Katherine Cahn and Katherine Steinhardt THAILAND S NAM THEUN 2 TRANSMISSION LINE CASE STUDY: THE SANGSAWAT FAMILY

Transcription

1 Katherine Cahn and Katherine Steinhardt THAILAND S NAM THEUN 2 TRANSMISSION LINE CASE STUDY: THE SANGSAWAT FAMILY

2 Executive Summary As Thailand s economy develops, the country s growing network of industries places an increasing demand on energy resources. With no cap on this demand in sight, the Electricity Generating Authority of Thailand (EGAT) looks to import power from hydroelectric dams in Laos to supplement local capacity. 1 The Asian Development Bank (ADB), World Bank and other private financiers funded one such dam, Nam Theun 2, in The construction of the transmission line required to transport the energy into and throughout Thailand affects 1,891 people. The total compensation that EGAT provided to the affected persons was Bt 205,641, Chiang Khwan district lies at the end of a 500 kilovolt (kv) transmission line that stretches from Nam Theun 2 dam to Roi-Et province. 4 In 2008, the Sangsawat family, who lives in Don Daeng subdistrict Moo 5, contacted Thailand s National Human Rights Commission regarding unfair processes employed in the construction of power lines for the Nam Theun 2 project. 5 Of the 115 households in the village, 10 were affected by the project. Due to its close proximity to the transmission line, project construction required EGAT to raze the Sangsawats home. The remaining 9 families found their rice fields, but not their homes, located along the transmission line s path. They accepted monetary compensation from EGAT to recompense for lost farm land. The Sangsawat family, however, did not want to leave their ancestral land and refused compensation. 6 Yet, the Electricity Generating Authority of Thailand Act B.E. 2511, which established EGAT as a state enterprise in 1969, provided EGAT with legislation entitling it to destroy the family s house. 7 EGAT razed the Sangsawat home in December Upon further investigation by the Council of International Educational Exchange, it was concluded that this house was the only residence in Roi-Et province razed by EGAT for the Nam Theun 2 project. Background In 2000, the Electricity Generating Authority of Thailand (EGAT) surveyed the land of Paiboon Sangsawat, 63. The surveyor informed the Sangsawat family about the Nam Theun 2 project and the impending construction of a 500 kv transmission line stretching from Mukdahan to Roi-Et. The family s 9 rai of land, on which they had lived for 34 years, was located in Roi-Et under the proposed pathway of the power lines. Afraid of the effects line construction might have on their land, the Sangsawat family requested that EGAT change the path of the transmission line. According to the family, EGAT said moving the line was no longer possible. In 2005, the Sangsawats said they received a letter from EGAT explaining that project guidelines prohibit any structure higher than 3 meters within a 30- meter radius of the power line. Because of the proximity of the Sangsawats home to the line, EGAT planned to raze the family s house. 9 The letter stated the Sangsawat family could claim compensation at the District Office and had 15 days to appeal the amount of the allotted The Sangsawat family in front of the transmission line. 2

3 compensation. 10 In an effort to keep their land, for which they currently possess a land title, the family refused the offer of Bt348, for compensation. Janpen, the 31-year-old daughter of Paiboon Sangsawat, explained the compensation was not going to make us proud. It s the love for the land that we value, the heritage that was passed along generations from our ancestors. 12 EGAT officials continued to frequent the family s land, pressuring them to accept a compensation package. In 2007, two years after the initial offer, EGAT presented the family Bt830,000, but did not provide formal paperwork detailing the compensation. When the family again refused EGAT s offer, Janpen said police visited her home and informed the Sangsawat family that EGAT could offer up to Bt20,000,000. Authorities continued to entice the family with money, relocation assistance and an improved way of life. The family responded that if EGAT made a concrete resettlement plan available they would reconsider the offer, but officials replied that such compensation was not included in the project s budget. It was back and forth the whole time, Janpen explains. Every time someone came to talk to us it was a different official, and we received different answers from each person. No one took responsibility for another official s response. They tried to trick us. 12 On 10 June 2008, Paiboon said that local police took him to the police station where he claims EGAT officials threatened him. Paiboon went into shock and fainted. Later that day, upon the request of Janpen, authorities sent a public health official to the family s home to care for P Janpen s 58-year-old mother, Thongdaeng, whose high blood pressure and heart condition were exacerbated by the morning s events. Rather than providing Thongdaeng with proper care, the officer interrogated her about the family s involvement with EGAT and asked why the family had not accepted the compensation. When Thongdaeng told the officer she planned to submit a complaint in Bangkok about the officer s conduct she claims the officer mocked her, replying that the family did not have the money to do so. Meh began screaming and crying really loud, Janpen remembers, and the officer said keep screaming until you die. 13 One week later, on 17 June 2008, police informed the Sangsawat family that project construction would begin. Having received no response to complaints sent earlier that year to the governor and the Roi-Et Provincial Office, the family contacted the National Human Rights Commission (NHRC). The NRHC connected the family with a group of Udon Thani residents who had also been affected by power lines. The family continued to oppose construction of the project until December. On 15 December 2008, while individuals from Udon Thani visited the family s home, police arrived but retreated upon seeing the visitors. Police and EGAT returned on the morning of 17 December When the family refused to leave their land, officers gave orders to cut down the family s fruit and eucalyptus trees and to remove their home. Janpen and her friends wrapped their bodies around the family s trees to protect them, but to no avail. That day, authorities removed all of the family s trees. On 19 December 2008, officers returned to destroy the family s house. We cried and waied the officers feet, but they didn t care. The head policeman from the district sent clear instructions, If anyone rises up against you, shoot them. 14 The demolition left the family homeless and they were forced to borrow a tent for shelter. Thongdaeng Sangsawat was soon invited to the government savings bank to receive compensation. Janpen went to the bank in place of her mother with a power of attorney. Though Janpen said her family did not want monetary compensation, EGAT placed money in her hands. Janpen claims Thongdaeng s signature appeared on documents stating the family accepted the compensation, even though EGAT never gave her the documents to read or sign. They didn t let me read through anything, Janpen explains. They just said if I didn t take the money I wasn t going to get anything because the case was already finished. Janpen said she discovered that EGAT had already opened a bank account in her family s name and had deposited their allotted 3

