The Integration of Conflicting Donor Approaches : Land Law Reform in Cambodia

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The Integration of Conflicting Donor Approaches:Land Law Reform in Cambodia＊

Leah M.Trzcinski and Frank K. Upham＊＊

Abstract: Since 1990 successive waves of foreign experts haveintroduced into Cambodia legal transplants dealing with the possession,use, and ownership of land. Many of the laws were based on theperceptions of the particular foreign sponsor without meaningful participation by domestic actors or cooperation with other donors. Despite
recent efforts to reconcile the laws, implementation remains inequitable
and legal ambiguity persists. The Cambodian experience brings into
question not only the wisdom of foreign intervention but also the desirability of any form of formal legal construction in a society without thenecessary social, political, and institutional prerequisites.
Ⅰ. Introduction
This paper uses the development of land law in Cambodia to investigate thenature, process, and effectiveness of foreign-led legal construction in countries
without the robust social, political, and institutional structures that some would
consider pre-requisites for an effective legal system. We chose land law because it
is at the intellectual and institutional center of efforts to build legal systems in poor
countries. Security in land tenure is generally assumed to be necessary for optimum
levels of agricultural productivity, and the provision of formal legal title to land has
1been considered the best way to provide such security. We chose Cambodia because＊ JD Candidate, Class of 2013, New York University School of Law; M.I.A., Columbia University School ofInternational and Public Affairs, 2010.
＊＊ Visiting Professor (September 2010

December 2010), Graduate School of International Cooperation
Studies, Kobe University. Wilf Family professor of Property Law, New York University School of Law.
The authors thank the many individuals in Cambodia and Japan who assisted in the preparation of thisarticle. The authors gratefully acknowledge support from the Filomen D’
Agostino and Max E. Greenberg
Research Fund at New York University School of Law.

Journal of International Cooperation Studies, Vol.20, No1（2012.7）

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as an agricultural country whose economic future depends on the success of its ruralsector, it provides an excellent case study for investigating this assumption. It has
also been the recipient of sustained legal reform assistance from a variety of donors
over the last three decades. Successive waves of foreign advisors have not only
designed the relevant statutes, but have also funded and overseen the building of thebureaucracies charged with their implementation. The breadth, depth, and durationof foreign presence combine to make Cambodia an unusually apt and accessible site
to investigate both the utility of foreign intervention in law reform and the interaction
between legal rules and the public bureaucracies designed to enforce them.
The paper proceeds as follows. Section II summarizes Cambodian land use
legislation focused on the conflict between the Land Law of 2001 and the Civil
Code of 2007. The former was drafted by a development bank-sponsored team andintroduced an Australian-based system that emphasizes clarity and simplicity in land
titling by recognizing ownership exclusively on the basis of formal registration witha centralized cadastral agency. The Japanese-drafted Civil Code, on the other hand,treats registration as only establishing a presumption of ownership, which can thenbe rebutted by evidence of use, possession, or local custom in the case of a disputed
transfer. These contrasting approaches not only reflect the national experiences of
their drafters but also represent two opposing views of law and its role in social andeconomic development: Should legal rights – in this instance ownership of land – bemade simple, clear, and universal so that assets can be easily exchanged in Coasian2bargaining, or should legal rights reflect and reinforce established local practice?
Section III illustrates the competing approaches by focusing on land law implementation in the area of land registration. Throughout, the paper notes the ongoing tensions
among Cambodia’s various foreign patrons and the domestic ministries that havealigned themselves with one side or the other. The paper concludes in Section IV
with a tentative assessment of foreign involvement including consideration of whichmodel better suits Cambodia’s situation and speculation on whether it might havebeen a better course of action for Cambodia to devise its own indigenous system ofland law. We do so, however, without any pretense of offering failsafe prescriptions
or best practices for legal reform in poor countries.

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Ⅱ.

