Skip to main content

Advertisement

Log in

John Rawls’s Theory of Justice and Large-Scale Land Acquisitions: A Law and Economics Analysis of Institutional Background Justice in Sub-Saharan Africa

  • Articles
  • Published:
Journal of Agricultural and Environmental Ethics Aims and scope Submit manuscript

Abstract

During the 2007–2008 global food crisis, the prices of primary foods, in particular, peaked. Subsequently, governments concerned about food security and investors keen to capitalize on profit-maximizing opportunities undertook large-scale land acquisitions (LASLA) in, predominantly, least developed countries (LDCs). Economically speaking, this market reaction is highly welcome, as it should (1) improve food security and lower prices through more efficient food production while (2) host countries benefit from development opportunities. However, our assessment of the debate on the issues indicates critical voices in both the media and academic discourse. This article aims to provide a philosophical law and economics analysis. We draw on John Rawls’s Theory of Justice, focusing on Rawls’s background institutions for distributive justice (§43) to evaluate LASLA form an ethical angle. Approaching LASLA into Sub Saharan LDCs as a socio-economic reform redistributing land from the local population of LDCs to investors, we acknowledge that they bear a highly desirable potential. Often, though, they cannot be regarded as ethically correct in practice as the insignificant improvements for local populations and sometimes even human rights violations contradict Rawls’s principles of justice. Then investigating whether and how international law can help overcome the shortcomings, we conclude that even though respective mechanisms exist in the current state of international law, it is hardly possible that it will produce more just outcomes in the near future.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. Different definitions of LASLA exist. However, they are often loaded with the particular interests of the defining parties (be it NGOs, investors, host or home governments, etc.). Thus, we decided to stick to the broadest definition possible: LASLA are large-scale investments with the interest of large-scale agricultural use of the land. Investors are often, but not necessarily, foreign parties and they mainly invest into least developed countries.

  2. Some of the consulted articles: von Braun and Meinzen-Dick (2009), Sharife (2011), Schweizer Fernsehen Video Portal (2011), Müller (2011), De Schutter (2009a, 2011), Guardian (2011); Sale and Chambers (2011), Vidal (2011), and The Economist (2011).

  3. Deininger et al. (2011) and Anseeuw et al. (2012) report that Asia is the most affected region, followed by sub-Saharan Africa and Latin-American.

  4. The contract time ran from 25 to 50 years. Note, however, some references include contracts lasting for a period of between 50 and 99 years (Cotula 2011). The contracted area in the predominantly agricultural contracts ranged from 431 Ha up to 150,000 Ha and the leasing rates varied from US $0 to US $12.38 (median US $.54), respectively from Ethiopian Birr (ETB)158 to ETB712.61 (median ETB158) per Ha per month. In June 2012, ETB1 was worth US $.0565. This would translate into prices from US$8.927 to US$40.26 per Ha and month. However, the ETB depreciated significantly (about 50 %) against the US$ in the last 10 years which is why we provide the ETB prices. Despite the fact that the analysed contracts originate from only five countries, they give a good general impression of how LASLA are usually contracted. The original language of the contracts is English, Amharic, and French.

  5. In more detail, the numbers of jobs (per respective project size in Ha) were 42 (10,000); 84 (10,000); 300 (10,000); 577 (73,513); 577 (73,513); 628 (21,500); 670 (6,214); 2,200 (6,141); 4,500 (150,000) (one contract for a 30,000 Ha project gave no number for the promised jobs). The relative numbers of jobs per Ha are 0.004; 0.008; 0.008; 0.008; 0.029; 0.03; 0.03; 0.108; 0.358 (rounded after the third decimal place).

  6. This effect is also stated by Deininger et al. (2011, p. xxxiii f.): “If investments generated profits, social impacts depended not only on the magnitude of benefits, but also on the mix of different types of benefits. For example, entrepreneurial and skilled people could gain from jobs created by an investment, while vulnerable groups or women lost access to livelihood resources without being compensated. This illustrates the importance of clearly addressing distributional issues upfront.”

  7. Utilitarianism as a philosophical concept can be defined as “the doctrine that an action is right insofar as it promotes happiness, and that the greatest happiness of the greatest number should be the guiding principle of conduct” (McKean 2005, no page).

