Abstract

Excerpted From: Gabriele Wadlig, The International Law of Land (Grabbing): Human Rights and Development in the Context of Racial Capitalism, 25 Chicago Journal of International Law 479 (Winter, 2025) (361 Footnotes) (Full Document)

In an article published nearly two decades ago, Philip Alston interrogated the disconnect between the realms of human rights and development, utilizing the Millennium Development Goals (MDGs) as his analytical fulcrum. Along with their successors, the Sustainable Development Goals (SDGs), the MDGs have shaped international and transnational efforts to promote human development. Back in 2005, Alston discerned a parallel, yet, disjointed trajectory between the spheres of human rights and development practice, noting a mutual indifference to the potential synergies and intersections that could--and should--be harnessed. He sharply critiqued the human rights community for its reticence in engaging with the MDGs. Alston's critique has resonated with human rights and development practitioners. Members of the human rights community have been closely engaged in the design of the 2030 agenda, including the SDGs, targets, and corresponding indicators.

The land rights community, in particular, has embraced the SDGs, as their negotiations coincided with increased attention to what became known as the ““new global land grab.” Following the financial crisis and a global spike in food and commodity prices in 2007-08, processes of land and resource grabbing accelerated and became a focal point in struggles at the intersection of human rights and development. Drawing on Borras et al., I understand land grabbing as “the capturing of control of relatively vast tracts of land and other natural resources tracts of land and other natural resources through a variety of mechanisms and forms that involve large-scale capital that often shifts resource use orientation into extractive character.” Large-scale land acquisitions by national governments, private investors, transnational corporations, and international nongovernmental organizations, among others, have led to large-scale displacements and other far-reaching negative consequences on the livelihood and human rights of Indigenous Peoples, marginalized groups, and the urban and rural poor in countries of the Global South and beyond.

In the early 2010s, the human rights community largely succeeded in (re)framing the ongoing “global land grab” within a human rights perspective, as opposed to the more constricted “responsible investment” lens favored by the development sector. In the spirit of collaborative governance, various guidelines and other instruments were adopted traversing the border of international human rights and development law. First, Olivier De Schutter, the former UN Special Rapporteur on the right to food, issued a Set of Minimum Principles and Measures to Address the Human Rights Challenge posed by Large-Scale Land Acquisitions and Leases in 2009. These were followed by several instruments issued by international organizations involved in the development sector, such as the Food and Agriculture Organization (FAO), the World Bank, and UN-Habitat. One notable example of instruments on human rights and development law is the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests (hereinafter VGGT), issued in 2012.

Despite the proliferation of international instruments trying to heed Alston's call, global land grabbing and land dispossession continue seemingly unabated in “most of the world.” These failures are regularly attributed to poor implementation of international law and disregard of international human rights law by governments in the Global South. Yet, such a diagnosis overlooks the deeper, systemic issues within these frameworks themselves. This Article, thus, turns to the historical and contemporary international legal frameworks that govern land tenure and examines how these have evolved from colonial practices to current development paradigms. Whereas land grabbing is often examined as contrary to and in violation of the international legal and human rights framework, this Article contends that it is largely a corollary not only of uneven power dynamics but also of an understanding of land as a resource embedded in and reenacted by these frameworks.

Positioning the field of land rights and land tenure governance as an exemplar of a burgeoning convergence of human rights community and development, this Article probes into the nature of this specific convergence. It shows that, counter-intuitively, the adoption of human rights language may indeed promote and perpetuate the implementation of technologies of property and ownership, which alarmingly echo colonialist techniques. Such practices not only undermine the transformative potential heralded by Alston but also risk entrenching existing power dynamics that facilitate the global land grab.

The analytical cornerstone of this exploration is “tenure security,” a concept central to the rise of an international “land governance orthodoxy.” The provision and strengthening of tenure security--especially when it comes to tenure security for the poor, for vulnerable and marginalized groups, including women, peasants, Indigenous Peoples, and local communities--is almost unequivocally regarded as a desirable goal of public land policy and as crucial for the successful navigation of a plethora of global challenges such as poverty, hunger, and the climate crisis. However, as this Article demonstrates, the notion of tenure security embedded in international law and global governance instruments provides a veneer of legitimacy for practices of formalization that lead to so-called “security” for only few but to dispossession and displacement in and of most of the world (including vulnerable and marginalized populations in what is often referred to as the ““Global North”).

