‘Capital’s violence is a structure, not an event.’Footnote 1
1. Introduction
In January 2023, the German Supply Chain Due Diligence Act (the Act) entered into force.Footnote 2 It translates the UN Guiding Principles on Business and Human Rights into national law by establishing due diligence duties concerning a series of prohibitions derived from international human rights law. As with Business and Human Rights (BHR) instruments more generally, the Act was a reaction to social mobilization around the unequal distribution of costs and benefits produced by contemporary global supply chains. It was originally passed in 2021, after a campaign led by an association of civil society organizations, which built on an increased awareness among the German public after two major disasters in textile factories: the deadly fire in the Ali Enterprises building in Pakistan (2012) and the collapse of the Rana Plaza factory in Bangladesh (2013). Efforts to push through the Act were met with heavy resistance by business associations, which tried on multiple occasions to block the law and restrict its reach.Footnote 3 While the Act was, for civil society organizations, a necessary step toward countering serious human rights violations, its opponents claimed that it would place unjust burdens on German businesses, putting them at a disadvantage with respect to their European competitors.Footnote 4
With the Act, Germany joined other countries in adopting extraterritorial mandatory due diligence regulations.Footnote 5 These regulations represent a response to years of criticism concerning the ineffectiveness of voluntary BHR norms and the evident continuity of human rights abuses committed by transnational corporations. The regulations are thus exemplary as a contemporary BHR approach that hopes to counter the negative impacts of corporate activity by incremental measures, closing governance gaps, and expanding accountability.Footnote 6
In addition to encompassing new legal instruments and regulatory frameworks, BHR has become an influential language used by scholars and NGOs to denounce and analyze violence in the context of transnational production networks. Importantly, with the rise of BHR norms, scholarship and activism, to speak of human rights violations by corporate actors has become a shorthand to denounce the violence that occurs in the context of transnational business activities – a violence that is often conceived as spectacular and exceptional. Similar to the Rana Plaza collapse and the Ali Enterprises factory fire, the images that come to mind when considering the kinds of situations the Act seeks to prevent, are those of disasters: for example, the deadly failure of large infrastructure projects (e.g., the dam collapse in Brumadinho, Brazil, in 2019), buildings on fire with hundreds of workers inside them (e.g., Pakistani factory fires in 2012), the systematic use of slave labour (e.g., the 2022 FIFA men’s World Cup in Qatar), and the targeted killing of those resisting so-called economic development (e.g., the killing of Berta Cáceres in Honduras in 2016 or of Bruno Pereira in Brazil in 2022). Against the spectacular backdrop of such events, BHR and the elimination of corporate violence have become synonymous.Footnote 7
Thus far, however, BHR norms have hardly been effective in curtailing violence in the context of business activities. Most existing critiques of BHR blame the voluntary character of many international agreements, such as the UN Guiding Principles, for this failure and demand mandatory due diligence legislation that also includes civil liability.Footnote 8 More fundamental critiques have argued that national mandatory due diligence laws, rather than effectively reducing corporate violence, have merely created a market for auditors and insurance companies, or that the extraterritorial reach of these laws reproduces colonial logics.Footnote 9 With this article, we seek to add to a critical understanding of the work that BHR regulations are doing. More specifically, we are interested in the ways in which BHR regulations shape our understanding of corporate violence, its underlying causes and possible remedies. With this interest, we join recent contributions from the field of Law and Political Economy (LPE), which argue that a BHR approach to corporate violence is failing, because the violence that BHR seeks to address follows the logic of legally constituted markets. This line of critique argues that unless the legal structures that produce these economic configurations are identified and changed, corporate violence will continue to persist.
What the LPE scholarship puts on the table is the relationship between corporate violence and the normal functioning of the economy. However, as we will explain in more detail in the next section, existing contributions do not engage with BHR regulations on their own. Taking the Act as an example, we advance an analysis of how BHR norms participate in shaping our perceptions of violence, its economic causes as well as possible remedies. We do so by reading these norms against the backdrop of a contrasting conceptual framework that builds on the literature on primitive accumulation from the field of critical political economy. Further removed from the realm of policy and law-making than BHR, this body of literature has produced comprehensive analyses of corporate violence not in terms of human rights, but in relation to the functioning of contemporary capitalism, including transnational production networks and foreign investment activities.Footnote 10
This shift of the analytical register allows us to bring into relief the framing of violence that underpins the BHR approach. We maintain that the Act draws a line between legal and illegal forms of doing business, a line that runs mostly parallel to the distinction that heterodox political economy makes between capitalist accumulation (the accumulation of surplus value through the exploitation of labour force) and so-called primitive accumulation (accumulation of wealth by other means, such as physical violence, the use of state force, or legal expropriation). This literature argues that while analytically distinct, both forms of generating capital are proper to the capitalist economy, past and present. It establishes a structural link between the normal workings of capitalist accumulation, including its everyday violence on the one hand, and forms of generating wealth that rely on the use of violence and state force – sometimes legally backed, and sometimes not – on the other.
The line that the Act draws between illegal and legal forms of doing business can be said to yield two discursive effects. First, it decouples recurring forms of primitive accumulation from capitalist forms of accumulation as if they were not structurally linked, and as if capitalist accumulation was not dependent on primitive accumulation. Second, it posits capitalist accumulation as opposite to corporate violence, thereby portraying it as non-violent. As a result, the Act does not merely attempt to remedy the violence produced by otherwise legally constituted economic structures; it participates in the discursive framing as to what constitutes violence in the context of transnational production networks, and where to locate its origins. In doing so, we suggest, BHR regulations participate in producing order out of the world of violence that capitalism constantly reproduces.Footnote 11 Here, more specifically, BHR legislation is concerned with making sense of various forms of violence that manifest themselves in the context of contemporary global capitalism.
Under the Act, for example, complaints will focus on the duty of companies to monitor compliance with health and safety measures to draw attention to dangers of deathly violence, such as the collapse of buildings. In this context, violence is conceived as the result of lacking enforceable regulations or failure to implement them effectively. From a primitive accumulation point of view, however, violence is understood to be present within the very mode through which capitalist forms of production function – for example, in the precarious working conditions in garment factories spread across the Global South, and a transnational legal regime that supports the maintenance of a disenfranchised cheap and compliant workforce that responds to shifting global economic dynamics.Footnote 12 From this perspective, deathly and spectacular violence and over-exploitation along supply chains is a problem that needs to be addressed, not in opposition to everyday non-coercive forms of exploitation, as BHR approaches imply, but in tandem with them.Footnote 13 We pay particular attention to how these prohibitions make sense of the relationship between violence and business practices.
