Land Tenure Center Newsletter
Number 82, Fall 2001, p. 1-5, 8
National Road 10 from Battambang in Northwest Cambodia to Pailin on the Thai border is a cratered gravel track that four-wheel drive vehicles and trucks creep along, picking their way around the potholes. At one point, between villages of modest wood houses, the road passes through several kilometers of territory almost entirely uninhabited and unused, covered in scrub trees and interrupted by an occasional farm plot. Asking locals about who owns this sparsely-used land along the road brings a complicated answer: It’s state land but claimed by a regional military commander; farmers abandoned it years before; new occupants have settled informally in a few places; but it might be classified as forest, in which case it belongs to the Forestry Department. Questions about landownership in Cambodia do not have simple answers.
The total area of the Kingdom of Cambodia is 18.1 million hectares, most of it lying in the floodplain of the Mekong River. In the center of the country, Tonle Sap Lake occupies an area of a 300,000 hectares in the dry season and swells to over a million hectares in the wet season. Land always has been a fundamental asset for the agriculturally-based society of Cambodia, and 84% of the population is rural, relying primarily on agriculture, fishing, and forest products for its livelihood. More than half of Cambodia’s land is forest, but illegal logging is leading to rapid deforestation. Good agricultural land is increasingly scarce.
The tangled land tenure and management issues along National Road 10 are a microcosm of those throughout Cambodia and result from upheavals of the Khmer Rouge period and the shifts in governance and population during the 22 years since that regime ended. The turmoil of the previous three decades created uncertainty and abuse in the allocation and documentation of property rights. Now that the country is experiencing political stability and economic growth for the first time in decades, the government has turned its attention from security concerns to economic development, including issues of land administration and management.
In 1998, Cambodian GNP per capita was only $260, and the country ranked 134 out of 174 countries on the United Nations Development Programme’s Human Development Index. Thirty-six percent of Cambodians live below the poverty line on less than 50¢ a day. Oxfam estimates that 20% of rural residents are landless.
Cambodia’s poor development record and the roots of the complicated land tenure situation in the country today can be traced through the land policies of the successive regimes that have governed Cambodia since the United States-supported Lon Nol government fell in 1975 to the Khmer Rouge, who renamed the country Democratic Kampuchea. During this period (1975-1979), land tenure and cadastral records were destroyed, and private property was abolished. All land belonged to the state organization. Cities were evacuated and Phnom Penh became a ghost town. The population was relocated to communal farms and labor sites, mostly devoted to building water control and irrigation structures. It is estimated that nearly two million people were executed or died as the result of Khmer Rouge mistreatment.
Following the Vietnamese invasion and defeat of the Khmer Rouge, the People’s Republic of Kampuchea (1979-1989) was established. During this period all land officially belonged to the state, and collectives that occupied and used land for agricultural and residential purposes were established. Phnom Penh and other cities were repopulated, with rights asserted through the act of possession.
By 1989, collectivization of agriculture had failed. The government began reforming the economy towards a free-market system. In addition to implementing major economic reforms, the government reintroduced private property rights for residential plots up to 2,000 square meters. Political Instruction No. 3 decreed that all land rights established prior to 1979 were null and void and that all land belonged to the state. It established the right to occupy and use land and to sell land provided by the state for domicile and exploitation. Three categories of land were established:
Private ownership rights could be obtained only on land for domicile. On cultivation land and concession land respectively, only possession/use rights and the right to exclusively occupy could be obtained.
On the basis of Political Instruction No. 3 and Sub-decree No. 25, collectivized agricultural land was redistributed to private households in sizes ranging from 0.1-5.0 hectares. Residential and housing land was distributed for ownership and productive land for possession/use. The remaining land was kept as state land for future development. The 1992 Land Law continued to recognize ownership rights for residential properties and use rights for agricultural plots up to 5 hectares. Maintaining a distinction from the French colonial period, the land law recognized state public land and state private land as distinct domains. Only state private land can be released for concessions, sold, or granted to private entities.
The 1992 Land Law did not provide a solid platform for full tenure security or for effective land management, partially because it failed to annul previous legislation and because its contents did not fully reflect the 1993 Constitution, which recognizes landownership rights in a broader sense. Nor did it result in systematic documentation and registration of landholdings. Certificates for land for domicile and land for cultivation and possession were to be issued and registered, and around four million applications for these certificates were made. Due to the security situation and the lack of governmental resources, few certificates were actually issued. Most landholders only have the receipt for the application they filed as a document proving their rights. In many cases these receipts are now used to transact property. Full certificates can be received from the Ministry of Land Management, Urban Planning and Construction (MLMUPC), but in these understaffed and undersupervised offices, the issuance of a certificate is slow and prohibitively expensive, with much of the expense coming in informal payments to expedite the process. Most transactions are not registered, and the absence of strong documentation proving one’s rights has made it difficult for ordinary citizens to combat land grabbing and fraudulent claims.
