Risk calculation and blood sugar – Can CSR arguments get a handle on the global land-rush?

by Rhodri C. Williams

The nearly 18 months that have passed since David Pred wrote in this blog about industrial sugarcane production and land-grabbing in Cambodia have been dramatic ones in the area of corporate social responsibility (CSR).

Perhaps most notably, the tragic and entirely predictable collapse of the Rana Plaza garment factory in Dhaka, Bangladesh last May galvanized a process of negotiating binding arbitration agreements between corporations and labor unions with participation by the International Labor Organization (ILO). The resulting “Accord on Fire and Building Safety in Bangladesh” was described by Peter Spiro in Opinio Juris as “a signal episode in the continuing evolution of global corporate regulation”:

The template: a legal agreement between non-state parties facilitated and nominally hosted by an international organization. No governments involved, at least not as parties to the agreement. If it works, look for more of the same in other contexts. The ILO ‘s profile will surely rise in the face of this episode and the growing global awareness of worker rights issues.

For better and for worse, the Rana Plaza disaster also generated competing models, with a group of North American retailers unveiling a non-legally binding alternative to the mainly European ‘Accord’ in July. While critics alleged that the latter plan amounted to an attempt by large corporations such as Walmart to co-opt the global CSR movement, US corporations condemned the Accord as rigid, insensitive to the realities of the global textiles market, and (perhaps most tellingly), a potential floodgate for litigation.

These developments indicate that the protracted debate over effective social regulation of global markets (beautifully summarised in this essay by Richard M. Locke) has lurched forward, but is far from over. While experts have raised technical concerns about the arbitration procedures espoused in the Accord, it has nevertheless clearly introduced a new paradigm, planting a new, binding standard in a field dominated by voluntary codes of conduct. However, the competing North American initiative demonstrates the persistence of non-binding commitments that rely on states to regulate the conditions of production, rather than giving workers recourse to the corporations that sit astride global production chains.

Meanwhile, the debate over large-scale acquisition of land in developing countries by foreign states and corporations – the ‘global land rush’ – has rumbled on. In particular light of the extent to which corporations have been actors in the land rush, early indications that the land tenure governance debate would converge with the broader CSR debate appear to have been more than borne out.

Most notably, the UN Food and Agriculture Organization (FAO) recently adopted a well-received set of “Voluntary Guidelines on the Responsible Governance of Tenure“. Though these are frequently referred to generically as ‘land grab guidelines’, they actually focus on the ‘supply side’, setting out duties of care for the authorities that dispose over land subject to investment (for more on the Guidelines, see this dedicated edition of the Land Tenure Journal). Meanwhile, a corresponding set of ‘demand side’ due diligence guidelines for investors – the “Principles for Responsible Agricultural Investments” is currently slated for adoption in 2014.

A similar pattern has emerged in advocacy with, for instance, the Rights and Resource Initiative (RRI) recently having reframed the ‘supply side’ question of State neglect of local tenure rights as a ‘demand side’ problem of corporate risk:

In examining the evidence, a pattern emerges. Many investors and operators have committed time, money and effort without understanding some considerable risks, ones usually considered externalities in the normal course of business. …. Property rights in many emerging markets are dysfunctional to the point that ownership of land can be granted to an investor without the tens of thousands of people living on, or dependent on, that land knowing about it. …. By themselves, delays caused by land tenure problems can inflate a project’s expenditures by an order of magnitude – and in some cases these losses have even been great enough to endanger the future of the corporate parent itself.

Meanwhile, more concerted efforts are being put into gauging the genuine scale of the problem, most notably through the development of a Land Matrix, a public online database of land deals. However, getting a handle on the scale of the problem, with its often murky and frequently unreported (or reported but unconsumnated) deals remains difficult. Nevertheless, two recent and overlapping insights have involved the extent to which the land rush has penetrated – and destabilized – South-East Asia and the role of the sugar industry and sugarcane in driving large scale land investment.