We will develop this argument in four steps. In the following section, we will offer a short introduction to the literature on primitive accumulation and its place in contemporary capitalism, while at the same time explaining how this framework relates to existing LPE critiques of BHR (Section 2). We then engage in close reading of the prohibitions introduced by the Act, organized into three clusters.Footnote 14 The first cluster includes prohibitions concerning the protection of workers, including the use of child labour, forced labour, slavery, work safety, freedom of association, discrimination, and an adequate living wage (Section 3). The second set concerns the protection of the livelihoods of people, outlawing environmental damage, and illegal land appropriation in so far as they affect basic human rights (Section 4). Finally, the Act prohibits the hiring of public or private security forces if they violate protections against the use of torture, damage life or limb, or negatively impact the right to organize (Section 5).Footnote 15 We conclude that the challenge for a critical BHR practice consists in using BHR norms to highlight instances of primitive accumulation, while simultaneously envisioning a future of work that does not seek its redemption in ‘normal’ capitalist exploitation (Section 6).
2. Towards a political economy of Business and Human Rights
With this text, we put forward an approach that analyzes the political economy of BHR. This approach builds on the emerging LPE critiques of the BHR movement but shifts the vantage point from which we conceive of the link between law and political economy in the field of BHR. As we will explain in more detail in the first part of this section, an LPE perspective on BHR focusses on the law that constitutes those economic institutions and processes that cause human rights violations. While this perspective is important in identifying origins of human rights abuses and developing potential changes, it does not provide us with a political economic perspective on BHR law itself.
This is what this article sets out to do. Starting from the literature on heterodox political economy, in particular, on the relationship between different forms of accumulation, the second subsection introduces a conceptual framework against which we can identify implicit assumptions about political economy that are at work in the Act. In doing so, we substitute the legal (normative) distinctions between sanctioned and non-sanctioned forms of doing business with an analytical framework that conceptualizes the spectrum of violence in diverging forms of accumulation. Against the backdrop of this conceptual framework, BHR can be said to reinforce an economy of violence that separates out and draws attention to open manifestations of physical violence and the forceful eviction of people from the normal workings of capitalism, while at the same time making capitalism’s everyday or structural violence invisible.
2.1. Linking political economy and Business and Human Rights
Building on existing critiques of the BHR framework, Ioannis Kampourakis and Lottie Lane call for an LPE approach to BHR that aims at identifying and transforming ‘the legal structures that facilitate the accumulation of private power and lead to predictable patterns of human rights violations’.Footnote 16 With this proposed orientation, they introduce a much-needed shift in perspective in the study of the legal origins of violence in the context of transnational production networks. They argue that those forms of doing business that are outlawed by BHR, such as the repression of protests of large-scale investment projects, the withholding of wages, the use of forced labour and environmental pollution, typically result from a concentration of power that is itself the product of a set of legal, institutional arrangements. What follows from this approach is an opening up of possible points of intervention that do not seek remedy on the side of human rights compliance but, instead, call for a change in those legal structures on which transnational production networks rest.
In this literature, BHR regulations still occupy the role of normative standards, against which the legality of legal institutions that, by design, produce inequality and poverty should be assessed.Footnote 17 David Birchall proposes, for example, to understand human rights as a strategy to tackle undesirable economic configurations by pointing towards those laws that cause harm.Footnote 18 Similarly, Anna Chadwick argues that we have to move away from the idea that international human rights law is neutral with regard to the economic system.Footnote 19 If we are to take seriously states’ obligations to fulfil social, economic, and cultural rights, she argues, it is crucial to scrutinize the extent to which state laws, concerning the housing market for example, produce a system that by design works against the fulfillment of the right to housing.
We share the diagnosis underlying this literature, namely that BHR instruments are not effective at curtailing the business practices that they aim to address because they fail to account for their underlying causes. However, reducing the political economy approach to BHR to the constitutive role of law for the market’s functioning misses out on other links between law, political economy, and corporate violence at the level of international law. If LPE scholarship, understood broadly, is held together by a shared interest ‘in how law enables capitalist forms of exploitation and domination’,Footnote 20 it is worthwhile to inquire into how BHR regulations themselves participate in shaping our understanding of violence in the context of transnational production networks. Thus, we argue that the literature on the relation between different forms of accumulation, in particular so-called primitive accumulation and capitalist accumulation, offers a helpful historical and conceptual discussion against which we can systematize the ways in which the Act deals with different forms of violence, capitalism, and law. With this framework, we also contribute to the discussion on the role of international law within the regime of visibility reflecting the violence of international capitalism.Footnote 21
2.2. Entangled accumulation
The literature on wealth accumulation in a capitalist economy has long debated the relationship between purely capitalist accumulation, that is, the creation of surplus value through the exploitation of free wage labour on the one hand, and other forms of accumulation that directly rely on the use of brute force or the coercive power of the state, on the other. These latter forms of accumulation are usually filed under the heading of ‘originary’ or ‘primitive accumulation’, as both classic and orthodox Marxist political economy treated this modality as a historical phase necessary for the initial accumulation of capital, but which nonetheless remains distinct from capitalist accumulation.
A series of authors in a variety of disciplines have taken up the concept of primitive accumulation to make sense of those forms of capital accumulation that go beyond the generation of surplus value through the exploitation of free labour power. The examples we find in the literature range from the expulsion of the peasantry in England to the expropriation of land and the use of slave labour in the colonies, the imposition of taxes, and legally constructed concentrations of assets.Footnote 22 In what follows, we will briefly review how different authors have interpreted the notion of primitive accumulation and its relation to capitalist accumulation. We will conclude our discussion by introducing the concept of entangled accumulation, a concept that we take from Gonçalves and Costa,Footnote 23 to emphasize a coexistence and continuity of both forms of accumulation that have endured since the colonial encounter.
What distinguishes the conceptual framework of entangled accumulation from a BHR approach is that it links practices, such as land grabbing and the forceful expulsion of populations, to the establishment and restructuring of capitalist production processes. Where the normative BHR framework implicitly renders these instances as deviations from the norm of supposedly non-violent capitalist accumulation, the literature on primitive accumulation argues that these practices are representative of the normal functioning of capitalism. Therefore, the concept of entangled accumulation takes into account the transversal presence of violence in the capitalist economy, whereas BHR implicitly posits the ideal of a supposedly non-violent form of exploitation as a normative horizon. The shift in perspective that we introduce, as we will argue in more detail in the conclusion, has at least two practical consequences. It requires that when mobilizing BHR norms, we need to make an active effort to link instances of spectacular violence to more general economic processes, while at the same time highlighting the everyday violence on which capitalist accumulation is based.
