Legal pluralism, governance, and the dynamics of seafood supply chains—explorations from South Asia

Walking the beaches and fishing harbors of South Asia, as I have done regularly in the past two and a half decades, I am first of all struck by the variety of fish species¹ that fishers bring ashore. This variety is reflective of the diversity of tropical marine ecosystems, the non-specificity of fishing gears, and also of the varied demand of consumer markets. Although a small percentage of fish species is considered unfit for consumption and therefore discarded, the majority of species that is landed finds its way, via supply chains, to consumers/end-users in various geographical locations—local, national, or international.² These supply chains are obviously of differing length and frequently cross socio-legal boundaries, thereby being affected by a variety of law (taken in its broad, socio-legal sense). Importantly, the fish that moves through these supply chains changes hands multiple times; it is only in the most simple of chains that a fisher supplies a consumer directly. The multiple “hands,” belonging to traders, processors, and transporters constitute the links or nodes in the host of supply chains that move inland from the coast.

In the course of my studies, I have also been struck by the fractured nature of the socio-legal environment of fisheries in South Asia. While state agencies have clearly gained force in the decades since Independence and implement a variety of—sometimes contradictory—rules for organizing the fisheries, non-state agencies, often rooted in pre-colonial formations, continue to play a strong role. I have generally investigated the multiplicity of law in fisheries from the perspective of legal pluralism. This school of thought is interested in the encounters that occur between rules and norms deriving from different legal systems and in the way that they are handled by commoners and authorities alike.

More recently, often joining up with Svein Jentoft and others, I have integrated my legal pluralism interest with one in governance, simply defined as the whole of interactions taken to solve societal problems and create societal opportunities (Kooiman 2003). It will be clear that law plays an important role in governance efforts, and thus that authorities charged with governance make use of rules to provide direction. In situations of legal pluralism, one therefore can also expect to find “governance pluralism,” suggesting that it is not only the field of law that is fractured but also that of governance as a whole (Zips and Weilenmann 2011). The social field in question is thus characterized by multiple authorities exerting power and implementing rules for appropriate behavior. In such legal pluralism–related governance studies, the main enquiry concerns the encounters between pluralizing parts. For those concerned with enhancing the unity of governance, attention also goes to the institutions that might actually make this possible (Jentoft et al. 2009; Jentoft and Bavinck 2014; Parlee and Wiber 2014).

This paper attempts to link the above two observations and investigates the consequences of legal pluralism for the functioning of fish supply chains. Supply chains have recently become an important field of study. The paper asks, first of all, whether all fish chains are affected by legal pluralism. Secondly, assuming that legal pluralism is potentially a divisive force, it enquires how the chains that are so affected actually stay together. How do legally plural elements in value chains combine?

“Theoretical framing” section provides a theoretical reflection on issues of legal pluralism, governance, and supply chains. The next section (Examples of South Asian fish supply chains) includes case studies of a selection of contemporary chains in the South Asian setting and a digression on their legal/governance content. “Discussion” section wraps up the paper and provides directions for further research.

The ethnographic fieldwork on which the case studies are based was conducted along the southeast coast of India, in the state of Tamil Nadu, at various points of time in the period 1994 to present. Research methodology has consisted of participant observation, interviews, surveys, and the study of secondary sources, with an emphasis on the shoreline-side of fish supply chains.³ Research methodology thus differs from what Gereffi and Fernandez-Stark (2016) suggests is the most appropriate: “In practice, governance analysis requires identification of the lead firms in the sector, their location, how they interact with their supply base and their source of influence and power over them (e.g. standards compliance)” (2016:10). Such lead firms, if any, will frequently be far removed from the coast, and therefore generally not part of my research effort. This paper therefore represents no more than a first attempt to deal with the topic.

The literature on supply chains is large and varied, with alternative terms—such as commodity chain, value chain, or traceability chain—being coined for essentially the same phenomenon. Gereffi and Fernandez-Stark (2016) provide the following simple definition: “A chain represents the entire input-output process that brings a product or service from initial conception to the consumer’s hands” (2016:8). Scholarship suggests that agro-food chains, which include fish, possess other characteristics than, for example industrial products. Thus, Trienekens et al. (2012) point to the following features of agro-food products that influence the functioning and thus the governance of their chains: (1) unpredictable supply due to seasonal variations, (2) quality variation between producers and food products, and (3) perishability of products.

Gereffi—who plays a key role in the Global Value Chain literature—has studied “how a chain is controlled and coordinated when certain actors in the chain have more power than others” (Gereffi and Fernandez-Stark 2016:10). His distinction between buyer- and producer-driven chains remains relevant, as is his typology of intra-chain governance relations (Gereffi et al. 2005) that differ according to the extent that they are “integrated” and lower-level actors possess freedom to switch to other buyers. The dominance of so-called lead firms is therefore a core feature of his approach. The four most relevant types in his schema are:⁴ (1) market governance, in which there is little to no cooperation between actors and price is the determining factor; (2) relational governance, in which there are mutual reliance and social ties, lead firms “still specify what is needed, and thus have the ability to exert some level of control over suppliers” (Gereffi and Fernandez-Stark 2016:11); (3) captive governance, whereby small suppliers are dependent on one or on a few buyers that often wield a great deal of power; and (4) hierarchical governance, where “chains characterized by vertical integration and managerial control with lead firms that develop and manufacture products in-house” (ibid.).

Gereffi and co-authors clearly locate governance within and not only external to the chain. This position correlates with the one taken by the legal pluralist scholar Turner (2016) in his seminal analysis of legal pluralism in supply chains. In this paper, he pleads for a distinction between “chain normativity,” or the socio-legal repertoires that are joined in the formation of specific supply chains, and the “plural legal environment” in which these chains are embedded. From this perspective, law and governance are exerted both from within and from outside the supply chain, creating “normative entanglements” (ibid.) and “tangled hierarchies” (Jessop 1995, in Parlee and Wiber 2011).

The fisheries governance literature has sometimes taken a different position. Interactive governance writings have thus tended to locate fish chains in the so-called system-to-be-governed, whereas governance, and law, is positioned in the governing system. The best example of this is the Fish for Life book (Kooiman et al. 2005), in which the chain and the governance set-up are clearly separated. The drawback of this choice is that insufficient attention has perhaps been given to governance activities that occur within fish chains. But the tendency to categorize fish chains as separate from governance is not essential to Kooiman’s original (2003) approach. In fact, Kooiman has repeatedly emphasized that his framework provides heuristic tools rather than fixed classifications, and that alternative formulations are possible, depending on the specific question to be answered. In the case of supply chain governance, it makes sense to follow the approach outlined above: to situate law, governance, and power both within and outside the chain.⁵

Having summarized my understanding of supply chains, I now turn to the broader topic of legal pluralism, which is argued to constitute both the body and the environment of seafood supply chains. Here, building on Weber (Rheinstein 1954), a body of norms and rules is termed “law”: “if it is externally guaranteed by the probability that coercion […] will be applied by a staff of people holding themselves specially ready for that purpose” (ibid.: 5). Legal pluralism then is the condition whereby different—formal and informal—legal systems or parts thereof are applied to identical situations (Vanderlinden 1972; cf. Von Benda-Beckmann 2002), thereby coming into contact. In the field of natural resource usage, such as fisheries, legal pluralism analysis has hitherto been used for understanding the origins of fishing conflict (Bavinck 2001, 2005; Bavinck et al. 2013; Karnad 2017), institutional incompatibility (Wiber and Kearney 1996), dispute resolution (Wylie 1989), and, only recently, supply chain dynamics (Parlee and Wiber 2011, 2015). The understanding that emerges from the latter literature is that, in cases where the socio-legal body and/or environment of supply chains are normatively fractured, this too will modify their functioning.

Bavinck and Gupta (2014) emphasize that legal pluralism is “a key challenge of governance architecture” and “can affect the quality of governance” (ibid.: 78). They suggest that legal pluralism can impact governance in different ways: by creating incoherence in the substance and the procedure of law; by affecting the definition of property rights, which then become the focus of struggle; by setting a competitive process in motion; and, finally, by directing human behavior in various directions. Building on earlier work in the field of institutional studies (Helmke and Levitsky 2003) as well as in fisheries (Jentoft et al. 2009; Bavinck et al. 2013), these authors create a matrix with four relational ideal types between legal systems. Type 1 in this typology consists of indifference, with lead actors in legal systems barely being aware of each other’s existence; type 2 provides for conflict; type 3 suggests accommodation; while type 4 includes mutual support.

The above typology has recently been adjusted to include attention for power differentials (Jentoft and Bavinck 2014), which is anyhow an important topic in legal pluralism scholarship (e.g., Von Benda-Beckmann et al. 2009). Jentoft and Bavinck (2014:75ff) frame this in terms of symmetry and asymmetry between legal systems and distinguish two forms thereof. The first of these concerns the extent of “substantial coherence” between legal systems, at the level of values, norms and principles (the meta-order), institutions (the second-order), and the action or tools (first-order). The second concerns the power struggles that may occur between legal systems and the people that adhere to them. Asymmetry of both kinds is argued to influence the course of events, such as in fish chains, and thereby their governability. But such asymmetries are argued not to be “written in stone,” with harmonization thus to be fostered.

The Bavinck and Gupta (2014) typology has also been criticized for not providing the right set of tools for analyzing “the social meaning of legal plurality in the life-worlds of people” (Roth 2014:89).⁶ The present paper is interested in understanding whether the typology is relevant to the analysis of legal pluralist encounters within and with regard to supply chains. I return to this question in the “Discussion” section below, after first presenting five cases from India.

Besides dividing supply chains according to destination and value, Table 1 provides an indication of when these supply chains arose according to three time slots: the pre-colonial era; the 1960s (coinciding with the Blue Revolution in fisheries), and the post-1990s (coinciding with the era of economic liberalization in India). It comes as no surprise that my international fish chains all have a relatively recent origin—this relates to the recent acceleration of globalization processes and India’s position therein. The table also contains two vacant cells: although the local fish market does deal with higher value species; such chains have been left aside for reasons of brevity. The non-inclusion of low-value species for the international market on the other hand is reflective of the nature of fish flows from India, which still tend to concentrate on high value species.

The five case studies discussed in “Examples of South Asian fish supply chains” section are rich and diverse, each additionally concealing a range of variations according to time and place. Table 1 presents an overview of the chains’ varying dates of origin, volumes and monetary values, as well as their geographical expanse, ranging from local to national and international. It will be clear that whereas some supply chains enjoy high visibility (especially tuna and shrimp), others function in ways that are hidden to most observers. Finally, the case studies bring out the dynamics occurring in value chains over time, with some being nipped in the bud (case 1), and others expanding their geographical ranges and volumes over time (cases 2 and 4). While one case (case 3) enjoys a long and relatively stable historical trajectory, the final case (case 5) has come about quite recently in response to high international market demand. The dynamic nature of seafood value chains over time is also highlighted by Parlee and Wiber (2011), who, in their study of the Atlantic Canadian lobster supply chain, note that “diverse actors, including food retail corporations, environmentalists and lobster fishers, were (re)constructing scalar relations by working in new ways” (ibid.: 138).

Although more research is required on the topic of seafood intra-chain governance, the role of Gereffi’s et al. (2005) lead firms in controlling supply chains appears to differ from one case to another. Thus, it would seem that the strongest measure of control takes place in the export–driven supply chains (cases 4 and 5), which are demand-driven and in which a large number of regulatory actors play a role. In the local chains, such as chain 2, transactions are more often market-based or relational. Unlike the case of Norway, in which producer organizers have come to play a determining role in supply chains (Jentoft and Finstad 2018), and dissimilar from the lobster fishers of Atlantic Canada who initiated their own traceability chain (Parlee and Wiber 2011); harvesters in India have limited influence on chain dynamics.

But it is clear from all cases that governance of the fish supply chains derives not only from within the chain but also from the outside too. The case studies thus point out the relevance of “customary law”: the legal systems devised by fishing populations over time for the purpose of ensuring community wellbeing (Bavinck and Vivekanandan 2017). Customary law continues to play an important role in many fisheries, including those of Tamil Nadu, India. I noted above how fishing communities use customary law to regulate the use of new fishing technology, as well as local markets, thereby influencing, and in one case even interrupting, the performance of fish supply chains.

Governmental and private authorities also play a role. Thus, Sathiadhas et al. (2012) divide influences on export–driven seafood supply chains in India into tariff and non-tariff measures. Tariff measures relate to import duties charged by fish-importing countries on seafood from India. These necessarily affect the direction of fish flows. Non-tariff measures are grouped into several categories: sanitary and phyto-sanitary measures (SPS), related to food safety; technical barriers to trade (TBT), such as labelling or testing procedures; anti-dumping measures, such as applied by the USA in 2003 to shrimp from India; subsidies given to fisheries; and ecolabeling and certification of seafood products. All these law-like measures emanate from different sources of authority: governmental agencies, international bodies such as the World Trade Organization (WTO), international agreements endorsed by national governments, and private bodies—such as the Marine Stewardship Council (MSC)—involved in certification and labeling. The complex of these regulatory forces, which are anchored in different legal systems, when applied to the seafood supply chains in question, can profitably be viewed as “entanglements.” Importantly, whatever complications may ensue, these entanglements generally do not prevent the chains from functioning: they continue, on a daily basis, to move seafood from diverse landing sites to consumer plates.

