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Chapter 3: The Organization of Marine Law in Cambodia — From the Constitution to Local Regulations
Welcome back as we continue exploring Cambodia’s oceans and the communities that depend on them. In Chapter 1, we examined the challenges coastal families face, the ecological significance of mangroves, and the daily experiences of fishers. Chapter 2 introduced the concept of "marine governance," which refers to the people, decisions, and actions that shape ocean management.Now, in Chapter 3, we turn our attention to the specific rules and examine the structure of marine law in greater detail.
For many, the term "law" can seem intimidating, often appearing as something only lawyers, judges, or politicians in Phnom Penh understand. Legal documents frequently use complex language and lengthy sentences. However, a law degree is not required to understand how the system operates.
Our main goal in this chapter is to clarify the legal hierarchy without resorting to complex legal terminology. To "demystify" is to make something easy to understand. A "hierarchy" is an order of importance, similar to a ladder where the top step is the most important, and the lower steps follow its rules.
In this chapter, we will examine the structure of Cambodia's legal system. We will trace how the highest law, the Constitution, influences local rules in fishing villages. We will explain the differences between a Law, a Sub-decree, and a Ministerial Regulation. Additionally, we will discuss why ocean governance rules are distributed across multiple documents and how this impacts daily life in coastal communities.
Let us explore this structure step by step.
Part 1: The Foundation of the House – The Constitution and Natural Resource Principles
To understand how laws are organized, imagine the legal system as the structure of a house.
Before constructing the walls or roof, a strong foundation is essential. If the foundation is weak, the house will collapse. In a country’s legal system, the Constitution serves as this foundation.
The Constitution is the highest law in Cambodia. Adopted in 1993, it is the most authoritative legal document in the country. All other laws, ministerial decisions, and local rules must comply with the Constitution. If a subordinate law contradicts the Constitution, it is invalid and cannot be enforced.
The Constitution establishes the fundamental rules for how the country functions. It defines the King’s role, citizens’ rights, and the structure of government. It also contains key provisions regarding environmental protection and ocean governance.
Who Owns the Ocean?
In many places, people might wonder: Who actually owns the sea? Can a rich businessman buy a piece of the ocean? Can a private company own a coral reef?
To answer this, we look at Article 58 of the Constitution. This article clearly states that State property includes land, mineral resources, mountains, seas, underwater areas, the continental shelf, coastlines, airspace, islands, rivers, canals, streams, lakes, forests, natural resources, and fish.
In summary, the ocean, coast, mangroves, and fish are owned by the State and considered public property. No private individual can own the ocean. As the owner, the State holds primary authority to control, use, and manage these resources through specific laws.
However, as discussed in Chapter 2, state ownership does not permit the government to exploit the ocean for its own profit. The government is obligated to protect these resources for the benefit of all Cambodian citizens.
The Duty to Protect Nature
The Constitution does not just say the State owns the ocean; it also assigns the State a specific duty.
Article 59 of the Constitution requires the State to protect the environment and maintain the balance of abundant natural resources. It says the State must establish a precise plan for the management of land, water, ecological systems, mines, energy, forests, wildlife, fish, and aquatic resources.
This represents a significant commitment. Protecting the environment is not merely advisable; it is a constitutional duty. When the government considers building a port, removing mangroves, or permitting large fishing vessels, it must adhere to its obligation under Article 59 to maintain ecological balance.
For those living in coastal communities, understanding Articles 58 and 59 is essential. These articles provide the basis for requesting government protection of local fishing grounds.
Part 2: The Framework of the House – Laws, Sub-decrees, and Ministerial Regulations
Now that we have our foundation, the Constitution, we need to build the walls, roof, and rooms of our legal house.
In Cambodia, ocean-related rules are not consolidated in a single document. Instead, they are organized in a hierarchical order, similar to a ladder. The rules at the top are broad and difficult to amend, while those at the bottom are more detailed and easier to modify.
Let us examine the steps of this legal hierarchy, from the highest to the lowest level.
Step 1: International Treaties and Agreements
Right below the Constitution, and sometimes acting alongside it, are international treaties. A treaty is a formal promise or agreement between Cambodia and other countries.
The ocean connects all countries. Fish do not recognize borders and swim freely between Cambodia, Thailand, and Vietnam. Pollution originating from a ship in international waters can easily reach Cambodian shores. Therefore, international cooperation is essential.
When the King of Cambodia signs an international treaty, and the National Assembly (the parliament) approves it, that treaty becomes part of Cambodian law.
