Factual

Two factual elements can in the simplest terms specify what constitutes‘ commodity-related human activity’, or in short ‘commodity activity’. Such activity typically occurs in connection with, for one,

theremoval of an item from earthand, for the other, a specific purpose that relates to the removed item.

93Cf. Tannenbaum (2013), p. 946, n 180.

94Hamilton (1990), p. 503:‘One feature that separates agricultural law from such conceptual topics as property law, torts, or evidence is of special significance. As a sectoral analysis, agricultural law starts with the economic activity of agriculture and then confronts the unique legal issues associated with agriculture[]’, cf. Tannenbaum (2013), p. 946, n 180. Very frank also Mariner (2009), p. 82:

‘Defining afield by the subject matter around which legal principles are gathered has as credible a pedigree as any other approach.’In fact, also to me it appears to be an over-interpretation of the statement by Easterbrook (1996), p. 207 to perceive it as requiring a comprehensive search for a

‘unifying principle’whenever one is to conceptualise afield of law, cf. however e.g., Hall (2002), p. 464 as quoted by Ruger (2008), pp. 630–631. In what appears to have been more of a side-remark in an oral speech that was later published, Judge Easterbrook merely stated that law school courses, which focus on specific subject matters, such as the‘law of the horse’may run the risk of missing

‘unifying principles’—an objective certainly essential in teaching law school students. To interpret his remarks as requiring doctrinal distinctiveness of a newfield of law, however, to my mind puts those out of context and moreover misconceives his speech as a methodological foundational work, which it clearly is not. Besides, I concur with Mariner (2009), p. 82:‘Complaints that“law and. . .”

fields are necessarily illegitimate overstate the case.’Given the purpose that even subject matter-oriented classifications of legalfields can serve, cf. only e.g. sports law, the entire argument relating to the‘law of the horse’may in fact constitute apseudoproblem created by proponents seeking to conservea certain methodological arrangement of norms that they have become acquainted with over the years. However, such comprehensible positions should not discourage efforts to concep-tualise newfields of law, whenever there are compelling reasons to do so.

95Aagaard (2010), p. 245.

This evidently requires a few explanations. We shall begin with thefirst element of commodity activity, theremoval of an item from earth. Human beings are using natural resources in various ways. Watercourses may be used for navigation pur-poses or in order to generate electricity, forests can serve as recreational areas; the sunlight and wind can likewise serve as sources of renewable energies. All these uses of natural resources are, however, distinct from commodity activity. None of them necessitates the removal of anything from the natural environment or, simply speaking, earth.⁹⁶ Consequently, commodity law can be classified as a distinct sub-branch of natural resources law (NRL).⁹⁷

Both termsremovalanditemhave deliberately been chosen for their broadness.

While significant portions of these removal activities may aptly be characterised as

‘extraction’—in particular in mining—the usage of this latter notion would generally exclude especially food commodities that are rather being‘harvested’,‘farmed’or

‘fished’ as well as forestry products, which are usually being ‘logged’.⁹⁸ The respective item becomes a ‘commodity’ at the latest once it has been removed from the natural environment, depending on the kind of item. The seeds of a cocoa plant, for instance, according to our definition of‘commodity’may already be considered as such, when the plant is still rooted in the ground on a plantation.

Except for the harvesting process, the seeds have already acquired their natural or raw form, which suffices for them to constitute a commodity. A precious metal, to the contrary, will typically still be contained in an ore, which in turn is still incident to gangue material and waste rock. It becomes a commodity once it has been separated (extracted) from the natural environment in a way, which allows for its differentiated identification as a raw and/or tradable item. However, since

96Minor‘removals’, such as the ones that may occur for instance when a river is being used for navigation and some water may spill on a respective ship’s deck, which in turn may evaporate over time, shall for our purposes be ignored. We are thus focusing on theintentional removal of something from earth. The term‘earth’is being used in order to underline that also cultivated (food) commodities as well as livestock are being included. The notion‘natural environment’,

‘nature’or‘natural wealth’could suggest an exclusion of all items, which have been cultivated by humankind.

97Cf. already the definition provided by Oehl (2019), p. 6, as well as the additional reflections in n 20. On the undertakings in Germany aimed at elaborating a national resource protection law regime, cf. Sanden et al. (2012), Herrmann et al. (2012); Domke (2013); as well as Umweltbundesamt, https://www.umweltbundesamt.de/themen/abfall-ressourcen/oekonomische-rechtliche-aspekte-der/ressourcenschutzrecht(last accessed 14 May 2021). This resource protection law is intended to reduce the economic costs of resource use, as well as Germany’s dependency on commodity exporting countries. In addition, it shall reduce negative environmental effects of resource use, Herrmann et al. (2012), p. 524. While it thus significantly converges with TCL, it is closer to NRL given that it defines resources as ‘biotic and abiotic raw materials [‘Rohstoffe’] (biomass and minerals) as well as water, air and surface [‘Fläche’]’(my translation), Herrmann et al. (2012), p. 524 referring to the definition by Schütz and Bringezu (2008), pp. 45–46.

