The Global Land Grab: The New Enclosures

[Darren]

http://www.wealthofthecommons.org/essay/global-land-grab-new-enclosures

By
Liz Alden Wily

from


The Wealth of the Commons

A world beyond market & state


Consider this. It is 1607. The English have been taking lands in Ireland 
for several centuries. First written down in the 7th century, Irish 
customary law is sophisticated and still administered by trained 
traditional magistrates (Brehons). Now rulings in the English courts on 
Gavelkind (1605) and Tanistry (1607) finally deny that customary law 
delivers property rights. Family holdings are made tenancies of by now 
well established Anglo-Irish elites, and the commons, crucial to grazing 
and hunting, are made more absolutely the property of the elites and new 
waves of English and Scottish settlers. Irish communities may use the 
commons at the will of these new owners.

Now 1823 in America. Chief Justice Marshall rules that while Indian 
natives were rightfully in possession (“Aboriginal title”) of 43,000 
square miles of disputed land – in a case he engineers to be brought 
before the Supreme Court (and in which he has a private interest) – they 
illegally sold this tract to developers. He argues that by virtue of 
conquest, the British Crown became the owner of North America (“the 
right of discovery”). Therefore only the Crown or its administrations 
may lawfully sell or grant lands. Possession is no more than lawful 
occupation and use, and doesn’t count. Forty-year-old opinions of the 
Privy Council in London aid Marshall’s argument. These opinions 
established in 1772 and 1774 that English law supersedes local law, and 
that for the purposes of property, land is “uninhabited” (unowned) when 
empty of civilized people (McAuslan 2006).

1845 in England. The villagers of Otmoor, Oxfordshire in England, as 
described by Linebaugh in this volume, have lost the fight to keep their 
commons, as have hundreds of other communities across the realm. In 
fact, feudal land law in England (and the rest of Europe) has dictated 
for some centuries (since 1285) that only those granted land by the 
king, i.e. the lords, own the land. Local populations hold no more than 
use rights. These legal realities have come harshly into focus only with 
industrialization and with private capital hungry for lands and the 
financial killings which may be made from selling the commons to 
railways and factories. Parliament, made up of wealthy landlords, is on 
their side, passing law after law since 1773 to legalize the 
dispossession of commoners. The Inclosure Act 1845 [sic] administers the 
coup de grace, speeding up the process. Of course private gains under 
these “parliamentary enclosures” are “in the public interest.”

1895 in Africa. A decade earlier the Plenipotentiaries of European 
Powers (as they refer to themselves) agreed to establish respective 
“spheres of economic influence” throughout the continent and make key 
entry points like the Niger and Congo Rivers free trade zones. As the 
newest industrial power and especially anxious to extend trade, Germany 
hosts the meeting in Berlin in 1884-85. Europe is in economic crisis 
(the Great Depression 1873-1896). Factory owners desperately need new 
markets for unsold textiles and other manufactures. Fabulously wealthy 
entrepreneurs, with “vast accumulations of capital burning holes in 
their owners’ pockets” (Hobsbawn 1987) also seek new enterprises to 
invest in. The new working classes, having lost their livelihoods and 
now dependent upon (failing) factory jobs are also in need of new 
locales to migrate to. The matter is so important that the Powers create 
an early international trade law, the General Act of the Berlin 
Conference on West Africa, 1885. In practice, opening markets and 
enterprise in Africa does not work out so well and free trade goes out 
the window. By 1895 the economic scramble for Africa has segued into a 
political scramble with the creation of colonies and protectorates to 
protect new markets and tap the increasingly apparent wealth of 
resources and cheap labor in the African hinterlands.

The problem from the 1890s is, How to acquire such massive lands 
cheaply? For some time traders, profiteers and missionaries have been 
buying lands from coastal chiefs to create trading posts, ports, 
missionary enclaves, and more recently, for anti-slavery monitoring 
posts. Companies backed by European governments have been doing the 
same. The British Royal Niger Company alone has several hundred land 
contracts made with West African chiefs guaranteeing access to land for 
mainly commercial oil palm production, supporting inter alia the 
burgeoning soap industry in Europe. Chiefs are now selling exploration 
rights to gold mining companies. Such purchases suggest that European 
governments are amply aware that Africa is far from unowned. There is 
also the 1844 Bond to consider. This is a bilateral investment treaty 
signed between “sovereigns of equal power” along the Gold Coast and the 
British Crown. Nor are such kings and chiefs naive, with a long history 
of slave and commodity trading behind them and well-established trade 
missions and embassies in European capitals.