  8. From an economic perspective, especially the assumption of risk aversion has been criticized, since maximin is not a rational decision rule. However, given the highly exceptional circumstances of the original position we cannot share this criticism and agree fully with (Wenar 2008, no page): “simply because maximin is under many circumstances irrational does not mean that it is never rational. No doubt maximin is an irrational strategy under most circumstances of choice uncertainty, particularly under circumstances where we have future opportunities to recoup potential losses and choose again. But these are not the circumstances of the original position; once the rules of justice are decided they apply in perpetuity, and there is no opportunity to renegotiate or escape the situation. One who relies on the equiprobability assumption in choosing principles of justice in the original position is being foolishly reckless given the gravity of choice at stake. It is not being risk-averse, but rather entirely rational to be unwilling to gamble with the basic liberties, opportunities and resources needed to pursue one's most cherished ends and commitments for the sake of gaining the marginally greater income and wealth that may be available in a society governed entirely by the principle of utility.”

  9. Note, that even testing whether LASLA could satisfy the claims of these branches is problematic since Rawls (1999b, p. 243) initially states: “First of all, I assume that the basic structure is regulated by a just constitution that secures the liberties of equal citizenship.” Even though such a constitution might exist on paper in the host countries, it might not be enforced. We refer to the factual situation of host countries and not the normative one.

  10. Internationally, the right of indigenous people is regulated in a specific UN declaration on the Rights of Indigenous People. The declaration was adopted by a majority of 143 states in favor (most of sub-Saharan countries adopted the convention), four votes against (Australia, Canada, New Zealand, and the United States) and eleven abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa, and Ukraine).

  11. Agency theory addresses problems emerging from agency relationships. Those relationships are defined as a contract under which one or more persons (the principal) engage another person (the agent) to perform some service on their behalf, which involves delegating some decision-making authority to the agent. The problems might arise due to the divergence of goals existent between the parties at contracting. The main goal of this approach is to find an efficient way to regulate principal-agent relationships by decreasing agency costs. These costs are defined by Jensen and Meckling (1976) as the sum of (1) the monitoring expenditures of the principal (2) the bonding expenditures by the agent and (3) the residual loss. Residual loss is the decrease in the welfare, which is experienced by the principal due to this divergence with the agent. It represents the potential gains from trade no realized because principals cannot provide perfect incentives for agents to do some task (Klein 1999). See Jensen and Meckling (1976), Breid (1995), and Klein (1999) for a closer approach to the principal-agent theory.

  12. This is because individuals are not considered as subject of international investment law. Even when in some cases tribunals accepted the participation of some organizations as amicus curiae, their relevance is questionable (Dolzer and Schreuer 2008, Reinisch 2009a).

  13. Even when land is not always sold, the fact that lease contract are made for 99 years we assume that the short run generational effects are almost the same. See Cotula (2011) for a description of the investment contracts.

  14. See above footnote 5.

  15. Our suggestion is based on later developments in international law, i.e., the case of Kosovo, where the international community after having proofed the violation of human rights has been increasingly willing to lift the protection created by the principle of sovereignty to protect victims of human rights violations.

  16. Art 2 (4) UN Charter: “The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles: […] (4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

  17. I.e., The Office of the High Commissioner for Human Rights (OHCHR) is mandated to promote and protect the enjoyment and full realization, by all people, of all rights established in the Charter of the United Nations and in international human rights laws and treaties. OHCHR is guided in its work by the mandate provided by the General Assembly in resolution 48/141, the Charter of the United Nations, the Universal Declaration of Human Rights and subsequent human rights instruments, the Vienna Declaration and Program of Action the 1993 World Conference on Human Rights, and the 2005 World Summit Outcome Document. The mandate includes preventing human rights violations, securing respect for all human rights, promoting international cooperation to protect human rights, coordinating related activities throughout the United Nations, and strengthening and streamlining the United Nations system in the field of human rights. In addition to its mandated responsibilities, the Office leads efforts to integrate a human rights approach within all work carried out by United Nations agencies.

  18. For some discussion about the fragmentation of international law see: International Law Commission (2006), van Aaken (2006), Benvenisti and Downs (2007), van Aaken (2009), Pauwelyn (2011).

  19. Even when this problem has been largely discussed in the literature, there is not clear tendency in the jurisprudence to support some of the proposed solutions. One solid solution has been proposed by van Aaken (2006, 2009). She proposed the application of interpretational techniques to stimulate the defragmentation of international investment law and therefore make it more unison to the international human rights and environmental regulations.

References

  • Andrianirina Ratsialonana, R., Ramarojohn, L., Burnod, P., & Teyssier, A. (2011). After daewoo? Current status and perpectives of large-scale land adquisition on madagascar. Commercial pressures on land. Madagascar: International Land Coalition (ILC).

    Google Scholar 

  • Anseeuw, W., Wily, A. L., Cotula, L., & Taylor, M. (2012). Land rights and the rush for land: Findings of the global commercial pressures on land research project. Rome: ILC.

    Google Scholar 

  • Benvenisti, E., & Downs, G. (2007). The empires new clothes: Political economy and the fragmentation of international law. Standford Law Review, 60(2), 595–631.

