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Land Rights at the Time of Global Production: Leveraging Multi-Spatiality and ‘Legal Chokeholds’

Published online by Cambridge University Press:  17 July 2017

Tomaso FERRANDO
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Abstract

This article utilizes the struggles for land rights associated to two sugar cane investments in Cambodia to reflect on the interactions between the multi-territoriality of supply chain capitalism and the multiplication of local spaces of legal intervention. With a combination of legal institutionalism, critical geography and value chains analysis, the article engages with value chains as the new space and form of the global system of production and looks at the theoretical and practical implications that derive from delocalization, outsourcing and the establishment of transnational networks that cut across boundaries and jurisdictions. After discussing the human rights impact of large-scale sugar production in the Koh-Kong region, the article introduces a critical legal chain approach to unpack and make visible the material and legal threads that connect Cambodia with multiple geographies around the world. In its last part, it utilizes the multi-territorial character of production to map its complexity and introduce the notion of ‘legal chokeholds’. These are legal structures and spaces of intervention that can be leveraged by human rights scholars, activists and other actors interested in re-defining the way in which rights, bargaining power and value are distributed through the chain of production. The violations and possible defence of the land rights that occurred in Cambodia are thus presented as output of non-linear interactions between legal and non-legal elements that operate at a distance, often unaware of each other.

Keywords

global value chainland rightsinternational investmentslegal advocacytransnational law
Type
Articles
Information
Business and Human Rights Journal , Volume 2 , Issue 2 , July 2017 , pp. 275 - 295
Copyright
Copyright © Cambridge University Press 

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Footnotes

*

University of Warwick Law School.

References

1 Smith, Fiona, ‘Natural resources and global value chains: What role for the WTO?’ (2015) II International Journal of Law in Context 135 Google Scholar.

2 The notion of ‘blood sugar’ was utilized by the representatives of the Cambodia Clean Sugar Campaign when they called for a boycott of the sugar exported to Europe and benefiting from the Everything But Arms trade initiative. According to the campaigners, ‘increasing production had resulted in human rights abuses’ that required to be tackled at the origin, i.e., in the countries that were incentivizing the exploitation and that were benefiting from ongoing land grabbing. The case of EU trade policy and its link with land grabbing in Cambodia is analysed below.

3 The multi-territorial approach to human rights abuses proposed in this article has been applied and could be applied in different chains, including those that are less dependent on land exploitation or do not concern production of goods. However, it is important to remember that mapping and legal interventions are extremely subjective and political operations and should be recognized as such. Similarly, we should not overlook the risk of unexpected spillover effects that legal interventions can generate and the importance of defining strategies in the broad context of the whole value chain. For a critical analysis of law in global production and its multiple directions, see Baars, Grietje, Danielsen, Dan et. al, ‘Law in Global Production: A Manifesto’ (2016) 4 London Review of International Law 57–79 Google Scholar.

4 Tushnet, Mark, ‘An Essay on Rights’ (1984) 62 Texas Law Review 1363–1403 Google Scholar.

5 The non-linearity of the critical legal chain approach represents an essential innovation compared with the traditional vision of the chain as a set of organized and coordinated moments that operate along a thread; a non-linear understanding of the influence that non-connected hubs and geographies may exercise on each other, along with the fact that the flow of governance, power and authority not necessarily follows the direction of the goods.

6 McMichael, Philip, ‘The land grab and corporate food regime restructuring’ (2012) 39 The Journal of Peasant Studies 681–701 Google Scholar.

On large scale land acquisitions and land grabbing: Araghi, Farshad, ‘Accumulation by displacement: global enclosures, the food crisis, and the ecological contradictions of capitalism’ (2009) Review, XXXII (1), 113–146 Google Scholar; De Schutter, Olivier, ‘How not to talk about land grabbing’ (2012) 38:2 The Journal of Peasant Studies 249–279 CrossRefGoogle Scholar; Golay, Christophe and Biglino, Irene, ‘Human Rights Responses to Land Grabbing: a right to food perspective’ (2013) 34 Third World Quarterly 1630–1650 Google Scholar.