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The Evolution of Cambodia’s Land Law

The Land Laws of 1992 and 2001
After the disastrous socialist experiment of the Khmer Rouge from 19751979

and the subsequent Vietnamese - introduced socialist regime, Cambodia began toreconstitute its legal framework in the late 1980s as part of the establishment of amarket - oriented democratic state. One product of this wave of legal reform was
the Land Law of 1992. With elections scheduled for the next year there was awillingness to adapt “only the minimum provisions necessary to establish a sense oforder.” Because of the urgency, the government promulgated the Law without muchdiscussion, and many of the provisions were simply copied from the 1920 Civil Code.
A more consultative approach was adopted in drafting of the 2001 Land Law.
The goals for the legislation were the integration of Cambodia into the world economy
3and the provision of greater tenure security to average Cambodians. To accomplishthese goals, simplicity and transparency were considered of paramount importance.
In keeping with this priority, the law not only disavowed any attempt to re-establish
pre-1979 property rights, but also allowed people in lawful acquisitive possessionof land as of 2001 to apply for ownership after five years of peaceful, continuous,unambiguous, and open possession in good faith. What the law emphatically did
not allow is for possession initiated after the promulgation of the law to ripen into
ownership.
Instead, title was to be determined after the transitional period exclusively byregistration in a cadastral land registrar to be established under the Ministry of Land
Management, Urban Planning, and Construction [MLMUPC or Land Ministry]. Threearticles in the Land Law appear to create a system that relies almost exclusively
on cadastral registration. Article 239 states that the official cadastral records “havelegal value and precise effect,” which has been interpreted to mean that the registryprevails even when the registration was the result of mistake or fraud. Second andconsistent with this interpretation, Article 226 states that “ownership of immovable
property shall be guaranteed by the State,” which has been interpreted to mean

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that instead of retaining ownership the original private owner would be entitled tostate compensation in cases of registry inaccuracy causing loss of ownership. Third,
Article 65 states:
The transfer of ownership can be enforceable as against third parties only if
the contract of sale of immovable property is made in writing in the authentic
form drawn up by the competent authority and registered with the Cadastral
Registry Unit. The contract of sale itself is not a sufficient legal requirement
for the transfer of the ownership of the subject matter.
This emphasis on registration to achieve legal effect is the essence of the Australianinspired Torrens-style registration system established by the 2001 Law. The desire
for a definitive cadastral registry led to the Land Management Administration Project(LMAP), funded primarily by the World Bank (with the support of GiZ, Finnmap,
and CIDA), that would supply the technical expertise to do the mapping necessary
for the quick, clear, and conclusive indication of ownership commune by commune
throughout all of Cambodia.
While the 2001 Land Law was formally drafted by the MLMUPC, the origin was
not Cambodian. One key (French) participant described the process as follows: “Every
draft was discussed by local institutions and the Cambodians tried to make it theirs
but the first draft always came from the international community.” Tellingly, the law’s
official domestic sponsor admitted that he “didn’t understand the law” and that it was
not “our law” but “the law of NGOs.” A longtime member of the NGO community, on
the other hand, emphasized donor influence:
It depends how much noise the NGOs make about a particular issue andwhether they are aware of the process before it is too late. Sometimes thedonors require consultation with the community in promulgating the laws but
there is still a lot of tokenism. The government just doesn’t have the political
will to get input.
The precise lines of influence and causation are unimportant for our purposes.
What is important is that the law is the epitome of top-down social engineering withthe added dimension that it was based on foreign models and designed by foreign

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experts with little or no knowledge of conditions in rural Cambodia where the law was
to have the greatest effect. It does not purport to reflect or connect to existing social
practice beyond its recognition of acquisitive possession begun prior to its promulgation. It is not, in other words, the government “mapping” of society of James Scott’s
Seeing Like a State so much as it is the declaration of mapping to come. Unlike much
such social engineering, however, it is directed not at increasing government power
but the opposite: Its aim is the minimization of the governmental role through therealization of the decentralized power of market actors by creating a simple andtransparent property rights regime that will facilitate Coasian bargaining. Doing so
will also enable the direct foreign investment in Cambodian agricultural land that thedrafters assumed would be difficult with a less centralized, less universal, and hence
less transparent system.
Although quintessentially neo-liberal, these characteristics do not mean thatthe law ignores the weaker parts of the population. On the contrary, the creation of4social land concessions (SLC) and the recognition of communal property are directed
at these groups. It is true that the SCL process has no connection whatever to thesocial reality of the poor and that no communally possessed land had been registeredin the Land Register with collective ownership title certificates issued as of June
2011 (and apparently only three indigenous minority communities have been formallyrecognized by the Ministry of Interior as eligible), but these provisions are intended
to provide for these needs in precisely the simple, transparent, and orderly way that5

