In Cambodia as in many other countries outside the western world tenure rights and forms of tenure are being transformed. As a result of this land is being classified as either formally or informally held. In the western world the land are primarily of the formal kind, but in developing countries there is to a large degree the other way around. In Cambodia for instance about 90 % can be said to fall under the informal category. The reason is that the traditional forms of tenure to land have not been the private form of land ownership as they appeared in the western world throughout the 19th and 20th century. This is however about to change as more and more countries now are adapting to this kind of land structure were the market is seen as the most efficient distributor of welfare to the society. But where most other countries with a similar land history as in Cambodia developed a system of formal property rights during the second half of the 20th century through modernization and gradually adaptation to the market economy, Cambodia was disrupted by war for nearly three decades (So et al. 2001). Therefore land has never been systematically registered or measured.
With the privatisation of the land system in 1989 the country was about to see some fundamental changes in the land structure. Following So et al. (2001) there are few regulatory and control mechanisms in place, necessary for a market economy to function properly. This has been a serious impediment for the developing of a sound land market both for private sector and not least for the population at large. There was perceived to be in fact a fair degree of land equity in the distribution of land in 1989 and that almost all that were eligible actually received land, but this seems now to be in the past as the inequality rate is increasing and with it the category of landless people. Other serious concerns are relating to lack of secure tenure, increasing land conflict and growth of illegal squatter settlements in urban areas. These issues can be seen as having more or less overlapping causes. Of some main possible reasons mentioned by So et al. (2001) for land inequality and landlessness there were cited demographic pressure, large unsettled populations that have emerged throughout the 1990s (for example former refugees), a lack of formal credit markets and also speculative purchases.
When it comes to security of tenure many recipients of land after the 1989 land privatisation were given receipts to support their claims. But of 4-5 million applicants no more than 13-14 % received formal certificates of ownership. Also, after this land have been transferred and sub-divided and to a large degree not been reported to the appropriate authorities (So et al. 2001). Because of this the scarcely percentage of documented formal land has even deteriorated more in that respect.
In a country like Cambodia were the large majority of people have always been rural and living of what the earth could provide them the traditional form of land tenure have been an extensive type in which there are no firm land rights awarded to people by the government, but where the land rights are based on tradition and in agreement with neighbours and local authorities. Often the rights have only been acknowledged by oral agreement and not by documents. This has not been a problem where there has been an abundance of land compared to the people living on it. However, this is now changing as the demographic pressure has set in and also with the introduction of other tenure forms, not least privatisation which has been given priority to in the legal system. The problem arises when different tenure systems interact and this is increasingly happening when the market for land is expanding. For people without the formal law on their side and an understanding of it, this can lead to difficulties when caught up in a land dispute. This is certainly not only a problem in Cambodia, but in many other countries with the same type of dilemmas (So et al. 2001).
One of the results is likely to be a higher degree of land conflicts. The typical case of land conflict in Cambodia can be seen as a combination of three factors 1) no documentation for settlement, 2) an ambiguous legal system with complicated and expensive procedures, and/or 3) a lack of impartial and efficient conflict resolution mechanism. The main reasons for the increasing squatter areas in many cities can be seen as a result of the cities receiving migrant populations in search of a livelihood. Many are illegally occupying land and setting up shantytowns in on land formally owned by the government. Phnom Penh is receiving the largest share of this kind of settlements and immigration, but also other cities are getting their share (So et al. 2001). That was the main reason for why Prachea Thom (PT) was built in the first place and why NPA got involved with the resettlement of 1998 families who until then had been squatting in Poi Pet under very bad living conditions. In section 2 it will be provided some more background information on the PT settlement.
Several of the issues mentioned above can therefore be said to be relevant for the problems in PT as well, both with regards to the reason behind the resettlement and also to the problems that have appeared in the village after its conception. It is possible through PT to see the kind of mechanisms that have been mentioned regarding for instance how land inequality and landlessness are being made, and how much tenure security have to say for people. This will be seen in the relation to the land titling process that has proceeded for some years now and is about to be finalized. Maybe can this study also illustrate some problems with such a formalization process in the context of social land concession.