7 For a general account of the underlying situation, see Equitable Cambodia and Inclusive Development International, ‘Bittersweet Harvest: A Human Rights Impact Assessment of the European Union’s Everything But Arms Initiative in Cambodia’ (2013) http://www.inclusivedevelopment.net/wp-content/uploads/2013/10/Bittersweet_Harvest_web-version.pdf (accessed 15 March 2016); see also Malene Haakansson, ‘Stolen land. Stolen future: a report on land grabbing in Cambodia’ (December 2011) http://www.aprodev.eu/files/Trade/landgrab_aprodev.pdf (accessed 17 March 2016).

8 Sarfaty, Galit A, ‘Shining Light on Global Supply Chain’ (2015) 56 Harvard International Law Journal 419–463 Google Scholar.

9 Critical scholars like Henri Lefebvre and James Scott highlight the political and normative implications of mapping, which does not mean describing an objective world and ‘it is not the territory’. See Scott, James C, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (Yale University Press, 1999)Google Scholar; Lefebvre, Henri, State, Space, World: Selected Essays (University of Minnesota Press, 2009)Google Scholar.

See also Korzybsky, Alfred, Science and Sanity: An Introduction to Non-Aristotelian Systems and an Introduction to Non-Aristotelian Systems and General Semantics (Forest Hill, NY: Institute of General Semantics, 1973)Google Scholar.

10 The Annex to this work lists all the different moments of the anti-land-grabbing strategy that was launched at the beginning of 2006 so as to provide the reader with a useful tool to better understand the time and geography of the main interventions, the main actors who were involved and the different arguments that were adopted in each circumstance. See supplementary online Annex at https://doi.org/10.1017/bhj.2017.13

11 Baars et al., note 3.

12 Clelland offers an iceberg-shaped reconstruction of global supply chain as divided between ‘visible monetarized flows of bright value and hidden un(der)costed flows that carry dark value (the unrecorded value of cheap labor, labor reproduction and ecological externalities)’ that are extracted below the visible surface. This dissertation tries to take into account both as expression of an economic system that is structured around accumulation, dispossession and polarization. Clelland, Donald A, ‘The Core of the Apple: Dark Value and Degrees of Monopoly in Global Commodity Chains’, (2014) 20 Journal of World-Systems Research 82–111 CrossRefGoogle Scholar.

13 The notion of law as coercion is central to a critical approach to law and has been widely discussed by critical legal scholars interested in exposing the systemic injustice of the current legal and social system. For those interested in knowing more, see e.g., Hale, Robert, ‘Coercion and Distribution in a Supposedly Non-Coercive State’, Political Science Quarterly 38 (1923)CrossRefGoogle Scholar; Hale, Robert, Freedom through Law: Public Control of Private Governing Power (New York, 1952)Google Scholar; Hale, Robert, ‘Force and the State: A Comparison of “Political” and “Economic” Compulsion’, Columbia Law Review 35 (1935)Google Scholar.

Also Commons, John R, Legal Foundations of Capitalism (New York: Macmillan Company, 1924)Google Scholar; Ely, Richard T, Contract and Property in Their Relations to the Distribution of Wealth (New York: Macmillan, 1914)Google Scholar.

The first attempts by critical legal scholars to engage with Hale’s legacy are: Kennedy, Duncan and Michelman, Frank, ‘Are Property and Contract Efficient?’, (1980) 8 Hofstra Law Review 3–10 Google Scholar; Kennedy, Duncan, ‘Distributive and Paternalistic Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power’, (1982) 41 Maryland Law Review 563; andGoogle Scholar Kennedy, Duncan, ‘The Role of Law in Economic Thought: Essays on the Fetishism of Commodities’, (1985) 34 American University Law Review 939 Google Scholar.

14 Kennedy, Duncan, ‘The Stakes of Law, or Hale and Foucault!’ in D Kennedy, Sexy Dressing Etc.: Essays on the Power and Politics of Cultural Identity (Cambridge: Harvard University Press, 1993), 83–126 Google Scholar.

15 Gereffi, Gary and Fernandez-Stark, Katerina, ‘Global Value Chain Analysis: A Primer’, Center on Globalization, Governance & Competitiveness (2011), 4 Google Scholar.