Luckily the old feudal land laws of Europe along with the Marshall 
Ruling of 1823 mentioned above come to the rescue. These offer a clutch 
of routes to legalize dispossession at scale. Legality is of concern to 
colonizers and their parliaments, not least to appease humanist groups 
at home who count the abolition of slavery as a first success. But the 
“right of discovery” assures the colonizers undisputed ownership of the 
soil. This may not work so well along coastal areas but can be amply 
applied to hinterland areas. Natives themselves unwittingly open the 
way; many of them claim that only God can own the soil or that their 
communities, continuing from the past into the present and future, are 
the owners. While firm in their respective schemes of possession they 
admit the land itself cannot be sold, at least not without the consent 
of communities. To Europeans, this conceded lack of fungibility and 
tendency to communalism “proves” that Africans do not own their lands in 
the manner European property laws acknowledge. Where bills of sale have 
queered the pitch, natives may be guaranteed secure occupancy and use – 
for as long as they actively occupy and farm the land. It would not, in 
any event, be wise to make it difficult for natives to feed themselves.

Conditionality of occupation and use leaves the attractive prospect that 
Europeans may claim ownership of several billon hectares of unsettled 
and unfarmed lands – in short, the communal property within their 
customary domains. Have not Smith, Locke, Mills and others established 
long ago that private property only comes into existence by the hand of 
man’s labor? The concept of “wastes” from feudal tenures is neatly 
applied to the continent by all colonizing powers. Counterpoint 
constructs of “effectively occupied lands” in the form of settlements 
and permanent farms, and “unowned and vacant lands” quickly evolve. In 
the absence of acknowledged owners, the commons fall directly to 
colonial administrations as their private property. And if there is 
still any doubt, it is obvious to the white men that the lucrative 
forests, wetlands and grasslands of Africa cannot amount to property as 
they are in communal possession; in Europe, private property means 
individual property. Moreover property obtains legal protection only 
when an individual person or company has a deed to prove it. Africans do 
not. In oddly mixed ways, these various proofs of terra nullius are applied.

Legal dispossession of Africans is more or less total. In practice, the 
ability of colonizers to settle and “develop” more than a million or so 
hectares in each new polity is constrained (South Africa aside). Natives 
continue to occupy and use lands which they no longer legally own.

Through the 20th century major colonial incursions are made into these 
lands. Although cities and towns multiply, they prove more notable for 
the conflicts they generate than the actual hectares they absorb. 
Settler schemes, commercial plantations run by parastatals and private 
enterprise, take a much greater toll, along with evictions caused by the 
issuance of concessions to foreign enterprises for oil, mining and 
timber exploitation. Laws are also passed declaring certain resources 
generically the property of the state; minerals (surface mined for 
centuries or not), waters, beachfronts, marshlands, mountains, forests 
and woodlands, fall like ninepins to the state, irrespective of local 
possession.

The 1960s in Africa. Liberation from Europe begins mid-century. 
Curiously, colonial notions of tenure are sustained in most 
post-independence land laws. Or perhaps not so curiously, for keeping 
rural majorities as tenants at will is as useful to new African 
governments as it had been to colonial masters. Class formation and land 
commoditization have grown apace since the 1940s. The new African middle 
class share not only political power and business interests, but the 
same deep commitments to market-led development so strongly advocated by 
the new donors (the former colonizers) and international agencies. 
Positions expressed in the landmark studies of late colonialism in 
Anglophone (1955) and Francophone officialdom (1959) become embedded 
national policies in Africa, reinforced by the land policies of the 
World Bank (1975). These read little differently from those of Malthus 
and Lloyd, as recorded by Linebaugh: land privatization is prerequisite 
to productivity.

Indigenous tenure regimes in general and communal landholding in 
particular are to be done away with as obstructions to 
individual-centric economic growth, to allow the polarization needed to 
produce a landless class for urban industrialization and fewer and 
larger native land owners assisted to produce food and commodities at 
scale. As is now so well known, Garrett Hardin, confusing collective 
group-owned property with open access regimes, adds his penny’s worth to 
destructively good effect (1968).

All over Africa (and Asia) privatization schemes are launched, aiming to 
individualize, title and register houses and farms (Alden Wily 2011). 
Where these work, such as in Kenya, commons are subdivided among 
wealthier farmers. Or they are handed over to governments as forest and 
wildlife reserves or state-run commercial agriculture developments. 
Ultimately the reach of privatization schemes is limited, so that by 
1990 only around 10 percent of the rural lands of Africa are subject to 
statutory entitlement, and most of this in the white settler areas of 
southern Africa. But this is not problematic for African administrations 
who continue to dispose of untitled, customarily-owned lands at will, 
often to themselves or other private interests.

