Section Leader Helps Draft Environment and Natural Resources Code for Cambodia

Over a period of several years, the Ministry of Environment and Vishnu conducted a remarkably open process for the formulation of the new code. There was collaboration among ministries of the government, including the Ministry of Land Management, Urban Planning and Construction, which has jurisdiction over land use. The government and Vishnu invited experts from all over the world to participate in sub-technical working groups to advise the main Ministry on the process. These seven groups concentrated on topics such as land use, air and water pollution, special areas, and others, meeting by telephone and, as needed, in person.

The United Nations Development Programme contacted the American Bar Association (ABA) and invited it to participate in the working groups. Colonel Linda Murnane, former chair of the Judicial Division and past chair of its International Committee, served as a contact point for invitations sent to members of the ABA. I received an invitation and, having visited Cambodia and having given a few presentations in international fora, joined several of the working groups, including land use, urban planning, and intergovernmental coordination. To avoid the difficulty of conducting large teleconferences, Vishnu invited me to Cambodia to work on the land use sections of the code over a short-term stay, early in September 2016. As an example of the breadth of input in the process, a highly experienced wildlife management expert from the U.S. National Park Service also landed at the Vishnu offices when I did, and I consulted with an Australian land use attorney during my time in Phnom Penh.

After the horrors of the Khmer Rouge regime, Cambodia today presents a remarkable spectacle. Phnom Penh is booming with construction and tourism, not far away from the infamous “killing fields.” I found a restaurant advertising “the best corned beef in Phnom Penh.” During this stay, I met with government officials in the Ministry of Land Management and the Ministry of Environment, all of them highly competent and extremely interested in the code project. The Environment Ministry’s support drove the process within the Cambodian government. There appears to be a real commitment not only to finishing the code but to making it a high-quality effort.

Now in its 11th draft, the code is an amazing document. Unlike in the United States where various environmental and land use regimes have developed over time and in overlapping and frequently conflicting ways, this code provides a framework for almost all aspects of land use and environmental regulation. One comprehensive document contains provisions regarding air pollution, water pollution, solid waste management, regulation of protected areas, protections from resource extraction by logging or mining, protection of indigenous people through enhanced land tenures, coastal zone management, and land use planning, including urban green spaces, in cities and smaller governments. It establishes a framework and calls for future implementation through regulations known as sub-decrees. For example, the precise project size that would trigger more extensive environmental reviews will be determined later by regulation.

The code is based on a number of core principles. These include polluter pays, precautionary principle, evidence-based decision-making, and many others. It provides for extensive environmental reviews of health and climate change effects and cumulative impacts. It also provides for strategic studies for major governmental projects and policies. The new code has procedural provisions governing notice to the public and public access to planning and environmental documents, and it confirms that environmental review must precede permitting. There are also requirements for dispute resolution at the local level, with appeals potentially all the way up to the central government.

The State and Local Government Law Section has taken an active interest in the code. In September 2017, we conducted a webinar with two advisors in the Vishnu Law Group, Brian Rohan and Megan Quenzer, who brought the approximately 100 participants in the webinar up to date on the current status of the code. The code is slowly moving through the enactment process. Actual adoption appears to be on the horizon, although it is not certain. Most government ministries appear still to be behind the code, although it must be noted that the scope of democracy in Cambodia has become more limited and the extent of actual implementation of the public access and public input provisions still is open to question. The enactment process, as challenging as it may be, will be followed by a perhaps even more difficult period of implementation. Cambodia has never before had this level of regulation. Megan and Brian advised us during the webinar of at least these challenges facing the actual carrying out of the code after adoption:

• Massive training and capacity building needs in the courts and in agencies; and
• The need to link to ongoing decentralization efforts, and how to balance the center and regions.

To help, they pointed to pilot implementation of certain provisions currently underway, and that nongovernment actors could compel implementation in specific instances.

In all likelihood, implementation of the code will take time. Conceptually it is a very advanced and comprehensive approach to environmental and land use regulation that is worth studying in its own right as the world faces broad sustainability challenges during the 21st century. It could very well over the years become an effective force in Cambodia, and implementation could point toward better approaches to land use and environmental controls throughout the world.