25. LAND ISSUES AND RELOCATION

TUY Sophorn, RADU Mares

Introduction

Land rights and access to land is an aspect of the right to property and is essential to secure the livelihoods for rural populations. In international law, the land rights of indigenous people are strongly emphasized due to their special situation and increased vulnerability (chapter 22). Rural communities, even when not indigenous, are at higher risk of harm as they rely on agriculture for their livelihood and therefore might be competition for resources with new large agribusiness and industrial projects. Forced relocation, insufficient compensation, police brutality (chapter 26), intimidation and threats raise serious human rights issues and are a quite common occurrence. Indeed large agricultural projects, industrial activities in the extractive (mining, oil and gas) and forestry sectors, and other large infrastructure projects (e.g. dams) are notorious for causing massive displacement of rural communities. A heavy responsibility lies with financial institutions (e.g. development banks, commercial banks, investment funds) that enable such projects. As a result of sustained criticism, the World Bank has developed a special policy on how to relocate communities with respect for their rights and in a way that maintains or improves their livelihood. This policy is now an authoritative soft law instrument (chapter 2) that is used by multistakeholder initiatives such as the Equator Principles and by commercial banks that fund high-risk projects in developing countries. Paying attention to impacts on women (chapter 23) is particularly important to avoid grave abuses and to maximize the chances for successfully rebuilding livelihoods in new places. Massive relocation is sometimes labelled ‘land grabbing’ as a way to impress how states and businesses might collude, often through corrupt practices, and disregard the legitimate interests and rights of local populations. Understanding the political economy of land and the co-existence of formal and customary land laws is essential and can be achieved through social and human rights impact assessments (chapter 9). Such assessments are often required by development banks as a condition for financing. Then companies and investors can perform human rights due diligence (chapters 6-14), address root causes of potential abuses and come up with sustainable solutions often involving multiple stakeholders (chapter 5). Environmental degradation (chapter 29) has accompanied poorly designed large agricultural and industrial projects in states where there are gaps in the legal framework (chapter 1) and where judicial institutions are less effective (chapter 6).

After the Khmer Rouge regime, Cambodian citizens’ private land ownership rights were installed and formalized in 1989.^[1] As Cambodia transitioned to a free market economy, the Constitution of the Kingdom of Cambodia (1993) and Land Law (1992) allowed Khmer citizens to apply for land certificates. For developing the economy in Cambodia, the Royal Government of Cambodia granted nearly 2,657,470 hectares as Economic Land Concessions (ELCs) to private companies in 2012. However, many ELCs were approved in non-compliance with the legal requirements. In many cases, the grant of ELCs adversely impacted on human rights, lives and livelihoods of hundreds of poor villager families in rural areas. LICADHO stated that: “The root causes of land conflicts have been well-documented: a corrupt and politically-obedient judicial system, the misuse of armed forces, including soldiers, as well as collusion between well-connected companies and authorities. This toxic cocktail has been fueling conflicts throughout the country for too long”.^[2]

Main Aspects

Displacement (physical or economic)
Resettlement (voluntary or involuntary)
Compensation options (land-based, in cash or in kind)
Land rights and tenure rights (legal or traditional)
Expropriation (role of government and legal process)
Principle of improving or at least restoring the standards of living of displaced persons
Livelihood
Benefit sharing
Plans (Resettlement Action Plan and Livelihood Restoration Plan)
Gender equality
Agriculture investments (large and small scale)
‘Land grabbing’
‘Resource curse’
Responsibility of foreign investors and home states
Extraterritorial human rights obligations (of home states)

Background

Shift, The Human Rights Opportunity^{^[3]}

IFC, Handbook for Preparing a Resettlement Action Plan^{^[4]}

IFC will continue to adhere to a number of basic principles for addressing the adverse effects of involuntary resettlement associated with its investment projects. These principles are:

Involuntary resettlement should be avoided.
Where involuntary resettlement is unavoidable, all people affected by it should be compensated fully and fairly for lost assets.
Involuntary resettlement should be conceived as an opportunity for improving the livelihoods of the affected people and undertaken accordingly.
All people affected by involuntary resettlement should be consulted and involved in resettlement planning to ensure that the mitigation of adverse effects as well as the benefits of resettlement are appropriate and sustainable.

Common types of resettlement and the issues associated with them include:

Rural resettlement—Displacement of people in rural areas typically results from a project’s acquisition of farm land, pasture, or grazing land or the obstruction of access to natural resources on which affected populations rely for livelihoods (for example, forest products, wildlife, and fisheries). Major challenges associated with rural resettlement include: requirements for restoring income based on land or resources; and the need to avoid compromising the social and cultural continuity of affected communities, including those host communities to which displaced populations may be resettled.

Urban resettlement—Resettlement in urban or periurban settings typically results in both physical and economic displacement affecting housing, employment, and enterprises. A major challenge associated with urban resettlement involves restoration of wage-based or enterprise-based livelihoods that are often tied to location (such as proximity to jobs, customers, and markets). Resettlement sites should be selected to maintain the proximity of affected people to established sources of employment and income and to maintain neighborhood networks. In some cases, the mobility of urban populations and the consequent weakening of social safety nets that are characteristic of rural communities require that resettlement planners be especially attentive to the needs of vulnerable groups.

Linear resettlement—Linear resettlement describes projects having linear patterns of land acquisition (highways, railways, canals, and power transmission lines). In sparsely populated rural areas, a linear project such as an electric transmission line may have minimal impact on any single landholder. Compensation is characterized by a large number of small payments for the temporary loss of assets such as standing crops. If well designed, linear projects can easily avoid or minimize the demolition of permanent structures. Conversely, in a densely populated urban area, a linear project such as a road upgrading may require the demolition of structures along the project right-of-way, thereby significantly affecting large numbers of people. Linear resettlement contrasts with site-specific resettlement because of the problems that frequently arise when resettlement actions have to be coordinated across multiple administrative jurisdictions and/or different cultural and linguistic areas.

Site-specific Resettlement—Site-specific resettlement is associated with discrete, nonlinear projects such as factories, ports, highway interchanges, hotels, commercial plantations, etc., where land acquisition encompasses a fixed area. However, site-specific resettlement associated with mining and other extractive industries such as oil and gas may require progressive land acquisition over long periods. As a result, displacement of communities may occur in phases over a number of years, even decades. Communities threatened with displacement at some future date often prefer to remain in place until resettlement is absolutely necessary. The major challenge in such incremental resettlement is maintaining a consistent approach to compensation and income restoration over the life of the project. Similarly, the creation of reservoirs for hydropower and irrigation projects can result in significant economic and physical displacement of rural communities. In the event that it considered investment in a project with such potentially large and controversial effects, IFC would require that project to support development initiatives to reestablish the affected people in significantly improved social and economic conditions.

Instruments

Universal Declaration of Human Rights^{^[5]}

Article 17

1. Everyone has the right to own property alone as well as in association with others.

2. No one shall be arbitrarily deprived of his property.

UN, Declaration on the Rights of Peasants and People Working in Rural Areas^{^[6]}

Article 1

1. For the purposes of the present Declaration, a peasant is any person who engages or who seeks to engage alone, or in association with others or as a community, in small-scale agricultural production for subsistence and/or for the market, and who relies significantly, though not necessarily exclusively, on family or household labour and other non-monetized ways of organizing labour, and who has a special dependency on and attachment to the land. (…)

3. The present Declaration also applies to indigenous peoples and local communities working on the land, transhumant, nomadic and semi-nomadic communities, and the landless, engaged in the above-mentioned activities.

4. The present Declaration further applies to hired workers, including all migrant workers regardless of their migration status, and seasonal workers, on plantations, agricultural farms, forests and farms in aquaculture and in agro-industrial enterprises.

Article 2

3. (…) States shall consult and cooperate in good faith with peasants and other people working in rural areas through their own representative institutions, engaging with and seeking the support of peasants and other people working in rural areas who could be affected by decisions before those decisions are made, and responding to their contributions, taking into consideration existing power imbalances between different parties and ensuring active, free, effective, meaningful and informed participation of individuals and groups in associated decision-making processes.

4. States shall elaborate, interpret and apply relevant international agreements and standards to which they are a party in a manner consistent with their human rights obligations as applicable to peasants and other people working in rural areas.

5. States shall take all necessary measures to ensure that non-State actors that they are in a position to regulate, such as private individuals and organizations, and transnational corporations and other business enterprises, respect and strengthen the rights of peasants and other people working in rural areas.

Article 3

2. Peasants and other people working in rural areas have the right to determine and develop priorities and strategies to exercise their right to development.

3. States shall take appropriate measures to eliminate conditions that cause or help to perpetuate discrimination, including multiple and intersecting forms of discrimination, against peasants and people working in rural areas.

