Land rights as human rights? : land grabbing, the transnational regime complex and actors’ strategies viewed from the perspective of human rights

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Land rights as human rights?

Land grabbing, the transnational regime complex and actors’ strategies viewed from the perspective of human rights

Pieter Lolkema

Master Thesis Political Science – International Relations University of Amsterdam

Supervisor: Dr. L. W. Fransen June 2014

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1. Introduction

Secure land rights are essential for everyone who is dependent on their land. When an individual or a community has a legitimate right to the use or ownership of a piece of land, there can be no other actor infringing on that right. This idea seems logical, but the universality of land rights has not reached norm-status in transnational governance systems. In the last decade, weak protection of land rights has severely problematized, because the global demand for cultivable land has increased sharply. Food-importing countries were taken by surprise when global food prices spiked in 2007 and 2008, which has led them to acquire large pieces of land abroad to grow crops and thereby strengthen their food security (The Economist, 2009). Also, the growing demand for biofuels puts pressure on cultivable lands in developing countries (Cotula et al., 2009: 54-56). In many developing countries, the growing pressure on land has resulted in situations in which local people’s or communities‘ claims to land have to compete against economic interests of powerful actors, such as transnational corporations (TNCs), foreign states or national governments. Often, local people or communities have lost these battles and were denied their right to their lands. This phenomenon has been coined ‘land grabbing’ by media and civil society organizations (CSOs).

This research looks at the transnational governance of land acquisition from a human rights perspective. It investigates to what extent the idea of universality of land rights is enshrined in transnational regimes, to what extent a number of actors view land rights as a human right and what the strategies of those actors are in the complex of transnational regimes on land acquisition. This analytical ambition translates into the following research question: What is the function of human rights in the strategies of foreign governments, civil society organizations and transnational corporations with regard to land acquisition in developing countries, within the transnational regime complex on land acquisition?

The human rights perspective offers interesting insights. A number of academics and practitioners argue that the violation of land rights can be considered a violation of human rights if it infringes on the human right to adequate food. Because land is an essential resource for the production of food, and the denial of one’s right to land leads to the loss of this resource, a state’s failure to protect land rights can be viewed a failure to protect the 4

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human right to adequate food. If this idea would become a norm in international law and transnational governance, this would have drastic consequences. States would be legally bound to protect land rights and the pressure on TNCs to respect land rights would increase. By assessing the current state of affairs regarding the recognition of land rights as human rights, this research fills a gap in existing theory. In order to understand how different actors view the issue of land and human rights, this research explores the function of human rights in the strategies of the government of the Netherlands, Oxfam and Coca-Cola. Also, it explores the function of human rights in different existing transnational regimes which aim to govern land acquisition in developing countries. These different regimes together form a transnational regime complex: different institutional regimes are ruling over the same issue area. This situation potentially offers strategic opportunities to actors, because they can choose which regime to abide by (Alter & Meunier, 2009). Transnational governance on land acquisition in developing countries has not been analyzed through the lens of transnational regime complexity theory yet. Therefore, this research contributes to the research agenda on transnational regime complexity.

The results of this research confirm the fact that many authors and practitioners see land rights and human rights as interconnected, but their perceptions of the exact relationship vary. Although policy documents and transnational agreements on land acquisition in developing countries are filled with notions of human rights, the explicit recognition of land rights as human rights is neither voiced in transnational agreements, nor by the three actors which function as case studies in this research. It appears there is common understanding of a connection between land rights and human rights, but very few actors go as far as acknowledging the universality of land rights by viewing them as human rights. Of the three case studies, Coca-Cola is more progressive in this regard than Oxfam and the government of the Netherlands. The recently adopted zero-tolerance policy on land grabbing of Coca-Cola is clearly inspired by its commitment to human rights. Oxfam does not have an interest in recognizing land rights as human rights, because the human rights argument is difficult to communicate to its main target groups. Furthermore, both the government of the Netherlands and Oxfam point at the political infeasibility of using the human rights approach, because governments of weak states sometimes view the obligations human rights law poses on them as unfair. All states are under similar obligations under 5

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international human rights law, but some states have much more funds to fulfill these obligations than others. A rich state accusing a poorer state of not abiding by international law can lead to political tensions in this regard. This research also shows that the existence of a transnational regime complex has some effect on strategies’ actors and political outcomes regarding land acquisition in developing countries, especially for Oxfam. The overall effect does not seem to be very strong however, but this will potentially change in the near future, if the density of the transnational regime complex will increase.

This research has strong societal relevance, because its conclusions hold important lessons for policy makers of TNCs, CSOs and governments, who need a good understanding of the potential value of human rights and the transnational regime complex in their long term visions and strategies on land acquisition in developing countries. The thesis is structured as follows: in the next chapter, the phenomenon of land grabbing is outlined. In chapter 3, the theoretical debate on the application of international human rights law on land acquisition in developing countries is explained. Chapter 4 explains transnational regime complexity theory, and chapter 5 elaborates on a number of regimes on land acquisition. Chapter 6 outlines the methodology used in this research and chapter 7 presents the data and analysis of the three case studies. Chapter 8 summarizes the conclusions and discusses their implications for concerned actors and for the existing theory.

The terms ‘land grabbing’ and ‘land acquisition’ are both used in this thesis, albeit with different meanings. Land acquisition simply refers to the acquisition of land, whereas land grabbing has a more negative connotation and refers to situations in which peoples’ or communities’ rights are violated by land acquisition.

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2. Land acquisition in developing countries: actors,

interests and

structures.

The terms ‘land grabbing’ and ‘land acquisition in developing countries’ are not concepts which are in itself clear enough to use in a research. Especially the concept of ‘land grabbing’ has a strong normative component. Therefore, this chapter serves to clarify these concepts in order to use them effectively in this research. Additionally, the most important actors and their interests are introduced, as well as structural factors related to the recent wave of land grabbing. Although the term ‘land grabbing’ has been used extensively by media and CSOs in the past decade, it is not a new concept. The term can be traced back to Marx, who in 1867 explained in Capital that the English elite had grabbed the land of the peasants to create a large-scale agricultural system, paving the way for industrialization (Marx, 1867 Vol. 1, p. 284; White et al., 2012: 621). In this thesis, land grabbing refers to the acquisition (lease or purchase) of large areas of land in developing countries, predominantly by foreign actors. These lands are acquired with the purpose of production of food, biofuels, feed for livestock, forestry, industry or tourism (Schoneveld, 2011). Land grabbing is problematic, if the existing rights of people or communities to the acquired land are violated.