16 The use of the global value chain as a methodology would provide the opportunity to focus both on the role of law in the definition of the internal forms of domination (capital-labour) and on the external implications of global production and trade on the distribution of resources and reproduction of inequality. Although extremely ambitious, the long-term objective would be to bridge the gap between World System Theory and those theorists who criticize it for losing sight with the ‘internal’ social relations of production and class struggle. See Hae-Yung Song, ‘Reorienting the Critique of the Capitalist World System beyond the Dichotomy between Trade vs. Production Relations’, Journal of World-Systems, Review Symposium on Andre Gunder Frank’s ‘Reorientering the 19th Century’ (2014).

17 According to Tate & Lyle, the owner of the refinery company in the UK, the concessions were granted to two Cambodian companies, Koh Kong International and Duty Free Shop. See United Nations Special Representative of the Secretary General for human rights in Cambodia (‘SRSG’), ‘Economic land concessions in Cambodia: a human rights perspective’ (9 June 2007) http://cambodia.ohchr.org/~cambodiaohchr/sites/default/files/Economic%20Land%20Concession%20-%20a%20human%20rights%20perspective%202007.pdf (accessed 19 May 2017).

18 Source: Song Mao & Others, and Tate and Lyle Industry Limited and T&L Sugars Limited – before the English High Court of Justice, Queen’s Bench Division, Commercial Court, Defence and Counterclaim of the First and Second Defendants, 2 May 2013, para 8. The Defendants in the UK case do not admit that the Government ‘cleared’ the land. If (which the Defendants do not admit) the land was cleared, they ‘deny that any of those involved in “clearing” the Land was acting on behalf of KSI and/or KPT’. The argument utilized by the Defendants is that the two companies were incorporated only after the May events and that they did not receive the concessions until 2 August 2006.

19 Agreement for Plantation of Sugar Cane, and Processing Factory of Sugar Cane Between the Ministry of Agriculture, Forestry and Fisheries and Koh Kong Sugar Industry Company Ltd (KKSI ELC Agreement), 2 August 2006; Agreement for Plantation of Sugar Cane, and Processing Factory of Sugar Cane Between the Ministry of Agriculture, Forestry and Fisheries and Koh Kong Plantation Company Ltd (KKPC ELC Agreement), 2 August 2006.

20 Article 59, 2001 Cambodian Land Law.

21 Golay and Biglino, note 6, 1630.

22 In February 2007, 220 families from the villages of Chikor, Chhuk and Trapeng Kandal – represented by the Community Legal Education Center of Cambodia (CLEC) – filed a civil and criminal complaint against Koh Kong Plantation and Koh Kong Sugar Industry in the Koh Kong Provincial Court, claiming that 1,490 ha of their land had been affected by the two concessions.

23 In 2012, the court of first instance of the Koh Kong Provincial Court transferred sua sponte the case to the Cadastral Committee, reasoning that the court did not have competence over land claims because ‘many of the letters and documents which had been submitted to it by the Cambodian party had not been submitted to the Cadastral Commission’ and therefore required a previous investigation by that authority. See Song Mao & Others, note 18.

24 Tate & Lyle, ‘Tate & Lyle in our daily lives’, http://www.tateandlyle.com/ingredientsandservices/pages/tateandlyleinourdailylives.aspx (accessed 16 March 2016).

25 See, e.g., Gereffi, Gary, Humphrey, John and Sturgeon, Timothy, ‘The governance of global value chains’, (2005) 12:1 Review of International Political Economy, 78–104 Google Scholar.

For a plurality of innovative approaches, see Jennifer Bair (ed), Frontiers of Commodity Chain Research (Stanford: Stanford University Press, 2009).

26 Fiona Smith (note 1) offers a clear reconstruction of the main aspects of international trade law that intervene in the extraction and multi-territorial circulation of natural resources. More recently, Olivier De Schutter has produced a thoughtful and elaborated compilation of the five main legal tools that belong to the World Trade Organization’s framework and that may be used to utilize trade law to the service of sustainable development. See De Schutter, Olivier, Trade in the Service of Sustainable Development (Oxford and Portland: Bloomsbury, 2015)Google Scholar.