1990 in Africa. Despite privatization pressures the customary sector 
remains dominant. As the century nears end half a billion Africans are 
still regulating their land relations according to community-based 
norms, shaped by customs but adjusted regularly to meet changing 
realities. Despite significant failures in the 1970s and 1980s 
governments hold tenaciously to mechanized large-scale farming as the 
route to growth. Smallholder agriculture remains starved of investment 
even though customary smallholders represent the overwhelming majority. 
Families eke out a living on less and less farmland per capita. Levels 
of concentration and farm landlessness within the African peasant sector 
look increasingly like those of South Asia in the 1960s. But where the 
commons remain these routinely make the difference between pauperization 
and survival. As in Linebaugh’s village of Otmoor over a century past, 
the unfarmed commons continue to provide a host of services and 
products, from “pasture to pannage, to fish and fowl” and the waters 
needed to irrigate farms. Woodlands and forests are especially valuable, 
doubling the livelihood of the poor in many areas (IUCN 2010). And of 
course, the rural poor are the majority, some 75 percent of the rural 
population.

Democratization in the 1990s provokes tenure reforms, often following 
years of bitter social conflict. A handful of governments, most notably 
Uganda, Mozambique and Tanzania, acknowledge that Africans cannot remain 
forever squatters of their own land (Alden Wily 2011). They pass new 
land laws which for the first time endow customary rights with the legal 
force of real property, and irrespective of whether or not these 
interests are formally titled and registered, or owned by individuals, 
families or communities. The last opens the way for communities to 
secure thousands of hectares of commonage as acknowledged collective 
property. However, as well as being flawed in diverse ways, these cases 
are the exceptions. Most governments continue to avoid real change to 
their land laws. World Bank structural adjustment programs aid and abet 
this, coercing governments to accelerate privatization and sell off 
untitled lands (including the commons) to foreign investors.

Now consider this. It is 2011. Hundreds of rural communities in Africa – 
as well as parts of Asia and Latin America – are physically confronted 
with eviction or displacement or simply truncation of their livelihoods 
and lands they customarily presume to be their own. These lands are 
willfully reallocated by their governments to mainly foreign investors 
to the tune of an estimated 220 million hectares since mainly 2007, and 
still rising.1 Two thirds of the lands being sold or mainly leased are 
in poverty-stricken and investment-hungry Africa. Large-scale deals for 
hundreds of thousands of hectares dominate, although deals for smaller 
areas acquired by domestic investors run apace (World Bank 2010).

This is the global land rush, triggered by crises in oil and food 
markets of the last decade, and compounded by the financial crisis.2 The 
latter adds backing and raises the speculative stakes enormously. The 
crisis provides lucrative new investment opportunities to sovereign 
wealth funds, hedge funds and global agribusiness, the new entrepreneurs 
with “accumulated capital burning holes in their owners’ pockets.” 
Global shifts in economic power are evident; while western actors 
continue to dominate as land acquirers, the BRICs (Brazil, Russia, 
India, China) and food-insecure Middle Eastern oil states are active 
competitors. A regional bias is beginning to show; China and Malaysia 
dominate land acquisition in Asia while South Africa shows signs of 
future dominance in Africa. Two South African farmer enclaves already 
exist in Nigeria, and Congo Brazzaville has granted 88,000 hectares with 
promises of up to ten million hectares to follow. Negotiations are 
ongoing in at least 20 other African states (Hall 2011).

What foreign governments and other investors primarily seek are lands to 
feed the lucrative biofuel market by producing sugar cane, jatropha and 
especially oil palm at scale.3 They also want to produce food crops and 
livestock for home economies, bypassing unreliable and expensive 
international food markets. Additionally, investors seek to launch 
lucrative horticultural, floricultural and carbon credit schemes. For 
all this cheap deals are needed: cheap land (US$0.50 per hectare in many 
cases), duty-free import of their equipment, duty-free export of their 
products, tax-free status for their staff and production, and 
low-interest loans, often acquired from local banks on the basis of the 
new land titles they receive.

This rush for land, the new landgrab, does not stand alone. Local banks, 
communications, infrastructural projects, tourism ventures and local 
industry are also being bought up with a vengeance. These take advantage 
of the new market liberalization that poor agrarian governments now 
finally provide after decades of nagging by international financial 
institutions. For host governments, foreign investment is the new aid 
and path to economic growth, firmly facilitated by international 
agencies (Daniel 2011). Local land speculation flourishes in its 
service. The promise of jobs is more or less the only immediate benefit 
to national populations, and experience thus far suggests these are not 
materializing.