It is clear that the past decade has seen a sharp increase in this type of land acquisition. However, reliable statistics are lacking and estimates vary. Schoneveld (2011: 4-7) estimates an area of 18 104 896 ha acquired land in 32 countries in sub-Saharan Africa between 2008 and 2011 (consisting of 353 projects in which more than 2000 ha is concerned). This equals about 8,3% of the annual harvested area in sub-Saharan Africa. Another source, the Land Matrix database, currently contains information about 35 898 559 ha globally, consisting of 950 deals (Land Matrix, 2014). The GRAIN database contains information about 34 804 944 ha, consisting of 416 deals (GRAIN, 2014). Oxfam claims ‘an area eight times the size of the UK has been sold off globally’ between 2001 and 2010: 203 million ha (Oxfam, 2012). Quantification of land acquisitions is very difficult, because it suffers from a selection bias (Oya, 2013: 505-509). Information is often not publicly disclosed or is derived from media reports. Also, methodological dichotomies are often applied (small versus large, food versus non-food), which simplify reality to a problematic extent (ibid: 514-515). As a result of the methodological difficulties and diverging estimates, I will leave quantitative issues out of the

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scope of this research. I rather focus on the questions of why land grabbing takes place, and how global governance responds to the arising problems.

The growing interest in land of the last decade is the result of a multiplicity of factors. First are concerns of national food security (Cotula et al., 2009: 52-53). In the past decades, food prices have been declining as a result of innovation and expansion. In 2007, food prices suddenly rose immensely. In 2009, prices were 30% to 50% higher than the average over the past decade (The Economist, 2009). These price spikes were a shock for countries which are dependent on the import of food: they suddenly had to pay much higher prices to secure their food supply. As a result, they are seeking a source of food which is more stable than the world market, which they found in acquiring agricultural land abroad for the purpose of food production. The second factor is related to this: the growing global population and urbanization increases the demand for food, and thereby increases the demand for the resources needed to produce food: land (Cotula et al., 2009: 53-54). The third factor is the increasing demand for biofuel (ibid: 54-56). With fossil fuels running low, governments and companies seek alternative sources for energy production. Land is an essential resource for the production of crops for biofuels, furthering demand for land globally. The fourth factor is speculative investment, which has been sparked by the growing demand for land and the expectation of growing demand in the future (ibid, 2009: 56-58). Investors buying cheap land with the sole purpose of selling it with a higher return are intensifying the pressure on land in developing countries, and are therefore accelerating land grabbing.

The two key actors involved in land leads are the seller of land and the buyer of land. The seller is in many cases the government of the state where the land is being acquired. This state is called the ‘host state’, in contrast to the ‘home state’ which is the state of origin of the buyer of land. The role of the host state is a very important factor, indispensible for the focus of this research on human rights and transnational regimes. Scott (1998) has analyzed the way in which many states in the global South have inherited systems of land governance from their former colonial powers. One of his findings is that states simplify the array of land-based social relations, in order to make land ‘legible’ for the state administration to govern it. For example, only individual property rights are acknowledged, opposed to customary or collective property rights. Also, when a property right to land is not in the state systems, the land is quickly labeled as ‘empty’, and thereby automatically owned by the 8

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state. This is often the case for lands which are far from the capital and/or difficult to reach. These shortcomings of administrative systems of states lead to a situation in which states label lands as ‘marginal’ or ‘empty’, making it eligible for acquisition, while in reality there may be people living on the land who are claiming property rights to it (Borras & Franco, 2013: 1729). As a result of this conduct, host states are “facilitating further privatization, commodification and (re-) concentration of land” (Künnemann & Monsalvé Suarez, 2013: 131), which facilitates the acquisition of ‘marginal’ or ‘empty’ land by foreign actors.

The other key actor in land deals is the buyer, often of foreign origin. These buyers can be public or private actors, or a combination of these two (Cotula, 2009: 34-35, 65-67). The range of possible constructions in which the concerned parties design a land deal is very wide. In some cases, it is just a company making a land deal with the government of the host state, but often the government of the investors’ home state is involved. Home state governments can support a deal by investing in it directly or through a sovereign wealth fund, or by giving loans or guarantees. This support is often embedded in policy or bilateral agreements. An example of heavy government involvement is the deal between the government of Syria and the government of Sudan of 2002, in which the former directly leased a large area of land of the latter for a period of 50 years. An example of more indirect state involvement is the Qatar Investment Authority, a government agency promoting Qatari private acquisition of land abroad by offering co-ownership and risk sharing. Another type of government involvement is when state-owned companies acquire land abroad, like the Chinese company Yunnan Rubber which acquired 160 000 ha in Laos (ibid, 2009: 37).

Besides the buyers and sellers of land, two actors can be discerned which are involved in the governance of land acquisition in developing countries: governments of home states and CSOs. The role of the home state is interesting, because international law prescribes to some degree that states have the responsibility to protect food security, both in their own country and abroad (Häberli & Smith, 2014: 205-208). This assumption is based on two sources: the International Covenant on Economic, Social and Cultural Rights, and the 1996 Rome Declaration on World Food Security. Under the former, all states have the obligation “to ensure an equitable distribution of world food supplies in relation to need”. The Rome Declaration states that food security implies that all people have access to adequate food at all times. These statements can be interpreted as saying that the responsibility of the 9

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provision of adequate food to all people is at the burden of all states. In this view, the home state which does not prevent violations of the right to food abroad is in violation of international human rights law. However, Häberli & Smith (2014) argue that the actual responsibility of states with regard to the food security of other states is uncertain and not legally enforceable. At the least, the above-mentioned sources of international law indicate that the definition of food security implies a shared responsibility of all states, so governments of home states must be aware of, and take action to prevent violations of food security by investors of its nationality.

Other important actors in the governance of land acquisition are CSOs. A number of CSOs aim to protect the interests of communities or people who are affected by land grabbing. There is yet little known about the strategies of CSOs in this regard, partly because the different ways in which affected communities react to land grabbing are under-researched. In existing literature, their strategies are often framed as ‘struggles against dispossession or exploitation’, which is a very broad conceptualization (Borras & Franco, 2013). A number of CSOs actively protect the interests of communities which are affected by land grabbing. One of these organizations is the Foodfirst Information and Action Network (FIAN), a human rights organization which promotes the human right to adequate food (Künneman & Monsalve Suárez, 2013). FIAN argues that “the recognition of land as a human rights issue has gone largely uncontested and has become widely accepted by actors.” (ibid: 124). FIAN is a protagonist of the establishment of the human right to land under international law. Whereas FIAN has a specific focus on human rights in its work against land grabbing, there are other, more general CSOs working against land grabbing from different perspectives. An important tactic at the disposal of these CSOs is ‘naming and shaming’: targeting a company by publicly disclosing information about its conduct (Bartley & Child, 2007). By doing so, systemic problems are linked to a particular actor, and that actor is held accountable for its conduct with regard to those problems. In the issue area of land grabbing, the most notable CSO which uses the tactic of naming and shaming is Oxfam, an organization under scrutiny in this research. Besides targeting companies, CSOs are also involved in the international political arena as lobby groups trying to influence national or intergovernmental policy (Künneman & Monsalve Suárez, 2013).