As a result of these shifts and dislocations, social and legal legitimacy of landholding varies widely. Residences and longstanding agricultural plots that were distributed in the decollectivization process are generally well-known and recognized, particularly in the southeast part of the country, which was less affected by the civil wars. The situation is less clear at the edge of forested areas, in the areas around the Tonle Sap, in areas where agricultural concessions have been granted, in areas that have been recently repopulated, and in areas that were under military control. In these places, occupants and representatives of state power often clash.
The Government of Cambodia has not yet come up with a comprehensive policy for managing it own lands. Indeed, the extent and location of state lands are only estimated and primarily defined negatively: state lands are those areas where no private use or ownership right has been strongly asserted. Concessions for forest and industrial agricultural exploitation are issued by two different departments in the Ministry of Agriculture, Forests and Fisheries.
During the 1990s, a few companies received vast agricultural concessions. Often these concessions were made with little study of the existing situation on the ground but are simply established as areas drawn on a map, with no regard to the location of existing occupants, roads and other public infrastructure, or soil and geographic characteristics. Rental payments for the concession are stipulated as "to be determined" in the concession contract, and there is no monitoring of compliance. Nevertheless, the presence of concessions keeps large areas of land out of use and threatens longtime occupants of these areas with dispossession.
In 1999, 24 logging concessions covered almost 7 million hectares, approximately 40% of the country’s area. After public outcry from nongovernmental organizations (NGOs) and others, these have been reduced, but they still take up most of the north, northeast, and southeast portions of Cambodia. Estimates of forest cover, although they diverge in definitions, vary from 30-40% of the country’s land area, approximately one-half of what existed 40 years ago.
Although some of Cambodia’s forests are cleared by farmers obtaining household fuel and practicing shifting agriculture, deforestation is caused predominantly by commercial logging, much of it either illegal or uncontrolled. Cambodia already has one of the world’s highest rates of deforestation, and this is likely to accelerate. Forest concessions also cover much of the area occupied by Cambodia’s indigenous upland tribes, and this has caused conflict.
The definition and delineation of forests are complex and contested points of state land management in Cambodia. The Forestry Department tends to favor a maximalist definition of the state domain in forest (essentially, that a forest is anywhere there have ever been trees). In this way, it seeks to reserve the right to classify many areas of degraded forest as being within its domain, although there are no plans for future forest development in these areas, and indeed many are under cultivation. The rights of farmers with plots established in "forest" areas and those of villagers who depend on non-timber forest products and firewood are unclear and have resulted in conflict. Definition of the fisheries’ domain also produces land tenure conflict. Around Tonle Sap Lake, many of the richest fishing grounds are agricultural areas when not flooded, but are coveted fishing lots during the flood season.
State land used for military purposes is another delicate issue. Cambodia is in the midst of demobilizing its military and needs land for housing and agriculture for many of the demobilized soldiers. When the civil war ended, many areas still were under de facto military administration. Military commanders in local regions asserted control of sizable areas and often appear to be engaged in private land grabbing. The current government owes much to its supporters in the defense forces. How it will resolve land-related relationships with military figures is an open question. A number of disputes between villagers and military commanders are now in the courts.
Similar to the issues with military land, the government has yet to resolve how to allocate control of state land among levels of government. At the moment all state land is technically under the control of the central government, under the purview of whatever ministry claims a functional reason for managing a particular land area through its provincial and district apparatus. Lack of transparency and accountability has led to a series of conflicts and abuses. Government is being decentralized, and whether certain areas of state property should become property of sublevels of government is a subject for debate. It seems clear that there needs to be an oversight function for state land exercised from the top, through an interministerial commission. To coordinate priorities and work out policy agreements among the powerful national ministries and local elites, the government created the Council for Land Policy, composed of nineteen ministerial representatives. This body, however, does not yet have the operational strength to properly manage the role of overseeing state land.
Resolution of land issues is one of the many challenges of development and governance needed to institutionalize stability and prepare the groundwork for sustained growth. As Cambodia finally enjoys a period of prolonged peace, its troubled economy is starting to respond. Economic growth was 4.5% in 1999 and 5% in 2000, but it will take years to repair the damage inflicted by decades of conflict. Continued expansion of exports, especially in the garment industry, and a nearly 41% jump in tourism revenues (to $90 million in 1999 from $64 million the previous year) accounted for much of the rise.
For growth to continue, sectors such as agriculture and forestry must play a larger role. For the government budget to begin to repair infrastructure and provide social services, revenue from agricultural and forestry concessions must increase accordingly. Land tenure security in agricultural areas and sound land management in forestry (particularly the curtailing of illegal logging) are germane to the success of these sectors.
While recent economic indicators are encouraging, basic institutions in Cambodia are still weak. Recent political history has created a type of strongman democracy that sets the parameters on what is possible in the country. The UN-brokered peace process and transitional administration (1990-1992) ended the civil war and led to the creation of the current Kingdom of Cambodia, a new constitution, and elections in 1993, which were apparently won by the FUNCINPEC party, led by Prince Ranariddh, son of King Sihanouk. The Cambodia People’s Party (CPP) of Hun Sen (the former Khmer Rouge fighter who defected to lead the Vietnamese-supported government in the 1980s) protested the results. Threatening renewed civil war, the CPP pushed itself into a tense power-sharing government with FUNCINPEC that featured both Hun Sen and Ranariddh as co-prime-ministers.
