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Transnational Farmland Investment: A Risky Business

Tania Murray Li

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Li, T. M. (2015), Transnational Farmland Investment: A Risky Business. Journal of Agrarian Change, 15: 560–568. doi: 10.1111/joac.12109

Publisher’s Statement This is the peer reviewed version of the following article: Li, T. M. (2015), Transnational Farmland Investment: A Risky Business. Journal of Agrarian Change, 15: 560–568. doi: 10.1111/joac.12109, which has been published in final form at https://doi.org/10.1111/joac.12109. This article may be used for non-commercial purposes in accordance with Wiley Terms and Conditions for Self-Archiving

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Transnational Farmland Investment: A Risky Business TANIA MURRAY LI

17/01/2015. Forthcoming in the Journal of Agrarian Change

Transnational farmland investments in much of the global south are risky for all parties involved: agribusiness firms and their financial backers; host country governments; and the

people on the spot. This essay focuses on political risk, which encompasses policy shifts, legal disputes, and push-back from affected populations. It draws on the analytical framework of

Powers of Exclusion (Hall et al, 2011) to consider how transnational investors attempt to deploy force, law, and market transactions to secure and legitimate farmland deals, yet they remain fragile, as do the governments that enable them.

farmland investment, market, law, force, state authority

Transnational farmland investments in much of the global south are risky for all parties involved: agribusiness firms and their financial backers; host country governments; and the

people on the spot. To assemble 'land' as a resource for global investment takes a great deal of political and cultural work, and the deployment of multiform techniques that I have explored in

other work (Li 2014b). The resulting resource assemblage is fragile, and prone to fracture, leaving collapsed land deals and other kinds of wreckage (e.g. ecological, financial, social ) in its wake. In this essay, I focus on the kind of fragility investment brokers label political risk, which encompasses policy shifts, legal disputes, and push-back from affected populations. In the case of farmland, I will argue, political risk is not only an external condition that confronts parties attempting to invest in farmland. It is a risk generated by farmland deals themselves, in two important ways.

First, in much of the global south, the life-giving affordance of farmland links it rather directly to the capacity of rural people to sustain themselves, and to the production of food for national

consumption. The profit-generating potential of farmland, which has come to be regarded as its primary function in parts of the global north (on Australia see Larder et al), tends to be

subordinated to its 'social function,' codified in customary law, philosophical treaties, national constitutions and transnational human rights law (Li 2014b). In these contexts, farmland's life-giving quality distinguishes it from resources such as gold or oil in which profit-making is the

entire purpose. Hence profit-seeking farmland investors, by which I mean frontline agribusiness firms together with their financial backers, must satisfy the profit imperative while also making good on farmland's social function. Hence they promise to create jobs, and grow food for hungry masses. But can they create enough jobs, with sufficient pay, to compensate for the

farm-based livelihoods that are lost? If their business plan focuses on production for export, how will it fare in the context of rising domestic food prices? These are among the many

political grounds on which farmland deals may be challenged, and they have no closure. The legitimacy of a land deal can be scrutinized anew as economic and political conditions change,

and the needs of a new generation become pressing. Put differently, land control - not just


acquiring access to land but holding on to it - is an intrinsically social (and hence political)

process with important temporal as well as spatial dimensions (Peluso & Lund 2011).

Second, in contexts where farmland is not fully commodified, political risk is generated by the heavy involvement of governments as expropriators, brokers and mediators of deals that transfer land access from one party to another (Borras & Franco 2013, 1742; Hall 2013, 1590; Martin & Clapp in press; Wolford et al. 2013). The risks are magnified if the transfer is to an

agribusiness corporation seen to be 'foreign,' even though as Fairbairn points out (this issue), there are few truly national enterprises in an age of globally circulating finance. Only state

agencies have the 'capacity to define and enforce the rules of the game' (Burnod et al. 2013, 358), to classify land as underutilized, organize investment zones, supply water, use force to ensure investors have 'vacant possession' and keep disgruntled villagers at bay (Borras et al. 2013, 167; Ferrando draft). Neither agribusiness corporations nor their financiers wield the necessary power. They need strong national governments capable of imposing and enforcing the social property relations that make their business profitable. Yet these same capital-

supporting relations can undermine the authority of governments, generating instability and investment risk. The result, as Ellen Wood observers, is a massive contradiction (Wood 2006, 32).