Table 2 suggests that in each of the five case studies, at least two types/levels of law, according to their place of origin, play a role. It is only in two cases that all four types/levels exercise influence, either from within or from outside the chain. In three cases, in which the chains are limited to local or national markets, international law plays no role of importance whatsoever.

Customary law plays an important part in all cases, mainly with regard to the regulation of the harvesting process, and thus the delivery of catches to the post-harvest sector. Customary law also exercises a role in the mode of first sale but loses influence as products move up the chain and away from the coast. State law is most pervasive in the high value supply chains, such as for chank, shrimp, and tuna, linking up with international law as far as it concerns the meeting of international standards. International law plays a role particularly with regard to global supply chains, in which it exerts power through its control of consumer markets. Private law is most pervasive in fish chains in which certification or labelling takes place.

This paper has attempted an investigation of the role of legal pluralism in the governance of fish supply chains, making use of five examples from Tamil Nadu, India. Following the lead of Turner (2016) and other authors, I distinguished intra-chain governance from the governance exerted by the larger socio-legal environment, such as by state authorities and informal village councils. Legal pluralist encounters were highlighted as a defining feature in both realms. However, the paper noted that with the length of chains comes greater legal pluralist interferences. International supply chains, otherwise known as global value chains, combine the largest number of legal influences. Such chains are most likely to be demand-driven and strongly controlled, thus belonging to the upper range of Gereffi’s et al. (2005) typology. Local supply chains of low-value seafood enjoy the least number of socio-legal influences and reside in the lower ranges of Gereffi’s typology.

Aside from the governance control that occurs from within fish supply chains, I noted the importance of the legally plural environment, which consists of different kinds of law arising from manifold sources and scale levels. The encounters that occur here resemble those described by Parlee and Wiber (2011) and Turner (2016). My case material was best suited for distinguishing the influence of customary, fisher law on the emergence, demise, and performance of fish supply chains. However, the material was also sufficient to also point out the contours of state, international and private laws as they contribute to shaping the nature and direction of these supply chains.

More research on fish supply chains is required in order to gain a better understanding of the legal encounters and the “entanglements” that are taking place. The typology of legally plural relations (Bavinck and Gupta 2014) mentioned in “Theoretical framing” section above does provide a starting point. On the basis of this typology and our case material, one may conclude that, as far as intra-chain governance is concerned, two relational types—defined by accommodation and/or mutual support—are probably most prevalent. The two other types—indifference and conflict—may characterize certain phases in the genesis of chains but will need to be overcome in order for chains to actually move seafood from the coast to the consumer. Following the lead of Bavinck and Gupta (ibid.), situations of indifference “may need to be transformed into a learning process based on enhanced knowledge of, and interests in, the multiple circumstances. Situations of conflict need to be addressed and defused through negotiation, conflict resolution and action research” (ibid.: 82).

Within the environment of seafood supply chains, however, all four relational types may actually be available, creating complications of various nature and thereby affecting actors and actor strategies at different points within these chains. For the purpose of analysis, it may be useful to follow the lead of Jentoft (2007), who notes that “fisheries and coastal management rests ultimately on power” (2007:434). In view of the fact that “control” is recognized as playing an important role in value chains too, Jentoft’s perspective on power can be expanded beyond fisheries management. Power differences between actors leaning on other legal systems within or external to the seafood supply chain are more than likely to play a role in their functioning, thereby providing additional explanations for their emergence, disruption, and expansion.

Here, we brush against a dimension of what Jentoft and Bavinck (2014) call the “symmetry” between legal systems in a particular constellation. The other dimension of symmetry is “substantial coherence” between the legal systems in question: a matter of matching between key elements thereof. The precise conditions of matching—an investigation that could only be touched upon in this paper—involve attention for the content of norms and rules (substantial justice), but also for procedures (procedural justice). The latter enquires into the “right way” of arriving at decisions and working arrangements, and may differ greatly between legal systems.