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al Attar, Mohsen --- "The Transnational Peasant Movement: Legalising Freedom from Want" [2010] NZYbkIntLaw 4; (2010) 8 New Zealand Yearbook of International Law 107

Last Updated: 27 January 2014


Mohsen al Attar*

I. Introduction

Any formation of [trans]national popular collective will is impossible, unless the great mass of peasant farmers bursts simultaneously into political life.

- Antonio Gramsci1

Concerns over the future of agriculture are rapidly escalating. Short-term price spikes between 2005-08 and long-term price rises over the previous decade have highlighted the susceptibility of an expanding global population to a possible, indeed plausible, world food crisis.2 Nor does this apprehension solely afflict impoverished Third World nations. While the dependence and vulnerability of less affluent states is acute, other factors – inter alia speculation in commodities markets, high oil prices, and dwindling stockpiles of grain – underscore the transnational nature of the concerns and contribute to deepening feelings of global collective insecurity.3

A variety of targeted institutional strategies have been proposed in response.4 Without negating the value of these initiatives, this article considers the mobilisation of the transnational peasant movement, specifically in the context of transnational law. I privilege the latter over the former for the ontology of institutions is such that solutions emerge within a technical episteme, inferring amenability to scientific correction. In contrast, many peasant activists perceive the problem as ideological, describing a clash between logics and subjectivities and advocating an altogether different reformative thrust.5 In this article, La Via Campesina (LVC) is the movement of interest.

* Senior Lecturer, Faculty of Law, University of Auckland. The following is a substantially revised version of a draft paper co-authored with Sarah Murphy. I would like to expressly acknowledge her contribution in the development of many of the ideas contained herein, with specific mention for her help with section V, sub-section A and with the analysis of the various social movements. Also, I would like to thank Sarah Lawrence for her excellent research assistance.

1 Antonio Gramsci cited in Quintin Hoare and Geoffrey Nowell-Smith (eds and trans) Selections from the Prison Notebooks of Antonio Gramsci (Lawrence & Wishart, London, 1971) at 132.

2 Carmen G Gonzalez “The Global Food Crisis: Law, Policy, and the Elusive Quest for Justice” (2010) 13 YHRDLJ 462 at 462-464.

3 Pedro Conceição and Ronald U Mendoza “Anatomy of the Global Food Crisis” (2009) 30 TWQ 1159 at 1177.

4 Food and Agriculture Organisation of the United Nations “The State of Food and Agriculture 2009” (FAO Publications, Rome, 2010) at 113-119.

5 Philip McMichael “Peasants Make Their Own History But Not Just as They Please ...” (2008) 8 Journal of Agrarian Change 205 at 207.

LVC formed in the 1990s in opposition to the establishment of the World Trade Organisation (WTO) and the attempted globalisation of a neoliberal driven agro-industrial model.6 While there is much in this model to trigger the ire of peasants, LVC’s primary point of protest was the imprint of neoliberal rationalities upon an embryonic transnational legal apparatus and, by extension, upon the architecture of the countryside.7 The WTO was understood as a conduit for the universalisation of an evolving policy programme, one that had already transformed agrarian traditions in many national settings. A developmentalist episteme, where peasants were reduced to the role of a disposable labour force, was being replaced with a neoliberal one that sought the elimination of peasantries altogether.8

In addition to changing farming practices, this programme also exacerbated many social and economic inequalities that further divorced urban interests from rural ones (or, more to the point, privileged the former over the latter). For LVC, the struggle manifested at an existential level as peasants sought to prevent the transnationalisation of a charter of contra- peasant legal norms, part and parcel of an on-going general assault on peasant lifestyles. An important actor in what Santos terms the new “global economy of solidarity”, LVC seeks to promote justice for a global peasantry utilising bottom-up legal reform to challenge an array of institutionalised neoliberal orthodoxies.9

In exploring the dialectical relationship between law and resistance and between the beneficiaries and victims of transnational capitalism, I employ political philosopher Antonio Gramsci’s theories of hegemony and subaltern. At the heart of hegemony is a particular conception of the world, one that privileges a single class at the expense of many others. Resistance or counter- hegemony is the articulation of a competing conception that proposes an alternate way of negotiating social relations and intends to supplant the existing one;10 within the peasant narrative, the substitution of a fatalistic- neoliberal conception with an emancipatory-subsistence one. In a hegemonic framework, law is an instrument of educative and coercive power, aiding in the institutionalisation of the relevant conception.11 Far from benign, law is laden with predilections, expressing political preferences as legal norms.

6 Annette Aurelie Desmarais La Via Campesina: Globalization and the Power of Peasants (Fernwood Publishing, Nova Scotia, 2007) at 21.
7 Faustino Torrez “La Via Campesina: Peasant-led agrarian reform and food sovereignty” (2011) 54 Development 49 at 50; David Harvey A Brief History of Neoliberalism (Oxford University Press, Oxford, 2005) at 200-201.
8 McMichael, above n 5, at 209.
9 Boaventura de Sousa Santos and Cesar A Rodriguez-Garavito “Law, Politics, and the Subaltern in Counter-Hegemonic Globalization” in Boaventura de Sousa Santos and Cesar A Rodriguez-Garavito (eds) Law and Globalisation from Below: Towards a Cosmopolitan Legality (Cambridge University Press, New York, 2005) at 19.
10 Marcus E Green “Gramsci Cannot Speak: Presentations and Interpretations of Gramsci’s Concept of the Subaltern” (2002) 14 (3) Rethinking Marxism 1 at 21.
11 Gramsci, above n 1, at 195-196 and 242.

LVC’s struggle materialises on two fronts: at a structural level – against the monopolisation of legal power within transnational institutions – and at an ideational level – against the conception they propagate.

I link my analysis of the transnational legal apparatus to a Marxian- Gramscian interpretation of capitalist modernity for, as argued by Mark Rupert, such yields a more complete picture of the interplay between governance and resistance in the “production of global politics”.12 Gramscian ideas have been praised for their elasticity, assisting in the formulation of historically specific critiques of world order.13 Admittedly, class-based power asymmetries represent only one prism through which social relations can be explored. Moreover, as pointed out by Philip McMichael, it is potentially an unhelpful one because of liberal and Marxist contempt for peasant ontologies; both jointly dismiss the lifestyle as a historical anachronism or, in less charitable representations, a redundant form of social reproduction.14 Like Chimni, however, I argue that the capital-centric nature of global legal power prevalent today intimates this methodology as a vital one.

A class represents a group of people united “by the dimensions of the share of social wealth of which they dispose and the mode of acquiring it”.15 This link to social wealth invariably produces a reflexive association of classes with an economic sphere. Yet, it is important to recognise that “a social class can be identified either at the economic level, at the political level, or at the ideological level, and can thus be located with regard to a particular instance” such as within peasant forms of organisation.16 Due to the complexity of the social formations in which these groups congeal, classes are useful shorthand in organising our understanding of society and, for purposes of this article, our understanding of transnational law.

The preceding notwithstanding, orthodoxy prevails in mainstream international legal scholarship where a near-exclusive focus on states implicitly excludes social groups from examination.17 In contrast, a class-based approach – and more importantly a subaltern one – results in emphasis being afforded to social groups, with scholars assessing the impact of international law on the lives of the marginalised as well as the outcomes of their oppositional efforts.18 A subaltern approach also privileges diversity and (competing) subjectivity(ies), eschewing allusions to universality. While there may be value to universal aspirations, the reality of asymmetrical power relations

12 Mark Rupert “Globalising common sense: a Marxian-Gramscian (re-)vision of the politics of governance/ resistance” (2003) 29 Rev Intl Stud 181 at 181.

13 Ibid at 184-185.

14 McMichael, above n 5, at 209-213.

15 B S Chimni “Prolegamena to a Class Approach to International Law” (2010) 21 EJIL 57 at 59.

16 Ibid at 61.

17 Ibid at 57.

18 Ibid at 58


means that universalism is “subject to selective appropriation, parochial interpretations, and manipulation by dominant groups, classes, and states”.19 In short, within a subaltern methodology, people matter.

This approach is temporally fitting. From an institutional perspective, it is a new form of internationalism that confronts us today. Private actors have increasingly pried their way into quasi-legislative roles, in many instances going so far as to both draft the desired treaty and place sympathetic advocates in key institutional positions.20 As such, international law-making can no longer be understood solely through an examination of state actors.21 While it would be hyperbolic to describe the international legal system as inclusive, in terms of official and unofficial participants, the number is steadily increasing.22 Much effort has gone into tracking and assessing the involvement and influence of corporate actors over the international legal regime. Seen within a class theme, these efforts target ostensibly ruling elites and can loosely be described as top-down.

In contrast, and without questioning the value of top-down analyses, our examination falls within the emergent subaltern cosmopolitan legality (SCL) narrative and thus qualifies as “transformation from below”.23 A self-affirmed counter-hegemonic methodology, SCL seeks to examine and critique the activities of those made invisible within mainstream representations.24 Sadly, there is much material to draw upon in support. Opposition arises when people feel excluded from processes that produce decisions about their lives. The idea that an elite minority is responsible for communal-level decisions is understandably repugnant to the disenfranchised. Resistance enables the retrieval of feelings of empowerment and encourages collective mobilisation. In the end, and not without a hint of pro-activism, SCL scholars seek to unite subaltern social groups in support of wider emancipatory struggles for strategic co-operation under a banner of solidarity that is, they opine, essential in thwarting the impact of globalisation.

Its socially inclusive character makes cosmopolitanism the method of choice.25 While conventional cosmopolitan legal strategies may have proven as “western-centric and exclusionary as the global designs they oppose”, the alternative offered by SCL encapsulates instances of resistance by the “community of victims”, specifically as they suffer under a neoliberal inspired pogrom.26 The approach advanced thus focuses on grassroots political

19 Ibid.
20 Peter Drahos and John Braithwaite Global Business Regulation (Cambridge University Press, Cambridge, 2000) at 475-504.
21 Of course, Rajagopal has questioned whether this was ever possible: see B Rajagopal International Law from Below: Development, Social Movements, and Third World Resistance (Cambridge University Press, Cambridge, 2003).
22 Chimni, above n 15, at 77.
23 Santos and Rodriguez-Garavito, above n 9, at 14.
24 Ibid.
25 Ibid at 8-9.
26 Ibid at 12.

mobilisation. This is the key point of distinction for SCL and gives this approach its fundamental value as an analytical instrument of international legal scholarship. Examining resistance at the grassroots level allows us to see how people shut out of decision-making processes respond to their exclusion.

This article is divided into four parts. In the first, I contrast peasant and capitalist based ethics of freedom and the disparate conceptions to which each gives rise. In the second, I demonstrate how transnational law has been used to disseminate the capitalist conception globally and its impact upon the agrarian practices of peasant communities. In the third, I provide a critical assessment of the counter-hegemonic efforts of LVC, particularly as they relate to multilateral trade agreements, based on a series of interviews conducted with LVC peasant-activists and an examination of their notion of food sovereignty. Contrary to Gramsci’s methodology, it appears that peasants are not motivated by aspirations of (an ethical) hegemony but by notions of freedom, self-determination, and good sense. With this discovery as backdrop, I consider in the final section the relevance of Gramsci’s conception of hegemony and subaltern – through an application of Santos’ SCL – as well as the place of resistance in the evolving transnational legal apparatus.

