|
|
| Faculty of Law | National University of Singapore | |
|
APCEL Report : Cambodia Back to : Index : ASEAN Project : Cambodia
PRELIMINARY ASSESSMENT
OF The Kingdom of Cambodia is located in mainland Southeast Asia bordering the Gulf of Thailand, between Thailand and Vietnam. It occupies a total land area of 176,520 square kilometres, and has a coastline of 443 kilometres in length. The population of 11,163,861 (July 1997 estimate) is predominantly found in the rural areas, and are largely engaged in agriculture. Cambodia is administratively divided into 22 khett (provinces) and 1 krong (municipality). The largest urban areas are the national capital Phnom Penh and the port of Sihanoukville. Cambodia is relatively undeveloped as a result of decades of civil war. A United Nations-supervised election was held in 1993, following which a coalition democratic government was established with two prime ministers. However, in recent months, political turmoil has erupted again as a result of the stand-off between the two Prime Ministers and the impending elections in July 1998. Despite its political instability, Cambodia shows signs of economic revival as it slowly adapts to market policies. Strong growth, starting from a low base, has been evidenced from 1991 to 1996. The gross domestic product per capita stands at US$710 (1996 estimate). The main economic activities are agriculture (rice being the principal crop), rice milling, logging and mining. Major foreign exchange earners include timber and wood products, minerals and rubber. Tourism has emerged as an important sector, with foreign visitors heading primarily for the ruins of Angkor. Cambodia is endowed with abundant natural resources. The logging of hardwood and the mining of precious gems constitute important economic activities. There is also great potential for generating hydroelectricity from its river systems. In addition, exploration for gas and oil has begun in the Gulf of Thailand. Due to the ravages of civil war, Cambodia’s physical and institutional infrastructure for tackling environmental problems remains in serious disrepair. The major environmental issues relate to the over-exploitation of natural resources such as timber and fish. In many parts of the country, war and logging efforts have denuded large tracts of forest areas, causing serious soil erosion, flooding and loss of biological diversity. Fish catch at the Great Lake (Tonle Sap) lake and riverine system has dwindled in recent years due to over-harvesting and siltation. Pollution arising from human wastes presents a growing problem in the urban areas. Agricultural productivity has been hampered by poor soil conditions, inadequate irrigation, lack of fertilisers, poor harvesting techniques and dramatic seasonal variations in rainfall which result in alternating periods of flood and drought. As a result, rice yields are amongst the lowest in Asia.
Cambodia is a constitutional monarchy with a government established through power-sharing amongst rival factions. In the early 1990s, an internationally-supervised election was conducted and a new Constitution promulgated. The Constitution established the National Assembly as the legislative branch, the Royal Government as the executive branch, and the Judiciary. The Head of State is the King, and the leaders of the government are two co-Prime Ministers who oversee 20 Ministries and 5 State Secretariats. The two main political parties, FUNCINPEC and the Cambodia People’s Party (CPP), have worked (at times uneasily) towards cooperation on rehabilitation and reconstruction projects.
2.2 Environmental Institutions Overall management of the environment lies with the Ministry of Environment (MOE), which was created in 1993. The MOE has wide responsibilities, which are spelled out in the Law on Environmental Protection and Natural Resources Management. At the provincial and city levels, there are corresponding Provincial/City Environment Departments. These local departments have the responsibility of enforcing the environmental legislation coming under the competence of the MOE. However, the daily operational functions of these departments would normally come under the direct control of the provincial/city authorities. Many aspects relating to the roles and responsibilities of the provincial/city departments have yet to be clearly laid out. In the first place, many of the decrees and sub-decrees required to implement Cambodia’s environmental framework legislation have yet to be enacted. There is thus a serious lack of guidance to provincial authorities as to what their environmental priorities should be. In addition, the absence of specific regulations on effluent standards etc. makes it difficult to expect any meaningful enforcement action in the provinces. There is also the recurring problem of inadequate finances and trained staff for effective environmental management efforts, both at the central and provincial levels. In addition to the MOE, several other government agencies maintain responsibility over economic sectors with potential impact upon the environment. The following is a list of administrative competence in relation to issues touching on the environment:
Environmental management in general Ministry of Agriculture, Forestry and Fisheries
Ministry of Public Works and Transportation
Ministry of Industry, Mines and Energy
Council for the Development of Cambodia
National Committee for Land Use and Urbanisation
3. Non-Governmental Organisations The environmental NGO movement consists mainly of loose groupings of concerned citizens or villagers. Well-organised or formal environmental NGOs do not yet exist in Cambodia. The only other non-governmental agencies which are active in environmental issues are the international organisations such as the UNDP, UNESCO, IUCN, as well as aid agencies from several developed countries. Many of these international organisations and agencies have developed capacity-building programmes to assist the Ministry of Environment. Most notably, the UNDP, UNESCO and the IUCN have helped form a working group on environmental law which has formulated legislation and decrees on protected areas, and a draft sub-decree on environmental impact assessments.