    Google Scholar 

  • Breid, V. (1995). Aussagefähigkeit Agencytheoretischer Ansätze im Hinblick auf die Verhaltenssteuerung von Entscheidungsträgern. Schalenbachs Zeitschrift für betriebswirtschaftliche Forschung, 9, 821–845.

    Google Scholar 

  • Cotula, L. (2010). Deals can be good news when not made behind closed doors. http://www.guardian.co.uk/environment/2010/mar/07/africa-land-grab-food-water/print. Accessed March 24, 2011.

  • Cotula, L. (2011). Land deals in Africa: What is in the contracts?. London: International Institutie for Environment and Development.

    Google Scholar 

  • Cotula, L., Toulmin, C., & Hesse, C. (2004). Land tenure and administration in Africa: Lessons of experience and emerging issues. London: International Institute for Environment and Development.

    Google Scholar 

  • Cotula, L., Vermeulen, S., Leonard, R., & Keeley, J. (2009). Land grab or development opportunity? Agricultural investment and international land deals in Africa. London, Rome: FAO, IIED and IFAD.

    Google Scholar 

  • De Schutter, O. (2009a). Large-scale land acquisitions and leases: A set of core principles and measures to address the human rights challenge (H. R. Council, Trans.). (pp. 18). Geneva: United Nations.

  • De Schutter, O. (2009b). Realising the right to food. http://pambazuka.org/en/category/comment/557942009.

  • De Schutter, O. (2011). How not to think of land-grabbing: Three critiques of large-scale investments in farmland. Journal of Peasant Studies, 37(2), 249–279.

    Article  Google Scholar 

  • Deininger, K., Byerlee, D., Lindsay, J., Norton, A., & Selod, H. (2011). Rising global interest in Farmland. Can it yield sustainable and equitable benefits? (p. 214). Washington, DC: World Bank.

    Book  Google Scholar 

  • Dolzer, R., & Schreuer, C. (2008). Principles of international investment law. Oxford: Oxford University Press.

    Book  Google Scholar 

  • Griebel, J. (2008). Internationales investitionsrecht: Lehrbuch für Studium und Praxis (1st ed.). Munich: Beck.

    Google Scholar 

  • Guardian. (2011). Small-scale farmers increasingly at risk from “global land grabbing”. http://www.guardian.co.uk/global-development/poverty-matters/2011/apr/15/risks-over-increasing-global-land-deals/print. Accessed May 19, 2011.

  • Häberli, C. (2012). Foreign direct investment in agriculture: Land grab or food security improvement? Singapore: Paper presented at the Third Biennial Global Conference Society International Economic Law, June, 2012.

  • Heri, S., Kate, A., van der Wal, S., Bürgi Bonanomi, E., & Gehne, K. (Eds.). (2011). International instruments influencing the rigths of people facing investments in agricultural land: Commercial pressures on land. International Land Coallition.

  • International Law Commission. (2006). Fragmentation of international law: Difficulties arising from the diversification and expansion of international law. Geneva: United Nations.

    Google Scholar 

  • Jensen, M., & Meckling, W. (1976). Theory of the firm: Managerial behavior, agency costs and ownership structure. Journal of Financial Economics, 3, 305–360.

    Article  Google Scholar 

  • Klein, P. G. (1999). New institutional economics. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=115811.

  • Land Grabs: Africa’s new ‘resource curse’?. (2011). Pambazuka.

  • Matavel, N., Dolores, S., & Cabanelas, V. (2011). Lords of the land—Preliminary analysis of the phenomenon of land grabbing in Mozambique. Mozambique: Justiça Ambiental & UNAC.

    Google Scholar 

  • Mathis, K. (2009). Efficiency instead of justice? Searching for the philosophical foundations of the economic analysis of law. Dordrecht: Springer.

    Book  Google Scholar 

  • McKean, E. (2005). New Oxford American Dictionary (2nd ed.). Oxford: Oxford University.

    Google Scholar 

  • Müller, S. (2011). “Land Grabbing” Der Neue Agro-Imperialismus. http://www.tagesschau.de/ausland/landgrabbing100.html. Accessed August 01, 2011.

  • Narula, S. (2006). The right to food: Holding global actors accountable under international law. Columbia Journal of Transnational Law, 44, 691–778.

    Google Scholar 

  • Palmer, R. (2011). A new annotated guide to bibliographies on biofuels, and land rights in Africa, and global land grabbing. September 2011. http://www.mokoro.co.uk/publications. Accessed June 28, 2012.

  • Pauwelyn, J. (2011). Fragmentation of international law. Max planck encyclopedia of public international law. Heidelberg: Oxford University Press.

