Letter

We are contacting you on behalf of the non-governmental organizations in Cambodia which have been monitoring the social and economical impacts of the Asian Development Bank (ADB) component of the Phnom Penh to Ho Chi Minh City Highway Improvement Project. We wish to express our concerns to you concerning lessons learned from monitoring the ADB segment of this project in the hopes that the problems, resettlement disputes and subsequent impoverishment of the local communities and households located on the Project will not be repeated by the segment of the Project to be funded by the Japanese Government. We would be most appreciative if after your review of this entire report, the Japanese Government will do everything possible to avoid or prevent similar problems in the resettlement activities associated with your segment of the National Road 1 /Highway 1 Project (these terms are used interchangeably throughout this letter).

We would like to respectfully present our recommendations for your consideration based upon our previous experience with the ADB segment of the National 1 Improvement project and then provide the background information and analysis upon which our recommendations are based.

LAC and the NGO Forum which have been involved with the ADB portion of National Road 1 and like-minded NGOs strongly believe that to ensure a more successful project on the first segment of National Road 1, consultation with the affected local communities regarding their informed consent to the proposed project and appropriate compensation issues must take place first and foremost. In that regard, we respectfully request that based on our past experience with the ADB portion of National Road 1, the Japanese Government undertake the following:

The ADB component of the Highway One Project, from the Vietnamese border at Bavet to Neak Loeung, was approved in 1998, and consists of improvement to 105.5km of Highway One, resulting in the relocation of 5, 920 people (1, 184 households) on 210 hectares which fall in the right of way (ROW) of the 30 meter corridor declared by the Cambodian Government as state land. Involuntary resettlement started in February 2000 following the commencement of construction of the project beginning in January 2000. Construction is currently scheduled to be completed by December 31, 2003.

In February 2002, Legal Aid of Cambodia (LAC) in collaboration with the NGO Forum in Cambodia undertook a survey on a total of ninety-nine families located in Prey Veng Province. This survey was initiated at the request of the ninety-nine families to assist them in representation of their rights and interests. Through the results of this survey, we were able to identify serious problems faced by the local communities as a result of the highway project. For Example, many affected families had accumulated debt from resettlement, including costs of new houses, land, loss of income and social disruption. The compensation most of the families received was not sufficient to cover their losses and some families never received any compensation.

The findings from the above-referenced survey were submitted to the Royal Government of Cambodia (RGC) and the ADB to address their concern. After meeting with relevant ADB staff in Manila in March 2002, ADB suggested that the RGC compare the results of the LAC survey with the results from the Detailed Measurement Survey (DMS) prepared by the Inter-Ministerial Resettlement Committee (IRC) of Cambodia. A comparative study was made by LAC and submitted to IRC and ADB. However, to date, neither IRC nor ADB have responded publicly to this comparative study. LAC and NGO Forum continued their survey with the 99 affected families and facilitated visits for representatives of the ADB Resettlement program with these families, at which time the ADB representatives informed the families of the ADB policy regarding rights/compensation to projected affected people.

Based on the results of the work of local NGOs and communities, the ADB revised their Resettlement Implementation Plan (RIP) in order to provide a second round of compensation to affected communities in accordance with ADB's guidelines and policies. However, this revised RIP has not yet been disclosed to the public. Some of the ninety-nine families have already received compensation, such as resettlement land; however, we feel that the compensation is still inadequate to recover from the damages caused by the project. Furthermore, most of the resettlement disputes have not yet been settled and communities still suffer from debts and lack of support. ADB has agreed to undertake a new survey of the remaining 1,000 affected families from Prey Veng to the border with the assistance of LAC.