4 compensation; the family received Bt348, EGAT officials also possessed a document displaying Thongdaeng s sister s signature, indicating she accepted compensation for her lost land. Thongdaeng s sister, Kaew, moved to Sara Buri, a province near Bangkok, at the beginning of the Nam Theum 2 project and has not returned since; Kaew was unaware such a document existed. 15 The family moved onto Kaew s land, which is mortgaged and will likely be repossessed by the Bank of Agriculture and Agriculture Cooperatives. They do not know when the Bank will evict them from this land. Because EGAT destroyed the wood from the family s home during demolition, they took out a loan to afford the materials needed to build up the soil and construct a new house. 16 Thongdaeng submitted a letter to EGAT asking for additional compensation for these and related expenses, and EGAT provided the family with an additional Bt485, The trees and rice crops from which the family once generated income are gone. Furthermore, the Sangsawats can no longer sell poultry because their new land is close to the road and the ducks and chickens they raise are often poisoned and stolen by other villagers. In the past, the family bred and sold fish. However, the fish ponds on the new land have no shade and the fish die in the hotter months. Today, although the family does not raise fish, they keep a few in hopes that they will be able to return to the business. While farming once earned the Sangsawats Bt400, ,000 per year, they now sell their few remaining crops for no more than Bt100,000 per year. Unable to earn a living from their land, the family generates the majority of their income by selling locally made agricultural tools in neighboring provinces. The family began this practice in 2000, after the construction of a dam flooded some of their fish ponds. 18 However, this occupation caused the family to fall further into debt. Every month, the Sangsawats must rent a pick-up truck to transport the products to other provinces. Afraid to leave Paiboon alone, Janpen and Thongdaeng were unable to travel far from home. We would be half way to another province when a neighbor would call and tell us EGAT came and threatened Paw, Thongdaeng recalls. Paw would get sick and we would come back. We lived in fear. Unable to earn a sufficient income, the family took out loans from loan sharks. The monthly 3% interest payments added to these loans totals Bt700,000 per year. After making payment on their ever increasing debt, the family retains Bt200, ,000 for all of their other expenses. Before the Nam Theun 2 project began, the Sangsawat family had a total debt of no more than Bt500,000. Today, the family s debt has climbed to over Bt2,000, Since relocation, no government officials have visited the family. In the past, the Sangsawat family was active in the village community; Thongdaeng s som tom was even famous among villagers. Yet, because the family stands alone in their fight against EGAT, they are ostracized. Villagers have no empathy for our family They look at us like black sheep. Mr. Prayong, a villager who once opposed the project, is now employed by EGAT. The family suspects that he is a reporter and monitors their activities. Once EGAT came in and offered him things, Janpen explains, he switched sides. If you obey, if you listen to EGAT, things will be easy. 20 Currently, EGAT is in the process of building a community learning center on Mr. Prayong s land. Per Mr. Prayong s request, EGAT will also begin construction of a rice mill on his property. Since the erection of the power line, EGAT has donated money to the village temple for new bathrooms and provided free eyeglasses to villagers. 21 Paiboon, Thongdaeng and Janpen, however, remain ignored. Janpen, whose persistence once carried her family through their struggle, has stopped submitting complaints, worn down by authorities who belittle her and her family. Do you want to use your compensation money to fight us in court? Janpen claims an EGAT official asked Everything is a game. EGAT controls everything. 22 4

5 ADB Safeguard Policy Analysis The Asian Development Bank (ADB) developed a set of safeguard policies that aim to avoid, minimize, or mitigate adverse environmental impacts, social costs to third parties, and the marginalization of vulnerable groups that may result from development projects. The ADB designed the Involuntary Resettlement Policy (IRP) to avoid or minimize the social and economic impacts of involuntary resettlement resulting from ADB-financed operations. The safeguards outlined in this policy are applicable to every ADB-financed project and associated project. 23 The IRP, enacted in 1995, regulates all projects approved after 31 December 1995 and remains the current policy of the ADB. On 20 July 2009, the ADB approved a Safeguard Policy Statement that strengthens and expands protections outlined in the 1995 document; this Statement will become active on 20 January While the ADB created these safeguard standards, the ultimate responsibility for the successful implementation of the policies lies with the borrower or project sponsor. 24 The Thai stretch of the transmission line was not funded by ADB. However, this transmission line is necessary to transport power generated by the ADB funded Nam Theun 2 dam. 25 Thus, ADB should consider the Thai stretch of the transmission line as an associated project. Designation of this circuit-kilometers transmission line as an associated project requires EGAT, as the project s sponsor, to uphold the IRP. 26 In its interactions with the Sangsawat family, EGAT failed to comply with several safeguards outlined in the IRP. These safeguards were neither protected by EGAT nor the Thai State, highlighting the conflict existing between national law and the safeguard policies. The collapse of the Sangsawat family s way of life most clearly manifests itself in the violation of Article B 34, which states: The three important elements of involuntary resettlement are (i) compensation for lost assets and loss of livelihood and income, (ii) assistance for relocation including provision of relocation sites with appropriate facilities and services, and (iii) assistance for rehabilitation to achieve at least the same level of well-being with the project as without it. 27 Introduction Article B33: The objectives of the Bank s policy on involuntary resettlement should be to (ii) ensure that displaced people receive assistance. On 19 December 2008, local policemen, at the command of EGAT officials, tore down the Sangsawat family s home to build a transmission line through their property. As a result, the family lost their home and their ability to generate income through the sale of ducks, chickens, fish and fruit. 28 EGAT, which works on behalf of the State of Thailand, did not properly compensate the family for loss of livelihood. EGAT did not adequately assist the family in their relocation or rehabilitation. The family did not receive any assistance in their search for resettlement land. Although EGAT provided monetary compensation for the appraised value of the family s house, land and trees, EGAT did not restore the family s livelihood. Prior to eviction, this livelihood included the sale of ducks, chickens, fruit and fish at a nearby market. 29 The family s quality of life steadily declined after EGAT destroyed the family s home, land and occupation without the provision of proper assistance or adequate compensation. Furthermore, EGAT did not allow the Sangsawat family to participate in the planning or implementation stages of the Nam Theun 2 project. 5

6 Resettlement and Compensation Article B34 (i): The three most important elements of involuntary resettlement are (i) compensation for lost assets and loss of livelihood and income EGAT did not adequately compensate the Sangsawat family for loss of livelihood. As outlined in Article B34 (ii) of the 1995 ADB safeguards, those who have been resettled must be compensated for their lost assets, livelihood, and income. 30 Although the Sangsawat family never agreed to receive compensation, EGAT awarded the family Bt348, for their land. On 19 December 2008, EGAT showed Janpen a document, signed by Thongdaeng, detailing compensation for her land. Thongdaeng claims she did not sign a compensation document, leading her to believe that EGAT forged her signature. 31 In addition, EGAT gave the family insufficient monetary compensation. The family sent letters to EGAT on 5 May 2006, 20 June 2006, and 21 June 2006 to request an appeal. The family asked EGAT for Bt49,054, in compensation in hopes that EGAT would reject the offer and spare their land. 32 On 26 July 2006, EGAT brought the appeal to the Roi-Et provincial committee; the committee rejected Thongdaeng s request. On 17 November 2006, EGAT brought the case to an EGAT committee and the family s appeal was again rejected. Thongdaeng then submitted a letter to EGAT requesting the money necessary to build a replacement home. EGAT gave the family Bt485, in supplemental compensation, a total compensation of Bt833, However, the Bt833, was insufficient to buy a new piece of land, build a home and compensate for lost livelihood. 33 The family spent Bt200,000 to build up the soil, Bt100,000 in construction worker fees and Bt200,000 on building materials. Additionally, the family acquired Bt300,000 of debt during project implementation. Thus, the family spent nearly all compensation money on the construction of a new home and the payment of project related debt. 34 Prior to the construction of the transmission line, the family sold ducks, chicken, fish and fruit. The Sangsawats no longer have these sources of income because they do not own proper land on which to raise animals or grow fruit trees. After relocation, the family lost 200 of their 400 ducks, 100 eucalyptus trees, 50 of their 53 coconut trees, and many of their fish and chicken. Before relocation, the family s annual income was Bt400, ,000. The family earned Bt300,000 from selling fish, Bt100,000 from selling fruit and crops, and Bt60,000-70,000 from selling ducks, chickens and eggs. Experiencing a 50% decrease in annual income, the family currently makes Bt200, , Although the family still raises ducks and chickens, it is solely for their own consumption. The family s new land is close to the road, thus enabling outsiders to poison and steal the poultry, rendering their new land unsuitable for business. After working years to develop a natural ecosystem dependent on shade from the trees, the fish in the fishpond died when the trees were cut down. 36 EGAT not only physically destroyed the family s home, but it directly interfered with the family s livelihood. To ensure sufficient money for food and other basic needs, the family buys locally produced agricultural tools to sell in nearby provinces. However, the family must rent a truck every month in order to transport this merchandise. The family takes out loans to buy agricultural tools and to pay for the truck and gas. The interest rate for these loans is 3% per month, which amounts to Bt700,000 per year and causes the family to fall deeper into debt. 37 EGAT just stopped our life and our occupation. We had to change our way of life. -Janpen Sangsawat 6

