COHRE Housing and ESC Rights Law Quarterly Vol5 No.4 2008

housing and esc rights law Centre on housing rights and evictions

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Vol. 5 - No. 4 December 2008

quarterly

With the Housing and ESC Rights Law Quarterly, the COHRE ESC Rights Litigation Programme aims to present advocates and other interested persons with information on national and international legal developments related to housing and ESC rights.

Housing Rights Litigation in Cambodia.

The Boeung Kak Lake case Dr. Natalie Bugalski1 Introduction Evictions and forcible confiscation of land continue to rank as one of Cambodia’s most pervasive human rights problems. It is estimated that more than 150,000 Cambodians live under threat of forced eviction, including approximately 70,000 people in Phnom Penh. There remains no comprehensive regulation of appropriation of property by the state, or of evictions and relocations. The Land Law (2001) does contain some protections against forced and violent evictions but these are frequently ignored by government, the private sector and the courts. In the absence of proper regulation and an effective and fair land titling and registration system, security of land tenure is weak or absent for many poor communities.

Coupled with the absence of tenure security, rapidly increasing land values have led to rampant land grabbing by powerful and wealthy elites, to the severe detriment of local communities. The pretext of development is used to justify the forced relocation of low-income households to remote and desolate resettlement sites.

Frequently, however, the projects driving this displacement are beset with corruption and unjust practices, perpetuating a development model that favours powerful 1

interests at the expense of deeper poverty and increased hardship for the most vulnerable.

The impending Boeung Kak Lake development is the largest and most visible of these development projects. Spanning 90 hectares in central north Phnom Penh, Boeung Kak Lake is one of the only large open spaces left in Cambodia’s capital city. Approximately 4000 families live on and around the lake with many depending on the lake for their livelihood. Many

of these families have been living around the lake since the early 1980s when they returned to the city following the fall of the Khmer Rouge regime. These families generally regard themselves as legitimate owners or renters of their land. Despite these private claims to the land, in January 2007 the government entered into a 99-year lease agreement with a private developer, Shukaku Inc., over 133 hectares including the lake and surrounding areas. Shukaku intends to fill in all but one tenth of the lake and build what will effectively be a new neighbourhood on the reclaimed land.

Filling of the lake commenced in August 2008 and will apparently take up to 18 months.

While few details about the development have been made public, it is estimated that approximately » 20,000 people will be displaced,

The author is working as a legal officer for the COHRE Asia Pacific Programme in Phnom Penh and is actively involved in this case.

We are thankful to the Housing Rights Programme, a joint initiative of UN‑HABITAT and the UN Office of the High Commissioner for Human Rights, and the Canadian International Development Agency (CIDA) for providing the necessary funding to make the Housing and ESC Rights Law Quarterly a regular publication and to ensure the widest possible distribution.

For additional information on the justiciability of ESC rights, see www.cohre.org/litigation and the Case Law Database at www.escr-net.org.

We welcome any comments, submissions of case notes and articles, as well as information on new cases and relevant events and publications. Please feel free to contact us at: quarterly@cohre.org

This publication has been made possible with the support of the United National Housing Rights Programme, http://www.unhabitat.org/unhrp, and the Canadian International Development Agency, http://www.acdi-cida.gc.ca/index-e.htm.

The views expressed in this publication are not necessarily shared by the UN, UN-Habitat or CIDA. ISSN 1812-240 X

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making this the largest mass-eviction since the Khmer Rouge era.

Certain villages have already been targeted with many households bowing to pressure, accepting inadequate compensation offers to move under conditions of extreme duress and intimidation or being literally flooded out. Serious concerns also exist about the environmental implications of the project, especially with regard to flooding of northern parts of the city. There are also objections to the destruction of Phnom Penh’s largest lake and open space – a very prominent example of the current lack of constructive and inclusive urban planning.

Taking the case to court Despite the corrupt and ineffective state of the judiciary in Cambodia, COHRE and its partner NGOs decided to pursue the idea of challenging the lease agreement in court. Although there are low, if any, expectations of a judicial victory, the decision was made to pursue litigation for three reasons.

First, pursuing a legal challenge could act as a source of mobilisation and empowerment of the communities living around the lake.

In conjunction with training about their rights under both international and domestic law, this was an opportunity for threatened communities to show that they are aware of their rights, applicable laws and the responsibilities of government.

