Large-Scale Land Acquisitions International Development Policy Editor-in-Chief Gilles Carbonnier ( Professor of Development Economics, The Graduate Institute, Geneva ) Guest Editors Christophe Gironde ( Senior Lecturer, The Graduate Institute, Geneva ) Christophe Golay ( Coordinator of the Project on Economic, Social and Cultural Rights, Geneva Academy of International Humanitarian Law and Human Rights ) Peter Messerli ( Director of the Centre for Development and Environment (CDE), University of Bern ) VOLUME 6 The titles published in this series are listed at brill.com/idp Editorial Board Marc Bacchetta (Counsellor, Economic Research and Statistics Division, WTO) Jean-François Bayart (Director of Research, Centre of Research and International Studies (CERI), Sciences Po, Paris, France) Carlos Casas (Professor of Economics, Head of the Economics Department, Universidad del Pacifico, Lima, Peru) Francis Cheneval ( Professor of Political Philosophy, University of Zurich, Switzerland) Suren Erkman (Director, Institute of Land Use Policies and Human Environment, University of Lausanne, Switzerland) Marcela Eslava (Associate Professor, Universidad de los Andes, Colombia) Till Förster ( Professor of Social Anthropology, Institute of Social Anthropology, University of Basel, Switzerland) Ricardo Fuentes-Nieva (Head of Research, Oxfam GB, UK) Inge Kaul (Adjunct Professor, Hertie School of Governance, Berlin, Germany) Xiaoyun Li (Dean of the College of Humanities and Development Studies, China Agricultural University, and Chief Senior Advisor, International Poverty Reduction Center, China) Pamela Martin (Professor in Political Science and Geography, Coastal Carolina University, USA) Katharina Michaelowa ( Professor of Political Economy and Development, Institute of Political Science, University of Zurich; Director, Center for Comparative and International Studies, Zurich, Switzerland) Hassan Mshinda (Director, Tanzanian Commission for Science and Technology (COSTECH)) Patrick Osakwe (Chief, Africa Section, United Nations Conference on Trade and Development (UNCTAD)) Ugo Panizza (Professor of Economics, The Graduate Institute, Geneva, Switzerland) Dennis Rodgers (Professor of Urban Social and Political Research (Urban Studies), University of Glasgow, UK) Jorge Alberto Restrepo Torres (Associate Professor, Pontificia Universidad Javeriana, Bogota, Colombia) Elizabeth Sidiropoulos (Chief Executive, South African Institute of International Affairs (SAIA), South Africa) Mahaman Tidjani Alou (Dean of the Faculty of Economics and Law and Professor, Abdou Moumouni University, Niamey, Niger) James Zhan ( Director, Division of Investment and Enterprise, United Nations Conference on Trade and Development (UNCTAD)) Managing Editor Marie Thorndahl Research and Communication Officers Maren Schulte and Emmanuel Dalle Mulle Figure Layout y-b design www.ybdigital.com Copyeditors Dave Brooks and Nathalie Tanner Translations Randall Jones and Brian Fergusson Cover Photo Amaury Peeters Visit International Development Policy and associated documents online http://devpol.org and http://debate.devpol.org This publication has been typeset in the multilingual ‘Brill’ typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. issn 1663-9383 isbn 978-90-04-30474-1 (hardback) isbn 978-90-04-30475-8 (e-book) Copyright 2016 by the Graduate Institute of International and Development Studies. This work is published by Koninklijke Brill NV. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. 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Land tenure—Law and legislation—Southeast Asia. 2. Eminent domain—Southeast Asia. 3. Land use—Law and legislation— Southeast Asia. 4. Real estate development—Law and legislation—Southeast Asia. 5. Law and economic development. I. Gironde, Christophe, editor. II. Golay, Christophe, editor. III. Messerli, Peter, editor. KNC772.L37 2015 333.330959—dc23 2015026735 Large-Scale Land Acquisitions Focus on South-East Asia Edited by Christophe Gironde, Christophe Golay, and Peter Messerli LEIDEN | BOSTON Contents Foreword ix Preface xi List of Figures xii List of Tables xiii List of Acronyms and Abbreviations xiv Notes on Contributors xvii Part 1 Setting the Scene: History, State, and Law 1 Large-Scale Land Acquisitions: A Historical Perspective 3 Laurence Roudart and Marcel Mazoyer 2 States as Actors in International Agro-Investments 30 Martin Keulertz and Eckart Woertz 3 The Role of Property Rights in the Debate on Large-Scale