BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

2. Land grabbing and international (human rights) law Land grabbing in general has a negative connotation, but it is a phenomenon which can certainly be described as Janus faced. The “devil” face of land grabbing is more a focus of public discourse, since the negative consequences include e.g. forced displacement and marginalisation of small-scale local farmers, and the loss of local decision-making power over vast areas of agricultural sector and its earnings. Moreover, many argue that the contribution towards the development of the recipient country is low. However, some emphasize the positive role and contribution of large-scale land investments to the modernisation of agriculture, raising productivity, help to countries suffering from under-investment, and in general their contribution to economic growth. Regardless the way one may interpret politically large-scale land acquisitions or concessions, there is no doubt that the green rush happens in the realm of international law and calls for an analysis of the role of international law in this regard. 2.1 What is the role for International Law? International law has been identified as playing a role in two contradictory ways, as explained accurately by von Bernstorff, who points out the paradoxical role of international law, which “ is on one hand complicit in the structures that make the global land grab possible, and on the other hand it is a language used to challenge and contest the negative consequences … of land grabbing ”. 13 Indeed, international law facilitates land grabbing. This is not a surprise, since international law is a tool serving the needs of the international community and providing legal framework of the co-existence of its members. As such, it is also naturally used for making the large-scale sale and lease of land possible. Already the very cornerstones of the international law system can be seen as facilitating land grabbing, most notably the sovereignty (and the connected notion of jurisdiction), denoting the ultimate authority of the State over the territory and the people living on it. It is thus the State, which has the power to make the ultimate decision on the sale or lease of land. One has to remember that the property relations in many countries are different from property relations in Western States. Formalized property tenure or possession over the lands for example in Africa, where most of the land used for agriculture is formally owned by the State, is much more limited. A similar situation was in Central and Eastern European States before the fall of the Iron Curtain, i.e. before 1989, when most of the land used for agriculture was formally or effectively in the hands of the State. 14 Von Bernstorff however rightly points out also the emancipatory and dynamic dimension of sovereignty, which he understands as aspiring to a collective right “ to end external at: http://www.landcoalition.org/sites/default/files/documents/resources/tirana_declaration_ilc_2011_eng. pdf (accessed 2 February 2018). 13 BERNSTORFF, Jochen von. The Global “Land Grab”, Sovereignty and Human Rights . ESIL Reflections, Vol. 2, Issue 9, 18 October 2013, available online at: http://www.esil-sedi.eu/node/426 (accessed 2 February 2018). 14 Privately owned land used for agriculture was collectivised after 1948, i.e. transferred step by step to State- run farms, the model of which corresponds with the Soviet “kolhoz” (in Czech “Jednotné Zemědělské Družstvo”, in German “Landwirtschaftliche Produktionsgenossenschaft”).

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