The starting point for the conceptualization of primitive accumulation is often Marx’s short chapter on ‘the so-called primitive accumulation’ found towards the very end of Capital.Footnote 24 It is the penultimate chapter, followed only (but significantly, as we will see) by the chapter on the ‘modern colonial system’. Marx’s observations on primitive accumulation would sometimes also translate as ‘originary accumulation’, which appear after his lengthy analysis of the capitalist form of accumulation. If capitalist accumulation (the production of surplus value through the exploitation of the free wage labour) presupposes both the existence of capital and free workers, the chapter on primitive accumulation conveys Marx’s version of how capital and the free worker came into existence in the first place. As Marx observes in the opening of the chapter:
The whole movement [of capitalist accumulation] seems to turn around in a never-ending circle, which we can only get out of by assuming a primitive accumulation (the ‘previous accumulation’ of Adam Smith) which precedes capitalist accumulation; an accumulation which is not the result of the capitalist mode of production but its point of departure.Footnote 25
The concept of primitive (or ‘previous’) accumulation was not Marx’s invention. It was developed within the sphere of liberal political economy that constitutes the object of his critique, although his version of it possesses one salient difference.Footnote 26 Contradicting liberal accounts, Marx highlighted the physical violence and the coercive role of the state in the process of primitive accumulation. According to him, primitive accumulation was enabled by the forceful expulsion of the peasantry from their lands, the enactment of legislation that secured the availability of labour power, the establishment of colonial rule, the contraction of public debt, the implementation of a tax system, and the rise of international financial markets.Footnote 27 Marx’s emphasis on the openly violent aspects of this process is intended to highlight the inadequacy of liberal accounts of capitalism’s origins as a purely economic and peaceful affair that emerged smoothly out of the hard work of diligent men, or what he calls the ‘myth of primitive accumulation’.Footnote 28
Relevant to our discussion here, Marx’s distinction between primitive and capitalist accumulation is accompanied by a distinction between the modes of violence that characterize each of them. Capitalist accumulation rests on the differentiation between the moments of coercion (the state’s monopoly on the means of violence) and appropriation (the economy). The latter, according to Marx, is based on a ‘silent compulsion’ that obliges the worker, free from other reproductive demands, to sell his or her work on the labour market. Accumulation occurs, then, through the exploitation of paid labour – labour produces more value than is paid for its own reproduction.
With his emphasis on the silent compulsion that obliges the workers to sell their labour power, Marx critiques the ideology that underlies classical political economy, according to which the contract made between capitalists and workers is a voluntary agreement between two equals. In his analysis, he highlights additional underlying mechanisms of capitalist accumulation that are rendered invisible by classical accounts, such as the devastating physical consequences of various working conditions and workers who are often controlled by the products of their own labour (fetish), rather than the other way round.Footnote 29 In sum, Marxist readings of capitalist accumulation challenge the picture of ‘normal’ capitalist accumulation as a non-violent process.
While Marx reminds us about the violence that is required for the establishment of capitalism, he also suggests, as Robert Nichols points out, that ‘once the fundamental capital relation is established, extra-economic force will fade away’.Footnote 30 Rosa Luxemburg was one of the first to criticize Marx for confining the phenomenon of primitive accumulation to a precapitalist historical phase. She argues, instead, that primitive accumulation is a recurring phenomenon that belongs to capitalist accumulation ‘as an actual historical process’.Footnote 31
Recent discussions of primitive accumulation build on Luxemburg’s critique, arguing that primitive accumulation should not be confined to the birth story of capitalism but that instead, it constitutes a dynamic element of a global capitalist economy.Footnote 32 As Nichols explains, the literature on primitive accumulation has ‘shifted the temporal framework in Capital to a spatial one’, emphasizing the distinction and relation between forms of accumulation in the core and the periphery of the capitalist world system.Footnote 33
In this endeavour, various authors have specified the concept in different ways.Footnote 34 Some authors define primitive accumulation in terms of its function for the process of capitalist accumulation. For them, primitive accumulation only accounts for those processes that produce new assets (such as land) for uses of capitalist accumulation, as well as new labour power (what, in relation to the British experience, Marx called the separation of the producer from the means of (re)production). Other authors criticize this understanding as Eurocentric, as it is modelled against the historical experience of Great Britain that constitutes the regional focus of Marx’s historical materialism. In accounts of the constitutive role of colonialism and slavery in the emergence of capitalism, there is an emphasis on the forceful expropriation of land and the element of extra-economic violence as a central feature of primitive accumulation (rather than on the classic Marxist separation between the worker and the means of production/subsistence).Footnote 35 That is, rather than the function, they take the means through which primitive accumulation occurs – for example, the use of physical violence, force, and state coercion – as the defining element.Footnote 36 In this regard, Onur Ince observes:
[t]he colonial genealogy of capitalism is critical also because it provides us with the most ruthless instances of subsumption of land and labor under capital and thereby brings into sharper relief the element of violence by which primitive accumulation is carried out.Footnote 37
What, at first sight, might seem like a purely conceptual debate has important political ramifications. While the first group confines ‘primitive’ to the mode of expansion of capitalism, the second subsumes all instances of accumulation that do not rely on the exploitation of free labour under the category of primitive accumulation. The latter accounts insist that forms of accumulation that rely on open violence or the state belong not only to the historical origins of capitalism or to those societies which are ‘catching up’ with capitalist development, but also to places that already have a functioning market economy. In order to account for these interdependencies ‘between practices of exploitation and expropriation, wage and slave labour, state power and illegal violence, and capitalist and non-capitalist economies’ Gonçalves and Costa introduce the term ‘entangled accumulation’.Footnote 38 In the remainder of this text, we use this term as a shorthand to summarize the central insights of the literature on primitive accumulation and its place within capitalist development.
Against the backdrop of this brief introduction, we are now in a position to specify the shift in perspective that the concept of entangled accumulation introduces in relation to existing LPE approaches to BHR. As indicated above, LPE literature describes a causal link between the legal constitution of capitalist accumulation and human rights violations. Specific contractual arrangements in value chains, for example, are identified as the cause of a price squeeze which leads to a violation of international labour standards regarding minimum wages. The notion of entangled accumulation, in turn, assumes a structural relationship between capitalist (i.e., legal, economic, acceptable) and primitive (i.e., extra-legal, non-economic, physically violent, unacceptable) forms of accumulation. When we identify ongoing practices of land grabbing or deforestation – more than often accompanied by forceful expulsions and repression against those who resist – as instances of primitive accumulation, we situate these acts in the context of the global expansion and maintenance of (legalized, supposedly non-violent) capitalist accumulation.
We think that the LPE approach to BHR is helpful in identifying legal pressure points through pointing out the (legally constituted) economic origins of certain human rights violations. However, it is not immediately clear, for example, how what BHR legislation describes as the excessive use of state force can be traced back to the legally constituted economy.
2.3. The economy of violence in Business and Human Rights
Pinpointing entangled forms of accumulation in contemporary capitalism also allows us to make sense of what could be at stake in contemporary legal efforts to prohibit the most visible and salient instances of violence in the context of contemporary value chain capitalism. As we will see, the Act decouples instances of dispossession, over-exploitation and physical repression – often spatially isolated from the economic centre – from the normal functioning of the market economy, while simultaneously positing the normally functioning market economy as non-violent. The Act thus draws our attention to certain forms of violence, while keeping the silent compulsion of the market beyond the purview of inquiry. It thereby produces an (implicit) global economy of violence, the implications of which can be illustrated with reference to Michael Perelman’s discussion of Marx’s original account of primitive accumulation.