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Corporate social responsibility in a changing world: Targeting conflict resource exploitation

by Rhodri C. Williams

The march of the voluntary guidelines continues, it seems, with new approaches geared to address gaps in earlier efforts to urge corporate self-control. As Peter Spiro noted some time back in Opinio Juris (and Chris Huggins pointed out in these pages), the promotion of “soft” voluntary standards as a means of getting at some very hard human rights violations is still seen with skepticism in many quarters.

Nevertheless, Mark Taylor makes an engaging case for such standards in a recent Open Democracy piece on the role of natural resource extraction in fueling conflict. The article highlights the Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict Affected and High Risk Areas, a standard adopted by the Organization for Economic Cooperation and Development (OECD) in May 2011 and subsequently regulated in the US through new regulations issued by the Securities and Exchange Commission (SEC)  under the Dodd-Frank Wall Street Reform Act.

Taylor notes several key insights that have emerged in the wake of older certification schemes such as the Kimberly Process for conflict diamonds. These include the manner in which both illicit inflows into conflict areas (such as small arms) and outflows (such as natural resources) have become incorporated into global market flows, as well as the extent to which vulnerable local populations may be just as dependent on extraction activities for their survival as warlords are for their arms budget. In light of such factors, Taylor argues that considerable advantages may be derived from focusing on business actors rather than states:

Like the Kimberly Process, or even UN sanctions, the Guidance seeks to exclude certain commodities from global trade flows. But there the similarity ends. Instead of obligating states, the Guidance places the responsibility on business to manage their supply chains. Instead of relying on a certification regime hobbled by a lack of state capacity, the Guidance deploys the concept of business due diligence, the practice of self-investigation and risk management in a business activity. And instead of targeting a commodity based on its association with rebel groups – a definition that has plagued the Kimberly Process, for example preventing it from taking action where abuses are committed by state armed forces, as in the case of Zimbabwe – the Guidance in effect focuses on the problems of conflict financing and human rights abuse associated with mineral extraction, regardless of whether the perpetrator is a state or non-state armed group.

In effect, the Guidance places the onus on businesses to show they are not financing conflict or contributing to human rights abuse through their sourcing of minerals. And nothing in the Guidance prevents states from regulating this responsibility to conduct due diligence, which is precisely what the US has done with the conflict minerals provision of Dodd-Frank, a measure the EU is now considering.

The combined reliance on traditional state regulation and more novel forms of corporate self-regulation is promising though not, as Taylor points out, unproblematic. However, even at this early stage, there may be timely lessons that could be drawn by the UN Food and Agricultural Organization (FAO) in its current efforts to develop a set of ‘demand side’ standards regulating the conduct of actors participating in large-scale land investments in developing countries. This process should be facilitated by the fact that the FAO has already launched a set of ‘supply side’ guidelines for countries that are the object of such investment. While the latter clearly addressed state authorities disposing over targeted land, the former will need to take into account the role of both state and powerful non-state actors whose investments are driving the global land-rush.

Finally, in a timely reminder that such policies and safeguards are often only as effective as the advocates that monitor their application, Inclusive Development International issued a press release announcing a complaint before the Asian Development Bank’s Compliance Review Panel. The complaint alleges a violation of the Bank’s involuntary settlement policies with regard to communities affected by an ADB-funded railway rehabilitation project in Cambodia (on which, see Natalie Bugalski’s guest postings here and here). As such, it recalls the ongoing controversy in Cambodia over the World Bank’s attempts to act on a finding by its own Inspection Panel of a violation of its Resettlement Policy.

Is the European Commission sweet on land grabbing? Trade benefits, sugarcane concessions and dispossession in Cambodia – UPDATED

by David Pred

David Pred is co-founder and managing associate of Inclusive Development International (IDI), an association working to make the international development paradigm more just and inclusive.

