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Holding a Thai Sugar Company Accountable for Land Grabbing:  A Multi-Pronged Legal and Advocacy Campaign

The 2000s saw an alarming trend of land-grabbing in Cambodia, as the government carved up vast areas of the countryside and granted large and legally dubious land concessions to private agribusiness companies. Very often these concessions overlapped land belonging to rural and Indigenous communities.

One company that benefited from this practice was Thai sugar giant, Mitr Phol. In 2008, Mitr Phol’s Cambodian subsidiaries were granted three large concessions totaling 19,700 hectares to develop sugarcane plantations in the province of Oddar Meachey. The concessions overlapped considerably with farmland belonging to more than 2,000 farming families across 26 villages. Mitr Phol colluded with local authorities and security forces to seize the land from the families, providing them with smaller parcels of inferior replacement land and in some cases no replacement land at all. Amid the evictions, security forces committed a litany of human rights abuses. In one village, O’Bat Moan, private and public security forces drove families from their homes, beating and arresting people indiscriminately, before setting fire to the entire village.

The affected communities garnered support from local and international human rights organizations to demand justice for these violations. Since 2010, the communities and their civil society partners have engaged in a sustained, multi-pronged advocacy campaign seeking to compel Mitr Phol to repair the harms it caused. Over the course of a decade, advocates have engaged a range of innovative judicial and non-judicial complaint mechanisms and pursued a consumer advocacy campaign seeking to leverage the reputation of Mitr Phol’s brand name customers to secure redress.

Pursuing accountability through non-judicial grievance mechanisms

In 2011, communities affected by the Mitr Phol’s operations appealed to the complaint mechanism of Bonsucro, a voluntary multi-stakeholder initiative for sustainable sugarcane producers, which their civil society partners noticed Mitr Phol had recently joined. When Bonsucro accepted the complaint against Mitr Phol, however, rather than engage in the complaint resolution process, Mitr Phol withdrew its membership in the initiative. Although the complaint strategy was ultimately ineffective, community advocates seized this as an opportunity to conduct media advocacy around the complaint and Mitr Phol’s efforts to dodge accountability by withdrawing its membership in the sustainability initiative.

When this strategy failed to bring Mitr Phol to the table, affected communities then turned to another transnational advocacy avenue: a state-based non-judicial human rights mechanism, the Thai National Human Rights Commission. Local NGOs filed a complaint in 2013, calling upon the Commission to investigate the human rights violations committed by Mitr Phol and its subsidiaries in Cambodia and recommend appropriate remedies, including the return of land and payment of damages to victims for abuses they suffered. It was the first time that the Thai human rights body had been called upon to investigate alleged violations committed by a Thai company in another country.

The Commission accepted the transboundary complaint and after a two-year investigation, it found that the company had breached its responsibility to respect human rights under the United Nations Guiding Principles on Business and Human Rights. The Commission’s final investigation report, published in 2015, found Mitr Phol directly responsible for serious human rights violations and called upon the company to “correct and remedy the impacts.” Just before the Commission released its report, Mitr Phol withdrew from Cambodia and relinquished its land concessions. Crucially, the Commission recognized that Mitr Phol has an ongoing responsibility to provide compensation and other appropriate remedies to affected communities in Cambodia, despite having since ceased its operations in the country.

Because the Commission does not have enforcement powers, its recommendations are non-binding. This allowed Mitr Phol to again dodge full accountability by disregarding the findings. The complaint strategy was nonetheless considered successful, as it resulted in an official investigation report that unequivocally implicates Mitr Phol in human rights violations and details its responsibility to compensate the victims. The Commission’s report attracted publicity to the case and community advocates have been able to refer to its findings when engaging other pressure points, such as Mitr Phol’s buyers, adding legitimacy and credibility to their message. It also provided a crucial evidence base for a legal strategy, discussed below.