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It is clear that the phenomenon of land grabbing is far from straightforward: the drivers for the deals vary greatly, as does the material output which the acquisition aims to achieve and the range of actors involved. In order to understand the phenomenon and its relevance, we need to take a look at the bigger picture. In Africa, where land grabbing is very predominant, the acquisition of land takes place in the context of intensifying economic relations with the rest of the world (Cotula et al., 2009: 25-33). Structural factors are causing increased foreign direct investment in Africa, such as economic liberalization, globalization of transport and communications and the growing global demand for food, energy and commodities. In this context, some authors view African states as powerless to the global capitalist class. Sassen (2013) argues that land grabbing is a symptom of the growing power of the global capitalist class over developing countries. Weak states are losing sovereignty over their territory: the fact that governments of developing countries allow for the destruction of smallholder economies and the livelihoods of their people by selling off land to foreign investors, shows that they serve the interest of the global capitalist class instead of the interest of the poor majority of their citizens. Opposing this view are Borras et al. (2013), who argue that land grabbing is a sign of a revalued role of the state, which is the sole actor with the power over legal and administrative systems to allow for land acquisitions. In other words, the fact that governments of developing countries are primary actors on which the land acquisitions are dependent shows their importance. The host governments can potentially take advantage from the fact that they own a resource for which the global demand is growing. Regardless of one’s position in the debate on the power of host states, it is clear that their important role is under-analyzed and under-theorized in existing literature. The focus is often on the demand-side: the buyers, and the structural factors causing the growing global demand for land. The next chapter further adds to our understanding of the role of the host state by looking at international human rights law, which potentially constrains their actions vis-à-vis their citizens.

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3. Application of international human rights law

As the above summary of the characteristics of land acquisition shows, there is a lot of unclarity about the facts on the ground, and about the structural political economic aspects of land acquisition in developing countries. The complexity of the issue allows for many under-theorized issues on the governance of the relatively new phenomenon of land grabbing. Two of these are addressed in this research: the application of international human rights law on issues of land acquisition and the outcomes of the existence of an international regime complex. In this chapter, the theories on the application of international human rights law are outlined. Chapter 4 outlines theories of transnational regime complexity and chapter 5 describes the function of human rights in the transnational regime complex on land acquisition in developing countries.

In order to effectively govern the problems arising from land acquisition, an important question should be answered: which law is being violated? There is a multiplicity of legal systems in which the land deals are to be situated. Foremost is the national legal system of the host state. As explained in the previous chapter, in many developing countries the state plays a facilitating role with regard to land grabbing, because the administrative systems are not able to identify all the people who are claiming property rights to land. It is beyond the scope of this research to elaborate in more detail on national legal systems. Instead, we turn to the international legal system, which is of significance because “when district and national accountability mechanisms fail, international instruments exist that should prevent abusive or irresponsible practices.” (Oxfam, 2011: 30). In other words, international law regulates issues which national law fails to regulate effectively.

We focus on public international law, because “international investment law has little to say about the way the investor chooses how and where to invest” (Häberli & Smith, 2014: 203). Within public international law, the human rights perspective is used by many authors and practitioners on land acquisition. This perspective places responsibility at the burden of the host state, which has to protect the human rights of every single citizen. Since land rights are not acknowledged as a human right in the applicable treaties, the link between land rights and human rights is made indirectly through the human right to adequate food, which is part of article 11 of the International Covenant on Economic, Social and Cultural rights (ICESCR) of 1966, which has been ratified by 162 states. The right to adequate food implies that every 12

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individual under a state’s jurisdiction has the right to access to sufficient and nutritious food. This right is being violated, if one is deprived of his resources for the production of food, of which land is an important one. In other words, when one’s land rights are denied, his human right to food is violated, because land is an important resource for food production (Borras & Franco, 2010: 15-16; Monsalve Suarez, 2006). In 2009, the Special Rapporteur on the right to food to the UN Secretary-General (Mr. Olivier De Schutter) adopted this view. He noted that “States would be acting in violation of the human right to food if, by leasing or selling land to investors (whether domestic or foreign), they were depriving the local populations from access to productive resources indispensable to their livelihoods.” (De Schutter, 2009: 2). He called upon host governments to demand better returns for their land deals, which should at the least not negatively affect the food security in the host states. Since the great majority of states has signed and ratified the ICESCR, they are legally bound to protect the right to food of their citizens. The strength of applying the human rights perspective on the issue of land acquisition is that the two concepts can be mutually reinforcing. Transforming land rights into a human right could contribute to human rights based development (Wisborg, 2013: 1205). This means that for real economic development people should have political freedom, freedom of economic opportunity and the protection from abject poverty (Sen, 1999). Certainly, when land rights are being violated and individuals are deprived of their means of subsistence, these conditions are not met. Therefore, land grabbing is counteractive to human rights based development.

The state’s duty to protect existing land rights is a powerful argument, adopted by a range of authors and practitioners. However, there are also some weaknesses to this argument. The first is that the link between land rights and human rights is only indirect: as mentioned, in international human rights law there is no notion of the human right to land. It can be argued that human rights are about deep, universal rights, and not about the right to a specific resource (Wisborg, 2013: 1202). Transforming the right to land into a universal human right could have some potential negative outcomes, e.g. because it strengthens the rights of property holders, which could hinder socially desirable projects. The second weakness to the ‘land rights as human rights’-argument is that the human rights perspective places obligations and responsibilities to a large extent at the burden of the host state. The host states are often ‘weak’ states, meaning that it is difficult for them to effectively govern 13

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their natural resources and other macroeconomic issues (Häberli & Smith, 2014: 192). To add to their burden the costs of the protection of human rights in land acquisition is unrealistic. These costs can consist of incentives to investors, to influence the location of their investment so that it does not violate human rights. Using the human rights perspective places weak states in a disadvantaged position vis-à-vis the investors in land deals (ibid). By placing the responsibility for ensuring food security with the state instead of with the investor, an imbalance is created in which the investor has little to no human rights obligations.