Article 5

1. Peasants and other people working in rural areas have the right to have access to and to use in a sustainable manner the natural resources present in their communities that are required to enjoy adequate living conditions, in accordance with article 28 of the present Declaration. They also have the right to participate in the management of these resources.

2. States shall take measures to ensure that any exploitation affecting the natural resources that peasants and other people working in rural areas traditionally hold or use is permitted based on, but not limited to:

(a) A duly conducted social and environmental impact assessment;

(b) Consultations in good faith, in accordance with article 2.3 of the present Declaration;

(c) Modalities for the fair and equitable sharing of the benefits of such exploitation that have been established on mutually agreed terms between those exploiting the natural resources and the peasants and other people working in rural areas.

Article 15

1. Peasants and other people working in rural areas have the right to adequate food and the fundamental right to be free from hunger. This includes the right to produce food and the right to adequate nutrition, which guarantee the possibility of enjoying the highest degree of physical, emotional and intellectual development.

2. States shall ensure that peasants and other people working in rural areas enjoy physical and economic access at all times to sufficient and adequate food that is produced and consumed sustainably and equitably, respecting their cultures, preserving access to food for future generations, and that ensures a physically and mentally fulfilling and dignified life for them, individually and/or collectively, responding to their needs. (…)

4. Peasants and other people working in rural areas have the right to determine their own food and agriculture systems, recognized by many States and regions as the right to food sovereignty. This includes the right to participate in decision-making processes on food and agriculture policy and the right to healthy and adequate food produced through ecologically sound and sustainable methods that respect their cultures. (…)

Article 16

1. Peasants and other people working in rural areas have the right to an adequate standard of living for themselves and their families, and to facilitated access to the means of production necessary to achieve them, including production tools, technical assistance, credit, insurance and other financial services. They also have the right to engage freely, individually and/or collectively, in association with others or as a community, in traditional ways of farming, fishing, livestock rearing and forestry and to develop community-based commercialization systems.

2. States shall take appropriate measures to favour the access of peasants and other people working in rural areas to the means of transportation, and processing, drying and storage facilities necessary for selling their products on local, national and regional markets at prices that guarantee them a decent income and livelihood.

3. States shall take appropriate measures to strengthen and support local, national and regional markets in ways that facilitate, and ensure that peasants and other people working in rural areas have, full and equitable access and participation in these markets to sell their products at prices that allow them and their families to attain an adequate standard of living.

4. States shall take all appropriate measures to ensure that their rural development, agricultural, environmental, trade and investment policies and programmes contribute effectively to protecting and strengthening local livelihood options and to the transition to sustainable modes of agricultural production. States shall stimulate sustainable production, including agroecological and organic production, whenever possible, and facilitate direct farmer-to-consumer sales. (…)

Article 17

1. Peasants and other people living in rural areas have the right to land, individually and/or collectively (…)

4. Peasants and other people working in rural areas have the right to be protected against arbitrary and unlawful displacement from their land or place of habitual residence (…)

6. Where appropriate, States shall take appropriate measures to carry out agrarian reforms in order to facilitate broad and equitable access to land and other natural resources necessary to ensure that peasants and other people working in rural areas enjoy adequate living conditions, and to limit excessive concentration and control of land, taking into account its social function. (…)

Article 18

1. Peasants and other people working in rural areas have the right to the conservation and protection of the environment and the productive capacity of their lands, and of the resources that they use and manage.

2. States shall take appropriate measures to ensure that peasants and other people working in rural areas enjoy, without discrimination, a safe, clean and healthy environment. (…)

IFC, Performance Standard 5 on Land Acquisition^{^[7]}

1. Performance Standard 5 recognizes that project-related land acquisition and restrictions on land use can have adverse impacts on communities and persons that use this land. Involuntary resettlement refers both to physical displacement (relocation or loss of shelter) and to economic displacement (loss of assets or access to assets that leads to loss of income sources or other means of livelihood) as a result of project-related land acquisition and/or restrictions on land use. Resettlement is considered involuntary when affected persons or communities do not have the right to refuse land acquisition or restrictions on land use that result in physical or economic displacement. (…)

3. To help avoid expropriation and eliminate the need to use governmental authority to enforce relocation, clients are encouraged to use negotiated settlements meeting the requirements of this Performance Standard, even if they have the legal means to acquire land without the seller’s consent.

5. This Performance Standard applies to … Certain project situations requiring evictions of people occupying land without formal, traditional, or recognizable usage rights; (…) While some people do not have rights over the land they occupy, this Performance Standard requires that non land assets be retained, replaced, or compensated for; relocation take place with security of tenure; and lost livelihoods be restored.

Project Design

8. The client will consider feasible alternative project designs to avoid or minimize physical and/or economic displacement, while balancing environmental, social, and financial costs and benefits, paying particular attention to impacts on the poor and vulnerable.

Compensation and Benefits for Displaced Persons

9. When displacement cannot be avoided, the client will offer displaced communities and persons compensation for loss of assets at full replacement cost and other assistance to help them improve or restore their standards of living or livelihoods, as provided in this Performance Standard. Compensation standards will be transparent and applied consistently to all communities and persons affected by the displacement. Where livelihoods of displaced persons are land-based, or where land is collectively owned, the client will, where feasible, offer the displaced land-based compensation. The client will take possession of acquired land and related assets only after compensation has been made available and, where applicable, resettlement sites and moving allowances have been provided to the displaced persons in addition to compensation. The client will also provide opportunities to displaced communities and persons to derive appropriate development benefits from the project.

(…) Payment of cash compensation for lost assets may be appropriate where

(i) livelihoods are not land-based;

(ii) livelihoods are land-based but the land taken for the project is a small fraction of the affected asset and the residual land is economically viable; or

(iii) active markets for land, housing, and labor exist, displaced persons use such markets, and there is sufficient supply of land and housing.

(…) If circumstances prevent the client from providing land or similar resources as described above, alternative income earning opportunities may be provided, such as credit facilities, training, cash, or employment opportunities. Cash compensation alone, however, is frequently insufficient to restore livelihoods.

(…) Documentation of ownership or occupancy and compensation arrangements should be issued in the names of both spouses or heads of households, and other resettlement assistance, such as skills training, access to credit, and job opportunities, should be equally available to women and adapted to their needs. Where national law and tenure systems do not recognize the rights of women to hold or contract in property, measures should be considered to provide women as much protection as possible with the objective to achieve equity with men.

12. Where involuntary resettlement is unavoidable, either as a result of a negotiated settlement or expropriation, a census will be carried out to collect appropriate socioeconomic baseline data to identify the persons who will be displaced by the project, determine who will be eligible for compensation and assistance, and discourage ineligible persons, such as opportunistic settlers, from claiming benefits.(…)

Private Sector Responsibilities Under Government-Managed Resettlement

30. Where land acquisition and resettlement are the responsibility of the government, the client will collaborate with the responsible government agency, to the extent permitted by the agency, to achieve outcomes that are consistent with this Performance Standard. In addition, where government capacity is limited, the client will play an active role during resettlement planning, implementation, and monitoring, as described below.

31. In the case of acquisition of land rights or access to land through compulsory means or negotiated settlements involving physical displacement, the client will identify and describe government resettlement measures. If these measures do not meet the relevant requirements of this Performance Standard, the client will prepare a Supplemental Resettlement Plan that, together with the documents prepared by the responsible government agency, will address the relevant requirements of this Performance Standard (the General Requirements and requirements for Physical Displacement and Economic Displacement above). The client will need to include in its Supplemental Resettlement Plan, at a minimum

(i) identification of affected people and impacts;

(ii) a description of regulated activities, including the entitlements of displaced persons provided under applicable national laws and regulations;

(iii) the supplemental measures to achieve the requirements of this Performance Standard as described in paragraphs 19–29 in a way that is permitted by the responsible agency and implementation time schedule; and

(iv) the financial and implementation responsibilities of the client in the execution of its Supplemental Resettlement Plan.

(…) The government often plays a central role in the land acquisition and resettlement process, including the determination of compensation, and is therefore an important third party in many situations. Experience demonstrates that the direct involvement of the client in resettlement activities can result in more cost-effective, efficient, and timely implementation of those activities, as well as in the introduction of innovative approaches to improving the livelihoods of those affected by resettlement.

FAO, Voluntary Guidelines on the Responsible Governance of Tenure of Land^{^[8]}

4. Rights and responsibilities related to tenure

4.1 States should strive to ensure responsible governance of tenure because land, fisheries and forests are central for the realization of human rights, food security, poverty eradication, sustainable livelihoods, social stability, housing security, rural development, and social and economic growth.

4.3 All parties should recognize that no tenure right, including private ownership, is absolute. All tenure rights are limited by the rights of others and by the measures taken by States necessary for public purposes. Such measures should be determined by law, solely for the purpose of promoting general welfare including environmental protection and consistent with States’ human rights obligations. Tenure rights are also balanced by duties. All should respect the long-term protection and sustainable use of land, fisheries and forests.

