The Ethics of Foreign Investment

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Middle Eastern and Gulf States are major investors in agricultural land in developing countries. In 2009 the World Bank cited Saudi Arabia and the United Arab Emirates as ‘worldwide leaders in buying land in third-party countries’ with Bahrain, Egypt, Kuwait, Libya and Qatar also actively exercising their interests in acquiring foreign farmland on a large scale. China and South Korea are also significant investors, along with European biofuel companies and US investors. The countries targeted are largely in Africa, with the main focus being the low-income countries of Ethiopia which has 13 million hungry people, Madagascar, Sudan and Mozambique, but also Cameroon, DRC, Ghana, Kenya, Mali, Somalia, Tanzania and Zambia. Southeast Asia and South America are also seeing a rise in foreign-owned farmland.

The scale and nature of this type of investment has raised international concern. The UN Agriculture and Food Organization (FAO) estimates that the area of land acquired in Africa by foreign interests for food production in the past three years at 20 million hectares, with leases from 50 to 99 years regularly documented. The main reasons for the mass buying and leasing of agricultural land abroad is for export back home by food insecure states or for profit-making by private foreign investors, but also in anticipation of payment for carbon sequestration.

To speak only of the ‘threats and potential opportunities’ that these investments highlight leaves underexposed the grave risks to human rights that they pose. Risks of violations of the right to adequate food come from depriving local populations of access to productive resources indispensible to their livelihoods (in particular women who form the majority of the agricultural workforce in developing countries) and from exacerbating food insecurity in low-income countries through the export of the food produced or its sale on international markets. These issues have the UN Special Rapporteur on the Right to Food deeply concerned.

The right to water is threatened both by the particular nature of this resource-seeking form of investment and because land near increasingly scarce water is being sought by investors to minimise irrigation costs. The scope for widespread violations of the human rights to adequate housing and to property is also a cause for alarm. People are being driven off their lands to make way for investors without respect for international human rights principles that require careful tests to ensure that any limitations on rights meet the standard of promoting the public interest, and then with due consultation by those affected and with compensation provided as necessary.

Significantly, the human right to property is not limited to individual ownership, but covers also economic resources and rights over the common land of rural communities who do not possess formal title. It applies as well to the rights of indigenous peoples within the framework of communal possession of their traditional lands, resources and territories. An FAO Working Paper (Rass, 2006) reports that almost half of the 120 million (indigenous) pastoralists/agro-pastoralists worldwide live in sub-Saharan Africa, with the largest numbers in three countries targeted for agro-investment: Sudan, Somalia and Ethiopia.

This list of negative duties (requirements to do no harm) is only half the story. The other half is about positive duties, in particular that agricultural investment is directed towards broader poverty reduction and sustainable development strategies in the recipient countries. This requires focusing on the realisation of the range of socio-economic rights in a manner that is deliberate, concrete and targeted and does not allow for the retrogression of human rights. So what actors have these responsibilities?

A general reference to ‘foreign investors’ obscures the range of actors implicated in the issues outlined above, and a proper understanding of the duties they might have under international human rights law. The first distinction to be made is between public and private investors. International human rights law applies directly to state actors and requires compliance from the state, in all its forms when it acts internationally, be it the government, its sovereign wealth fund, or inter-governmental collective decisions such as those made by the Gulf Cooperation Council or the World Bank’s International Finance Corporation. While governments play a range of often complex roles in promoting investment overseas, they are not divested of their human rights duties when undertaking those activities.

Private sector investors in the food, energy and financial industries are the other set of players acquiring control over farmland (with controversial support provided from the World Bank and the European Bank for Reconstruction and Development). Various voluntary codes of conduct that apply to the private sector notwithstanding, FDI-exporting states may have a duty to ensure – at a minimum – that investors do not violate human rights abroad, particularly where the host state is unable or unwilling to provide those guarantees itself.

The recipient states have human rights duties and domestic pressures for foreign investment do not relieve them of their full range of responsibilities, including duties to ensure the observance of human rights by other actors within their territories. In addition to guaranteeing participation and consultation and to securing socio-economic rights, human rights standards require the transparent use of the revenues accruing to the state as a result of investment.

Access to remedies before independent judicial bodies when things go wrong is also part of the package of duties, but this is not easily given effect. That African countries may not have in place suitable legal or procedural mechanisms to protect local rights gravely disadvantages much of the population, and sovereign immunity will render the success of domestic claims against foreign states unlikely; mechanisms to file suits elsewhere against the sending state where investment is government-backed are currently limited; opportunities to file suits against parent companies in their home states or other states remain rare; and no international law mechanisms are available to permit claims against private foreign investors. Fairness is not served either by the fact that low-income countries have weaker bargaining power in negotiating investment agreements which typically contain provisions providing extensive investor protection while limiting host state action, including actions to protect the human rights of their populations.

To be sure, this type of foreign investment may provide domestic benefits in the form of capital inflows, employment, improved crop yields, and possibly infrastructure, technology transfer and increase in food supplies for domestic markets and for export. However historical evidence on the effects of foreign direct investment in agriculture suggests that these gains – where intended – do not always materialise. Instead a catalogue of concerns from land degradation, the depletion of water resources to limited labour rights do surface (FAO, 2009). Moreover, a proper cost-benefit analysis must weigh any possible domestic recompense against livelihoods destroyed, the effects of unequal competition between industrial farming and small-scale farms, and what could otherwise be achieved by investing seriously in family farming, irrigation systems, storage facilities, communication and infrastructure etc. This situation begs another vital question: whether foreign investment in agricultural land fits wider strategies of sustainable development, including the achievement of the Millennium Development Goals. An increase in GDP tells us nothing about the human and environmental sacrifices made in realising growth or whether benefits have been fairly distributed.

International awareness as to the need to address this phenomenon has seen the emergence through the UN system of principles for responsible investment in agriculture. While turning attention to issues of land and resource rights among local populations, effective consultation and fair compensation, we should also take a step back and consider the wider social, economic and legal contexts within which this development, and responses to it, are taking shape.

We are told that Africa needs to boost food production and that this requires foreign investment, but hunger and malnutrition are not first and foremost a result of there not being enough food, but instead issues of poverty and inequality precluding access to sufficient food. There is widespread recognition among civil society and international agencies as to the importance of directing this investment so that it prevents harms and ensures benefits are shared, but principles that seek to restrict the transnational private sector in the interest of the common good are voluntary, whereas international investment treaties - where the law is binding and compliance is enforced - are structured around the interests of investors. What’s more, the future is sure to invite greater competition as a growing population and diminishing natural resources foster an ethic premised on survival of the (global) fittest.

Some of the features of what a Pambazuka News report has dubbed ‘the great African liquidation sale’ (Baxter, 2009) may be new, but the exploitation of foreign lands for personal gain has a long and sordid history. It’s understandable why the mind draws parallels between these current ‘land grabs’ and colonialism’s practice of the subjugation of one people by another. Similarly, the discredited claims of ‘idle and unoccupied’ land used to justify the availability of farmland for investors triggers thoughts of the reprehensible doctrine of ‘terra nullius’ (land belonging to no one) that served the powerful of the day so well in their quest for indigenous territories in far off places. Today much more is demanded of the international system and its various actors: adherence to fundamental principles of justice, fairness, and the standards that give those values contemporary resonance – human rights.

Dr. Margot Salomon - Senior Lecturer at the Centre for the Study of Human Rights and Law Department, London School of Economics.