Footnotes:

Footnote 1: If the given characteristics which constitute a social and economic order ("Wirtschaftsordnung") get replaced by others, the "fundamentum distictionis" becomes altered (Kloten 1989:99). A new institutional environment, a new order, is developed which is marked by other planning, voting and coordination processes, and a "qualitative" leap takes place. In this case it is called a transformation. In all cases this is the result of profound political intervention and a general decision against the old institutional environment (Schüller 1992). If the change is restricted to corrections of individual characteristics, then it is completed within existing order as a gradual, qualitative change. The institutional environment remains as it is - based on central distinguishing criteria, such as planning or decentralized markets. In this case one is dealing with a reform. The boundary between the two phenomena is fluid (Kloten 1989).
Footnote 2: For the resulting negative effects of the unmodified transfer of French resource legislation to former French colonies, see Münkner 1995, Kirk 1994, Kirk & Adopko 1994.
Footnote 3: The conflicts over the environmental and socioeconomic consequences of major projects become abruptly clear in Laos in the present on-going controversy about the environmental impact of the Nam Theung 2 Hydropower Project in Central Laos (Klemm 1995).
Footnote 4: The term "legislation" in the report refers to different legal instruments, such as laws, decrees, orders, and regulations.
Footnote 5: An example of this is the varied history of the Land Tax Decree.
Footnote 6: Since 1988 the Supreme People’s Assembly and the National Assembly (since 1991) have adopted a total of 35 specific laws (Mayouri & Lamb 1995).
Footnote 7: The English translation of the wordings of Laotian law are of varying quality, so that important differences, such as the difference between "possession" and "ownership" are per force not always correctly rendered which makes it harder from time to time for outsiders to evaluate and interpret it.
Footnote 8: The specification in writing of the transfers is mentioned in the Decree on Document Registration (No. 52 from 1993), according to which, all types of legal documents pertaining to the transfer of property, use of assets, assignment of rights to individuals or juridical entities, contracts, etc. shall be registered "...to ensure their enforceability and legal value" (Art.2) (see II 3.).
Footnote 9: In combination with the Contract Law, the Law of Inheritance and the Family Law. See II 3.
Footnote 10: Information about the maximum leasing period is not uniform: 25-65 years are set down for farm land; cases of 15-year leases for pasture land have been reported whereby the leasing rate of $2-9/ha varies (including land tax). Such leasing contracts are normally negotiated and completed at the Provincal Administration level.
Footnote 11: The marginal tax rate is 30 percent.
Footnote 12: The state of information from the Ministry of Justice, 13th October, 1995.
Footnote 13: At this stage, the discussion in the Government has not been completed about whether there should be an independent Forest Police, or whether this should be the work of the Police in general.
Footnote 14: The English translation is moreover so poor that most phrases make no sense to the reader. Furthermore, it is unclear if this temporary provision is still legal.
Footnote 15: A minimum plant density of 1.000 trees/ha has to be proven here. This gives rise to immediate problems for agroforestry plans which are indeed supposed to ensure sustainable management of the land, but which require a lesser plant density. Such projects enjoy at present neither tax advantages, nor the registration and acknowlegement of land titles.
Footnote 16: The Land Tax Decree must also be brought in here since it grants tax exemptions in order to promote commercial reafforestation and the setting up of plantations.
Footnote 17: "Water resources and water sources are the property of the Lao people as a whole, where the Government acts on behalf of the people to manage and to evenly and equitably share the uses of the water" (Art.4 of the new Water Law, draft version, December 1994).
Footnote 18: If one adds nine further suggested Protected Areas, the percentage of the area rises to 16.4 percent.
Footnote 19: The Organization of Science, Technology and Environment (STENO) currently has the mandate to form the framework of the environmental policy and to develop concepts for environmental legislation.