4. ENVIRONMENTAL LEGISLATION IN CAMBODIA
The hierarchy of legislation in Cambodia is as follows:
4.2 Framework Laws and Provisions Article 59 of the Cambodian Constitution provides for the protection of the environment. It states as follows:The State shall protect the environment and balance of abundant natural resources and establish a precise plan of management of land, water, air, wind, geology, ecologic (sic) system, mines, energy, petrol and gas, rocks and sand, gems, forests and forestrial (sic) products, wildlife, fish and aquatic resources. The development of environmental legislation is one of the Cambodian Government's national priorities. In November 1996, the Cambodian National Assembly passed the Law on Environmental Protection and Natural Resource Management (the framework Law). The Law was prepared with technical and financial assistance from the United Nations Development Programme (UNDP), the United Nations Environment Programme (UNEP) and the United States Agency for International Development (USAID). The objectives of the framework Law are to protect environmental quality through the prevention, reduction and control of pollution, to establish an Environmental Impact Assessment (EIA) system, to ensure sustainable use of natural resources, to encourage public participation and to suppress acts which are harmful to the environment. The framework Law anticipates the formulation of national and regional environmental plans by the Ministry of Environment, in collaboration with the other ministries. A National Environment Plan will identify the key environmental issues facing the country and recommend broad policies to redress these. The Regional Environmental Plans are to be consistent with the National Environment Plan, and shall address major environmental issues at the regional level. The framework Law calls for EIAs to be conducted for every private or public project, to be reviewed by the Ministry of Environment before submission to the Government for a final decision. All proposed, as well as existing activities, are to be covered under this requirement. Sub-decrees are anticipated to provide for the finer details of the system, such as the specific procedures to be followed and the nature and size of projects which are required to submit EIAs. A draft sub-decree is currently being prepared to provide for detailed EIA requirements. In relation to foreign investment projects, the Ministry of Environment will review the EIAs and submit its recommendations to the "competent organisation" concerned within the period determined by the Law on Investments. Articles 8 to 11 (Chapter 4) of the framework Law prescribe sustainable use of natural resources, and anticipates the establishment of natural resource protected areas by decrees. Natural resource management shall be a collaborative effort between the Ministry of Environment (MOE) and the other sectoral ministries. In particular, the relevant ministries must consult the MOE before they issue any decisions or undertake activities related to the conservation, development, management or use of natural resources. Article 11 provides that the MOE shall "immediately inform" concerned ministries whenever it feels that natural resources are not being conserved, developed, managed or used in a rational and sustainable manner. However, there is no elaboration on what is to happen after this is done - presumably, the MOE and the ministries concerned will have to cooperate to find a mutually-acceptable solution. Article 12 (Chapter 5) provides that the MOE shall collaborate with other ministries to develop an environmental inventory which details the sources, types and quantities of all pollutants, wastes, toxic substances and noise disturbances which may exist in Cambodia. Article 13 provides that the prevention, reduction and control of all these sources of pollution will then be regulated by sub-decree, following the MOE’s initiative. Pursuant to Article 26 (found under Chapter 10 - Interim Provisions), the government may extend the period for existing activities to comply with the sub-decrees promulgated under Article 13. Articles 14 provides that enforcement activities, in the form of monitoring, receiving reports and keeping records shall again be the task of the MOE in collaboration with the other ministries. Implementing regulations in the form of sub-decrees are expected to be passed pursuant to Article 14. Article 15 establishes an inspection mechanism whereby the MOE, in collaboration with concerned ministries, may enter and conduct inspections on any premises where there is an activity causing harm to the environment. The inspectors from the MOE and the collaborating ministry shall report criminal violations