This weakness of the human rights perspective (the imbalance of responsibilities among actors) is not limited to the issue area of land acquisition and has been addressed by the Special Representative of the UN Secretary-General, John Ruggie, in 2009. He presented the UN Guiding Principles on Business and Human Rights (UNGP), which were endorsed by the UN Human Rights Council in 2011 (UN OHCHR, 2011). The UNGP aim to create a division of labor among states and business in the enforcement of human rights. The existing obligations of states are acknowledged, but supplemented with the notion that business should respect human rights. Business should be aware of the impact its transnational operations can have on human rights, and act to prevent negative consequences for human rights. The UNGP have been included in the updated version of the OECD Guidelines for Multinational Enterprises, which are “non-binding principles and standards for responsible business conduct in a global context consistent with applicable laws and internationally recognized standards” (OECD, 2011: 3). Although the UNGP have been endorsed multilaterally by many states, they remain an instrument of soft law, i.e. they are not legally binding to states. They can therefore be viewed as an instrument which ‘lacks teeth’, which is hardly able to tackle the problems it aims to address (Jägers, 2011). However, it might have a norm-setting function, accelerated by the UN Global Compact in which companies are invited to embrace the UNGP through dialogue.

To conclude, human rights offer a strong conceptual perspective to address land grabbing. Land rights can be viewed as intrinsically connected to the human right to food, making it a universal right which should be protected by every state. However, the human right to land is only conceptual and has not been enshrined in any human rights-based regime. The UNGP offer an instrument to balance the division of responsibilities between states and business. 14

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However, the enforcement of the UNGP is based on voluntary action of states and business, which makes its implementation uncertain. These theoretical insights offer the opportunity to formulate propositions about the question if CSOs, TNCs and home governments recognize land rights as human rights. Their place in the debate on this question partly answers the research question. The next chapter will connect the strategies of actors to transnational regime complexity theory.

For the first actor, the TNC, it can be assumed that its priority is to keep costs down to a minimum, because it is a profit-seeking private actor. If a TNC would acknowledge land rights as human rights, this would result in a widening of its human rights responsibilities under the UNGP. A widening of its human rights responsibilities would increase costs, because it would need to implement monitoring systems and offer remedy to affected people. Therefore, from an economic point of view it can be expected that a TNC has no interest in widening its responsibilities with regard to human rights. This translates into the following proposition:

• TNCs have no interest in acknowledging land rights as human rights, because this would widen their human rights responsibilities under the UNGP, which increases their costs.

As mentioned in the previous chapter, there is little existing theory about the strategies of CSOs with regard to land grabbing. Therefore, it is difficult to formulate a proposition about the function of human rights in their strategies. However, it can be expected that CSOs have an interest in the acknowledgement of land rights as human rights, because their goal is to defend the interests of communities and people who are affected by land grabbing. If their right to land would be enshrined in international law, this would strengthen Oxfam’s ability to hold responsible actors accountable for land grabbing. In other words, because the recognition of land rights as human rights is in the interest of people affected by land grabbing and CSOs aim to defend their interests, the recognition of land rights as human rights is in the interest of CSOs. Therefore, the proposition for CSOs is:

• CSOs plead for the recognition of land rights as human rights, because that is in the interest of people and communities affected by land grabbing.

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The third proposition is on the position of governments of investors’ home states in the debate on the recognition of land rights as human rights. As explained in the previous chapter, there are indications that home states are bound by international law to protect the right to food of citizens of other states. A recognition of land rights as human rights of a home state would strengthen this obligation, so it would increase the responsibility and costs of home states. The answer to the question if home states in general are proponents of the recognition of land rights as human rights for this reason, is difficult to predict. The answer depends on the sense of economic self-interest of the home state, versus the value it attaches to the moral goal of the protection of land rights and human rights. A state with a strong sense of economic self-interest would be inclined to not recognize land rights as human rights because it would thereby bind itself to the responsibility of controlling the conduct of the corporations of its nationality abroad. This would increase its costs and would put a restriction on the international economic opportunities of corporations of its nationality. Conversely, a state which attaches value to the protection of global land rights for moral reasons could be inclined to plead for the recognition of land rights as human rights. This translates into the following proposition:

• A home state with a strong sense of economic self-interest does not recognize land rights as human rights, whereas a home state with a strong sense of international morality does recognize land rights as human rights.

In chapter 7 these propositions will be tested using empirical data about the function of human rights in the strategies of a CSO, a TNC and the government of a home state. The next chapter will look at the broader and more concrete field of international regulation of land acquisition, in which human rights sometimes are included, while in other regulations they are excluded.

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4. Transnational regime complexity theory

Besides human rights regimes such as the ICESCR and the UNGP which govern the conduct of states and business, there is a number of regimes which aim to govern land acquisition specifically. Together they form the transnational regime complex on land acquisition. The two most prominent regimes are the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security and the Principles for Responsible Agricultural Investment (Margulis & Porter, 2013: 74-75). These are regulations, agreed upon by (a group of) intergovernmental organizations aiming at responsible governance of land and agricultural investments globally. These regimes exist parallel next to each other and are not hierarchically ordered. This means there is a transnational regime complex, a phenomenon for which Alter & Meunier (2009) have laid the foundations for a research agenda. This chapter explains their theory of transnational regime complexity, and chapter 5 explores the transnational regime complex on land acquisition. The regime complex on land acquisition is related to the human rights regimes which were discussed in chapter 3, because human rights are a key theme in the VGGT. The human rights regimes and the VGGT are thereby overlapping, so are within the same transnational regime complex.

The existence of several transnational agreements ruling over the same issue results in a situation of regime complexity, in which regimes may be parallel, partly overlapping or nested in each other. The causes for the emergence of regime complexity have been well-researched, but the outcomes of regime complexity for decision-making processes are under-theorized. Alter & Meunier (2009) have made an effort in exploring these outcomes, an analysis which results in a proposition for my research on land acquisition. The essential argument of regime complexity theory is that because of the multiplicity of rules, actors have a choice in deciding which regime they derive their legitimacy from. This gives them strategic opportunities, allowing for so called ‘chessboard politics’. If political actors dislike the restrictions they face in forum a, they can (threaten to) go to forum b to get what they want from a transnational agreement. This strategy is called forum shopping. An example of this is found in the EU’s strategy to promote human rights in transnational trade agreements (Hafner-Burton, 2009: 34). The EU has for decades tried to push human rights conditionality in WTO policies. This has failed, due to opposition of the majority of WTO members. 17