Land Acquisitions 53 Olivier De Schutter Part 2 Land Dynamics and Livelihoods in South-East Asia 4 The Impact of Larger-Scale Agricultural Investments on Communities in South-East Asia: A First Assessment 81 James Zhan, Hafiz Mirza, and William Speller 5 Sweet and Bitter: Trajectories of Sugar Cane Investments in Northern Luzon, the Philippines, and Aceh, Indonesia, 2006–13 108 Mohamad Shohibuddin, Maria Lisa Alano, and Gerben Nooteboom 6 Marginal Land or Marginal People? Analysing Patterns and Processes of Large-Scale Land Acquisitions in South-East Asia 136 Peter Messerli, Amaury Peeters, Oliver Schoenweger, Vong Nanhthavong, and Andreas Heinimann viii contents 7 From Lagging Behind to Losing Ground: Cambodian and Laotian Household Economy and Large-Scale Land Acquisitions 172 Christophe Gironde and Gilda Senties Portilla 8 ‘Better-Practice’ Concessions? Lessons from Cambodia’s Leopard-Skin Landscape 205 Michael B. Dwyer, Emily Polack, and Sokbunthoeun So Part 3 Human Rights and Large-Scale Land Acquisitions 9 Identifying and Monitoring Human Rights Violations Associated with Large-Scale Land Acquisitions: A Focus on United Nations Mechanisms and South-East Asia 231 Christophe Golay 10 Large-Scale Land Acquisitions in Cambodia: Where Do (Human Rights) Law and Practice Meet? 249 Ioana Cismas and Patricia Paramita Conclusion 11 Large-Scale Land Acquisitions, Livelihoods and Human Rights in South-East Asia 275 Christophe Gironde and Christophe Golay Index 293 Foreword Gilles Carbonnier, Editor-in-Chief The crisis that hit the financial, energy, and food sectors with booming prices in the mid-2000s gave rise to a new wave of transnational, large-scale land acquisitions (LSLAs) in developing countries. Energy and food price hikes accompanied by export restrictions on rice and other staples raised food secu- rity concerns worldwide, and in particular among net food importing coun- tries. Both foreign and domestic investors from the private and public sectors have since sought to acquire ownership rights and long-term leases over large portions of land in low-income countries. This spurred renewed research interest in agrarian change and ‘land grab- bing’, as reflected in a series of special issues dealing with the topic in major development and agrarian studies journals. On the policy side, social mobili- sation against large-scale land acquisitions encouraged intergovernmental organisations and governments to elaborate regulatory frameworks and volun- tary guidelines meant to protect the interests of local communities and other stakeholders affected by the new land rush. Notwithstanding a rapidly growing body of knowledge on LSLAs, there remain various gaps, for example between specific insights from case stud- ies performed at the community level and studies that look at land acquisi- tion dynamics at the macro level. There remains much scope to better grasp how land deal plans are effectively implemented on the ground and how they impact the livelihood of community members over the mid to long run, includ- ing in terms of human rights. In 2014, the editorial board of International Development Policy invited three guest editors for a special issue on the LSLA phenomenon. We asked Christophe Gironde (Senior Lecturer, the Graduate Institute, Geneva), Christophe Golay (Coordinator of the Project on Economic, Social and Cultural Rights, Geneva Academy of International Humanitarian Law and Human Rights) and Peter Messerli (Director of the Centre for Development and Environment, University of Bern) to fill specific gaps in our understanding of LSLAs. I wish to commend the guest editors for bringing major innovative features to this Special Issue, which—in the context of a rapidly growing litera- ture on LSLAs—stands out in four respects. First, the Issue brings a broad range of disciplines to bear in a coherent framework, thus providing a rich interdisciplinary perspective on LSLAs that includes history, sociology, economics, geography, and law, alongside significant x foreword expertise in the fields of agrarian and development studies. Second, this Issue strikes a delicate balance between theoretical, critical reflections and detailed analysis of actual practice and field reality, looking not only at global actors, but also at the role of political and economic elites at the national and local levels. Third, the Issue offers the first major collection of articles on LSLAs with a focus on South-East Asia, a region that has attracted