deemed unjust because of the nature of the acquisition and human rights violations
which are involved in such acquisitions. It occurs in situations where there is usually no
free prior and informed consent of the communities concerned/ affected by the
acquisition.
Land grabbing is essentially control grabbing. It refers to the capturing of power to
control land and other associated resources like water, minerals or forests, in order to
control the benefits of its use. (TNI Agrarian Justice Program, 2013) Thus when foreign
investor acquires large tracts of land for the purposes of cultivation, ignoring traditional
land tenure rights with written or tacit consent and support of the host government it is
a land grab (Hberli C., and Smith F., 2013) and according to Merian Research and
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CRBM, (2010) many acquisitions involve more than 10,000 - 500,000 hectares
worldwide.
According to Oxfam (2012), land acquisitions which involve violation of human rights,
in which communities affected are not consulted prior to the execution of the project,
and without a thorough assessment of socio-economic and environmental impacts and
transparency in the nature of the contract as a result of lack of proper oversight by the
government are in essence land grabs. However land grabbing is not restricted to land
acquisition as some agreements do not involve direct land acquisition, but seek to secure
food supplies through contract farming and investment in rural and agricultural
infrastructure, including irrigation systems and roads.
Land grabbing in massive proportions is happening all over the world, threatening not
only the survival of small farms but the very food sovereignty of nations. The current
estimate of the number of land acquisitions according to GRAIN (2012) total about 56
million hectares, a majority of the deals being found in Africa. The acquisitions of land
and government involvement in such acquisitions/ deals come in form of direct
acquisitions by government agencies, Sovereign Wealth fund investments, State owned
enterprises and even through support given to private sector in investor and host
countries and include various areas such as mining, dairy products, biofuels agriculture,
among others. (Cotula L, Vermeulen S., Leonard R., Keeley J., 2009)
It is also important to note that behind every land grab is a water grab. Water grab is a
control for water resources needed to produce high yield crops. It must be said that most
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land acquired are near water sources such as lakes, dams and rivers and the deals do not
take into consideration the water resources to be used. Thus according to GRAIN
(2012:3):
Hidden behind the current scramble for land is a world-wide struggle for control over
water. Those who have been buying up vast stretches of farmland in recent years,
whether they are based in Addis Ababa, Dubai or London, understand that the access to
water they gain, often included for free and without restriction, may well be worth more
over the long-term, than the land deals themselves All of the land deals in Africa
involve large-scale, industrial agriculture operations that will consume massive amounts
of water. Nearly all of them are located in major river basins with access to irrigation.
They occupy fertile and fragile wetlands, or are located in more arid areas that can draw
water from major rivers.
With special emphasis on Sub-Saharan Africa, numerous examples of land acquisitions
that are located near water sources can be cited including the MaLibya concession of
about 100,000ha which involves a diversion of water from the Niger river via a canal
30metres wide stretching a distance of 40km, the Pro-Cana acquisition in Mozambique
linked to the nearby Massingir Dam, and also the Saudi Star 10, 000ha acquisition
located near the Alwero river in Ethiopia.
While land acquisitions attract foreign investment which can lead to increased exports
and creation of employment opportunities, there are major disadvantages in terms of
access to and control of resources by the local population, reduced socio-economic
conditions, and increased potential for conflict. Such land grabs could also impact the
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biodiversity of an area. This could be as a result of use of industrial modes of
agricultural production, use of high yield fertilizers, or by conversion of forests into
arable lands. (Graham A., et al, 2010)Various databases covering details about the
number, scope, and effects of land acquisition have been provided by GRAIN and FIAN
and Land Matrix.
3.0. STATE SOVEREIGNTY AND NATIONAL INTERESTSovereignty as defined in the Island of Palmas Arbitration (Island of Palmas Case
(Netherlands/USA), RIAA II, 870. P.) is a definitive starting point for exploring the
relationship which exists between states and other entities in the international system.