For example, Cambodia recently acceded to the United Nations Convention on the Law of the Sea (UNCLOS), often referred to as the "constitution of the oceans." UNCLOS provides detailed regulations regarding the extent of a country’s ocean territory (its Exclusive Economic Zone), marine environmental protection, and the resolution of disputes between countries.
Cambodia is also a party to the Convention on Biological Diversity (CBD), which commits the country to protecting various plant and animal species, including marine life. These international treaties push Cambodia to enact strong national laws to meet its global commitments.
Step 2: National Laws (Chbab or Kram)
Moving down the ladder, we find National Laws, called Chbab in Khmer. Laws are the main walls of our legal house.
A Law is a highly formal document. It is created and adopted by the National Assembly and the Senate (the elected politicians who make up the Parliament), and then it is officially signed into effect by the King. Because a Law requires debate and voting by the entire Parliament, it takes a very long time to create, and it is very difficult to change.
Because Laws are difficult to amend, they are typically written in broad, general language. They establish the overarching principles and rules.
For the marine environment, there are two extremely important National Laws:
1. The Law on Environmental Protection and Natural Resource Management (1996): This law says that the country must assess the environmental impacts of all private and public projects before they are allowed to start. It aims to prevent pollution and ensure natural resources are used sustainably.
2. The Law on Fisheries (2006): This is the main law for anyone who fishes in Cambodia. It sets up the big rules for managing fish, protecting flooded forests and mangroves, and ensuring the long-term survival of the fishing economy. It outlines which activities are strictly prohibited, such as using dynamite or catching endangered species. Crucially, Chapter 11 of this law gives Cambodian citizens the formal right to establish "Community Fisheries" to help manage local resources.
If a fisher consults the Law on Fisheries, they will find that it grants the right to form a Community Fishery. However, the Law does not specify the procedures, application forms, or detailed rules for organizing a village meeting. For these specifics, one must refer to lower levels of the legal hierarchy.
Step 3: Royal Decrees (Preah Reach Kret)
A Royal Decree is an administrative decision issued directly by the Head of State, who is the King.
Royal Decrees are often used to enact major national changes or to appoint high-level officials. For example, in 1993, a Royal Decree officially established and designated Cambodia's Protected Areas system, which includes important coastal national parks. Another important example is the 2005 Royal Decree on the Establishment of Community Fisheries, which authorized citizens to organize to protect their local waters.
Step 4: Sub-decrees (Anukret)
Now we are getting to the rules that affect daily life much more closely. A Sub-decree (Anukret) is an executive decision. It is not voted on by the whole Parliament. Instead, it is approved by the Council of Ministers (the government's cabinet) and signed by the Prime Minister.
Because a Sub-decree does not need to go through the slow Parliament process, the government can create and update them much faster than a National Law. Sub-decrees explain how to implement the broad rules set out in National Laws.
Let us use a real-world example. The 2006 Law on Fisheries broadly states, "Citizens can form Community Fisheries." But it is the 2007 Sub-decree on Community Fisheries Management that provides the actual instructions.
This Sub-decree explains:
- Who can join a Community Fishery (you must be a Cambodian citizen, at least 18 years old, and live in or near the village).
- The community's duties (such as protecting mangroves and respecting the rules).
- The rights of the community (such as the right to fish in customary ways and the right to patrol the waters).
- The rules for electing a community committee.
Step 5: Ministerial Regulations (Prakas, Circulars, and Guidelines)
Even a Sub-decree might not have enough detail for everyday operations. This brings us to the Ministerial Regulations, which include Proclamations (Prakas), Circulars (Sarachor), and Guidelines.
These are decisions issued by the head of a specific government ministry, such as the Minister of Agriculture, Forestry and Fisheries (MAFF) or the Minister of Environment (MoE).
If the Law represents the wall of the house and the Sub-decree is the door, then the Prakas serves as the key that opens the door. These regulations contain the specific, step-by-step rules for daily operations.
For example, to help villages actually set up their groups, MAFF issued the 2007 Prakas on Guidelines for Community Fisheries. This Prakas provides the exact mandatory templates for community by-laws, internal rules, and area agreements. It provides communities with the specific checklist they need to be legally recognized by the government.
Another example is a Circular (Sarachor). In 2012, the government issued a Circular on the Development of Coastal Areas. This document provided very specific rules on how close developers can build to the beach, defining exact setback zones and public access roads to prevent chaotic construction along the sea.
