Michael Kirk (1996):
Land Tenure Development and Divestiture in Lao P.D.R.

2. Possible Fields of Action

Policy Dialogue

German Development Cooperation possesses specific comparative advantages in the policy dialogue with respect future development of resource tenure in transformation countries which have been used too little until now. A policy dialogue which is primarily carried out at the national level can contribute to the following, whereby the steps should be carried out sequentially in part:

• Increase of awareness of existing and emerging resource tenure problems

In formally centrally organized States, projects of development co-operation must partially take over a function as mediator and catalyst between the central bureaucracy and the local level: through the explanation of deficits in the implementation of the legislation, over newly arising law-free spaces in juxtaposition of statutory and customary law, over erupting land conflicts, new escape strategies to circumvent new regulations, etc.

Existing round tables and working groups between government administration and donors (as in the Dep. of Forestry in Vientiane) pick up weak points, keep talking about them, and work out common resolution suggestions for other Ministries or the legislator.

In presenting the results of short-term consultancies or empirical research projects, a public forum should always be offered at which a broad circle of interested experts, politicians donors and NGO representatives can take part. An open culture of discussion must first be built up again in many countries in transformation; many points of inhibition and fears about contact are broken down by dealing with central technical questions.

• Analysis of comparable experience in neighboring countries

The reciprocal state of knowledge about tenure development in neighboring Laos and Cambodia is slight, but the interest in additional information is great. German development co-operation is seen by partners as an important informant about possible "third ways" for land tenure reforms, it is credited with expert competence, and the "Grundbuch"-system is being striven for as a long-term objective. It is also looked upon as an "honest broker", which does not offer models form the old colonial powers and does not represent any extreme ideological positions (private versus state property).

International workshops on technical problems (cadastre as multi-purpose land information system) or policy workshops at the level of Departments ought to be promoted as far as there is a demand for them. In Laos especially, the positive and negative effects of land titling in Thailand have only been inadequately taken on.

The exchange of information with countries in a comparable situation can help and can strengthen the position of critical administrators, researchers and politicians in the respective countries. If they are invited as resource persons and taken notice of internationally, this will strengthen their positions in their own countries without donors being accused of exerting a direct external sphere of influence.

• Clarification on future problem areas

Development cooperation ought to build up the dialogue of partner countries with those countries which already have far-reaching experience in market-oriented resource tenure regimes. In the near future in Laos there will be a need for negotiating in the areas which so far have scarcely been taken notice of by the political debate (the list is incomplete):

• the growing importance of rental arrangements in rural areas,
• landlessness
• intensification of agricultural production and repercussion on land tenure,
• co-ordination of different systems of land registration,
• splitting up of plots and the need for land consolidation,
• land as collateral and increasing power of agricultural banks
• conversion of agricultural land and conflicts over appropriate land use.

• Initiation of broad discussions on the future of land and agriculture

If partners have recognized negative effects of market-oriented land policy in other countries, development cooperation is confronted with great challenges. It ought to prepare the national actors for the approaching changes and must prevent the government from restricting the freedom of transfer of land, imposing land ceilings, and restricting the activities of foreign investors, etc. through political advice in the face of the expected social consequences.

New policy orientations, which must be brought into the discussion so as to secure the process of transformation, are:

• limited access to land for a growing population in future and the need to concentrate on the access to income (multiple employment, part-time farming)
• sectoral and structural change, including the growth of rural towns with new uses for land (commerce, service, tourism, etc.)

 

• Demonstration of alternative policy options

In countries which are at the beginning of the process of transformation the following policy alternatives should be discussed intensively:

• demonstration of the whole spectrum of property rights regimes. As well long-term, inheritable rights of utilization give tenure security and permit investment.
• Comprehensive, but expensive nation-wide land titling based on the Torrens System versus less formal, but compatible approaches in rural areas.
• Basic framework laws with only a few clear principles (hierarchy of legal instruments) versus very detailed laws, and regulations as legal substitutes.
• Critical discussion on the minimum level and the implication of decentralization and the reasons for a strong central government with the will and the ability to implement and enforce policy

• Informal Influence on the Process of Legislation and Implementation

The experience of donor-sponsored programmes and projects in Laos have shown that committed groups of officials in the line ministries who are supported technically and morally by external donors can most certainly improve the resource tenure-related legislation (e.g. watershed management in the new water law). Workshops, consultancies and research deliver important arguments and can influence the forming of opinions.

• Acting as Lawyers for Disadvantaged Groups

International donors must fulfill a long-term task here which will never be completed: they are lawyers for smallholders, animal holders, women and migrants who are only able to form themselves into a pressure groups with difficulty. In addition, donors must permanently defend the benefits of greater freedom of the decision making in land management at the local level against the encompassing influence of the central state.

• Strengthening Dialogue between International Donors

Internal political dialogue is highly necessary in Laos in order to be able to avoid future parallel work and clashes, and also to be able to achieve central goal setting outwardly with one voice. Since resource tenure is an ideologically burdening and very sensitive subject, it cannot be assumed that an agreement on guiding philosophies and principles can be achieved (role of private property, restriction on land markets, etc.)

• The build up of International Networks.

This ought to encompass the exchange of information (via e-mail or other networks), the discussion of acute problem areas in (electronic) conferences with the relevant national and international decisions makers and research institutions as well as the setting up of data banks for bibliographies, experts, etc.

Training and Research

In Laos, as in other neighboring countries, there is a drastic shortage of competent and well-trained staff from the district level up to the national level. This will also be a bottleneck in the coming years in the implementation of new legislation. In all training measures, it must be tested whether a small country like Laos has the necessary capacity for being able to organize country-specific further training, or whether regional-specific collaboration should be striven for.