Nor is the phenomenon a one-way street. Extending and entrenching 
competitive “spheres of economic influence” is also on the agenda. 
Foreign capture of population-rich new markets for home manufactures is 
actively sought alongside land deals. This is best illustrated in the 
largely foreign capital buy-in and buy-up of Special Economic Zones 
(SEZ), most advanced in India but emerging elsewhere, such as in the 
Chinese “Shenzhen” planned in eight African states (Brautigam 2011). 
Should these develop they will provide tariff-free entry for Chinese 
goods at scale and locales for Chinese producers and laborers seeking to 
escape the saturation of home markets. Bilateral investment treaties, of 
which nearly five thousand have been signed between North and South 
states over the last decade, provide the governing framework for these 
developments.

In short, economic crises and shifts in the balance of political power 
once again produce seismic shifts in who owns and controls land, 
resources and production. But where are the poor and the commons in all 
this?
The commons and commoners

The answer is quite simple. Much of the lands being sold or leased to 
entrepreneurs are commons. This is not surprising because lands defined 
as commons in the modern agrarian world generally exclude permanent 
farms and settlements. Governments and investors prefer to avoid settled 
lands as their dispossession is most likely to provoke resistance. They 
also want to avoid having to pay compensation for huts and standing 
crops, or for relocation. Only the unfarmed commons – the 
forest/woodlands, rangelands and wetlands, can supply the thousands of 
hectares large-scale investors want. But most of all, the commons are 
deemed “vacant and available.” For the laws of most host lessor states 
still treat all customarily-owned lands and unfarmed lands in particular 
as unowned, unoccupied and idle. As such they remain the property of the 
state. This makes their onward sale or lease to private investors 
perfectly legal. Indeed, without such legality in domestic land law, and 
investor-friendly international trade law to take their side in 
international courts if needed, no international or local investor would 
proceed.

Of course the commons are neither unutilized or idle, nor unowned. On 
the contrary, under local tenure norms virtually no land is, or ever has 
been, unowned, and this remains the case despite the century-long 
subordination of such customary rights as no more than permissive 
possession (occupancy and use of unowned lands or lands owned by the state).

In practice, customary ownership is nested in spatial domains, the 
territory of one community extending to the boundaries of the next. 
While the exact location of intercommunity boundaries are routinely 
challenged and contested, there is little doubt in the locality as to 
which community owns and controls which area. Within each of these 
domains property rights are complex and various. The most usual 
distinction drawn today is between rights over permanent house and farm 
plots, and rights over the residual commons. Rights over the former are 
increasingly absolute in the hands of families, and increasingly 
alienable. Rights over commons are collective, held in undivided shares, 
and while they exist in perpetuity are generally inalienable. This is 
not least because the owner, the community, is a continuing, 
intergenerational entity. This does not mean that in the right 
circumstances, parts or even all of a community’s commons cannot be 
leased. Whether the community wishes to do so or not, is, communities 
believe, a matter for commoners to decide. Clearly, most domestic 
statutory legislation does not agree, let alone consider these critical 
estates in land to be community assets in the first instance.

The results of this continuing denial that property ownership exists 
except as recognized by “imported” European laws are clear for all to 
see in the current land rush. Not just commons but occupied farms and 
houses are routinely being lost as investors move in. In Democratic 
Republic of the Congo, for example, villagers with homesteads scattered 
in the forest have lost their entire domains to commercial crop farmers 
and now squat in a neighboring National Park from whence they will in 
due course also be evicted (Mpoyi 2010). In Ethiopia, communities are 
already being relocated from 10,000 hectares allocated to a 
Saudi-Ethiopian company with many more relocations anticipated as its 
lease is extended to 500,000 hectares (Oakland Institute 2011). 
Elsewhere communities are merely dramatically squeezed, retaining houses 
and farms but losing their woodlands and rangelands. Investors are 
clearing forests, damming rivers and diverting irrigation from 
smallholders, causing wetlands crucial to fishing, seasonal fodder 
production and grazing to dry up and enclosing thousands of hectares of 
grazing lands for mechanized farming for export. All this happens in 
Ethiopia, where local food security is already an issue and the specter 
of famine looms. The Ethiopian government is meanwhile expanding areas 
designated for investors to grow oil and food crops for export by 
900,000 hectares in another region.