4.4 Based on an examination of tenure rights in line with national law, States should provide legal recognition for legitimate tenure rights not currently protected by law. Policies and laws that ensure tenure rights should be non-discriminatory and gender sensitive. (…)

4.6 States should remove and prohibit all forms of discrimination related to tenure rights, including those resulting from change of marital status, lack of legal capacity, and lack of access to economic resources. In particular, States should ensure equal tenure rights for women and men, including the right to inherit and bequeath these rights. Such State actions should be consistent with their existing obligations under relevant national law and legislation and international law, and with due regard to voluntary commitments under applicable regional and international instruments.

4.8 Given that all human rights are universal, indivisible, interdependent and interrelated, the governance of tenure of land, fisheries and forests should not only take into account rights that are directly linked to access and use of land, fisheries and forests, but also all civil, political, economic, social and cultural rights. In doing so, States should respect and protect the civil and political rights of defenders of human rights, including the human rights of peasants, indigenous peoples, fishers, pastoralists and rural workers, and should observe their human rights obligations when dealing with individuals and associations acting in defence of land, fisheries and forests.

4.9 States should provide access through impartial and competent judicial and administrative bodies to timely, affordable and effective means of resolving disputes over tenure rights, including alternative means of resolving such disputes, and should provide effective remedies, which may include a right of appeal, as appropriate. (…)

4.10 States should welcome and facilitate the participation of users of land, fisheries and forests in order to be fully involved in a participatory process of tenure governance, inter alia, formulation and implementation of policy and law and decisions on territorial development, as appropriate to the roles of State and non-state actors, and in line with national law and legislation.

3. Guiding principles of responsible tenure governance

3.2 Non-state actors including business enterprises have a responsibility to respect human rights and legitimate tenure rights. Business enterprises should act with due diligence to avoid infringing on the human rights and legitimate tenure rights of others. They should include appropriate risk management systems to prevent and address adverse impacts on human rights and legitimate tenure rights. Business enterprises should provide for and cooperate in non-judicial mechanisms to provide remedy, including effective operational-level grievance mechanisms, where appropriate, where they have caused or contributed to adverse impacts on human rights and legitimate tenure rights. Business enterprises should identify and assess any actual or potential impacts on human rights and legitimate tenure rights in which they may be involved. States, in accordance with their international obligations, should provide access to effective judicial remedies for negative impacts on human rights and legitimate tenure rights by business enterprises. Where transnational corporations are involved, their home States have roles to play in assisting both those corporations and host States to ensure that businesses are not involved in abuse of human rights and legitimate tenure rights. States should take additional steps to protect against abuses of human rights and legitimate tenure rights by business enterprises that are owned or controlled by the State, or that receive substantial support and service from State agencies.

12. Investments

12.6. (…) States should consider promoting a range of production and investment models that do not result in the large-scale transfer of tenure rights to investors, and should encourage partnerships with local tenure right holders.

OECD-FAO, Guidance for Responsible Agricultural Supply Chains^{^[9]}

Model enterprise policy for responsible agricultural supply chains

6. Tenure rights over and access to natural resources

We will respect legitimate tenure right holders and their rights over natural resources, including public, private, communal, collective, indigenous and customary rights, potentially affected by our activities. Natural resources include land, fisheries, forests, and water.

To the greatest extent possible, we will commit to transparency and information disclosure on our land-based investments, including transparency of lease/concession contract terms, with due regard to privacy restrictions.

We will give preference to feasible alternative project designs to avoid or, when avoidance is not possible, minimise the physical and/or economic displacement of legitimate tenure right holders, while balancing environmental, social, and financial costs and benefits, paying particular attention to adverse impacts on the poor and vulnerable.

We are aware that, subject to their national law and legislation and in accordance with national context, states should expropriate only where the rights at issue are required for a public purpose and should ensure a prompt, adequate and effective compensation.

When holders of legitimate tenure rights are negatively affected, we will seek to ensure that they receive a prompt, adequate and effective compensation of their tenure rights being negatively impacted by our operations.

Measures for risk mitigation and prevention along agricultural supply chains

6. Tenure rights over and access to natural resources

Risk mitigation measures

Identify rights holders – who consist not only of holders of officially recognised tenure rights, but also of public, private, communal, collective, indigenous and customary tenure rights that may not have been officially registered and titled, including women’s tenure rights – and other relevant stakeholders, including through local and open consultations.
Establish a committee representative of the relevant stakeholders to advise on impact assessments, particularly on initial phases (screening and scoping) and on management, monitoring and contingency plans. Special consideration should be given to ensuring the adequate representation of indigenous peoples, local communities and marginalised groups.
Consider feasible alternative investments if proposed investments lead to the physical and/or economic displacement of local communities, recognising that states should expropriate only where rights to land, fisheries or forests are required for a public purpose and that they should clearly define the concept of public purpose in law.
When tenure right holders are negatively impacted by operations, work with the government to ensure that tenure rights holders receive a fair, prompt and appropriate compensation for those tenure rights negatively impacted by the operations by:
holding good-faith, effective and meaningful consultations on the compensation offered and ensuring consistent and transparent application of compensation standards
giving preference to land-based compensation, that is commensurate in quality, size and value, and otherwise providing compensation at full replacement cost for lost assets – including assets other than land (crops, water resources, irrigation infrastructure and land improvements) – and other assistance to help them improve or restore their standard of living or livelihoods
monitoring the implementation of the compensation arrangement.
Where government capacity is limited, play an active role in the resettlement planning, implementation and monitoring.

African Union, Guiding Principles on Large Land Based Investments in Africa^{^[10]}

Principle 1: LSLBI [Large scale land based investments] respect the existing, customarily-defined rights of local people and communities to land and land related resources.

This means recognizing the legitimacy of these rights irrespective of whether those rights have been formally registered or not. Investor governments also have a responsibility to support investment practices which are in line with the aspirations of host countries and respectful of human and other rights. Investors have the obligation of abiding by local, national and international laws and guidelines to ensure that activities related to their enterprises do not cause harm to communities in any way. On their part, local communities must take the responsibility to seek information and participate in negotiations and decision making regarding LBLSI.

Principle 3: Member States establish and maintain a legislative environment and institutional arrangements to govern LSLBI and to protect the rights of relevant stakeholders.

All stakeholders affected by LSLBI, in particular affected communities, have the right to access the services of land administration systems. Member States should therefore ensure that legal, judicial, and institutional arrangements relating to land and LSLBI are functional and accessible at local levels wherever LSLBI are considered. All this requires Government and local authorities to consider options for strengthening their own legal, technical and negotiating capacity before entering into contract negotiations. This includes legislation and institutions beyond land, such as those related to foreign investment, financial and tax incentives, environmental issues and labor laws, among others. (…)

Principle 4: Member States have the responsibility to promote transparency of all parties throughout the investment process.

States should require investors to disclose comprehensive project information in accessible form to parties affected by the LSLBI. This includes information about the identity of the parties involved, including the investor and its owners, financial intermediaries and backers; about the concession area and nature of rights; about investment plans and expected risks and opportunities, costs and benefits; about assessment and mitigation of potentially negative impacts. There should be a presumption by all parties that results of impact assessment studies and investment contracts should be disclosed. States have a key role in establishing effective institutions to handle such public disclosure and to promote multi-stakeholder involvement in the processes of these institutions.

State agencies and investors should also be required to seek the prior, informed participation of affected communities with respect to all decisions which have consequences for communities.

Corrupt practices in the context of LSLBI contribute significantly to observed impacts of LSLBI, including unauthorized conversion of customary land to commercial land in the interests of LSLBI. Measures should be put in place and implemented to make corruption in the conduct of LSLBI a punishable offence. Corruption can further be avoided by ensuring that decisions on LSLBI follow prescribed process.

Contracts entered by government and communities with investors should clearly identify the rights and obligations of all parties. These rights should be formulated in specific and enforceable terms and should provide effective arrangements for monitoring compliance and sanctioning non-compliance including contract termination in case of material noncompliance.

Principle 11: Promoting gender equality in land governance in national laws is a prerequisite to ensuring that LSLBI promote sustainable development.

Gender equity is established as fundamental to the achievement of sustainable development. Governments will need to recognize the skewed nature of control over resources and access to opportunities against women, and ensure the equal right of women and men to the enjoyment of all human rights, while acknowledging differences between women and men and taking specific measures aimed at accelerating de facto equality when necessary.

Accordingly, Member States should ensure that women and girls’ equal tenure rights and access to land, fisheries and forests are clearly protected in national laws independent of the individual’s civil and marital status. In the absence of such provisions LSLBI, will almost invariably result in the further marginalisation of women and girls. Such marginalisation would negatively impact aspirations of Member States with respect to sustainable development.

Principle 14: LSLBI are commercially viable and profitable businesses, structured to provide maximum benefit to the national economy and improve the livelihoods of local communities.