It is the ability of state to the exclusion of other states in the international system to
perform the functions of a state. While the post-Westphalia world system established
the sovereignty of the state in relation to entities in the international system, the
existence of globalization and technological advancement made it impossible for a state
to retain such control over its territory without some form of external interference either
in the form of acquisition of territory by foreign firms and governments who owned such
technology and sought such territory for various purposes or the various multilateral
organizations who seek to impose their jurisdiction in order to enforce treaty
commitment. The establishment of the sovereignty of a state gave it the ability to enter
into any form of contractual relationship, albeit with such right came the responsibility
to respect the investor and protect their interests. Such commitments have been codified
quite succinctly in the various bilateral investment treaties which exist between various
states and even multilateral conventions.
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The notion of sovereignty was birthed at the conclusion of the Westphalia peace treaty,
but became firmly rooted in the Charter of the United Nations. With particular reference
to international trade and investment, one may cite the Treaty on Friendship,
Commerce and Navigation signed between various States creating rights and
responsibilities for states, and also the various BITs and FTAs signed between various
countries. In tracing the evolution of a nations sovereignty over her natural resources,
one may be informed that the various UNGA resolutions such as the Resolution 1803 of
1962 (Permanent Sovereignty over natural resources, Resolutions 3201; 3281(Charter of
Economic Rights and Duties of States, and also international covenants such as the
ICESCR of 1966 which establish the sovereignty of a state over its natural resources
which is to be expressed in the natural and public interest, and provides that
compensation should be prompt effective and adequate.
The era of globalization has made it impossible for nations to exist without engaging in
some trade or contractual agreement with other state or private investor. Thus, nations
have signed various BITS which govern relations between the state and investors and
allow for foreign direct investment. However, it must be said that the rights favour the
investor than the host state, especially through the use of stabilization clauses and
various standards of treatment such as the FET and MFN that govern relationships. In
such relationship, a state cannot invoke its sovereignty as inability to fulfill its
contractual obligations (the principle of pacta sunt servanda Article 27 of the VCLT
1969)
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By seeking to discourage nations from engaging in their contractual obligations there is
a gradual erosion/intrusion in sovereignty. Imposing guidelines might not favour
particular states, who seek to engage in certain form of transactions. However an
investment which respects the rights of the state and that of the investor, without
infringing on the benefits of the local community who have such rights to such lands
should be encouraged.
Apart from legislation and administrative oversight of investments in land acquisition
deals, States also exercise their sovereignty through membership of international
organizations, establishment of sovereign wealth funds and direct/indirect support to
investors. States pursue commitments at these levels, usually in terms of their national
interest.
With regards to membership of multilateral organizations, one may cite such
institutions as the World Bank, and FAO, groups such as the AU and EU and G8, and
other mechanisms such as the ICSID which provide for settlement of disputes between
state and arbitrators which are used by states to pursue their sovereign interests.
National interests could be common, complementary or conflictual. The current regime
of land rights governance reveals a conflict of interest between developed nations and
MNEs on the one hand and developing nations on the other hand. The MNE seeks
opportunities where the production costs are lowest and sales where the prices are
highest, resulting in repatriation of profits to the home country." The host country, on
the other hand, seeks to maximize benefits to its economy, which requires the retention
of MNE profits within the host economy. (Burt, 1997) Developed countries and
developing nations also differ on how best to tackle the issue of land grabs. Between the
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right of the state to engage in contractual agreement, and that of the investor to a
favorable clime for the growth of his investment lies human rights issues amongst other
issues such as environmental sustainability and food security. We shall focus on Human
rights as a major issue arising out of land grabs before moving on to discuss how the
phenomenon is to be addressed.
4.0. HUMAN RIGHTS CONCERNS AS A CAUSE OF CURRENT TREND IN GLOBALLAND RUSH
Human rights concerns and their protection guaranteed by numerous international
legal instruments are a partial cause of the current trend in global land rush and it is
only by focusing on these can the issue of land grab be effectively controlled. While some
reports (see Rullia M. C., Savioria, A., and DOdoricob, P.(2012) have hinted at possible
human rights violations by the government as fallout, most have neglected such human
rights concerns as a partial cause of the current trend in global land rush. While land
grabs are condemned because of the impact they have on the local population and the
environment, it does not change the fact that most land deals are legitimate.