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Consequentially, the EU opted for regional trade agreements (which are nested in the WTO), which offer poor countries economic benefits on the condition they abide by human rights norms. The EU has therefore ‘shopped’ between forums which are nested in each other. It got the desired results not in the best option (WTO) but in the second-best (regional trade agreements), a strategy originating from the existence of a transnational regime complex. There is a number of other strategies political actors may adopt in a transnational regime complex. Regime shifting is when actors turn to a parallel regime where different priorities exist, in order to reshape the global structure of rules (Alter & Meunier, 2009: 16-17). This strategy differs from forum shopping, which actors use only to achieve their goals. Strategic ambiguity is the deliberate blocking of attempts to clarify ambiguities in rules. Where different rules on the same issue overlap, states may clarify them if their preferences are similar. However, if their preferences diverge, they may benefit from the existing ambiguity in the rules, which leads them to block attempts of clarification. Similar to this is strategic inconsistency: actors which are unsatisfied with rules in one forum, deliberately create contradictory rules in another forum in order to undermine the rules in the first forum. In this research, I will search for the use of these strategies among actors in land acquisition in developing countries. This is not an easy task, for causal relations are hard to distinguish in a state of complexity. Explaining outcomes of political processes by the behavior of actors is always “fuzzy” in a transnational regime complex, because “there will be multiple paths to an outcome, involving linked sets of behaviors and events.” (ibid: 21). However, analyzing the transnational regime complex is very important, because it shapes the context in which an increasing number of decision-making processes occur, including on land acquisition in developing countries. To understand the outcomes of this system, one needs to study the system as a whole, because the political environment of regime complexity has a potential causal effect on political outcomes.

This research explores the transnational regime complex on land acquisition in developing countries, and the influence of this complex on the function of human rights in the strategies of a number of actors. Because there is no sufficient existing theory on the regime complex on land acquisition in order to formulate a proposition which answers the research question, I use theory from other, related fields of theory to predict the outcome of the research question. These theories are the general theory of regime complexity of Alter & Meunier 18

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(2009), and the more specific theory on the regime complex on trade and human rights of Hafner-Burton (2009) outlined above. These theories translate into the following proposition for the regime complex on land acquisition:

• The existence of a transnational regime complex on land acquisition in developing countries offers strategic opportunities to concerned actors.

In order to assess this proposition with empirical data, first the different regimes on land acquisition in developing countries must be understood. The next chapter outlines the different regimes which are governing land acquisition in developing countries, and explains the role of human rights in these regimes. Thereafter, the empirical data will be presented and analyzed in view of the theory outlined so far.

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5. The transnational regime complex on land acquisition

In order to understand the empirical data which will be presented in chapter 7, one needs to be familiar with the transnational regimes which govern land acquisition. This chapter therefore introduces the most important transnational regimes which together form the transnational regime complex. The first of these, the Principles for Responsible Agricultural Investment (PRAI), is designed under the supervision of the World Bank. This is an important actor, because it facilitates much agricultural investment in developing countries. It believes that the marginal and empty lands of the world should be used to deal with the food-, energy- and climate crises (Borras et al, 2013: 169, 172). Although the World Bank pleads for good governance instruments such as clear property rights and transparency, it is generally a proponent of land acquisition in developing countries. The PRAI, presented in 2010, have been designed in cooperation with the UN Conference on Trade and Development (UNCTAD), the Food and Agriculture Organization (FAO) and the International Fund for Agricultural Development (IFAD), under coordination of the World Bank. The PRAI have been supported by the G20 in their summits of 2010, 2011 and 2012. The PRAI are a set of seven principles, including the recognition of existing land rights, transparency and free, prior and informed consent. The primary objective of the PRAI is to encourage private investment in agriculture and to reduce investor risk (Margulis & Porter, 2013: 74). Another regime on land acquisition is the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (VGGT). These have been drafted under the supervision of the Committee on World Food Security, which is nested in the FAO. Contrary to the PRAI, in the consultation process of the VGGT global civil society was represented (McKeon, 2013: 109). The focus of the VGGT is more on the safety of land property rights, and the access to land by poor rural households. Currently, the Committee on World Food Security of the FAO is negotiating a new policy on Responsible Agricultural Investment (CFS RAI). The outcome of these negotiations is still unclear, so it is too early to take these into consideration. However, the CFS RAI offer some interesting prospects, as will be shown later in this thesis. In addition to the PRAI and the VGGT, there is a number of regional regimes governing land acquisition. One example is the Framework and Guidelines on Land Policy in Africa, endorsed by the African Union, the African Development Bank and the UN Economic Commission for Africa (AU, 2010).

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Whereas the VGGT make a number of references to human rights, the PRAI do not contain a notion of human rights. The only reference to rights in the PRAI is that “existing rights to land and associated natural resources are recognized and respected” (World Bank, 2010). The words “human rights” appear 25 times in the VGGT, generally in the meaning that all concerned actors should respect existing human rights obligations and responsibilities. They do not explicitly make a direct link between the right to adequate food and land rights, but the first sentence of the preface notes:

“The purpose of these Voluntary Guidelines is to serve as a reference and to provide guidance to improve the governance of tenure of land, fisheries and forests with the overarching goal of achieving food security for all and to support the progressive realization of the right to adequate food in the context of national food security” (FAO, 2012: iv)

It appears that the VGGT acknowledge that proper land governance contributes to the protection of the human right to food, but that the notion of an explicit relationship did not make the end of the negotiations. Other references to human rights in the VGGT are that business and non-state actors have the responsibility to respect human rights and legitimate tenure rights, consistent with the UNGP. Also, paragraph 3.2 contains the notion that home states should hold corporations accountable for the impacts of their operations on human rights abroad (FAO, 2012). They thereby suggest an extraterritorial obligation for states, which is currently non-existent in ‘hard’ human rights law.

It is important to mention that the VGGT and the PRAI are instruments of soft law, which are not legally enforceable. One could argue that they are therefore weak instruments, but this ignores their normative power. Despite the fact that they are instruments of soft law, they reflect important public commitments of states (Häberli & Smith, 2014: 200). The VGGT have been developed under the supervision of the FAO, an intergovernmental organization with universal membership with deep relations with civil society. The PRAI have been endorsed by the G20, a group of economically powerful states. This shows that the problem of land grabbing is widely acknowledged internationally. Margulis & Porter (2013) argue that in the global politics of sustainability, the competition of ideas about how to materially cope with the earth’s limits shapes political outcomes. Because of the highly complex nature of sustainability issues, these ideas are being shaped in many different places; from a European 21

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voter’s opinion on legislation on biofuels, to an investor’s expectation of returns from an agricultural investment, to a small African subsistence farmer’s economic outlook, to a group of scientists assessing climate change etc. It is impossible to take account of all these ideational forces in a single treaty between a group of powerful states. Instead, “today large expanses of the transnational flows of power and knowledge that shape the material practices involved in land grabbing do not run directly through the state at all.” (ibid: 72). In this political and economic context, instruments of soft law such as the VGGT and the PRAI are a first body of confluence of global ideational forces, which is an important step towards the process of creating legitimate global governance on sustainability.