1.1 Formal property rights, the way out of poverty?
The issue of formal property rights can be said to have been given a new impetus on the development agenda the last years. Even if it is not a new idea about how to secure tenure rights for people or on its effect on economic growth, it has received new attention the last years through the economist Hernando de Soto and his book The Mystery of Capital from 2000. In the autumn of 2005 there was also appointed a High Level Committee on the Legal Empowerment of the Poor (HLCLEP). This committee was chaired by himself and former US secretary of state Madeleine Albright, and also containing several other prominent members. Their goal is to bring further discussion and knowledge on how formalisation of property rights can help to reach the UN millennium goals of cutting the extreme poverty in the world with 50 % by the year 2015. The basic idea is that through incorporating the large informal sector in developing countries into the formal one, economic progress will be made. This is said to be done through a reforming of the property rights legal system to enable the poor to also take part of the formal economy. For the poor in developing countries it is almost impossible to get a formal certificate of their property the legal way because of the procedures and costs involved. What has been said by de Soto and others is that such titles are crucial for people to enable them to improve their housing conditions and to start businesses, because of the otherwise lack of credit access.
Their approach have however, been under criticism from different actors involved in development issues, not least many NGOs and researchers. Even if all are recognising the issue of legally empowering the poor to be of the highest importance the critics are sceptical of this strategy of eradicating poverty for having a too narrow approach, setting up the western type of property rights as the normative one. There are being mentioned several problems with regards to the approach and a good place for getting information on the subject is the webpage http://www.landrightswatch.net. For example there has been raised question about how to secure the rights of people who are using other types of tenure forms like for instance pastoral groups and different types of communal rights. Also there have been highlighted the position of general vulnerable groups in the society like women and indigenous groups and their rights to land. In the cases of cities where private property rights have become the dominating form of organizing the property system, even though other tenure forms still may exist, the question becomes how to secure poor peoples’ tenure rights especially those who live in squatter areas. Many kinds of tenure forms exist in these settlements to which an introduction can be read in Geoffrey Payne (2003), and how to best strengthen these rights under a legal system is being debated. A titling process can then be seemed as both have the potential to strengthen the rights of poor people to the land they are living on, but at the same time there have been many cases were these rights have been even more violated either by unforeseen side effects or by other people taking advantage of the process.
1.2 What is a formal title?
In Cambodia there are many conceptions of what can be accepted as property rights which are “formal enough” because people either do not see the need for something even more official or because they cannot afford it. In areas were there haven’t been any commercial interests before, rights can be recognised as sufficient enough by the fellow understanding between the villagers about who the land belongs to. When a land market starts developing the need for more visible proof is being made. As mentioned many families in Cambodia have application receipts for claims made earlier for their lands. Two main types of documents used for claiming ownership to land are therefore: receipts, a document acknowledging the claim of a person to the land, and certificates, a state authenticated document certifying ownership of land (Chan and Sarthi 2002). The receipts are anyway perceived by many to be the titles and also were considered important against land grabbing and also useful in terms of land sale and property inheritance in places which were more market exposed. The names of the receipts could be changed by the village or commune chief in some places for an unofficial fee, as learned through interviews conducted by So et al. (2001). Besides word-of-mouth, receipts and proper certificates there are also being used transferring documents as proof of ownership. This is very common when land is changing hands and then the buyer and seller make a contract for with the signature of maybe the commune chief or village chief.
The transferring process can also be confusing because authorities at different levels are involved and putting their seal on the transfer papers depending on who the clients are, and the social acceptability of the authority. Also the agencies involved can be different, from local ones to those in Phnom Penh, were some are actually authorised while others are self-authorised (So et al. 2001). But according to the land law the authority for issuing land certificates is the Cadastral Administration at the district level (OLMUPCL). However for a formal title to be issued there is a long and bureaucratic process in many steps which starts with the commune chief and ends in the Central Cadastral Office in Phnom Penh (MLMUPC) for verifying and creating the file from which the final title is made. All the administrative levels are involved which are the commune, district, provincial and the ministry of cadastral in Phnom Penh. The procedure is therefore both a long one and an expensive one. So et al. (2001) mention also another reason for why some are reluctant to register their land transaction officially as this then is being charged a 4 % land tax.