Firstly, States need to ensure that LSLBIs are financially and economically viable, then at the same time negotiate and leverage greater value from LSLBI to the whole economy in the form of technology improvements, markets, infrastructure, and creation of decent jobs especially for youth.

In-depth analyses of profitability must include opportunities for smallholder producers who are at the core of Africa’s development, especially where smallholder farmers and/or small-scale businesses are part of the LSLBI business model. LSLBI should neither distort, monopolise local markets nor squeeze out local and smaller businesses. (…)

Principle 16: The amount of land allocated for an LSLBI project is increased gradually based on the demonstrated capacities of the investor to effectively utilize more land.

Evidence to date indicates that most investors do not have the technical, financial and other capacities to develop most of the land allocated to them. The size of LSLBI should be based on analyses of the optimal land size for a particular investment, taking into consideration investor capacities. There is little or no value to States in bringing excessive tracts of land under an investor all at once as this fuels speculation in land and unwarranted displacement of communities. (…)

World Bank, Resettlement Fact Sheet^{^[11]}

The World Bank’s Involuntary Resettlement Policy

Involuntary Resettlement refers to two distinct but related processes. Displacement is a process by which development projects cause people to lose land or other assets, or access to resources. This may result in residential dislocation, loss of income, or other adverse impacts. Resettlement generally refers to the process by which those adversely affected are assisted in their efforts to improve, or at least to restore, their incomes and living standards.
All persons losing assets or use of resources as a direct result of a Bank-supported project are referred to as ‘displaced persons’ entitled to compensation and/or other forms of assistance.
The Bank’s policy extends beyond the corresponding laws of most countries (including those of industrialized democracies) in two key respects: a) a requirement that opportunities be provided to affected persons to improve (or at least restore) incomes or livelihoods reflects recognition that mere compensation for assets may not provide sufficient opportunity to restore livelihoods; and b) because the ultimate purpose of the Bank policy is to protect livelihoods and living standards, the Bank’s policy coverage includes affected persons who may lack legal title or rights to the land they occupy or the resources they use. It also includes tenants, artisans, and wage earners whose livelihoods or living standards would be adversely affected as a direct result of the project.
For all projects involving land acquisition, the Bank requires preparation of an explicit plan to guide land acquisition and resettlement processes. These plans include arrangements for monitoring these activities, and procedures for responding to complaints received from affected persons.
The policy does not include persons opportunistically invading a proposed project site after an eligibility cut-off date is declared, for the purpose of obtaining assistance. (…)

The Bank’s policy also recognizes that projects involving land acquisition also can provide opportunities to significantly improve livelihoods and living standards. Poor housing conditions can be improved. Business or employment skills can be provided. In some instances, benefit-sharing schemes can be devised. Through careful project design, land acquisition and even involuntary resettlement can be turned into a development opportunity.

World Bank, Shortcomings in Resettlement Projects^{^[12]}

Acting on internal World Bank reports that identified serious shortcomings in the implementation of its resettlement policies, the World Bank today [2015] released a plan that will improve the oversight and management of resettlement practices to ensure better protection of people and businesses affected by Bank-funded projects.

Three reports, which reviewed over two decades of World Bank projects involving possible resettlements, found that oversight of those projects often had poor or no documentation, lacked follow through to ensure that protection measures were implemented, and some projects were not sufficiently identified as high-risk for populations living in the vicinity.

“We took a hard look at ourselves on resettlement and what we found caused me deep concern,” said World Bank Group President Jim Yong Kim. “We found several major problems. One is that we haven’t done a good enough job in overseeing projects involving resettlement; two, we haven’t implemented those plans well enough; and three, we haven’t put in place strong tracking systems to make sure that our policies were being followed. We must and will do better.”

IFC, Handbook for Preparing a Resettlement Action Plan^{^[13]}

Components of a Resettlement Action Plan

IFC requires a resettlement action plan (RAP) for any project that results in either the physical or the economic displacement of people. The scope and level of detail of resettlement planning will vary with circumstances, depending on the project’s complexity and the magnitude of its effects. As a minimum requirement, a RAP must ensure that the livelihoods of people affected by the project are restored to levels prevailing before inception of the project.

However, simple restoration of livelihood may be insufficient to protect affected populations from adverse project impacts, especially induced effects such as competition for resources and employment, inflation, and the breakdown of social support networks. For this reason, IFC seeks to promote the improvement of the living standards of people affected by the project. Thus, resettlement activities should result in measurable improvements in the economic conditions and social well-being of affected people and communities.

This section describes a recommended approach to effective RAP preparation. The essential components of a RAP are the following:

identification of project impacts and affected populations;
a legal framework for land acquisition and compensation;
a compensation framework;
a description of resettlement assistance and restoration of livelihood activities;
a detailed budget;
an implementation schedule;
a description of organizational responsibilities;
a framework for public consultation, participation, and development planning;
a description of provisions for redress of grievances; and
a framework for monitoring, evaluation, and reporting.

1. Identification of Project Impacts and Affected Populations

Affected populations and impacts should be identified through a series of steps :

thematic maps that identify such features as population settlements, infrastructure, soil composition, natural vegetation areas, water resources, and land use patterns;
a census that enumerates the affected people and registers them according to location;
an inventory of lost and affected assets at the household, enterprise, and community level;
socioeconomic surveys and studies of all affected people (including seasonal, migrant, and host populations), as necessary;
analysis of surveys and studies to establish compensation parameters, to design appropriate income restoration and sustainable development initiatives, and to identify baseline monitoring indicators; and
consultation with affected populations regarding mitigation of effects and development opportunities. (…)

2. Legal framework

The legal framework of a RAP describes all laws, decrees, policies and regulations relevant to the resettlement activities associated with a project. Many countries have legislation and policies governing land expropriation and compensation for affected assets. However, policy governing resettlement is often poorly defined, if not altogether lacking. IFC requires the project sponsor to identify, review, and abide by all laws of the host country that are applicable to land acquisition and involuntary resettlement including:

the scope of the power of eminent domain and the nature of compensation associated with it, both the procedures for assessing compensation values and the schedule for making compensation payments;
the legal and administrative procedures applicable, including the appeals process and the normal time for such procedures;
land titling and registration procedures; and
laws and regulations relating to the agencies responsible for implementing resettlement and those related to land compensation, consolidation, land use, environment, water use, and social welfare. (…)

The sponsor must ensure that all affected households and enterprises receive clear title to their new sites free of registration fees, licensing fees, or customary tribute payments. Special provisions may have to be made for households headed by women and children and other vulnerable groups in circumstances where local law or custom does not fully recognize their rights to own or register land, assets, or enterprises. Such provisions may be difficult to implement if the host government does not recognize private ownership of land. Nevertheless, the sponsor should make every effort to reach agreements with host governments that ensure the security of affected people’s ownership of land and assets.

4. Livelihood Restoration

In cases where resettlement affects the income-earning capacity of the displaced families, compensation alone does not guarantee the restoration or improvement of their living standards. As noted in the introduction, IFC encourages project sponsors to undertake resettlement as a sustainable development initiative, that is, an initiative that leads to an improved standard of living for project affected people. (…)

Land-based livelihoods—Resettlement sites may require dependable access to grazing land, forest, and water resources; physical preparation of farm land (clearing, leveling, creating access routes, and soil stabilization); fencing for pasture or cropland; agricultural inputs (seeds, seedlings, fertilizer, irrigation); veterinary care; small-scale credit including rice banks, cattle banks, and cash loans; and access to markets.

Wage–based livelihoods—Wage earners in the community may benefit from skills training and job placement, provisions made in contracts with project subcontractors for employment of qualified local workers, unemployment insurance, and small-scale credit to finance startup enterprises. Sponsors should provide sufficient lead time for training of affected people to enable them to compete for jobs related to the project.

Enterprise-based livelihoods—Established and nascent entrepreneurs and artisans may benefit from credit or training (business planning, marketing, inventory, and quality control) to expand their business and generate local employment. Sponsors can promote local enterprise by procuring goods and services for their projects from local suppliers.

ICMM, Land Acquisition and Resettlement: Lessons Learned^{^[14]}

Responsibly undertaking resettlement activities is one means by which companies can positively contribute to development.

In a number of countries there has been an increase in legislation regulating land access and resettlement however, most countries still have limited applicable laws dealing with only some of the relevant issues, for example compensation, expropriation and building standards. Areas that are often poorly addressed include community engagement, livelihoods, monitoring and evaluation, and reporting. As a result, the reality is that mere compliance with national requirements does not always enable a company to fully address key social risks and challenges.

Restoring sustainable livelihoods

Best practice requires companies to improve, or at least restore, the livelihoods and standards of living of displaced persons. A livelihood is defined as a means of securing the necessities of life. Many projects in the past used to consider the resettlement process complete when the impacted households were given replacement houses or paid cash compensation. However, in the majority of cases where cash compensation is given, resettled households struggle to attain their former standard of living.

