FOREIGN LAND DEALS AND HUMAN RIGHTS CASE STUDIES ON AGRICULTURAL AND BIOFUEL INVESTMENT ABOUT THE CENTER FOR HUMAN RIGHTS AND GLOBAL JUSTICE AND THE INTERNATIONAL HUMAN RIGHTS CLINIC The Center for Human Rights and Global Justice (CHRGJ) at New York University School of Law was established in 2002 to bring together the law school’s teaching, research, clinical, internship, and publishing activities around issues of international human rights law. Through its litigation, advocacy, and research work, CHRGJ plays a critical role in identifying, denouncing, and fighting human rights abuses in several key areas of focus, including: Business and Human Rights; Economic, Social and Cultural Rights; Caste Discrimination; Human Rights and Counter-Terrorism; Extrajudicial Executions; and Transitional Justice. Philip Alston and Ryan Goodman are the Center’s Faculty Chairs; Smita Narula and Margaret Satterthwaite are Faculty Directors; Jayne Huckerby is Research Director; and Veerle Opgenhaffen is Senior Program Director. The International Human Rights Clinic at New York University School of Law provides high- quality, professional human rights lawyering services to individual clients and nongovernmental and intergovernmental human rights organizations, partnering with groups based in the United States and abroad. Working as researchers, legal advisers, and advocacy partners, Clinic students work side- by-side with human rights advocates from around the world. The Clinic is directed by Professor Smita Narula of the NYU faculty; Amna Akbar is Senior Research Scholar and Advocacy Fellow; and Susan Hodges is Clinic Administrator. All publications and statements of the CHRGJ can be found at its website: www.chrgj.org. This report should be cited as: Center for Human Rights and Global Justice, Foreign Land Deals and Human Rights: Case Studies on Agricultural and Biofuel Investment (New York: NYU School of Law, 2010). © NYU SCHOOL OF LAW CENTER FOR HUMAN RIGHTS AND GLOBAL JUSTICE Center for Human Rights and Global Justice ACKNOWLEDGMENTS This Report was prepared in support of the mandate of the United Nations Special Rapporteur on the right to food, Olivier De Schutter. We are enormously grateful for his input throughout this project and for his profound insights on the connections between large-scale land investments and human rights. We are also enormously grateful to Elizabeth Ashamu, Lorenzo Cotula, Kaitlin Courdes, Elisa Miller, Nikki Reisch, and Gaëtan Vanloqueren for their assistance with the project. We also wish to express our great appreciation to the many researchers, community members, government representatives, and company officials who agreed to be interviewed for and/or provided input into this Report. The Center for Human Rights and Global Justice (CHRGJ) and its International Human Rights Clinic (IHRC) gratefully acknowledge the following individuals for their work in the preparation of this Report: Project Director: Smita Narula, Faculty Director, CHRGJ and Professor, IHRC, NYU School of Law IHRC Project Members: Lauren DeMartini (2010-11) David K. Deng (2009-10) Colin Gillespie (2010-11) Andrea Johansson (2009-10) Geoffrey Johnson (2010-11) Sylwia Wewiora (2010-11) Authors and Researchers: This report was primarily researched and written by IHRC members David K. Deng and Andrea Johansson and CHRGJ Faculty Director Smita Narula. Additional significant research and writing support was provided by IHRC members Lauren DeMartini, Colin Gillespie, Geoffrey Johnson, and Sylwia Wewiora and by CHRGJ Associate, Ravi Mehta. Editing, Content Review, and Commentary: Jayne Huckerby, Research Director, CHRGJ Veerle Opgenhaffen, Senior Program Director, CHRGJ Zoe Salzman, Clinical Contract Attorney, IHRC (Spring 2010) Additional Production and/or other Assistance: Amna Akbar, Senior Research Scholar and Advocacy Fellow, CHRGJ Susan Hodges, Clinic Administrator Sarah Knuckey, Project on Extrajudicial Executions Director, CHRGJ Jenae Noell, CHRGJ Associate Kelly Ryan, Program Assistant, CHRGJ Research and Citation Support: Gabriel Armas-Cardona, Francesca Corbacho, Abby Deshman, Dinushika Dissanayake, Lillian Jahani, Vyoma Jha, Jeremy Shirm, and Sylwia Wewiora. ii Foreign Land Deals and Human Rights: Case Studies on Agricultural and Biofuel Investment FOREWORD BY OLIVIER DE SCHUTTER, U.N. SPECIAL RAPPORTEUR ON THE RIGHT TO FOOD There is a huge, mounting interest in farmland, from private investors and governments alike. Working on the basis of press reports—a fact which, in itself, provides a remarkable illustration of the lack of transparency surrounding this important agricultural shift—the World Bank notes that “investors expressed interest in 42 million [hectares] of land globally in less than a year,” with more than 75 