Before you reach for that Tate and Lyle sugar packet to sweeten your coffee, you might want to think twice.  While most Tate and Lyle sugar packets carry the Fair Trade label, Cambodian farmers who were displaced and dispossessed by their suppliers say that if you are buying this product, you are buying their blood. Earlier this month, representatives of affected communities called for a consumer boycott of companies selling sugar grown on stolen land, including Tate and Lyle Sugars.

Over the past several years, hundreds of thousands of Cambodians have been uprooted from their homes, farmlands, and forests by companies that have been granted concessions for the development of agro-industrial plantations.

The sugarcane industry has been one of the worst offenders in this land-grabbing crisis. In the last five years, land concessions totaling tens of thousands of hectares have been granted to private companies for industrial sugarcane production.  These concessions have led to the destruction of protected forests and the pollution of water sources. Local farmers’ crops have been razed and their animals shot. Homes have been burned to the ground. Thousands of women and children have been left destitute.  Some have been thrown in jail for daring to protest.

Despite the abundant evidence of these crimes, none of the responsible individuals and companies have been held to account. As if that wasn’t scandalous enough, this ‘blood sugar’ is being exported to Europe, where it receives special trade benefits under the EU’s Everything But Arms (EBA) initiative.  Through this preferential trading scheme, the world’s least developed countries are able to export goods to the EU with zero tariffs or quotas, and in the case of sugar, at a guaranteed minimum price.

It should be a crime to peddle goods produced on stolen land, but instead the land-grabbers are awarded special trade privileges.

Cambodia housing rights activists released from prison

by Rhodri C. Williams

Photo credit: International Alliance of Inhabitants

Last month, TN carried a guest-posting by Natalie Bugalski and David Pred on the arrest and imprisonment of 15 mostly female housing activists protesting evictions in the Cambodian capital, Phnom Penh. The blog also ran a piece describing persistent tensions between the World Bank and the Cambodian government over urban forced evictions and highlighting a petition meant to persuade the Bank to take a firm stand in favor of the release of the imprisoned “Boeung Kak Lake fifteen”.

It seems that what has been a remarkable campaign of international proportions has borne fruit (the picture, kindly provided by International Alliance of Inhabitants, depicts Cambodian activists who addressed an audience of 800 at the June 18 Peoples’ Summit in Rio de Janeiro). As announced in a joint statement by civil society activists yesterday, the authorities have now released the BKL 15, albeit in a face-saving manner and one which may expose them to further legal risks. See the ‘Free the 15′ webpage for more on the celebrations as well as considerations on how to work from this significant breakthrough to securing meaningful security of tenure for poor urban communities in Cambodia.

YouTube human rights channel, Cambodia and an upcoming guest posting by Natalie Bugalski

by Rhodri C. Williams

A bit of a Monday morning mashup today. First, I wanted to get the word out generally about the fact that YouTube has now teamed up with  WITNESS, an organization that has pioneered in the use of video for human rights, and Storyful, a social newsgathering operation, to provide a new human rights channel. According to the announcement run on the YouTube blog, the channel will add value to the raw footage uploaded to the website every day:

The channel, which will also feature content from a slate of human rights organizations already sharing their work on YouTube, aims to shed light on and contextualize under-reported stories, to record otherwise undocumented abuses, and to amplify previously unheard voices. …. Storyful will source and verify the videos, and WITNESS will ensure the channel features a balanced breadth of issues with the context viewers need to understand the rights issue involved.

This is clearly a valuable service from an advocacy perspective. The rush of compelling footage coming out of places like Syria has grabbed the attention of people everywhere and Kony2012 has controversially but undoubtedly shown the power of net-based media to reach out to non-traditional audiences with a human rights message. Hopefully a systematic effort to sort and contextualize raw footage will have a stabilizing effect, allowing video to continue conveying the urgency of human rights crises, but in a manner that allows people to educate themselves rather than simply be shocked. Whether this service can also allow such amateur evidence-gathering to be given a more prominent role in international criminal proceedings will be an interesting question to watch.