7 Article B34 (ii): (ii) assistance for relocation including provision of relocation sites with appropriate facilities and services. Although EGAT offered to relocate the family on their land that remained unaffected by the transmission line, the family refused because this land had flooded in As a result of the flooding, the land does not have the appropriate facilities or services needed to build a house and reestablish the family s sources of income. EGAT did not provide the family with any further relocation offers. 38 Article B34 gives the right to receive relocation assistance, 39 while Article B41 states, the responsibility for planning and implementing resettlement rests with the government and other project sponsors. 40 Neither ADB nor EGAT properly planned or implemented resettlement plans for the Sangsawat family. With the destruction of the family s home and the failure to provide any facilities or services, EGAT did not provide assistance for relocation and, thus, violated the ADB safeguards. Not only did EGAT fail to provide assistance, but it also made the family false promises. According to the Sangsawat family, EGAT claimed it would build and pay for the construction of a beautiful new home. However, EGAT has yet to find the family a permanent dwelling that can accommodate their agricultural lifestyle. 41 Currently, the family lives on a piece of land that belongs to Thongdaeng s sister, but it will soon be repossessed by the Bank of Agriculture and Agricultural Cooperatives. 42 This land can neither adequately house the family nor support the family s original source of income. Article B34 (iii): The three most important elements of involuntary resettlement are (iii) assistance for rehabilitation to achieve at least the same level of well-being with the project as without it. EGAT did not provide the Sangsawat family with adequate compensation. In conjunction with Article B34, Article B38 states: rehabilitation packages should be designed to generally improve or at least restore the social and economic base of those to be affected. Monetary compensation alone may not be adequate. 43 Before relocation, the family had a debt of Bt500,000; currently, the family s debt is more Participation of Affected Persons than Bt2,000, The family cannot repay their debt because EGAT destroyed their sources of income and never provided the family with assistance in the search for a new livelihood. EGAT did not adequately compensate the family, assist the family in finding replacement land or help the family restore their previous sources of income. Article B35: Where serious differences on major aspects between project sponsors and affected persons are evident, adequate time should be allowed for the government and other project sponsors to resolve these differences before the Bank commits support for the project. In 2000, an EGAT representative surveyed the Sangsawats land. The representative informed them of the impending construction of a transmission line in close proximity to the family s home. The family asked EGAT if the line could be moved to avoid their land, but EGAT said that would not be possible. 45 EGAT violated Article B35, which says project sponsors are responsible for the resolution of differences that arise between affected persons and project sponsors. 46 There were multiple indications that EGAT and the Sangsawat family had serious differences in regards to the planning and implementation of the Nam Theun 2 project, but EGAT did nothing to resolve them. In 2004, EGAT sent a letter to the headman of the village to inform some of the villagers that they would be affected by the project. However, the Sangsawat family was not told the extent to which they would be affected and were not concerned. 47 EGAT did not ask for the opinions of the people who the project would adversely 7

8 affect, and the Sangsawat family was not given a meaningful voice in the process. While the Land and Forest Management Subcommittee of the National Human Rights Committee planned meetings between EGAT officials and affected villagers in May and July 2008, 48 none of the suggestions voiced by villagers came to fruition. 49 Although EGAT announced project plans in the newspaper, 50 the Sangsawat family never saw the publication. 51 The family received no information from EGAT detailing the devastating consequences the family would face as a result of the project. EGAT did not give reasonable or adequate notice before construction of the transmission line began. EGAT stated that it could not move the transmission line, and the family had to be relocated. EGAT and ADB continued to support, finance and build the transmission line, ignoring their failure to adequately address the Sangsawat family s concerns. Four years have passed since EGAT first informed the family of the Nam Theun 2 project, and one year has passed since the completion of the project. Yet, none of the project sponsors have resolved the struggles the project caused the family. 52 Neither EGAT nor ADB adequately compensated the family or assisted the family with their relocation or rehabilitation. ICESCR Analysis The rights included in the International Covenant of Economic, Social, and Cultural Rights (ICESCR) are unique in their universality and capacity to embrace all diversity. The ICESCR gives form to dignity and provides a language by which marginalized people can build understanding and solidarity. ESCR does not create dignity, but rather affirms that dignity is inherent to all people. Differences in nationality, ethnicity, class, gender, age, and culture are perceived barriers that can be overcome through this common language. With its signature to the ICESCR in 1999, the Thai State became obliged to ensure that no action by the State or third party violates any citizen s right to an adequate standard of living for himself and his family. According to Article 11.1, which is enumerated in General Comment 4.1, the human right to adequate housing, which is thus derived from the right to an adequate standard of living, is of central importance for the enjoyment of all economic, social and cultural rights. 53 The Sangsawat family experienced violations of these rights on numerous accounts. The Sangsawats rights were protected by neither EGAT nor the State, highlighting the conflict existing between Thai law and the Covenant. Thus, the Sangsawat family s rights under the ICESCR were violated. Introduction General Comment 4.1: the human right to adequate housing, which is thus derived from the right to an adequate standard of living, is of central importance for the enjoyment of all economic, social, and cultural rights. On 19 December 2008, EGAT officials commanded local police to tear down the Sangsawats home in order to build the transmission line through their property. In doing so, the family lost their home and ability to generate income through the sale of ducks, chickens, fish and fruit. 54 EGAT, working on behalf of the State of Thailand, violated the family s right to adequate housing and their enjoyment of economic rights. The State of Thailand did not properly notify the family before EGAT proceeded to construct the transmission line. EGAT claims that in 2005 it gave the Sangsawat family a letter detailing EGAT s plan to raze the family s home. The letter gave the family 30 days to submit a complaint about the project. 55 Yet, according to the family, they never received a letter informing them of the details concerning the project or allowing them to submit an appeal. 56 Even if 8

9 EGAT had sent the letter, the 30 days in which the family was able to appeal to the project committee were scheduled before EGAT officials surveyed the family s land. It was not until this survey that the Sangsawat family learned of the project. 57 In reference to Article 11.1 of the ICESCR, General Comment 7.15 states, the procedural protections which should be applied in relation to forced evictions include: (a) an opportunity for genuine consultation with those affected; (b) adequate and reasonable notice for all affected persons prior to the scheduled date of eviction; (c) information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available. 58 EGAT did not ensure that the family was aware of the project details. As a result, the family did not submit a complaint within the allotted time period. By the time the family became aware of the effects the project would have on their home and land, the 30 days had passed and EGAT had finalized the pathway for the transmission line. 59 Although EGAT announced the project plans in the local newspaper, the Sangsawat family never saw the publication. 60 The family did not receive information from EGAT detailing the devastating consequences they would face as a result of the project. Therefore, EGAT did not give reasonable or adequate notice before construction of the transmission line began. Right to Adequate Housing Article 11.1: The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. EGAT denied the Sangsawats right to housing and sense of security when EGAT forced the family to relocate. The State of Thailand violated Article 11.1, which is enumerated by General Comment 4.7, and states the right to housing should be seen as the right to live somewhere in security, peace, and dignity. 61 In accordance, Section 33 of the Thai Constitution states: a person shall enjoy the liberty of dwelling. A person is protected for his peaceful habitation in and for possession of his dwelling. 62 Following their eviction, the State of Thailand rendered the Sangsawat family homeless. They had no other choice than to borrow a tent to use as shelter. 63 EGAT razed the family s home, did not offer appropriate relocation assistance, and left them to find their own relocation site with the necessary facilities. The family moved to land owned by Thongdaeng s sister, Kaew. However, this new land is too small to raise animals or grow fruit trees, decreasing the family s income. The family s current property is insecure because it is mortgaged and will soon be repossessed by the Bank of Agriculture and Agricultural Cooperatives (BAAC). The Sangsawat family does not have the money required to buy new land, and thus will be left without a home when the Bank claims Kaew s property. 64 EGAT forcibly removed the Sangsawat family from their land, depriving the family of a dwelling and their security of tenure. The State of Thailand violated General Comment 4.8 A in reference to Article 11.1, which states, notwithstanding the type of tenure, all persons should possess a degree of security of tenure, which guarantees legal protection against forced evictions 65 The family continues to live in fear of being removed from the home in which they now live. On 5 May 2006, 20 June 2006, and 21 June 2006, the family sent letters to EGAT to appeal the Bt348, compensation they had received. 66 Thongdaeng claims that she did not sign a compensation document, leaving her to believe that her signature was forged. 67 The family asked EGAT for an additional Bt49,054, for the trees, land, and home that EGAT destroyed. On 26 July 2006, the 9

10 Roi-Et province committee rejected the family s appeal. On 17 November 2006, an EGAT committee also rejected the family s request. The Sangsawats then submitted another letter to EGAT requesting money to construct a new home. EGAT gave the family Bt485, in supplemental compensation, amounting to an overall compensation of Bt833, The family spent Bt200,000 to build up the soil, Bt100,000 on labor and Bt200,000 on building materials. The family also had to pay off Bt 300,000 in debt that they had accrued while appealing to EGAT during project implementation. 69 The State did not adequately compensate the family because nearly all compensation was spent to build a new home and pay existing debts. The Sangsawat family s home after policemen razed it. EGAT destroyed the family s home, leaving only a television, bureau, and desk. Right to Work Article 6.1: The States parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. Article 7 (ii): The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favorable conditions of work which ensure, in particular (ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant. When EGAT destroyed the Sangsawat family s home, the family lost their ability to raise animals and grow fruit. EGAT never compensated the family for this loss of livelihood. According to General Comment 7.13, State parties shall also see to it that all the individuals concerned have a right to adequate compensation for any property, both personal and real, which is affected. 70 The compensation given to the family by the State of Thailand was insufficient to cover the cost of the losses incurred during relocation. EGAT admits it never compensated the family for loss of livelihood and that it did not assist the family in the search for a new source of income. 71 Section 42 of the 2007 Thai Constitution states, The amount of compensation... shall be fairly assessed with due regard to the benefits from the State and the person whose property or right thereto is expropriated may receive from the use of the expropriated property. 72 Prior to their relocation, the family earned an annual income of Bt400, ,000. Currently, they make Bt200, ,000 per year. This represents a 50% decrease in the family s annual income. 73 The State failed to uphold the Sangsawat family s right to work. Additionally, EGAT failed to assist the family in rehabilitation, which resulted in a loss of livelihood for the entire family. The State deprived the family of the right to work, thus violating Article 7 and 6.1 of the ICESCR. In the past, the family s annual income relied on selling ducks, chickens, fish, and fruit at the local market. However, they can no longer depend on this source of income because the family s home, land, and trees were destroyed. 74 The family once owned land that supported 400 ducks, 53 coconut trees, 100 eucalyptus trees, ducks, chickens and fish. Before relocation, the family s annual income was Bt400, ,000. They earned Bt300,000 from selling 10

11 fish, Bt100,000 from selling fruit and crops, and Bt60,000-70,000 from selling ducks, chickens, and eggs. After EGAT destroyed the family s home, they had only 200 ducks, 3 coconut trees, no eucalyptus trees, and very few fish and chicken. When EGAT cut down the trees, the lack of shade killed the majority of fish in the Sangsawats fishpond. This deprived the family of the income they made from selling fish. The family no longer sells fish, ducks, or chickens, and is only able to earn Bt10,000 from selling corn. 75 The State did not fulfill its responsibility to respect or protect the Sangsawats from interference in their right to work. The State violated General Comment 18.22, which states, the obligation to respect the right to work requires States parties to refrain from interfering directly or indirectly with the enjoyment of that right. The obligation to protect requires States Parties to take measures that prevent third parties from interfering with the enjoyment of the right to work. The obligation to fulfill includes the obligations to provide, facilitate and promote that right. 76 EGAT, working on behalf of the State of Thailand, did not respect the Sangsawat family s right to work. The State approved the transmission line to be built within 30 meters of the family s home and allowed EGAT to tear down the family s home. The family lost their livelihood because EGAT cleared the land needed to raise animals and grow fruit trees. The State allowed EGAT to directly interfere with the family s right to work and, therefore, the family was unable to choose their own livelihood. The State did not protect the family. Instead, the State allowed EGAT to interfere with the family s right to work and did not demand that EGAT adequately compensate the family. The State did not fulfil the Sangsawat family s right to work. Consequently, the Sangsawat family amassed Bt2,000,000 debt and is currently unable to raise and sell fish, ducks, chickens, and fruit at the local market. 77 EGAT impinged upon the family s right to work, and forced them to find an alternative source of income in order to feed and provide shelter for themselves. To ensure a minimum level of income to cover the costs of basic needs, the family now sells locally made agricultural tools in nearby provinces. 78 They started doing this to earn supplementary income in 2000 because the completion of a nearby dam flooded their land. However, because EGAT destroyed their livelihood, the family is now dependent on selling agricultural tools as their primary source of income. EGAT violated Article 6.1 of the ICESCR, which ensures the right to perform a job of one s own choosing and acceptance. 79 In order to afford the agricultural tools, the family must take out loans, which have an interest rate of 3% per month. This amounts to Bt700,000 per year in interest. The family is unable to pay the high interest rates, especially compounded with repayment of the original loan, because the family only makes Bt200, ,000 per year. Thus, the expense of buying and selling tools is increasing their debt. Before the family was evicted, they had only Bt500,000 in debt. Now, the family is Bt2,000,000 in debt. 80 The family did not choose or accept their new occupation; rather, EGAT forced them to find another source of income post-relocation. The Sangsawat family stands in front of their current home. We have Bt2,000,000 in debt. We know we cannot pay off our debt because we have to keep asking for short-term loans. If we do not take out these short-term loans, we cannot survive. We have to continue to take out loans. -Janpen Sangsawat 11

12 Right to an Effective Remedy General Comment 7.13: it is pertinent to recall article 2.3 of the International Covenant on Civil and Political Rights, which requires States parties to ensure an effective remedy for persons whose rights have been violated and the obligation upon the competent authorities (to) enforce such remedies when granted. The State of Thailand violated the Sangsawat family s right to an adequate standard of living and right to work. On numerous occasions, Janpen tried to contact EGAT to voice her concerns about the Nam Theun 2 project. She wrote 2 letters and called EGAT, but never received a response. 81 The State did not address the family s complaints and has shown no interest in rectifying the issues. The family currently resides on land that is not their own, and the BAAC will soon repossess the land. 82 The family also faces financial crisis because of the large debt amassed after EGAT did not assist them in finding a remedy to the problems faced as a result of involuntary relocation. EGAT violated the family s right to an effective remedy. Conclusions and Recommendations Although EGAT avoided the relocation of 1,888 people, all households other than that of the Sangsawat family, 83 there are many ADB safeguard and human right violations that resulted from the construction of the transmission line of the Nam Theun 2 hydroelectric project that must be remedied. While development projects assist the growth and progress of a nation, they often detrimentally affect marginalized communities. Relocation is often one of the many consequences resulting from the construction of hydropower plants. When relocation is unavoidable, project sponsors must provide a means for relocated individuals to participate in decisions concerning project details and construction. Project sponsors must also provide adequate compensation to relocated persons. 84 The Sangsawat family was neither given an opportunity to participate in project planning and implementation nor was the family adequately compensated. The Sangsawat family received an insufficient compensation package which deprived them of a lifestyle of equal or greater comfort to the life they held before the Nam Theun 2 project. The family requires further compensation for the loss of their ancestral land and livelihood. This compensation should provide the family with enough money to buy, build up the soil and construct a house on a plot of land of comparable value to their previous 9 rai. EGAT should compensate the family for their loss of livelihood until they are able to reestablish their prior sources of income. EGAT did not adequately compensate the Sangsawat family for their loss of assets. Following eviction, the family lost 200 ducks, 50 coconut trees, 100 eucalyptus trees and many fish and ducks. EGAT must reassess and reappraise the multiple assets that the family lost during relocation. The income that the Sangsawat family earned from these assets in the previous year should be used at the basis from which EGAT determines appropriate compensation. Furthermore, EGAT was responsible for the proper development and implementation of a resettlement plan for the Sangsawat family. EGAT should send a representative to monitor the family s way of life after relocation to determine if further compensation is needed. EGAT s representation should remain consistent, so the family can build a relationship with the officer and will not be confused or mislead by officers with whom they are unfamiliar. EGAT should also provide the family with a clear grievance mechanism, through which the Sangsawats may easily approach authorities with concerns or questions. Such a forum will provide 12

13 Janpen and a friend of the Sangsawat family wrapping their bodies around eucalyptus trees minutes before EGAT cut the trees down. EGAT with the insight necessary to provide the family with an adequate resettlement plan, and to remedy the economic and social violations that occurred throughout project implementation. Although EGAT acted in accordance with EGAT Act B.E. 2511, this Act is not sufficient to protect the rights guaranteed to the Sangsawat family in the ICESCR, ICCPP and 2007 Thai Constitution. Article 29 of the Act states that EGAT can remove or destroy a building located on land required for project use and must notify affected persons of this removal. Upon receiving this notification, affected persons are granted 30 days to submit a complaint. 85 However, the Sangsawat family claims they did not receive a letter alerting them to the project. 86 The effects of the construction of the transmission line on the family s land were undisclosed. Unknown to the Sangsawats, when the family later began to submit appeals, EGAT had already definitively determined the path of the power lines. EGAT must revise Act B.E to require EGAT to provide affected persons with comprehensive knowledge of projects and to alert affected persons of project details prior to the allocated time in which persons must submit complaints. After investigating Sangsawat family s case, the Land and Forest Management Subcommittee under the NHRC agreed human rights violations had occurred. The subcommittee held a meeting on 16 October 2008 and decided upon a number of recommendations. Firstly, landowners should have the option to rent out land EGAT requires for projects to the State. The price for this land must be assessed prior to the creation of a rental agreement and reviewed every 5 years. Secondly, the energy department must take the responsibility to protect affected persons rights and property. Not only must they calculate social, economic and environmental effects but create resolutions addressing these problems. EGAT, as an authority that has the permission to use national resources, must take the responsibility to reward and distribute the compensation required by affected persons in the present and future. Thirdly, EGAT must design a policy that awards certain privileges to affected persons. Such privileges could include free electricity. Finally, EGAT must establish a fund that can be used to compensate affected persons for damages caused by a project infringing upon rights of property, health, safety and quality of life. The head of the project must establish this fund. This fund may be used for initial compensation rewards and for compensation awarded by the courts. 87 In the future, EGAT must ensure it includes all affected persons in the planning and implementation of its projects. EGAT should hold easily accessible public hearings that are well publicized, and through which the input of attendees is genuinely considered. Furthermore, EGAT must ensure that compensation packages given to families adequately recompense for lost land and livelihood. Adequate compensation must be determined through a complete and fair assessment of the family s losses and through the monitoring of affected families after project completion. If these recommendations are not met, affected peoples, like the Sangsawat family, will be left without adequate compensation for losses of livelihood and dwelling. I want EGAT to look back and help us, to feel sympathetic to people like us. What EGAT did was too much. It hurt my family and our property. We want EGAT to feel our suffering. - Paiboon Sangsawat 13

14 Document Appendix: Family Source of Income Prior to Relocation: Chickens: Each chicken sold for Bt per kilo, and each chicken weighed 1.5 kilograms. It cost Bt20 to vaccinate each chicken. The family had 3 cycles of chickens per year. The family received Bt3 per egg, and each chicken laid 5-10 eggs per day. Ducks: The family could own up to 400 ducks during 1 cycle, and each year there were 3 cycles of ducks. It cost Bt80 to vaccinate and raise 1 duck. They could earn Bt115 for each duck at the market. 115 (price of 1 duck) 80 (cost of vaccinations and raising of 1 duck) = (total profit made from 1 duck) x 400 (amount of ducks the family has during 1 cycle) x 3 (3 cycles per year) = Bt42,000 Coconut Trees: The family had 53 coconut trees. Each coconut tree produced 100 coconuts per year. Each coconut cost Bt10 at the market. 53 (number of coconut trees) x 100 (coconuts per tree) x 10 (market price) = Bt53,000 Fish: The family had 11 fish ponds. Each pond had 2 cycles of fish per year. Each pond sells Bt10,000 of fish per year. 11 (number of fish ponds) x 2 (cycles of fish per year) = 22 fish stocks sold per year x 10,000 (earnings from one fish pond) = Bt220,000 Rice: The family had 2 harvests of rice per year. The family harvested rice on 17 rai of land. Wet season harvest: The family made Bt9.5 per kilogram of rice. The family sold 12 bags of rice per rai, and there were 35 kilograms of rice in 1 bag. The family harvested rice on 17 rai. 9.5 (the price of 1 kilo of rice) x 12 (number of bags of rice produced per rai) x 35 (kilograms of rice in 1 bag) = Bt3,990 3,990 (the profit made from 1 rai of rice) x 17 (number of rai) = Bt67, 830 (gross income) Dry season harvest: The family make Bt7 per kilogram of rice. The family sold 8 bags of rice per rai, and there were 35 kilograms of rice in 1 bag. 14