II. Ethic(s) of Freedom

A. Impending Food Crisis

The fragility of our world food system has been laid bare this last decade. Notwithstanding the bombast about rising incomes and emerging economies, between 2005 and 2008 over one hundred million people were added to the already billion strong chronically undernourished. Soaring food prices caused this groundswell of deprivation, in turn triggering riots across the four corners of the world.27 Counter-intuitively, higher food prices were not tied to production shortages but to a re-orientation of use, with many crops increasingly earmarked for the production of biofuels.

As Amartya Sen observed three decades ago, in the food (in)security debate production is a red herring.28 Hunger is primarily the product of three interrelated factors: the unaffordability of food for many households (poverty), the unwillingness of governments to prioritise access to food for citizens (freedom) and, critically, the replacement of economic nationalism with neoliberalism, resulting in an accelerated process of peasant dispossession.29 Indeed, an oft-overlooked reality is that the world’s hungry are primarily food producers.

27 Gonzalez, above n 2, at 462.

28 Amartya Sen Poverty and Famines: An Essay on Entitlements and Deprivation (Clarendon Press, Oxford, 1982) at 1.

29 McMichael, above n 5, at 209.

Within this three-part matrix, it is more elucidative to think of the food crisis as manifesting in sociological terms. Since the implementation of neoliberal polices in the 80s and 90s, states have progressively withdrawn from rural development preferring to leave the matter to self-interested market- based actors.30 By submitting fields to market mechanisms, neoliberalism triggered the development of capital-heavy agricultural processes as efforts were directed towards transforming the practice of sustenance to one of commodity production.

Importantly, I note that this re-ordering was not carried out purely at the behest of national governments. These policies form part of a comprehensive programme of long-term social transformation – mainly initiated under World Bank counselled structural adjustment programmes – requiring poor countries to spend less on education, healthcare, and peasant agriculture – creating both space and need for private sector involvement.31 Seemingly innocuous, resistance was rife among both (Third World) states and civil society groups, necessitating constant coercion via the debt threat.32

During this period, the countryside was progressively stratified and increasingly privatised as access to capital conditioned success (and failure) in the fields. Large-scale agribusinesses emerged and side-lined masses of increasingly extraneous peasant farmers in what Martinez Valle described as the “pauperization of the majority of rural producers”.33 Contrary to the boasts of neoliberal proponents, this outcome did not result from increased efficiencies but from the exposure of peasants to established (and highly subsidised) First World agro-industries.34

Agricultural markets are today dominated by a handful of transnational corporations (TNCs) that control both the seeds and fertilisers upon which peasants have come to depend.35 Despite the celebratory political (and oft academic) fanfare, the end result of neoliberal agricultural development policies has been an increase in poverty and social inequality among peasant communities.36 As the cost of inputs rose and the practice of farming became

30 See generally Palagummi Sainath Everybody Loves a Good Drought (Penguin, New Delhi, 2000).
31 For example see Ranjit Devraj “World Bank’s health policies hurting nations, say critics” (2000) Third World Network <>.
32 Noreena Hertz The Debt Threat: How Debt is Destroying the Developing World (HarperBusiness, New York, 2004).
33 Luciano Martinez Valle “Endogenous Peasant Responses to Structural Adjustment: Ecuador in Comparative Andean Perspective” in Liisa North and John Cameron (eds) Rural Progress, Rural Decay: Neoliberal Adjustment Policies and Local Initiatives (Kumarian Press, Bloomfield, Connecticut, 2003) at 85.
34 McMichael describes this as a form of agricultural mercantilism whereby First World agriculture was financed by public expenditures for purposes of foreign market domination: McMichael, above n 5, at 208.
35 Keith Aoki ““Free Seeds, Not Free Beer”: Participatory Plant Breeding, Open Source Seeds, and Acknowledging User Innovation in Agriculture” (2009) 77 Fordham L Rev 2275 at 2276 -2277.
36 De-peasantisation during the neoliberal project “has intensified under the combined pressures of evaporation of public support of peasant agriculture, the second green revolution, market-led land reform, and W TO trade rules that facilitate targeting southern markets with artificially cheapened food surplus exports from the North”: McMichael, above n 5, at 209.

economically prohibitive – peasants would say oppressive – many farmers abandoned the trade altogether seeking more promising opportunities.37 With over 90 per cent of food being produced by small-scale farmers, an exodus from rural communities spells disaster for global food security.38

What impact has this neoliberal episteme – and the attendant increases in poverty and inequality – had on the enjoyment of freedom among peasant communities? There are strong links, albeit links often overlooked, between food, poverty, and freedom.39 The provision of food or, more accurately, the ability to obtain enough food to survive and flourish is a necessary forerunner to a life with dignity. Access to adequate food is best regarded as a kind of ‘gateway’ freedom, facilitating our attainment of the minimum threshold necessary to achieve a dignified life. Thought of in opposition, it is easy to appreciate how stifling hunger, including the pursuit of solutions to hunger, can be.40 The point is that building confidence in the capacity to secure basic necessities, as well as establishing safeguards against food crises should form the foundation of national and global agricultural and food policies.

As I demonstrate below, this prescription is relevant when examining the relationship between transnational law and agrarian practices. Equally, it is of critical importance when assessing the impact of neoliberalism upon freedom from want.

B. Conceptions of Freedom

As a measure of liberty, freedom from want is not without controversy. Reaching far back, we find Isaiah Berlin and his partition between two facets of freedom (or liberty41): negative and positive. On one hand, freedom represents a state of independence or exemption from interference and external control.42 On the other, freedom is also understood as influence over things upon which livelihoods depend.43

37 More desperate farmers pursue other options including loans to subsidise their expenditures. Once debt becomes unbearable many farmers elect to take their own lives out of desperation and in protest (as documented by Sainath, above n 30).
38 People’s Food Sovereignty Network “Statement on People’s Food Sovereignty: Our World is Not For Sale” (2003) < >; Peter Rosset “Food Sovereignty and the Contemporary Food Crisis” (2008) 51 Development 460 at 461.
39 Amartya Sen “Food and Freedom” (Sir John Crawford Memorial Lecture, Washington DC, 29 October 1987).
40 Marc Fleurbaey “Poverty as a Form of Oppression” in Thomas Pogge (ed) Freedom from Poverty as a Human Right: Who owes what to the very poor? (Oxford University Press, New York, 2007) at 143.
41 While there are definitional distinctions between conceptions of freedom and liberty, the terms will be used interchangeably in this article.
42 For a useful deconstruction of both categories, as well as examination of the relationship between these categories and the intrinsic-instrumental split, see Sen, above n 39, at 2-5.
43 Sen, above n 39, at 3. See generally Charles Wright Mills Character and Social Structure: The Psychology of Social Institutions (Routledge and Kegan Paul, London, 1954)

Historically, the former has been instrumental in preserving individual liberty in the face of the (potentially coercive) authority of the state, public institutions, and collective judgment.44 Central to this type of freedom are economic activities: individuals must be permitted to “exploit their productive potential by following their own plans and the opportunities to amass wealth safeguarded against confiscation”.45 “Normative restrictions should [therefore] be imposed upon the coercive power of the government and on the manner in which it exercises its power”.46

For its part, the latter has been used to justify the establishment of communal programmes of social uplift.47 Support provides beneficiaries with tangible tools – for example healthcare, nutrition, housing, education, transport, and so on – necessary to succeed in modern society. The focus is on “what people are able actually to do or be, rather than what they are prevented by others from doing or being”.48 hile each facet is vital in the actualisation of human freedom, preserving a delicate balance between choice and capacity to choose, rarely do groups or classes opt to champion both, usually preferring one to the other depending on their position within the social strata.

Notions of freedom were equally immanent to the sociological musings of Gramsci. A militant egalitarian, he was tireless in his reflections on ways of deepening liberty, particularly among the impoverished and disadvantaged or subaltern classes. Foremost in his conception was the freeing of the subaltern from the ideological absoluteness of the bourgeois class.49 Individuals were to be provided space and opportunity for a type of “intellectual and moral reform”50 at the hands of both the self and the community: “The creation of a new world-view is equivalent to the creation of a new type of political and civil society”.51

Yet, Gramsci’s egalitarian penchant went even further than this. He regarded all individuals as philosophers and thus architects behind varied conceptions of the world: “[in] the slightest manifestation of any intellectual activity whatever there is contained a specific conception of the world”.52 To Gramsci, history amounts to a struggle between different ways of thinking and acting, between systems and worldviews.53 Each way or conception is intrinsically tied to an equally particular ethic – “‘will’ at

44 Judit Kapás and Pál Czeglédi “Economic Freedom: A Hayekian Conceptualization” (2007) 3 NPPE 205 at 208.
45 Ibid at 210.

46 Ibid.

47 Fleurbaey, above n 40, at 137.

48 Sen, above n 39, at 6.

49 Andrew Robinson “Towards an Intellectual Reformation: The Critique of Common Sense and the Forgotten Revolutionary Project of Gramscian Theory” (2005) 8 Crit Rev Intl Soc Polit Philos 469 at 473.
50 Gramsci, above n 1, at 133.

51 Andrew Robinson, above n 49, at 474.

52 Gramsci, above n 1, at 323.

53 William I Robinson “Gramsci and Globalisation: From Nation-State to Transnational Hegemony” (2005) 8 Crit Rev Intl Soc Polit Philos 559 at 562.

the base of philosophy” – that gradually produces an accompanying social arrangement.54 To better understand a conception then – in this case, as it relates to articulations of freedom – the underlying ethic must be unearthed.

C. Neoliberalism: Freedom as Autonomy

When investigating the ethic of a group, it is necessary to understand the social architecture within which groups emerge and relations occur. For contemporary society, we turn to two defining elements: technology and capitalism. Their interplay has given rise to the ideologically laden foundation upon which the dominant conception of freedom rests.

Technological advances during the last century unhinged industrial production from its temporal-spatial boundaries, facilitating the global integration of both productive processes and financial exchanges.55 Indeed, as capitalism began to operate beyond the nation-state framework, the locus of control shifted from national capitalist classes to a transnational propertied bourgeoisie.56 To promote consent to the new order, an embryonic transnational capitalist class (TCC) sought to universalise a specific conception of the world, one that normalised human fixation on private accumulation and individual consumption and thus favoured the interests of a propertied class.57 Enter neoliberalism.

While there are many angles to neoliberalism, of particular relevance for this article is the call for the elimination of positive measures for the promotion of freedom and well-being.58 Neoliberalism, not unlike meritocracy and other such individual-centric ideologies, proposes that progress results from individual effort, ambition, drive, and other personal attributes.59 Over- emphasis on intrinsic ability overshadows contributing social factors, in turn precipitating a release of the individual from reciprocal social obligations. The ethic here is one of detachment and social autonomy as epitomised by Thatcher’s political slogan: “there is no such thing as society; [only] individual men and women”.60

At the heart of the neoliberal ethic are Hardin’s Tragedy of the Commons and Olson’s Logic of Collective Action, pseudo-scientific narratives that each lament the inability of humans to engage in rational collective action: “... unless the number of individuals in a group is quite small, or unless there is coercion or some other special device to make individuals act in their common interest, rational, self-interested individuals will not act to achieve

54 Gramsci, above n 1, at 345.

55 William I Robinson A Theory of Global Production: Production, Class and State in a Transnational World ( John Hopkins University Press, Baltimore, 2004) at 9.

56 Ibid at 47.

57 Ibid at 47-49.

58 Harvey, above n 7, at ch 7.

59 Ibid at 64-66.

60 Ibid at 23; Stuart Hall and David Held “Left and Rights” (1989) Marxism Today 16 at 16.

their common or group interests”.61 Since the late 1960s, the claimed biological impracticability of collective thinking and judgment has been used to promote the atomised individual as the archetypal expression of human freedom and, grandiloquently, human evolution. Thatcher and others needed only hatch these narratives into a new political programme; neoliberalism as it was eventually termed.