As witnessed in recent writings in this blog on both Azerbaijan and Cambodia, forced evictions and use of force against those protesting them have, among other things, made for some eye-grabbing visuals. The new YouTube channel has not failed to miss this, and one of the early ‘in-depth’ topics listed is ‘Cambodia deadly land clashes‘. TN readers with mobile phone cameras who find themselves at the front lines of the tenure security struggle should take note.

Keeping with Cambodia, I also wanted to follow on to last week’s guest-posting by Natalie Bugalski and David Pred on the ‘Boeung Kak Lake 15’ protesters and my subsequent report on the campaign for their release. This week, I wanted to belatedly announce Natalie’s publication of a Discussion Paper on a human rights approach to the development of Cambodia’s land sector. Natalie will also be guest-writing on TN again shortly in order to describe the World Bank’s forthcoming review of its safeguard policies, with a particular look at the involuntary resettlement policy (note that this topic is the focus of a campaign to be pursued by David and Natalie’s newly-founded, Cambodia-based human rights organization Inclusive Development International).

World Bank urged to stand firm on land-related rights violations in Cambodia

by Rhodri C. Williams

As reliably as the annual arrival of the wet season, the protracted  struggle over who controls Cambodia’s land has entered into another one of its hot phases. On one side, local communities supported by a coalition of national and international NGOs continue to defend their rights to land and homes they have built their lives around. On the other side, the Cambodian authorities continue to almost ostentatiously prioritize the interests of international investors over those of their own constituencies. The latest salvo takes the form of an open letter to the World Bank signed by over 100 civil society organizations urging incoming President Jim Yong Kim to continue his predecessor Robert Zoellick’s firm stance on forced evictions.

As before, ground zero for the forced evictions debate in Cambodia remains the Boeung Kak Lake (BKL) neighborhood of the capital Phnom Penh. While the open letter points out recent killings outside of Phnom Penh (including an environment activist and a 14 year old girl in the course of an eviction), the incident triggering the current wave of activism has been the arrest of 15 mostly female BKL residents, 13 for having had the temerity to protest against being expelled from their homes and two more for having volunteered to testify on the others’ behalf.

The arrest and sentencing of the BKL 15 (most got over two years on trumped up charges) is the latest phase of a long-running controversy that first led the Cambodian government break off its long-running cooperation with the World Bank on land registration, and then saw the World Bank take a principled stand in favor of meaningful reform. The twists and turns of the BKL affair are lucidly presented in Natalie Bugalski and David Pred’s guest-post earlier this week. They have also been the topic of past postings on TN that documented:

• The decision of the Cambodian government to walk away from the multi-million dollar Land Management and Administration Project (LMAP) when the World Bank suggested (under pressure from the late, lamented COHRE) that greater priority be given to urban tenure security, beginning with BKL;
• The subsequent deliberations of the World Bank Inspection Panel on whether the Bank had violated its own policy on involuntary resettlement by being implicated in the BKL evictions;
• The November 2010 decision by the Panel finding a breach of the Bank’s Policy and the subsequent deliberations by the Board of the Bank on how to proceed in Cambodia;
• The Board’s March 2011 decision to acknowledge its past shortcomings and insist on compliance with the Policy in future engagement with land issues in Cambodia;
• Mounting questions over how this firmer line would be implemented in light of lack of improvements on the ground;
• The August 2011 revelation that the Bank had suspended new project funding in Cambodia pending a resolution of the BKL issue;
• The subsequent concession of the Prime Minister in granting title to the remaining holdout families in BKL that had not yet been evicted; and
• the Government’s return to form, with forced evictions continuing at the edges of the BKL neighborhood and elsewhere.

The concerns expressed in the current open letter relate to signs that the World Bank is considering withdrawing its freeze on funding new projects in Cambodia. In earlier statements, the Bank had asserted that it would not resume funding until “an agreement is reached with the residents of Boeung Kak Lake”. However, while the Government’s earlier grant of title to BKL holdouts represents a significant breakthrough, it does not apply to as many as 85% of the residents of the neighborhood forced out under extreme duress earlier. And as noted in the open letter, the entire BKL community has demonstrated exemplary solidarity, with current title beneficiaries continuing to hold out for an “agreement” that does not exclude their less fortunate former neighbors.