Because these regulations are issued by individual ministries, they can be updated rapidly to address emerging issues, such as a sudden decline in fish populations or new pollution threats.
Step 6: Local Rules and Ordinances (Deika)
At the very bottom of the legal ladder are the local rules. These are called Ordinances or Deika. They are issued by provincial governors, district governors, or local commune councils.
A Deika only applies to that specific local area. For example, a local commune might issue an ordinance specifically banning throwing plastic trash into its local river, or it might officially recognize the map of its local community's fishing boundaries.
Although these represent the lowest level of formal law, they are often the most visible and significant rules for residents of coastal villages. It is important to remember the hierarchy: a local Deika cannot contradict a Prakas, a Prakas cannot contradict a Sub-decree, a Sub-decree cannot contradict a Law, and a Law cannot contradict the Constitution. All rules must align within this structure.
Part 3: Why is Marine Law Spread Across Multiple Instruments?
When you look at this complex ladder of Constitutions, Treaties, Laws, Decrees, Sub-decrees, Prakas, and Local Rules, you might wonder: Why doesn’t the government just write one simple, easy-to-read "Ocean Law" book with all the rules in one place?
Why is marine law spread across so many different legal instruments?
There are several practical, political, and historical reasons for this complexity.
1. The Ocean is Complex and Multi-Sectoral
The ocean serves multiple functions: it is a source of food (fish), a transport route (for ships), a destination for tourism, a site for energy production (oil, gas, and wind), and a complex ecosystem (coral reefs and mangroves).
Because the ocean has so many uses, it is impossible for a single government department to manage them all. In Cambodia, the management of the coast is divided among many different ministries:
- The Ministry of Agriculture, Forestry and Fisheries (MAFF): Its Fisheries Administration (FiA) is responsible for fisheries, aquaculture, and community fisheries.
- The Ministry of Environment (MoE) is responsible for protecting marine national parks, preventing water pollution, and assessing the environmental impact of large construction projects.
- The Ministry of Public Works and Transport (MPWT) is responsible for seaports, shipping, and ensuring that boats do not spill oil.
- The Ministry of Tourism (MoT) manages coastal resorts and island development.
- The Ministry of Mines and Energy (MME) handles offshore oil drilling and sand dredging.
2. The Need for Flexibility and Speed
Nature changes quickly, and human business changes even faster. If a new, highly destructive, motorized fishing net is suddenly invented and introduced into Cambodia, the government needs to ban it immediately to save the fish.
If all rules were consolidated into a single National Law, it would require months or years for the National Assembly to debate and enact changes, such as banning a new fishing net. By distributing authority, the system enables the Minister of Fisheries to issue a Prakas and respond immediately. The legal hierarchy maintains flexibility: broad, enduring principles are enshrined in Law, while rapidly changing details are addressed through Sub-decrees and Prakas.
3. The Problem of "Silos" and Overlap
While there are good reasons for spreading the law out, there is also a negative reason: bureaucratic fragmentation.
At times, ministries operate in isolation, or "silos," resulting in limited communication and coordination. Given the interconnected nature of the environment, this often leads to overlapping rules and confusion.
For example, the Fisheries Administration (MAFF) is responsible for protecting flooded mangrove forests because mangroves serve as nurseries for baby fish. But the Ministry of Environment (MoE) is responsible for managing coastal National Parks and preventing pollution. So, if a businessman illegally cuts down a mangrove forest inside a National Park to build a shrimp farm, who is in charge of arresting him? Is it an environmental crime or a fisheries crime?
Both ministries have laws that apply to the same patch of mud and trees. This overlapping jurisdiction means that multiple legal instruments from different ministries apply to the same physical space. To try to fix this confusion, the Cambodian government sometimes has to create special joint committees, such as the National Committee for Management and Development of Cambodian Coastal Areas (NCMD), just to get all the different ministries to sit at the same table and coordinate their separate laws.
Part 4: How This Complexity Affects Coastal Communities
We have examined the overall structure of the legal system, including the hierarchy of the Constitution, Laws, Sub-decrees, and Prakas. We have also observed how various ministries develop distinct rules for marine governance.
Now, Now, let us consider the most important question: What does this complexity mean for coastal residents? How does this legal framework affect a fisher seeking to support their family and protect their local beach?
The Burden of Legal Confusion
For a small-scale fisher, the legal hierarchy is incredibly confusing. When a rural community seeks to protect its fishing grounds from large, illegal trawlers, it cannot rely solely on traditional customs. They must formally register as a Community Fishery (CFi).