Transnational capital flows both support and undermine the very relations that enable them. On one side, state authority may be enhanced through the process of authorizing land deals, as state agencies strengthen their position vis a vis contending powers (Lund 2011; Sikor & Lund 2010). On the other side, state agencies can be un-formed through these encounters, especially

when the social function of land is at stake. They may lose their capacity to authorize or broker, uphold the law, or respond to villagers' grievances. A sub-district chief in the Indonesian island

of Kalimantan struggling to govern in the context of massive corporate oil palm expressed his frustration at precisely this predicament: 'I ask the companies to report to my office but they

never come.' Hence for governments too, farmland investment is a risky business which can build their power, or leave them vulnerable and exposed. As Sarah Martin and Jennifer Clapp

demonstrate (Martin & Clapp in press), the role of states in brokering the relationship between farmland, agricultural production, and finance has mutated over time. So too has the political risk run by ruling regimes, and with it their capacity to protect investments.

The political risks of farmland deals in the global south are well recognized. They help to account for why only 20-30% of the land deals reported during the 2008-9 bubble were

implemented (Anseeuw et al. 2012b, vii; Deninger 2011, 224; Smalley & Corbera 2012), and

why institutional financiers and fund managers commit only 1% of their money to this asset class (Fairbairn 2014, 2). Yet farmland deals do proceed, and remarkably, they occur in parts of

the global south where land rights are poorly defined (Deninger 2011, 218, 224). How, then, do agribusiness firms, and their financial backers, mitigate political risks and proceed to invest

funds? I explore this question by considering, in turn, the four 'powers of exclusion' agribusiness ventures must somehow deploy: force, law, market, and legitimation (Hall et al.

2011). I pay particular attention to legitimation, which cross cuts the other powers and highlights their fragility. My analysis draws upon the rich set of writings on the so-called global


land grab that appeared in several special issues of journals in the period 2011-13,

supplemented by my current research in Indonesia's oil palm zone.

FORCE

Although the term land grab served a useful polemical purpose in 2008, on reflection is it clear that land cannot in fact be grabbed, because it stays where it is. The most forceful action that agribusiness firms can take in relation to farmland is to exclude people from it, by means of fences and armed guards. But farmlands' extensive nature makes the direct use of force an expensive solution, and politically risky. Farmland acquisition is legitimated by both transnational investors and host governments in terms of the benefits it brings to host-country populations: jobs, infrastructure, rising GNP. Evictions and armed guards indicate that legitimation has failed. Whether investment deals require the host government to supply

security, or permit the investor to mount a private guard, the host government is involved in authorizing the use of force against its own population. If the agribusiness corporation and/or its financial backers are identified as 'foreigners,' the regime's comprador character is exposed, and political risks intensified.

Investments may be enabled by the prior and ongoing exercise of military force, when armies

and militias turn their attention to money-laundering and revenue generation. In Burma, military-private partnerships and resource concessions have emerged since the ceasefire among contending armies near the Chinese border (Woods 2011). In Colombia, para-military forces violently evicted peasant cultivators, and set about re-colonizing 'waste' or 'abandoned' land with demobilized militiamen organized to grow oil palm (Grajales 2013). In Bangladesh, violent coalitions of politicians, government officials and businessmen, backed by armed retainers, alternately evict farmers or hold them in place, if they need their labour (Adnan 2013). Notably, these three violent and excessively risky scenarios did not involve transnational

investors, at least not overtly: the visible front was national capital.

Forceful exclusion may also be achieved by building infrastructure that transforms the physical environment in durable ways, creating new 'facts on the ground' that sever connections and

render old ways of life impossible. Building roads, re-routing rivers, and planting perennial crops that occupy land for more than a generation are examples of 'infrastructural violence' of

this kind (Rodgers & O'Neill 2012). Their importance is recognized by the insistence of the global indigenous people's movement that consent to land alienation or transformation must

be prior. After agro-forests have been bulldozed, or pastures and fishing grounds destroyed, affected population often register protest through practices such as blockades, squatting, arson

and theft (Borras & Franco 2013, 1733-4; Fairbairn 2013, 338; Kenney-Lazar 2012, 1033), but they cannot restore the status quo ante. Investors may attempt to buy peace with small ad hoc

concessions or gifts to make a headache go away. Oil palm companies in Indonesia call this practice 'dipanadol' (to hand out panadol, a headache medication), and maintain a budget line

for the purpose, under the label 'social grant.' Once the infrastructure is in place, adequate

redress is not possible. Hence investors and affected populations are locked into a relationship


that is permanently antagonistic and recurrently violent, yet endures because neither side has a

way out.