Footnote 20: Estimations vary as to how Lao citizens accept the new judiciary. While lawyers who practice in Vientiane's courts still see large obstacles, international donors are optimistic: "It is certainly both interesting and encouraging to see that more and more people are resorting to the Courts in order to advocate their rights and settle their differences." (Schneider/El-Erian 1994:112)
Footnote 21: This is done through the International Human Rights Law Group with the "Cambodian Court Training Project".
Footnote 22: Compensation is guaranteed in such cases.
Footnote 23: Only contracts with a value of under 5,000 kip may be made verbally. Lease contracts always have to be set down in writing (Art.10).
Footnote 24: new Tax Decree is being drafted by the Ministry of Justice together with the Ministry of Commerce and the Ministry of Finance (Lao PDR 199_a:11).
Footnote 25: As a general legal principle, an abolished piece of legislation may be used as a guideline in the absence of other prevailing legislation (Lao PDR 199_a:11).
Footnote 26: The law states that a written will is to be registered with the court registry, or with the village administration committee where the legator lives.
Footnote 27: A curious example: if a tree planter does not register every single receipt from every sale of young trees cut for use as construction poles, he can become a law breaker.
Footnote 28: It exists in contrast to the complete destruction of all traces of land registration under the Stone Age Communism of Pol Pot in the Cambodia of the 1970s (Kirk 1996).
Footnote 29: Emphasized by me. M.K.
Footnote 30: The Decree on Document Registration was enacted for this purpose.
Footnote 31: Here the - possibly consciously - unclear separation between "rights of use" and "ownership" throughout the Laotian State is again conspicuous.
Footnote 32: This demand profile is based on the partially very negative experience of the Bank with Land Titling Programs in other countries which could be accounted for in: lack of political support, conflicting bureaucratic priorities, lack of institutional capacity, underestimation of the complexity (World Bank 1995c:11f).
Footnote 33: It achieved a registration rate of only 10 percent in the parts of the city involved in the pilot scheme.
Footnote 34: The term state ownership is defined in the Property Law. Indistinctness in the concept of ownership, on the other hand, arises for outsiders because the whole country is State-owned in reality according to the Constitution. Lao PDR draws very fine of distinction in that the framework laws always talk about "ownership of the national community".
Footnote 35: The DSA holds the national Government shares in enterprises which are divested through privatization. It has been the major player in the privatization program (World Bank 1995c:6).
Footnote 36: It has not yet begun its work in Luang Prabang Province, in Xieng Khouang Province it started in the fiscal year 1994/95. Indeed, it only meets irregularly and restricts itself to arbitrating land conflicts.
Footnote 37: Penalties are derived from the Decree on Document Registration (No. 52).
Footnote 38: Measured against the presumed extent of money making in Cambodia, in Phnom Penh in particular, where "land laundry" with the assistance of the awarding of new land titles is openly talked about, the extent must be estimated as being distinctly less (Kirk 1996).
Footnote 39: An anonymous paper from the NGO world did the rounds of the donor circles in Vientiane which, going from a criticism of the lacking integration of customary rights, strongly questioned the land titling approach.
Footnote 40: The Constitution ensures in Art. 8 that: "All ethnic groups have the right to protect, preserve, and promote the fine customs and cultures of their own tribes and of the nation".
Footnote 41: In the Province of Xieng Khouang, extensive information is available: of the total revenue from land tax, 35 percent was from private land (paddy fields and orchards), and 13 percent was from upland fields. Thus the total percentage of land tax from agricultural land is 48 percent, 27 percent was from construction land, and the remaining 26 percent was collected through fees which were calculated into the total revenue.
Footnote 42: The information is basically based on information from those officers responsible in the Land Office in Keo Udong, Vientiane Province, and Nuang Nam, Luang Prabang Province.
Footnote 43: On average, five people from the village take part.
Footnote 44: 95 percent of all tax revenues has to be paid to the Central State, and 5 percent remains in the village. Before the reform of the land tax it was 40 percent at the District level. This is a further indicator of the tendency for decentralisation to be supported only in parts of areas, but the power of the Central State to become stronger in budgetary questions. Up to 50 percent of due fees can be used by the District Authorities, but planned projects have to be applied for in Vientiane.