the registration system and economic land concessions are intended to facilitate themarket process.
2007 Civil CodeAt the same time that the discussions regarding the draft 2001 Land Law
were taking place, a parallel process was underway to draft a new Civil Code.
Driven by both domestic and external pressure, the Cambodian Ministry of Justice6[MoJ] commissioned the Japanese International Cooperation Agency (JICA) in 1999
to coordinate drafting a code. Drawing on the expertise of Japanese legal scholars
familiar with the Japanese Civil Code, the goal of the 2007 Cambodian Civil Code

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was to unify the various statutes dealing with civil law, including the Land Laws of
1992 and 2001, be consistent with the Constitution of 1993, and facilitate Cambodia’s
entry into the World Trade Organization (WTO). JICA’s efforts bore fruit with theDecember 2007 enactment of the Civil Code, but the need for transitional provisions
exacerbated by bureaucratic competition between JICA and the Ministry of Justice on
one side and the development banks and the MLMUPC on the other, meant that theCode would not become applicable until the effective date of the Law on Application
7of the Civil Code enacted in 2011.

There are many areas of uncertainty in the interpretation of the Civil Code andits relationship with pre-existing statutes like the Land Law, but we will deal here
only with the conflict between the two laws’ approaches to ascertaining and awarding
8

title to land. As discussed above, the 2001 Land Law is best interpreted to createa Torrens-style land registration system in which proof of registration constitutes
ownership. In contrast, Article 137(1) of the Civil Code provides only that “where aright is registered […], it is presumed that such right belongs to the person to whom
it is registered.”
An equally important issue is the respective treatments of informal possession
and prescriptive acquisition. Articles 162 (1)-(2) of the Code allow for acquisition ofownership of private property after twenty years of peaceful and open possession(and after only ten years if the possession is in good faith and without negligence or
fault) without reference to the pre- or post-2001 commencement of the possession.
Although these provisions have been interpreted to require that the possessor must
perfect ownership through registration, the Code itself does not specify as much.

9

Thus private owners and third party purchasers relying only on the registry could
face a dispute with the acquisitive owners who would have a presumption of goodfaith in their favor.

10

The Code, therefore, would provide a means of determining

ownership that is vastly more responsive to the informal facts on the ground, even
if that responsiveness sacrifices the precision perceived to be needed to facilitate
11market transactions.

As with the Land Law, it is worth considering the institutional origin of theCode’s rejection of the Torrens-style registration system. Japan’s own land law is

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closer to the American deed registration system than a Torrens-style system, andJICA experts were worried that the land registry would quickly be corrupted by local
officials or become out of date as average Cambodians failed to register subsequent
12transfers as has been the case in titling programs elsewhere.

JICA personnel also

felt that it was inequitable to favor the bona fide third party purchaser over the
innocent original owner in the case of fraud.

13

Nor did they give credence to theapparent state guarantee of compensation to owners victimized by registry inaccuracies. Fearing low state funds and a lack of political accountability, a state guarantee
was not deemed realistic.
Reconciling the 2001 Land Law and the 2007 Civil CodeTo appreciate the dynamics of resolving the conflicts of law between the Land
Law and Civil Code, one must step back and consider the political and institutional
context in the years leading up to the passage of the Code. Land was a central
concern from the early years of the Hun Sen regime, and in 1992 a consortium ofEU governments, the UN, and other international agencies commissioned Finnmap,
a private Finnish company specializing in land management consulting, to complete
14

an aerial photography project for resource mapping from 1992-1996.