relatively little atten- tion thus far. It looks at actual processes and practices of land acquisitions and agrarian change in Cambodia and Laos in particular. Fourth, this Special Issue stands out by analysing the impact of land acquisition and agrarian change from a human rights perspective: several contributions examine LSLA dynam- ics through human rights instruments and frameworks. A series of chapters draw on a collaborative, North-South research proj- ect funded by the Swiss Network for International Studies (SNIS).1 This project—entitled ‘Large Scale Land Acquisitions in Southeast Asia: Rural Transformations between Global Agendas and Peoples’ Right to Food’—was carried out between 2012 and 2014 under the leadership of the guest editors. For other papers, we invited authors unrelated to the research project to offer additional historical and global perspectives, and provide the views of public and private investors, as well as of multilateral organisations. The draft papers were first examined and debated during an international workshop held in Geneva in September 2014. This was followed by intense exchanges between the authors and the editors as well as external experts who participated in the workshop. The volume was then submitted to an anonymous peer review process. I wish to thank in particular Ben White and an anonymous reviewer who provided insightful remarks, constructive critique, and numerous sugges- tions for improvements on the whole Issue. The volume is organised in three parts. Part 1 sets the scene by providing a historical perspective on contemporary LSLAs, situating this phenomenon within global agro-food dynamics and land policies. Part 2 discusses a rich col- lection of case studies from South-East Asia. Part 3 examines critical questions on the influence and relevance of human rights instruments. I hope that our readers will enjoy this collection of papers that shed novel light on a phenom- enon that lies at the intersection between development and agrarian policies, involving complex social, economic, political and environmental dynamics that affect people’s livelihoods, food security, and social dynamics in many parts of the developing world. 1 See ‘Large-Scale Land Acquisitions in Southeast Asia: Rural Transformations between Global Agendas and Peoples’ Right to Food project’, SNIS website: http://www.snis.ch/project_large- scale-land-acquisitions-southeast-asia-rural-transformations-between-global-agendas (accessed on 4 June 2015). Preface International Development Policy is a critical source of analysis focusing on development policy and international cooperation. The target audience includes scholars, policy-makers, development professionals, and others inter- ested in international development. International Development Policy is edited by the Graduate Institute of International and Development Studies, an institution of research and higher education dedicated to advancing world affairs. http://graduateinstitute.ch/publications http://devpol.org | http://debate.devpol.org We extend our thanks to the Swiss Agency for Development and Cooperation (SDC) for financial support. List of Figures 4.1 FDI inflows to agriculture sector as a share of total FDI inflows, 2010–2012 (per cent) 83 4.2 Number of community and stakeholder interviews and their relationship with investing companies 88 4.3 Share of stakeholder interviews that mentioned a positive impact, by issue: investments in Asia 89 4.4 Share of stakeholder interviews that mentioned a negative impact, by issue: investments in Asia 89 4.5 Stakeholder perceptions of positive and negative impacts of investments in Asia, classified by issue 90 4.6 Share of positive / negative socio-economic impacts mentioned in stakeholder interviews, entire sample 91 4.7 Percentage of investors mentioning particular constraints on operations 99 5.1 Map of San Mariano, Isabela (the Philippines) 120 5.2 Map of the Gayo highlands and areas targeted by sugar cane interventions (Indonesia) 124 6.1 Trends of land concessions granted in Cambodia and Laos 140 6.2 Investment project locations in Laos and Cambodia by investors’ countries of origin and by subsectors 142 6.3 Meta-analysis of case studies using the sensitivity model 151 6.4 Archetypes of LSLA implementation processes 154 6.5 Archetype ‘Marginal People’ 155 6.6 Archetype ‘Marginal Governance’ 157 6.7 Archetype ‘Marginal Investment’ 159 6.8 Archetype ‘Marginal Land’ 160 8.1 Mong Reththy Project Area (hatch), Northern Preah Sihanouk Province (Cambodia) 213 8.2 Grandis Timber Project Area, Western Kampong Speu Province (Cambodia) 217 List of Tables 3.1 Contradictory arguments in favour of titling programmes 62 4.1 Direct employment created, descriptive statistics: Asian investments 92 6.1 Origin of investors, former land-cover status, and accessibility of land investments in Cambodia and Laos 143 6.2 Case studies used for the meta-analysis of LSLA implementation processes 147 6.3 Key factors in LSLA implementation processes 148 6.4 Synthesising implementation processes and spatial patterns of land acquisitions 165 7.1 Distribution of households by size (in ha) of land parcel owned (percentage of all surveyed households) 181 7.2 Distribution of households by size (in ha) of rubber land area (percentage of all surveyed households) 182 7.3 Change in households’ land assets between 2010 and 2013 (percentage of relevant population category) 183 7.4 Magnitude of land concessions in four selected villages 186 7.5 Average household farmland size in four selected villages (2003 and 2013, in ha) 188 7.6 Main livelihood activities in four selected villages (2003 and 2013) 191 List of Acronyms and Abbreviations AAAID Arab Authority for Agricultural Investment and Development ABCDs Archers Daniels Midlands, Bunge, Cargill, Louis Dreyfus ADHOC Cambodian Human Rights and Development Association ADLI Agricultural Development Led Industrialisation ADM Archers Daniels Midlands (US) AOAD Arab Organisation for Agricultural Development APHR ASEAN Parliamentarians for Human Rights AR active ratio AS active sum ASEAN Association of Southeast Asian Nations BABC Bridges across Borders Cambodia CBNRM community-based natural resource management paradigm CC Cadastral Commission (Cambodia) CDE Centre for Development and Environment, University of Bern (Switzerland) CEDAW Convention on the Elimination of All Forms of Discrimination against Women CERD Committee on the Elimination of Racial Discrimination CESCR UN Committee on Economic, Social and Cultural Rights (OHCHR) CLEC Community Legal Education Center (Cambodia) CLEP Commission for the Legal Empowerment of the Poor CEO chief executive officer CIC China Investment Corporation COFCO China National Cereals, Oils and Foodstuffs Corporation COHRE Centre on Housing Rights and Evictions (NGO, Geneva) CRC Convention on the Rights of the Child CRPD Convention on the Rights of Persons with Disabilities CSR corporate social responsibility ELCs economic land concessions (Cambodia) EMP environmental management plans ESIA Environmental and Social Impact Assessment EU European Union FAO Food and Agriculture Organization of the United Nations FDI foreign direct investment FEAICO Far East Agricultural Investment Corporation FSC Forest Stewardship Council GAM Gerakan Aceh Merdeka (Free Aceh Movement, Indonesia) xv list of acronyms and abbreviations GCC Gulf Cooperation Council GIZ Gesellschaft für Internationale Zusammenarbeit (Germany) ha hectare HOPU name of a private equity investment firm (China) ICCPR International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of All Forms of Racial Discrimination ICESCR International Covenant on Economic, Social and Cultural Rights IFAD International Fund for Agricultural Development IFOAM International Foundation for Organic Agriculture IISD International Institute for Sustainable Development ILD Institute for Liberty and Democracy (Peru) ILO International Labour Organization IMF International Monetary Fund INDIGENOUS International Network for Diplomacy Indigenous Governance Engaging in Nonviolence Organizing for Understanding and Self-Determination INDOCERT Indian Organic Certification Agency IPO initial public offering IR total strength of interaction LAK Laotian kip (currency) LECS Lao Expenditure and Consumption Survey (Laos) LFA Land and Forest Allocation Programme (Laos) LICADHO Cambodian League for the Promotion and Defense of Human Rights LMAP land management and administration project (Cambodia) LSLAs large-scale land acquisitions MEC Minerals Energy Commodities Holding (UAE) MENA Middle East and North Africa MESC Middle East Supply Center MLMUPC Ministry of Land Management, Urban Planning and Con- struction (Cambodia) MoU memorandum of understanding MRICOP Mong Reththy Investment Cambodia Oil Palm Company (Cambodia, Preah Sihanouk province) NEP new economic policy (USSR) NGO non-governmental organisation NLMA National Land Management Authority (Laos) NTFPs