Footnote 45: In Vientiane Province, the State has in part bought up land to give it to refugees and returning families.
Footnote 46: In rural structured Xieng Khouang Province, the Land Tax made up about 6 percent of total tax revenue.
Footnote 47: All the more, the autonomy of the provinces has been a major factor in contributing to the low levels of tax collection at the central level (Gaston 1995b).
Footnote 48: The legal foundations for these reorganizations are to be found in the Decree on the Organization and Operation of the Ministry of Agriculture and Forestry (No. 84 from 1991), the Decree of the Organization of the Ministry of Finance (No. 104 from 1993) and Tasks, Rights and Duties of the Department of Forestry (No. 355 from 1992 revised by No. 0636 from 1995) (see Appendix 2).
Footnote 49: A village head in each community, elected every two years, heads the Village Committee.
Footnote 50: In the course of strengthening the participatory element in the legislation, village women’s organizations, the security committee or the youth organization which at present still originate from the socialist period, are consciously involved in individual cases concerning land and forest management.
Footnote 51: Provincial Instruction No. 08/LP, 13th Oct. 1993, see Appendix 2.
Footnote 52: This is recognised, for example, in Art. 19 of Decree 186 On the Allocation of Land...".
Footnote 53: For example, the ILO Conventions, 107 and 169.
Footnote 54: "...It means that under current Laotian law, customary rights are not recognized and traditional economic activities are made largely illegal. This is a formula for conflict between local communities and Government. Unfortunately, proposed changes in the law and the Government’s express policy are likely to worsen this situation, not improve it. The reason is that the Government has an express policy of eradicating shifting cultivation..." (Colchester 1992:3)
Footnote 55: Agreements containing economic incentives are, for the subject covered by the Order, generally more effective in affecting economic activity than are legal means (Lao PDR 1995d:8).
Footnote 56: See Articles 1 to 10.
Footnote 57: At the presentation of the preliminary results of this study on 13.10.95 at the Ministry of Justice, at which high-ranking representatives of the Ministries of Justice, Agriculture and Finance amongst others took part, as well as various donor organizations, the discussion about the necessity of the explicit inclusion of customary rights in statutory laws took up most of the time.
Footnote 58: Art. 3: "Custom is the result of practices and usage which have the following characteristics:...They are old (at least one generation)...".
Footnote 59: The process of dispute settling remains additionally unclear when it is stated in the OCR that review shall be sought immediately in the Supreme Court in cases of disagreement proposals at the local level. This is a mistake in printing and translation since the Supreme court is not meant as the immediate next stage, but rather the court of first instance.
Footnote 60: Even the fundamental World Bank studies about the socio-economic development of the Lao PDR in the last two years scarcely describe the gender-specific differentiations (World Bank 1994, 1995a,b).
Footnote 61: The information processed here comes in part from sources of the Lao NGO network which are not meant for publication.
Footnote 62: "Basic Guiding Manual on Initial Land and Forest Allocation in Luang Prabang Province for Leading Committee and Technical Staff" (January 1995), "Provincial Instruction on implementation of the state degree (sic!) on land and land taxation" (No. 08/LP, 13th Oct. 1993), as well as "Provisional Ministerial Direction on Adjudication of Land Possession and Use Right" (No. 990/MoF, 27th Sept. 1995).
Footnote 63: There is no reliable data about the percentage of households with female heads. In a sample of World Bank Studies, the percentage was about 5%, mostly widows.
Footnote 64: In the project for disseminating the reformed legislation carried out by the Ministry of Justice a) resource tenure-related law only made up a part of the whole program, and
b) it above all fulfilled the objective which was to make the position of the central State Administration known in the provinces which did not inevitably want to promote women’s interests.
Footnote 65: Through the bombing and mining of fields, the defoliation of the forests and chemical contamination for example in the Xieng-Khouang Province (Lao PDR/GTZ 1994).
