Farmland Investments and Water Rights

The report examines the intersection of domestic law, international investment law, freshwater law, and human rights law in the context of large-scale agricultural investments in Africa. It highlights how foreign investors often secure formal statutory water rights through contracts and treaties that prevail over the informal customary rights of local communities. The document emphasizes the increasing pressure on water resources due to population growth and climate change, particularly in Southern and Northern Africa. It analyzes the role of river basin organizations, such as those for the Senegal, Niger, and Lake Chad basins, in managing transboundary water resources. The report concludes that host states must integrate these parallel legal regimes to ensure sustainable water management and protect the human right to water.

• Foreign investors typically possess a stronger legal position than local communities because they hold formal statutory rights granted via contracts, which generally prevail over the informal customary rights held by local populations.
• International investment treaties provide additional safeguards for investors, allowing them to challenge host state actions—such as water reallocation during droughts—through international arbitration based on standards like 'fair and equitable treatment' or prohibitions against indirect expropriation.
• Climate change is projected to significantly increase water stress in Africa, with 350600 million people at risk by the 2050s, potentially reducing agricultural yields and the amount of arable land available.
• International freshwater law, specifically the 1997 Watercourses Convention, mandates the principles of 'reasonable and equitable use' and the 'no-harm' principle to prevent states from depriving co-riparian states of their equitable share of water.
• Certain African river basin regimes, such as those for the Senegal River and Lake Chad Basin, have relinquished unilateral sovereign control in favor of collective management, meaning host states cannot unilaterally authorize farmland investments in these areas.
• There is a binding obligation under customary international law for states to conduct a transboundary environmental impact assessment when a planned activity, such as a farmland investment, may cause transboundary harm.
• International human rights law establishes the right to safe and clean drinking water as a fundamental human right, requiring host states to prioritize vital human needs over the commercial water use of farmland investments.
• Investment contracts often include 'stabilization clauses' that can restrict a host state's ability to introduce new environmental or social regulations without compensating the investor.
• In Zambia, water rights are often linked to land ownership, and the legal system shows a trend of converting customary land into state land, which facilitates foreign investment at the expense of local users.
• In Mozambique, despite a progressive legal framework and initiatives like the PRO-Parcerias project, the non-registration of small-scale water use makes local users 'invisible' and vulnerable to registered commercial users.

APA

Mbengue, M. M., & Waltman, S. (2015). Farmland Investments and Water Rights. International Institute for Sustainable Development. https://www.iisd.org/system/files/publications/farmland-investments-water-rights-legal-regimes-at-stake.pdf

Chicago

Mbengue, Makane Moïse, and Susanna Waltman. Farmland Investments and Water Rights. International Institute for Sustainable Development, 2015. https://www.iisd.org/system/files/publications/farmland-investments-water-rights-legal-regimes-at-stake.pdf.

Wikipedia

{{cite report |last1=Mbengue |first1=Makane Moïse |last2=Waltman |first2=Susanna |title=Farmland Investments and Water Rights |publisher=International Institute for Sustainable Development |date=May 2015 |url=https://www.iisd.org/system/files/publications/farmland-investments-water-rights-legal-regimes-at-stake.pdf |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{mbengue2015farmland, author = {Mbengue, Makane Moïse and Waltman, Susanna}, title = {{Farmland Investments and Water Rights}}, institution = {International Institute for Sustainable Development}, year = {2015}, month = may, url = {https://www.iisd.org/system/files/publications/farmland-investments-water-rights-legal-regimes-at-stake.pdf}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }