The Amazon rainforest and the surrounding biomes are vital for the ecology and agriculture of the South American continent as well as for the world’s climate. The biodiversity of this region is not even close to being fully discovered, nor can its importance for life on this planet be fully grasped. At the same time, deforestation in the Amazon is so severe that some scientists see the world’s largest rainforest as close to irreversible “tipping points” where vast areas could dry out, unleashing ecological and economic havoc in Brazil but also releasing massive amounts of carbon into the atmosphere, with potentially catastrophic consequences for our global climate.

This article will look at cattle supply chains from the Amazon to global markets and will show how law plays an ambiguous role with respect to the Amazon. On the one hand, it enables neo-colonial exploitation of natural resources in the Amazon and secures the extraction of profits by legalising illegal deforestation. In this regard the criticism that law supports (neo-)colonial interests of economic and financial elites and creates even more wealth and power is proven right. On the other hand, global commodity chains touch upon various jurisdictions which offer legal pressure points to use law against capitalist interests for the protection of land and livelihoods of Indigenous and rural groups. Innovative transnational approaches to anti-money laundering laws and a growing body of the so-called corporate due diligence legislation in Europe and some countries in the Global South offer legal opportunities to challenge the current hegemonic economic practices. Drawing from my experience in holding multinational companies to account for their involvement in human rights abuses along global value chains and from building the Transnational Litigation Coalition (TLC), I want to explore how the legal regimes of a globalised economy can be confronted with potential counter-legal regimes. The concept of reflexivity as developed by scholars in the Centre for Advanced Studies “Reflexive Globalisation and the Law: Colonial Legacies and their Implications in the 21st Century” is helpful in describing the approach of Indigenous and rural communities as well as civil society organisations in partly using laws against their original intention. I will also briefly sketch out the necessity of new approaches to strategic litigation that are more collaborative and responsive to challenges of transnational cooperation.

Deforestation, cattle ranching, and the transnational process of legalising illegality

The economic exploitation of the Amazonian rainforest was systematically supported by the Brazilian military dictatorship in the 1960s. Today, more than 90 per cent of deforestation in the Amazonian rainforest is illegal under Brazilian law. Cattle ranching is the primary force in converting deforested land into pasture for cattle grazing and later into soy plantations. Next to soy and cattle, other important drivers of environmental destruction in the Amazon region are also gold and bauxite mining as well as timber harvesting. The Brazilian legal framework codifies processes to survey, demarcate, and title territories in the Amazon region and recognises in particular Indigenous peoples’ customary rights over their lands and resources. Through its agrarian reform agency, the Brazilian government also establishes settlements for landless peasants. Additionally, the government has established “extractive reserves” to protect the rainforest while enabling local communities to gather non-timber forest products such as nuts, fruits, and the sap of rubber trees. Despite the protected status, as of 2020, invading cattle ranchers laid claim to more than 120,000 square kilometres of Indigenous lands across Brazil – an area nearly three times the size of Switzerland. These ranchers understand themselves as bringing prosperity and development to the wilderness and, since the military dictatorship in the 1970s, have used various legal instruments to legalise their land grabbing retrospectively. Nevertheless, a lot of the current deforestation is happening illegally.

Such invasion leads to deforestation that not only destroys ecosystems but also results in human rights violations in different ways: Indigenous communities’ autonomy is undermined, exposing them to violence, threats, and the loss of their traditional livelihoods – experiences that can all be qualified as human rights violations under the UN treaties and, in many cases, as criminal offences under Brazilian law. Ranchers frequently subject their employees to forced labour and other forms of severe labour exploitation – referred to in Brazilian law as “conditions analogous to slavery”. Since 1995, federal labour inspectors have rescued more than 17,000 people from forced labour or other conditions analogous to slavery on cattle ranches – predominantly in parts of the Amazon rainforest where deforestation is most intense and persistent.

Thus, despite reasonably good legal protection, poor law enforcement and the significant economic interests of powerful corporations allow much of the meat and leather produced in the Amazon to stem from, or facilitate, illegal activities. As these commodities are traded transnationally from cattle ranches to slaughterhouses and tanneries, global food producers, and leather manufacturers for fashion as well as the car industry – their illegal origin is incrementally legalised through the supply process. Law enables this process through international trade law, contract law, and company law.

The actors involved in this transnational process are multinational meat-producing companies like JBS (headquartered in Brazil), trading companies like Cargill, logistics companies, global supermarket chains like Casino, and automotive companies like VW/Audi. Banks and other financial institutions finance transactions and invest in this lucrative business of resource extraction. All these actors organise their interactions through legal means such as contracts and other regulatory tools. As the commodity passes through different steps along the supply chain, it becomes increasingly difficult to trace it, and the multinational companies can easily turn a blind eye to the illegal origin of the commodity. While these corporations promise their best efforts to ensure “traceability”, they in fact condone the practice of “cattle laundering” and help obscure the origin of meat and leather, which contributes to the destruction of ecosystems, livelihoods, and human rights violations. All this is facilitated by economic legal regimes that re-describe illegal resource extraction as lawful, therefore enabling these goods to enter national and global supply chains legally. In this way, the fragmented transnational legal order functions to obscure responsibility and diffuse accountability.