non-timber forest products xvi list of acronyms and abbreviations OECD Organisation for Economic Co-operation and Development OPEC Organization of the Petroleum Exporting Countries OREC Organisation of Rice Exporting Countries PL Public Law (US) PS passive sum QNFSP Qatar National Food Security Programme RSPO Roundtable on Sustainable Palm Oil (Cambodia) SEIAs social and environmental impact assessments SLCs social land concessions (Cambodia) SNIS Swiss Network for International Studies SWF sovereign wealth fund TCD tonnes of cane per day TNCs transnational corporations UAE United Arab Emirates UGC United Grain Company (Russia) UK United Kingdom UN United Nations UNCFS United Nations Committee on World Food Security UNCTAD United Nations Conference on Trade and Development UNDP United Nations Development Programme UNPO Unrepresented Nations and Peoples Organization US United States of America USAID United States Agency for International Development USD United States dollar (currency) USSR Union of Soviet Socialist Republics WTO World Trade Organization Notes on Contributors Maria Lisa Alano is a PhD candidate at the University of Amsterdam. She has extensive expe- rience in development work in Mindanao, Philippines. Her past and current research includes land policies, indigenous peoples and women’s land rights, gender and agrarian change in the Philippines. Ioana Cismas is Lecturer in Law at the University of Stirling, Scotland, UK. She has under- taken research and provided legal and policy advice to UN experts, govern- ments, and NGOs in the areas of international law, human rights, transitional justice, and law and religion. Ioana Cismas holds a PhD in International Law (summa cum laude) from the Graduate Institute, Geneva. Michael B. Dwyer is postdoctoral fellow in the Governance Program of the Center for International Forestry Research, Bogor (Indonesia). He has studied natural resource devel- opment and regulation in South-East Asia since 2004, focusing on property as a meeting point for multi-scalar and historical questions related to agrarian change, state formation, and international relations. Christophe Gironde is a political economist who works as a lecturer in development studies and researcher at the Graduate Institute, Geneva. His research interests are agrar- ian change, sustainable livelihoods and human development, in particular in continental South-East Asia. Christophe Golay is research fellow and coordinator of the Project on Economic, Social and Cultural Rights at the Geneva Academy of International Humanitarian Law and Human Rights. He is also a lecturer at the Geneva Centre for Research and Education in Humanitarian Action. Andreas Heinimann is a senior research scientist and lecturer at the Centre for Development and Environment (CDE) and the Institute of Geography of the University of Bern. He holds a PhD in Geography from the University of Bern. He is also a mem- ber of the Scientific Steering Committee of the Global Land Project (GLP) of International Geosphere Biosphere Programme (IGBP) and Future Earth. xviii notes on contributors Martin Keulertz is a post-doctoral research associate at the Department of Agricultural and Biological Engineering, Purdue University. He specialises in global water and food resource management, the water-energy-food nexus, international virtual water ‘trade’, and food politics. He is Lead Editor of the Handbook of Land and Water Grabs in Africa: Foreign Direct Investment and Food and Water Security (Routledge, 2013). Marcel Mazoyer is Honorary Professor of Comparative Agriculture and Agricultural Devel- opment at AgroParisTech, and Visiting Professor at the University of Paris XI. He has piloted numerous studies and research programmes in Africa, Latin America, Asia, and Europe and was previously research director at the Institut national de la recherche agronomique. Peter Messerli is Director of the CDE at the University of Bern. He is a human geographer who focuses on human–environmental systems in developing countries and is hence specifically interested in processes of rural transformation where land decisions are increasingly driven by globalised and distant decision-making processes. Hafiz Mirza is Chief of Investment Issues Research at UNCTAD. Besides contributing to the World Investment Report, he works on areas such as FDI impact and develop- ment, responsible agricultural investment, multinationals in developing coun- tries, and global value