Perelman argues that in confining primitive accumulation to a specific historical phase rather than as the defining element of capitalism, Marx might have sought to prevent the visible violence that characterizes primitive accumulation from distracting from his larger critique of capitalist accumulation.Footnote 39 After all, the main purpose of Capital was to show that capitalist accumulation, in the form of contractual labour relations, was, contrary to what liberal political economy suggested, an exploitative and violent system. According to Perelman,
Marx would not have wished his readers to believe that measures to eliminate ‘unjust’ instances of primitive accumulation might suffice to bring about a good society. To stress the continuing influence of primitive accumulation would have risked throwing readers off track. Certainly, Marx did not want his readers to conclude that the ills of society resulted from unjust actions that were unrelated to the essence of a market society.Footnote 40
Regardless of Marx’s intentions, Perelman’s observations highlight what is at stake in supply chain laws like the Act. By outlawing the open and physical violence that accompanies many business operations, the Act suggests it is possible to do away with these business practices and, as a result, the rest of the economic system will be fine. In this sense, Marx’s account of primitive accumulation is still a powerful reminder of the most visible violence that accompanies processes of primitive accumulation, while also acknowledging the structural, less visible, implicit and non-capitalist violence that runs through capitalist accumulation, and its role in the capitalist system as a whole.
Against this backdrop, we should be wary of the economy of violence that is produced by outlawing certain forms of violence and making the everyday violence of capitalism invisible. If we are concerned about the open forms of violence, then we should also be concerned about the less visible forms of violence, because they are structurally connected. To say that they are structurally connected, however, does not mean that they are equally deplorable. The division between both forms of accumulation, and hence the different forms of violence that correspond to them, runs along colonial geographies and racialized bodies.Footnote 41
In the following sections, we discuss the prohibitions included in the Act in light of our proceeding discussion. The conceptual and analytical discussion about primitive and capitalist accumulation and the implicit economy of violence underpinning the Act helps us to tease out its underlying assumptions and how BHR regulations delink corporate violence from business as usual.Footnote 42
3. Making sense of labour exploitation
The first eight prohibitions listed under §2 of the Act concern the regulation of labour. They prohibit the use of child labour (No. 1, No. 2), the use of forced labour and slavery (No. 3, No. 4), the violations of safety and health regulations (No. 5) and of the right to association (No. 6), discrimination at the workplace (No. 7), and the withholding of an adequate living wage (No. 8). These prohibitions are derived from a series of conventions adopted by the ILO that are listed in the Act’s annex.Footnote 43
In general terms, these prohibitions draw a line between ways of exploiting human labour that are considered acceptable and those that are not. In this section, we argue that the Act, as is the case with similar instruments of corporate due diligence, reinforces the imaginary of liberal political economy where over-exploitation and expropriation of labour are at odds with a capitalist market economy. At the same time, it poses formal contractual working relationships – which are often precarious at best in the spaces where transnational corporations operate – as a normative horizon, limiting other ways of organizing work. The prohibitions suggest a clear-cut distinction between unacceptable and accepted forms of labour exploitation. However, from the perspective of entangled accumulation, they represent a continuum of various forms of unfree labour (from the ‘silent compulsion’ of labour relations that take place in the ‘free’ market to slavery) that are analytically distinct but structurally linked and, sometimes, empirically indistinguishable.
To substantiate this argument, let us start by briefly mapping the prohibitions regarding labour onto the different logics of accumulation introduced in the previous section. Like labour laws at the national level, those norms regarding health and safety regulations, child labour and living wages put a limit on what Étienne Balibar calls the ‘normalisation of over-exploitation’ inherent to capitalism.Footnote 44 This means that capital accumulation takes place through the exploitation of a free labour force which produces more value than is needed for its reproduction. Labour regulations establish a line between (legalized) exploitation and (illegal forms of) over-exploitation, a line that is neither self-evident nor objective. It is the result of societal struggles over the legal limits to exploiting human labour for profit. They address the conditions of capitalist accumulation, that is, the accumulation of surplus value through the (legalized) economic exploitation of labour force.
Prohibitions of forced labour and slavery, in turn, outlaw what, prima facie, are instances of primitive accumulation: economic processes that generate capital not through capitalist accumulation, but through specific legal arrangements, open violence or the coercive capacity of the state. Legally, such conditions are defined by a lack of agency and decision-making power for those on the receiving end of violence.Footnote 45 No longer in the position to freely sell their labour power, the enslaved or those forced to work are expropriated rather than exploited.Footnote 46 From the political economy perspective outlined above, the prohibitions regarding the use of forced labour and slavery differ from the other prohibitions in that they concern the expropriation of labour (rather than its exploitation). This distinction becomes relevant when we try to understand how distinctions are made between legal and illegal ways of doing business.
With the prohibitions, the legislation reacts to typical risks in the supply chains. Civil society organizations continue to document an ever-increasing number of individuals in non-voluntary working arrangements. Empirical research shows that a combination of factors produces conditions of forced labour or slavery-like situations. These include situations of poverty, discrimination, the lack of labour regulations, restrictive mobility regimes on the supply side of the work force, and concentration of economic power and outsourcing on the demand side of cheap labour.Footnote 47 While forced labour is economically built in this way into the system of contemporary supply chain capitalism, due diligence legislation, such as the Act, suggests that unfree labour can be separated from normal ways of doing business through management decisions. As existing literature on the 2015 British Modern Slavery Act has shown, forced labour is thereby portrayed in due diligence legislation as a problem of greedy businessmen or bad apples that can be managed through human rights due diligence.Footnote 48 Prohibitions on forced labour and slavery in such a setting fail to account for root causes and, according to our argument, reproduce the liberal move to separate a forceful expropriation of labour from the normal functioning of capitalism.
The prevalence of unfree labour in the present-day economy continues to fuel a discussion about the role of unfree labour in a capitalist economy. For many liberal economists (and some Marxists) unfree labour is at odds with capitalism. For them, capitalism is defined by the free labour market and, thus, the accumulation of surplus value through the exploitation of free wage labour. Liberal political economy thus explains the ongoing prevalence of unfree labour with reference to human failure (greed) or through a developmental logic according to which instances of unfree labour belong to economic systems that are not yet fully capitalist. Capitalism is equated with capitalist forms of accumulation, which in turn is understood as a sphere free of force.Footnote 49
As already suggested in the previous section, accounts of primitive accumulation that focus on the political economy of slavery and forced labour place unfree forms of labour at the centre of capitalism’s historical development and its continuous reproduction. The Act meets this analysis with a formal normative commitment: prohibiting explicit forms of unfree labour, while maintaining the assumption that the expropriation of the workforce otherwise is in direct tension with the realization of the free market.