for legal action to be taken. Again, specific details on this will be legislated in the form of sub-decrees. In relation to public participation, Articles 16 to 18 (Chapter 7) provide for the MOE to supply information upon public requests and to encourage public participation in environmental protection and natural resource management. An Environment Endowment Fund is envisaged under Article 19, to be administered by the MOE in accordance with the Finance Law for environmental protection and natural resource conservation activities. The Fund will receive contributions from various sources, including the government and international organisations and aid agencies. Finally, in relation to penalties and sanctions, Article 20 of the framework Law provides that in response to violations of the Article 14 requirements, the MOE shall issue a written order requiring (i) correction of the wrongful conduct immediately or within a specified period; (ii) cessation of activities until the violation is corrected or (iii) an immediate clean-up. Pursuant to Article 21, any person who refuses to allow an inspection required under Article 15 shall be fined between 500,000 to 1 million riel (US$140 to US$280). Repeat offenders shall be fined between 1 million to 5 million riel (US$280 to US$1,400), or imprisoned from 1 to 3 months, or both. Violators who fail to adhere to the orders issued under Article 20 are liable to be fined between 1 million to 10 million riel (US$280 to US$2,800). Repeat offenders shall be fined between 21 million to 30 million riel (US$5,880 to US$8,400), or imprisoned from 1 month to 1 year, or both. Any violation which causes danger to human lives, private property, public property, or to the environment shall attract a fine from 10 million to 50 million riel (US$2,800 to US$14,000). The violator concerned shall also be responsible for compensation and for redressing the damage caused. For violations which cause "serious disaster to society", the court may consider the gravity of the offence in order to pronounce upon the penalty. Article 24 provides that any MOE official who is negligent, who fails to comply with the MOE’s regulations or who conspires with a violator in the commission of a violation, shall be subject to "administrative sanctions" or "face court prosecution". The provisions in Articles 20 and 21 also apply to violations of any sub-decrees or regulations enacted pursuant to the framework Law.
4.3 The National Environmental Action Plan (NEAP) The Cambodian Government, with the technical and financial assistance of the World Bank, has formulated a National Environmental Action Plan (NEAP) that will guide the implementation of environmental management devices. One of the primary objectives of the NEAP is the integration of environmental considerations into developmental and economic decision-making, particularly the investment planning processes at both national and local levels. The drafting of the NEAP began with a workshop in early 1996 to discuss Cambodia’s environmental issues. This development took place simultaneously with the drafting and deliberation of the framework Law. The workshop involved representatives from various government and non-government agencies as well as international agencies like the World Bank, UNDP and IUCN. Pursuant to the discussions, six major environmental concerns were identified for development into an NEAP action programme. These were:
Apart from the Ministry of the Environment, other sectoral ministries are also involved in legislating new laws and regulations to govern their respective sectors. The Ministry of Industry, Mines and Energy is in the process of coordinating the enactment of a Draft Mining Law. A Draft Law on Petroleum Exploration and Development (which requires EIAs of petroleum exploration activities) is also being formulated and was presented to the Ministry of Industry, Mines and Energy in 1996. However, no action has to date been taken by the Ministry. The Ministry of Agriculture, Forestry and Fisheries has prepared a Draft Forestry Law to control commercial logging activities. The draft law has been approved by the Council of Ministers and is awaiting enactment. The Council for the Development of Cambodia ("CDC") is an agency tasked with promoting public sector investment in the reconstruction of Cambodia. It is akin to a foreign investment promotion authority, and provides advice to potential investors. The CDC also evaluates the applications for proposed public sector investments and projects. Even though it has no specific jurisdiction to deal with environmental issues, the CDC in practice, often requires the project proponent to describe any potential environmental impact arising from his project.