27 According to Susan Marks, human rights lawyers have taken an important step forward when deciding to stop describing human rights violations and have transformed the idea of root causes of abuses into a prominent feature of the human rights discourse. However, Marks also points out that the investigative twist of human rights lawyers, who are now interested in understanding the causes behind abuses and illegality, tend to perceive the lack of rights (or their suppression) as a contingent exception (‘random, accidental or arbitrary’) in a world otherwise oriented towards the respect of dignity, law and humanity. Against this background, Marks introduces the idea of ‘planned misery’ to define the existence of a link between the violations and a particular socio-economic arrangement. Critical legal chain analysis and the identification of the links between human rights abuses and global production could contribute to map these connections and visualize the intrinsic link between transnational commodity chains and the local abuses. See Marks, Susan, ‘Human Rights and the Root Causes’ (2011) 1 The Modern Law Review 57–78 Google Scholar.

28 For example, we could ask whether or not Tate & Lyle’s refinery pays any land-related taxes to the city of London or to the United Kingdom. We could also extend the analysis from the right to exploit the plantations in Cambodia to the right of constructing a mill and operating it.

29 See Tushnet, note 4. Also Kennedy, Duncan, ‘The Critique of Rights in Critical Legal Studies’, in Brown and Halley (eds) Left Legalism/Left Critique (Duke University Press, 2002)Google Scholar.

30 See Marks, note 27.

31 The map has been produced by the author and is available here: https://www.zeemaps.com/map?group=1349254

32 I define as ‘quasi-legal’ those interventions that operate at the level of corporate social responsibility rather than within national, regional or international law spaces.

33 Baxi claims that ‘Focusing only upon the “time and circumstance” of litigation enables forgetfulness of the time and space of the patterns of global capital and technology movements across frontiers.’ The idea of a multi-territorial and multi-chronological legal structure tries to find a solution to this problem and to tackle the structural inequality of global capitalist and not only its contingent representations. See Baxi, Upandra, Mass Torts, Multinational Enterprise Liability and Private International Law (The Hague, Boston/London: Martinus Nijhoff Publishers, 2000), 325 Google Scholar.

34 Baxi, ibid, 419 (‘Because on principle it remains open to say that the place of harm is constituted by the very space of corporate conduct’).

35 Citing point 3 of Regulation No. 1 of 7 May 2012 by the Royal Government of Cambodia, villagers asked for the cancellation of the ELCs because of the violation of the due legal processes and of the agreement, and because of the infringement of the residents’ or communities’ land.

36 Article 14 of the 2007 ASEAN Charter states that ‘In conformity with the purposes and principles of the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms, ASEAN shall establish an ASEAN human rights body’. In October 2009 the ten AICHR representatives, one from each Member State, were appointed and AICHR was inaugurated at the 15th ASEAN Summit in Cha-am Hua Hin, Thailand by the ASEAN Leaders. On the role of ASEAN in adjudicating and defending human rights, see Ramcharan, Robin, ‘ASEAN’s Human Rights Commission: Policy Considerations for Enhancing its Capacity to Protect Human Rights’, (2010) 3 UCL Human Rights Review 209 Google Scholar.

37 The National Human Rights Commission of Thailand released its findings in 2012. According to the Commissioner, the evidence gathered ‘allows for a reasonable belief that human rights principles and instruments were breached in this case, and that the Thai parent company is involved in the operations of its subsidiaries in Koh Kong. Findings of the Subcommittee on Civil and Political Rights of the National Human Rights Commission of Thailand in the Koh Kong Sugar Cane Plantation case in Cambodia (25 July 2012), http://www.boycottbloodsugar.net/wp-content/uploads/2012/07/NHRC-Findings-on-Koh-Kong-25-July.pdf (accessed 17 March 2016).

38 According to the plaintiffs, Koh Kong Companies (KKP and KSI) utilized land that was fully owned by the villagers for the cultivation of sugar cane that was then processed in Cambodia at the Sre Ambel Mill (owned by KSI) and sold to Tate & Lyle (T&L) and TLS in 2009 and 2010. To the extent that T&L and TLS have acquired raw sugar processed from the sugar cane cultivated on land illegally subtracted to the villagers, they claim they have ‘wrongfully deprived the villagers of the ownership, use and possession of the said sugar cane and has converted the same to its own use’. See note 23.