We can further deepen this analysis by looking at those international treaties that form the legal basis of the prohibitions of ‘the employment of persons in forced labour’ and of ‘all forms of slave labour’. For their normative foundations, the Act refers to international treaties, namely the ILO Convention No. 29 concerning Forced or Compulsory Labour (of 28 June 1930), ILO Convention No. 105 concerning the Abolition of Forced Labour (of 25 June 1957) and the Protocol of 2014 to the Forced Labour Convention. The 1926 Slavery Convention is not listed in the Annex but is indirectly invoked through the addition of the Protocol on Forced Labour that refers to both the 1926 Slavery Convention and the Supplementary Convention from 1956.
A. Blackett and A. Duquesnoy have argued that the legal definitions of slavery and forced labour within these international norms bear no traces of their ‘rootedness in the legacies of the racialized unfreedom of transatlantic slavery’.Footnote 50 However, several scholars have been revisiting the role of international law, especially the ILO, during the interwar period in order to rewrite the colonial context back into our understanding of international labour regulation. What these different bodies of literature have in common is that they place the regulation of slavery and forced labour within the framework of racial capitalism.Footnote 51
The early ILO conventions on forced labour were meant to solve what was defined as the question of ‘native labour’ through international law.Footnote 52 Rather than framing forced labour and slavery as a moral question, Hammoudi has shown that their regulation was part of securing both a workforce within the context of colonial rule, as well as achieving the standardization of free labour more broadly.Footnote 53 Looking at the southern African continent, the lack of sufficiently available free labour generated an economy that relied on the use of forced labour and the need to move inhabitants away from their lands to plantations and mines.Footnote 54 To accommodate these needs, the ILO convention provided for the temporary permission of the use of forced labour. While this exception to the rule was later abolished, it points us to the role of the Forced Labour Convention in legitimating the transition to capitalist production in the colonies. After decades of violent expropriation and explicit primitive accumulation of labour in the context of an emergent globalizing capitalism, the banning of forced labour turned this violent practice into the ‘other’ of capitalist development. The transitional exception to this prohibition secured, however, the supply of a workforce so that the prohibition would not affect the actual functioning of the capitalist economy.
While the current global economy differs substantially from that of the 1920s and 1930s, systemic unfree labour remains prevalent in the context of global production networks, fulfilling their need for a cheap workforce to meet pricing demands. The explicit ban on forced labour within BHR legislation achieves a particular aspiration of standardization, forgetting that the use of unfree labour easily continues under formal contractual relationships. While the Act does not include an official exception allowing forced labour as the ILO conventions did at the beginning of the twentieth century, the fact that the prohibitions only require due diligence effectively allows corporations to continue with their business practices. As a result, the Act reproduces a narrative according to which the capitalist economy relies solely on free labour, while allowing enough room for the actual expropriation of the workforce along supply chains so that the economy, in this case Germany’s, is not negatively affected.Footnote 55
Importantly, the standardization of free labour in the 1920s and 1930s was posited as an expression of progress and civilization. In the context of the abolition of slavery, Vasuki Nesiah has argued how the normative horizon of indenture was ‘framed – and redeemed – not only in the name of profit and productivity but also in the name of protection and political virtue under the umbrella of humanitarian imperialism’.Footnote 56 The task of the ILO, again according to Hammoudi, ‘was to develop “civilized” labour policy for the native so that he begins to “work for his own civilization” and transform his primitive society into a “producer and consumer society”’.Footnote 57
The fact that the Slavery Convention and Forced Labour Convention fused ‘denunciation of slavery with the promise of protection and profit’ also haunts the Act.Footnote 58 Together with the prohibitions of certain forms of over-exploitation mentioned above, the prohibition of slavery and forced labour posit free, formal wage labour, as just mentioned, as an unspoken promise of redemption. When we address the prevalent problem of violence in the appropriation of human labour through BHR frameworks, we implicitly posit contractual working relationships as the answer. This ‘dream of formality’Footnote 59 underpinning BHR legislation informs larger economic policies of international economic institutions, which are problematic for at least two reasons. First, where formal, contractual working relationships are seen as the key to economic development, the vast so-called ‘surplus population’ will never be absorbed by the official market (which also relies on the value produced in the informal economy). Second, the normative project of free labour participates in reproducting it as non-violent.
In this section, we have argued that the transnational regulation of labour does not escape the colonial origins of international law and is very much inscribed in its legal doctrines, in so far as the separation between free and unfree labour reproduces a civilizing discourse that posits capitalist accumulation as the historical norm.Footnote 60 In doing so, it expels the violence of primitive accumulation, such as slavery and other forms of forced labour, from the logic of capitalist accumulation, while also positing formal labour regimes as non-violent answers to unfree forms of labour.
4. Making sense of environmental damage and land expropriation
The Act includes two prohibitions concerning environment-related damages, and unlawful land grabbing and evictions in the context of business activities. The extent of the environment-related prohibitions is determined by the joint interpretation of §2.2.9Footnote 61 with §2.3.Footnote 62 The dimensions of land-related prohibitions are specified in §2.2.10.Footnote 63 In this section, we draw on the framework of entangled accumulation to understand how the Act conceives of the role of nature and land in transnational production networks. The BHR perspective expressed by the Act views environmental harm and land expropriation as manageable side effects of business activity, limited to incidental instances of over-exploitation and gross harm. In contrast, a primitive accumulation approach identifies the structural relationship between these practices and legalized capitalist accumulation.
Scholars have long emphasized the significance of processes of nature and land appropriation and exploitation as part of ongoing instances of primitive accumulation in contemporary capitalism. In developing a Marxist critique, these accounts show that such processes provide inputs for production and surplus extraction, while also aiding in the proletarianization and displacement of populations.Footnote 64 Furthermore, they highlight the crucial role that appropriation of nature and land plays in enabling capitalism’s spatiotemporal expansion, whether to deal with overaccumulation and crisis or to overcome social and ecological obstacles.Footnote 65 Situating these processes within the colonial genealogy of capitalism, this scholarship argues that the forcible appropriation and exploitation of lands and nature continuously shape uneven global geographies to accommodate power and profits.Footnote 66 The violence infringed upon nature and lands is, therefore, constitutive of capitalist accumulation, as it enables its deepening, maintenance, and survival.
When outlawing certain forms of forcible land appropriation and environmental degradation within transnational production networks, the Act thus separates non-admissible environmental damage and land takings from permissible value accumulation. This separation is illusory in so far as it obscures how these forcible processes of appropriation are not incidental to business activity but, rather, are part of a continuum of economic and non-economic violence infringed upon nature and land that allows for capitalism to expand and cope.
Through such a distinction, the Act shapes our understanding of the place of nature and land in the functioning of capitalism and legitimizes their exploitation within these illusory margins. It considers business-related impacts on nature as protected positions if they (i) are excreted upon soil, water, air (ii) can be qualified as pollution or waste; and (iii) affect a human life.Footnote 67 Framed in these terms, the Act recognizes environment-related harms to be relevant only if they involve pollution or toxic waste that affects a person’s access to food, drinking water, sanitary facilities, or health.