Sometimes villagers tentatively welcome investors in the belief that 
jobs, services, education and opportunities will compensate for the loss 
of traditional lands and livelihoods. The reality can be very different. 
Villagers in central Sierra Leone, Rwanda, and Kenya are among those not 
told that canal construction for industrial sugar cane production would 
dry up their wetlands, critical for seasonal rice production, fishing, 
reed collection, hunting and grazing.4 Deng (2011) records the case of a 
community in South Sudan agreeing to hand over 179,000 hectares to a 
Norwegian company for an annual fee of $15,000 and construction of a few 
boreholes; the company aims to make millions on both production and 
carbon credit deals.

In such cases, traditional leaders and local elites are often 
facilitators of deals, making money on the side at the expense of their 
communities. Reports abound of chiefs or local elites in Ghana, Zambia, 
Nigeria and Mozambique persuading communities of the benefits of 
releasing their commons to investors, and even reinterpreting their 
trusteeship as entailing their due right to sell and benefit from those 
sales. Central government officials, politicians and entrepreneurs are 
routinely on hand to back them up. Such accounts are repeated throughout 
Africa, and in some Asian states such as Indonesia and Malaysian Borneo, 
where 20 million hectares have been scheduled for conversion into oil 
palm plantations (Colchester 2011). Everywhere the story is more or less 
the same: communal rights are being grossly interfered with, farming 
systems upturned, livelihoods decimated, and water use and environments 
changed in ways which are dubiously sustainable.

Clearly possession is no more sufficient today than it was for the 
English villagers of the 17th and 18th centuries of enclosure. Only 
legal recognition of commons as the communal property of communities is 
sufficient to afford real protection. A handful of states in Africa (and 
somewhat more in Latin America) have taken this crucial step, setting 
aside fungibility and formal registration as prerequisites to admission 
as real property. The land rush instead not only activates the effects 
of failing to make such changes a thousandfold. It also raises concern 
that fragile reformist trends will not be sustained. Governments appear 
to find leasing out their citizens’ land too lucrative to themselves and 
aligned elites, and too advantageous to market-led routes of growth, to 
let justice or the benefits of the commons stand in their way.
References

Alden Wily, L. 2011. “The Law is to Blame: Taking a Hard Look at the 
Vulnerable Status of Customary Land Rights.” In Africa Development and 
Change. (2)3:733-757.
Brautigam, D. 2011. African Shenzhen: China’s Special Economic Zones. 
Journal of Modern African Studies. (49)1: 27–54.
Colchester, M. 2011. Palm Oil and Indigenous Peoples in South East Asia. 
Forest Peoples Programme and International Land Coalition, Rome. 
http://landportal.info/resource/global/new-studies-and-policy-briefs-rel...
Daniel, S. 2011. The Role of the International Finance Corporation in 
Promoting Agricultural Investment and Large-Scale Land Acquisitions 
http://www.future-agricultures.org/index.php?option+com_docman&Itemid=971.
Deng, D. 2011. “Land Belongs to the Community: Demystifying the ‘Global 
Land Grab’ in Southern Sudan.” 
http://www.future-agricultures.org/index.php?option=com_docman&task=cat_....
Hall, R. 2011. “The Next Great Trek? South African Commercial Farmers 
Move North.” 
http://www.futureagricultures.org/index.php?option=com_docman&task=cat_v...
Hobsbawn, E. 1987. The Age of Empire 1875-1914. London. Abacus.
Internations Union for Conservation of Nature. 2010. “The Impacts of 
Barriers to Pro-poor Forest Management: Livelihoods and Landscapes 
Strategy.” Markets and Incentives Discussion Paper. Gland, IUCN.
McAuslan, P. 2006. “Property and Empire.” Paper presented to Sixth 
Biennial Conference, The Centre for Property Law, School of Law, 
University of Reading, UK. March 21-23, 2006.
Mpoyi, A. 2010. “Social and Environmental Dimensions of Large Scale Land 
Acquisitions in the Republic of Congo.” Presentation to the World Bank 
Annual Land Policy & Administration Conference. April 26-27, 2010.
Oakland Institute. 2011. “Understanding Land Investment Deals in Africa. 
Country Report: Ethiopia.” http://media.oaklandinstitute.org/publications.
The World Bank. 2010. “Rising Global Interest in Farmland.” Washington, D.C.

1. A coalition of agencies and universities published the data on 
recorded and verified deals in a report, “Land Rights and the Rush for 
Land,” in October 2011 at 
http://www.landcoaltion.org/cpl/CPL-synthesis-report.
2. For case studies see http://www.landcoalition.org/cplstudies and 
http://www.future-agricultures.org/index.php?option=com_docman&Itemid=971 and 
http://media.oakland institute.org/publications.
3. For example, in July 2011 the German Lufthansa became the first 
airline to use biofuels on regular commercial flights.
4. See footnote 2 for case studies.