Currently, there is increasing recognition that livelihood restoration requires a focus beyond just income, and that other social factors such as education, health and social cohesion serve to sustain living standards over time. Despite this recognition and the development of social performance standards, livelihood restoration is often not being properly planned and fails to restore or improve livelihoods sustainably.

Where this occurs, it can lead to significant community dissatisfaction and threaten the project’s social licence to operate. The role of women in contributing to the livelihood of the household is also not always given sufficient consideration, which may result in women losing access to land and common property resources, lowering income and status.

Challenges

Projects generally change the whole economic context of an area, resulting in the influx of economic migrants and inflation of prices. So even if the same resources are available, the households’ standard of living can still drop significantly.
Projects are often managed by engineers focused on construction with a limited understanding of the complexity of local livelihoods. They have a tendency to focus on short-term solutions, including cash compensation, and a lack of appreciation that livelihood restoration and implementation of alternative livelihoods is a long-term process. This often means that livelihood restoration is seen as a luxury the project cannot afford. (…)
A failure to properly integrate displaced livelihoods into host communities can result in jealousy, isolation and an ongoing dependency on the company.
There is often conflict post-resettlement over resources where assumptions were made on shared use of natural resources such as forests and water resources without negotiating a firm agreement. (…)
Many companies fail to consider the loss of access to common property such as pasture, forests and water bodies at resettlement sites resulting in disproportionate impacts on the livelihoods of poorer and marginalised groups, including Indigenous Peoples.
Acquiring replacement land can be very expensive in many countries as pressure on land increases and prices escalate.

Benefit sharing and community development

In addition to addressing the negative impacts caused by resettlement activities, companies should support affected communities to benefit from opportunities arising from the mining project. Although the concepts of compensation and sharing benefits often overlap in practice, they are conceptually different.

Compensation is focused primarily on redressing loss or damage that can be attributed to the impacts of a project (eg loss of access to land and assets).

Benefit sharing on the other hand aims to promote broader economic participation in projects, for example through royalty streams linked to production, provision of employment, business opportunities, and community development projects that strengthen community cohesion and provide sustainable community-led services.

Challenges

There is still often a lack of realism about the complexity of social issues and the effort, time and resources required to address these properly. It is easy to spend money, but not so easy to make a real and sustainable difference.
Some companies still have the notion that community development can be properly undertaken by merely making ad hoc donations and undertaking unco-ordinated short-term initiatives. (…)

Borras, Land Grabbing and Human Rights: The Involvement of European Entities^{^[15]}

Key messages

(i) European Union-based corporate and financial entities are important actors in land deals in countries outside the EU, contributing to and/or are responsible for human rights abuses. (…) :

(b) land grabs are multi-layered and complex processes, in which a land deal involves many actors via investment webs implicating diverse types of public and private actors (which cannot be clearly separated), and “nationality” of land deals is never a straightforward issue; and

(ii) There are five key mechanisms of institutional platforms through which land grabbing that leads to human rights violations or threats of violations occurs, namely:

(a) EU-based private companies involved in land grabbing through various forms of land deals;

(b) Finance capital companies from the EU, including public and private pension funds, involved in land grabbing;

(d) EU development finance involved in land grabbing; and

(e) EU companies involved in land grabbing, which are taking advantage of EU policies and gaining control of resources through the supply chain. (…)

(iii) The human rights abuses, violations and impacts of land grabs involving EU actors directly point and relate to the EU’s and EU Member States’ (MS) extraterritorial human rights obligations. For each of the different mechanisms, they have to ensure compliance with their human rights obligations by:

(a) Respecting human rights and doing no harm through direct or indirect interference,

(b) Protecting human rights, especially through accountability and regulatory mechanisms for corporate and financial actors, and

The EU and EU MS also must ensure accountability and remedy mechanisms, as part of their obligations to protect and fulfil.

Buur, The Political Economy of Land and Natural Resource Investments in Africa^{^[16]}

Model of Triangular Relations

The paper argues that, in order to acquire a better understanding of the relationship between land rights and natural resource investment, we need to understand investments as involving three-way relations between investors, local populations and ruling elites. A dominant discourse in the existing literature has focused on the appropriation – or grabbing – of land and natural resources in Africa. Initially, it concentrated on foreign investors and displaced smallholders, but this has been broadened in recent studies to include a more diverse set of actors, such as domestic investors and state actors (…).

Related to this, the resource curse literature, originating in studies of extractive sector investments, has placed a great deal of emphasis on the unequal power relations between governments and international companies when negotiating contracts. Generally, the preoccupation with foreign actors in the literature of both land-grabbing and the resource curse has tended to obscure the nuances of variations among actors, the importance of domestic actors having been downplayed. The different interests of domestic actors – the state and political and economic elites, as well as local populations – are only gradually being uncovered.

The paper focuses on relations between the local populations, investors and ruling elites, the three main groups of actors involved in the implementation of large-scale natural resource investments. The paper (i) outlines the divergent interests of each actor; (ii) analyses the potential exchanges of material and non-material benefits between them; and (iii) discusses the potential for convergences in actors’ positions, which, we argue, is required for the implementation of investment projects. (…)

In the literature on land-grabbing and CSR, much of the focus has been on relations between foreign investors and local populations. In much of the extractive literature, on the other hand, the ruling elite–investor relationship has often been considered the most important, as large-scale investments in land and natural resources usually involve ruling elite approval. The ruling elite–local population relationship has in many instances passed under the radar, even though at a deep structural level it may be the most important, as it sets the tone for how the investor–local population relationship unfolds. Drawing on each of these bodies of literature, the model suggests analysing investment projects through the analysis of specific exchanges of benefits, resources and rights. These exchanges are complex, as they are at the same time project-specific and embedded in longer term relations between the three groups of actors.

Lehavi, Land Law in the Age of Globalization and Land Grabbing^{^[17]}

Is land becoming a global commodity? Who are the actors shaping such a cross-border market for real estate and who remains excluded from participating in it? Which types of interrelations do local and supranational legal systems have in ordering property rights and other legal interests in what is otherwise considered the quintessential location-fixed asset? How are law, economics, politics, and culture likely to interact in the context of land in an age of increasing globalization?

Background (Cambodia)

Special Rapporteur on Human Rights in Cambodia, Report^{^[18]}

Since taking up my functions as Special Rapporteur in 2009, I have consistently received information about the human rights issues related to land concessions, including forced evictions, poorly planned resettlement and relocation, environmental destruction and unsustainable exploitation of natural resources, and threats to indigenous peoples’ livelihood, culture and traditions, among others. An increasing number of cases have also come to my attention in which individuals and communities claiming their rights to land, land activists, and other human rights defenders have been harassed, threatened or criminalized based on challenges to the granting and management of economic and other land concessions. (…)

II. Monitoring land concessions during the last two decades

10. Subsequently, as the impact of economic land concessions and corresponding human right violations continued to affect more communities, Peter Leuprecht‘s successor, Yash Ghai, further examined the problem with a focus on human rights violations committed by land concession companies against rural communities, especially indigenous peoples. The result of this work, the 2007 SRSG Report, provided an update on key developments since the 2004 SRSG Report, including the revised legal and regulatory framework for the granting and management of ELCs, and implementation of this framework. In the report‘s introduction, SRSG Ghai noted that the impact of ELCs continued to mirror patterns documented in the 2004 SRSG Report, insofar as concessions had been detrimental to the livelihoods of rural communities. Communities had drawn little benefit from land concessions and had no effective remedy when their rights were violated. (…)

E. Land title and possession rights

49. The Khmer Rouge regime which ruled Cambodia between 1975 and 1979 saw the dissolution of all private ownership, the results of which are still being felt today. Many millions of Cambodians still lack documentation and the full recognition of their ownership rights that comes with a land title. In recognition of the absence of widespread land registration and titling, Chapter 4 of the Land Law recognises the possession rights of those people who have enjoyed peaceful, uncontested possession of their land commencing prior to the 2001 Land Law, but are not yet formally recognized as owners of the land. If an occupant can prove that they have legitimate possession rights they are entitled to request a land title for their land and thus have their possession converted into full ownership rights. (…)

G. Brief overview of available land dispute resolution mechanisms

55. There are five formal conflict resolution mechanisms in Cambodia for disputes relating to land rights: the Commune Councils, the Administrative Committees, the Cadastral Commission, the National Authority for Land Conflict Resolution (NALDR), and the court system. The Commune Councils only ―reconcile differences of opinion among citizens of communes, but do not make decisions.114 Though not a requirement, in practice most cases go to the Commune Councils before they go to higher levels. (…)

Instruments (Cambodia)

Constitution of the Kingdom of Cambodia^{^[19]}

Article 44. All persons, individually or collectively, shall have the right to ownership. Only Khmer legal entities and citizens of Khmer nationality shall have the right to own land. Legal private ownership shall be protected by law. Expropriation shall be possible only if public utility

demands in the cases stipulated by the law and if prior appropriate and fair compensation is granted.