With the privatisation of the land system in 1989 the country was about to see some fundamental changes in the land structure. Following So et al. (2001) there are few regulatory and control mechanisms in place, necessary for a market economy to function properly. This has been a serious impediment for the developing of a sound land market both for private sector and not least for the population at large. There was perceived to be in fact a fair degree of land equity in the distribution of land in 1989 and that almost all that were eligible actually received land, but this seems now to be in the past as the inequality rate is increasing and with it the category of landless people. Other serious concerns are relating to lack of secure tenure, increasing land conflict and growth of illegal squatter settlements in urban areas. These issues can be seen as having more or less overlapping causes. Of some main possible reasons mentioned by So et al. (2001) for land inequality and landlessness there were cited demographic pressure, large unsettled populations that have emerged throughout the 1990s (for example former refugees), a lack of formal credit markets and also speculative purchases.
When it comes to security of tenure many recipients of land after the 1989 land privatisation were given receipts to support their claims. But of 4-5 million applicants no more than 13-14 % received formal certificates of ownership. Also, after this land have been transferred and sub-divided and to a large degree not been reported to the appropriate authorities (So et al. 2001). Because of this the scarcely percentage of documented formal land has even deteriorated more in that respect.
In a country like Cambodia were the large majority of people have always been rural and living of what the earth could provide them the traditional form of land tenure have been an extensive type in which there are no firm land rights awarded to people by the government, but where the land rights are based on tradition and in agreement with neighbours and local authorities. Often the rights have only been acknowledged by oral agreement and not by documents. This has not been a problem where there has been an abundance of land compared to the people living on it. However, this is now changing as the demographic pressure has set in and also with the introduction of other tenure forms, not least privatisation which has been given priority to in the legal system. The problem arises when different tenure systems interact and this is increasingly happening when the market for land is expanding. For people without the formal law on their side and an understanding of it, this can lead to difficulties when caught up in a land dispute. This is certainly not only a problem in Cambodia, but in many other countries with the same type of dilemmas (So et al. 2001).
One of the results is likely to be a higher degree of land conflicts. The typical case of land conflict in Cambodia can be seen as a combination of three factors 1) no documentation for settlement, 2) an ambiguous legal system with complicated and expensive procedures, and/or 3) a lack of impartial and efficient conflict resolution mechanism. The main reasons for the increasing squatter areas in many cities can be seen as a result of the cities receiving migrant populations in search of a livelihood. Many are illegally occupying land and setting up shantytowns in on land formally owned by the government. Phnom Penh is receiving the largest share of this kind of settlements and immigration, but also other cities are getting their share (So et al. 2001). That was the main reason for why Prachea Thom (PT) was built in the first place and why NPA got involved with the resettlement of 1998 families who until then had been squatting in Poi Pet under very bad living conditions. In section 2 it will be provided some more background information on the PT settlement.
Several of the issues mentioned above can therefore be said to be relevant for the problems in PT as well, both with regards to the reason behind the resettlement and also to the problems that have appeared in the village after its conception. It is possible through PT to see the kind of mechanisms that have been mentioned regarding for instance how land inequality and landlessness are being made, and how much tenure security have to say for people. This will be seen in the relation to the land titling process that has proceeded for some years now and is about to be finalized. Maybe can this study also illustrate some problems with such a formalization process in the context of social land concession.