Before the advent of human rights protection most land acquisition were based on
agreements between parties concerned or were based on the use of force, i.e., conquest,
annexation and occupation. Apart from the colonial era which saw the scrambling for
and partitioning of Africa and her vast resources by European powers, the Japanese
invasion of Manchuria in 1931 could be cited as a good example. The Japanese economic
presence and political interest in Manchuria had been growing ever since the end of the
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Russo-Japanese War (190405).The Japanese population was growing and in a bid to
secure land for her people and also to gain access to natural resources such as oil,
rubber, lumber, etc its soil was described as possessing almost exhaustless fertility
amidst potential resources in agriculture timber and minerals. Following the Mukden
incident staged by Japanese army, Japanese forces invaded Manchuria, and established
a puppet government.
However, the Charter of the United Nations has frowned against unlawful threat or the
use of force against any sovereign state; other relevant instruments proscribe
annexation/occupation of foreign territory without consent as experienced in the Gulf
War. In response to Israels self-declared annexation of East Jerusalem, the UN Security
Council affirmed that acquisition of territory by annexation is forbidden and that the
Israeli law declaring East Jerusalem annexed therefore is null and void. Similar
considerations were voiced by the International Court of Justice (ICJ) in its Advisory
Opinion on the Wall.
Thus as states are unable to scramble for territory and resources as was the norm before,
they have had to request the consent of the government affected, and this has been done
by acquisition of such territories by foreign direct investment. It is indeed a scramble for
territory because most of the produce is not sold in the country where it is produced but
is exported to the investors country to be sold. Thus, while the use of force was the main
tool of land acquisition in the past with different reasons put forward by the
governments involved, the new tool being used to acquire land resources is in the form
of finance provided by foreign investors and sovereign wealth funds.
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Quite similar to what was obtainable in the past; it is merely weak governments that
have been victims of such land grabs. China and Kuwait were too weak to respond to the
land grabs and it was not without the help of the international community they were
able to get their lands back. Presently weak countries have fallen victims of the rush for
land. Mali for instance is characterized by a weak government struggling with an
insurgency. Congo is also experiencing a government which is faced with various rebel
groups including the Seleka rebels who invaded the Central African Republic and
overthrew the President. It must also be said that Congo is one of the poorest countries
in Africa. Thus, it is argued that the global land rush is prevalent in countries with weak
institutions, and structures where there is minimal regard for rights of citizens. In such
states administration of land rights and monitoring of such deals to ensure compliance
with accepted standards may prove abortive. Thus in as much as deals are transparent,
they may not be effective in monitoring or implementation. Moreover, most deals are
recognized after they have been concluded.
5.0. ADDRESSING THE ISSUE OF LAND GRABSWhile land grabs are condemned because of the impact they have on the local
population and the environment, it does not change the fact that most land deals are
legitimate. Acquisitions which respect the rights of the State, protect the rights of the
investor, and give attention to the concerns of the population is to be encouraged.
The best international legal document which addresses the issue of land grab with a
view to the protection of human rights is the Voluntary Guidelines on the Responsible
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Governance of Tenure of Land, Fisheries and Forests in the Context of National Food
Security adopted by the Committee on World Food Security on 11 May 2012.
