The Contractualization of Human Rights - State-Investor Contracts in the Agri-Business Sector

Abstract: An increase in large-scale agricultural investment in land has been going on since the global food crisis in 2008. Import-dependent countries have acquired large plots of land to secure food supplies. The investments had disastrous impacts on the local communities living on the land before the investment took place. Many have been expropriated and evicted from their lands, affecting their human rights to property, livelihood, access to food and many other interrelated rights. Meanwhile, it remains hard to hold companies accountable for their business conduct, although soft law in the form of the Guiding Principles has imposed a duty to respect human rights on business enterprises. Analyses of the State-investor contracts that regulate the investments show that many of these contracts do not take into account the risks for human rights. In reaction to these deficient contracts, policy initiatives in the form of guides for negotiators have been developed because the contract can influence the impacts on human rights. They recommend, in fact, to integrate soft law mechanisms into the contracts. This thesis investigates the extent to which the combination of soft law and contract can provide better protection for the human rights risks that come with large agricultural investments. It identifies the role of the contract on the investment project and explores the value of soft law in the particular context of State-investor contracts. Focus is limited to sub-Saharan Africa. The findings of this thesis indicate that the role of the contract is significant for human rights protection, especially when domestic law is weak. Soft law on human rights provides useful guidance on how the adverse impacts for human rights can be prevented and mitigated. Its value increases in the specific context of contracts, because the effect of integrating soft law in the contract means that the commitment to comply with soft law becomes a binding obligation on the parties, in fact, a ‘contractualization’ of human rights. The integration of soft law in the contract pushes forward respect for human rights, in the spirit of the Guiding Principles. However, a shortcoming lays in the fact that the contract does still need to be performed. This remains a challenge in practice, partly due to capacity constraints to effectively monitor and enforce compliance by the State, but also due to conflicts of interest. The contractualization of human rights can thus contribute to better protection to the extent to which it is adequately performed and enforced in practice.