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This case involves two economic land concessions illegally granted to the Koh Kong Sugar Industry with a size of 9,400 hectares, and the Koh Kong Plantation Company with a size of 9,700 hectares in the Botum Sakor and Srei Ambel districts of Cambodia. Shares in these companies are proportionately held by: Khon Kaen Sugar Industry Limited (KSL), a Thai company holding 50%, Ve Wong Corporation, a Taiwanese company holding 30%, and Ly Yong Phat, a billionaire Cambodian Senator, who holds 20% of the shares. Initially, the sugar was bought by British company Tate & Lyle Plc. As of October 2010, Tate & Lyle sold their sugar business to the American Sugar Refining Company. Until recently, DWS Investments of the Deutsche Bank Group was an investor in KSL in the amount of €10 million.
The villagers’ fruit trees and rice fields were cleared and the land was used by the companies to grow sugar cane. A sugar processing factory, costing USD$30 million was also built on the land. The companies now export sugar to the European Union through a trade preference scheme for imports from Least Developed Nations called ‘Everything but Arms’. The land concession deals have confiscated 5,000 hectares of land belonging to 456 families in Chikor, Chhuk and Trapeng Kandal villages. Until now, however, there are only in dispute approximately 1800 hectares confiscated from 252 families in three villages, because some families have given up the struggle for compensation because the process has been too slow to take action. Others have received some money, but it is far less than they were entitled to.
For generations, families in these villages have maintained a traditional lifestyle dependent on farming and gathering by-products from the forest. This lifestyle was disrupted on May 19, 2006, when bulldozers, accompanied by armed forces, began to clear their land to make way for the land concession projects. The companies never consulted with the people in these communities and, furthermore, they failed to abide by the legal requirements for economic land concessions. By January 2007, approximately 2,879 people reported complaints about the concession’s encroachment on farm land. Complaints included destroyed crops, damage to cattle and buffalo, and seizure of farm lands.
In 2007, CLEC-PILAP assisted village representatives in taking civil and criminal action against the concessionaires to the Koh Kong Provincial Court. They filed a motion requesting an injunction to bar the companies from continuing to clear the land. Intervention requests have also been sent to the National Assembly, Ministry of Interior, Council of Ministers and other governmental bodies. As land continues to be cleared, it appears that these actions have had little or no effect on company activities.
There are four explicit legal issues in this case that prove such economic land concessions (ELCs) to violate numerous provisions of the 2001 Cambodian Land Law and the Sub-Decree on Economic Land Concessions. The first is that the Land Law limits an economic land concession to 10,000 hectares. Furthermore, it prohibits the issuance of land concessions which collectively exceed 10,000 hectares to multiple legal entities controlled by the same person. Both companies in this case are controlled by the Khon Kaen Sugar Industry, Ve Wong Corporation, and Ly Yong Phat. Second, Land Law in Cambodia stipulates that an ELC can only be granted on lands classified as state private property. Lands privately held by citizens cannot be conceded by the government for use as an ELC. Article 30 of the Land Law states, “Any person who, for no less than five years prior to the promulgation of this law, enjoyed peaceful, uncontested possession of immovable property that can lawfully be privately possessed, has the right to request a definitive title of ownership.”, and interviews with local villagers reveal that they have a legal right to privately possess the disputed land. The residents of Chhouk, Chikhor and Trapeng Kendal villages had lived on their land, continuously and unambiguously, for more than five years before the promulgation of the 2001 law and are therefore entitled to private ownership of that land. Third, according to Sub-Decree on Economic Land Concessions, several formalities must be carried out prior to issuing an ELC. Article 4 requires registering land as state private property; conducting environmental impact assessments; conducting social impact assessments; resolving any resettlement issues with local communities; and consulting with local communities about the concession project. None of these requirements have been carried out. Finally, the violence associated with the operations on the economic land concessions suggests several other legal liabilities, including criminal liability for the concessionaire. Villagers have reported destruction of private property, including the clearance of crops and farm land, and attacks on cattle and buffalo.
The Real Difficulties Facing the People
In early 2011, almost 80% of the population of CLEC clients was employed as sugar cane collectors for the companies that are growing sugar cane and building refineries on what was previously their land. They are paid very little for their labor, and their employment as sugar cane collectors lasts only three months of the year. After the harvest, the villagers have no employment and they cannot make their daily living allowance. As a result, they have to migrate from home to seek a job. Therefore, the people who migrate to other provinces have to live separately from members of their family. The villagers do not have sufficient food and are always vulnerable to diseases caused by the chemical waste released from the refineries, which also kills local fish populations. Water resources are not accessible to the villagers now. Children who are afraid of their cattle being seized and ransomed by the Companies’ security guards do not go to school because they have to help their parents to take care of the cattle. While the companies enjoy the profit made from the sugar cane producing on the land they illegally seized from the villagers and exporting to other countries, the living conditions of the residents is deteriorating because they do not have land for farming.
CLEC’s first step was to send a letter directly to KSL in 2008. They responded saying they knew nothing about what CLEC had told them, and asked CLEC to provide them with further information. They then sent a great deal of documentary evidence to them and asked them to visit the community. They never replied. CLEC attempted to contact them again in 2009 but they did not respond.