An analysis and description of the problems encountered in the ADB component of the Highway (National Road) 1 project based on a survey of ninety-nine families in Prey Veng is as follows:

In 1999, Prime Minister Hun Sen declared that the "Right of Way" (ROW) would consist of thirty meters from the axis of the road, except "in town" along Highway 1 (see Declaration in Eliminating Solution on Anarchy of Land Occupation, Declaration No. 6, and September 27, 1999). Thus, 1,184 households (5,920 people) living on 210 hectares of land were relocated as a result of this project. Although the number of displacement could have been greatly minimized if the ROW was not applied and the land was taken for only the amount actually used for the road (10-15 m) and a few meters on the side to mitigate the impact of traffic, the government insisted on the ROW and the ADB agreed to reserve the 60 meters of land for future expansion of the road. [Top]

The RGC has accepted full responsibility for financing the cost of relocation, including land acquisition, resettlement and compensation for people affected by the project. RGC's Inter-ministerial Resettlement Committee (IRC) is the agency in charge of resettlement issues and a sub-committee was created in the IRC to address National Road 1.

The primary legal basis for compensation is the Loan Agreement between ADB and the RGC covering work on National Road 1 (hereinafter referred to as "LA") and an ADB memo entitled "Involuntary Resettlement" ("MIR") dated August of 1995, which schedule 6.2 of the LA requires that the memo be followed. It is also necessary to discuss the Cambodian Resettlement Implementation Plan (CRIP), dated October of 1999, which the same schedule of the LA requires to be followed, and certain Cambodian laws. The LA is the fundamental agreement between the ADB and the RGC regarding the road work, from which all requirements flow. The MIR was in existence at the time the LA was signed and incorporated therein by reference. The CRIP was created after the signing of the LA and was not made the subject of a separate, independent contract but rather exists as a type of annex to the LA.

In regard to compensation for the land given up for highway use, both the LA and MIR state "Project affected people shall not be required to have formal legal title to the land used by them in order to be eligible for compensation." The LA further states that, "In case of discrepancies between the Borrower's procedures and the Bank's requirements, the Bank's requirements shall apply." Furthermore, the MIR states that displaced people shall receive assistance, "so that they would be at least as well-off as they would have been in the absence of the project…:"Thus, the Cambodian government is obligated to not only compensate for land taken from the project affected people but also to provide adequate compensation and support for other asset loss and social and economic disruption caused by this project.

However, the RGC takes the position that residents within the right of way are not entitled to compensation for land. IRC has stated that full compensation will not be provided to people whose houses are on the side of the road because this area is state property, although those people are still eligible to receive a "contribution" towards the cost of removing their houses and constructing new ones, and those who do not have a backyard behind their present location or other land for sustaining their livelihood are eligible to receive additional assistance. (Ministry of Economy and Finance (2000) Inter-ministerial Resettlement Committee, "Booklet for Resettlement Implementation Plan.") In this regard, the RGC has failed to fulfill the standard as provided by the ADB.

It is important to note that it is not unusual for the RGC to make agreements that provide for greater rights or benefits for certain of its citizens than for the general population. For example, the government signed a textile trade agreement with the U.S. government that requires the Cambodian Government to follow International Labor Organization conventions in the garment industry that provide greater benefits to garment workers than general Cambodian law provides to other kinds of workers. [Top]

As there is no resettlement law or clear provisions governing the rights of the people in involuntary resettlement in Cambodia, people affected by the project have no law to which they can refer. Thus, compensation issues, including the type, amount, timing of compensation, as well as participation of the affect people in decision making is not guaranteed by any Cambodian law, and was decided based on the sole discretion of the IRC. Likewise, the RIP was prepared single-handedly by the IRC, based on the Detailed Measurement Survey (DMS) and Social Survey also conducted by the IRC. More specific analysis into the resettlement problems from assessment to delivery of redress will be described below.

While all 1,184 households (5,920 people) living on the 210 hectares of land were relocated, most of the families surveyed did not receive any compensation for the land loss. Those who have lost all of their land received US $40.00 which is much lower than the market rate and insufficient to purchase other land. It should be noted that, although most of them are without legal title to the land upon which they lived, these people had paid for the land and informal records acknowledged by the commune chief are available. Other types of compensation, including replacement costs for houses; maximum US $40 per well; and US $25 for families with female or disabled heads of households were provided; however, they hardly cover the extensive damages and expenses that affected communities had to bear. Cost to secure relocation land, as well as loss of income, job, crops, trees, soil borrowed from farmland for construction, social disruption, moving fees, etc., had to be covered by the affected people without any assistance from the government.

