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Abstract
In Cambodia, rural citizens embroiled in protracted land grabbing cases with the state and private companies are turning increasingly to international accountability mechanisms for resolution. This article applies the interlinked concepts of hybrid governance and legal pluralism to understand the prospects and limitations of ‘forum-shopping’ through appeals to international mechanisms for rural communities affected by land grabs. Drawing on interviews and using process tracing, it examines the outcomes of a mediation case filed with the International Finance Corporation’s Compliance Advisor/Ombudsman (CAO) involving indigenous groups and a Vietnamese rubber company in north-east Cambodia. It argues that while international accountability mechanisms yield platforms for dispossessed groups to assert claims, they also reify choices between entitlements and attainability without circumventing the problems associated with justice delivery under Cambodia’s authoritarian regime. Overall, this study highlights the interaction, competition and collaboration between distinct forms of regulatory authority exercised by national and transnational actors involved in land grabbing cases in Cambodia, demonstrating their role in ‘negotiating statehood’ by governing local claims to land.
Acknowledgements
Comments from Elisabeth Prügl Joanna Bourke-Martignoni, David Stuligross and three anonymous reviewers greatly improved this article. I would also like to thank my translator in Ratanakiri and the research participants who provided their valuable time to be interviewed for this study.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 By 2015, the IFC had already invested more than USD 16 million in Vietnamese Enterprise Investments Ltd. (VEIL), which in turn had invested in HAGL and its affiliates.
2 The term ‘complainants’ refers exclusively to the villages involved in the HAGL case. The NGOs involved in the case are mentioned separately.
3 Inclusive Development International, a US-based NGO that has been an active civil society ally in the HAGL case, launched the ‘Follow the Money’ initiative.
4 Some examples include: (1) a 2009 complaint to the World Bank’s Inspection Panel filed by communities in Phnom Penh’s Boeung Kak Lake district; (2) a 2013 complaint filed with the CAO by 59 households threatened with forced eviction due to a Phnom Penh airport expansion project that had received funding from the IFC; (3) a 2014 complaint filed with the Organisation for Economic Co-operation and Development, by 681 families, against a sugar plantation and refinery that received significant financing from Australia and New Zealand Bank Group Ltd.; and (4) a March 2018 class action lawsuit filed in Bangkok, Thailand, against Mitr Phol Sugar Corporation, by a group of 600 families in Oddar Meanchey.
5 The terms ‘legal pluralism’ and ‘normative pluralism’ are used interchangeably throughout this article.
6 Article 47 of the 2001 Land Law established that Cadastral Commissions have decision-making authority in disputes over untitled land, except inheritance and contractual disputes which are under the jurisdiction of courts. Disputes over titled land are under the jurisdiction of courts. Prakas No. 02 BRKN.03 issued on 26 November 2003 clarified the jurisdiction of courts and Cadastral Commissions in land disputes (Center for Advanced Study Citation2006, 8).
7 Building on Helmke and Levitsky’s (Citation2004) definitions, I use ‘formal’ and ‘informal’ to distinguish between political authority emanating from statutory, codified norms, and uncodified, patronage-based norms, respectively.
8 The term ‘sovereignty’ here refers to the practice of governing claims, not the legitimacy conferred by law to do so (Hansen and Stepputat, Citation2006).
9 In 2011, HAGL admitted that it was violating Cambodia’s national laws by not obtaining necessary governmental approval, permits or licences for its activities (Inclusive Development International et al. 2019, 10).
10 Several studies describe how, in practice, lower-level Cadastral Commissions charged with the responsibility of reconciliation over unregistered lands rarely refer cases to the national level (Center for Advanced Study Citation2006; Luco Citation2002). Cadastral Commissions, typically comprised of civil servants, have also been noted to be overcharged with cases and to frequently dismiss cases where powerful persons and private companies were involved in land disputes (see Center for Advanced Study Citation2006).
11 Drawing on Weberian sociology, political systems displaying such splits and overlaps between formal (‘rational-legal’) authority and informal (personal) forms of authority are dubbed ‘neopatrimonial states’ (Erdmann and Engel Citation2007). Neopatrimonialism is often used to describe the CPP’s authoritarian regime, where state institutions are enveloped in patron–client relations tied to the Prime Minister’s personal authority (Morgenbesser Citation2018; Un and So Citation2011).
12 The academic project is titled DEMETER (Droits et Egalité pour une Meilleure Economie de la Terre). For further information see https://r4d-demeter.info/
13 I cite research participants from this village generically as ‘key informants’ to maintain their anonymity. Some of these persons have been involved in the CAO mediation and/or are decision-makers in the village. Others were individuals who discussed their experiences of land loss to HAGL but were directly involved in the CAO mediation. These five key informants were not, to my knowledge, government officials or associated with the CPP at the time of the interview. I did not visit the other 11 villages involved in the complaint, as this was not the aim of my field trip.
14 Seventeen villages joined the initial complaint, but fact-finding missions conducted by the CAO in July 2015 determined that three of the villages were not directly impacted by HAGL’s activities and therefore they were excluded from the mediation process (CAO Citation2016a). Among the 14 villages within the HAGL concession, 11 were deemed already affected, while three (Ket, Nay and Kachout) were said to be ‘not yet affected’ by HAGL’s activities (CAO Citation2015a). An agreement was reached over Ket and Kachout (CAO Citation2016b), but not Nay village, so subsequent mediation documents refer to 12 villages as the complainants.
15 In this case, international mediators in fact did not possess the linguistic skills that the CAO deems necessary for hiring third-party facilitators (Interview, NGO, 13 June 2017). Furthermore, Bourdier (Citation2019) and Work (Citation2016) discuss how the use of Khmer language marginalised the role of indigenous elders at mediation meetings.
16 For instance, an expert involved in the HAGL case mentioned that provincial-level government officials cited these informal exchanges as evidence of compensation following a resolution process, and thus argued that complainants were not deserving of further remedy (Interview, NGO, 13 June 2017).
17 While my interlocuter in this discussion mentioned that they preferred a cash settlement, the official complaint demands both land and compensation for ‘losses of crops, structures, livestock and other chattels’ (Inclusive Development International, Equitable Cambodia, Cambodian Indigenous Youth Association, Indigenous Rights Active Members, and Highlander Association 2014, 15, para. 68; 2019, 17 para. 73).
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Saba Joshi
Saba Joshi is completing her doctoral studies in International Relations/Political Science at the Graduate Institute, Geneva. Her doctoral thesis examines the politics of land grabbing in contemporary Cambodia, with a focus on gender, resistance and state-formation. She is a member of DEMETER (Droits et Egalité pour une Meilleure Economie de la Terre), a multi-disciplinary academic research project funded by the Swiss National Science Foundation and Swiss Development Corporation, that examines the gendered impacts of land commercialization on food security and the right to food in Cambodia and Ghana.