Finnmap next

undertook a pilot land registration project in 1997 under the 1992 Land Law and15

is still engaged in related projects as of 2011.
GiZ

16

The German development agency

entered the land registration field in 1995 collaborating with the MLMUPC and

Finnmap. Both Finnmap and GiZ’s style of technical advisory was to retain experts
and to locate them in the country on a long-term basis. As a result these professionals developed close working relationships with their counterparts at the Ministry.
The World Bank became heavily involved in the land sector in 2002 following
the promulgation of the Land Law. It invested $33.9 million in the Land Management
Administration Project (LMAP), which sponsored significant portions of MLMUPC
initiatives in mapping and registering land. With substantial investment came policy
influence, at the expense not so much of the Cambodian government but of theirlongtime resident Finnmap and GiZ technical advisors, who constituted an interest
and repository of expertise distinct from the newcomers. Unlike many World Bank

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initiatives, LMAP dedicated a significant effort to legal and policy issues, and theWorld Bank team strongly believed that a free market in land required the clear
and definitive title system promised by a Torrens-style registration system. In theensuing tension, the Cambodian government tended to favor the Finnmap and GiZ
staff, perhaps because they had been in the country on permanent postings as
opposed to the periodic evaluation missions of the World Bank. Or perhaps because
the technical support from Finnmap and GiZ came in the form of a grant as comparedto the World Bank’s loans. Nonetheless, the World Bank view carried the day.
JICA’s work with the Ministry of Justice on the Civil Code commenced in 1999
but their collaboration with MLMUPC (and its related technical advisers) effectively
began in 2003. Regardless of the pre-existing differences between the Finnmap-GiZ
staff and the Bank team, they found common ground in opposition to the arrival of
JICA in the land policy arena. Therefore, when it came to negotiations over thereconciliation of the Civil Code and the Land Law, this group lined up squarely
behind the Land Law and the registration system it had established and in which
they had already invested millions of dollars. They argued that the Civil Code’s
recordation system would create uncertainty as to land ownership and thus require
title insurance, which given the unpredictability of Cambodian courts would be very
expensive and available only to the rich. Lacking a definitive registration systemor title insurance, poor Cambodians would be disproportionately harmed and freemarket reforms would be undermined.
The conflicts between the external advisors were mirrored by those between
the ministries. One participant described the situation as follows: “Each ministry is
like a separate fortified island. They don’t talk to each other and don’t work welltogether even in areas where their responsibilities overlap.” There was more at stake
than simple pride in authorship. In a generally corrupt bureaucracy like Cambodia’s,
bribes and informal payments are commonplace. “Each signature is a tip, so if yourministry is required to sign a particular document to authenticate it, then you’ve justincreased the budget of your ministry.” Therefore, there was more at stake than justlegal ideology in the debate over the Torrens-style registration vs. the recordation
system. The latter would shift power from the MLMUPC to Justice and give theThe Integration of Conflicting Donor Approaches : Land Law Reform in Cambodia

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courts the final word on whether a particular title maintained its presumption of authenticity or not. Since the framework in place since 2001 granted ultimate authority
to the MLMUPC, the ministry had a lot to lose.
After prolonged working group discussions over the next seven years including
some meetings in Washington DC with minimal domestic Cambodian involvement,
the 2007 Civil Code was enacted. This did not, however, conclude the matter as
several transitional issues and implementing provisions remained to be reconciled.
A compromise was finally reached and codified in the Law on Application of the Civil
Code in 2011 to take effect in early 2012. The 2001 registration system remains
in place, but the conclusiveness of the registry has been substantially weakened
with various forms of possession and use becoming relevant in the determinationof ownership. The MLMUPC will continue to control the land registration process interms of issuing certificates but the courts will have the final say as to the authenticity and effect of those certificates.
At first blush it seems that the 2007 Civil Code won out overall, though thecontinued existence of the registration system is a considerable concession to the2001 Land Law. While Finnmap, GiZ, and CIDA continue to be involved in land registration on a smaller scale,17