Furthermore, many affected people have not received even the limited compensation provided in the inadequate RIP, and unfair disbursement of compensation has been documented. For example, most families surveyed have only received partial compensation for their houses because the local authority decided that the house materials, if relatively in good condition could be reused or, alternatively, the house materials if very old were of no value. Some families reported to have paid bribes to receive compensation and some households received more compensation than others even though their houses were of the same size.

Although relocation land was provided to the Steung Slot village in the second-round of compensation, the relocation site lacked access to facilities including markets, schools, employment, or pagodas. Villagers are also fearful of flooding of the Mekong River, as the land that was reclaimed is still "low-lying" land and subject to flooding. The resettled village lacks adequate sanitation and employment possibilities. For example, many villagers previously worked at roadside kiosks along the highway but now have lost their kiosks and have no alternative employment possibilities.

The end result has been the further improvishment of vulnerable segments of society—project affected people have lost their homes, land and jobs without receiving adequate compensation. Many of these people became indebted as they borrowed money to purchase land as well as to rebuild their homes. It should be noted that the subcommittee of the IRC indicated that they were fully aware that many families were dissatisfied with the amount of compensation they received. The sub-committee indicated that they thought compensation should only be a "contribution" to the total loss incurred and was not intended to cover all costs. [Top]

A majority of the affected communities were neither informed about the project or their rights, nor were they consulted in the decision-making about the project or compensation. Most respondents in the survey indicated that the sub-committee members measured their homes in square meters and without giving further explanation requested house owners to fingerprint a document.[1] The sub-committee members later returned to ask homeowners to sign a document, which certified their agreement to move their homes and receive the government's compensation (contribution).

Furthermore, a majority of the ninety-nine families surveyed stated that they had not clearly understood the government policy regarding compensation, referred to as a "contribution" to the cost of relocation, and they also did not know exactly what distance in meters from the road axis the government would require them to move. Most of the families surveyed felt that they had received an unclear explanation from the sub-committee and local authorities. The areas of the ROW had not been clearly marked and none of the families were able to explain the formula used by the government to determine the "contribution" they were to receive.

Finally, a majority of the families surveyed reported that they agreed to receive limited contribution, stating that this was the government's policy and they had no choice in the matter. Most families understood that the amount they were offered was not adequate, but feared that if they refused, they would receive nothing. Several families informed the NGOs that when they failed to remove their houses by the dates set by the government for reasons including the medical condition of the residents, their homes were towed away by a truck.[2] Further, the owner of the house was required to pay a fee for removal of his/her house. When families in Neak Loeung refused to agree to the resettlement, the government placed barricades in front of their houses and shops.

NGOs were not invited into the process, given information or provided responses to queries in any meaningful manner in most instances. The RGC has refused to share information with concerned NGOs in many cases. This has been consistent with the utter lack of transparency in development and resettlement projects throughout Cambodia.

Despite the fact that there is no Cambodian Resettlement law and that the RIP was contradictory to other ADB policies and LA, ADB did not sufficiently monitor the RGC to ensure that the ADB standard was maintained and that people affected by this project would not suffer because of the project's impact on their lives. Upon NGO's request to address the concerns of the local communities, the ADB made several attempts to mitigate the harm but a satisfactory solution has not yet been achieved. For example, US $300 in-kind compensation was to be provided to each family by August 2003; however, payment of these funds has been slowed by the Cambodian government. Recognizing the inability of the government to fulfill ADB's standards, ADB revised the RIP in April, 2003. The revised version of the RIP has not been disclosed to the public.

We thank you in advance for protecting and ensuring the rights of Cambodian “Project Affected People”; their right to be informed, their rights to voice their concerns, to be heard by the government, and to not suffer needlessly as a result of this project. We believe that the Japanese Government and the JICA will fully respect the people we represent and have their interests at heart, as well as the overall objective of economic development, which we also fully support. We look forward to your response. [Top]

[1] A form of authenticating documents used by illiterate people.

[2] In one case a woman who had just given birth was forced to move before she was strong enough or fully recuperated from the delivery.