Tate & Lyle
CLEC sent a letter directly to Tate & Lyle. After initially sending a positive response, their second letter concluded that their responsibility had ended because they had sold their sugar businesses to American Sugar Refining Company. CLEC continues to work on ways to hold Tate & Lyle accountable.
DWS Deutsche Bank Group
Working again with partners Bridges Across Borders and Licadho, both Human Rights NGOs in Cambodia and German NGO, FIAN, CLEC sent a letter to DWS and spoke to its representative over the phone a number of times. DWS said that it would attempt to work with KSL and CLEC gave them some time to do so. Soon after, CLEC found out that DWS had sold all of its shares in KSL. It remains unclear who they sold the shares to.
Koh Kong Provincial Court
In 2007, CLEC filed a complaint with the Koh Kong Provincial Court asking it to cancel the Economic Land Concession that applies to the clients’ land. Since the complaint was filed, the Court has taken no substantial action on the case. While it is easy for us to file a complaint in a Cambodian court, so far it has not been an effective way for us to seek a remedy for our clients and it is likely to remain like that for a long time to come. The judge in the case recently announced that he plans to hold a hearing in May this year.
The Cadastral Commission
The World Bank financed a so-called ‘Cadastral Commission’ for Cambodia to deal with certain land disputes as part of its Land Management and Administration Program. That program was latter cancelled by the Government, and was recently subject to a World Bank Inspection Panel complaint that found that the Bank and the Government had breached their obligations under agreed safeguard policies. Due to legal reasons, the villagers’ case was not within the Commission’s jurisdiction.
Cambodian Prime Minister, Ministries, Senate, etc.,
CLEC helped their clients to send intervention letters to the Prime Minister, the Senate, the National Assembly, the Ministry of the Interior, and other institutions. They received responses to some of those letters. They required the Koh Kong Provincial Governor to solve the problem, but this did not have any effect. A Secretary of State from the Ministry of the Interior tried to mediate the dispute, but Senator Ly Yong Phat’s great power in Koh Kong Province and his closeness to the Prime Minister means that it was not possible for well-meaning officials to intervene in the dispute due to corruption.
Thai Human Rights Commission
CLEC filed a complaint to the Thai Human Rights Commission in 2009 in relation to the Thai investment company involved in the case: KSL. After the complaint was submitted, the Commission invited CLEC to have a meeting to explain the case and the evidence. The Commission promised to address the problem, and contacted the company to arrange a meeting. The company agreed to meet with the Commission, but then cancelled at the last minute. The Commission is now making further investigations. They plan to send the case to the Thai Government, National Assembly, and media. We are currently preparing a supplementary complaint that will analyze the human rights situation using the draft UN ‘Protect, Respect and Remedy’ Framework, written by Professor John Ruggie. CLEC notes that it was not easy to access the Commission, only being able to find out how to do so through the Thai NGO, TERRA, based in Bangkok. CLEC were greatly assisted by the Mekong Legal Network, a regional network of public interest lawyers working on regional human rights and environmental matters.
ASEAN AICHR Commission
CLEC filed a complaint to the ASEAN Intergovernmental Commission on Human Rights (AICHR). The Commission is a regional human rights mechanism with an extremely limited mandate. They have received no response from the Commission thus far, and it was not easy to access. In fact, the Commission does not have procedures for investigating a case and does not engage with civil society or communities. This case shows the need for a stronger regional human rights mechanism, especially in relation to corporations. In contacting the Commission, CLEC were again assisted by TERRA and the Mekong Legal Network.
The ‘Everything but Arms’ trade preference scheme was expressly created to help alleviate poverty in poor countries, but is instead actually creating poverty in this instance. Acting with partners from Bridges Across Borders, Cambodia and the Cambodian League for the Promotion and Defense of Human Rights, or Licadho, CLEC met the Charge d’Affairs of the European Commission Delegation to Cambodia and the Cambodia desk officer from Brussels. CLEC have asked for an investigation by the Commission and an assessment of whether the EU should withdraw the benefits of the scheme from the Cambodian sugar industry due to the serious and systematic human rights abuses connected to its production. There is an official mechanism in EU trade regulations for doing this. The mechanism must be triggered from inside the EU as it is political and not at all transparent, weighted heavily in favor of continuing the scheme. To trigger the mechanism requires advanced lobbying that is outside of the abilities of the CLEC, but its partners are making progress with it, especially Bridges Across Borders which has been doing extensive work in this regard.
The Better Sugarcane Initiative
CLEC filed a complaint to the industry body in the United Kingdom called the Better Sugarcane Initiative, or BSI, of which Tate & Lyle are a founding member. BSI has a code of conduct that all of its members are required to abide by. The code is clearly set out on their website, though the website does not set out the process for making a complaint. After contacting them, CLEC were asked to send a request to their General Manager. Although Tate and Lyle have now sold all of its sugar businesses, CLEC believes that BSI should still investigate Tate & Lyle’s conduct, and it seems that BSI agrees, as it is likely that the sugar cane is still being exported to the United Kingdom. CLEC are currently waiting for a response.
1. Article 59, 2001 Land Law, hereinafter LL
2. Article 59, 2001 Land Law
3. Article 58, 2001 LL
4. It is possible for the government to expropriate privately held lands, but such a taking would require fair and just compensation for the property prior to the expropriation.
5. See Articles 30, 38 & 42, 2001 LL
6. Article 4, Sub-decree on Economic Land Concession