The forest and the trees: sustainable development and human rights in the context of Cambodia.

• Author: Weiner, Andy

INTRODUCTION

During the summer of 2001, I was an intern for the Land Unit of Legal Aid of Cambodia (LAC Land Unit), based in the capital of Cambodia, Phnom Penh. This Comment reflects thinking about the most significant case encountered by the LAC Land Unit over the course of that summer. The case involves a commitment of public forestland to a foreign investor for agro-industrial purposes. I measure its significance not merely by the number of clients affected or the amount of land at stake (though both figures would justify the label), but also by the global ramifications of the issue involved. It strikes me as paradigmatic of the fundamental problems facing Cambodia as a developing nation struggling to emerge from an antiquated agrarian economy incapable of providing for its future. What is happening in Cambodia further reflects nations around the world wanting to secure a position in the global economy. With this recognition, the following discussion aims at broader application than merely the Cambodian context; it endeavors to address an important issue of global concern.

As developing nations have little to offer by way of established industry or financial resources, they turn to their natural resources to entice investment. (1) However, these same resources represent the current foundation of their economies, on which nearly entire populations are dependent. The disturbing result of this dynamic is that industrial and economic development takes place at the expense of current generations.

The international community also suffers as a result of overexploitation by developing nations. Its current response entails a balancing of environmental, economic, and social influences expressed through the concept of sustainable development--broadly defined as "paths of human progress that meet the needs and aspirations of the present generation without compromising the ability of future generations to meet their needs." (2) While the doctrine categorically remains a part of international environmental law, instruments including conventions, U.N. General Assembly resolutions, and treaties have increasingly viewed sustainable development through the lens of international human rights. (3) The debate it triggered among scholars and policy-makers surrounds whether this human rights approach to environmental protection gives rise to a "human right to environment." Beyond this threshold inquiry, there lies uncertainty over the exact nature of such a right and whether the whole human rights approach to environmental law is worthwhile in the first place.

This Comment frames the debate through the case study of Cambodia. It fleshes out the doctrine of sustainable development by examining the documents that embody its quintessential expression, the international agenda at work behind the concept, the potential for its realization through community resource management, and the context of current international law and human rights regimes. These considerations indicate that a human right to environment exists as a fundamental component of the complex doctrine of sustainable development. The choice made by the international community to invoke human rights in the environmental context--from its distinctive approach in international law focusing on the individual, to its terminology, to established specific rights--signals assent to its existence. Further, the unification of human rights and international environmental policy expresses a recognition that the two priorities are "inexorably linked." (4) A human right to environment comprises an essential ingredient in the effective implementation of sustainable development. It elevates sustainable development from an expression of the international community's aspiration for the environment to a powerful constraint on unilateral state action in the form of rights held by communities of the state.

The problem is that the predominant viewpoint does not go far enough in acknowledging the existence or content of a right to environment necessary to achieve its role. Specifically, the human right to environment is commonly characterized as a strictly procedural right, if considered a right at all. This Comment makes the case that the current international legal regime enunciates a right to environment. It then endeavors to define the right, at the same time exposing the deficiencies of a strictly procedural conception. The Comment concludes by asserting a substantive component to the right, justified in light of the evidence relevant to international law and essential to instituting sustainable development on a global scale.

Part I introduces the agro-industrial project proposed for Cambodia's forestland and places the Cambodian example in the broader context of an environmental crisis faced throughout the developing world. Part II explores the doctrine of sustainable development as the response offered by the international community. It also supports community forestry as a strategy for incorporating the principles of sustainable development into forest management in developing states. Part III turns to the role of human rights in the effort toward sustainable development--namely, to empower the local communities that are best situated to achieve that goal. It begins with an account of why there is reason to doubt the existence of a right to environment despite explicit language to the contrary found in several widely endorsed international instruments. While a procedural formulation of the right to environment succeeds in reconciling the most perplexing criticisms that bring the right into question, it also undermines the potency of the right in serving its purpose. Final analysis determines that a substantive right to environment is both real and indispensable. It originates from a unity of established international human rights and a universal acknowledgement of the relationship between these human rights and the environment expressed, most notably, in the flagship product of the 1992 Earth Summit--the Rio Declaration on Environment and Development (Rio Declaration). (5) The Comment concludes by admitting that a substantive right to environment, at best, holds a tenuous position in the framework of international law. The current importance of a substantive right to environment far exceeds its prominence as a guide for state practice. Still, the modest form of the substantive right to environment exercises some degree of influence. Looking forward, it also leaves open the possibility of evolving into a definitive fixture of future international law.

1. THE PHEAPIMEX CONCESSION

   1. Summary

      In two separate contracts signed during 2000, the Cambodian Ministry of Agriculture, Forestry, and Fisheries (MAFF) granted an agricultural concession to Pheapimex Fuchan Cambodia Co., Ltd. (Pheapimex) over land totaling more than 300,000 hectares (the Pheapimex Concession). (6) Under their terms, the Royal Government of Cambodia committed this property to Pheapimex for agro-industrial development for a period of seventy years. (7)

      Later that year, on December 25, 2000, a public ceremony took place for the signing of an agreement between Pheapimex and the China Corporation of State Farms Group (China Corporation). The contract calls for the China Corporation to invest seventy million dollars for growing eucalyptus trees on the entire concession area and to construct a modern paper factory using the eucalyptus as raw material for its production. (8) The significance of the project for Cambodia was marked by the appearance of the Prime Minister, Hun Sen, at the event. (9)

      Pheapimex has acquired a notorious reputation in Cambodia through previous concessions. The Cambodian Forest Concession Review Report issued the company a "black rating," indicating "very poor performance, unacceptable in all respects" and requiring "urgent action" in response to its conduct. (10) This fact is all the more alarming considering that, prior to receiving its most current concession, Pheapimex already controlled 708,725 hectares in five Cambodian provinces. (11) With the latest addition, Pheapimex controls almost six percent of Cambodia's total surface area and almost ten percent of its forests. (12)

      Under the Pheapimex Concession, Pheapimex can begin operations on 5000 hectares in the first year of implementation, (13) including area in two communes, Ansa Chambak and Kbal Trach. (14) The Secretary of MAFF wrote to Pheapimex on March 27, 2000, authorizing the first year's operation and stating that "the land area does not involve the [local village people's] ownership." (15) The Secretary hedges that position later in the letter with the remark, "if any problems arise with local people ... then the company should cooperate with the government to discuss the problem." (16)

      The conclusions asserted by the Secretary of MAFF are based on a broad survey of the concession area within Pursat Province, including the land covered by the initial stage of the Pursat Concession Contract. The Minister of MAFF for Pursat Province compiled this research when the concession was proposed in 1997 and described his findings. (17) The majority of the concession area, including the 5000 hectares where it would begin, was classified as "damaged wood [land]," meaning it had little economic value. (18) Additionally, the provincial minister negated any potential of the area to mature into forestland worth preserving due to overexploitation by unauthorized parties and the government's inability to invest the capital and technology required to instill proper management. (19) Consequently, the provincial minister concluded that committing the land to agro-industry would ultimately benefit the region, offering new job opportunities, augmented consumer markets, and modern technology. (20) All of this would come "without any bad effect[s] on the citizen[s] o[f] that area." (21)

      The local inhabitants surrounding the first 5000 hectares of...