The New Enclosures? Polanyi, international investment law and the global land rush

Seven decades after its first publication, Karl Polanyi’s The Great Transformation remains one of the most insightful readings about the socioeconomic changes associated with the Industrial Revolution, and the ways in which law facilitated, or countered, moves towards the commodification of land at that time. As today’s global land rush brings competing land claims into contest, new transitions are occurring between more commodified and more ‘socially embedded’ conceptualisations of land. Using Polanyi’s framework, this article analyses the role of international law in these processes. International investment law construes land as a commercial asset, can facilitate access to land for foreign investors and imposes discipline on the exercise of regulatory powers in land matters. But shifts in the political economy that underpins international investment law and growing recourse to international human rights law are creating new opportunities for reflecting the non-commercial (cultural, social, political) relations within which land rights remain embedded in many societies. When contrasting conceptualisations of land collide, the relative strength of legal rights and enforcement mechanisms become particularly important. Ultimately, the legitimacy of international law to mediate between competing land claims will depend on the extent to which it can recognise the multiple values that society attaches to land.