A primary pillar within this programme is economic liberalisation, increasingly the raison d’ être of a growing body of transnational or meta- regulatory schemes mediating the global trade of goods, services and food. Liberalisation requires the adaptation of domestic regulatory parameters to their transnational uppers, deepening global commitment to free market policies and shrinking the borders of national sovereignty.62 While proponents exalt the benefits of these instruments in promoting cross-border trade, critics condemn the inevitable suppression of local cultural practices, smothered under a blanket of capital-centric standards, preferences, and obligations.63 The programme quickly morphed into a crusade against the welfare state as a product of irrational collective thought. By the 1980s, the self-regulating market became both the lynchpin of and rallying cry for human freedom; alongside the atomised individual must stand the atomised market.

Political liberties of thought and expression were merged – arguably conflated – with economic freedoms of ownership and investment.64 To Hayek, Friedman, and contemporary interlocutors, “economic and political freedom [are] components of freedom broadly understood,” with the former as a host for the latter.65 In this way, two additional critical aspects of the neoliberal movement included the liberation of capital from regulatory oversight and the expansion of private proprietary rights, principally through the enclosure of hitherto public goods in private hands – freedom as independence from interference.

The science of economics was used to establish particular formations as consolidated around an ethic of autonomy, all in the name of collective efficiency, biological rationality and human freedom. Institutional representations of freedom thus came to favour, almost exclusively, the

61 Mancur Olson The Logic of Collective Action: Public Goods and the Theory of Groups (Harvard University Press, Cambridge, Massachusetts, 1965).

62 Bronwen Morgan “The Economisation of Politics: Meta-Regulation as a Form of Nonjudicial Legality” (2003) 12 Social and Legal Studies 489 at 491.

63 Stephen A Marglin “Development as Poison: Rethinking the Western Model of Modernity” (2003) 25 Harv Intl Rev 70 at 70.

64 According to the Fraser Institute, “[the] cornerstones of economic freedom are personal choice, voluntary exchange, freedom to compete, and security of privately owned property.” For its part, the Heritage Foundation takes a more programmatic approach advocating for “business freedom, trade freedom, monetary freedom, freedom from government, fiscal freedom, property rights, investment freedom, financial freedom, freedom from corruption, and labor freedom”: Kapás and Czeglédi, above n 44, at 207.

65 Ibid at 208 and 224.

negative facet. Neoliberalism has been on the upswing ever since. The TCC exploited the collapse of the socialist bloc to present the ideology as a beacon for an abstract generalised prosperity and precipitate popular endorsement of a negative representation of freedom.66

D. Subsistence: Freedom as Reciprocity

While many of the TCC’s efforts have proven successful, not all subscribe to this conception. For their part, peasants adhere to an altogether different ethos; what James Scott termed a “subsistence ethic”.67 According to Scott, this ethic evolved as a means of counter-balancing the vulnerability that afflicts peasant households, borne of perilous proximity to the subsistence margin and dependence upon variable ecological conditions. Features of this ethic are best organised in two categories: technical and social.

Technical arrangements encapsulate farming skills developed “to produce the most stable and reliable yield possible under the circumstances”.68 These include competences in seed selection and planting patterns, as well as other elements of traditional farming knowledge. Peasants have survived through a range of specialist strategies implemented at the communal level. The collective nature of peasant farming knowledge leads to social arrangements that provide a more normative representation of peasant politics.

Alongside technical expertise, particular social relations are necessary to offset food insecurity. These are denoted by “patterns of reciprocity, forced generosity, communal land, and work-sharing”.69 In a subsistence mind-set, collaboration and not competition, community rather than autonomy stand as bulwarks against the unpredictability of nature and embody the most rational, if not efficient, course of action. In short, within a peasant (and extra-capitalist) agrarian order, stability and sharing – as opposed to risk and avarice – condition popular expectations.

Social arrangements were developed to assure a minimum income to inhabitants. For instance, “patterns of reciprocity” and work-sharing provided a safety net to families hit by illness or a bad crop.70 Moreover, “communal land was periodically redistributed, in part on the basis of need.”71 Finally, social pressures also had a redistributive effect: “rich peasants were expected to be charitable, to sponsor more lavish celebrations, to help out temporarily indigent kin and neighbors, to give generously to local shrines and temples.”72

As Michael Lipman explains “many superficially odd village practices make sense as disguised forms of insurance.”73

66 Harvey, above n 7, at ch 2.

67 James Scott The Moral Economy of the Peasant (Yale University Press, New Haven, 1976) at 2.

68 Ibid at 2.

69 Ibid at 3.

70 Ibid.

71 Ibid at 5.

72 Ibid at 5.

73 Michael Lipman cited in ibid at 10.

The values held by peasant communities are at odds with neoliberal ideals. Neoliberal economic logic fetishises growth and the standardisation of agricultural production.74 Yields are treated as commodities like any other completely devoid of cultural connotation. Contrast this with peasant logic, which “offers a range of values concerning the multifunctional and epistemic contributions of agriculture to humans and nature alike”.75 In a subsistence mind-set, food is presented as a vector of social reproduction “where food embodies social, cultural and ecological values over and above its material value”.76 What we observe is a rejection of the divorcing of agriculture from society, itself a repudiation of the narrative of capitalist modernity and an accumulation-centric worldview.77

Whereas neoliberalism presents private land ownership as an ambition in and of itself, peasants value land use only to the extent that it provides security and autonomy over food production. As Scott explains, “actual title assumes significance only insofar as it symbolises a more secure access to the means of subsistence”.78 Ultimately, peasants pursue land rights to feed their families. This perception combined with other collective behavioural inclinations make up what Scott further identified as the moral economy of the peasant, itself representative of peasant-based understandings of economic justice and human freedom.79

While motivated by neither pure egalitarianism nor pure altruism, the outcome of their conception is nevertheless socially equitable: “It is the absence of the threat of individual starvation which makes primitive society, in a sense, more humane than market economy, and at the same time less economic”.80 Moreover, it is this very absence of threat that gives substance to their articulation of freedom. By preserving authority over the means of subsistence, peasants retain control over the things upon which their livelihoods depend. By collaborating with counterparts rather than competing against them, they augment their collective capacity to withstand the tribulations of an unpredictable environment. To peasants then, the ethic is one of reciprocity and subsistence.

Despite the ascendancy of the neoliberal project and the commensurate erosion of peasantries, Marc Edelman asserts the continuing relevance of Scott’s subsistence ethic, specifically in a transnational environment.81 According to Edelman, the pursuit of subsistence remains primordial among today’s

74 McMichael, above n 5, at 214.

75 Ibid.

76 Ibid at 218.

77 Ibid at 210.

78 Scott, above n 67, at 36.

79 Ibid at 3-6.

80 Karl Polanyi The Great Transformation (Beacon Press, Boston, 2001) at 171.

81 Marc Edelman “Bringing the Moral Economy back the Study of 21st-Century Transnational Peasant Movements” (2005) 107 American Anthropologist 331. I note that McMichael regards peasants as quintessentially transnational actors: “peasant trajectories are conditioned by world, rather than national, history”: McMichael, above n 5, at 206.

peasantries – their aspirations persist – though due to evolving challenges and the extinction of many such communities, he broadens the concept to include a “right to continue being agriculturalists”.82 By this he means an entitlement to pursue a livelihood from the land under the protection of the state (which Edelman argues makes being a farmer possible).83 As I demonstrate in the coming sections, there is much truth to his description of the transnational character of subsistence politics as well as the evolving nature of peasant tribulations.

I conclude this section by reaffirming the central point: both neoliberal and peasant mindsets convey distinct conceptions of the world. This difference is hardly surprising. People who experience similar conditions and occupy similar positions within a given social structure are likely to share normative expectations and thus resultant conceptions. Building upon these subjectivities, Gramsci concludes that different contexts and circumstances generate different ethics. Conflict amounts to tension between competing ethico-political principles, highlighting the importance of ideology in “understanding social phenomena”.84 Struggle between groups and classes for the universalisation of a particular conception – usually over many others – is what Gramsci defines as the struggle for hegemony.

III. Hegemony, Transnational Law, and the Neoliberalisation of Global Agriculture

A. Hegemonic Conception of the World

In the Gramscian tradition, hegemony represents organised consent: a particular worldview is widely circulated and gradually endorsed by a majority of social classes.85 Consent sustains this programme of intellectual control by elevating an elite conception to the status of ‘common sense’ and disseminating it through the whole of society.86 In the process we witness the stratification of elite-subaltern subjectivities as one worldview is given precedence over others. Of late, Gramsci’s articulation of hegemony has proven useful in analysing the modern transnational sphere.87 Returning to the TCC-peasant split, we observe the very successful circulation of neoliberalism during the 80s and 90s. Not only has it been integrated

82 Ibid at 332.

83 Ibid.

84 William I Robinson, above n 55, at 472.

85 Gramsci, above n 1, at 12.

86 B Fontana Hegemony and Power: On the Relation between Gramsci and Machiavelli (University of Minnesota Press, Minneapolis, 1993) at 99.

87 R Cox “Gramsci, hegemony and international relations: an essay in method” in Stephen Gill (ed) Gramsci, Historical Materialism and International Relations (Cambridge University Press, Cambridge, 1993) and William I Robinson, above n 55.

into official policy at both the national and transnational levels but many mainstream organisations, including tertiary institutions and human rights NGOs, have also adopted its central trappings.88

Gramsci’s representation of hegemony owes much to his egalitarian penchant. Never wishing to deny the agency of the subaltern, he sought to balance the imposition of a dominant worldview with mass acquiescence to that view: “They may be subordinated, they may be oppressed but [Gramsci] always stresses that the basis of hegemony ... is the acceptance of a relationship”.89 In this way, Gramsci regarded hegemony as class neutral in that any class is capable of achieving an architectural (or hegemonic) role. That some classes are more successful than others is not due to any elemental differences between them, but to the exertion of influence over the relevant institutions. In this way, power is not the product of class predisposition but of political stratagem and ideological sway.

To a great extent then, class stratification is the product of an ethico- politico divide. Acceptance of a relationship equates with acceptance of an ethic, implying that the struggle occurs on a moral rather than a material plane.90 Leadership of a particular group in the ethical realm provides its specific conception with greater traction and thus the plausibility of becoming hegemonic: “a subaltern group is controlled ... by means of its partial acceptance of another group’s conception of the world.”91 This does not mean that structure is unimportant but that changes in formal arrangements – say a reformation of the privileged position occupied by elite groups and their endowment with capacities to preserve their preferential status – always follow changes in social philosophy: “It is not the economic structure which directly determines political activity, but rather the way in which the structure and the so-called laws which govern its development are interpreted”.92 Stated otherwise, revolutions are triggered by “changes in philosophy as expressed in social relations”.93 In deconstructing social relations, we turn to law.

Gramsci believed that the desired form of social relations could be deduced from a particular conception. The leap to – and appeal of – legal systems is both plain and logical: “Law forms ... the mechanism for ‘cementing together the social formation under the aegis of the dominant class’”.94 It works both consensually and coercively, simultaneously imposing the will of an elite over subalterns while instructing them on the virtues

88 Jacob Middleton “Friends of the Poor or of Neo-Liberalism?” (2006) Socialist Review <> and Henry Giroux The Terror of Neoliberalism (Paradigm Publishers, Colorado, 2004) at 105.

89 Anne Showstack Sassoon “Globalisation, Hegemony and Passive Revolution” (2001) 6 NPE 5 at 11.

90 Andrew Robinson, above n 49, at 472-473.

91 Ibid at 479.

92 Gramsci cited in ibid, at 472.

93 Ibid.

94 A Claire Cutler “Gramsci, Law, and the Culture of Global Capitalism” (2005) 8 Crit Rev Intl Soc Polit Philos 527 at 536.

of compliance. As I demonstrate in the following section, transnational law operates in much the same manner, promoting consent through the reproduction of a unifying ideology (for example, neoliberalism) and legitimising structures (for example, meta-regulatory regimes and international financial institutions (IFI)). It also allows for coercive action (for example, trade sanctions or denial of financial support) when encountering resistance.95 In the end, transnational law provides normative guidance “such that a particular form of economic rationality becomes part of the taken-for-granted ways of policy making”.96

As detailed earlier, within a neoliberal mindset the ethic in question is that of autonomy and social detachment. This creates a climate where global legal reform is directed toward the production of “legal systems that secure credible and predictable property rights” for individual private actors.97 In other words, the TCC seeks to entrench an ethic that rests on freedom of ownership as the foundation of an abstract global society. The negative facet becomes the dominant representation of freedom, triggering the inevitable commoditisation of public spheres in the process. A familiar example and the one to which the remainder of this article is dedicated is located in the realm of agriculture.

B. Neoliberalising Global Agriculture

Linkages between capitalist modernity, agriculture, and law have been deepening since the post W WII period.98 Following the launch of the first and second Green revolutions and the advent of tech-heavy plant varieties and agricultural inputs, the need for legal protections for related technologies intensified.99 Intellectual property (IP) law presented a solution. By translating innovations in agricultural resources – for example seeds, pesticides, and fertilisers – into legally protectable property, IP law acted to commodify hitherto public (traditionally freely exchanged) goods, integrating them into narrowly construed logics of ownership and market value.100

IP law represented a clever approach towards extending the enclosure movement into realms of the intangible. While the commodification of material goods is, in practical terms, straightforward, immaterial goods such as knowledge or self-producing goods such as seeds pose more of a challenge. The chief impediment – and the one that IP resolves in favour of the TCC – is the near impossibility of physical enclosure due to the nature of the goods.

95 B S Chimni “International Institutions Today: An Imperial Global State in the Making” (2004) 15 EJIL 1 at 22.

96 Morgan, above n 62, at 490.

97 Ibid at 493.

98 See generally John Madeley Food for All: The Need for a New Agriculture (Zed Books, London, 2002).

99 Aoki, above n 35, at 2277-2287.

100 Ibid at 2276-2277.

Accordingly, in lieu of traditional exclusionary powers, holders of IP rights receive temporary monopolies over the use of – and the assignment of rights to use – the now protected property.101

The rationale for IP protection neatly dovetails into neoliberalism and notions of negative freedom. It is imbued with fairness and private ownership rhetoric, specifically via the reward of private activity.102 The claim is that without robust rewards and protections for creative effort, innovation will wither leaving society wanting. Private monopoly rights are thus needed to promote creativity and collective wellbeing.103 It is important to note that this justification presupposes particular constructs about the distinction between private and public spheres as well as notions of value, effort, and reward. These constructs occupy equally prominent places in both neoliberal and peasant worldviews.

Due to its impact on conceptions of freedom, the IP narrative has proven divisive. IP represents an exclusionary ideology that designates both knowledge and living organisms as productive property to be exchanged via legal contract. To peasants, exclusion from plant genetic material equates to loss of control over fundamentals. This loss translates into an erosion of freedom, hence the resistance waged against the new scheme. Within a hegemonic prism, we see a neoliberal for-profit ideology of private commodities and personal rewards coming into conflict with a peasant-based subsistence ideology of public knowledge and communal sharing. Particularly insidious from a peasant perspective were the global aspirations of the TCC and the near-universal dissemination of their political programme.104

Materialising during the globalising capitalist era, the need for this form of legal protection possessed an inherently transnational character. To facilitate the universalising thrust – and to circumvent state sovereignty, social subjectivity, and widespread peasant opposition – deliberations over IP were spirited to the inner halls of the World Trade Organisation (WTO) and out of public view.105 In the end, the Trade Related Aspects of Intellectual Property Rights agreement (TRIPS) rendered particular IP norms transnational, giving exclusive rights over newly forged commodities global coverage and privileging the neoliberal ethic of the TCC.106 This is not to exaggerate the authority of the TCC over domestic policymaking but to highlight an important source of influence and an increasing loss of

101 Graham Dutfield Intellectual Property Rights, Trade and Biodiversity: Seeds and Plant Varieties (Earthscan, London, 2002) at 10-11.

102 A narrative of public welfare is prominent in debates surrounding IP with emphasis placed on the social need to promote creative initiative. John Howkins The Creative Economy: How People Make Money From Ideas (Allen Lane, London, 2001) at 33.

103 Donald G Richards Intellectual Property Rights and Global Capitalism: The Political Economy of the TRIPS Agreement (Armonk, New York, 2004) at 57.

104 Dutfield, above n 101, at 10-11.

105 Chimni, above n 15, at 71.

106 Susan Sell “Industry Strategies for Intellectual Property and Trade: The Quest for TRIPS, and Post-TRIPS Strategies” (2002) 10 Cardozo J Intl & Comp L 79 at 81.

policy space.107 Morgan’s charge appears both precise and persuasive: legal innovations sought to create and secure new proprietary rights as part of an emergent economic rationality.

Seeds for instance have historically been regarded as the common heritage of humanity and thus impervious to narratives of private exclusionary power.108 This understanding was altered in the late twentieth century with the adoption of IP protections for living organisms as codified in a series of transnational legal agreements.109 Henceforth seeds, plants and other forms of life were ascribed with legal personality – commodities within emergent knowledge-property systems – to be traded via legal contract on the global marketplace. In addition to shifting research from the public to the private sector, the new conception edged out a once-pervasive collaborative approach towards plant breeding, replacing it with a privately (profit) driven impetus that undermined peasant practices such as seed sharing in the process.110

Meta-regulatory schemes relating to agriculture – for example, TRIPS, the Convention for the Protection of New Varieties of Plants (UPOV), and the Agreement on Agriculture (A A) – have established particular rules governing the production and circulation of agricultural products. The compass of these agreements appears to privilege high-input market-oriented agriculture and to target domestic policies that obstruct the transnational flow of goods.111 The Convention for the Protection of New Varieties of Plants and TRIPS respectively establish plant variety protection criteria and IP norms that protect capital-heavy commercial-scale agricultural developments, most of which fall outside the scope of peasant-based activities.112 For its part, the A A prohibits domestic agrarian supports such as import quotas, traditionally aimed at preserving local markets for local growers.

Of course, capitalist penetration of the countryside is old hat. Walter Rodney established long ago that in the early days of capitalism, Third World fields and crops provided both metaphorical and figurative fodder for European industry.113 The situation is not much different today. In the face of an ascendant capital-centric and technology-heavy agro-chemical industry, traditional peasant practices such as plant breeding and seed saving have been either prohibited or edged out.114 In fact, contracts between agribusinesses

107 Chimni, above n 15, at 68 and 72.

108 See generally Jack R Kloppenburg and Daniel Lee Kleinman “Seeds of Controversy: National Property Versus Common Heritage” in Jack Ralph Kloppenburg Seeds and Sovereignty: The Use and Control of Plant Genetic Resources (Duke University Press, Durham, 1988).

109 Aoki, above n 35, at 2277.

110 Scott, above n 67, at 2.

111 Klaus Bosselmann “Plants and Politics: The International Legal Regime Concerning Biotechnology and Biodiversity” (1996) 7 Colo J Int’l Envtl L & Pol’y 111 at 121-128.

112 Mark D Janis and Stephen Smith “Technological Change and the Design of Plant Variety Protection Regimes” (2007) 82 Chi-Kent L Rev 1557.

113 Walter Rodney How Europe Underdeveloped Africa (Bogle-L’Ouverture Publications, London, 1972) at 168.

114 Aoki, above n 35, at 2275.

and peasants have reached a level of detail that it would be more accurate to describe them as field labourers, pedantically consuming industrial products and producing market goods.115

On the whole, transnational legal agreements appear to work hand-in- hand with their authors, privileging the TCC while offering little value to peasants. At the macro level, peasant freedom is undermined by a climate where political impetus has shifted from smallholder agricultural development to large-scale agricultural industrialisation.116 Instead of addressing domestic social imperatives, state budgetary allocations target the integration of domestic farming networks into a market-driven global agricultural economy, allowing countries to better compete for private capital investment.117 Such budgetary reforms disadvantage peasants by stripping them of critical statal support such as “minimum price guarantees, parastatal marketing boards, credit, technical assistance and, above all, markets for their produce.”118

Micro level instances of the assault on peasantries are equally injurious albeit far more subtle. For instance, a requirement of the North American Free Trade Agreement (NAFTA) – and a mainstay of neoliberalism tout court

– is the facilitation of the acquisition of private proprietary rights. As such, in joining NAFTA, Mexico was required to open its ejido system to private acquisition.119 Ejidos are a form of cooperative or communal land holding revived in the post-independence period to aid landless peasants to acquire land rights. Not unlike in other jurisdictions, the elimination of communal holdings in Mexico resulted in the overall restructuring of land tenure, further facilitating a global land grab.120 Consequences for peasants including displacement, dispossession, a loss of self-sufficiency and an increase in rural impoverishment are largely absent from the agenda of IFIs, for meta-regulatory regimes aim to create a TCC friendly agro-industry above all else.121

These developments are hardly surprising. Within a neoliberal conception of the world, all measures that interfere with the free movement and free acquisition of goods must be eliminated irrespective of underlying rationales. No distinction is made between an export subsidy and an environmental tariff despite the offensive nature of the former and the defensive nature of the latter. Both are simply – and pejoratively – barriers to trade. Through this same lens, state regulatory power itself comes to

115 Eva Ann Dorris “Monsanto Contracts: To Sign or Not to Sign” (Farm Progress, 1 December 2000) (available at; Hope Shand “New Enclosures: Why Civil Society and Governments Need to Look Beyond Life Patenting” (2003) 3 CR: The New Centennial Review 187 at 195.

116 Sainath, above n 30.

117 Desmarais, above n 6, at 60.

118 Rosset, above n 38, at 461.

119 See generally Ronald H Schmidt and William C Gruben “Ejido reform and the NAFTA” FRBSF Economic Letter (United States of America, 2 October 1992).

120 Ibid.

121 Henry Saragih cited in “The impacts of land grabbing on farmers: Testimonies from around the globe” (2010) La Via Campesina <>.

be regarded as market distortion. As observed by Ricardo Grinspun, neoliberalism makes governmental intervention appear so perverse that states should even be precluded from erecting safeguards for “vulnerable and impoverished social groups”.122

Ultimately, proponents of neoliberalism do not advocate a specific structure but a specific ethic that in turn gives rise to a certain social formation. Ergo, to understand the policies and the accompanying social relations, we must consider the ideology underpinning them. An ideology that is integral and expansive, one that “can incorporate itself in reality as if it were an expression of it” is capable of becoming hegemonic.123

C. A Weak Hegemony

Returning to Gramsci, we recall that hegemony represents organised consent. Social groups are induced into consenting to a conception, one that is advantageous to a particular class yet detrimental to many others. The deeper the consent – that is, the less resistance expressed – the stronger the hegemony and vice-versa: hegemony on a sliding scale. The importation of neoliberal logic into the countryside represents an attempt by the TCC to normalise and universalise a corporate conception (or corporate self-interest) among peasant communities.