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6. Methodology

This chapter outlines the research design and the methodology used in this thesis. First it explains the multiple case study design, the selection of cases and the generalizability of the cases. Second, it outlines the method which is being employed: process-tracing. Third, issues of validity and reliability are addressed. This lays the foundations for a proper analysis and a valid conclusion.

This research is designed as a multiple case study, comprising of three cases which are organizations with a stake in land acquisition in developing countries. The three organizations are of different nature: a CSO (Oxfam), TNC (the Coca-Cola Company) and a government (of the Netherlands). Assessing multiple cases offers the opportunity to compare between cases, i.e. compare conceptions of human rights and strategies of the different organizations. This is very insightful, since the three cases are crucial in their kind, and together represent the state, market and civil society. An assessment of the selected cases therefore results in a comprehensive understanding of the function of human rights in the global politics of land acquisition in developing countries. The cases are all critical cases in their own right, which offers valuable analytical opportunities. Oxfam, representing the larger population of CSOs engaged with land acquisition in developing countries, is the leading CSO in the fight against land grabbing. It has produced several influential reports, and its ‘Behind the Brands’-campaign targets the ten largest food- and beverage corporations on their land policies (Oxfam, 2011; 2012; 2013). A part of this campaign was an investigation in the land policy of the Coca-Cola Company, which as a result has adopted a zero tolerance-policy on land grabbing. Coca-Cola is the biggest buyer of sugar in the world, and its role as frontrunner makes it a critical case. The government of the Netherlands is a critical case because it has an active policy to prevent land grabbing, is the largest donor in several transnational networks campaigning against land grabbing and has a strong anti-land grabbing lobby in international organizations. The critical nature of the cases makes them valuable, because they give an insight in the instants in which the theories on land rights and human rights will hold, or will not hold (Bryman, 2008: 55). The aim of this research is not to generalize the case studies to the larger populations of CSOs, TNCs and governments. Instead, it aims to gain a thorough understanding of the causal processes

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which have led to the outcomes of the selected cases. These causal processes within the cases are potential valuable insights for the analysis of other cases within the population. The method employed is process-tracing, which implies looking deeply within a case to identify causal processes which have led to the outcome of a process (George & Bennett, 2005). The data - which are gathered through interviews and analysis of policy documents - contain numerous observations, which are linked to each other and together form an explanation for the reality of human rights and transnational governance on land acquisition. The process-tracing approach has the advantage that it allows for taking this large number of observations into account in the search for causal processes. The following step-by-step approach, inspired by George & Bennett (2005), will be employed:

1. Formulate propositions for each case, to the extent that existing theory on the subject allows.

2. Reconstruct the historical narrative for each case based on the gathered data. This results in a detailed account of the processes.

3. Transform the historical narrative of each case into an analytical causal explanation. This implies using theories to explain the observations and the outcome of the process. The observations which are not embedded in strong theory and for which no strong propositions can be formulated, will remain as a historical narrative.

4. Confirm or reject the propositions formulated in step 1, and transform the historical narratives which cannot analytically be explained into new propositions.

The propositions have already been deduced from the theory in chapters 3 and 4. Because this approach tests existing propositions and develops new ones, it contributes to both theory testing and theory development. Another strength of the process-tracing method is that it also considers the possibility of alternative processes that led to an outcome. It thereby allows for a multiplicity of propositions to be tested.

There are some validity and reliability threats to this research. One validity threat is that representatives of organizations could try to create a positive picture of their own organizations. Therefore, their spoken statements are cross-checked as much as possible with official documents. Another validity threat is on measurement equivalence: in the different cases, the contexts must not differ too much in order to make comparisons. 24

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Another threat to the validity is that the respondents and the interviewer are potentially on a different level when talking about human rights and land acquisition. Therefore, each interview started with a brief discussion of these concepts. Issues of reliability could arise if random errors would occur, such as a random misunderstanding between the interviewer and the interviewee. These random errors have been avoided as much as possible, by a thorough study of existing literature and thorough conceptualizing.

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7. Empirics and analysis

As explained in the methodological section, for each case propositions have been formulated in the theoretical section based on the existing theory on land acquisition, human rights and transnational regime complexity. These propositions are the likely explanations of the function of human rights in the strategies of the concerned actors within the transnational regime complex on land acquisition. This section presents the data of each case in the form of a historical narrative, i.e. an account of the processes which have led to the employed strategies of the actors. These narratives are analyzed which leads to a conclusion in which the propositions can be confirmed or rejected for the concerned actor. The first actor under scrutiny is Coca-Cola, then follows the government of the Netherlands and the last case is Oxfam.

Coca Cola

Historical Narrative

In November 2013 Coca-Cola announced a zero-tolerance policy on land grabbing (Coca-Cola, 2013a). This is very significant, since Coca-Cola is the largest buyer of sugar in the world (Oxfam, 2013: 8). The corporation does not own farms itself, but buys sugar from farmers and traders around the world, forming a non-transparent global supply chain. The mechanism used to ensure compliance with the new policy throughout the supply chain is an added paragraph in the Sustainable Agriculture Guiding Principles, a document which “expands on the Supplier Guiding Principles” (Coca-Cola, 2013). The latter set of principles is a legally binding document which all suppliers must sign, and establishes a set of obligations for suppliers to ensure human rights, labor rights and protection of the environment. If a supplier does not abide by these principles, Coca-Cola is entitled to end the contract with the supplier. The added paragraph to the Sustainable Agriculture Guiding Principles holds the following:

“Community and traditional rights: Recognize and safeguard the rights of communities and traditional peoples to maintain access to land and natural resources. Require respect for and prohibit the violation of land rights of individuals and communities. Maintain positive community relations and contribute to local economic development.”

In addition, the company adds the principles of free, prior and informed consent into its policies. This means that in a case of land acquisition, the communities living on the land are 26

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involved in the process and must consent to it. Coca-Cola has also announced to conduct third-party social, environmental and human rights assessments in seven supplier countries (Coca-Cola, 2013b). These assessments will specifically focus on land conflicts.

Coca-Cola adopted this far-reaching policy as a result of pressure from civil society through Oxfam Novib (the Dutch branch of Oxfam) (van Alphen, 2014; Coca-Cola Company 2013a, 2013b). In 2013 Oxfam started the Behind the Brands campaign, which targets the ten largest food and beverage companies on a number of themes related to human rights and sustainability. As part of this campaign, Oxfam Novib conducted a thorough research on the land policy of Coca-Cola, and concluded that the existing policy was ineffective in preventing land grabbing. The new commitment of Coca-Cola is an agreement between Oxfam and Coca-Cola, and no third parties such as governments were involved in the negotiations (van Alphen, 2014).