Even though the evidence for the benefits of land formalization is mixed at best, numerous formalization and titling programs and initiatives have been launched in countries of the “Global South” since the rebirth of land reform as land tenure reform in the 1990s. In the late 2000s and early 2010s, the international donor community vigorously promoted formalization as the primary policy solution to address issues of land grabbing. Formalization of rural land has long been considered fundamental to its privatization, commodification, and financialization. And while some consider this process crucial for economic development, many have shown how the systematic formalization of land “breed[s] exclusion and fail[s] in a distributional sense.” Systematic land titling and formalization efforts have been described as “mechanism[s] justifying dispossession” leading to “dispossession through land titling” and “licensed exclusions.” Similar processes can be observed in many parts of the world, in rural as well as in urban contexts, including in Tanzania, Laos, Ethiopia, Mexico, Papua New Guinea, Bangladesh, and Colombia.

A very vivid picture of the link between formalization and dispossession presents itself in Cambodia, where land titling efforts have led to widespread displacement and marginalization of rural and Indigenous communities. In Cambodia, programs like the Land Management and Administration Project (LMAP), initiated in the early 2000s with support from international organizations, aimed to formalize land ownership under the assumption that secure property rights would encourage investment and development. However, this initiative instead catalyzed a wave of land grabs by powerful domestic and foreign interests, often in collaboration with government authorities. Rather than providing security, it led to greater insecurity. Spurred by the European Union's “Everything But Arms” initiative, which granted trade benefits for imports from least developed countries, investment interest in Cambodia for agricultural production, primarily rubber and sugar plantations, skyrocketed. Consequently, over the course of only a few years, concessions over nearly 2 million hectares of land were granted to foreign and domestic companies, and millions of people were dispossessed and displaced. Moreover, all efforts to formalize collective land rights of Indigenous Peoples living in the Northeast of the country ultimately failed. While waiting for their collective titles, concessions over vast areas that had been held for centuries by Indigenous communities were granted to corporate investors, and subsequently turned into rubber plantations. These concessions were not illegal or extra-legal. Rather, they were part and parcel of the Cambodian Land Law 2001, a law widely understood to be drafted by international donors and experts. The limited success of collective land titling was to carve out the village areas from the concessions and save them from destruction. Yet, without their hunting and farming grounds, these Indigenous communities had lost the means to sustain themselves, rendering the limited success of protecting village areas from destruction largely meaningless.

Building on the observation that tenure security spans a range of often conflicting meanings and interpretations, this Article centers on its semantic ambiguity to reveal critical dynamics in international law and governance. At one end of the spectrum, tenure security suggests “a set of relationships ... that enables one to live in one's home in security, peace and dignity,” while at the other, it denotes “tenure resembling full private ownership.” On one end, tenure security is associated with social relationships and the right to live in one's home with stability and peace, emphasizing collective well-being and basic human needs. Here, tenure security serves a social function, rooted in community, relationships, and human rights. On the other end, tenure security reflects an economic, individualistic view of ownership: land as a private, risk-free asset primarily held for investment. This perspective implies a model of tenure that closely resembles full ownership, with exclusive rights to use and transfer land, aligning with more capital-driven or market-oriented interests. In this sense, tenure security prioritizes private property rights, positioning ownership as a fundamental guarantee of security. It is precisely this semantic ambiguity inherent in the concept of tenure security that allows it to both amalgamate and exemplify the diverse and seemingly contradictory approaches to land within contemporary legal and other ordering frameworks. Rather than settling on a single definition of tenure security, this Article explores how its ambiguous language interacts with real-world practices, how aspirations clash with discursive and material limitations, and how both individual and collective agency are constrained by structural forces. This interplay, the Article suggests, can thwart even the most well-intentioned human rights efforts and initiatives, particularly those rooted in liberal ideals and concepts.

Despite considerable debate among scholars in, e.g., economics, development studies, and anthropology, tenure security has, for the most part, escaped the focused scrutiny of international law scholars. Responding to the relative dearth of international law scholarship engaging with this concept, this Article explores how the provision and strengthening of tenure security has become central to agricultural development efforts by leading actors in the development sector, including international organizations and bilateral development agencies, and how tenure security has ultimately become a cornerstone of the land rights agenda enshrined in the SDGs. It makes the case that in a world where colonial legacies persistently shape land relations and where global inequalities are starkly mapped onto landscapes, the ostensibly technical discourse surrounding tenure security must be considered a critical site for challenging the hegemonic structures of international law and must no longer be disregarded by international law scholars.