98As I have already stated in Chap.2above, nothing in this book is meant to relativize thespecific governance challenges of individual types of commodities, hard or soft, mineral or food. However, this conceptualisation deliberately seeks to emphasise the commonalities betweenall commodities and their related governance challenges.

3.2 The Organisational Framework of Commodity Law 57

commodity law, as will become clear subsequently, covers a broad range of activ-ities also before and after the‘removal’has taken place, this distinction is rather less relevant.

Everything that is being removed from earth can potentially be considered a commodity—provided, it meets the second factual element ofa specific purpose that relates to the removed item.⁹⁹ The specific purpose, which relates to theremoved item, distinguishes commodity activity from other human activity, which involves the removal of natural resources, such as construction projects, particularly large infrastructure projects. When it comes to such projects, the removed matter, how-ever, is typically not of (primary) interest for the actors concerned. It rather consti-tutes an impediment to the operations, which focus on the implementation of an aim that is unrelated to the removed item.

The specific purpose of commodity activity related to the removed item will naturally lie in using it for economic gain, i.e. selling or trading it, including various intermediary steps, such as processing and shipment. Therefore, one could also define an economic purpose related to the removed item as a core conceptual characteristic of commodity law. However, thekindof purpose that one pursues in relation to an item removed from earth does not at all alter the activity itself—which would remain the same also in the unlikely event that one should extract or harvest commodities with the end goal in mind to later donate them. In order to keep the organisational framework of commodity law as simple and abstract as possible, it shall therefore be defined regardless of an economic purpose that the‘remover’may be pursuing with regard to the removed item.¹⁰⁰

These remarks already shed more light as to what can be understood as‘ com-modity activity’. Nevertheless, some further clarifications are necessary regarding the scope of activities, which occurin connection withthe removal and still qualify as commodity activity. Naturally, the removal process itself, whether it involves harvesting, logging,fishing, or extraction constitutes a commodity activity. How-ever, the commodity sector exhibits a whole range of different activities, which all relate to this removal process. These activities have most vividly been portrayed along the so-calledCommodity Value Chain.¹⁰¹For our purposes, we shall use the commodity value chain to elucidate the range of activities, which occur in connec-tion with the removal of an item from earth for a specific purpose that relates to this item. For instance, with regard to extractive industries, one can distinguish between the exploration, extraction, processing, storage and shipping, sale and trading as well as the post-extraction phases.¹⁰²For other industries, the commodity value chain

99Naturally, this claim is only valid within the scope of our definition of the term‘commodity’ established in Chap.2above, which notably excludes air and water.

100On the‘commodification of nature’, cf. Sect.2.1.1.2above.

101It is typically being used as an analytical tool i.a., to illustrate the distribution of returns of a specific product at the different stages of its life cycle as well as to clarify related business and governance challenges, Midgley (2016); Kaplinsky (2000).

102Cf. NRGI (2018).

will be designed differently, notably using different terminology for the terms

‘exploration’,‘extraction’and potentially‘processing’, and usually extending from producer to end-consumer.¹⁰³

On a more abstract level, commodity activities can be said to range from pre-removal activities, which include exploration, but also cultivation, plantation and related undertakings, such as the clearance of a specific area in preparation of a

‘removal’activity, to the ultimate post-removal activity of selling and/or trading the respective commodity. The intermediary steps are, of course speaking on a very abstract level, similar regardless of the type of commodity and involve processing, storage and shipping, sale and trading. Once a removal activity has been abandoned permanently, additional post-removal activities are required, such as a proper closing of the removal site (e.g. mine closure) including a restoration of the natural envi-ronment that may have been affected by the removal activities.

The manufacture of secondary or end products from commodities does not constitute commodity activity. While of course the removal activity is a necessary precondition for such manufacture to be possible, it does not shape these processes to the same extent as those activities, which occur in closer connection to it. Commodity activity constitutes a preliminary stage within the global value chain, which is followed by the ensuing, yet separate stage of manufacture.¹⁰⁴ Also, typically the governance challenges and policy trade-offs, which occur in connection with removal-related activities, are distinct from the ones to ensure a well-governed manufacture process.¹⁰⁵