Mark Moorstein knew little about Cambodia before he got involved in a lawsuit on behalf of land owners there. But as it’s turning out, the suit could end up affecting most every country in Asia.
Moorstein is a land-use lawyer in Northern Virginia who, like many lawyers, was looking for some pro-bono, charitable work to do on the side.
“I kind of got hooked on the International Senior Lawyers Project out of New York,” a lawyers’ human rights advocacy group. “They’ve done a lot of really, really high-level stuff, very good stuff,” Moorstein said.
It happened, said Heather Eisenlord, a lawyer with the project, that “one of our volunteers living in Cambodia contacted us and asked us to come up with an international remedy for land-grabbing.” Soon, someone from the project called Moorstein, he said, “and asked me if I had any interest in taking a look at Cambodia from a land-use perspective.”
And so it began.
Across Asia, almost every country is guilty of baldly seizing its citizens’ land without significant compensation and then selling it to corporations or developers, leaving the owners homeless and often destitute.
In China, for example, local government officials have accrued almost $2 trillion in debt that isn’t on the national government’s books. So year after year, Xia Yeliang, an economics professor at Peking University, said in an interview, local mayors grab residents’ property, sell it to developers, use the money to make the minimum debt payments and then pocket the rest — leaving the standing debt for the next mayor, who is likely to behave the same way.
China’s illegal land seizures — usually with no compensation — are reported to have netted $482 billion in 2011 alone, the most recent year for which figures are available.
Similar problems exist in Laos, Vietnam, Myanmar and other Asian states. Arguably, however, Cambodia has the biggest problem. Over time, The Cambodia Daily newspaper reported recently, the government has seized almost 5 million acres — 10 percent of the nation’s entire land mass.
Diplomats, human rights groups and non-governmental organizations have been loudly complaining about this for decades. Finally in 2001, Cambodia enacted a Land Law intended to curb these seizures. But like so many measures passed to mollify the Western donors who keep the government afloat, the government immediately began ignoring its own law. Now, as one major Cambodian human rights organization put it: “In Phnom Penh and the 12 provinces” around it “land-grabbing has affected an estimated 400,000 Cambodians since 2003, helping to create a sizable underclass of landless villagers with no means for self-sustenance.”
The State Department, in its recently released annual Human Rights Report, described a typical example: “In January the TTY rubber company began clearing disputed land” in a Northeastern province “reportedly affecting an estimated 500 families. On January 18, approximately 400 villagers gathered to demand that the company stop clearing operations. The land dispute stemmed from an economic land concession granted by the government to the company. A clash ensued, and two company security guards shot at the villagers, injuring four individuals. The shooters fled the scene.”
Very often, if land-seizure victims don’t immediately vacate their property, they’re arrested on trespassing charges and thrown in jail.
As the clamor about this problem from the United Nations, human rights groups and foreign governments grew louder and more frequent, Prime Minister Hun Sen set up a new government agency whose stated purpose was to ensure that evictees were treated fairly. He named it the National Land Authority. But in an interview, Deputy Director Chum Bun Rong seemed to betray the agency’s true intent. “If a land concession is not organized properly,” he said, “it’s the role of an NGO or a journalist to make sure the victims are heard.”
That’s the problem Moorstein was taking on.
“I didn’t know a lot about Cambodia,” he acknowledged. “I’d read a few books. But I was always aware of Cambodia because I grew up during that period” when the United States bombed the country during the Vietnam War, and a short time later, the Khmer Rouge took over the state and killed 2 million people, 25 percent of the population.
Visiting the country for the first time last year, talking to NGOs and human rights workers, Moorstein said he finally got an idea.
“It just dawned on me that this case was a lot simpler than people really understood it to be because essentially what was happening was that if in fact this was an illegal taking, the crops still belonged to the villager — if we could establish that ownership really did reside in the hands of the villagers themselves. And wherever the crops went, so did title.”
It turned out that the land he focused on — two plots of about 25,000 acres each — is used to grow sugar cane, primarily. A wealthy and powerful Cambodian senator took possession of it after evicting residents from about 200 individual plots. Many of the evictees held identification cards the United Nations had given them when it set up a protectorate in Cambodia 20 years ago. Under the Land Law, that meant they held legal title to the property.
The harvested sugar cane, Moorstein said he learned, was processed first in Cambodia and then in Thailand until finally it wound up with Tate & Lyle Sugars, Britain’s largest sugar marketer. So with a partner law firm in Britain, Jones Day, Moortstein sued Tate & Lyle, claiming that “pursuant to Cambodian law, the claimants,” 200 villagers, “are the owners of the land” and “are entitled to the sugar cane.” Tate & Lyle, it adds, “knew that the villagers were the owners of the raw sugar or ought to have known.”
In Cambodia, human rights advocates and others are now calling it “blood sugar.” But the Cambodian government argued that the land “concessions,” as it calls the land seizures, are key to lifting rural citizens out of poverty by creating new companies. But diplomats and human rights groups say the policy has had just the opposite effect.
Once the suit was filed, Tate & Lyle seemed to panic. Very quickly, it sold its entire sugar unit to American Sugar Refining, better known here in the United States for its name-brand product: Domino Sugar. That company is now the defendant, and when contacted for comment, the company declined.
But last Thursday, the company did file its response to the suit. It said Tate & Lyle had no knowledge of any prior ownership of the land in question. The villagers had no claim to the sugar cane grown on the land, even if they did previously own it, because they had not paid for the seeds or production costs. And finally, the defendants claimed, “The English court cannot adjudicate or call into question” matters of Cambodian law dealing with land concessions.
Nonetheless, the British court had already accepted the suit. The case is moving forward, and that all by itself is already encouraging many people.
Ou Virak, president of the Cambodian Center for Human Rights, called the case “extremely important” for several reasons. First, it makes the point that Cambodia’s own courts are thoroughly corrupt and inept, meaning the problem cannot be properly settled there.
“Complaints were originally made to the Koh Kong provincial court in 2007 on this issue, and no action has been taken to date.”
And “even if the court does not succeed,” Ou said in an email interview, “such companies will be exposed to a greater level of scrutiny in the future. This in itself could potentially have an effect on the level of land grabs that we’re currently seeing.”
“We’d like to be sure that companies know that land acquired for production is acquired fairly,” Eisenlord said. “If this could be precedent-setting” for other states, “that would be wonderful.”
As Moorstein put it: “We think there’s enough here, even if the suit doesn’t survive, to get some notice on this problem.”
The suit “will bring enough attention so that other people and scholars can begin looking at the issue and see if it can survive either in Cambodia or in other countries.”
Joel Brinkley, a professor of journalism at Stanford University, is a Pulitzer Prize-winning former foreign correspondent for The New York Times.
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