Footnote 66: This does not, however, mean that one should think of a bimodal form of land distribution as in Latin American countries (Thiesenhusen 1996). See as well "Neue Zürcher Zeitung":"Spätfolgen des Vietnam-Krieges in Laos" (10.4.1996).
Footnote 67: The Water law passed in March 1996 also purposely includes watershed management as a basic level of planning (cf. Klemm 1995).
Footnote 68: Even with surplus land being available, the decision to use labour-saving technology must be based on whether the technology can pay for itself and leave a surplus (World Bank 1995a:18 fn. 27).
Footnote 69: Currently the percentage of rural farm households which benefit from non-agricultural incomes is very low at 20 percent (World Bank 1995b:53).
Footnote 70: Incentives for this can be found, for example, in Bass/Morrison 1994, Hansen/Sodarak 1995, Oughton 1993.
Footnote 71: Cf. also Kirk 1994, Kirk & Adokpo 1994, Kuhnen 1996, Löffler 1996.
Footnote 72: Overall home ownership is very high with 97% of all Lao households living in their own house (Lao PDR 199_b:11).
Footnote 73: cf. World Bank 1995a:37, paragraph 2.38
Footnote 74: Myers shows a comparably tense relationship in the transformation process in Mozambique (Myers 1995:34ff.) where even today the State apparatus is frightened of permitting free unregulated land markets since that would mean having to give up the last bastion of socialist ideology.
Footnote 75: Indeed there is no clear evidence of this, but it can be assumed that Thai investors and land speculators, for instance, gain land using Lao intermediaries (Groppo et al. 1995:19)
Footnote 76: Since most landowners in the rural context cannot afford fencing, enclosure is also an indicator of a quickly increasing socio-economic differentiation of Laotian society (Groppo et al. 1995:21).
Footnote 77: Extensive empirical studies about the functions of sharecropping and the attendant problems have showed again and again that the distribution ratio alone is not very informative about the evaluation of the burden on lessees for economic efficiency of this institution as well as the power of the lessor. Additional private side-agreements can be of great importance: who is to provide the inputs, such as seed, fertilizer and draught animals, who is responsible for water supply, which hidden labor services perhaps exist for the lessee? (Kirk 1994) Corresponding results do not exist to my knowledge for Laos.
Footnote 78: Drawing a line between "peri-urban" and "rural" must inevitably remain arbitrary here.
Footnote 79: The problem of land valuation exists likewise in the urban context, but the difference is that there is a better overall view - determined by the larger number of transactions - of the market value of properties in various positions and sizes
Footnote 80: I prefer to talk about "interest groups" or even "pressure groups" in the following exposition as a synonym for "stakeholder" because this term is proving itself more and more to be a politically correct euphemism through which strategies for securing a "stake", including lobbying, pressure and even corruption are disguised and trivialised.
Footnote 81: cf. for example Kirk 1996.
Footnote 82: cf. Benin and Mozambique, Kirk & Adokpo 1994, Myers 1995.
Footnote 83: The FOMACOP Project which is substantially financed by the World Bank sees policy analysis and the analysis of the role of stakeholders, from landless farmers to the state, as one of its most pressing activities (FOMACOP 1995:7)
Footnote 84: cf. Myers' critical evaluation of the situation in Mozambique (Myers 1995:38 ff).
Footnote 85: A further impression of the enormous achievement in the reconstruction of the economic system through further reform of the laws for banking, the civil service and trade laws etc. can be found in Pham 1994
Footnote 86: The history of the current Decree 169 is an example of this. Even if the participation of immediately effected actors is set out, it is, in the eyes of project managers just a "top-down" approach to participation.
Footnote 87: A strict division between the military and Party elite, as a socialist single party understands it, is scarcely possible.
Footnote 88: A newer organisational chart can be found in Appendix 1.
Footnote 89: It should not be kept quiet that this runs the risk of personal rent-seeking and self-enrichment, as well as competition and envy from superiors and colleagues.