First, under the guise of promoting tenure security, international organizations and bilateral development agencies have promoted and supported land tenure reforms focused on land formalization and, thereby largely equated tenure security with land alienability. Such reforms most commonly entail the establishment of a liberal property law regime and the implementation of some form of land registration or land titling. Whereas the link between land formalization and increased agricultural productivity is at best inconclusive, land tenure reforms have been widely criticized for their uneven and often adverse impacts on vulnerable populations. Notwithstanding the questionable economic impact and the serious social drawbacks of such reforms, land formalization remains the “the most utilized tool” within “the toolbox of strategies for strengthening land tenure security,” causing many to wonder “why and how bizarre 'development’ ideas gain such immediate and widespread currency.”

Second, international human rights instruments and actors subscribe to land formalization as a primary mechanism to provide tenure security despite almost unequivocally rejecting land commodification and financialization. Formalization is the go-to policy prescription no matter the narrative underpinning calls for tenure security; whether it is considered crucial to promote investment, productivity, and land markets (commonly associated with development actors), or to support the human rights of peasants and women and Indigenous Peoples' struggles for justice (commonly associated with human rights actors). The human rights framing thus lends renewed legitimacy to ““development” interventions that might otherwise face widespread disapproval.

The article further argues that the discourse and practice of tenure security in international law are rooted in colonial ontologies and the technologies of colonial acquisitions that are foundational to global racial capitalism. By embracing land formalization as its primary method, efforts to provide or strengthen tenure security underlie the global proliferation and entrenchment of what Brenna Bhandar calls, “racial regimes of ownership.” In other words, the actualization of tenure security through land formalization continues to create and perpetuate racial hierarchies, systemic inequality, and “cultures of dispossession” prevalent across today's world.

The international instruments aimed at the provision of tenure security (such as the VGGT or the SDGs), with their underlying narrow understanding of land and human-land relationships, along with development agencies and human rights actors, are actively implicated in what Tania Murray Li has described as a process of “assembling land as a resource.” Human-land relationships are narrowly constructed through ideas of property, ownership, or territory, always implying a relationship of human mastery over nature rooted in Western ontologies shaped in the colonial encounter. In other words, the narrow understandings of land and human-land relationships embedded in contemporary international land governance instruments have distinct colonial roots, which persist to this day.

By examining the racial capitalist roots of the discourses and technologies that underpin, operationalize, and enact the concept of tenure security today, this Article seeks to dismantle one of the mechanisms through which racial capitalism remains a structuring force in contemporary international law and global governance. International law scholars, especially those who consider themselves part of the Third World Approaches to International Law (TWAIL) movement, have long sought to dismantle the social hierarchies inscribed in and perpetuated by international law and global governance. Unravelling manifold colonial and postcolonial continuities, they underscore the centrality of racial hierarchies within what are “ostensibly neutral international law and institutions.” However, until recently, racial capitalism has rarely been foregrounded in this critique. By highlighting how racialized dynamics are embedded in the concept of tenure security enshrined in international instruments, this Article contributes to the emerging body of scholarship exploring the relationship between racial capitalism and international law.

The Article is organized as follows: Part II addresses technologies of dispossession linked to racial capitalism. It shows that the concept of “tenure security” emerged in post-World War II development parlance and has taken center stage in neoliberal land tenure reforms promoted by international organizations and development agencies since the late 1980s. Understanding this historical evolution is crucial for grasping the contemporary dynamics of land tenure reforms, particularly how these reforms intersect with issues of land grabbing and dispossession in the Global South. Part III focuses on the emergence of “tenure security” in international human rights law. It appeared first in the context of the right to adequate housing, initially understood as compatible with neoliberal reforms. Later calls for providing or strengthening tenure security became central in framing large-scale land acquisitions as a human rights issue. While the commodification of land was subsequently understood to lead to the violation of a range of economic, social, and cultural rights, the formalization of land rights is seen as crucial for the realization of various economic, social, and cultural rights, especially for marginalized populations such as peasants and Indigenous Peoples. Part IV examines various forms of or visions for land formalization in development and human rights scholarship and practice, excavating the underlying understanding(s) of “land.” First, it examines the various conceptualizations of land and land governance in General Comment No. 26 on Land and Economic, Social and Cultural Rights adopted by the U.N. Committee on Economic, Social and Cultural Rights in 2022. Turning to contemporary practices of land formalization, it then argues that while there are crucial differences among the various rationales for formalization (marketability/commodification, protection/secure use-rights, ethno-justice for Indigenous Peoples), contemporary practices of formalization do not reject but reinforce a Eurocentric (post+)colonial ontology of land as a resource. Such an understanding can neither be the basis for efforts of decolonization nor broader social justice projects.

[. . .]