Through this discursive structure, the Act produces a particular understanding of the place of nature within global production networks and defines the acceptable margins of exploitation that nature must bear to enable the (explicitly non-violent) functioning of business activities. It does so, by (i) operating on a fictional anthropocentric account of nature, (ii) mobilizing a vision of nature and society as distinctive realms, and (iii) pretending that capitalism’s impacts on nature are confined to the most overt practices of toxification and depletion.
Firstly, the notion of environment upon which this prohibition is built conceptualizes nature as a collection of discrete resources (soil, water, air, noise). These resources only become relevant with regard to their compartmentalized degradation and their impact on human individuals. Capital accumulation, however, involves transforming ‘biophysical relationships’, rather than individualized elements and compartmentalized impacts.Footnote 68 This attention to the complex array of factors, materialities, relationships, and co-dependencies that define nature contrasts sharply with the Act’s fictional and anthropocentric view of nature as composed of static objects of appropriation and degradation, which obscures broader socioecological dynamics at play.Footnote 69
Secondly, the Act’s understanding of nature stems from a normative assumption about nature’s role in the capitalist economy. It conceptualizes capitalism and nature as separate domains, interacting in a significant way only when humans excessively degrade nature. From a primitive accumulation perspective, Jason Moore has argued that this nature-capitalism and, more broadly, nature-society binary is a flawed construct that justifies the capitalist instrumentalization and exploitation of nature and the erosion of responsibility for its degradation.Footnote 70
The nature-society binary is central to how the Act addresses the violence exerted over nature when regulating corporate conduct. While the Act portrays businesses as selectively polluting an otherwise pristine nature, every interaction between nature and capitalism is mutually constitutive and transformative. This interconnected view of socioecological processes contrasts sharply with the notion of an external, passive environment distinct from the social processes that happen within it. By adopting this binary, the Act frames nature as an exploitable and commodifiable collection of resources, out there waiting to be put to work.Footnote 71 Nature’s existence and its experience of capitalist activity are (re)produced as external to the human world, gaining legal relevance only in situations of excessive degradation which affect human individuals. Human tolerance to natural degradation is then the threshold for environmental harm, seen especially with certain toxic substances that produce a negative effect on the human body.
Thirdly, the Act prohibits pollution and toxic effects on nature from mercury and other chemicals as non-admissible forms of accumulation, assuming that these are the only significant violent impacts of corporate activity. However, pollution and waste extend well beyond what the Act considers worthy of attention. Not only is there not a one-way relationship of degradation between nature and capitalism as discussed by Moore, but capitalist accumulation operates through nature and exerts violence upon it in broader and more complex ways.Footnote 72 Indeed, business practices impact nature through nonlinear causalities of pollution and waste in a variety of ways, extending beyond the impact on individual human beings.
Consider, for example, the case of gold mining in the Amazon rainforest.Footnote 73 While the use of toxic chemicals in mining falls under the Act’s prohibition and might prevent a company from dumping mercury into rivers and contaminating drinking water, the broader impacts of mining extend far beyond this. Mining operations involve severe landscape modifications, clearing vast areas of forest, disrupting rainforest ecological connectivity, displacing native species while promoting others, degrading soil fertility, and causing erosion. These impacts will manifest within other geographies and participate in the global dynamics of climate change, displacing local populations and transforming socioeconomic structures. Some impacts might only become evident long after mining operations cease, allowing some forms of life and ecologies to flourish while closing off possibilities for others.
Moreover, the restricted scope of the prohibition does not capture critical processes of non-pollutive extraction, overexploitation, and accumulation that profits from intentional degradation or preservation.Footnote 74 As LPE and primitive accumulation scholars have argued, the financialization and commodification of nature are increasingly operating through environmental instruments, like carbon offsets, payment for ecological services, and valuation of biodiversity as natural capital.Footnote 75 Often framed as conservation efforts, these international legal instruments turn nature into a financial asset and facilitate the persistence of capitalism by extracting value from ecological processes while reinforcing anthropocentric control. Regardless of the perceived degradation required by the Act, carbon bonds that purportedly aim to address deforestation are already dividing indigenous peoples in the Amazon and under-compensating the socioecological relationships within the rainforest ecosystem.Footnote 76
Thus, where the BHR framework sees a one-way relation of degradation, an entangled accumulation perspective highlights the co-constitutive role of the transformation of nature, its socioecologies, and materialities with and within capitalism. The distinction between admissible and inadmissible conduct is not only illusory but mobilizes an understanding of the relationship between nature, human society, and capitalism that legitimizes the exploitation of nature.
On the other hand, unlike the environment-related provision, the ‘prohibition of unlawful eviction and unlawful taking of land, forests, and waters’Footnote 77 lacks any definition of what constitutes a ‘taking’ within the scope of the Act. The prohibition simply requires that either evictions or takings of land be deemed unlawful when coupled, once again, with a human-centred impact threshold – specifically when the use of such land ‘secures the livelihood of a person’.Footnote 78
In contrast to this focus on lawfulness as a regulatory pivot for corporate land grabbing, a primitive accumulation perspective highlights that legal structures are functional for and sometimes complicit in the political economy of land takings. When outlawing unlawful land appropriation, and thus treating it as incidental to business activity, the Act assumes (i) lawfulness to be a guarantee of the non-violent character of land takings, (ii) states acting as neutral agents granting non-violent takings and evictions backed by law, and (iii) the equivalence of law’s institutional and coercive power with non-violent free market transactions. By doing so, the Act legitimizes equally forceful, yet legal land takings, framing them as admissible and non-violent, and defines the margins of tolerable violence on lands and livelihoods within transnational capitalism.
Firstly, the Act does not define what constitutes ‘unlawful eviction’ and ‘unlawful taking’, leaving an indeterminate lawfulness be the parameter that traces the line between acceptable and unacceptable forms of land taking. In this regard, and in resonance with LPE scholarship on the matter, the primitive accumulation literature strongly problematizes the law’s role as an enabler of, rather than a constraint upon, violence.Footnote 79 Sparked in part by Harvey’s concept of accumulation by dispossession, scholars have examined how various mechanisms of land appropriation – from land-use zoning tools and large-scale agriculture promotion to private investment schemes and financialization – coerce populations into displacement or alternative land uses, enabling capitalist accumulation through the law’s extra-economic reach.Footnote 80 Lawful land grabbing and complex forms of dispossession have resulted in the violent alienation, displacement, or forced removal of populations, while concentrating land ownership, use, and control for corporate interests.