Second, it is expected that the filing of the legal case will attract considerable media and public attention thereby fortifying the wider campaign strategy to improve the bargaining power of the Boeung Kak residents. Third, there was a general feeling that human rights NGOs and civil society groups have a duty to play their part in moving the judicial and legal system forward, despite its deep-seated flaws, by encouraging its proper use, rather than simply ignoring it.

While the legal case in itself was straight forward – the lease agree-

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ment is blatantly illegal under Cambodian national law as explained below – bringing the case to court was fraught with difficulties. The first challenge was to find a lawyer brave enough to take on a case that challenged vested interests that go right to the top of the echelons of power in Cambodia.

Cambodian lawyers working in the public interest on land claims have been threatened with disbarment and harm to their personal security on several occasions in the past.

The second challenge was to find plaintiffs. The climate of fear and intimidation was and continues to be pervasive. Challenging government (or rather the ruling party’s) authority is not common practice in Cambodia and with threats that families who challenge or impede the development in any way would receive no compensation or resettlement offers and worse, finding people willing to attach their name to the case was no easy task.

Eventually, a Cambodian lawyer with some public interest litigation experience agreed to take on the case on the condition of strong support from the NGO network.

After a time the lawyer was able to find a number of affected people who were willing to apply for an injunction to stop the filling of the lake while compensation settlements are being negotiated. However, either due to fear or a desire to obtain better compensation, residents have not been willing to bring a case to nullify the lease agreement itself.

An injunction application to halt the filling of the lake was filed in the Phnom Penh Municipal court in September 2008. Unsurprisingly the court found a way to avoid deciding the case and rejected the application. The court found that it lacked jurisdiction to hear the case which it characterised as a land dispute falling within the remit of the Cadastral Commission. An appeal of this decision is set to be heard on 25 December.

Due to the illegality of the lease, as explained below, the rules of standing allow individuals, such as Phnom Penh residents, and local organisations to appear as plaintiffs in the substantive case to nullify the lease agreement. Should NGOs decide to pursue the case the challenge will now be to find other interested parties willing to attach their names in the public interest. Success in finding such plaintiffs will in itself make this a landmark case in Cambodia.

The Legal arguments In any jurisdiction with rule of law and a functioning and independent judiciary, it would not be difficult to successfully argue that the lease agreement, the development project and the resulting evictions are illegal. An injunction would be issued and ultimately the lease would be held invalid. Compensatory damages to households which have suffered harm to their property and/or livelihoods due to the pumping of sand into the lake would be granted. Criminal sanctions would be ordered against those behind the threats of and actual violence and destruction to property. In Cambodia, however, despite the strength and veracity of the legal arguments, no such victory is expected.

The lease agreement is plainly illegal under the Cambodian Land Law (2001) and implementing subdecrees as it applies to land that cannot be leased out by the State in the existing circumstances. In brief, the lease covers property that falls under several different categories of land as designated by the Land Law. The lake itself is State public property according to Section 15 of the Law which explicitly names natural lakes as such. The Land Law and relevant sub-decree stipulate that such property can only be leased for a maximum of 15 years.2 Furthermore the lease must not damage the property or effect or change its public function.3 The lease to Shukaku obviously does

Article 16 Land Law (2001) and Article 18 Sub-Decree on Rules and Procedures on Reclassification of State Public Properties and Public Entities, No. 129 ANKr. BK 27/11/06.

Article 16 Sub-Decree on Rules and Procedures on Reclassification of State Public Properties and Public Entities, No. 129 ANKr. BK 27/11/06.

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not meet these conditions as it was granted for 99 years and allows for the filling, and thus destruction, of the lake and its public interest function. The lease is therefore invalid insofar as it applies to the lake. Ostensibly in response to public criticism about the blatant illegality of the lease which was perhaps unacceptable for such a prominent development project, in August 2008 the government passed a sub-decree purporting to transfer Boeung Kak Lake and its surrounds from its classification as State public property to classification as State private property.4 State private property is State land that does not serve any public interest function and as such rules for leasing out such land are more liberal.5 However, in addition to the government’s failure to comply with procedural requirements for such a reclassification, relevant decrees stipulate that such transferral can only occur if the State public property in question is no longer required for public interest use.6 In fact it is unlikely that a lake can lose its public interest purpose. By law it is in the category of properties that is State public property by virtue of its ‘natural origin.’ A lake retains its inherent nature, which makes it by that nature State public property. Boeung Kak Lake itself has historically been one of the most important of seven natural lakes around Phnom Penh, dating back to the early 1900s. In addition to its use as a source of recreation and livelihoods, it continues to serve as a natural reservoir for excess rainwater during the monsoon season.