Legal pressure points and opportunities for a reflexive re-purposing of law

While global supply chains are regulated by international trade law, it is the law of contracts and corporate law that secure the extraction of resources from the Amazon and enable the trade along global supply chains, facilitating the flow of profits. This global flow of commodities touches upon various jurisdictions and is also confronted with different legal regimes that open up the possibility for challenging the original illegality of extraction. Each of the corporate or financial actors involved in the trade of Amazonian meat and leather is incorporated across several jurisdictions in addition to Brazil – in Europe and North America. This gives Indigenous groups, civil society organisations, and human rights lawyers an opportunity to coordinate their efforts transnationally in response to commodity chains and the economic actors that drive them.

Anti-money laundering

Anti-money laundering (AML) legislation in the European Union, for instance, offers underutilised opportunities to challenge the trade and money flows derived from meat and leather produced on illegally deforested land. These laws are not designed to protect ecosystems or Indigenous lands; rather, they aim to prevent organised crime from legalising their profits. While the aims of AML law are to protect neoliberal market economies, representatives of affected communities are redeploying these laws to challenge the legitimacy of the accumulation itself. The dogmatic hook is the so-called “all crimes” approach of these laws, meaning that any crime can serve as a predicate offence. This means that any financial gain derived from the processing or trading of a product originating from a criminal offence of any kind is tainted. As a result, anyone dealing in Amazonian products derived from illegally deforested land may face potential criminal liability for money laundering. These legal arguments have been successfully tested in British courts and are currently under investigation in France. Additionally, the EU Anti-Money Laundering Regulation was reformed in May 2024 to impose strict due diligence obligations on accountants, auditors, tax advisors, and other so-called “obliged entities”. As this regulation will be implemented by the EU member states by 2027, it will potentially heighten compliance responsibilities on corporations dealing with produce from illegally deforested land.

Human Rights Due Diligence

A parallel development evolves around the concept of Human Rights Due Diligence (HRDD). Since the UN Guiding Principles on Business and Human Rights were adopted by the UN Human Rights Council in 2011 and the revision of the OECD guidelines for multinational corporations in that same year, companies have had a responsibility to detect and mitigate environmental and human rights abuses in their supply chains. These international standards have led to several legislative efforts in countries like Germany and France, but also by the European Commission. France introduced the Loi de Vigilance in 2017 and Germany the Supply Chain Due Diligence Act in 2021. On the EU level the Corporate Sustainability Due Diligence Directive was adopted in February 2023 along with other relevant regulations such as the European Deforestation Regulation. While the German law as well as the EU Directive have been just recently substantially watered down, an important essence of these laws remains: they establish a corporate due diligence duty. This duty obliges companies to identify, prevent, mitigate, and remediate negative human rights and environmental impacts in the company’s own operations, their subsidiaries, and their value chains. Rightsholders negatively affected by non-compliance with these due diligence obligations can either pursue civil litigation or use administrative enforcement routes to ensure that the rights violations they suffered end and harms are remediated. In practice this means that communities affected by deforestation can demand of that companies under the scope of these laws to stop using products from their territories and to help mitigate the harms. In France, a case against the French supermarket chain Casino has been filed. The plaintiffs request that the Court mandates Casino to develop, execute, and disclose a comprehensive vigilance plan that identifies and mitigates risks associated with the group’s operations. They also seek compensation for damage to their customary lands and the adverse effects on their livelihoods due to Casino’s failure to meet its duty of vigilance.

Reflexivity of the law to build counter-hegemony

Although legal regimes can initially enable neo-colonial exploitation, others can be used – such as the AML laws – against their original purpose to both protect rainforest ecosystems and give space for Indigenous and traditional peoples to claim their traditional rights to their territories. Protection, on the one hand, does exist on the national level in Brazil, but, while these laws are subverted due to powerful economic interests in exploitation, there are also legal routes that tackle the transnational actors who are incentivising these practices by maximising the profits and legalising illegality. Both these legal routes – AML and HRDD – are still in development and have not yet proven their effectiveness. Still, they hold the potential to not only substantially illegalise profits made currently through the exploitation and destruction of the Amazon rainforest; they offer an opportunity for counter-jurisdictional resistance, in the sense that Indigenous legal understandings of legitimate access and use of the Amazon’s resources are brought into legal disputes concerning globalised commodity flows and their (il)legality.

For this potential to be meaningfully used, transnational collaboration between Indigenous groups, civil society organisations, researchers, and legal experts is necessary and needs to further develop learning from past experiences of transnational strategic litigation. One example of such an initiative is the Transnational Legal Coalition. Groups involved are aiming to mirror and disrupt the legal infrastructure of globalised extraction. They work on connecting local Indigenous struggles with transnational legal routes to challenge the transnational actors involved in making rainforest destruction lucrative. The aim is to re-enforce local struggles of Indigenous and traditional communities in defence of their lands, traditions, and access to the forest by attacking the transnational economic actors, finance institutions, and economic service providers further down the supply chain.

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