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food” into the charter and argues it is a
prerequisite to the effective enjoyment
of a right to life, health and development
as well as “education, work and
political participation.”
In addition, a dramatic claim that
international investment in agricultural
land must be assessed in light of its
impact on local food supply and local
producers has been put forward by
Olivier De Schutter, U.N. special rapporteur
on the right to food. De Schutter,
who teaches at the Catholic University
of Louvain and is also a member of the
Hauser Global Law School faculty at
New York University, has proposed a
“set of minimum principles and measures
to address the human rights challenge”
of “large-scale land acquisitions
and leases.”
De Schutter’s recommendations may
at times be controversial, inviting claims
of micromanagement, undue suspicion
of the operation of markets, undervaluing
the importance of improved
efficiency against rigid protection of
existing ways of gaining a livelihood,
along with lack of political realism
about the decision-making processes of
underdeveloped countries. In addition,
one must recognize that a special rapporteur
does not have the power, ipse dixit,
to create law. But at the least, responsible
corporate leaders may wish to review De
Schutter’s statement of “minimum principles”
as a checklist for areas that might
engender political concern or potential
criticism, as well as for a “red team”
assessment of the wisdom of a corporate
venture. And insofar as the principles
may have influence with the international
financial institutions that dispense
loan guarantees, a corporate leader will
wish to engage with their substance,
whether in criticism or agreement.
The rapporteur’s proposals include
that governments should not approve
land sales or leases that would deprive
“the local population of access to productive
resources indispensable to their
livelihoods” and that a “human right
to food would be violated if people
depending on land for their livelihoods,
including pastoralists, were cut off
from access to land, without suitable
alternatives.”
De Schutter also argues, perhaps
more controversially, that land sales or
leases should not be permitted “if local
incomes were insufficient to compensate
for the price effects resulting from
the shift toward production of food for
exports; or if the revenues of local smallholders
were to fall following the arrival
on domestic markets of cheaply priced
food, produced on the more competitive
large-scale plantations developed
thanks to the arrival of the investor.”
Investing in Agriculture
This protection of the status quo in
poor countries could seem unsuitable
to many supporters of free markets.
After all, more efficient production of
food may allow greater access to an
adequate food supply, even for the poor.
The distorting effects of the “winner takes all” politics that
characterize the governance of so many developing countries
may also lend support to solutions that are otherwise
suboptimal. The pervasiveness of government corruption could
teach the same lesson.
But it is worth keeping in mind that
much of the undeveloped land in African
countries is owned by the state and
that land policy in other countries—for
example, the 19th-century federal policy
on homesteading in the American
West that only small holdings could
receive subsidized water—has had
an eye cast to theories of distributive
justice.
The distorting effects of the “winner
takes all” politics that characterize
the governance of so many developing
countries may also result in solutions
that are otherwise suboptimal. The pervasiveness
of government corruption
could teach the same lesson.
In scouting this complicated terrain,
American corporations, development
economists and social critics may also
want to review and assess the recent
proposals for principles of agricultural
investment policy published by the
U.N. Food and Agriculture Organization
and the World Bank as well as
the African Union’s Framework and
Guidelines on Land Policy in Africa.
In the world of international politics,
economics, morals and law, it does
not always matter whether a proposed
standard would be legally binding if the
practical costs of its disregard would
become excessive.
But it is also good to remember what
may drive a policy of open investment
and open markets. There is lingering
resentment in the developing world
at the refusal of developed countries
to allow open access to their own
markets for foreign-produced agricultural
goods. The failure of the World
Trade Organization’s Doha Round
negotiations was deeply disappointing,
frustrating the desire of poorer countries
to sell to wealthy markets. There
may be a calculation that international
investment in local agriculture is likely
to bring greater international support
for the lowering of agricultural tariffs
generally.
Agricultural investment in Africa
remains important for development.
It should also be responsible. As
the African Commission has noted,
“[T]he intervention of multinational
corporations may be a potentially
positive force for development if the
state and the people concerned are
ever mindful of the common good and
the sacred rights of individuals and
communities.”
Foreign investment in agriculture
can advance economic growth and
human rights alike, where its structure
and impact are carefully considered. n
Ruth Wedgwood is the Edward B.
Burling Professor of International Law
and Diplomacy and director of the
International Law and Organizations
Program. She was the U.S. member
of the U.N. Human Rights Committee
from 2002 to 2010. Tiffany Basciano is
associate director of the International
Law and Organizations Program.
2011–2012 59