Secondly, this active role of legal structures in facilitating land takings is coupled with the institutional and coercive power of the state that lawfully promotes land grabbing for corporate projects. For instance, Michael Levien’s analysis of India’s Special Economic Zones puts in evidence how common, public, and private lands have been widely transferred to capitalist agents via legal and state-backed schemes.Footnote 81 As he highlights, states’ act as agents that enable land transfers through legalized strategies, assisting ‘capitalists in overcoming the barriers to accumulation’ presented by economic, social, or ecological conditions.Footnote 82 Frequently in the name of economic development and public interest, states enable the removal of populations and vacate lands for more profitable uses. Numerous instances of forced evictions and expropriations, such as large-scale agribusiness in Bajo Aguán (Honduras), the Hidroituango Dam (Colombia), and the Dakota Access Pipeline (United States), demonstrate the law’s coercive and enabling role in land takings for corporate interests, coupled with the state’s active role in materializing these projects. These examples illustrate how lawful and state-sponsored land taking aids in the expansion of capitalist modes of production and the violent incorporation of human and non-human lives into extractive economies when the places they inhabit spark the interest of developmental projects.
Thirdly, by disentangling legal forms of land taking from violent ones, the prohibition (re)locates legal takings and evictions within the realm of normal, non-violent, and voluntary transactions. However, primitive accumulation literature shows that legal structures, operating on local and global scales, facilitate land transfers from local populations to companies, forced evictions in the name of public interest and development, and agricultural policies favouring corporate interests over local livelihoods. Contrary to the Act’s suggestion, processes of land taking actually result from purportedly voluntary or public interest transactions that involve a combination of physical force, legal frameworks, and economic policies.Footnote 83
Overall, if the exploitation, extraction, depletion, underestimation, appropriation, and dispossession of nature and land are inherent to capitalism rather than incidental, as our perspective suggests, then the Act’s purported protection operates under the false premise that these violent practices can be separated from capitalist accumulation. This obscures the structural link between capitalist accumulation and the appropriation of nature and land, pretending to get rid of the problem, while legitimizing practices that exceed its narrow scope. By doing so the Act shapes our understanding of the role of nature and lands for capitalism based on (in)admissible violence, and it delimits the levels of exploitation that they should bear for the normal functioning of business activity.
5. Making sense of physical repression
We now turn to the last prohibition which applies to situations where the ‘hiring or use of private or public security forces for the protection of the enterprise’s project if, due to a lack of instruction or control on the part of the enterprise, the use of security forces’ violates the physical integrity of the human body or impairs the freedom of association.Footnote 84 As with the other prohibitions analyzed thus far, the Act also responds here to typical ‘risks’ in supply chains. Many corporations hire private security forces to protect their private property or hold contracts with the host state, while the latter commits to protecting the investment with its military personnel.Footnote 85 The list of instances in which private or public security forces participate in repressing those resisting large-scale investment projects or those organizing for better working conditions with physical violence is long.Footnote 86 A prominent example is the violent, and in some cases lethal, repression of the Ogoni people, following their protest against Shell’s activities in the Niger delta, by the Nigerian military.Footnote 87 But we can also think of Chiquita’s secret payments to Colombian paramilitary groups as part of the company’s ‘security’ management or, to shift our gaze to the Global North, the forceful eviction of protesters that sought to prevent the expansion of the RWE open mining pit in Germany.Footnote 88
These are only a few examples from a myriad of constellations in which the operational business is secured by private or public security forces. Yet, when we look closely at the phrasing of the prohibition, it becomes evident that it outlaws the use of public and private security forces by a company only if the hiring results in the violation of human rights and labour standards, due to the lack of instructions. In the context of BHR, the typical situation where this would apply is ‘high-risk’ areas, characterized by armed conflict, authoritarian regimes, or so-called fragile states.Footnote 89 The underlying assumption here is that in an environment in which state forces violate human rights on a constant or regular basis, or in which private security can act with impunity, companies are more likely to inadvertently participate in human rights violations or take advantage of the situation. Because a general human rights risk is assumed to exist in these spaces regardless of the business activity, the rationale for the violence is attributed to the state or to individual misconduct.Footnote 90
We can further understand the implications of this legal framing of repression in response to protests or strikes by contrasting it with an interpretation of the use of state or private security forces from a perspective of entangled accumulation. The shift in perspective prompts us to think about the use of security forces not in terms of legal causality, as the Act necessarily does, but in relation to the mode of production. From this perspective, the illegal use of force by either public or private security personnel is not an aberration from the norm or a sign of its inability to secure a monopoly on the means of violence. Instead, to think about the use of public and private security forces in terms of entangled accumulation requires us to situate these instances in the context of a wider spectrum of public and private institutionalized practices that seek to secure either the expansion or protection of capitalist production processes.Footnote 91 They often occur in the extractive economy or in the context of large-scale investment projects that, from a political economy perspective, are primary examples of primitive accumulation: they seek to expand the capitalist production process by integrating new land, often separating people from their own means of reproduction.
In orthodox (European) Marxist theory, the extra-economic coercion that characterizes primitive accumulation (that is, accumulation that does not solely rely on the exploitation of labour power) is often associated with the monopoly of violence held by the state, meaning its capacity to implement and enforce the law. In this sense, much materialist state theory has focussed on the constitutive role of the modern state (and the law), with its monopoly on physical violence, for the economic sphere.Footnote 92 Similarly, the literature from the field of LPE has highlighted the role of law in providing the legal foundations for the capitalist accumulation of wealth and the importance of the state in securing the enforcement of privately accorded contracts.Footnote 93 From the perspective of this literature, the modern state is at its core a capitalist state not because it acts on behalf of or in the interest of the capitalist class but because it is co-constitutive of the private sphere (of capitalist accumulation) as a separate realm. In this vein, Gramsci, as well as neo-materialist approaches to the state, famously argued that the state only resorts to force when hegemony cannot be organized otherwise.Footnote 94 The clear-cut distinction between the state as holder of public authority on the one hand, and a free economic sphere governed by the forces of the market on the other, which underpins not only the liberal but also some Marxist understandings of the modern state, has been challenged by several authors as not holding up to the experience of the modern state in the Global South.Footnote 95 For many individuals, the exercise of public power by large corporations as well as the exercise of force by private actors are lived as normal manifestations of the modern state.Footnote 96 From this perspective, the state needs to be thought of as an apparatus of governance that combines private and public actions, and that acts across both legal and illegal means.Footnote 97 The use of force (or the failure to prosecute illegal violence), rather than being a mere indicator of the absence of the rule of law, can be situated in a continuum of state and/or para-state practices, legal and illegal, that work to secure the expansion or reorganization of the capitalist production process. Use of force by the state can be legalized, for example, if public security forces help to evict land that is legally owned by a transnational company. It can also be illegal or para/legal, such as if the violence is qualified as excessive, if the eviction is not based on any legislation or is carried out directly by state security forces.