Infrastructural transformations also tie investors to host governments, and make them hostage to rent-seeking demands. Government officials, politicians and militias may extort fines, penalties, fees, and unofficial payments, knowing that the investor cannot simply pull out. Collusive coalitions protect investors for a price, but it is force, not law or legitimacy, that

sustains them. Investor risk is much lighter when land deals involve the short term lease of extant farmland for annual crops. If costs turn out to be too high, or yields and prices

disappointing, the venture can be abandoned. But ready-to-use farmland rents out for a high price, so huge profits cannot be expected. Fund managers reportedly find normal returns of 3-7% from productive use of farmland 'profoundly uninspiring' (Fairbairn 2014, 9). To secure high returns, they expect to combine use of the land with an appreciation in value gained by transforming it through new infrastructure, a shift in its legal status, or a spectacular rise in investor interest (Fairbairn 2014, 9-10; Li 2014b).

MARKET Markets work poorly as a mode of exclusion in relation to large farmland deals in the global

south for two reasons. First, as I noted earlier, land's life giving affordances make it an awkward, resistant, or incomplete commodity. Technically, it can be commodified (made private, alienable, separated into lots, inscribed in documents, and attributed value) but the 'social function' of land makes land deals vulnerable to push back (Li 2014b; Prudham 2009).

Investors may think they are making a straightforward market transaction, only to discover that their acquisition is 'shot through with political, legal and coercive power' (Hall 2013, 1594). The

second reason is scale. With some notable exceptions, which include Australia (described by Larder et al this issue), and the post-Soviet region (Visser et al. 2012), parcels of farmland of a

scale that would interest transnational agribusiness investors are not readily available for sale or lease through 'normal' market channels. Only state agencies can make large landholdings

available. In much of the global south, state agencies do this by classifying land as state property, abrogating pre-existing collective and individual rights, by-passing local land markets, issuing licenses, and installing investors of their choice in a non-market, monopoly position

(Cotula 2013, 1611).

Although large scale farmland itself is usually not for sale, governments attempt to legitimize land deals in market terms, by stressing that foreign capital is needed to make underutilized

land productive. The need for investment funds has become more pressing in the context of structural adjustment and diminished state capacity to levy or borrow funds to pay for

infrastructure (Sassen 2013, 41-2). Yet for reasons I outlined above, investors willing to build expensive infrastructure are not easy to find: high risk puts them off. Some of the land deals

proposed in recent years require so much investment that they are 'likely beyond the capability of even the largest transnational corporations' (Edelman 2013, 497). In place of over-

capitalized investors urgently seeking places to put their funds (Araghi 2009; Harvey 2003;


McMichael 2012), observers in Africa too often encounter 'under-capitalized capitalists' (Oya

2013, 1551), who fail to provide infrastructure or transform the landscape as they promise (Baglioni & Gibbon 2013, 1561). Failure to invest leads some observers to withhold the label

'investor,' and call the parties mere 'land acquirers' instead (Anseeuw et al. 2012a, 21).

Insufficient capital exposes would-be 'investors' to additional political risk. An analysis of land deals in Madagascar explored the fate of small to medium size European agribusiness firms bearing only the aptly named 'seed money' but inspired by 'a vision and a plan.' The plan was to acquire 50-99 year leases for 'large-scale plantations (from 5,000 to 100,000 ha) based on mechanization and on a wage system' (Burnod et al. 2013, 362). Inadequate capital obliged these firms to by-pass or truncate licensing procedures in order to create 'trial and show-case'

projects. Their hope was that these trial projects would be impressive enough to attract major financing of the type potentially supplied by global farmland funds, major banks, and institutional investors (Fairbairn 2014). With funds in place, proper permits would follow (Burnod et al. 2013, 363). While these agribusiness firm understood their presence in business

terms, local government officials placed them in a series with development projects, and expected them to supply the district with roads, wells, schools and health facilities (Burnod et al. 2013, 371). Excessive expectations that intrude on profits are a further source of political risk.

LAW

Law is one tool investors can use to protect themselves against political risks such as expropriation, extortion, and honest but unreasonable demands. Yet land laws are often ambiguous and contested, and the state that makes law must be 'unbundled'(Wolford et al. 2013, 189). Some kinds of law (typically, customary laws that recognize individual and collective property rights) have to be miss-recognized so that other laws favourable to large

scale investments can be put in place. But which state agencies have the authority to make these changes, and can they defend them against competing laws and claims? In Madagascar in

2008, a government was toppled over a massive deal that assigned 1.3 million ha to the Korean Daewoo corporation. The deal was revoked. Smaller investors who continued to seek licences

had to navigate a tangled web of competing state agencies , often intent on extorting rents. Permission granted by local powers (customary authorities, the mayor) was challenged by

higher levels of government. Conversely, permission granted by a central authority failed to hold on the ground (Burnod et al. 2013). The situation in Mozambique, Laos and Cambodia is

similar (Baird 2013; Dwyer 2013; Fairbairn 2013), and numerous studies of land acquisition for oil palm in Indonesia confirm the contentious status of land law and its deeply conflicted implementation (Colchester et al. 2006; Sirait 2009).