In any case, the fact of the transfer, if it were valid, could not have validated a lease entered into a year prior to the transfer taking place.

As mentioned previously, the families living around the lake regard

themselves as rightful owners or in some cases renters of their land. Those living on the lake could not legally claim ownership for the same reason that a long-term lease over State public property cannot be valid. The Land Law clearly stipulates that State public property cannot be made subject to permanent or irrevocable private claims to the land, beyond a 15-year lease or other concession.7 However, if those households living around the lake can show that they possessed the property prior to 30 August 2001 and their possession has been unambiguous, non-violent, notorious, continuous and in good faith, or that they acquired or inherited the property in good faith from someone who was a legitimate possessor, they can claim possessory rights to the property pursuant to the Land Law.8 Households with possessory rights are protected from hindrance and as such their property cannot be subject to a conflicting lease which does not recognise their right to the land.9 Households with possessory rights have the right to apply for title to the property.10 Those households which have managed to acquire title cannot be deprived of their ownership unless it is in the public interest, done according to the law, and they receive fair and just compensation in advance.11 While there is no clear definition of ‘public interest’ in Cambodian law, it would be difficult to argue that the Boeung Kak lake development, by a private company for private profit, is in the public interest. The lease insofar as it applies to property subject to private claims of possessors or titleholders is therefore also invalid.

In addition to the illegality of the lease under national laws, the forced eviction of the families liv-

ing on and around the lake violates both domestic and international laws. The Land Law prescribes criminal sanctions against officials carrying out forced evictions who abuse their power, including through the use of pressure or physical measures.12 The flooding of houses and other forms of duress to evict residents of the lake would appear to fall under this provision. The evictions also violate Cambodia’s international legal obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Cambodia is a State party. Cambodia’s human rights obligations are recognised and domestically guarantteed by the Cambodian Constitution in Article 31. In addition to its obligation to itself respect the right to adequate housing, by inter alia, not carrying out forced eviction, it is further obligated to protect everyone within its jurisdiction from forced evictions undertaken by third parties including private companies such as Shukuku Inc. It is doubtful that the development of the lake and surrounding areas by a private company for private profit constitutes an exceptional circumstance to warrant the eviction as required by international law. Even if the evictions were being carried out for a justifiable reason, no consultation with residents of Boeung Kak lake have occurred. Nor have other protections required by international law been complied with, such as the provision of information, proper notice or the provision of legal aid to access judicial redress.

Furthermore, the inadequate offers of monetary compensation and the inadequate livelihood options and access to basic services at the resettlement site fail to comply with international law obligations to ensure access to alternative adequate » housing post-eviction.

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Sub-decree on Transfer of Land Site of Boeung Kak (Kak lake) from State Public Property to State Private Property No. 108 7/8/08.

However the rules that do exist for leasing State Private land, such as a requirement for a valuation and a bidding and negotiation process, were unlikely to be been followed by the government prior to entering into the lease with Shukaku in any case. See, Articles 2, 9, 10, 11 and 14 Sub-Decree on Rules and Procedures on Reclassification of State Public Properties and Public Entities, No. 129 ANKr.BK 27/11/06.

6 Article 3 Royal Decree on Principles and Transitional Provisions on Transferring Public Properties of the State and Public Legal Entities, No 321, NS/RKT/0806/339 3/8/06.

7 Article 16 Land Law (2001).

8 Ibid., Articles 30, 32, 38, 39 and 71.

9 Ibid., Article 248.

10 Ibid., Articles 29, 30 and 31.

11 Article 44 The Constitution of the Kingdom of Cambodia, and Article 5 Land Law (2001) 12 Article 261 Land Law (2001).

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Finally, the development project itself, as an urban development and a large tourism development, has not complied with laws which require an Environmental Impact Assessment (EIA) and an Environmental Management Plan (EMP) prior to the commencement of the project.13 While Shukaku Inc. has completed an EIA, its technical veracity has been doubted by independent experts. Moreover, the EIA process must include consultation with the public which has not occurred.14 There are no signs of Shukaku having completed an EMP despite the commencement of the filling of the lake in August 2008.