Coca-Cola is committed to human rights and has endorsed the UNGP in 2012. The answer to the question if Coca-Cola perceives land rights as human rights is ambiguous, however. In its communication on human rights, it does not mention land rights. Vice versa it is different: its communication on land rights is filled with notions of human rights. Also, in a speech of the CEO of Coca-Cola Europe, he said “The Coca-Cola Company is grounded in the view that all people should enjoy fundamental human rights to life, liberty, dignity, respect, equality under the law and more. (…) The commitment the Company has made on land rights reflects these core values.” (Sapiro, 2014). It thus appears that Coca-Cola perceives the protection of land rights as beneficial to its overall commitment to the respect for human rights. However, it does not go as far as directly linking land rights to the human right to adequate food. Coca-Cola is active in UN bodies. It supports the VGGT, is active in the UN Global Compact and is involved in negotiations on the new Principles for Responsible Agricultural Investment of the Committee on World Food Security through its office in Rome. Coca-Cola is an advocate of land rights through these bodies, for three reasons (van Alphen, 2014). The first is a moral responsibility which the company has because of its large impact on the world. The other two are more concerned with self-interest: if clear regulations exist on an international level, this enhances international standards for their conduct, which makes it easier for Coca-Cola to monitor its suppliers and hold them accountable. Third, through 27

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participation in global initiatives Coca-Cola hopes to convince other corporations to adopt a zero-tolerance policy on land grabbing, which contributes to a level playing field for the large sugar-buying companies in the world. This latter expectation has proven right: in March 2014, Coca-Cola’s largest competitor PepsiCo announced a similar policy (PepsiCo, 2014). Through the UN-bodies, Coca-Cola also tries to put pressure on governments:

“Although Coca-Cola attaches great value to the protection of land rights, it is ultimately a shared responsibility between governments and business. Governments are an indispensable link in the ‘golden triangle’ of the private, the public and communities. Coca-Cola hopes that by adopting a constructive and cooperative attitude in UN-bodies, governments are encouraged to take their responsibilities with regard to the protection of land rights.” (van Alphen, 2014).

Analysis

For Coca-Cola, the link between human rights and land rights is not totally clear. However, there are strong hints that its human rights agenda and land acquisition agenda are interconnected. The endorsement of the UNGP and the many notions to the UNGP and human rights in general in its new policy on land acquisition show the commitment of Coca-Cola to human rights. In the transnational regime complex, Coca-Coca-Cola is a supporter of the VGGT and the UNGP. Other human rights institutions are of lesser relevance to Coca-Cola, because these apply to states and not to corporations. Coca-Cola’s involvement in the negotiations on the new CFS RAI shows its strategic interest in an industry-wide endorsement of the VGGT, allowing for a level playing field for sugar-buying TNCs. Other than this, there are no signs that the existence of a transnational regime complex offers strategic opportunities to Coca-Cola.

The historical narrative has also yielded an insight which has not been subject to a proposition: Coca-Cola is willing to take responsibility in the protection of human rights, but simultaneously asks governments to take more responsibility as well. Theoretically, the commitment of Coca-Cola to the UNGP can be seen as a solution to the problem explained by Häberli & Smith (2014), outlined in chapter 3.Their theory explained the imbalance of responsibilities between weak states and business actors in the protection of human rights. They argue that it is unrealistic to place this responsibility fully at the burden of weak states. 28

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The UNGP are designed to solve this problem by placing responsibility at the burden of business actors as well. In that respect, one can view the commitment of Coca-Cola to the UNGP as contributing to the solution for this problem. Coca-Cola tips the balance of responsibilities towards business actors, an effect will be accelerated if Coca-Cola’s commitment leads other large sugar-buying corporations to also committing to zero-tolerance on human rights violations. At the same time however, Coca-Cola calls upon governments to take more responsibility as well, and it uses its participation in the UN Global Compact to put pressure on governments by holding them accountable for their responsibility to protect human rights. It appears that Coca-Cola is willing to take more responsibility, but expects governments to do so correspondingly.

Another interesting insight from the historical narrative is the success of the Behind the Brands campaign of Oxfam. As outlined in chapter 2, a naming and shaming campaign targets a corporation by publicly disclosing information about its conduct (Bartley & Child, 2007). By doing so, Oxfam has held Cola accountable for land grabbing, to which Coca-Cola quickly replied with a zero-tolerance policy against land grabbing.

Conclusion

Following the proposition on the role of human rights in the strategy of TNCs in chapter 3, it can be expected of Coca-Cola that it does not recognize land rights as human rights, because this would widen its human rights responsibilities under the UNGP, which increases its costs. Following from the analysis however, this proposition can be rejected. Although an acknowledgement of land rights as human rights would widen Coca-Cola’s responsibilities, it appears that Coca-Cola does not a priori refuse to acknowledge this. Conversely, there are strong hints that Coca-Cola actually acknowledges land rights as human rights, although this acknowledgement is not made explicitly.

The proposition on the influence of the existence of a transnational regime complex on the strategies of actors in chapter 4 has not been confirmed by this analysis of a TNC. Coca-Cola adheres to the VGGT and the UNGP, but there are no signs of Coca-Cola employing strategies of regime shifting, strategic ambiguity or strategic inconsistency. Coca-Cola pleads for a strong inclusion of land rights in the new CFS RAI, because it hopes that the commitment it has made will in the future also be made by other large sugar-buying corporation. In other words, this analysis suggests that a business actor which makes a far-29

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reaching commitment to human rights protection will try to transform this commitment into a norm in transnational regimes, in order to create a level playing field.

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Government of the Netherlands Historical narrative

This section elaborates on the policy of the government of the Netherlands with regard to land acquisition in developing countries. It will first give an overview of existing policy, then explain the role of human rights in this policy and lastly outline the position of the Netherlands vis-à-vis the transnational regime complex on land grabbing.

Within the government of the Netherlands, the issue of land grabbing is administered by the ministry of foreign affairs and forms part of the development agenda. Recently, this agenda has shifted from traditional development aid to creating incentives for economic growth, based on the belief that developing countries should become more self-sufficient (WRR, 2010). The promotion of good land governance contributes to a safe investor climate, so it is linked to the economic development agenda (van der Wal, 2014). Furthermore, the promotion of good land governance is directly linked to food security, which is one of the four core policy objectives of the Dutch development agenda. Because of the strong connection between land governance and the objectives of the Dutch development policy, the government spends considerable effort on it.

