The UNIDROIT-FAO-IFAD Legal Guide on Agricultural Land Investment Contracts (The Guide) is a tool to promote responsible agricultural foreign investment. Many international organisations insist that more private investment is needed to meet the sustainable development goals (SDGs). Agricultural foreign investment, particularly, is central to a world with no poverty (SDG 1) and no hunger (SDG 2) (The Guide 2019, 10, 13), but the link between foreign investment and these goals should not be taken for granted. Foreign investment can probably promote these and other SDGs; however, it also creates costs and risks.

In the grander scheme of things, amidst the crisis of climate change in which the vulnerability of Africa continues to unravel, Africa remains a preferred choice of FDI in agriculture for the export of green energy and for food. This situation raises concerns about displacements, conflicts, shrinking traditional landraces and continental food security writ large. The traction for agricultural FDI comes through the scheme of large scale agricultural land acquisitions, which activists framed as agricultural “land grabs”.

This commentary considers the access to food component of the draft UNIDROIT/FAO/IFAD Legal Guide on Agricultural Land Investment Contracts (Guide) and voices its silence on intellectual property rights (IPRs). In the past decade, foreign investors have increased the number of investments in the long-term lease of arable land, especially in Africa, and in the Global South, generally. The reasons for the choice of these locations include the availability of large portions of inexpensive agricultural land, inexpensive local labour and favourable climatic conditions for crop production. The Guide proposes more responsible investments in agriculture from public and private sector investors as a way to achieve, inter alia ‘No Poverty’ and ‘Zero Hunger’ (Sustainable Development Goals 1 and 2).

Unfortunately, the Guide appears to be blind to the way in which conceiving land and tenure rights in the context of global vale chains can multiply the relevant spaces of engagement and challenges the traditional notion of jurisdictional spaces and fragmentation. Luckily, communities, activists and lawyers acting on the ground have come to this realization long ago, and I  believe that they will find the best way to use a document that aims to normalize large-scale investments but can also open new interesting spaces for political and legal resistance.

By bringing forward this interlegal sensibility, ALIC invites the investor to think of their own best interest in broad term and to take the time to understand already-existing, pluralist socio-legal expectations and practices. It also implicitly reminds the investor to take the time to build a relationship with local communities that is buttressed by an iterative understanding of fairness (a core tenet of commercial law). Without such a relationship and appropriate due diligence, ALIC in effect recommends to the investor and the local community to not pursue the deal – no one benefits from a land transaction that is only made possible by disrupting local people’s lives or dislocating them from their homeland.

Welcome to the Symposium on the Zero Draft of the UNIDROIT/FAO/IFAD Legal Guide on Agricultural Land Investment Contracts (ALIC) (hereinafter Legal Guide or Zero Draft). The Legal Guide, is being developed by a UNIDROIT Working Group in collaboration with the Food and Agriculture Organization of the United Nations (FAO) and the International Fund for Agricultural Development (IFAD).

The AfCFTA seeks to change the manner in which African states trade with each other. The existence of the AfCFTA is what Roscoe Pound termed using the law as a tool of social engineering. The African Union in creating the AfCFTA intended to promote, facilitate and eventually experience free intra-African trade. This review appreciates the AfCFTA but seeks to criticize a loophole it has created

We are keenly following the unfolding developments in Nigeria and in the sub-Saharan countries that are on the cusp of adopting competition laws, and of course the developments in the AfCFTA as well as ECOWAS/WAEMU and other regionals. We hope to engage with these developments, and hope that our book can provide some insights and a perspective; a building block for moving forward towards a Voice for Africa.

 Appel à contributions 

DÉMOCRATIE CONSTITUTIONNELLE, ÉTAT DE DROIT ET LUTTE CONTRE LA CORRUPTION 

In implementing its mandate, AUCIL carries out a series of programs and activities such as AUCIL Forums which are organized every year and constitute a platform for discussion and interaction on issues of interest to Africa, viewed through the prism of International Law and African Union Law.