Land Law^[20]

Article 4. The right of ownership, recognized by Article 44 of the 1993 Constitution, applies to all immovable properties within the Kingdom of Cambodia in accordance with the conditions set forth by this law.

Article 5. No person may be deprived of his ownership, unless it is in the public interest. An ownership deprivation shall be carried out in accordance with the forms and procedures provided by law and regulations and after the payment of fair and just compensation in advance.

Article 26

Ownership of the immovable properties described in Article 25 is granted by the State to the indigenous communities as collective ownership. This collective ownership includes all of the rights and protections of ownership as are enjoyed by private owners. But the community does not have the right to dispose of any collective ownership that is State public property to any person or group.

The exercise of all ownership rights related to immovable properties of a community and the specific conditions of the land use shall be subject to the responsibility of the traditional authorities and mechanisms for decision-making of the community, according to their customs, and shall be subject to the laws of general enforcement related to immovable properties, such as the law on environmental protection.

Article 30. 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. In case the granting of a definitive title to ownership is subject to an opposition, the claimant has to prove that he himself fulfills the conditions of peaceful, uncontested possession for no less than five years over the contested immovable property or to prove that he purchased the immovable property from the original possessor or his legal beneficiary or from the person to whom the ownership was transferred, or from their successors.

Law on Expropriation^[21]

Article 1. This law aims to define an expropriation in the Kingdom of Cambodia by defining the principles, mechanisms, procedures of expropriation, and fair and just compensation for any public physical infrastructure construction, rehabilitation, and expansion project for the public interests, national interests and development of Cambodia.

Article 8. The state shall buy any part of the immovable property remaining after the expropriation for fair and just compensation as proposed by the immovable property’s owner and/or holder of real right to the immovable property who cannot live near the project area or cannot build a residence or conduct any businesses.

Article 16. Prior to making any expropriation project proposal, the Expropriation Committee shall conduct a public survey by recording of a detailed description of all entitlements of the owners of and/or of the holder of real right to immovable property and other properties subject to compensation as well as recording of all relevant issues. In conducting the survey, the Expropriation Committee shall organize public consultations at the Capital, Municipal-Provincial, and District-Khan authority levels with Commune/Sangkat councils and Village or community representative to be affected by the expropriation to provide specific and concise information and collect inputs from all stakeholders regarding the proposed basic public infrastructure project.(…)

Sub-Decree on Economic Land Concessions^[22]

Article 4. An economic land concession may be granted only on a land that meets all of the following five criteria:

1. The land has been registered and classified as state private land in accordance with the Sub decree on State Land Management and the Sub decree on Procedures for Establishing Cadastral Maps and Land Register or the Sub decree on Sporadic Registration.

2. Land use plan for the land has been adopted by the Provincial-Municipal State Land Management Committee and the land use is consistent with the plan.

3. Environmental and social impact assessments have been completed with respect to the land use and development plan for economic land concession projects.

4. Land that has solutions for resettlement issues, in accordance with the existing legal framework and procedures. The Contracting Authority shall ensure that there will not be involuntary resettlement by lawful land holders and that access to private land shall be respected.

Sub-Decree on Social Land Concessions^[23]

Article 2.

The following terms have the meanings defined below:

(a) “Social land concession” is a legal mechanism to transfer private state land for social purposes to the poor who lack land for residential and/or family farming purposes.

(b) “Social concession land” is the land that is the subject of a social land concession.

Article 3.

Social land concessions may be granted for one or more of the following social purposes:

1. Provide land for residential purposes to poor homeless families

2. Provide land to poor families for family farming The Khmer version is the official version of this document.

3. Provide land to resettle families who have been displaced resulting from public infrastructure development.

4. Provide land to the families suffering from natural disaster.

5. Provide land to repatriated families.

6. Provide land to demobilized soldiers and families of soldiers who were disabled or died in the line of duty.

7. Facilitate economic development

8. Facilitate economic land concessions by providing land to workers of large plantations (chamkar) for residential purposes or family farming.

9. Develop areas that have not been appropriately developed.

Article 7. A National Social Land Concession Program may be initiated by one or more concerned ministries or institutions in situations that are not suitable for a local social land concession program, in particular, in any of the following situations:

Where there is a program to develop land in remote areas without sufficient local residents to develop the land.
Where there is a program to resettle large groups of families, such as urban squatters, or displaced persons.
Where there is a social land concession program that may link to the economic concession in order to develop agro-industry.
Where there is new or existing development program, such as a donor or investor supported program that is coordinated by the national level…”

Council for Land Policy, Land Policy “White Paper”^[24]

Land Policy of the Royal Government, known as “Land White Paper” is an analytical document of the situation of land tenure, land use, and land and natural resources management, plus the implementation of the existing rules and regulations pertaining to land to be responsive to the pace of socio-economic development and to the Strategy of Staged Development to make sure that land and natural resources managements are effective, productive, and sustainable for later generations.

Land Policy is a Land Reform Program of the Royal Government which is used to strengthen land and natural resources management that the majority of the people depends upon to sustain their livelihoods and in generating income. Land and natural resources management would be highly effective when integrating the needs for developing land-related sectors and other sectors of the economy and the society in a smooth manner. (…) In this context, the Land Policy or “The Land White Paper” shall pay attention in particular to:

social, economic, cultural, and environmental aspects
equity and justice to every citizen throughout the country
preserving dignity and human rights
reducing poverty and gender inequality
promoting the implementation of measures to ensure sustainability of development
guaranteeing land tenure security
promoting cross-sector cooperation and multidisplinary relationship
enforcement of implementing law and norms
respecting custom, culture and preserving cultural heritage and history (…)

Parliamentary Institute of Cambodia, Land Dispute Resolution^{^[25]}

1. Introduction

In Cambodia, land dispute cases have been resolved both through the court system and outside the court system. With regard to land dispute resolution outside the judicial system in Cambodia, the Cadastral Commission (CC) has played a significant role in resolving land dispute cases since its creation in 2002. In addition to the CC, there are relevant key actors and state institutions involved in out-of-court land dispute resolution.

This briefing note shall provide a concise description of land dispute resolution mechanisms outside the judicial system in Cambodia (…)

2. Land dispute resolution mechanisms outside the judicial system in Cambodia

Besides resolving disputes through the court system, Alternative Dispute Resolution (ADR) is considered as another approach which is employed to settle disputes. It is a settlement mechanism that people can use as an alternative to cope with disputes outside the judicial system. ADR has been used to resolve family issues, neighborhood disputes, and environmental, commercial and industrial disputes (…)

2.1 Key actors / state institutions involved in land dispute resolution outside the judicial system in Cambodia

It has been observed that when there is a land dispute case in Cambodia, the disputants tend to get involved with a number of key actors or institutions for resolving their disputes outside the court system as follows:

(i) Community

The resolution of conflicts outside the judicial system has been rooted in Cambodian tradition, with many disputes normally being resolved based on local culture or practice. For example, village elders or village chiefs are approached to help settle disputes in the village (…)

(ii) Civil society organizations

Recently, ADHOC, a non-governmental organization, has become involved in land dispute resolution. It has established an Alternative Dispute Resolution (ADR) programme to contribute to small-scale conflict resolution since 2013. It has offered neutral, cost-free, human rights-based mediation services. Between 2013 and 2014, ADHOC was seized of 157 cases, most cases concerning conflicts within the family or land disputes. As a result of its mediation process, ADHOC mediators helped disputants/parties reach an agreement in 70% of the total number of cases.

(iii) Government institutions

The Cambodian government has established institutional mechanisms to cope with land disputes outside the judicial system ranging from the sub-national to the national level (…)

Commune Dispute Resolution Committee (CDRC): This committee was established by the communes/Sangkats in 2006. One of its tasks is to mediate/conciliate land disputes outside the court system, if the parties agree to these processes (…)
The Maisons de la Justice: this institution was created in 2006 with a number of key tasks including: (i) to provide training and/or technical advice to commune councils on conciliation and certain legal matters regarding disputes, (ii) to assess the demand for legal information at the district and commune level, (iii) to disseminate necessary legal information to the public in the district, (iv) to conciliate and mediate disputes at the request of the parties, and (v) to provide referral services to disputants whose cases cannot be solved at the lower level (…)

Socfin, Sustainability Report^[26]

1.2 General profile

Socfin Cambodia is implanted in the Kingdom through two companies: Socfin-KCD and Coviphama both with their head quarter based in Phnom Penh. Socfin-KCD is operating through two Economic Land Concessions (ELC), Varanasi and Sethikula, and Coviphama through one ELC of the same name. Socfin_KCD and Coviphama develop and manage rubber plantations in Mondulkiri Province. Socfin-KCD started producing rubber in 2015, whereas the younger plantation in Coviphama started producing in its more mature plot since 2018. In 2018, Socfin Cambodia completed the construction of its rubber factory located in the Socfin-KCD plantation. It currently only processes Socfin Cambodia’s production, and local small holders are planned to be integrated into the process in 2019-2020. (…)

3.4 Compliance with legal requirement

All activities of the company comply with national policies, laws and regulations relating to environment and social management. The company’s development and activities thoroughly follow the Environmental Impact Assessment Law and the Master plan for Economic Land Concessions, in full transparency with the Royal Government of Cambodia. (…)

3.7.1 External grievance procedure

This process, designed for external stakeholders (including local communities, NGOs, civil societies, etc.) has been detailed in Socfin Cambodia’s 2017 sustainability report which is available on socfin.com.