15 7 (the price of 1 kilo of rice) x 8 (number of bags of rice produced per rai) x 35 (kilograms of rice in 1 bag) x 17 (number of rai) = Bt 3, 320 (gross income) Costs of growing rice for both harvests: 250 (the cost of plowing 1 rai of land) 200 (the cost for 1 person to harvest 1 rai) x 5 (number of people to harvest 1 rai) = Bt1,250 1, 250 (cost to plow and harvest 1 rai per cycle) x 2 (number of cycles) x 17 (number of rai) = Bt42, 500 Revenue: 67, 830 (gross income from wet season harvest) + 33, 320 (gross income from dry season) = Bt101, 150 Net income made from both seasons: 67, 830 (gross income from wet season harvest) + 33, 320 (gross income from dry season) 42, 500 (cost of plowing and harvesting 17 rai for both seasons) = Bt58, 650 Relevant ICESCR Articles and General Comments and ICCPR Articles and Asian Development Bank Safeguard Standards: To access the Asian Development Bank Safeguard Standards 1995: Asian Development Bank, Involuntary Resettlement, 2009, < Involuntary_Resettlement/default.asp?p=rsttlmnt> To access the International Covenant on Economic, Social, and Cultural Rights: United Nations General Assembly, International Covenant on Economic, Social, and Cultural Rights, Resolution 2200A (XXI), December 16, 1966, < To access all General Comments of the International Covenant on Economic, Social, and Cultural Rights: Committee on Economic, Social, and Cultural Rights, General Comments, , < www2.ohchr.org/english/bodies/cescr/comments.htm> To access the International Covenant on Civil and Political Rights: United Nations General Assembly, International Covenant on Civil and Political Rights, Resolution 2200A (XXI) December 16, 1966, < Relevant Articles Asian Development Bank Safeguard Standards: Section III B. 33: The objectives of the Bank's policy on involuntary resettlement should be to (i) avoid involuntary resettlement wherever feasible; and (ii) minimize resettlement where population displacement is unavoidable, and ensure that displaced people receive assistance, preferably under the project, so that they would be at least as well-off as they would have been in the absence of the project, as contemplated in the following paragraphs. Section III B. 34: Involuntary resettlement should be an important consideration in project identification. The three important elements of involuntary resettlement are (I) compensation for lost assets and loss of livelihood and income, (ii) assistance for relocation including provision of relocation sites with appropriate facilities 15

16 and services, and (iii) assistance for rehabilitation to achieve at least the same level of well-being with the project as without it. Some or all of these elements may be present in projects involving resettlement. For any project that requires relocating people, resettlement should be an integral part of project design and should be dealt with from the earliest stages of the project cycle, taking into account the following basic principles: I. Involuntary resettlement should be avoided where feasible. II. Where population displacement is unavoidable, it should be minimized by exploring all viable project options. III. If individuals or a community must lose their land, means of livelihood, social support systems, or way of life in order that a project might proceed, they should be compensated and assisted so that economic and social future will generally be at least as favorable with the project as without it. Appropriate land, housing, infrastructure, and other compensation, comparable to the without- project situation, should be provided to the adversely affected population, including indigenous groups, ethnic minorities, and pastoralists who may have usufruct or customary rights to the land or other resources taken for the project. Section III B. 35: The Bank's support for projects requiring significant involuntary resettlement should include assistance to the government and other project sponsors to (I) adopt and implement the above objectives and principles of the Bank's policy on involuntary resettlement within their own legal, policy, administrative and institutional frameworks; (ii) build the capacity of the government and other project sponsors to effectively plan and implement involuntary resettlement in the projects; and (iii) strengthen the DMC's capacities and macro frameworks for involuntary resettlement. Where serious differences on major aspects between project sponsors and affected persons are evident, adequate time should be allowed for the government and other project sponsors to resolve these differences before the Bank commits support for the project. If requested by the government, the Bank should be prepared to assist as appropriate. The government and project sponsors are responsible for resolving the differences. Article III B. 38 Where population displacement is unavoidable, a detailed resettlement plan with time-bound actions specified and a budget are required. Resettlement plans should be built around a development strategy; and compensation, resettlement, and rehabilitation packages should be designed to generally improve or at least restore the social and economic base of those to be relocated. Monetary compensation for land alone may not be adequate. Voluntary relocation by some affected persons may form part of a resettlement plan, but measures to relocation by some affected persons may form part of a resettlement plan, but measures to address the special circumstances of involuntary resettlers should also be included. Preference should be given to resettlement of people dislocated from agricultural settings unto similar settings. This is particularly important for indigenous peoples whose degree of acculturation to mainstream society is limited. If suitable land is unavailable, other strategies built around opportunities for wage employment or self-employment may be used. Relevant Articles and General Comments on the Right to Work: ICESCR Article 6.1: The States parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. ICESCR Article 7: The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and 16