In July 1997, Hun Sen, fearing that Ranariddh was close to making a deal with holdout Khmer Rouge generals, ousted Ranariddh in a coup d’état. International pressure forced Hun Sen to hold elections as previously scheduled in July 1998. The CPP won the election with only 41% of the vote, requiring the CPP and FUNCINPEC to form a new coalition government. This government is clearly dominated by the CPP which remained in control of all military and police operations and primary ministries such as defense, finance, interior, and agriculture.
Since 1998, and for the first time in 30 years, there has been no fighting anywhere in Cambodia. Nevertheless, the importance of the military to Hun Sen’s government, the constellation of elite economic interests around the CPP, and reports of corruption at all levels have created a context in which land grabs are common and protection of land rights weak. Passage of the 2001 Land Law appears to represent a break with past practice, with the law having support from the highest levels, but how that support will play itself out in practice remains to be seen.
The centerpiece of the new public focus on land is the land law passed in August 2001 after years of preparation and unusually inclusive public debate. The land law establishes for the first time the right of private ownership for both residential and agricultural holdings, offers a sweeping one-off provision for "extraordinary acquisitive possession," which recognizes ownership for plots that have been under unconflicted possession for at least five years, and establishes a decentralized, parcel-based registration system. The law creates a platform to resolve politically-charged questions surrounding control and disposition of the state’s landholding, which hinge on the distinction between the state’s public domain and private domain. Provisions are also made for a land distribution mechanism ("social concessions"), and communal tenure is established for indigenous communities and religious sites. The law puts a ceiling of 10,000 hectares on industrial agricultural concessions. While some aspects may need amendment after the expected introduction of a new civil code in 2003, the 2001 Land Law is, on paper, a relatively comprehensive instrument to protect and regulate private and public interests in land.
Yet, implementing even basic provisions in the land law will take many years and challenge elite interests that have benefited from the lack of transparency surrounding landholding. Most of the subdecrees and regulations necessary to execute the law have yet to be written. Government staff to carry it out are thinly stretched, poorly equipped, and distrusted by the population. It remains to be seen whether the political wherewithal exists to enforce the new law’s provisions regarding land grabbing, concessions, illegal logging, and, perhaps most importantly, state agencies.
Key issues that will have to be addressed include the reduction of giant agricultural concessions granted to insiders and rarely exploited, the fate of large areas of land remaining under military control, encroachment of new farms into virgin forest, clarification of overlapping rights for agriculture, forestry and fishing, issuance of indefeasible right-proving documents for agricultural and residential land, determination of the boundaries of state land, and the protection of indigenous tenure in highland areas. A large number of existing land conflicts remain unresolved, most of which involve protests by local inhabitants against the assertion of rights over large areas by powerful political or military figures. The newly-created Council for Land Policy, after 10 months of sporadic discussion, still has only circled these troublesome issues.
As evidenced by passage and implementation of the 2001 Land Law, the Royal Government of Cambodia has begun to pay a great deal of attention to land issues, spearheaded by the MLMUpc.gif This Ministry was formed in 1999 out of departments of other ministries. The MLMUPC’s Minister, H.E. Im Chhun Lim, is a senior and respected figure in the CPP government. Besides lobbying for the new land law, the Ministry brought the Council for Land Policy into being, issued a preliminary land policy framework, and started on a number of pilot projects in land registration and land management, with financial and technical assistance from the governments of Germany, Finland, Denmark, and Japan, and the World Bank and Asian Development Bank.
The MLMUPC has proven itself unusual in Cambodian politics in welcoming NGO participation in the deliberations on the new land law. It is putting in place loan support from the World Bank and technical support from GTZ, the Government of Finland, and the Asian Development Bank to begin implementing the land law on a wide scale during 2002.
In land issues, Cambodia is literally mapping out its future. The country has the opportunity to use the favorable constellation of political stability, donor support, and the momentum of groundbreaking legislation to institutionalize a land tenure system that gives security to smallholders and protects the public interest in the use and disposition of state property. It can also squander this moment if it fails to create an orderly and secure system that recognizes long-term possession and efficient use as the basis for property rights and continues to permit those with inordinate power to use the country’s land and forests as a private slush fund. The direction it will take, like most of what matters in Cambodia, seems to hinge ultimately on the desires and political calculations of Prime Minister Hun Sen. Although destinations on this map remain vague, current developments offer cause for cautious optimism.
Dr. Childress is a Research Scientist at the Land Tenure Center. His activities focus on land policy and administration, agricultural development, and upgrading informal settlements. He frequently works in Cambodia as an advisor to the Government in creating a national land policy framework. He also is co-investigator in a long-term study of new agricultural enterprises and land reform in the Kyrgyz Republic. He holds a Ph.D. in Development from the University of Wisconsin-Madison.
Copyright © 2001 by Land Tenure Center and Board of Regents, University of Wisconsin. All rights reserved.
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