Footnote 90: Decree 186 on the "Allocation of Land and Forest land for Tree Plantation and Forest Protection" state in Art. 22: "the allocation of between 101 and 1000 ha. of forest lands for plantations can only be legitimately authorised by the Provincial Municipality and Special Regional Authorities and recognised by the Ministry of Agriculture and Forestry" (Dep. of Forestry 1995:19).
Footnote 91: There is also the problem in Laos that State officials have to be motivated less by wages than by primarily non-monetary incentives (job security, old-age security, cheap housing etc.). It was this over-proportional commitment of the State towards its officials which was complained about in the structural adjustment programmes; retrenchment, deployment measures and the reduction of privileges have been started on a large scale.
Footnote 92: Empirical socio-economic research is beginning timidly, at present through development projects, international NGO's and international research organisations.
Footnote 93: Thailand has a quickly growing population of currently 55 million people, while Vietnam and the bordering Chinese province of Yuan both have 65 million (Claridge 1995). This is creating a rapidly growing demand for electricity, timber production and livestock products. Thailand already imports ca. 80 percent of the electricity generated by the Nam Ngum dam.
Footnote 94: The resulting steps are the working out of a Memorandum of Understanding with the line ministry responsible, as a precondition of a General Agreement, detailed regulations and feasibility studies.
Footnote 95: This estimate is based on the analysis of individual, accessible MoU's.
Footnote 96: In one case it is suggested in exchange for protection of trees and the right to occupy land, the company will pay the village 10 percent of the regional market value of the lots after deduction of harvest and transport costs.
Footnote 97: cf. for instance Myers 1995, Kirk & Adokpo 1994
Footnote 98: Every year, US$ 60-80 million in research money from international funds are lost as they cannot be used in view of the lacking implementation authorities (Kaosa-ard et al. 1995:65)
Footnote 99: Since land tenure is a cross-sectional topic, regional operating projects and programmes for the EU or the IUCN will be touched on, but will not be gone into in detail.
Footnote 100: With a financial input of about US$ 16 million in seven years
Footnote 101: For instance in Benin (Kirk & Adopko 1994)
Footnote 102: The object of the projects was:"...d'assister le Gouvernement du Laos dans l'élaboration d'un ensemble de textes juridiques dans trois domaines intimement liés: le régime foncier, la gestion des forêts et la gestion des eaux" (Bouderbala & Mekouar 1992).
Footnote 103: The project has also used the presentation of the preliminary findings of this study and the paper of G. Gaston to attract representatives from various Ministries and other stakeholders, and to controversially discuss the current problems of the resource legislation (customary rights, the role of "agricultural land", objectives of "land titling").
Footnote 104: Project overview from 17.7.95
Footnote 105: These are: "Nam Ngum Watershed Management and Conservation Project (NAWACOP)", "Vientiane Forestry College, Dong Dok", "Rural Regional Development in Bokeo" and "Food Security Programme Muang Sing/Luang Namtha".
Footnote 106: The clearing of mines and other instruments of war is, however - at least in the Xieng Khouang Province - be no means complete and is being further carried out be the NGO's, e.g. the Mennonites.
Footnote 107: The Dutch ZOA is trying, for instance, to resolve land conflicts in the framework of their community development programmes; the Canadian CUSO is taking care of land allocation for community forestry.
Footnote 108: For example through the "World Rainforest Movement" with its base in Malaysia, and the "Forest Peoples Programme" which were both represented by Marcus Colchester.
Footnote 109: The power of the environmental NGO's is to be seen for instance in their successful intervention in the laying out of a golf course at the Pee Lee waterfalls in the extreme south of the country (Wildlife Fund Thailand 1994).
Footnote 110: cf. "Advice for the promotion of the political, legal and administrative legal frameworks (positive measures) within the framework of the bilateral governmental development cooperation" ("Hinweise für die Förderung der politischen, rechtlichen und administrativen Rahmenbedingungen (Positivmaßnahmen) im Rahmen der bilateralen staatlichen EZ") from 1.3.1996.