39 CLEC and EarthRights International (ERI), Complaint Under the OECD Guidelines for Multinational Enterprises, October 2012, document with the author. See also CLEC/ERI and American Sugar Refining Inc. (ASR), Final Statement for US National Contact Point for the OECD Guidelines for Multinational Enterprises, 20 June 2013.

40 On 18 March 2013 the US National Contact Point recognized that the claims of human rights abuses advanced against ASR and the other three US-based companies are bona fide and relevant, and therefore merited further consideration under the Guidelines. However, no binding decision could be made because of the voluntary nature of the instrument. See US Department of State, CLEC/ERI and ASR, 20 June 2013 available at: http://www.state.gov/e/eb/oecd/usncp/links/rls/210970.htm (accessed 18 March 2015).

41 Bonsucro suspended Tate & Lyle Sugars and demanded the compliance with at least one of two conditions: (a) carrying out the third party review of compensation and additionally carrying out an independent third party review of their supplier’s compliance with TLS’ own Code of Conduct OR (b) reaching a resolution of the dispute to both parties’ satisfaction. TLS refused to cooperate.

42 See Peter Zsombor, ‘EU Hires Experts to Help Gov’t Compensate Evictees’, The Cambodia Daily, 23 January 2015, https://www.cambodiadaily.com/news/eu-hires-experts-to-help-govt-compensate-evictees-76567/ (accessed 18 March 2016); see also European Parliament, Resolution of 26 October 2012 on the situation in Cambodia (2012/2844(RSP)), http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2012-0402+0+DOC+XML+V0//EN (accessed 17 March 2016); European Parliament resolution of 16 January 2014 on the situation of rights defenders and opposition activists in Cambodia and Laos (2014/2515(RSP)), http://www.europarl.europa.eu/document/activities/cont/201401/20140122ATT78068/20140122ATT78068EN.pdf (accessed 18 March 2017).

43 See Tufts University, ‘The Sovereign Wealth Funds Initiative, Profile: Government Pension Fund Global (Norway)’, http://fletcher.tufts.edu/~/media/Fletcher/Microsites/swfi/pdfs/2012/profiles/Norway%20Fund%20Profile.pdf (accessed 2 March 2017).

44 See Roman Herre, German Investment Funds involved in Land Grabbing, FIAN Germany, 2010, http://www.fian.de/fileadmin/user_upload/dokumente/shop/Land_Grabbing/2010_study_german_investment_funds_www.pdf (accessed 15 March 2016).

45 See n 13.

46 When value chains are critically reconstructed, it emerges clearly the role that finance and financial actors play in the allocation of value, bargaining power and resources. I discuss the link between finance and agri-food chains elsewhere. See Ferrando, Tomaso, ‘The Financialization of Land and Agriculture: Driver, Mechanisms and Impacts’, in Ioannis Loanis (ed), Law and Food Chains (Cambridge University Press, forthcoming)Google Scholar.

47 It is broadly accepted that the transnational capital system is characterized by the multiplication of spaces where it operates in order to reduce costs, extract cheap resources and dump negative externalities beyond the legal frontier of the nation state. See Princen, Thomas, ‘The shading and distancing of commerce: When internalization is not enough’ (1997), 20 Ecological Economics 235–253 Google Scholar.

48 Tsing, Anna, ‘Supply Chains and the Human Condition’ (2009) 2 Rethinking Marxism 21 Google Scholar, 150.

49 Ibid, 154.

50 See, e.g., Cowen, Deborah, ‘A Geography of Logistics: Market Authority and the Security of Supply Chains’, (2010) 3 The Annals for the Association of American Geographers 1–21 Google Scholar; Cowen, Deborah, ‘Containing Insecurity: US Port Cities and the War on Terror,’ in Steve Graham (ed) Disrupted Cities: When Infrastructure Fails (New York and London: Routledge. 2009), 69–84 Google Scholar;

Charmaine Chua, ‘Logistics, Capitalist Circulation, Chokepoints’, The Disorder of Things (9 September 2014) http://thedisorderofthings.com/2014/09/09/logistics-capitalist-circulation-chokepoints/ (accessed 5 March 2016); Jasper Barnes, ‘Logistic, Counterlogistics and the Communist Prospect’, Endnotes, https://endnotes.org.uk/issues/3/en/jasper-bernes-logistics-counterlogistics-and-the-communist-prospect (accessed 5 March 2016).