At a broader level, one might wonder whether even a full resolution of the now notorious BKL issue alone should be seen as sufficient, particularly in light of the Bank’s association with an earlier joint call by Cambodian development partners for a general moratorium on urban evictions. On the other hand, full satisfaction for BKL’s battered residents would have tremendous symbolic value. As demonstrated by NGO statements in support of the open letter, BKL has taken on regional, if not global significance as a concerted stand against arbitrary government land takings. Meanwhile, the Government’s paranoid reaction to attempts by the human rights group Licadho to speak with the BKL 15 at Prey Sar prison demonstrate that it is well aware of the symbolic power of this case:

…two guards, dressed in unmarked grey clothing distinct from regular guards at Prey Sar, ordered those who ventured near the fence closest to the Boeung Kak women to move away.

Licadho president Pung Chhiv Kek, who led a contingent of about 50 youths into Prey Sar for the event, spoke to prisoners up close through the fence, but when she began to move in the direction of the Boeung Kak prisoners, a guard told her to clear away.

“In my long experience of going to Cambodian prisons, it was the first time I was prevented to see prisoners,” she told the Post. “They did this because they had orders coming from the upper stratum of the regime, which regards Boeung Kak lake as a sensitive question.”

As noted previously in this blog, the World Bank does not enjoy exclusive or unlimited power to shape Cambodian policy, nor should it. However, recent events have demonstrated that the Cambodian government does consider the resources that the Bank provides worth an occasional policy shift. It would be a shame – and a mistake – for the Bank to needlessly cash in its chips before seeing the Government’s hand.

Cambodian mothers and grandmothers behind bars after facing off the most powerful men in the region: Will the World Bank stand by them?

by Natalie Bugalski and David Pred

David Pred and Natalie Bugalski are co-founders of Inclusive Development International. They co-authored the complaint to the World Bank Inspection Panel on behalf of the Boeung Kak community.

Last week thirteen Cambodian women representatives of the Boeung Kak Lake community were sentenced up to two-and-a-half years in prison after a summary trial. The women, including a 72-year old grandmother, were arrested on May 22 whilst singing at a peaceful protest to support 18 families whose homes had been buried in sand by a private developer (view the video). The arrest, trial and sentencing took place within 48 hours, with no time for the women’s lawyers to prepare a defense. During their trial, the police arrested two more community representatives who were waiting outside the courthouse prepared to testify as witnesses for the 13 women on trial.

Photograph: Housing Rights Task Force

The women, who call themselves the League of Boeung Kak Women Struggling for Housing Rights, have waged a multi-year battle to defend their homes and land in the bustling center of Phnom Penh. Their campaign has included everything from publicly burning effigies to rid the city’s authorities of evil spirits to baring their breasts at demonstrations to display their desperation. It has also involved a sophisticated legal advocacy strategy, including the submission of a complaint to the World Bank’s Inspection Panel, an internal watchdog mandated to investigate alleged violations of the Bank’s operational policies.

The women’s family homes were being threatened by one of the wealthiest and most powerful Cambodian tycoons, who is also a ruling party Senator, backed by China’s Inner Mongolia Erdos Hongjun Investment Corporation. In early 2007, Senator Lao Meng Khin was granted a 99 year lease over 133 hectares in central Phnom Penh, which covered Boeung Kak lake and its surrounding villages, home to some 20,000 people. The lease was granted for a mere $79 million US dollars, a fraction of the estimated $2 billion value of the property. Soon afterwards, the company began filling in the lake and coercing its denizens to leave the area for a measly sum in compensation.  Attempts by the community and civil society advocates at persuading the Senator’s company and the government to stop the mass forced eviction appeared futile. They remained impervious to the outcry against what threatened to be the biggest single mass displacement of Cambodians since the Khmer Rouge emptied the cities in 1975.