According to the FAO (2012):
The Guidelines were developed through a broad global partnership of international,
regional and national organizations of different types that work together to achieve
global changes in governance of tenureInadequate and insecure tenure rights increase
vulnerability, hunger and poverty, and can lead to conflict and environmental
degradation when competing users fight for control of the resources. The governance of
tenure is a crucial element in determining if and how people, communities and others
are able to acquire rights, and associated duties, to use and control land, fisheries and
forests(p.13)
The Voluntary Guidelines are not legally binding but carry a force derived from the
desire of states to create obligations through commitments which could become binding
especially when existing obligations of states in relation to the protection of human
rights are considered. In other words, they could be classified as soft law. (FAO, 2012)
The Guidelines serve as a reference point for set out principles and internationally
accepted standards for practices for the responsible governance of tenure. They provide
a framework that States can use when developing their own strategies, policies,
legislation, programmes and activities The Guidelines are also intended to contribute
to achieving sustainable livelihoods, social stability, housing security, rural
development, environmental protection, and sustainable social and economic
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development. The Guidelines are meant to benefit all people in all countries, although
there is an emphasis on vulnerable and marginalized people. (FAO, 2012)
However, one may also notice the conflict of interest between mainly the developed
countries and the developing countries in developing the right approach to land
governance. As of June 2013, the G-8 adopted an initiative on transparency which is
more or less a reflection of their interests in the land based regime. The approach of the
G-8 is to ensure transparency and encourage promotion of legitimate deals through
increased access to land resources in developed countries. Thus according to the G8:-
Lackof transparency around land deals can create a barrier to responsible investment,
weaken livelihoods and ignore rights of local communities, create space for corruption
and money laundering, reduce space for legitimate business activityEncouraging
responsible and sustainable investment in land is essential for economic growth and
food security.(UK government, 2013)
However, such move has been condemned by various NGOs and Civil society groups
who see the move as a ploy to ensure unrestricted access to natural resources and
markets. According to a report, the G8 program of action also known as the alliance
ensures unrestricted access for multinational companies and to access cash in form of
donor funding from such countries, and governments have had to make far reaching
changes to their land seed and farming policies not minding the displacement of
livelihoods and food security of communities. For instance in January 2012,
approximately 70,000 indigenous people that were in the Gambella region in Ethiopia
were forcefully evicted/relocated under a villagization program to new villages that lack
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adequate food, farmland, healthcare, and educational facilities. (Human Rights Watch,
2012).
Another instance was in the mid 1970s when Cte d'Ivoire was self-sufficient in rice, but
under pressure from international donors, the national rice company was privatized,
public support for production was dismantled and the market was opened up to
imports. Within two decades, two thirds of the rice consumed in the country came from
Asia. These imports generated immense profits for the handful of international grain
traders and powerful local businessmen who dominate the market. Yet they've been
deadly for local production. There are no policy commitments in the framework for
Ethiopia or any of the other countries involved to protect peasants and pastoralists
from the growing number of land grabs taking place. (Al-Jazeera, 16 September 2012)
According to the UN's Food and Agriculture Organisation (FAO, 2012), in low- and
middle-income countries farmers invest about $170bn a year three times as much as
all other sources of investment combined. In addition, about 70% of the world is fed by
smallholders farmers as opposed to corporate farming. Thus, there is an urgent need to
focus on protection of human rights, not just the rights of the communities. This is
because Human rights therefore provide standards for evaluating processes and
outcomes of transnational land acquisitions and, thus, for determining whether they are
ethically unacceptable land grabs. (Wisborg, 2013)
While business transactions and creation of legislation governing contractual
relationships is mainly of domestic concern, issues of human rights are viewed with
greater scrutiny. It is argued that issues of forced displacement have potentialities for
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conflict and might create situation of refugees not to talk less of destabilization of
regions which are economically fragile. A study by the Rights and Resources Initiative
says developing country governments that fail to protect the rights of those using
communally held land could spark civil unrest. (Guardian, 2012) Also according to the
CICR, the marginalization of indigenous communities during concession negotiations
and project implementation has resulted in high tensions around a number of FDI
projects. This tension has occasionally led to violence and other forms of social unrest,
which could feasibly lead to conditions that might threaten peace in the country. (CICR,
2011)
It has been argued that human rights capture important dimension of the values that
are at stake when we discuss or modify the land rights and land use of women, men and
children. (Wisborg, 2013) Various international instruments contain such protection.
For instance, the twin covenants on human rights provide that: All peoples may, for
their own ends, freely dispose of their natural wealth and resources without prejudice to
any obligations arising out of international economic co-operation, based upon the
principle of mutual benefit, and international law. In no case may a people be deprived
of its own means of subsistence (ICCPR 1.2, and the International Covenant on
Economic, Social, and Cultural Rights, ICESCR 1.2)
Human rights principlesparticipation, accountability, non-discrimination,
transparency, human dignity, empowerment and the rule of laware valid for
interventions in agriculture and food production (FAO 2007). Everyone has a human
right to own property alone as well as in association with others and not to be
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arbitrarily deprived of this property (UDHR 17). ACHPR (14) confirms that the right
to property may only be encroached upon in the interest of public need or in the
general interest of the community and in accordance with the provisions of appropriate
laws. Thus, individual, family and community land rights may only be changed on the
basis of law that is consistent with human rights (UDHR 17; ACHPR 3, 14, 18).
