Workshop on International Law, Natural Resources and Sustainable
Development
Commercial Pressures and Legal Rights: International law, State Sovereignty and the
Global Land Rush
Lorenzo Cotula
International Institute for Environment and Development
Over the past quarter of a century, economic globalisation has been accompanied by
extensive developments in the norms of international law that regulate cross-border
economic activities. A booming number of investment treaties – and, increasingly,
investment chapters in wider preferential trade agreements – has imposed greater
discipline on the way in which host governments treat foreign investment. International
human rights treaties and growing international human rights jurisprudence have developed
more effective ways for citizens to hold governments to account. Evolving legal arenas
within international law have redefined the legal construction of state sovereignty, policy
space in national legal orders, and the relationship between sovereign states, citizens and
foreign capital.
In recent years, a global rush for land in low- and middle-income countries has highlighted
the conceptual and practical implications of these legal developments. Transnational land
deals for plantation agriculture bring into contest competing land claims backed by different
international normative references. International investment law reflects a legal
construction of land as a commercial asset that is valued in monetary terms, and protects
the land rights acquired by foreign investors against adverse host state interference.
International human rights law, on the other hand, emphasises the important noncommercial connotations that land has in many societies, and protects the land rights of
people affected by transnational land deals. When competing land rights and contrasting
conceptualisations of land collide, the relative strength of legal protections and
enforcement mechanisms will affect the outcomes of legal processes.
This paper explores the ways in which international law mediates between competing
claims to land within the global land rush. The paper finds that lopsided legal developments
have resulted in a legal environment that is more geared towards promoting secure
investment flows, than it is towards ensuring that the rights of affected people are upheld in
investment processes. Promoting inclusive investment in agriculture requires rethinking
important features of the law, and strengthening local capacity to push the boundaries of
existing law.