A/HRC/21/63/Add.1 Advance Version Distr.: General 24 September 2012 English only Human Rights Council Twenty-first session Agenda item 10 Technical assistance and capacity-building Report of the Special Rapporteur on the situation of human rights in Cambodia, Surya P. Subedi Addendum A human rights analysis of economic and other land concessions in Cambodia* Summary The report, submitted in accordance with resolution 18/25 of 26 September 2011 of the Human Rights Council, is an assessment of the human rights impact of economic land concessions (ELCs) and other land concessions and major development projects in Cambodia (generally referred to as ―land concessions‖ throughout the report unless otherwise specified). It includes not only an analysis of concessions pertaining to agro- industry (for example, rubber, sugar, acacia and cassava plantations), but also to concessions for mining, oil and gas, forestry, and concessions for the purposes of tourism, property development, and large scale infrastructure, such as hydropower dams. During my mission, on 7 May 2012, the Prime Minister announced a Government initiative relating to economic land concessions, including the institution of a moratorium on the granting of new concessions and a review of the compliance of existing concessions with contractual and legal obligations of the concessionaires. He subsequently announced a rapid land titling initiative relating to people living near concessions. This report takes into account these recent developments and seeks to build on the positive aspects of these initiatives. The report analyses information that I have received from the beginning of my mandate in 2009 through the end of July 2012, including the domestic legal framework governing land rights (and law and policies related to protected areas), international developments related to Cambodia‘s human rights obligations involving land, and the impacts of economic and other land concessions on the enjoyment of human rights. The * Circulated as received. GE.12- A/HRC/21/63/Add.1 cases selected reflect these submissions. The report is based on official government data and information, analysis, individual petitions and testimonial evidence submitted by individuals, communities and local and international non-governmental organizations. The report also benefits from research done by the Office of the United Nations High Commissioner for Human Rights (OHCHR) in Cambodia, which is carrying out ongoing monitoring and advocacy related to this issue. While all my activities are carried out with the cooperation of the Government, it should be noted that the official documentation needed for a complete analysis in some areas was not forthcoming, and thus gaps in information exist in some places. At the outset, it should be noted that historical circumstances, including the policies of the Khmer Rouge regime and the widespread destruction and dislocation left in the wake of Cambodia‘s lengthy civil war, have led to the proliferation of land disputes that the Government is trying to manage. Furthermore, it should also be noted that Cambodia as a developing country may wish to prioritize utilization of its land and natural resources in order for the country to develop and become more prosperous. Nevertheless, I am of the view that land concessions should be granted and managed within a sound legal and policy framework, including with due consideration for and consultation with those who will be affected, and with the sustainable use of natural resources in mind. The majority of the challenges I have identified in this report (analysed in sections V-VIII) derive from a failure to apply the domestic legal framework – that is, the laws, policies and regulations that the Government itself has developed (explained in section III). The granting and management of economic and other land concessions in Cambodia suffer from a lack of transparency and adherence to existing laws. Much of the legal framework on these matters is relatively well developed on paper, but the challenge is with its implementation in practice. Further, a pervasive problem that I have encountered is the uneven access to information, which has contributed to concessions benefiting only a minority, as well as a proliferation of land related conflicts, which has the potential to contribute to instability. The Government should be rigorous and transparent in the granting and monitoring of land concessions (sections II and VI), especially when negotiating concession agreements with both foreign and national companies, avoiding conflicts of interest, and holding concession companies to account by exercising oversight over their activities and resolving land disputes. Absence of transparency in such matters has bred suspicion of corruption at all levels of the Government and has fuelled resentment on the part of many Cambodian citizens. In spite of visiting Cambodia since 2009 and enjoying a relatively good level of cooperation from the Government in many areas covered under my mandate, I had difficulty in obtaining the necessary official information and in reaching companies holding economic and other land concessions. This lack of access to key information has made it extremely challenging to write a comprehensive report on these issues. Cambodia, as an emerging market, risks developing an international reputation for insecure investment in the land sector and in general. The current climate of development is characterized by low transparency and uneven access to information, inadequate consultation, and participation which is not inclusive, and, in my view, is unsustainable and likely to hamper future national economic growth. Of course, some cases of land concessions seem to have had positive impacts for the people of Cambodia in terms of job creation, stimulation of the local economy, generation of revenue to finance public services, and overall contribution to national growth. However, the human cost of many concessions has been high, and human rights should be at the heart of the approach to the granting and management of land concessions in order for them to have a positive impact. There are well documented, serious and widespread human rights violations associated with land concessions that need to be addressed through remediation. Criminalization of land 2 A/HRC/21/63/Add.1 activists and human rights defenders is particularly worrying, as freedom of expression and assembly is crucial to a well-functioning democratic society. Moreover, throughout my analysis, I struggled to fully comprehend the benefits of many land concessions that the Government has granted. In general, it is not clear to what extent the people of Cambodia have actually benefited from land concessions and I am concerned that, despite the Government‘s commitment to fighting corruption, many concessionaires operate behind a veil of secrecy. Benefits from land concessions, where they exist, need to be quantified and made clearer, and if such benefits are not evident policies and practices around the granting of land concessions need to be modified. The impacts of land concessions should be analysed for both their short- and long-term consequences; indeed, benefits should be genuine and outweigh costs for the majority in order to be considered substantial. I am of the view that the development of Cambodia‘s land and natural resources could have a positive impact on the lives of all Cambodians if undertaken in a sustainable and equitable manner and within the framework of the human rights obligations of the Government, and it is in this constructive spirit that I present this report. 3 A/HRC/21/63/Add.1 Contents Paragraphs Page I. Introduction and scope ............................................................................................ 1–5 7 II. Monitoring land concessions during the last two decades....................................... 6–13 8 III. National framework – laws and procedures ............................................................ 14–65 11 A. Land management: land classification and re-classification of state public land ............................................................................................. 15–19 11 B. Laws and regulations governing land concessions ........................................ 20–25 12 C. Update on the procedure for granting land concessions – the role of State actors ............................................................................................................... 26–34 14 D. Interaction with other laws and regulations governing land concessions ....... 35–48 17 E. Land title and possession rights ...................................................................... 49–51 23 F. The rights of indigenous peoples to land ........................................................ 52–54 24 G. Brief overview of available land dispute resolution mechanisms ................... 55–59 24 H. Recent changes in law and policy ................................................................... 60–63 26 I. Pending draft laws and regulations ................................................................. 64–65 27 IV. International Legal Framework ............................................................................... 66–80 27 A. Developments in the international human rights system pertaining to Cambodia‘s State obligations ..................................................................... 66–72 27 B. International developments in the human rights responsibilities of business enterprises