To do this, the community members must navigate a massive maze of paperwork. They must understand the 2006 Fisheries Law. They must follow the rules of the 2007 Sub-decree on Community Fisheries Management. They must draft By-laws, Internal Rules, and an Area Agreement that exactly match the templates required by the 2007 Prakas on Guidelines.
This requires a high level of reading, understanding bureaucracy, and patience. For a fisher whose main skill is reading the tides and weather, having to read legal codes and write complex documents is a big burden. Because the law is spread across so many documents, communities often need help from NGOs to understand their rights and complete the appropriate forms.
2. The Challenge of Asserting Rights
The legal architecture promises great rights on paper. The laws say that communities have the right to co-manage their resources.
However, because the laws are so complex and fragmented, it is very difficult for communities to actually assert those rights. Imagine a local Community Fishery patrol is out on the water at night, and they catch an illegal fishing boat using destructive electric gear.
The community knows the fishing is illegal under the Law on Fisheries. But the Sub-decree on Community Fisheries Management often limits the community's actual power to make arrests. Community members usually have to call Fisheries Administration officers or the local police to make a formal arrest. If government agencies are confused about jurisdiction or lack the boats and fuel to respond quickly, illegal fishers can easily escape.
This creates a difficult gap between what the law says and what happens in real life. The community is responsible for managing the water under its bylaws, but often lacks the legal power to enforce those rules on outsiders.
3. Exploitation of Loopholes by Bad Actors
When the law is highly complex and spread across many different ministries, it creates "loopholes." A loophole is a gap or a mistake in the rules that clever people can use to avoid the law.
Because the Ministry of Environment, the Ministry of Fisheries, and the Ministry of Land Management each have different laws for the coast, bad actors such as large illegal trawlers or aggressive land developers can take advantage of the confusion.
For example, a developer may secure a permit from one ministry to dredge sand for construction, while another ministry's regulations protect seagrass beds in the same area. As government departments debate which Sub-decree applies, seagrass is destroyed and local fishers lose their livelihoods. The complexity of the legal system can delay justice and inadvertently shield those who violate the rules.
4. The Marginalization of Customary Rights
Before modern laws were written in Phnom Penh, local coastal and freshwater communities had their own traditional, unwritten rules. These are called customary rights or informal rules. The elders in a village knew who was allowed to fish where, and when certain areas should be left alone so the fish could breed.
When the modern, complex legal system was built with its formal Sub-decrees and Prakas, it sometimes ignored these traditional rules. Formal law requires strict boundaries on official maps. But fish move, and traditional fishing grounds are flexible.
When the state requires communities to write down their rules in a formal "Internal Rule" document for approval by a Ministry, it forces flexible, traditional customs into rigid, legal boxes. If a community does not properly register its area with the proper legal documents, it risks losing its traditional access to outsiders who know how to navigate the formal legal system.
Conclusion: Demystifying the System to Build Power
In this chapter, we have walked through the architecture of Cambodia’s marine law.
We learned that the system is built like a house. The Constitution is the foundation, saying the State owns the ocean and must protect it for everyone. Then, there is a ladder of rules. Treaties connect Cambodia to global standards. National Laws, like the Fisheries Law, are the broad, hard-to-change walls. Sub-decrees are the doors and windows that show how the law should be applied. Ministerial Regulations (Prakas) are the detailed keys that make the system work day to day. Finally, Local Rules apply to specific villages.
We also learned that while there are good reasons for spreading the rules across different ministries, such as the need for expert knowledge and flexibility, this complexity creates big challenges for coastal communities. Navigating overlapping mandates, confusing paperwork, and enforcement loopholes makes it very hard for small-scale fishers to protect their homes and their livelihoods.
However, understanding this structure is the first step toward empowerment. Knowing the difference between a Law and a Prakas enables you to identify the appropriate authority when seeking to change a rule. Recognizing that the Constitution guarantees the protection of natural resources provides a powerful tool for demanding justice.
In Chapter 4, we will take a closer look. We will set aside the high-level structure and focus on Fisheries Law. We will explore the rules regarding fishing licenses and gear, and how communities can use co-management to reclaim their rights on the water.
Keep following along as we continue learning together!
Disclaimer: This blog series is designed purely as a community learning journey for educational and awareness purposes. It is intended to build general legal literacy regarding marine governance and architecture. It does not constitute formal legal advice, nor should it be used as a substitute for professional legal counsel in any formal disputes or administrative processes.