Despite the success of the dissemination campaign – as evidenced by widespread inclusion of neoliberal policies in both meta-regulatory regimes and national laws – the hegemony of the TCC remains weak. As we demonstrate in the following section, resistance to neoliberalism has been fierce. Peasants the world over have been swayed by neither the promises of ideologues nor the machinations of coercive forces.124 Such is to be expected for the struggle is over subsistence and survival.

Any discussion of regulation in the countryside must take into account the collective society within which peasants operate.125 To simply analyse a peasant’s budget, needs and interests, runs the risk of treating them as a “marketplace individualist who amorally ransacks his environment so as to reach his personal goal.”126 Yet, the peasant – not unlike the capitalist – is

born into a society and culture that provide him with a fund of moral values, a set of concrete social relationships, a pattern of expectations about the behaviour of others, and a sense of how those in his culture have proceeded to similar goals in the past.127

122 R Grinspun “Exploring the Links Among Global Trade, Industrial Agriculture and Rural Underdevelopment” in Liisa North and John Cameron (eds) Rural Progress, Rural Decay: Neoliberal Adjustment Policies and Local Initiatives (Kumarian Press, Bloomfield, Connecticut, 2003) at 53.

123 Andrew Robinson, above n 49, at 475.

124 McMichael, above n 5, at 224-225.

125 Scott, above n 67, at 165-166.

126 Ibid at 166.

127 Ibid

To understand peasant behaviour (and aspirations), we must therefore go beyond statistical measures of income, poverty, or yields.128 Instead, we must look to the foundational principles – reciprocity and subsistence – upon which the architecture of peasant life rests. These principles identify powerful cultural configurations in peasantries and are embedded “in many concrete social patterns that owe their strength and longevity to the force of moral approval or disapproval that villagers can bring to bear.”129 In the case of neoliberalism, we observe much in the way of disapproval even if these instances of opposition do not immediately translate into a defeat of TCC logic or a triumph of peasant principles. These acts of disapproval do, nevertheless, undermine the hegemony of the TCC.

What the sliding scale metaphor means is that the strength of hegemony depends on levels of consent. An aspiring hegemonic class seeks to advance consent to a unifying principle for voluntarism – on both personal and national scales – provides greater legitimacy to a model of social organisation.130 It is only through consent that stability is achieved. Law, in this case transnational law, supplements internalisation and internationalisation processes by colouring the model with a hue of institutional validity. In terms of the countryside, peasant resistance – and the instability that flows from their mobilisation campaigns – suggests that consent to neoliberal agrarian policies is lacking. In this instance, transnational law is proving ineffective, achieving only compliance, a category qualitatively different from consent and indicative of little more than a weak hegemony.

IV. Peasant Resistance

A campesino comes from the countryside. There have always been campesinos. What did not exist before were investors, industrialists, political parties, etc. Campesinos have always existed and they will always exist. They will never be abolished.

Marcel Carreon Mundo131

A. La Via Campesina

Peasant resistance manifests in many ways. Whether via land occupations or demonstrations for fairer prices, peasants engage in acts of civil disobedience to express their discontent with deteriorating conditions in the countryside.132 In keeping with the subsistence ethic and the communitarian nature of their existence, peasant movements have banded together in opposition to the legalisation of neoliberal policies. One banner under which they have mobilised is La Via Campesina (LVC).

128 Ibid at 167.

129 Ibid.

130 Chimni, above n 95, at 21.

131 Desmarais, above n 6, at 19.

132 James Scott Domination and the Arts of Resistance (Yale University Press, New Haven, 1990) at 188-192.

LVC is a transnational advocacy network of peasants, small to medium scale farmers, and indigenous agrarian communities.133 Its principal objective is to build solidarity between peasantries and, via united campaigning, promote justice for these groups.134 To LVC, justice equates to positive freedom. LVC thus calls for agrarian and land reform that deepens territorial autonomy, advances peasant and family farm self-sufficiency, enables food sovereignty and decentralises agricultural production.135 Upon analysis of these themes, the underlying ethic can be deduced. As discovered – and expounded upon in the coming sections – many aspects of this ethic are fundamentally at odds with a neoliberal capitalist framework.

Having transcended national borders to unite a diverse range of peasant organisations under a collective commitment to freedom, LVC’s activism manifests on a transnational scale, specifically via a network of disparate alliances operating both within and beyond national borders.136 To manage these alliances, LVC has adopted democratic and inclusive practices that both reflect their heterarch-ical aspirations and preserve local autonomy. Major decisions are made in consultation with appointed members, each representing the plethora of affiliated organisations from across all regions.137 Such democratic underpinnings gel with LVC’s horizontal structure, exemplifying the organisation’s opposition to autocratic neoliberal orthodoxy and its vision for a radically different future.138

As a final introductory note, we observe that LVC does not seek ‘inclusion’ within existing political and economic structures but instead pursues the transformation of the political order in which they exist.139 Its vision is articulated via a dual strategy of delegitimisation – acts of disengagement – and relegitimisation – the production of new identities and solidarities.140 In this way, it can be said that LVC holds an alternative conception of the world to that espoused by dominant institutions. Again, as elucidated in this section, LVC’s ethic promotes freedom by ensuring that local communities retain authority over the things upon which their livelihoods depend.

To determine whether these objectives have moved beyond mere abstractions, I travelled to Havana, Cuba in 2007 to conduct interviews with representatives from eight different peasant groups during a gathering of Latin American social movements. To varying degrees, each group operates under the LVC banner.

133 Since its inception, LVC has affiliated over 80 organisations in around 50 countries.

134 “What is La Via Campesina?” (2011) La Via Campesina <>.

135 Desmarais, above n 6, at 190.

136 “Peasant trajectories are conditioned by world, rather than national, history”: McMichael, above n 5, at 206.

137 “What is La Via Campesina?”, above n 134.

138 Desmarais, above n 6, at 162.

139 “What is La Via Campesina?”, above n 134.

140 Ibid.

B. Peasant Movements141

LVC is an umbrella movement. As stated, its aim is to unite varying peasants and small-scale farmers in the wider struggle for local autonomy. The movement is made up of a hodgepodge of local activist groups, each expressing its own identity and cause while committing solidarity to the aims of others.

The groups interviewed possess constitutive philosophies that reveal their fundamental similarities. Each one questions the global order, specifically the persistence of established hierarchies. They trace these to particular policies and to a governing worldview that, they argue, privileges certain groups over others. Policies include water privatisation (MCIOB), land-grabbing (FCC), mining and associated activities (ECOR AE) and systemic programmes of class discrimination (COPIN). As for worldview, groups identify core neoliberal precepts responsible for the erosion of their access to necessary resources. Peasant ire is heavily directed against liberalisation and foreign imports, responsible for pricing them out of domestic markets and destroying community cohesion (SWU, MCIOB, COMPA and CNE).

Underpinning their frustration is what they regard as the strategic nature of the stratification: no group saw the status quo as either accidental or inevitable but rather as the product of class machination. Seen through a Gramscian lens, class consciousness dilutes consent for it challenges the absoluteness of ideology upon which hegemony rests. The emphasis placed on consciousness by the groups themselves reflects a desire to preserve ideological autonomy or, through a Gramscian lens again, intellectual and moral freedom. For both LVC and some of the interviewed groups, this freedom translates into a desire to remain outside existing political and economic structures.

I emphasise some groups for there is ambivalence over the extent to which the transformation of the dominant political order should be the primary objective. Despite a common focus on counter-education, the groups were divided over whether they sought to replace the dominant culture as per Gramsci’s prescription (COPIN, CNE, MCIOB and SWU) or achieve ideological integration alongside that culture (COMPA, ECOR AE, FCC and MOLOJ). Tellingly perhaps, the trend appears to ghost the groups’ proximity to the state. The MOLOJ and ECOR AE, for instance, express opposition through state apparatuses, preferring forms of integration over programmes of subversion.142

In turn, ambivalence produces (potentially reflects) a difference in strategy. Those who engage the transnational framework at an ideological level (COPIN, CNE, SWU and MCIOB) regard countering neoliberal planks such as the free movement of goods and capital as central to their

141 Brief overviews of each group are provided in an addendum at the end of the article.

142 I note, however, that connections to the state do not necessarily compromise a group’s ambition. MCIOB has engaged with the Bolivian state while aiming to ‘take up power’ and actively construct alternatives to the dominant schema.

emancipation. These groups seem to possess a clearer vision for global reform and the interconnectedness of struggles. Notwithstanding the difficulty of presenting a complete alternative to the dominant structure, some attempt such an elaboration (MCIOB and SWU), expressing a need for outright structural and cultural revolution to achieve their goals. The long-term objective of SWU – “to change the world ” – is tempered by a short-term one – “to build a stable social group within 20 years”. The balance between short and long-term objectives underscores the continuity of class struggle.

Groups that do not adopt a global outlook (MOLOJ, ECOR AE and FCC) appear to privilege what are, to a certain extent, more parochial objectives. Due to the historic marginalisation of Mayan women within Guatemalan society, MOLOJ is primarily concerned with skills development for its members (beyond peasant-based knowledge). State- funded ECOR AE has even more modest goals – reducing poverty among members – and does not purport any (derisively labelled) ‘revolutionary’ objectives. Finally, opposition to the military governments of Honduras and El Salvador compelled FCC’s move to civil disobedience. Curiously, the group does not make any links between domestic military dictatorship and foreign corporate largesse nor, for that matter, between their efforts and those of other groups.

On this point, I note that alliances proved one of the more divisive elements among the groups interviewed. The COPIN regards international alliances as crucial in connecting the global struggles of marginalised peoples though, they admit, this is due to their international invisibility. The CNE concurs, seeing the globalisation of resistance against “transnational empires” as the only positive outcome of the global economy. Observing the impotence of isolated groups who organised against NAFTA, SWU credits alliances with instances of “free trade failures”, underscoring the importance of being “united without borders”. Other groups varied in their perceptions, shifting from ambivalent to hostile. The MCIOB believes that “people should integrate among themselves”, preferring to monitor rather than participate in alliances. For their part, FCC argues that, at best, alliances merely provide indirect support much of which is “disposable”. The pseudo-governmental ECOR AE has little need or scope for alliances; even then, given its integration with the state, it is unclear how and with whom it could forge links.

In sum, despite the overlap between identities, context produces divergences in aims and strategies. For instance, while all groups similarly emphasise education and critical reflection as necessary precursors to freedom, the philosophies of the transnationally-oriented faction remain distinct from those of the more insular groups. There is also no necessary correlation between political maturity and philosophy, with strategies varying widely according to circumstances. Finally, on the matter of alliances, a wide spectrum of positions has been adopted, some ideologically motivated and others based on simple self-interest.

According to Gramsci, acknowledging diversity within subalternity is crucial to forming intra (and eventually inter) class consciousness. It is precisely because subaltern groups

exist in varying degrees of political organization, [that] more organized groups have to become intellectual and moral leaders and attempt to create a subaltern class alliance that would be capable of presenting a new set of cultural values, social relations and a new conception of the state.143

Enter LVC and their food sovereignty campaign.

