Mitr Phol Case: 16 Years and Counting on the Road to a Just and Equitable Remedy

12 Apr

In 2008, Mitr Phol Sugar Corporation, a Thailand-based multinational company and one of the largest sugar producers in the world, obtained land concessions in Cambodia through its three Cambodian subsidiaries.[1] Right after the concessions were granted, land confiscation, livestock killing, and crop looting followed.[2] Since then, the villagers who lost their homes and a multinational coalition of civil society organisations (CSOs), including two Cambodia-based organisations, Equitable Cambodia (EC) and Cambodian League for the Promotion and Defense of Human Rights (LICADHO), three Thailand-based CSOs, Community Resource Center Foundation (CRC), Foundation for Ecological Recovery (FER), and Legal Rights and Environmental Protection Advocacy, and a US-based organisation, Inclusive Development International (IDI), have been on this long road to justice and pursued various avenues to access remedy for more than a decade, including non-judicial mechanisms, advocacy campaigns coupled with buyer engagements, and now the first ever transboundary class-action lawsuit filed in Thai courts against Mitr Phol.

Non-Judicial Mechanisms

The two Cambodian CSOs and IDI initially filed their complaint against Bonsucro member Mitr Phol to the Bonsucro Grievance Mechanism, a UK-based multinational and multistakeholder sustainable sugarcane industry initiative, in 2011 and again in 2016.[3] With Bonsucro dismissing the second complaint and reinstating Mitr Phol’s membership, the CSOs lodged a complaint against Bonsucro with the UK National Contact Point (UK NCP) essentially asking the UK NCP to hold a multi-stakeholder membership organisation like Bonsucro accountable to their own human rights responsibilities in line with the OECD Guidelines for Multinational Enterprises.[4]

The intent of the OECD Guidelines is to promote these types of multi-stakeholder initiatives as a way to increase adherence to the guidelines and promote responsible business conduct. Hence, one of Bonsucro’s responsibilities under the OECD Guidelines is to leverage its position with its members to address human rights concerns. The UK NCP eventually found that Bonsucro breached the OECD Guidelines and the United Nations Guiding Principles on Business and Human Rights (UNGPs).[5] However, due to the non-legally binding nature of the NCP process, Bonsucro was not compelled to provide remedy to the affected villagers.

Amidst these efforts to pursue these avenues for remedy, FER, EC, and LICADHO also filed a complaint against Mitr Phol with the National Human Rights Commission of Thailand (NHRCT).[6] Pursuant to the 2017 Constitution, the NHRCT is tasked to recommend appropriate measures or provide guidance in order to prevent or redress human rights violations, and to render recommendations to relevant agencies. Although the NHRCT issued the final investigation report which clearly stated that human rights violations occurring on the concession lands were the direct responsibility of Mitr Phol and the company had an ongoing responsibility to provide compensation and other appropriate remedies for the losses and human rights impacts despite having ceased its operations in Cambodia,[7] the mandate was of limited effectiveness since the NHRCT lacks sufficient power to enforce its recommendations and the affected communities have yet to receive any form of compensation.

Advocacy Campaigns and Buyer Engagements

To put pressure on all fronts and in parallel with other advocacy strategies, IDI engaged with Mitr Phol’s four major buyers and members of Bonsucro, Coca-Cola, Mars Wrigley, Nestlé, and Corbion, to use their leverage to influence Mitr Phol to remediate the human rights violations that it caused, in accordance with their own human rights responsibilities under the OECD Guidelines and the UNGPs.[8] EC, LICADHO, and IDI also called on other Mitr Phol’s buyers to use their leverage and submitted a joint statement at the Ninth Session of the United Nations Forum on Business and Human Rights in order to shed light on how a number of prominent companies attending the forum failed to meet their responsibilities under the UNGPs.[9]

Coca-Cola acknowledged its responsibilities under its pledge of “zero tolerance for land grabbing” in its supply chain, investigated the allegations, and engaged with Mitr Phol, but it never made its findings public.[10] Such findings are now in the hands of the Thai lawyers as part of the class action lawsuit underway in Thailand after IDI filed a petition with the U.S. federal court in the Northern District of Georgia requesting assistance under the U.S. Foreign Legal Assistance Statute which permits foreign litigants to obtain evidence from companies found in the United States.[11]