percent of these deals concentrated in Sub-Saharan Africa.1 Some large-scale investments in farmland may lead to the cultivation of land that has been previously underutilized: the World Bank’s “conservative estimate” is that 6 million hectares of additional land will be brought into production each year between now and 2030.2 However, even leaving aside its environmental consequences, global expansion into “uncultivated” land may be at the expense of populations that depend on this land for grazing animals, hunting, or gathering wood and fruit. In addition, most new investments in farmland will simply mark a change in who owns the land and what grows on it. These transformations deeply affect the communities whose livelihoods and way of life depends on the land, and whose rights are routinely ignored by the very governments who should protect them. The World Bank observes: “Countries with fairly abundant non-forested, non-cultivated land with agricultural potential attracted more interest. However, countries with poorer records of formally recognized rural land tenure also attracted greater interest, raising a real concern about the ability of local institutions to protect vulnerable groups from losing land on which they have legitimate, if not formally recognized claims.”3 This Report, presented by the International Human Rights Clinic (IHRC), a program of the Center for Human Rights and Global Justice (CHRGJ) at New York University School of Law, offers a unique contribution to the current debate on “land-grabbing.” Based on extensive research, it provides further evidence of the dangers associated with the rush toward farmland and associated water resources that we are currently witnessing. Out of the four cases examined herein, three lead the researchers to raise serious questions about their compatibility with the human rights duties of the governments and investors concerned. For example, in Tanzania the conditions in which local communities were consulted on the development of sugarcane-ethanol projects by Swedish companies—currently covering some 22,000 hectares of land—appear of concern, particularly with regard to the quality of information that representatives of the communities were provided. The characteristics of the project concerning the use of water also raise questions about sustainability. The investment into forest plantations, carbon offsets, and forest products in Southern Sudan by TreeFarms Sudan Ltd. takes place in an especially volatile political environment, and the identified commitments of the investors are reportedly so vague as to make it difficult to envisage how they Olivier De Schutter was appointed the UN Special Rapporteur on the right to food in March 2008 by the United Nations Human Rights Council. He is independent from any government or organization and he reports to the Human Rights Council and to the UN General Assembly. For more on the work of the Special Rapporteur on the right to food, visit www.srfood.org. 1 WORLD BANK GROUP, RISING GLOBAL INTEREST IN FARMLAND: CAN IT YIELD SUSTAINABLE AND EQUITABLE BENEFITS? xiv (Sept. 2010), available at http://siteresources.worldbank.org/INTARD/Resources/ESW_Sept7_final_final.pdf. 2 Id. at xi. 3 Id. at xiv. iii Center for Human Rights and Global Justice would be practically enforced. In Pakistan, the sheer scale of the projected acquisitions raise particular concerns about the impact on affected communities. Moreover, the acquisitions of agricultural land by investors from Gulf States in order to produce food to be shipped exclusively back to their market rely on agreements that, to date, seem to suffer from a lack of transparency. This makes it impossible for the local populations to assess whether such investments will benefit them, or whether their interests have instead been sacrificed. The fourth case study—examining the production of biodiesel from jatropha by Mali Biocarburant SA (MBSA)—stands out as a “best practice” case, especially in light of medium and large-scale land acquisitions taking place in the country. The following characteristics of the investment are worthy of note: MBSA and local farmers’ cooperatives, which have an equity stake in the joint venture with MBSA, have combined their efforts to produce biodiesel to meet local energy needs, intercropping jatropha with maize in order to increase both the production of food crops and of energy crops, while at the same time reducing the use of chemical fertilizers by the application of “presscake” residue that nourishes the soil. Moreover, MBSA has only acquired the land necessary for building the small processing plant to produce biodiesel from jatropha. The jatropha itself is produced by the farmers on their own land, through an outgrower scheme that ensures some