C. Food Sovereignty

Underlying the interviewed groups’ campaigns – and that of LVC more generally – is the pursuit of ‘food sovereignty’ (FS), with several of them identifying it as a fundamental component of their emancipatory vision. Like other aspects of the peasant movement, the concept of FS was developed in response to the dispossession of peasants and the ascendant role of transnational corporations in food systems.144 The neoliberal era has deepened corporate ownership, management and distribution of peasant staples such as seeds and land.145 As discussed above, the IP regime that is currently in place provides private monopoly privileges over what used to be communal resources.146 Food sovereignty thus developed in opposition to the preeminent role of TNCs in food production and has become a guiding precept in the transnational peasant movement.

Food sovereignty was first proposed by LVC at the 1996 World Food Summit.147 Since then, the concept has evolved and is now defined as:

the right of individuals, communities, peoples and countries to define their own agricultural, labour, fishing, food and land policies, which are ecologically, socially, economically and culturally appropriate to their unique circumstances. It includes the true right to food and to produce food, which means that all people have the right to safe, nutritious and culturally appropriate food and to food producing resources and the ability to sustain themselves and their communities.148

This model presents food as right rather than commodity:149 food is “first and foremost a source of nutrition and only secondarily an item of trade”.150 In this way, FS represents an extension of Scott’s subsistence ethic; agriculture as a means to sustain peasants and communities rather than a path to the accumulation of profits.

143 Green, above n 10, at 21.

144 Richard Goulet “‘Food Sovereignty’: A Step Forward in the Realisation of the Right to Food” (2009) 1 Law, Social Justice & Global Development Journal 1 at 4.

145 Ibid.

146 Ibid.

147 Ibid.

148 Ibid at 5.

149 Edelman, above n 81, at 339.

150 Desmarais, above n 6, at 106.

Food sovereignty also possesses strong links to positive freedom. Recall that peasants’ primary objective is survival – comfort if possible – in the face of uncertain climactic conditions. To this end, LVC claims the right to reproduce society in culturally appropriate ways and to manage local resources to the benefit of local communities.151 In these circumstances, freedom amounts to the capacity to feed and sustain the community. Policies that undermine the pursuit of stable and reliable yields or that alienate peasants from the resources upon which their livelihoods depend will be treated with suspicion and ultimately resisted.

The LVC’s argument, and the one upon which FS is founded, is that positive freedom for peasants necessitates a fundamental restructuring of the values – or ideology – underpinning the global economy:

the food sovereignty movement is constituting an increasingly significant political economy of representation that combines politicization of neoliberal policy, claiming rights beyond market rights, with an agrarian identity based in a value complex weaving together ecological subjectivity and stewardship as a condition for social and environmental sustainability.152

Food sovereignty promotes positive freedom by advocating a more involved role for the state in defending the right to self-determination of peasants. Thus LVC is indirectly advocating a reform of sovereignty doctrine whereby local communities acquire authority over on-goings within their locales, even if this contravenes imperatives pursued by the TCC via meta- regulatory regimes.153

Demands are made both upon states and IFIs to provide the necessary policy space for peasants to participate in the regulation of the countryside according to local and domestic cultural preferences:

Under food sovereignty and in contrast to the ‘one size fits all’ proposals of the World Trade Organization, every country and people is deemed to have the right to establish its own policies concerning its food and agriculture system, as long as those policies do not hurt third countries.154

This demand is challenging both procedurally and substantively, for state governments have been complicit in the advance of neoliberal market policies since their inception.155 In less abstract terms, LVC is calling upon states to proactively pursue activities that will bolster popular dominion over resources needed to ensure subsistence and self-reliance.156 There is more.

Each group provided roughly identical descriptions of FS. The values identified all pointed to control over production, self-sufficiency, and the privileging of local produce to meet local needs. Support was expressed for restrictions on foreign imports – particularly dumping – seeing these as

151 McMichael, above n 5, at 217.

152 Ibid at 215.

153 Ibid at 214.

154 Rosset, above n 38, at 460.

155 McMichael, above n 5, at 217.

156 Goulet, above n 144, at 6.

necessary to prevent local farmers from being driven “out of business”.157 Some of the interviewees (COPIN and CNE) went to great lengths to distinguish FS from food security, its historical antecedent. Both in objective terms and in practice, food security has proven problematic for peasants for it aims to improve the supply of food to individuals – or countries – in need, itself an objective that is not incompatible with neoliberal logic.158 While seemingly innocuous, the supply of food says little about the production of food and, from a peasant perspective, this omission is cause for concern.

The nature of the global economic system and the standardisation of neoliberal policies via meta-regulatory regimes pose a challenge to the pursuit of FS. In fact, it would be more accurate to describe FS as fundamentally incompatible with the neoliberal project.159 Food sovereignty is predicated on aspirations of local control over food production and policy:

It includes the true right to food and to produce food, which means that all people have the right to safe, nutritious and culturally appropriate food and to food-producing resources and the ability to sustain themselves and their societies.160

In contrast to the dominant global liberalising thrust, FS targets local access and control over productive resources and highlights the importance of people’s right to define their own agricultural and food policies, “switching focus from production to social reproduction”.161

Stemming from this local-centrism and from the position that food is sacrosanct, LVC advocates the removal of the WTO from agriculture.162

Meta-regulatory regimes, LVC alleges, violate peasant and human rights by privileging private law and TCC interests over the authority of conventions such as the International Covenant on Economic Social and Cultural Rights (ICESCR).163 In line with notions of positive freedom, the ICESCR acknowledges peoples’ right “to exercise sovereignty over their natural wealth and resources”.164 It also precludes depriving communities of “their own means of subsistence”.165

From LVC’s perspective, neoliberal economic diktat is in breach of the ICESCR: IP law has enclosed the means of subsistence by asserting private proprietary “rights” over natural life forms; deregulation has broken up communal land holdings and subjected them to foreign acquisition; liberalisation has opened up domestic markets to foreign agricultural products forcing small-holder farmers to compete with subsidised exports produced

157 Rosset, above n 38, at 460.

158 McMichael, above n 5, at 220.

159 Ibid at 219.

160 Goulet, above n 144, at 5.

161 McMichael, above n 5, at 215.

162 Edelman, above n 81, at 338.

163 Desmarais, above n 6, at 110.

164 Ibid.

165 Ibid.

by large-scale agribusinesses, all of which have reduced local peasant self- sufficiency.166 Food sovereignty, Rosset asserts, “would allow countries to protect their domestic markets against such practices”.167

D. A Transformative Concept

The imposition of neoliberalism on the countryside has had a negative impact on peasant communities, culminating in their widespread marginalisation next to ascendant TNCs. As autonomy diminishes, feelings of disempowerment rise. Whether via increasing dependence on foreign produced food,168 corporate control of seeds and the prohibition on seed-exchanges,169 or over- reliance on patented fertilisers and pesticides,170 peasants are being dominated by “agrochemical giants and transnational food producers”171 such that many small-scale farmers can no longer sustain their livelihoods. The loss of control over productive resources is leading to the steady conversion of peasants from autonomous producers to dependent consumers.172 \

Food sovereignty prompts a critical re-visioning – or ‘re-peasantisation’ – of existing structures, enabling subordinated societal members to defend themselves against the disempowerment inherent in neoliberal logic and to enable the move towards self-sufficiency. To LVC, FS is intended to “transform the current notion of the right to food into one which can effectively challenge the operation of the international economic system”.173 Human wellbeing is both at the heart of agriculture and peasant society: “after all, the real reason to produce food is surely not to increase trade and augment the profits of multinational traders, but rather to feed people”.174 A fundamental aim of LVC as a movement is the restoration of empowerment and autonomy to farmers. In other words, through FS, LVC seeks to provide an alternative paradigm for the organisation of food production based on widely held notions of positive freedom.

Positive freedom presumes participation and engagement, neither of which is possible in a framework where the market – and thus the strongest market actors – are regarded “as the only means to promote development.”175 These aspirations logically dovetail into an enlarged state regulatory role to protect the interests of the vulnerable, again in stark opposition to the deregulatory thrust of neoliberalism. As Edelman explains, “the goal of reorienting agriculture

166 Goulet, above n 144, at 3.

167 Rosset, above n 38, at 460.

168 Goulet, above n 144, at 4.

169 Ibid.

170 “Organic Farming, Indonesia” (2009) La Via Campesina <>.

171 “La Via Campesina welcomes UN preliminary recognition of peasant’s rights” (2010) La Via Campesina <>.

172 Desmarais, above n 6, at 44.

173 Goulet, above n 144, at 7.

174 Desmarais, above n 6, at 112.

175 Desmarais, above n 6, at 49.

toward the internal market would require a shoring up of the state ... as a bulwark against supranational forces”.176 Within a subsistence framework, state governments must actively safeguard peasants from political and economic machinations, particularly those originating beyond national borders.177

Food sovereignty is best construed as part of a broader understanding of LVC’s conception of the world. The nascent concept holds promise in creating a policy framework that can challenge the existing neoliberal orthodoxy, specifically by forcing compliance with human rights-based obligations to respect the access to resources upon which peasant communities depend.178 Ultimately, FS is a means of asserting peasant self-determination and regaining self-sufficiency, primarily by inculcating a democratic and decentralised thrust in food policy as well as surrounding issues such as gender, class, and economic relations.179 Taken as a whole, LVC seeks to articulate an alternative ethic: a different conception of the world that stands in stark contrast to the world view espoused by the TCC and within the current neoliberal order.

V. In Search of the Transnational Prince

A. Subaltern Cosmopolitan Legality

Among peasants, the modernisation of agriculture has been described as a “war on subsistence” for its assault on farmer autonomy and devaluation of traditional farming practices.180 Under the direction of the TCC, neoliberalism has gone a step further, criminalising many of these practices in an attempt at rendering peasants obsolete. The assault is part of a broader ideational change that challenges existing beliefs about the countryside through a reconceptualisation of state, peasant and community with emphasis on the intersections between them. To achieve their objectives – one of which includes altering popular perceptions of freedom from positive to negative – the TCC uses meta-regulatory regimes to present neoliberalism as much more than an economic programme.181 The neoliberal capitalist ethic embodies a universal philosophy and way of thinking of the world that breaks down the attachments and philosophies upon which the lives of small farmers rest.

Resistance to a hegemonic programme requires “thinking well, whatever one thinks, and therefore acting well, whatever one does”.182 Arguably, this partly explains the success of LVC and the broader transnational peasant

176 Edelman, above n 81, at 339.

177 “Land grabbing causes world hunger! Let small scale farmers feed the world!” (press release, 13 October 2010) La Via Campesina <>.

178 “LVC and FIAN ask governments to ban land grabbing” (2010) La Via Campesina <www.>.

179 McMichael, above n 5, at 223 and Desmarais, above n 6, at 176.

180 Desmarais, above n 6, at 47.

181 Jane Kelsey Serving Whose Interest? The Political Economy of Trade in Services Agreements (Routledge-Cavendish, New York, 2008) at 25.

182 Gramsci cited in Andrew Robinson, above n 49, at 476.

movement. As Gramsci observed, emancipation from “political and social slavery” necessitates a “freeing [of ] the mind” and a flourishing of alternate and socially equitable conceptions of the world.183 In the case of peasants, the subsistence ethic is deeply entrenched in both communities and minds, hence the very limited traction neoliberalism has achieved among these groups. In this way, the alternate peasant conception is not an alternate way at all but rather the dominant one.

Yet, the right to continue being an agriculturalist is part of a worldview that does not concord with the neoliberal model of agriculture. In fact, the two models exist as diametric opposites. Whereas the former values subsistence, distribution amongst the whole of the community, access to land, peasant autonomy, inclusion of non-elites in decision-making, locally-based small- scale production and a view of farmers as producers; the latter values profit, accumulation by dispossession, land-grabbing, farmer dependence, exclusion of non-elites in decision-making, large-scale transnational production and a view of farmers as potential consumers.