Through the lens of the concept of tenure security, this article has sought to excavate the contradictions embedded in the international legal framework(s) governing human-land relations as well as the co-constitutive nature of international human rights law and international development. Far from a dialogic disconnect of international development and human rights introduced by Philip Alston, this article has revealed a complex entanglement of “bizarre development ideas” and international human rights law. The article argues that the international development and human rights frameworks often perpetuate the very structures they ostensibly seek to unravel, leading to further marginalization of the already vulnerable. More specifically, the concept of tenure security embedded in international human rights and Indigenous rights law inadvertently reinforces and legitimizes land formalization practices that disproportionately secure the few while dispossessing many globally, including vulnerable populations in the “Global North.”

The convergence of development and human rights narratives in promoting land formalization reveals a crucial aspect of international land governance and the “emergent land governance orthodoxy.” Despite the fundamental differences in their origins and aims--where development agencies focus on market efficiency and economic growth, human rights actors emphasize equity and justice--their strategies coalesce around the formalization of land. The formalization of land as a contemporary practice of land tenure security is deeply rooted in colonial ontologies and technologies of acquisition. Through the establishment of regimes that incorporate a narrow ontology of land as resource and that prioritize Western ideas of property, these reforms create and perpetuate racial inequalities and hierarchies thereby enacting racial regimes of ownership.

In this way, international law and global governance instruments on land tenure carry forward colonial legacies that were primarily designed to extract and exploit resources from the colonies. Land formalization initiatives often transform land into a resource ready for investment, thereby increasing its accessibility in global markets. This process often results in the displacement of local communities who do not hold formal titles to their land, or whose cultural ties and claims to land are disregarded in formal legal frameworks. These laws continue to manifest colonial mindsets by prioritizing Western legal frameworks and understandings of property at the expense of Indigenous and communal understandings of human-land relations that do not align neatly with such models. This approach not only further marginalizes these communities but also strips them of their rights to land. Furthermore, the racial capitalist underpinnings of global land governance and, especially, the colonialist ontology of land as resource, as property to be owned, has led to the systemic dispossession of marginalized populations.

Decolonization, understood as “the rematriation of land, the regeneration of relations, and the forwarding of Indigenous and Black and queer futures,” however, requires the recognition of Indigenous Peoples' rights to land as more than resource or property claims. Even beyond Indigenous Peoples' rights to land, it requires the recognition of human-land relationships beyond property relationships. This is not to exploit Indigenous Peoples' onto-epistemologies but rather to unsettle the dominant Eurocentric understandings of land, territories, and tenure security entrenched in dispossessory racial capitalism. As Shelley Cavalieri and Lua Kamál Yuille have recently voiced, “the essential disposition--the very esprit--of property . . is inherently raced and gendered.” Hence, we must reject and unsettle these understandings of property and land along with the “premise that Black people in the Americas are dispossessed from connection to land through slavery in such a way that past and future connections to land are foreclosed.” Unsettling post+colonial concepts, categories, and techniques--including the concept of tenure security, the category of land as resource, and the technique of legal formalization as panacea for tenure (in)security--is, however, imperative for both projects of decolonization and human/ civil rights-based social justice projects. That is, beginning “from these categories [is to] concede to a world that is how the settler-enslaver wishes it to be. We must unsettle these definitions of land.”

While it is essential to move beyond these racialized and capitalist conceptions of land, doing so does not preclude the strategic invocation of international human rights law. Legal systems and rights-based frameworks, while rooted in colonial ideologies, can be appropriated to support struggles for decolonization. Yet, this use must be cautious and intentional, recognizing that such frameworks are embedded within the post+colonial, racial capitalist structures that continue to perpetuate inequalities. Thus, interrogating these frameworks and excavating their contradictions, shortcomings, and onto-epistemological bases, is essential for navigating their limitations. This involves recognizing and grappling with the fact that while international human rights law may offer limited protection in as far as demands and subjects can be made visible to it, they can simultaneously uphold the very forms of dispossession they are invoked to challenge.

In scrutinizing the centrality of formalization, this article has shown that international instruments such as the VGGT and the SDGs inherently prioritize formal legal frameworks that often fail to protect the rights of vulnerable populations. By revealing how these instruments perpetuate a narrow, formalized approach to land tenure that aligns with colonial and capitalist paradigms, the article calls for a profound rethinking of land governance. This rethinking must move beyond formalization to embrace diverse and inclusive understandings of land and tenure that truly reflect and respect the varied relationships communities have with their land. This paradigm shift is essential for advancing decolonial praxis and achieving equity and justice in global land law and governance.

Postdoctoral Research Associate, Chair of Legal and Constitutional Studies, Technische Universitat Dresden, Germany.