(Wisborg, 2013)
The 1966 UN Covenants committed States Parties to creating an international order
that recognizes self-determination and free disposal of natural resources; protects
individuals against deprivation of the means of subsistence; promotes international
assistance and cooperation (ICESCR 2.1, ICCPR 1.2, ACHPR 20, 21); and reforms
agrarian systems (ICESCR 11.2). The Voluntary Guidelines require that all
programmes, policies and technical assistance to improve governance of tenure must
be consistent with the full range of civil, political, economic, social and cultural human
rights (1.1, 4.8). (Wisborg, 2013)
In focusing on human rights protection amongst other measures, international,
specialized and regional organizations have a special role to play in ensuring state
compliance with international obligations. The ADVIII recognized that:
Urgent attention is needed to: (a) entrench and recognize the land rights of local
communities in land laws and facilitate security of all bundles of land rights, interests
and claims, especially so for women and other marginalized groups; (b) strengthen land
institutions; and (c) monitor mechanisms for LSLBIs. Building institutions to improve
land governance can improve local land rights. This includes instituting transparent
contractual arrangements and modalities for their enforcementIt is important to also
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examine matters related to human rights for local communities and social equity in
policy development and land governance. Issues that pertain to customary rights and
related governance institutions require special attention, especially since African
Governments are still in their early stages of implementing land policies that better
recognize rights of communities in customary land rights jurisdictions.(UNECA, 2012)
6.0. CONCLUSIONLand grabs are occurring on a large scale not just because of the uncertainties in
resource stability and food security but mainly because of the weak framework of
protection afforded communities affected, and also weak or non existing frameworks
of monitoring and administrative oversight of the implementation of such deals. States
and investors will continue to invest in overseas territory in the scramble for resource
control because it is in their interest to do so. The current efforts in developing an
effective framework to tackle the problems of land grabs merely reflects the interest of
states involved and thus a more effective approach will be to focus on issues of common
concern such as human rights, food security and also the environment.
Human rights concern is a key issue to be addressed if the problem of land grabs is to be
addressed. In the present global era of sovereignty and human rights protection, states
and international organizations and other stakeholders have a duty to ensure the
protection of these rights by ensuring the rights of communities and smallholders
farmers to their land are protected.
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REFERENCE
African Development Forum (ADF-VIII) (2012) Land and Africas DevelopmentFuture: Governing the Risks and Opportunities of Large-scale Landbased InvestmentsIssues Paper 2 ECA/ADF/8/3
Al-Jazeera (2012) Counting the cost: Food for thought" 16 September 2012, available athttp://www.aljazeera.com/programmes/countingthecost/2012/09/20129167591879452.html
Anseeuw, W., L. Alden Wily, L. Cotula, and M. Taylor. (2012). Land Rights and theRush for Land: Findings of the Global Commercial Pressures on Land ResearchProject. (Rome: ILC)
Burt M. E. (1997), Developing Countries and the Framework for Negotiations onForeign Direct Investment in the World Trade Organization American UniversityInternational Law Review Vol. 12, Issue 6
CICR (2011) Smell no taste-the impact of foreign direct investment in Liberia NewYork: Center for International Conflict Resolution Columbia University - School ofInternational and Public Affairshttp://www.cicr-columbia.org/wp-content/uploads/2012/01/Smell-No-Taste.pdf
Cotula L,Vermeulen S., Leonard R., Keeley J., (2009), Land grab or developmentopportunity? Agricultural investment and international land deals in Africa,London/Rome: IIED/FAO/IFADIIED) available athttp://www.ifad.org/pub/land/land_grab.pdf
Cotula L., (2007), Legal Empowerment for resource control: Securing local resourcerights within foreign investment projects in Africa, UK: International Institute forEnvironment and Development (IIED) ISBN: 978-1-84369-667-4
FAO (2012) Voluntary Guidelines on the Responsible Governance of Tenure of Land,Fisheries and Forests in the Context of National Food Securityhttp://fao.org/nr/tenure/voluntary-guidelines/en/
FAO (2012), Voluntary guidelines on the governance of tenureat a glance available athttp://www.fao.org/docrep/016/i3016e/i3016e.pdf
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