The future of Boeung Kak Lake In mid-November, pumping of sand into the lake was temporarily suspended because of flooding in the Russey Keo district in north Phnom Penh. By that time, however, hundreds of houses around Boueng Kak Lake had already been dismantled and the residents moved on. It is rumoured that officials at the Municipality have been told by higher authority that any impediments to Shukaku’s development project should not and will not be tolerated. Shukaku Inc. is headed by Lao Meng Khin, a Senator and director of controversial logging company Pheapimex, which is complicit in extensive land grabbing and deforestation in other parts of Cambodia and is also a major donor to the ruling Cambodian People’s Party. Investors from China’s Yunnan province, the Yunnan Southeast-Asia Economy and Technology Investment Industrials, are also involved in the project.

In many respects it is evident that the powers behind the Boeung Kak development and mass-eviction of Phnom Penh residents operate above the law.

However, while this court challenge may be a losing battle, it may contribute to an eventual victory in the larger fight for the rule of law and respect for rights in Cambodia.

13 Articles 6 and 7 Law on Environmental Protection and Natural Resource Management 1996, and Annexure to the Sub-decree on Environmental Impact Assessment Process No 72 ANRK.Bk 11/8/99.

14 Article 1 Sub-decree on Environmental Impact Assessment Process No 72 ANRK.Bk 11/8/99.

CASES TO WATCH European Committee of Social Rights, Defence for Children International (DCI) v the Netherlands, complaint no. 47/2008.

A complaint submitted by the Defence for Children International (DCI) versus the Netherlands was declared admissible by the European Committee of Social Rights. According to DCI, children not residing lawfully in the Netherlands are not entitled by law to receive the social assistance benefits (Article 13 Revised European Social Charter) which could help them enjoy adequate housing (Article 31). As a result, according to the DCI, proper protection of the right to health (Article 11), the right to develop fully (Article 17), and the right to the full development of the family (Article 16) are hindered. In addition, the DCI alleges that illegal children are discriminated against in the enjoyment of these rights because of their residence status and denying them the right to adequate housing contributes to increasing extreme poverty and social exclusion (Article 30). The Dutch Government argues that the complaint falls outside the scope rationae personae of the Revised Charter by virtue of paragraph 1 of the Appendix since it specifically concerns persons not residing lawfully on its territory. DCI responded by stating that housing, on the same grounds as health care, is a prerequisite for the preservation of human dignity, referring to the case of European Committee of Social Rights, International Federation of Human Rights Leagues v France, 8 September 2004, Complaint No. 14/2003. Thus, legislation or practice which denies entitlement to housing to foreign nationals, even if they are on the territory illegally, should be considered contrary to the Revised Charter. The Committee considers this can only be properly assessed when examining the merits of the complaint.

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The Editorial Board of the Housing and ESC Rights Law Quarterly is: • Colin Gonsalves, Executive Director, Human Rights Law Network, India; • Malcolm Langford, Visiting Fellow, Norwegian Centre on Human Rights, Norway; • Professor Sandra Liebenberg, Chair in Human Rights Law, Stellenbosch University, South Africa; • Bruce Porter, Executive Director, Social Rights Advocacy Centre, Canada; • Julieta Rossi, Director, ESCR-Net, USA; • Dr Aoife Nolan, Assistant Director, Human Rights Centre, Queen’s University, Belfast, Northern Ireland.

• Bret Thiele, Coordinator, COHRE ESC Rights Litigation Programme.

Acting Coordinating Editor: • Kees Wouters, Legal Officer, COHRE Asia and Pacific Programme and PhD Fellow at the Institute of Immigration Law, Leiden University, the Netherlands.

Contact If you have any comments, require additional copies, or wish to subscribe to the mailing list for the Housing and ESC Rights Law Quarterly, please contact: quarterly@cohre.org For general information on the COHRE ESC Rights Litigation Programme, please contact: litigation@cohre.org

Centre on Housing Rights & Evictions (COHRE) COHRE ESC Rights Litigation Programme Rue de Montbrillant 83 1202 Geneva, Switzerland tel.: +41.22.734.1028 fax: +41.22.733.8336 e‑mail: cohre@cohre.org web: http://www.cohre.org