Making an Offer They Can't Refuse: Corporate Investment in Africa and the Divestment of Indigenous Land Rights

INTRODUCTIONIn 1884, the counts, barons, colonels, and kings of thirteen European nations sat down in front of a large map of Africa in Chancellor Bismarck's Berlin residence.1 By February 1885, they had partitioned the map of the African continent piecemeal into colonies over which they would claim ownership.2 They based these claims on the fiction that Africa was terra nullius and thus open for conquest.3 The following half-century saw a concerted effort to plant the flags of Europe in African soil.4 Through decolonization in the second half of the twentieth century, however, those states gradually emerged as independent.5While the traditional foreign claims to Africa on the political stage have ended, corporations have nonetheless continued annexing African land into the modern era through economic investment.6 With indigenous, informal forms of property ownership vulnerable to exploitation, foreign developers and investors have engaged in an international "land grab" of vast tracts of African land.7 Corporations are often able to collude with the government to acquire the formal rights to such occupied land, and the incentive to do so is considerable: the estimated value of such land in the developing world that is held and occupied, but not legally owned, weighs in at $9.3 trillion.8While the threat of foreign corporations to the property rights of indigenous peoples has recently gained recognition as a growing issue, there has been little effective national legislation or protection implemented within African states to address it.9 In addition, there has been no international regional instrument for Africa governing the rights of indigenous peoples.10 Furthermore, the international instruments at a universal level are less integrated into the African human rights system than that of other regions.11Part I of this Note explores the nature and scale of the indigenous agrarian communities in several African states, as well as the state of foreign investment in these areas and its impact on indigenous communities. Part II analyzes the current body of international law on the property rights of indigenous peoples, as well as the development of national laws in Africa. Part III first demonstrates that the current national legislation and international treaties are unlikely to protect the land rights of indigenous peoples effectively due to a lack of national incentive and the insufficiency of the international framework. Part III further argues that instead, an effective solution should come from the home states of corporate actors, in the form of modifications to the bilateral investment treaties to impose affirmative human rights obligations on corporations.I. BACKGROUNDA. The Nature of African Communal Property into the Modern EraTo understand fully the extent and impact of foreign purchases of land in African nations on indigenous communities, it is helpful to examine the traditional nature of property rights in rural African communities as compared to the formal institutions of titling and ownership associated with modern corporate transactions.12At the end of the 19th century, before the encroachment of European political powers, most land resources in Africa were used primarily as commons.13 The characteristics of the commons defy Western ideas of private property owned by individuals: it is held as a trans-generational asset, managed by the community at different levels of social organization, and used in function-specific ways such as grazing, recreation, cultivation, and transit.14 The commons area formed private property owned by the group, but it defied the traditional requirement of title granted from a national authority.15The lack of formal ownership of land permeated pre-colonial society across the continent.16 In South Africa, for example, the concept of individual ownership of land was quite limited.17 The system operated according to status relationships between individuals and their obligations to one another with regard to communal property, rather than by an individual's ability to assert property claims against others. …