The prohibitions concerning the use of security forces, as we can establish now, rest on at least two assumptions that are dear to liberal political economy. First, the prohibition of hiring or using public or private security forces suggests that outlawing the recurrent repression that comes with the use of force for the protection of transnational business activities will make a substantive change. The focus on the illegality of particular instances of violence, however, isolates these events from wider institutional and economic processes in which they are embedded.Footnote 98 Second, understanding the physical repression by state forces in terms of entangled processes of primitive and capitalist accumulation sheds light on the constitutive role of the state in enabling the supposedly ‘free’ economic realm. This role is only explicit when the normal functioning of the capitalist accumulation process is threatened with interruption. This often means that attention is only paid to specific, highly visible manifestations of physical violence as instances of the constitutive character of the monopoly on force for the process of capitalist accumulation.
From this perspective, in outlawing the use of physical repression, the Act reifies the liberal ontology, according to which the state and the economy are separate spheres. It reintroduces a normative (not necessarily factual) distinction between the public and the private as separate entities. All the other instances of background violence supported by the state in favour of the process of capital accumulation, including, for example, the criminalization of protest through legislation, are often left below the radar of attention.
In sum, the use of physical violence by public and private security forces is not an aberration from non-violent practices of capitalist accumulation; rather, it is needed to secure the expansion of capitalist production. To understand the use of police/security forces in terms of primitive accumulation (rather than unfortunate excesses) means to link it to the normal working of capitalist accumulation. This link is one of causation and relation, namely, to think extreme forms of violence by security forces together with the structural violence of normal capitalist accumulation.
6. Towards outlawing primitive accumulation
We started this text with the observation that BHR has emerged as an influential language in academic and public policy debates, in order to denounce and analyze violence in the context of transnational production networks. Through the lenses of BHR, violent events are seen as deviations from capitalist production that can be mitigated through legal regulation. However, as we have argued here, BHR delinks open violence, as well as the less visible, yet still systemic, violent practices associated with transnational production networks, from the normal functioning of the transnational capitalist economy. Thus, BHR not only fails to address the root causes of the violence it seeks to end, but it also legitimizes and normalizes capitalist accumulation as non-violent.
Adding to LPE debates, along with insights from primitive accumulation literature, we have substantiated our argument with a close reading of the prohibitions listed in the German Supply Chain Due Diligence Act. We aimed to propose a shift in perspective in order to appreciate the global economy of violence that the Act seeks to address, yet fails to and, instead, reifies. With this change in perspective, we introduced a conceptual framework that links diverse forms of violence to each other. While not every human rights violation or instance of physical violence in transnational business activities automatically constitutes an instance of primitive accumulation stricto sensu, this perspective invites deeper inquiry into the economic logic driving the violence that accompanies transnational production networks.Footnote 99
Our analysis stems from three thematic clusters of the Act’s prohibitions. Firstly, concerning the regulation on labour, we argue that the clear-cut distinction between free and unfree labour neglects the systemic role of unfree labour within the capitalist economy, implicitly portraying indentured wage labour as the ideal model.Footnote 100 Secondly, regarding nature and land, we reveal the Act’s anthropocentric underlying assumptions, and its narrow view, about what constitutes environmental harms and how they happen in the first place, and question legality as a guarantor of non-violence. Thirdly, regarding the use of state and private security forces, we highlight that visible violent repression is merely one aspect of a much broader set of state and para-state practices that secure and support the expansion of capitalist relations. This argument questions the Act’s potential to prevent or avoid current and future instances of violence that occur within transnational production networks and exposes the intertwined reality over which it pretends to trace boundaries between admissible and inadmissible corporate conduct.
We maintain that critical engagement with the Act must counter the tendency to separate acts of violence from underlying structures and their role in constituting a capitalist international order. This requires, among other things, linking visible, explicit forms of violence which the Act covers (such as the forceful expulsion of peasants from their lands, the forced labour in the garment industry, and the toxic pollution of nature), to the critique of the economic processes that produce these and many other instances of violence. Understanding the assumptions about business activity, violence, and the economic structures underpinning the Act is crucial for addressing human vulnerability in the context of transnational production networks.
Our findings challenge the vision that a ‘socially sustainable globalization’ can be achieved by modulating corporate conduct through guiding principles and standards that conduce them to respect human rights.Footnote 101 They also challenge the assumption that the main problem of BHR is its voluntary character,Footnote 102 as the structural delinking of violence from capitalism is integral to the norms themselves.
These insights leave us with two critical questions: First, from a political economy perspective centred on primitive accumulation, how do we make sense of contemporary efforts to address physical repression, dispossession, and over-exploitation within transnationally organized production chains in terms of BHR? Second, considering that BHR legislation, such as the Act, is one of the few tools available to address the violence inflicted in the context of transnational production networks, what are the implications of our analysis for strategically engaging with these norms?
Regarding the first question, and keeping in mind works that use primitive accumulation to highlight the centrality of colonial exploitation (such as land taking, slavery, and other forms of colonial violence) in the emergence and the reproduction of capitalism, it is important to remember the role of international law in this process.Footnote 103 International law has historically provided the legal arguments to justify and legalize – often ex-post – ongoing exploitation and violence,Footnote 104 and has also provided the language to separate this violence from the processes it supports. As argued above, Hammoudi has explored, for example, how the ILO convention’s prohibition of forced labour must be understood within the context of European abolitionism, a key part of the transition to capitalist accumulation.Footnote 105 This raises the question of whether the Act and other BHR norms might be having similar effects. In this context, and echoing Ntina Tzouvala, we argue that the Act participates in producing order from the chaos of combined and uneven development that capitalism constantly reproduces.Footnote 106 It produces and manages different treatments and applications of norms worldwide, impacting how economic and social processes unfold locally.
Regarding the second question, mobilizing the Act and BHR norms to counter explicit forms of violence in transnational production networks continues to be valuable. However, exposing the global economy of violence enabled by the Act is essential to understanding its politics. As Robert Knox points out, ‘in the absence of an overarching strategic vision, there are no criteria for deciding when one should use the language of liberal legalism and when one should not’.Footnote 107 This article introduces the concept of primitive accumulation to counter the BHR discursive tendencies to selectively link and delink violence from underlying structures. From this perspective, critical engagement with BHR should aim to reveal and denounce the violence that occurs in the context of transnational business activities, while opening spaces to withdraw from capitalist production and envision alternative existences.
For those affected by extreme forms of physical violence accompanying overt forms of primitive accumulation, transitioning to less violent forms of economic accumulation (such as legal evictions or free labour contracts) is often a relief, not to mention a precondition for engaging in further struggles. Sometimes, however, these sorts of transitions make little or no difference. With that in mind, deciding when and how to tactically mobilize the German Supply Chain Due Diligence Act or other BHR regulations requires first understanding, and then facing the challenges of combining violence and the planet’s web of life, to echo Jason Moore, within the frames imposed by BHR instruments. Secondly, it is necessary to maintain another language in order to understand what is going on in transnational production networks, and to imagine how we want the global economy, and the world in which we want to live, to be organized.
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