In 2018, no grievance has been presented to the company through this channel.

Given the local context, land related grievances are not addressed through this mechanism but through an independent mediation process which is a pilot project in Cambodia. Until final agreements are reached, this process is fully confidential. (…)

7.3.3 Mediation

Some claims from the local population related to land ownership, resurfacing mainly in 2015, are being addressed within dependent third parties to ensure a transparent and effective process. In 2016 and 2017, Socfin Cambodia has engaged with GIZ, an independent and neutral organization specialized in land rights in rural areas to map conflict areas. From these initial contacts, the concept of a mediation was developed.

CAO, Assessment Report VEIL II Project^[27]

In February 2014, local members of 15 villages in Ratanakiri Province in Cambodia lodged a complaint with CAO with the support and assistance of five international and Cambodian NGOs – Inclusive Development International (IDI), Equitable Cambodia (EC), Cambodian Indigenous Youth Association (CIYA), Indigenous Rights Active Members (IRAM) and Highlanders Association (HA). The complaint raises concern about impacts on 17 villages, and provides detailed information about 13 of these villages. The complaint raises a range of environmental and social concerns about HAGL’s Cambodia operations, including impacts on water sources and fish resources, loss of land, lack of compensation, lack of information disclosure and engagement with the people, threat to spiritual, cultural and indigenous practices, as well as use of child labor. The complaint further alleges non-compliance with IFC policies and procedures and with Cambodian laws. The Complainants requested that CAO keep their identities confidential. (…)

The Company’s perspective

HAGL maintains that throughout its investment process in Cambodia, it has always complied with host country laws and regulations. The company expressed the desire to address the communities’ concerns pro-actively, and said that in pursuing a resolution to these concerns, they would put the communities’ interests first. The Company shared its vision that the communities surrounding its plantations be significantly better off as a result of the Company’s presence, and that the communities should feel the benefit of their presence soon. The Company recognizes that it had not put greater focus on developmental opportunities for local communities earlier in the development of their operations. Finally, the Company declared a moratorium on further land clearance activities in the area of 13 communities that are listed by name in the complaint.

Areas of agreement

During this early engagement around the assessment of the complaint, a few areas of agreement are starting to emerge from both the Company and the Complainants:

Both the Company and the Complainants are willing to engage in a dispute resolution process facilitated by CAO.
Both the Company and the Complainants seek to find solutions in keeping with Cambodian laws and regulations.
The Company and the Complainant representatives are eager to see the concerns resolved in a timely manner.
The Company recognizes the importance of halting land clearance activities that are affecting the communities to allow for fruitful dialogue.

Bugalski & Thuon, A Human Rights Impact Assessment (Hoang Anh Gia Lai)^{^[28]}

Key findings on the impacts on the right of self-determination

(…) HAGL’s business activities, and no attempt was made by any actor to seek their free prior and informed consent for a project with serious and direct effects on their lands, territories and natural resources. The failure to consult or negotiate with local residents also amounts to non-compliance with the requirements of Cambodian Sub-decree No. 146 and the concession agreements.

The use of police and military as security guards intimidated people and precluded their free expression of opposition to the project. In some cases, threats of violence and other forms of retribution for attempts to enter concession boundaries or to oppose the company’s activities have been more explicit, infringing several other human rights, including the right to security of person recognized in article 9 of the ICCPR.

The confiscation of lands and destruction of forest resources within the communities’ customary territory is a serious violation of their right of self-determination, and to control and pursue their own economic, social and cultural development. These actions also violate Cambodian Land and Forestry Laws as well as the terms of concession agreements. The communal and household losses, including the loss of access to productive resources, has meant a fundamental deprivation of the communities’ means of subsistence. These acts and omissions contravene Article 1 of the ICCPR and the ICESCR, as well as several articles of UNDRIP, including 26(2) and 32(2).

Impacts on Right to Adequate Standard of Living

The loss of productive land and natural resources described above has meant that living standards have been impacted in several ways. Most starkly, there have been considerable impacts on access to food and livelihood resources in villages affected by HAGL’s concessions.

Impacts on right to food

Key informants from all of the thirteen villages affected by HAGL’s concessions reported an adverse change in the quantity, quality and type of food available in their village as a result of the company’s activities. In particular, these changes were attributed to loss of productive land, streams and access to forests, which were the main source of people’s food prior to the company’s presence in the area. (…) over 90 percent of households interviewed said that they were able to access a full range of food, including wild fruit, vegetables and animals, from the forest for household consumption. (…)

Key findings of impacts on the right to adequate standard of living

The confiscation of lands and destruction of forests and other productive resources has resulted in a retrogression in the enjoyment of the right to an adequate standard of living of affected people, and violated Cambodian law. In particular, the loss of access to household and communal resources, including farming and grazing land, animals, fruit and vegetables sourced from the forest, and fish from streams has meant a reduction in food resources available for household consumption. Loss of reserved lands for rotational agriculture further poses a risk to future food security. The confiscation and destruction of these productive resources for present and future use has also meant a loss of sovereignty of affected communities over their food system, which people felt had successfully provided them with healthy and culturally appropriate food in a sustainable manner. Households that lost chamka and/or rice fields have suffered from the most serious impacts on their right to food. (…)

Access to Remedy

Despite the fear of retribution for expressing opposition to the project, eleven out of the thirteen affected villages have submitted a complaint about the concession and the company’s activities in an effort to reclaim their land. Most of these communities have submitted at least one petition and/or made at least one verbal complaint to local authorities, usually at the commune and district levels. In some cases, villagers complained verbally to company workers.

None of the key informants thought that their villages had received an adequate response to their complaints or a resolution of their grievances. Most of the complaints, both verbal and written, have been ignored. For example, Kam village submitted a petition with approximately 150 thumbprints to the Ministry of Agriculture, Forestry and Fisheries, but received no response, and then later another complaint through the Cambodian NGO Adhoc that was reported in the media, but still received no resolution. A villager from Srae Angkrong 3 said: “To get our land back, we made countless complaints with thumbprints to local authorities. The complaint to commune office was rejected. Then, we submitted complaint to district office, but the district authority said they did not have ability to resolve the problem. When our complaint reached provincial level, we were told that land was granted to the company and shown some legal document.” (…)

Key findings on access to remedy

Affected people have so far not received effective remedies for human rights violations that they have suffered, although they hope to do so through the ongoing mediation process. While many communities and households have submitted complaints to local authorities and the company, these have either been ignored, met with threats or addressed through offers of inadequate compensation without negotiation. No communities or households have attempted to bring a lawsuit through Cambodia’s court system, despite strong grounds under Cambodian law. (…)

Sokhom, Land Disputes in Four Provinces of Cambodia^{^[29]}

1.2 Problem Statement

Current situation of land dispute in Cambodia is very critical. There are many factors have caused the disputes including conflict setting, land history and political condition which make it exceptionally hard to solve. Moreover, land disputes are widespread and are seen as a serious issue for stability and wellbeing of the country; however due to the many factors and interests involved they are not being easily solved. Concerns about land disputes have been raised for the country in general as local and international media have covered. Although it is an emergency issue to overcome, it takes much time and effort to gradually solve with the mission to find out the differences measures and approaches to deal with.

3.5 Impact

Although the government has tried to reconstruct and improve land management since 1989, land ownership remains a highly controversial issue in Cambodia. In the same time, the rapid economic growth there has been increasing demand for land, whereas in the country more than 80% of population is practicing the subsistent agriculture in the rural area leads to the rising land tenure insecurity. (…)

Land dispute caused landlessness. There are no reliable national data on the number of landless people in Cambodia, but it is estimated landlessness rose from 20% to 40% of the rural households were landless in 2009. Involuntary landlessness and near landlessness are considered primary contributors to poverty and weak human development in Cambodia. Young families and women-headed households are most likely to be landless or near-landless . In an Oxfam’s survey sample, one in eight families was landless while 21% or one in five women-headed households was landless. (…)

12. Impact from land dispute

This part attempts to examine the impacts of the disputes on the target areas, mainly on the effect that the resolution process had on the villagers, communities and institutions involved. Although local officials stated that the outcome of the land dispute resolution caused less impact on people‘s livelihoods and community as a whole, villagers proved that it strongly affected their daily life and the future of their children (See table 13).