5. PROBLEMS IN IMPLEMENTING ENVIRONMENTAL LEGISLATION
It is to be expected that Cambodia, given its fledgling government, experiences severe difficulties with its administrative institutions. In many situations, various government ministries and agencies maintain control over the different sectors of the economy, which are in turn regulated by different sets of laws. Thus, as in many developing countries, there is a lack of coordination amongst the government agencies whose activities impact upon the environment. In some cases, e.g. the implementation of obligations under environmental conventions, thought has not even been given to the matter, and government officials are often at a loss as to which ministry’s jurisdiction the issue comes under. The recurring political instability and priorities of internal security have meant that little attention is paid to the environment. The problem of lack of coordination is exacerbated in Cambodia by the power-sharing arrangement in the government - the ministries are thus headed by officials from various political parties and groupings, some of whom are antagonistic to each other. The problem is even more acute in the provinces, some of which are very remote and inaccessible from the capital. Provincial authorities customarily maintain control over local activities, and are only beginning to receive administrative guidance from central authorities. Increasingly, government agencies and local governments which experience problems with conflicting or overlapping areas of administration have formed committees to discuss these issues. This method of resolution, however, has no formal process and is done purely by custom. It is foreseen that the Ministry of Environment will play an increasingly important role in coordinating institutional action in relation to the environment. However, the Ministry remains plagued by problems of inadequate environmental infrastructure, including a severe shortage in manpower and financial resources.
5.2 Inadequacies in Legislation Many of the institutional problems relating to overlap in jurisdiction have not been resolved by the existing legislative framework. Many of the sectoral laws prescribe authority for the respective ministries without providing a coherent framework for inter-ministerial cooperation. The new framework Law relating to environmental protection recognises this problem, and is littered with references to the need for consultation between the Ministry of Environment and other concerned Ministries. Whether this in fact occurs in practice is difficult to gauge, as the respective ministries are only beginning to identify and work out their respective spheres of competence. In any case, the framework Law does not go beyond general recommendations for cross-sectoral cooperation - no specific guidelines or regulations exist, for instance, to provide for how exactly consultation and coordination are to be conducted. This is related to the larger problem at hand, which is the exceeding generality of the framework Law. The Law is extremely broad and diffused in its language, and does not prescribe adequate guidance in many instances. It recognises this problem, and anticipates the enactment of subsequent implementing regulations to provide more detailed regulation of environmental matters. Until that is achieved, no specific regulations or standards exist as yet to govern sectors of the environment such as water quality, air quality, waste management, pollution control and natural resource exploitation and conservation. What exists at present is a patchwork system of protection that is drawn from French colonial legislation, provisions in contractual agreements between the state and commercial interests, and, in some cases, decree laws issued by the previous government. In sum, the areas in which more detailed legislation is needed are as follows:
5.3 Human Resource and Financial Constraints Cambodia severely lacks the human resource capacity to develop and to implement environmental legislation. Thousands of skilled Cambodian scientists, lawyers and other technical experts were killed during the years of civil war. The country remains one of the poorest in the world, with its economy still largely crippled by the war. Cambodia thus faces a monumental challenge in training its citizens to perform the tasks of national reconstruction. Needless to say, there is a need for more financial and technical assistance from international organisations, foreign countries and aid agencies to establish environmental infrastructure and to train lawyers and technical experts to effectively implement the country’s environmental management policies.
The devastation of the war, coupled with the recurring political instability, have left Cambodia with a huge challenge in achieving national reconstruction. It is therefore hardly surprising that environmental management does not yet exist to an effective and comprehensive extent. Substantial capacity-building efforts are needed to stave off the existing natural resource depletion problems, as well as to anticipate the problems posed by industrial pollution as the country embarks to promote foreign investment. External assistance is clearly needed from international organisations and foreign countries to train the Cambodian people to effectively implement environmental management policies. The establishment of effective institutions and the training of skilled personnel to staff these will continue to be major environmental challenges in the years to come.
SELECTION OF MAJOR ENVIRONMENTAL LAWS List of Major Environmental Legislation
List of Draft Legislation relating to the Environment
|
|
||||||||||||
|
About
Us | Annual Reports | Workshops | ASEAN Project Copyright © 2002. Faculty
of Law. All rights reserved. |
 |