This makes it a critical player in the field of land acquisition, even though there are no ‘hard laws’ on national level against it. The government does not impose formal restrictions on Dutch companies with regard to land acquisition in developing countries. It believes in the “self-regulating power” of the food industry, and thinks that initiatives such as the VGGT can spur this (Ministry of Foreign Affairs, 2013a). Besides, the government expects of Dutch companies to abide by the OECD Guidelines for Multinational Enterprises (mentioned in chapter 3), which include the notion that business should respect human rights, but not that it should respect land rights. In order to make the OECD Guidelines more effective in respect to the protection of land rights, the government of the Netherlands pleads for the inclusion of the business responsibility of due diligence in land acquisition. In practice, the government contributes to initiatives on different levels (Ministry of Foreign Affairs, 2013b; van der Wal, 2014). Bilaterally, it advises its partner countries (the term for the major recipients of Dutch development cooperation) on how to achieve structural change through policy adjustments. Internationally, the government contributes to network organizations. It is the largest donor of the International Land Coalition, an important lobby- and advocacy 31

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actor. Also, the Netherlands is the largest donor of the Global Land Tool Network (€16,3m over a period of five years), which offers tools to tackle the root causes of land grabbing (Ministry of Foreign Affairs, 2013b). The Netherlands has chosen to financially contribute more to network organizations than to multilateral organizations, because the networks contain more stakeholders from civil society and the private sector, which increases legitimacy (van der Wal, 2014). Also, these networks contain more expertise than multilateral organizations.

Regarding the strategy on land acquisition in developing countries of the government of the Netherlands, “the most the Netherlands can do is create an enabling environment for stakeholders to share experiences, best practices and inspire each other.” (van der Wal, 2014). In this light, one of the most important policy instruments at the disposal of the ministry are multistakeholder roundtables, bringing interested parties together. The ministry has organized two multistakeholder roundtables in 2013, and is currently organizing one for the summer of 2014. The parties around the table are private actors such as financial institutions (banks and pension funds) and direct investors in land, and CSOs. One of the lessons of the roundtables of 2013 is that the complexity of financial transactions of land deals leads to a lack of transparency, which results in occasional involvement of Dutch financial institutions in illegitimate land deals (Ministry of Foreign Affairs, 2013c). In order to prevent this, the financial institutions promote transparency in land deals, but the government notes that “sadly, Dutch financial institutions must accept that there will always be cases in which business is not done right.” (ibid: 3).

Human rights are one of the main priorities in the foreign policy of the current government (Ministry of Foreign Affairs: 2013d). However, the government does not perceive land rights as universal human rights by definition, and does not use the human rights perspective as the main argument in its strategy on land grabbing. The government has a pragmatic approach to this issue: land rights and human rights are mutually reinforcing and therefore human rights sometimes offer a useful tool in convincing other countries to adjust their policy to prevent land grabbing (van der Wal, 2014). However, in some instances the human rights approach yields a negative effect. Governments of poor countries often do not like to be accused of not complying with human rights obligations, because they have much less resources at their disposal than the rich governments accusing them. To avoid this tension 32

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which has a negative effect on negotiations and outcomes, the government of the Netherlands only uses the human rights approach in its external relations if it is politically feasible.

Regarding the transnational regime complex on land acquisition, the Government refers to the VGGT repeatedly, and never to the PRAI. The Netherlands has had a large role in the negotiations of the VGGT (ibid). The rights-based approach of the VGGT reflects the human rights perspective of the Dutch foreign policy. Because of this, the Netherlands is a supporter of the VGGT. However, the VGGT must be understood in the right perspective: “The VGGT are merely a framework and do not function as guidance. They are useful to refer to, but do not offer concrete policy suggestions.” (van der Wal, 2014). The same is true for applicable human rights conventions. The international agreements are designed to govern issues of land acquisition and human rights, but the most important phase is not the design phase but the implementation phase. Currently, there is no good mechanism to monitor the progress in the realization of the VGGT. The government of the Netherlands is a proponent of the creation of such a system, and is committed to the realization of this goal in the negotiations of the new CFS RAI.

Analysis

Surprisingly, the government of the Netherlands – a strong supporter of human rights – does not plead for the recognition of land rights as human rights. In other words, Mr. Olivier de Schutter (Special Rapporteur on the right to food) does not find its arguments resembled by one of the strongest human rights-supporting governments of the world. Instead, the view of the government of the Netherlands on the issue of human rights and land grabbing is aligned with the argument of Wisborg (2013), who sees land rights and human rights as mutually reinforcing. The government sees land rights and human rights as intrinsically connected, because the protection of land rights is aligned with the rights-based approach to development propagated by the government. However, the government also realizes that it is unrealistic to use the human rights-argument in asking weak governments to spend significant amounts of money to protect land rights. This is consistent with the argument of Häberli & Smith (2014), of the paradox of holding the poorest governments responsible for the expensive effort of preventing land grabbing.

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The government of the Netherlands is committed to the implementation of the VGGT. In that light, it is surprising that its role in the prevention of land grabbing is merely a facilitative one. The VGGT note that home states should ensure that business does not infringe on land rights abroad, i.e. the Dutch government should ensure that Dutch companies respect land rights abroad. To fulfill this obligation, the government organizes multistakeholder roundtables in which best practices can be exchanged. It does not provide a binding mechanism to prevent the violation of land rights by Dutch companies abroad. Therefore, the commitment of the government to the implementation of the VGGT is not fully reflected by its conduct, because the extraterritorial activities of Dutch corporations with regard to land rights are not forcefully checked.

There are no strong indications of strategic opportunities for the government, resulting from the existence of a transnational regime complex on land acquisition. It is committed to the VGGT, attaches value to human rights mechanisms and does not refer to the PRAI. A characteristic of international regime complexity is that outcomes are being shaped in the implementation phase of policy, rather than in the design phase. The government views the implementation as critical and fears that without a proper monitoring mechanism with widely agreed upon indicators, implementation will be weak. A proper monitoring mechanism prevents the possibility of ambiguous interpretation by actors, which is a characteristic of strategic ambiguity in transnational regime complexity. At the time of writing, the government is pleading for the creation of a mechanism to monitor the implementation of the VGGT trough negotiations of the new CFS RAI, but it is too early to analyze its strategies in this regard.

Concluding

In chapter 3, a proposition has been deduced from the theory about the recognition of land rights as human rights by governments of investors’ home states. It predicted that whether a home state government recognizes land rights as human rights depends on its economic self-interest, versus its moral interest in the promotion of human rights globally. The outcome of the analysis of the position of the government of the Netherlands in this regard is very significant, because the Netherlands is a strong protagonist of human rights-based approaches. Because human rights are a core foreign policy objective of the government, it is likely to argue in favor of acknowledging land rights as human rights, coherent with the 34

Land rights as human rights? : land grabbing, the transnational regime complex and actors’ strategies viewed from the perspective of human rights