The traditional peasant model of agriculture treasures and accords with a concept of metis: practical, local knowledge based on experience and an understanding of the local physical environment.184 Such an approach values diversity and pluralism. A capitalist model on the other hand holds in high regard “the domination of the episteme of scientific knowledge”.185 This concept is grounded in the pursuit of a rational order based on simplification, standardisation, accretion and objectivity.186 Uncertainty is translated into disorder and anything that cannot be explained scientifically is automatically discarded as primitive.187 By seeking to replace the metis model with an episteme one, neoliberalism has subverted a system of farming that has enabled peasants to enjoy their right of subsistence for centuries.

Articulating and actualising alternatives to the neoliberal onslaught is the raison dêtre of LVC.188 But how do they go about achieving and implementing these alternatives? Boaventura de Sousa Santos’s subaltern cosmopolitan legality is a useful concept to employ here for it provides an apropos tool for the examination of LVC’s purpose.189 Indeed, subaltern cosmopolitan legality was developed to document instances of resistance waged in response to the negative impact of neoliberal globalisation – global transformation from below. Subaltern cosmopolitanism examines “plural forms of resistance and embryonic legal alternatives arising from the bottom”.190 The aim is to

183 Ibid at 473.

184 Desmarais, above n 6, at 44.

185 Ibid at 43.

186 Ibid.

187 Ibid at 44.

188 Ibid at 134.

189 Boaventura de Sousa Santos Toward a New Legal Common Sense (Butterworths, London, 2002) at 465-471.

190 Santos and Rodriguez-Garavito, above n 9, at 12.

document a distinct narrative that subaltern groups can draw upon in their multifarious struggles against the existing arrangement while promoting greater solidarity between them.

This description accords with the way LVC is campaigning for change: a multiplicity of groups coming together and mobilising at the grassroots level to challenge harsh neoliberal economic policies and to propose alternate forms of regulation. Santos has said that subaltern cosmopolitan legality converges on those who need it; that is, any subaltern who has been excluded from decision-making processes.191 This too provides an accurate account of LVC members. They are predominantly peasants and rural workers whose ways of life and subsistence mind-set are not tolerated by the TCC and have consequently been excluded from active participation in the global regulatory regime.

Along these lines, Annette Aurelie Desmarais discusses the viability of emancipatory visions based on peasant-led, bottom-up participatory methods.192 As her investigation of LVC reveals, peasant conceptions rebuff the top-down imposition of neoliberal representations of freedom. We recall that FS is central to these conceptions for it facilitates the preservation of many of the characteristics emblematic to peasant communities such as self-sufficiency, subsistence, and solidarity. In addition to enabling peasant activities, FS also requires the curtailing of TCC activities. Thus LVC proposes that food commodity markets be re-regulated to ensure fairer prices for both peasants and consumers alike, that domestic markets be protected from dumping, and, most of all, that national food production capacities be rebuilt, primarily for domestic consumption purposes.193 Combined, these initiatives imply credit, land, and export controls at both the national and transnational levels.

The LVC’s proposals embody ‘bottom-up’ reform in a literal sense: actions happening on the ground convey dissatisfaction and desire for change, expressions which may potentially filter upwards to promote a restructuring of society. Such is in contrast to the conventional hegemonic model in which policies developed by elites at the top of the scale flow downward and are inflicted on hapless subalterns. Hence why the approach advocated by Santos focuses on grassroots levels of political mobilisation: to allow concerns of the subaltern to be amplified and, ideally (idealistically), heeded.

B. LVC’s Subaltern Struggle

On many levels, LVC resembles the Gramscian subaltern. Members labour under the subjugation of an existing hierarchy (or weak hegemony); they rec- ognise the dual assault of a dominant culture by physical and ideological means; they educate for purposes of consciousness and emancipation; and

191 Ibid at 14.

192 Desmarais, above n 6, at 68.

193 Rosset, above n 38, at 462.

they propose alternative conceptions of the world, some of which are based on historical antecedents – the subsistence ethic – and others are the prod- uct of “intellectual and moral reformation” – such as FS. Nevertheless, the particularity of each group’s experience of domination produces strategies of varying directions. The MOLOJ’s focus on women’s rights, for example, has yielded an educational programme that subverts the social barriers imposed on Guatemalan women. In contrast, other groups’ broader focus on peasants’ rights tackles class-based political and economic emancipation instead of the individual-based identity variety.

Yet, reconciling LVC and its disparate members with Gramsci’s counter- hegemonic prescription is not as straightforward as it might have originally seemed, especially when we pit these groups against the measure of ‘consent’. Gramsci’s method is predicated on replacing the locus of hegemony from an elite conception to a democratic one: intellectual and moral self-actualisation of the subaltern.194 Accordingly, any emancipatory framework that requires the subaltern to accept another worldview, albeit one propounded by a different intellectual and moral leadership, essentially crowns a new hegemon. Gramsci’s “emancipation” strategy exposes the dualism of subalternity: a desire for freedom mingled with an inability to see beyond hierarchy and an impulse to occupy the hegemon’s position.195 The initial mechanisms for peasant liberation seem to contradict Gramsci’s overall hypothesis and have come under criticism. Anarchists, for instance, regard the substitution as futile, insisting that effective change must achieve some observable long-term social renewal.196

Intuitively attuned to the criticisms of social obscurity, LVC actively rejects the idea of assimilation. Instead, it demands acknowledgement by international institutions that LVC members represent those “who have a different way of seeing the world and who propose different solutions to meet their needs and interests”.197 The approach taken by LVC places heavy emphasis on positive freedom by providing training to members in support of local mobilisation efforts.198 This is to be expected since LVC seeks to build

194 Shannon Speed “At the Crossroads of Human Rights and Anthropology: Toward a Critically Engaged Activist Research” (2006) 108 American Anthropologist 66.

195 Paulo Freire Pedagogy of the Oppressed (30th Anniversary Edition, Continuum, New York, 2000) at 48.

196 Richard Day Gramsci is Dead: Anarchists Currents in the Newest Social Movements (Between the Lines, Toronto, 2005) at introduction.

197 Ibid.

198 In this way, LVC organisations have been involved in the destruction of Bt-cotton fields in India, the obstruction of ships delivering GM seed to Brazil, the ransacking of fast food outlets (to raise public awareness about the encroachment of TNCs in food production) and the launching of a civil disobedience campaign, “Cremation Monsanto”, which involved burning IP-protected seeds and plants. These instances of political and “extra-legal” action taken by LVC groups correspond with subaltern cosmopolitan legality, which focuses on the centrality of political mobilisation in advancing grassroots legal strategies. Santos has argued that SCL is therefore a political approach with legal dimensions, rather than a strictly legal one. Ibid at 63 and 116-121.

peasants as a transnational political force and present a formidable challenge to policies hostile to peasant interests. Mass demonstrations are thus always accompanied by educational campaigns and instances of individual and collective direct action.199 So central to their campaign strategy is the subsistence ethic and notions of positive freedom, that LVC would rather give up participation in international discussions than compromise its integral principles.200 For instance, LVC refuses to collaborate with the International Federation of Agricultural Producers (IFAP) due to the latter’s abdication towards the jurisdiction of the WTO over agriculture.201

Despite the disconnect with Gramscian theory, the operations of LVC present a possible avenue for the redirection of subaltern theory. As per Gramsci, peasants began their struggle by reflecting on the structures that perpetuate their subjugation. Members are educated and trained in the skills needed to carry the struggle forward. Critical analysis, debate and participation are mainstays of their movement. Indeed, notwithstanding varying levels of hierarchy, each group emphasises collective participation. This dialectic interaction acts as a safeguard against the mechanical dissemination and acceptance of an authoritative vision, essentially precluding the manifestation of a pure Gramscian counter-hegemony.

For their part, peasants celebrate this position, never advocating for a state of subaltern hegemony, preferring to ameliorate the severities of globalisation for those made worse off.202 To this end, they operate primarily within civil society to further resistance via activism or policy. Even MCIOB and SWU, organisations that call for a comprehensive restructuring of society, regard supplanting the existing hegemony with a peasant-based counter-hegemony as an unrealistic – and indeed unhelpful – strategy. Does their reticence translate into a renunciation of Gramsci’s emancipatory methodology? We turn to peasant conceptions of freedom and transnational law for the answer.

Recall that LVC wishes to “remain outside existing political and economic structures”. They simultaneously engage in acts of delegitimisation and relegitimisation: disengaging with the dominant structure while engaging subaltern-based solidarities. Recall also that the TCC avails itself of international institutions such as the WTO to legitimise and promote its interests. Transnational law is used to advance its agenda by standardising a particular social ordering globally. The legal narrative allows the TCC to capitalise on the legitimising force of notions of lawfulness while simultaneously universalising a series of protective – often coercive – instruments. In response, LVC’s legal strategy, and indeed its emancipatory one, exhibits principally a relegitimising thrust.

199 Ibid.

200 Ibid at 121.

201 Ibid at 120.

202 This is so even for MCIOB and SWU, organisations that call for a restructuring of society.

The LVC has adopted what is essentially a rights-based approach to positive freedom, relying upon human rights doctrine to advance their cause. Rights guaranteeing freedom of speech are used to speak out against decisions that are repugnant to subsistence and to drum up public support against neoliberalism. Likewise, rights to freedom of association and protest are used to vindicate mass mobilisation and demonstration. LVC has even exploited its political capital to bring the United Nations (UN) on side, having welcomed preliminary UN recognition of the role and rights of peasants and small farmers.203

Rights rhetoric also underpins the FS movement as LVC lobbies for the adoption of FS as a human right rather than political aspiration. As discussed earlier, FS reorients the right to food by imbuing it with characteristics emblematic of positive freedom: not only should peasants (people) have a right to consume food, but they should also be vested with the right – and the capacities – to produce food as well.204 The interconnection of the globe and the transnational nature of the agro-industry are such that FS must be absolute and universal if it is to counter-balance the primacy of meta- regulatory regimes in national jurisdictions – public transnational law to counter private transnational law. The LVC argues that new instruments and mechanisms must be established to ensure socially responsible trade rules for farming and food:205 “(w)e are asking for a new legal framework with clear standards to recognise the basic rights of more than 2.2 billion peasants in the world”.206 The call then is for all laws pertaining to agricultural production, whether transnational or municipal, to aid in establishing a system where FS is guaranteed and thus “stop the on-going displacement, marginalisation, repression, and persistent impoverishment of rural peoples”.207

VI. Conclusion

Even if you’re the most extreme revolutionary in the world, you’re going to use whatever methods are available to try to ameliorate things, and then if ultimately you run into limits where powerful institutions will not permit more reform, well, then you go beyond them.

Noam Chomsky208

To say that peasants live largely in poverty is to say little at all; few would dispute the claim. To say that transnational legal regimes are partially responsible for the deterioration of the quality of life of peasant communities is to speak a truth that is often suffocated under the self-congratulatory

203 “La Via Campesina welcomes UN preliminary recognition of peasant’s rights”, above n 171.

204 Desmarais, above n 6, at 107.

205 Ibid at 109.

206 “La Via Campesina welcomes UN preliminary recognition of peasant’s rights”, above n 171.