51 Chua, ibid.

52 Chua defines chokepoints as the consequence of ‘the concentration of the circulation of commodities at certain key sites along the supply chain’. They ‘might thus present the possibility for strikes and protests to articulate resistance not only symbolically but also materially, by literally grounding capitalist circulation to a halt’. Chua, ibid.

53 As stressed by Deborah Cowen ‘[m]apping the “total picture” is crucial in measuring supply chain performance’; visual representation is a means toward control, achieved by ‘transferring the complex reality of performance into a sequence of limited symbols’. In other words, process mapping aims to make the system visible so its component parts can be measured and managed (internal references omitted). See Deborah Cowen, note 51, 109–110.

54 According to Kitchin and Dodge, the problem with alternative mapping is that it does not ‘challenge the ontological status of the map; rather it simply reveals the politics of mapping’. Mapping is processual and not static, a continuous pursuit of representational solutions to solve relational, spatial problems. In this light, an alternative way to global value chain mapping would not only require offering of new maps but also to understand why and how maps originate, the theoretical background and their political implications. See Kitchin, Rob and Dodge, Martin, ‘Rethinking maps’ (2007) 31 Progress in Human Geography 331–334 Google Scholar;

see also Wood, Denis, The Power of Maps (New York: Guilford Press, 1992)Google Scholar.

55 Global system theories have amply proved that current patterns of production and trade are deeply embedded in the colonial past. Thus, an interesting map could be the ‘colonial map of global value chain’, i.e., a reconstruction of the legal structures that constructed colonial value chains and their relationship with the current geography of production. In the case of sugar – the commodity utilized as case study in the first part of this chapter – this research has been conducted by Ahluwalia and Fakhri. See Ahluwalia, Pal, Knight, Roger and Ashcroft, Bill (eds), White and Deadly: Sugar and Colonialism (Commack, NY: Nova Science Publishers, 1999)Google Scholar; Fakhri, Michael, Sugar and the Making of International Trade Law (Cambridge, UK; New York: Cambridge University Press, 2014)CrossRefGoogle Scholar.

For an overview of global system theory and the relationship between capitalism and global value chains, see Hopkins, Terence K and Wallerstein, Immanuel, ‘Commodity Chains in the World-Economy Prior to 1800’, Review (Fernand Braudel Center) 10, no. 1 (July 1, 1986), 157–170 Google Scholar; Wallerstein, Immanuel, The Modern World-System: Capitalist Agriculture and the Origins of the European World-Economy in the Sixteenth Century (New York, NY, Academic Press, 1974)Google Scholar; Wallerstein, Immanuel, ‘Globalization or the Age of Transition?’ (2000) 15 International Sociology 249–265 CrossRefGoogle Scholar.

56 A strong critique of the role of law as a possible source of emancipation from capitalism is provided by Grietje Baars in her recent article on corporate accountability. See Baars, Grietje, ‘“It’s not me it’s the corporation”: the value of corporate accountability in the global political economy’ (2016) 4 London Review of International Law 127–163 CrossRefGoogle Scholar.

57 According to Tushnet, ‘legal interventions have extremely complex consequences that reach far beyond the narrow setting of most cases’. If this is true in a context that is not embedded in global chains of production, this should be even more the case if we are talking about rights and transnational value chains. See Tushnet, note 4, 1372.

58 On food standards and value chains, see Bill Vorley and Tom Fox , ‘Global Food Chains, Constraints and Opportunities for Smallholders’ (IIED); Lee, Joonkoo, Gereffi, Gary and Beauvais, Janet, ‘Global value chains and agrifood standards: challenges and possibilities for smallholders in developing countries’ (2010) 109 Proceeding of the National Academy of Science USA 12326–12331 Google Scholar.

59 Wai, Robert, ‘Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in an Era of Globalization’ (2002) 40 Columbia Journal of Transnational Law 209–274 Google Scholar.

60 Jasper Barnes, Logistics, note 51.

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