Impact varied by geographic location, nature of land dispute, people involved and outcome as well. The specific objective of the economic land concession is to develop the intensive agricultural and agro-industrial activities. The aim is to generate state or provincial revenues through economic land taxes and increase the employment in the rural areas for the poverty reduction. It is true that the company provides the employment opportunity for villagers. However, the employment is occasionally by season, but not long term contracted employment. The wage of the workers is about 14,000 Riels or 3.5 US $ per day. (…)

Touch & Neef, Land Grabbing and Agrarian‐Environmental Transformations^[30]

3 Economic Land Concessions and Local Resistance: Two Case Studies from Kratie Province and Koh Kong Province (…)

3.3 Local Resistance to Economic Land Concessions for Tourism Development: The Case of Tianjin Union Development Group in Koh Kong

(…) Botum Sakor National Park, which has 171,250 hectares of land, is situated to the west of the town of Koh Kong, with more than 50 per cent of its borders lying along the Cambodian coast. The park is rich in virtually untouched forest.

On 9 May 2008, the Royal Cambodian Government, represented by the minister of environment, signed a long-term lease contract of 99 years with a Chinese company, Tianjin Union Development Group Company Ltd (TUDG), for the construction of a commercial development zone and large resort to attract tourists. The project covered more than 36,000 hectares in the Kiri Sakor and Botum Sakor districts and involved investment capital of about US$ 4 billion. The contract was signed by the environment minister, approved by the minister of economy and finance, and witnessed by the minister of commerce, which is a testament to the high importance the RGC assigns to this project. The leased land covers a large portion of the coast in Kiri Sakor and Botum Sakor districts, including areas that are critical for the conservation and protection of the environment, as well as 12 villages in five communes. In August 2011, the government issued a sub-decree to reclassify an additional 9,100 hectares as a sustainable-use zone and granted a second land concession to TUDG to develop a water reservoir and power plant.

The villages affected by the project have been in this location for generations. The community members belong to families that settled in the area before the Sihanouk regime in the 1960s, those who relocated during or after the Khmer Rouge regime and others who arrived in the 1980s (after the fall of the Khmer Rouge). More families moved in later, following the private purchase of land plots. The government formally recognised these villages in the 1990s after the end of the civil war. According to the district officials involved in the assessment of the occupied land, the project affects a total of 1,163 families inhabiting residential land and tending to orchards in Kiri Sakor’s three communes (…)

The relocation site spreads over 4,000 hectares of land located outside the investment project of TUDG, deep inside the Botum Sakor National Park and a significant distance from the coast. According to local authorities, the government issued a sub-decree to excise this forested area from the park for this purpose. (…)

While compensation packages differ, most relocated families have been offered residential land of 50 m by 100 m, a constructed wooden house of 6.5 m by 7.5 m, plus a plot of farmland of two hectares. The offered farmland is forested land, in some cases adjacent to the residential land, but as of late November 2012, most of the relocated families reported not having received the promised two hectares of farmland. Villagers of Prek Khyong, Tanoun commune, reported that they had heard they would be given two hectares but most of them were still waiting for the land to be allocated to them at the time of our survey. Regarding this agricultural land, they expressed concerns that they would get dense forestland, which would require much time and labour to clear and prepare for farming while facing labour shortages (…)

Ingalls et al, State of Land in the Mekong Region^{^[31]}

Economic Land Concession

Economic Land Concessions (ELCs) are large tracts of land granted by the government to domestic or foreign companies through specific contracts for agricultural and agro-industrial production. Contracts cover areas of up to 10,000 hectares (Royal Government of Cambodia, 2005) and the maximum concession period has reduced from 99 years to now 50 years. (…) They also aimed to develop so-called “under-utilized” land in order to increase employment in rural areas and generate State revenue at national and sub-national levels. But ELCs have not met these expectations: they often overlapped land that was already cultivated or used by smallholder farmers, resulting in land conflicts on farmland or common pool resources and thus exerting a direct, negative impact on the livelihoods of these farmers. These conflicts are exacerbated by the movement of land-poor migrants from lowland areas seeking available lands in the peripheral uplands for their livelihoods. These internal migrations clearly demonstrate the genuine need for land by smallholder farmers, a phenomenon that has not been adequately addressed in the land reform. Well aware of these problems, the government issued an important directive in 2012, Order 01, with three measures aiming to strengthen and increase the effectiveness of the management of ELCs. Order 01 established a moratorium on the granting of new ELCs, a titling campaign (see below) as well as a full review of existing ELCs in an effort to discover which companies were in violation of the contract they signed with the government. A contract typically requires the companies to properly demarcate their land, sort out social conflicts peacefully, and effectively operate their ELCs within one year of their approved Master Plan. Since Order 01 was issued, there has been a real effort by the government to improve the management of ELCs in the country. The work conducted under this reform is still ongoing. In order to offer more specific details to the public, a few organizations are monitoring ELC development based on data available in the public domain (Royal Gazette, Sub-decrees, business registration, and contract, etc.). But the recent evaluation of concessions initiated in 2012 has considerably changed the agro-industrial development landscape in Cambodia and has made the work of these organizations rather tedious.

Social Land Concessions

Social Land Concessions (SLCs) are tools the government has promoted to address the problem of landlessness and near landlessness. They constitute a legal mechanism to transfer private State land for social purposes to the poor who lack land for residential and/or family farming purposes. The national SLC programme differentiates between three types of concessions: one managed by the government to address civil poor landlessness; a second managed by the government to address the demobilization of soldiers from the Royal Armed Forces; and a third co-managed between the government and donor organizations also to address civil poor landlessness. Full ownership rights to SLC land are only acquired after 5 years and full occupation and use of the allocated land. According to the Ministry of Land Management, Urban Planning and Construction (MLMUPC), as of June 2014 the total number of recipients of Social Land Concessions for all three programmes was 12,374 families in respect of 113,167 ha of land registered (for settlement, infrastructure and agriculture). This represents only 5 percent of the total area granted as Economic Land Concessions. (…)

Borras et al, Land Grabbing and Human Rights^{^[32]}

Trade policies, including the EU’s Everything But Arms Initiative (EBA):

(…) An illustrative example of how trade policies can act as a driver/trigger for land grabs is the EU’s Everything But Arms Initiative (EBA). The initiative was adopted in 2001 by the EU with the stated intention of promoting development in the world’s least developed countries (LDCs) by granting duty-free and quota-free access to the European market. Market access for sugar was fully liberalized by October 2009, which is especially relevant as the EU guarantees a minimum sugar price higher than the world market price (Equitable Cambodia et al., 2013, p. 20). The EU has claimed that the EBA has had positive effects but the case of Cambodia shows that this initiative has been a driver of land grabbing and human rights violations in Cambodia (see Box 8).

Box 8: ‘Everything But Arms’ EU policy and land grabbing in Cambodia

EBA has been a key driver of land grabbing for sugar cane plantations in Cambodia. According to the companies involved in sugar cane plantations, the EU initiative EBA has been a primary motivator for their land acquisitions and operations in Cambodia (Equitable Cambodia et al., 2013, p. 22). And while sugar cane holding were negligible before EBA became effective, today round 100 000 hectares of land are under agro-industrial sugar cane production. Consequently, all exports have been progressively directed towards the EU. (…)

Questions

How does respect for the right to land influence the enjoyment of other human rights?
Are there any legal protections for those without formal property rights to land under 2001 Land Law against forced evictions by the State?
What are the international standards and best practices regarding dispossession and compensation for land?
What are best practices in Cambodia when it comes to land issues and balancing different economic activities competing for land?
Can you elaborate on gender aspects related to land possession in Cambodia?

25. LAND ISSUES AND RELOCATION

Introduction

Main Aspects

Background

Shift, The Human Rights Opportunity[3]

IFC, Handbook for Preparing a Resettlement Action Plan[4]

Instruments

Universal Declaration of Human Rights[5]

UN, Declaration on the Rights of Peasants and People Working in Rural Areas[6]

IFC, Performance Standard 5 on Land Acquisition[7]

FAO, Voluntary Guidelines on the Responsible Governance of Tenure of Land[8]

OECD-FAO, Guidance for Responsible Agricultural Supply Chains[9]

African Union, Guiding Principles on Large Land Based Investments in Africa[10]

World Bank, Resettlement Fact Sheet[11]

World Bank, Shortcomings in Resettlement Projects[12]

IFC, Handbook for Preparing a Resettlement Action Plan[13]

ICMM, Land Acquisition and Resettlement: Lessons Learned[14]

Borras, Land Grabbing and Human Rights: The Involvement of European Entities[15]

Buur, The Political Economy of Land and Natural Resource Investments in Africa[16]

Lehavi, Land Law in the Age of Globalization and Land Grabbing[17]