• Short and medium-term courses and/or training on the job in the country or overseas ought to be offered to Lao civil servants from the Dof, DOLHM, STENO, CPAWM, etc. at the national and province levels in close cooperation with other multi- and bilateral donors. The contents of these courses should be determined by the partners and the projects: including belong land use planning methods and tools, participatory village development planning, GIS, methods for organization development, etc.
• This advanced training can be carried out in part within the framework of already existing programmes by the German Foundation for International Development (watershed programmes) or through other organizations in the Asian region (Land Reform Training Institute Taoyua/Taiwan); new modules must be worked out specifically.
• The advanced training of judges at all levels is highly necessary so as to enlarge the rule of law in land tenure conflicts. Technical development co-operation ought in any case create framework conditions and work with volunteer services, experienced lawyers from the country as well as the political foundations.
• In the imminent setting up of the forestry and agricultural schools and colleges in the country and the development of their curricula, attention should be paid to the fact that land and resource tenure as well as the interaction between tenure and agricultural/forestry and rural development takes up a much greater amount of space in curriculum planning as was previously thought. Only in this way can future generations of bureaucrats also be convinced of the continuation of the adopted path of reform. In concrete terms, this means that external experts in resource tenure development ought to be included in curricula development systematically as well.
• At the same time, it should be tested how adequate existing textbooks and existing didactic material are, and whether new ones should be written.
• Since a Master's Degree, which is relevant to land tenure, cannot be obtained in most disciplines in Laos at present, support for above-average candidates for further training is necessary so as to thoroughly train future leading local experts. Accordingly, qualified Master's Courses in neighboring countries, or in Europe, Australia or the USA must be identified which specifically deal with land tenure-related issues.
• The same goes for the minority of top experts who are undertaking further academic education (PhD) in order to be able to take over principle tasks in economics and administration, or to be active in research and teaching in their country.
• In view of the research capacity in the country which is at present in an inadequate state, the current programmes and projects will also have the task of supporting applied, empirical research: for one thing for the improvement of their own data bases, and for another, as an investment in future counterparts and competent Lao consultants. Besides natural sciences, the up to now neglected fields of applied (agro-) economics, socio-economics, sociology and anthropology should be specifically supported.

Finally it should be mentioned that the further training of staff at the district level should be carried out primarily in the country itself in co-operation with other projects and programmes.

Specific Initiatives

1. In Rural Areas

The concrete steps for securing property rights to land in rural areas, the respect of customary rights, and securing the participation of the local population in land demarcation, registration and land use planning, etc. encompass a broad field of application within different project/programme types: regional rural development, buffer zone management, refugee support, (re-)settlement programmes, watershed management, environmental action planning, food security programmes as well as all approaches aimed at increasing agricultural and forestry production through technical innovations, etc.

• Strengthening the Implementation Capacity for resource-related legislation

Reforms of the legal framework which are as broadly imposed as they are in Laos with new responsibilities at the local level, require enormous effort in their implementation: pilot phases for testing implementation instruments, development of manuals, staff training, co-ordination between various departments which are involved in land demarcation, resource management contracts, etc. The success of technical projects stands or falls with the successful implementation of the new regulations.

• Assessment of existing property rights regimes in a project area

It is necessary for the success of a project that all existing property rights systems in the context of a village, a watershed, or a district etc. are known so as to be able to implement specifically effective instruments.

Agricultural extension projects require this information in order to be able to estimate the investment behaviour of potential adopters. Regional rural development and (re-)settlement programmes for planning infrastructure and land use planning, and all programmes which are dependent on the communal co-operative action of the population for the protection of resources (buffer zone, watershed management, water user associations), are likewise dependent on pre-information. This list could be extended.

Stronger co-operation with NGO's, capable locally working officials, and research organisations which have experience with empirical socio-economic research locally are all also necessary.

• Securing property rights of actors involved

The assessment will show in many ways that ownership rights and temporary rights of utilisation are only inadequately protected, that groups are disadvantaged in the access to resources, and that conflicts exist either latently or openly. It will help greatly in Laos if the registration of land (for tax purposes) is supported at all levels, so as to achieve clarity in the legal position at the village level.

Here as well the instruments and resolution approaches are dependant on the very property rights regime which should be secured. Titling/registration can only be a solution for intensively used land; the viable solutions for communal property or the overcoming of open access are often more complicated.

• Integrating customary rights as an integral element of project/programme work

As in other countries, the legal position especially for customary rights is still also unclear and uncertain. However, for project/programmes, there are numerous positive signs of the legislator, to be seen customary rights actively as an integral element of project planning and to look upon itself as the lawyer for the users of these rights.

• Improved dissemination of the content of the new resource related legislation

The daily work in the villages and districts should be more strongly used for overcoming the historically developed rift between the Central State and the local level as well as a measure for building up trust, so as to impart the ideas for participatory resource tenure development, land use planning, for contacts for family plantations which are contained in the Decrees 169, 186, etc. more strongly.

• Encouragement of the participatory making of legal instruments

In pilot schemes, impractical implementation instructions or ordinances could be reformed in a following step together with the local population, or drafts for new regulations could be developed which are looked upon by the population as being urgently required.

2. In urban and peri-urban areas

If development co-operation in countries in transformation undertakes new activities in the area of land titling, analyses should be carried out locally - taken up by existing projects - of the dynamics of land markets, both for the sale of land as well as for temporary transfers (leasehold, mortgaging). This would also make the rules for land transfer clear as well as the importance of sales to non-farmers and for non-agricultural use.

Work like this provides valuable information about actors involved, pressure groups, even violence and thus the political dimension of titling. It makes it easier to estimate the ex-ante success of projects as well as of expected blockages and risks. It must be decided from case to case if this should happen via short-term consultancies, applied research or activities within running projects.