If investors manage to take control over land they have been 'granted,' ambiguities in laws and licensing expose them to continuous extortion from law-making agencies, including 'customary'

authorities who periodically levy fines. In Indonesia's oil palm zone, the proliferation of environmental and social standards further exposes investors to extortion by officials, journalists, and NGOs that threaten to expose their deficiencies (McCarthy 2012; McCarthy &


Zen 2010). Like investors in Madagascar and Mozambique, they find themselves welcomed, but

not protected (Burnod et al. 2013, 368; Fairbairn 2013, 337). 'Inexperienced investors ... sailing into uncharted waters' fare worst (Anseeuw et al. 2012a, 30).

To mitigate such risks, agribusiness firms and their financial backers may seek protection from transnational investment law, which commits states to treat foreign investments according to specific legal standards, and to submit to arbitration in the case of dispute. Three thousand bilateral investment treaties had been signed by 2011, indicating that both investors and host governments consider them important (Cotula 2013, 1612-4). The purpose of these treaties is to juridify investment disputes and defuse their political charge. But the politics re-emerges, as sub-national authorities compete over legal jurisdiction, and debate the proper way for land to

fulfil its social function. Nor do transnational bodies speak with one voice: they make both commercial law, and human rights law, which may contradict each other and re-open a space of debate (Cotula 2013, 1617-9; Ferrando draft).

The difficulty of securing exclusion by means of national law or transnational investment law has led to an increasing emphasis on securing the consent of affected populations. This is a remarkable and surprising development, as it goes against the argument long promoted by the World Bank and other development agencies that legal certainty is a necessary pre-requisite for

investment (Hetherington 2012; World Bank 2003). The need for investors to secure 'free, prior, informed consent' (FPIC) is a core demand of indigenous peoples' movements and it was

enshrined in the UN Declaration on the Rights of Indigenous Peoples, 2007 (Li 2014a). Investors often see the benefit: if a deal is considered legitimate by people on the spot, they may be able

to avoid costly and inconclusive legal struggles and move ahead more swiftly with their plans. In this spirit, the World Bank and the FAO have produced codes of conduct, standards, and rules

for accountability with the hope that investment 'done right' will minimize harm, and maximize 'win-win' outcomes (De Schutter 2011; Deninger 2011; Deninger et al. 2011; Li 2011, 292-3).

More cynically, an emphasis on correct procedures for large land deals may help to foreclose debate over competing development models, often smallholder based, that do not hinge on such deals (Borras et al. 2013, 172-4; De Schutter 2011; Ferrando draft). Securing consent is itself a fraught political process. When customary rights are recognized but

'traditional leaders' do not consult 'their people,' for example, 'it is difficult even for an investor with good intentions to initiate transparent process of land acquisition'(Anseeuw et al. 2012b,

40). Investors and their government allies may circumvent consent by means of covert deal-making, or the kinds of infrastructural violence outlined earlier: bulldozing standing crops at

night, or imposing other forms of duress (Colchester & Chao 2013). When consent is used as a strategy to by-pass due legal process, it increases risk for the affected population. It increases

investor risk as well, as it fractures communities and makes any settlements they achieve chronically insecure.

LEGITIMATION


Here I want to follow through on my earlier observation that the central role of states in

authorizing land deals makes state authority vulnerable, when deals go sour. Clearly, when state institutions claim property rights over land, and also authorize land deals, the

'opportunities for rent seeking by state officials ... are gigantic' (Sikor & Lund 2010, 15). But even virtuous investors and virtuous governments earnestly seeking to improve peoples'

welfare can run into trouble when land deals undermine previously viable livelihoods (Li 2007). Inevitably, they provoke debate. Was consent really free, prior and informed? Can one

generation really agree to disenfranchise another? Can chiefs disenfranchise their people? Can men disenfranchise women? Were the engineers who designed the scheme competent? Did they take all the relevant factors into account? If not, who is responsible for the adverse effects, and where can the people so disenfranchised seek redress? More often than not, the literature shows, people who have lost their land and livelihood turn to their governments as a site of protest and redress, because governments broker these deals in the name of livelihood improvement (Anseeuw et al. 2012b, 38). Transnational agencies and