207 Desmarais, above n 6, at 132.

208 Noam Chomsky cited in Peter R Mitchell and John Schoeffel (eds) Understanding Power: The Indispensable Chomsky (The New Press, London, New York, 2002) at 190.

rhetoric of these same regimes. Transnational legal institutions represent enormous agglomerations of power. They operate in an authoritarian manner proffering policy and dispensing decisions that affect global society, while remaining wholly insulated from public scrutiny and popular participation. They are centrally managed institutions that structure authority exclusively from top to bottom and exclude people who possess a different picture of the world. Commitments flow upwards towards owners and investors (for example, private power) and away from the public.

Despite consistent empirical evidence of the many dislocations suffered by peasants during the neoliberal era, transnational legal institutions routinely dismiss their concerns, labelling them misguided, overstated, or simply unimportant.209 Deteriorating living conditions represent a concerted attack on the liberty of the human person: survival is indeed the minimum form of “real freedom”.210 While it is possible to trifle over the precise cause of rising poverty among peasantries, what this article set out to demonstrate, hopefully convincingly, was that the demands of the neoliberal ethic run counter to those of the subsistence ethic. The institutionalisation of the neoliberal ethic – again in the interests of private power – has thus brought about the further marginalisation of peasants and their way of life within the modern era.

What this article also tried to establish was that none of this has gone unchallenged. Even members of the new wretched of the earth have sought (fought) to redress the current ordering of the world. The primary objective of LVC and the wider peasant movement is to achieve both positive and negative rights for the whole of the population. Despite the alleged tension between the categories, what LVC argues is that the privileging of one over the other has less to do with objective incompatibilities than it does with subjective priorities.

Indeed, LVC observes that the particular ordering favoured by capitalist elites – negative over positive or even negative to the exclusion of positive – is remarkably similar to the policies present within international legal regimes. Yet, the consistent application of this equation since the end of World War II has not only failed to curtail poverty but has enabled its expansion. Moreover, as Fleurbaey reasons and LVC proves,

the absence of a right to subsistence [positive freedom] allows the persistence of inequalities and phenomena of social exclusion, with the consequence that basic liberties are not equally distributed and that fundamental rights, particularly in the political and legal fields, are only very partially guaranteed for the underprivileged social categories.211

209 For instance, in a personal communication between the author and the Vice Secretary- General of UPOV, the concerns of peasants were described as “vague and unclear” and “not expressed directly to the Office of UPOV”, a statement expressly contradicted by the activities of LVC.

210 Fleurbaey, above n 40, at 137.

211 Ibid at 139. Fleurbaey also notes that the suffering of the poor is directly linked to the affluence of the wealthy: “The profitability of companies benefits directly from the availability of a workforce ready to accept bad working conditions and low wages” (at 144).

In short, poverty represents a kind of economic violence that despoils the most basic human liberties.

Social institutions play an immense role in establishing the conditions that govern our lives; the TCC knows this as do peasants. The LVC’s mobilisation campaign demonstrates that peasants possess little expectation of transforming existing institutions or acquiring structural influence. Such bulwarks of private power are part of an aspirational hegemonic order that operates in the interests of the ruling class. Rather than engage in a Sisyphean pursuit of command over institutions, peasants have sought to maintain their liberty in the face of ascendant coercive power by creating space for their own self-actualisation – to achieve ideational power. They have done so by acting against the individualist ethic upon which the neoliberal era rests. In practical terms, this has meant learning about the world, working with others, and trying to figure out what their values actually are.

They have also, and this is the crux of the matter, given rise to a series of subaltern cosmopolitan movements each presenting an alternate worldview to the exclusivist one championed by the TCC. The community of victims is resisting and, through this resistance, becoming active participants in both the debate and in their own lives. As Gramsci understood, counter- hegemony is triggered by social exclusion. He also understood that counter- hegemonic thinking alone may prevent a strong hegemony from taking root but that liberation from an oppressive worldview requires the articulation and internalisation of an emancipatory vision. Taking it one step further, what LVC has proven is that counter-hegemonic struggle, even if it fails to supplant the existing hegemonic order, is a very effective means of promoting feelings of empowerment and solidarity. What this author now understands is that empowerment and solidarity are building blocks towards positive freedom.

VII. Addendum212

Asociación Política de Mujeres Mayas (MOLOJ), Guatemala: MOLOJ was established in 1999, in response to the race and gender-based marginalisation of Mayan women. It has a hierarchical structure, from the National Executive Council (represents a range of indigenous communities), to an assembly level, the “social base” of the community. Their dual discrimination has generated a “formative process”,213 as well as overall goals “to promote... Mayan women’s [political] participation with identity”,214 in accordance with Mayan cosmovision.215 This educational process underscores all of

212 The addendum contains synopses of the various peasant groups interviewed by the author and jointly analysed with Sarah Murphy. Please note that some names have been changed to protect the identity of the activists.

213 Interview with Hortensia Simon, MOLOJ (the author, 2007).

214 Ibid.
215 Ibid

MOLOJ’s activities, and community leaders undergo an education program to raise their awareness of their civil and political rights to “boost their own proposals”.216

Consejo de Pueblos Naguas y Chorotegas (COMPA), Nicaragua: The movement was described as a “space of articulation and solidarity”217 for peoples of the pacific, central and northern regions of Nicaragua, with ethnic Nagua and Chorotega descendants. The group is “in the ... process of vindication of [their] territorial and collective rights ... cultural heritage, and ... an internal process of strengthening the ancient organisational net that [has] nothing to do with what [has been] imposed [on them]”.218 The focus of their fight is on “neoliberal policies ... [which are] new ways of colonisation”.219 Power is divided horizontally among group members, and the organisation is built on principles of spirituality and inclusion. The basic structure is the “communitary indigenous councils”, led by traditional authorities and spiritual leaders, comprising representatives of “each sector and priority work areas in the communities according to the needs they have”.220 The sectors include elderly peoples (whose wisdom is prized), and women and youth (who require more training).

Consejo Cívico de Organizaciones Populares e Indígenas de Honduras (COPIN): an alliance of indigenous Lenca organisations.221 It was founded in 1993 around the end of Salvadoran civil war, where despite reduced violence aimed at Lenca people, little structural change had been achieved.222

Social groups have faced violent repression, as well as the decimation of the countryside.223 The COPIN now “fight[s] for the land and the culture of the Lenca peoples, and against the megaprojects ... the FTAs, [and] in [defence] of women’s rights”.224 They do this through “rethink[ing] ways of fighting and ... methods of struggle, [and] also of awareness ... accompanied by not only [denunciation],” but also resistance,225 in accordance with their cultural beliefs. The COPIN’s structure replicates ancient Lenca organisational norms: it is complex and hierarchical, with elected indigenous members, community coordination, and rules requiring 50% of members are women.

Frente de Comunidades Campesinas (FCC) Ecuador: This group was established in 1976 in response to theft of land and an inattentive military government.226 It also has a hierarchical structure, with regular meetings,

216 Ibid.

217 Interview with Maria de Los Angeles, COMPA (the author, 2007).

218 Ibid.

219 Ibid.

220 Ibid.

221 Interview with Berta Cáceres Flores, COPIN (the author, 2007). Lenca are the Indigenous people of Western Honduras. “Lenca is a nationality, an indigenous people that before the colonization was majority in Western region of Honduras, with their own culture, their own spiritual, cultural, agricultural, educational, [and] health... practices”.

222 Ibid.

223 Ibid.

224 Ibid.

225 Ibid.

226 Interview with Teobaldo Velez, FCC (the author, 2007).

and a group of lawyers recommended by the Instituto en Asesoría de Derechos Humanos Foundation. The FCC is preoccupied with transparency, communication, and the diffusion of responsibility and power, compelled by ambiguity and partiality in the processes land devolution, stemming from a lack of communication and coordination.227 The group’s mandate has expanded to encompass water issues as well as land, following the privatisation of two large dams to transnational corporate interests.228

Comisión Nacional de Enlace (CNE), Costa Rica: The CNE is a conglomerate that united in 2004 in common opposition to trade liberalisation, including US-CAFTA, FTA A, Plan Puebla Panama, WTO, UPOV 91,229 and the association agreement with the European Union. It connects farmer, indigenous, union, student and women’s organisations. It is defined as a national movement with various alliances,230 though they deal with problems of a global nature. The main objective is to defeat neoliberalism and free trade, an “exclusive and predatory model”,231 in favour of “a new ... relation among peoples”,232 i.e. the [development] of commercial relations [with] a different logic ... of respect, of complement, not of competitiveness, of exclusion. Some call it socialism, some others something else”.233 The movement has a decentralised, “horizontal” structure, sharing “minimum agreement elements and the central topic is the fight against free trade”.234 Its work has been a “mutual learning process”,235 allowing diverse peoples to work towards a common goal, ending the isolation felt by individual organisations. It also educates local communities in related topics, forcing scholars to communicate with them.236

Southwest Workers Union (SWU) USA, Texas: SWU is a “bottom up” structure (comprising co-directors, a member board of directors, and an executive board) that is “more secular than they are hierarchical”.237 The group’s leaders are those who put themselves forward and show commitment. Greater responsibility entails better political and formative education, allowing them to speak cogently for themselves and the group. The transition between leaders is lengthy, to ensure continuity and knowledge transfer.238

The group’s 20-year vision was to develop an organisation “capable of creating real change ... [that is,] systemic change”239, with the overall goal of changing

227 Ibid.

228 Ibid.

229 Interview with Jorge Coronado, CNE (the author, 2007).

230 Ibid.

231 Ibid.

232 Ibid.

233 Ibid.

234 Ibid.

235 Ibid.

236 Ibid.

237 Interview with Ruben Solis, SWU (the author, 2007).
238 Ibid

239 Ibid

the way in which the world operates. The best outcome for the movement is to develop a non-exploitative trade policy based on “the precautionary principle”, rather than corporate interests.240

Instituto para el Eco-desarrollo de la Region Amazonica Ecuatoriana (ECORAE) Ecuador: ECOR AE was established by governmental decree around 1997, contributing 50c per oil barrel by PetroEcuador and other oil companies operating “on exploration and exploitation of indigenous territories”.241 This funding provides financial support, acknowledging traditional indigenous rights.242 The funding “[brings] projects into the communities ... [to benefit] indigenous communities ... [and] the municipalities, the councils, the [farmer’s] sector [and so on]”.243 Their decentralised structure consists of nine “vocales” with provincial departments and central administration, five of which are governmental.244 They exist to supervise the projects – that is, to identify and quash corruption, and to guarantee the transparent administration of the financial resources.

Movimiento Campesino Indigena Originario en Bolivia (MCIOB): MCIOB structures itself apart from workers’ movements, as indigenous and campesino groups are excluded from “the organisational structures of the workers’ movement”245 and from national state agencies. Despite various upheavals, land distribution remains heavily weighted towards those in Eastern Bolivia, motivating “a fight for land and territory”.246 Privatisation of telecommunication, trains and airlines, made that a key concern, rallying against efforts to privatise electricity and the vital “fight for water”.247 The group follows a complicated hierarchical structure, operating at national, provincial and regional levels. Leaders are chosen according to skills, responsibility, involvement in defending the collective rights of town and community and access to natural resources. They must move slowly up the hierarchy, from a small office, to the head offices, to the federation.

240 Ibid.

241 Interview with Maria Clara CHaru Pijua, ECOR AE (the author, 2007).

242 Ibid.

243 Ibid.

244 “Vocales” are an institution characteristic of the Chuar and other indigenous peoples in Ecuador, set up to identify the group responsible for controlling resources and preventing corruption.

245 Interview with Raphael Bolivia, MCIOB (the author, 2007).

246 Ibid.

247 Ibid.

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