In 2015, the same year that the Commission’s investigation report was issued, Mitr Phol was quietly re-admitted to the voluntary multi-stakeholder initiative, Bonsucro. In 2016, advocates filed a second complaint to the initiative’s grievance mechanism, which they felt was grossly mishandled and ultimately dismissed two years later. Inclusive Development International, alongside Cambodian civil society partners, responded by lodging an innovative complaint in the United Kingdom against Bonsucro itself for breaching its human rights responsibilities. This complaint, which was still pending in 2021, publicly challenges Bonsucro’s reputation as a credible sustainability certification body. This is important, because many of Mitr Phol’s customers have relied upon Bonsucro’s endorsement of Mitr Phol as justification for maintaining business ties with the company. By highlighting Mitr Phol’s failure to remediate ongoing human rights violations that the Thai Human Rights Commission concluded that it caused, and Bonsucro’s greenwashing of this failure, this complaint strategy challenged the company’s efforts to sweep this problem under the rug.

Turning to the Thai courts

Facing the failure of Bonsucro to bring Mitr Phol to the table to remediate the harms it caused and implement the Thai National Human Rights Commission’s non-binding recommendations, community advocates turned to a litigation strategy. Since Mitr Phol had withdrawn from Cambodia and because the Cambodian judiciary is notoriously corrupt, they decided to explore litigation against the company in Thailand. With support from Inclusive Development International and Equitable Cambodia, they retained legal counsel in Thailand and began building a case. And in March 2018, Cambodian plaintiffs representing more than 700 affected families filed the first transboundary class action lawsuit ever in the Thai courts against Mitr Phol. Although the harms occurred in Cambodia and were suffered by Cambodian nationals and residents, the Thai Conflict of Laws Act allows foreign plaintiffs to seek legal redress in the Thai courts since the Defendant, Mitr Phol, is a Thai company headquartered in Thailand. In July 2020, the case was accepted as a class action by the Thai court and it is still pending at the time of writing.

Downstream advocacy

All told, the communities harmed by Mitr Phol have filed five separate complaints over the course of a decade: two to the complaint mechanism of Bonsucro; one to the Thai National Human Rights Commission; one to the U.K. National Contact Point (against Bonsucro); and the transboundary class action lawsuit in Thai courts. The complainants have enhanced the effectiveness of each of these complaint strategies by consistently engaging in media advocacy and consumer advocacy throughout each process. With each development in the case, the complainants garner public attention by publishing press releases and pitching stories to journalists following the case. The media pieces often publicly name Mitr Phol’s high-profile customers, including Coca-Cola and Nestlé, in connection with the case. This not only publicizes Mitr Phol’s human rights failures, but also threatens the carefully crafted reputations of its big brand customers, building pressure throughout the supply chain to address the outstanding issues.

In addition to targeting the consumer brands through media advocacy, advocates have engaged directly with the consumer brands through numerous letters (both public and private) and teleconference calls to discuss the case. In these letters and meetings, advocates have called upon all of Mitr Phol’s buyers to fulfill their own human rights responsibilities by using their leverage to ensure that Mitr Phol repairs the grave harms it caused to hundreds of families in Cambodia. In response, several of the brands have taken steps to investigate the allegations and raise the issue with Mitr Phol. At least one buyer, Pepsi, has since cut business ties with Mitr Phol. Public advocacy around Mitr Phol’s poor human rights performance has also aimed to prevent additional consumer brands from buying sugar products from Mitr Phol in the future.

At the time of writing, the plaintiffs have been preparing for their trial in Thailand. They remain optimistic that the Thai court will rule in their favor and order Mitr Phol to pay the damages that they have been owed for over a decade. In the meantime, they continue to call on Mitr Phol’s big brand customers to encourage the company to fulfill their human rights responsibility and negotiate a fair settlement with the communities out of court.

For more information on the details of this case, see: https://www.inclusivedevelopment.net/cases/cambodia-mitr-phol-sugarcane-land-grab/