1.1 Formal property rights, the way out of poverty?
The issue of formal property rights can be said to have been given a new impetus on the development agenda the last years. Even if it is not a new idea about how to secure tenure rights for people or on its effect on economic growth, it has received new attention the last years through the economist Hernando de Soto and his book The Mystery of Capital from 2000. In the autumn of 2005 there was also appointed a High Level Committee on the Legal Empowerment of the Poor (HLCLEP). This committee was chaired by himself and former US secretary of state Madeleine Albright, and also containing several other prominent members. Their goal is to bring further discussion and knowledge on how formalisation of property rights can help to reach the UN millennium goals of cutting the extreme poverty in the world with 50 % by the year 2015. The basic idea is that through incorporating the large informal sector in developing countries into the formal one, economic progress will be made. This is said to be done through a reforming of the property rights legal system to enable the poor to also take part of the formal economy. For the poor in developing countries it is almost impossible to get a formal certificate of their property the legal way because of the procedures and costs involved. What has been said by de Soto and others is that such titles are crucial for people to enable them to improve their housing conditions and to start businesses, because of the otherwise lack of credit access.
Their approach have however, been under criticism from different actors involved in development issues, not least many NGOs and researchers. Even if all are recognising the issue of legally empowering the poor to be of the highest importance the critics are sceptical of this strategy of eradicating poverty for having a too narrow approach, setting up the western type of property rights as the normative one. There are being mentioned several problems with regards to the approach and a good place for getting information on the subject is the webpage http://www.landrightswatch.net. For example there has been raised question about how to secure the rights of people who are using other types of tenure forms like for instance pastoral groups and different types of communal rights. Also there have been highlighted the position of general vulnerable groups in the society like women and indigenous groups and their rights to land. In the cases of cities where private property rights have become the dominating form of organizing the property system, even though other tenure forms still may exist, the question becomes how to secure poor peoples’ tenure rights especially those who live in squatter areas. Many kinds of tenure forms exist in these settlements to which an introduction can be read in Geoffrey Payne (2003), and how to best strengthen these rights under a legal system is being debated. A titling process can then be seemed as both have the potential to strengthen the rights of poor people to the land they are living on, but at the same time there have been many cases were these rights have been even more violated either by unforeseen side effects or by other people taking advantage of the process.
1.2 What is a formal title?
In Cambodia there are many conceptions of what can be accepted as property rights which are “formal enough” because people either do not see the need for something even more official or because they cannot afford it. In areas were there haven’t been any commercial interests before, rights can be recognised as sufficient enough by the fellow understanding between the villagers about who the land belongs to. When a land market starts developing the need for more visible proof is being made. As mentioned many families in Cambodia have application receipts for claims made earlier for their lands. Two main types of documents used for claiming ownership to land are therefore: receipts, a document acknowledging the claim of a person to the land, and certificates, a state authenticated document certifying ownership of land (Chan and Sarthi 2002). The receipts are anyway perceived by many to be the titles and also were considered important against land grabbing and also useful in terms of land sale and property inheritance in places which were more market exposed. The names of the receipts could be changed by the village or commune chief in some places for an unofficial fee, as learned through interviews conducted by So et al. (2001). Besides word-of-mouth, receipts and proper certificates there are also being used transferring documents as proof of ownership. This is very common when land is changing hands and then the buyer and seller make a contract for with the signature of maybe the commune chief or village chief.
The transferring process can also be confusing because authorities at different levels are involved and putting their seal on the transfer papers depending on who the clients are, and the social acceptability of the authority. Also the agencies involved can be different, from local ones to those in Phnom Penh, were some are actually authorised while others are self-authorised (So et al. 2001). But according to the land law the authority for issuing land certificates is the Cadastral Administration at the district level (OLMUPCL). However for a formal title to be issued there is a long and bureaucratic process in many steps which starts with the commune chief and ends in the Central Cadastral Office in Phnom Penh (MLMUPC) for verifying and creating the file from which the final title is made. All the administrative levels are involved which are the commune, district, provincial and the ministry of cadastral in Phnom Penh. The procedure is therefore both a long one and an expensive one. So et al. (2001) mention also another reason for why some are reluctant to register their land transaction officially as this then is being charged a 4 % land tax.