    Google Scholar 

  • Rawls, J. (1999a). The law of peoples: With “The idea of public reason revisited”. Cambridge, Mass: Harvard University Press.

    Google Scholar 

  • Rawls, J. (1999b). A theory of justice. Cambridge: Belknap Press of Harvar University Press.

    Google Scholar 

  • Rawls, J. (2001). Justice as fairness: A restatement (2nd edn). Cambridge, Mass [u.a.]: Harvard University Press.

  • Reinisch, A. (2009a). Recents developments in international investment law. Paris: Pedone.

    Google Scholar 

  • Reinisch, A. (2009b). Standards of investment protection (Repr. ed.). Oxford: Oxford University Press.

  • Ruggie, J. (2011). UN guiding principles for business & human rights. Geneva: Special Representative of the United Nations. Secretary-General for business & human rights.

    Google Scholar 

  • Sale, P., & Chambers, I. (2011). Are we on the brink of a new global food crisis? Guardian focus pdcast (pp. 36:15). London: Guardian.

  • Sarezki, R., Deininger, K., & Selod, H. (2011). What drives the global land rush? (D. R. Group, Trans.). Washington: The World Bank.

  • Schultheiss, M. (2010). Land grabs and the local population′s right to property. Monograph. Bern: Law Faculty of the University of Bern.

    Google Scholar 

  • Schweizer Fernsehen Video Portal. (2011). Land-grabbing: Genfer Firma verrgert Afrikanische Bauern. Zürich: Schweizer Fernsehen.

    Google Scholar 

  • Sharife, K. (2011). Land Grabs: Africa’s new ‘resource curse’? Pambazuka, 2009(459).

  • The Economist. (2011). The surge in land deals. When others are grabbing their land: Evidence is piling up against acquisitions of farmland in poor countries. http://www.economist.com/node/18648855. Accessed May 12, 2011.

  • The Oakland Institute. (2011a). (Mis)Investment in agriculture: The role of the international finance coporation in global land grabs. Oakland: Oakland Institute.

    Google Scholar 

  • The Oakland Institute. (2011b). Understanding land investment deals in Africa: Country report: Ethiopia. Oakland: The Oakland Institute.

    Google Scholar 

  • The World Bank. (2013). The world bank. Working for a world free of poverty. http://data.worldbank.org. Accessed January 14, 2013.

  • United Nations. (1945). Charter of the United Nations. In U. Nations (Ed.), 1 UNTS XVI.

  • United Nations Human Rights. (2013). Office of the high commissioner for human rights. http://www.ohchr.org/EN/ABOUTUS/Pages/Mandate.aspx. Accessed January 11, 2013.

  • van Aaken, A. (2006). Fragmentation of international law: The case of international investment law. In J. Klabbers, & K. Creutz (Eds.), Finnish yearbook of international law (Vol. 17, pp. 91–130). Martinus Nijhoff Publishers.

  • van Aaken, A. (2009). Defragmentation of public international law through interpretation: A methodological proposal. Indiana Journal of Global Legal Studies, 16(2), 483–512.

    Article  Google Scholar 

  • Vidal, J. (2011). Ugandan farmer: ‘My land gave me everything. Now I’m one of the poorest’. http://www.guardian.co.uk/environment/2011/sep/22/uganda-farmer-land-gave-me-everything. Accessed October 22, 2011.

  • von Braun, J., & Meinzen-Dick, R. (2009). “Land Grabbing” by foreign investors in developing countries: Risks and opportunities. IFPRI policy brief. Washington: International Food Policy Research Institute.

    Google Scholar 

  • Wenar, L. (2008). John Rawls. http://plato.stanford.edu. Accessed January 12, 2013 2013.

Download references

Acknowledgments

We would like to thank the Institute of Agricultural Development in Central and Eastern Europe and participants of the 2012 IAMO Conference for helpful comments. We owe our sincere thanks to Lieske Voget-Kleschin, Prof. Konrad Ott, Prof. Anne van Aaken, and Prof. Manfred J. Holler for their generous support and valuable discussions. This project was made possible with funding of the German Research Foundation.

Author information

Authors and Affiliations

Authors

Corresponding author

Correspondence to Luis Tomás Montilla Fernández.

Rights and permissions

Reprints and permissions

About this article

Cite this article

Montilla Fernández, L.T., Schwarze, J. John Rawls’s Theory of Justice and Large-Scale Land Acquisitions: A Law and Economics Analysis of Institutional Background Justice in Sub-Saharan Africa. J Agric Environ Ethics 26, 1223–1240 (2013). https://doi.org/10.1007/s10806-013-9447-x

Download citation

  • Accepted:

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s10806-013-9447-x

Keywords

Navigation