development banks that provide finance for land deals are also being held accountable, and

seek to ensure national governments conform to standards and rules, although the challenge is huge (Borras et al. 2013, 167). In a landmark case, a transnational network of activists successfully challenged the International Finance Corporation for its failure to meet its own performance standards for approving loans to the global oil palm giant Wilmar International. But the remediation proposed by the IFC's Compliance Advisor/Ombudsman stopped far short of restoring the land and livelihoods of the affected groups. Wilmar cut short the mediation process by selling the troubled plantations to a company less concerned about its reputation (Colchester & Chao 2013, 12, 198-200). So far, only governments can effectively be held accountable for the deals they approve, and harms that ensue. Investors and their financers find ways to wriggle away.

The prominence of states in brokering deals and carrying out expropriation highlights the

importance of legitimation, especially for democratic states which 'must explicitly justify to the dispossessed and to the public at large why expropriating property from one group for the

benefit of another serves a 'public purpose.' They cannot rely on mystification. Their practices and rationales are exposed for all to see (Levien 2013, 383). Levien's research in India shows

that dispossession may achieve legitimacy, if the benefits are real, and fairly distributed. His example is the expropriation of land for industrial and residential construction in India. In Nehru's era, state-enterprises acquired land to build steel towns, as part of a widely supported

strategy of state-led development. Employment was emphasized, and one study showed that 58% of the people who were displaced by mill construction obtained permanent jobs in the

steel industry (Levien 2013, 386). In the contemporary period, in contrast, the Indian state is operating more like a land-broker, using its powers of expropriation to make land available for

property developers and speculators. Land acquirers, in turn, use the land to attract finance. Vast profits are made without accomplishing a social purpose. Evictees see their former land

increase greatly in value, and feel robbed. Jobs for ex-farmers are scarce (Levien 2013, 399). Hence there is more opposition, although the picture is complicated by the diverse skills, assets


and networks of dispossessed farmers, some of whom are able to use compensation money to

invest in new enterprises, while others become destitute (Levien 2012).

Privatizing public functions, handing over provision of infrastructure and investment to the private sector, degrades the state's role and authority, but as Levien shows, expectations

formed in previous eras may continue to provide grounds for popular critique. In China, there are continuous, dispersed but cumulatively massive protests against the conduct of officials

who privatize public assets such as land for public gain. Protestors draw on a range of idioms, including Jade Emperors, chairman Mao, and the rights guaranteed in Chinese law (O'Brien & Li 2006; Walker 2008). In Vietnam, argues Sikor (2012), citizens still see the state as the provider of entitlements and expect it to be responsive to their need for access to productive resources such as land and credit. They have little access to legal redress, nor can they enforce state accountability, but popular expectations about what the state should be, accumulated and sedimented over several generations, do have an effect on how state power is exercised. In Ethiopia, the government has been concerned to avoid evicting smallholders, and favours

outgrowing schemes that offer them a role. But outgrower schemes are still monopolies and

outgrowers' livelihoods are severely jeopardized by adverse prices. Officials who took 'huge risks with the welfare of smallholders' faced a political challenge (Lavers 2012, 807-9). In Indonesia, in contrast, I have seen no evidence that government officials or politicians worry about what will happen to oil palm plantation workers, contract farmers and their families (around 10 million people thus far), should the 10 million hectares already planted with this industrial mono-crop succumb to ecological or price collapse. They ought to worry about the political fallout, but the immediate opportunities for rent-generation are so enormous that in practice, they do not. CONCLUSION

Both thuggish and democratically responsive regimes pose political risks for investors. Deals

may stabilize or unravel, as do the regimes that sponsor them. Previously integral states may be undermined by land deals, as Sassen observes (2013). Or previously thuggish regimes may be

formed into more legitimate regimes by these deals, which offer opportunities to 'launder power as authority'(Sikor & Lund 2010, 14). Democratic debate about the proper disposition of

land may be stimulated by land deals, or it may be disallowed. Land deals may be accepted by the affected population, or rejected by them for varied but specific, identifiable reasons. There is, in short, no linear trajectory that holds across the diverse conjunctures examined in the

recent literature on land deals. The bad news for investors is that political risk in land deals is endemic. Neither law, nor market purchase, nor the posting of armed guards provide definitive

means for excluding other claimants. The take-home message for scholars, nicely articulated by Borras and Franco (2013, 1741) is that the 'unit of inquiry should be the dynamics of change in

social relations' (emphasis in the original), since relations of access and exclusion are always going to be social and political to the core.


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