Lawsuit in Thailand

After exhausting many avenues and Mitr Phol’s refusal to compensate the affected communities even with clear recommendations to do so by the NHRCT, the villagers brought the first ever transboundary class-action lawsuit in the home country of Mitr Phol for human rights abuses committed by a Thai company outside of Thailand.[12] The complaint contends that Mitr Phol’s actions amounted to tortious acts as defined in the Cambodian Civil Code and the company’s acts and omissions resulted in breaches of both Cambodia’s and Thailand’s international human rights obligations e.g. rights to adequate standard of living including housing arising from the International Covenant on Economic, Cultural and Social Rights (ICECSR), which both Cambodia and Thailand have ratified and enshrined their international human rights treaty obligations into the domestic laws.[13]

Forced evictions are a gross violation of the right to adequate housing, permissible only in exceptional circumstances, if there are no feasible alternatives and are explored in consultation with the affected persons, with adequate compensation and in accordance with due process of law which was not the case here.[14] The forced evictions and related harm caused by the company therefore amount to serious violations of human rights.

Reflections

Hoy Mai’s and her fellow villagers’ road to a just and equitable remedy provides valuable lessons for CSOs pursuing cross-border corporate accountability actions. It takes a combined and concerted effort of the affected families, CSOs and relevant stakeholders across multiple jurisdictions and a multi-pronged strategy to seek remedy for human rights violations. In this case, failure to secure remedy through other non-judicial mechanisms in fact served as a preparatory springboard for the villagers to file a lawsuit.[15] For businesses and corporate accountability globally, this can potentially highlight that multinational companies can be held legally accountable in their home states for human rights abuses committed abroad and can no longer ignore the conducts of their subsidiaries and what goes on in the entire value chain. For policy makers, lawmakers, and multi-stakeholder initiatives alike, the case showcases how time-consuming and ineffective existing grievance mechanisms are and should lead to a rethinking of what effective grievance mechanisms should be in line with the UNGP 31 effectiveness criteria.

After several lengthy proceedings examining the villagers’ legal standing in the past 6 years, the hearing will finally commence on May 9th, 2024[16] and it remains to be seen whether this avenue for justice can pave ways to hold Mitr Phol to account after so many years.

[1] Source: https://www.phnompenhpost.com/national/historic-lawsuit-oddar-meanchey-villagers-take-sugar-giant-mitr-phol-court-thailand

[2] Source: https://www.business-humanrights.org/en/latest-news/cambodia-602-families-accuse-mitr-phol-sugar-of-land-confiscation-livestock-killing-crop-looting-in-complaint-filed-with-thai-national-human-rights-commission/

[3] Source: https://www.inclusivedevelopment.net/wp-content/uploads/2020/12/Amended-Complaint-to-Bunsucro-re-Mitr-Phol-Group-05-February-2016.pdf

[4] Source: https://www.gov.uk/government/publications/idi-ec-and-licadho-complaint-to-uk-ncp-about-bonsucro-ltd

[5] Source: https://www.gov.uk/government/publications/idi-ec-and-licadho-complaint-to-uk-ncp-about-bonsucro-ltd/initial-assessment-idi-ec-and-licadho-complaint-to-uk-ncp-about-bonsucro-ltd

[6] Source: https://www.inclusivedevelopment.net/wp-content/uploads/2021/11/Final-Investigation-Report-of-the-Thai-National-Human-Rights-Commission-ENGLISH.pdf

[7]Source: https://www.inclusivedevelopment.net/wp-content/uploads/2021/11/Final-Investigation-Report-of-the-Thai-National-Human-Rights-Commission-ENGLISH.pdf

[8] Source: https://www.business-humanrights.org/en/latest-news/time-for-mitr-phol-coca-cola-nestle-mars-wrigley-and-bonsucro-to-live-up-to-their-human-rights-responsibilities/

[9] Source: https://www.inclusivedevelopment.net/wp-content/uploads/2020/12/UNBHR-Joint-Statement-on-Mitr-Phol-Nov-17-2020.pdf

[10] Source: https://www.inclusivedevelopment.net/cases/mitr-phol/

[11] Source: https://www.corpwatch.org/article/coca-cola-ordered-turn-over-documents-relating-land-grabbing-northern-cambodia

[12] Source: https://www.inclusivedevelopment.net/sugar/evidence-review-begins-in-case-against-thai-sugar-giant-mitr-phol/