chains/investment-trade nexus. Vong Nanhthavong is a research fellow at CDE office in Laos. His current work focuses on rural development and governance in the framework of foreign direct investment in natural resources in Laos. He has worked in these fields in Laos for more than eight years. Gerben Nooteboom is a lecturer and researcher at the University of Amsterdam’s Department of Anthropology and Sociology/Asian Studies. Via fieldwork, mainly in Java and East Kalimantan, his research principally offers anthropological perspectives on, and critiques of, development, risk, rural transformation, and social sci- ence in South-East Asia. xix notes on contributors Patricia Paramita is a research assistant at the Programme on Gender and Global Change (PGGC) of the Graduate Institute, Geneva, and has worked intensively on land grab issues in Cambodia for the past two years. Prior to that she worked for Human Rights Watch and the secretariat of the ASEAN. She holds a master’s degree in Development Studies and a master’s degree in Anthropology from the Graduate Institute, Geneva. Amaury Peeters is a bioengineer specialised in land use planning. He holds a PhD in Agricultural Sciences from the Université catholique de Louvain. Based in Cambodia, his recent research activities include the spatial analysis of LSLA and the socio- economic consequences of the related agrarian transformations on farmers. Emily Polack is a researcher in the Natural Resources Group at the International Institute for Environment and Development, London. Her research focus is on land rights and legal empowerment with regard to agricultural and other natural resource investments. Laurence Roudart is Professor of Agricultural Development at the Université Libre de Bruxelles, where she occupies the chair devoted to ‘The agrarian issue in developing countries’. Her research focuses on matters relating to agricultural policies, land policies, and food security policies in developing countries. Oliver Schoenweger is PhD student at the CDE. During this research, he also was responsible for the implementation of a nationwide land concession inventory—now considered an example of collecting and processing data on such issues. Prior to his PhD studies he has worked as a land management adviser for a mining company in Laos, and for GIZ and UNDP in the fields of sustainable development and responsible investment in land. Olivier De Schutter is the former UN Special Rapporteur on the right to food (2008–2014) and a Member of the UN Committee on Economic, Social and Cultural Rights. A Professor at the Catholic University of Louvain and at Sciences Po (Paris), he has frequently advised the EU and the Council of Europe on fundamental rights issues. xx notes on contributors Gilda Senties Portilla is a PhD candidate in Anthropology and Sociology at the Graduate Institute, Geneva. She is writing her thesis on the changing livelihoods of farming house- holds amidst land concessions in Lao PDR. Her research interests include the aspirations of rural youth and livelihood trajectories, and more broadly agrar- ian transitions. Mohamad Shohibuddin is a PhD candidate at the University of Amsterdam and a lecturer at Bogor Agricultural University, Indonesia. He did mainly research in Central Sulawesi, Java and Aceh, focusing on agrarian dimensions of social change, violent con- flict and peace processes. Sokbunthoeun So was a postdoctoral fellow at the Faculty of Social Science of VU University Amsterdam and Senior Research Fellow at the Cambodia Development Resource Institute when this article was first drafted. His research focus is on state-society relations, land governance, decentralisation, and public sector governance. William Speller is an economist in the Division on Investment and Enterprise at UNCTAD. His research focus is on the role and impact of foreign direct investment and mul- tinationals on social and economic development. Eckart Woertz is Senior Research Fellow at the Barcelona Centre for International Affairs (CIDOB). He specialises in the political economy of the Middle East, food secu- rity, energy, sovereign wealth funds, and financial markets. Eckart Woertz is the author of Oil for Food (Oxford University Press, 2013). James Zhan is Director of Investment and Enterprise at the UNCTAD and Editor-in-Chief of the World Investment Report . He has decades of experience in international consensus-building and has provided technical assistance to more than 160 governments.