the Cambodian Government terminated the World Bank

funding for LMAP in 2009 following a World Bank Investigation Panel report on the
Boeung Kak Lake evictions that severely criticized the corruption of the Cambodian
government. It is also telling that most of the recent projects undertaken by Finnmap
have been financed by JICA and individual Cambodian Ministries (e.g. Ministry ofAgriculture, Ministry of Public Works and Transport, Ministry of Water Resource) or
private companies and estate agents. Nevertheless, as one technical advisor close tothese negotiations pointed out, “Both sides argued over this a lot, but at the end of
the day the reality is that whatever is agreed on won’t matter – things will progress
they way they always have.” Thus we are reminded that the real impact of the legal
framework lies in its implementation and it is to this topic that we turn to next.

Ⅲ . Cambodian Land Law in Application – Land Registration

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While the building of the technical capacity and legal framework necessaryfor effective land administration have achieved considerable results, implementationof the land registration system critical to the reconciliation of the statutory conflict
identified in section II has lagged. It cannot be said, however, that the procedures
failed for lack of effort. As this section will explore, the land registration procedures
reflect well-intentioned but problematic policies that have served to weaken tenure
security for vulnerable parts of the population.
LMAP instituted a dual system of land registration procedures – systematicand sporadic. The former is conducted by LMAP teams in pre-selected areas andaims to map and provide ownership titles to the entire community. The latter
responds to applications and targets only the individual applicant’s land. Both are
the responsibility of the Cadastral Administration as is the creation and maintenanceof Land Register.

18

As of 2010 these processes had reached Phnom Penh and 15

selected provinces, with registration in slightly less than half of the communes within
19

these provinces now complete.

The systematic titling process has collected data

on 2,053,062 parcels, 80% of which are rural, and distributed 1,500,493 parcel titles
to citizens. An additional 607,784 titles have been distributed through the sporadic
process, bringing the total to 2,108,277. The process has yielded over 10 billion Riel[$2,636,760] in cadastral fees, meaning that titling has become self-financing sincethe 2009 withdrawal of World Bank funding.
Unfortunately, these aggregate statistics mask considerable disparities withintitle registration. First, LMAP’s strategy was to begin systematic titling in areas thatwere neither “likely to be disputed” nor of “unclear status.” The rationale was tofocus on areas where LMAP could be most successful, at once building capacity of20

the administrators and gaining legitimacy for the program through early successes.

The result was that households and communities that lie in the path of planneddevelopments or concessions or whose lands have been targeted by well connectedindividuals or companies have been excluded from the process,21

especially since the22categories “likely to be disputed” or “unclear” were not defined.

Local authorities,

therefore, had essentially unfettered power to remove land desired by powerfulindividuals from the cadastral process. Since sporadic registration was considered

The Integration of Conflicting Donor Approaches : Land Law Reform in Cambodia

too costly for most poor households,

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areas left out of systematic land registration

were resigned to a fate of tenure insecurity. This situation was exacerbated by theLand Law’s limitation of cognizable forms of evidence of ownership granted by priorregimes, thus exposing these communities to accusations of being illegal “anarchic
squatters.”

24

Therefore, while the owners of the one and a half million parcels thathave received formal land title through the systematic registration have undoubtedly
benefited, those households left out of this initiative are relatively much worse off.
A second problem, one foreseen by the Japanese, is the common belief thatholding the title certificate, as opposed to registration with the Cadastral Administration, constitutes ownership so that even in areas that have been successfully
titled, transfers of land and certificates remain unregistered. The ensuing problemof outdated registries is exacerbated by bureaucratic practice and fraud because
local land officials routinely rely on documentation rather than actual land use, whichmeans that wealthy individuals with falsified documents can dispossess farmers who
have peacefully possessed the land or have even registered it under now invalid
systems.

25

Greater community knowledge of the law and the need for registeringtransfers may help some of these issues, but one study found “no evidence that any
LMAP public awareness and community participation projects have been conductedin partnership with NGOs or other representatives of civil society.”

26

Shortcomings notwithstanding, the registration process has had some notably
positive effects. There is evidence that systematic titling has improved access tocredit as most banks will accept a registration certificate as collateral for a mortgage
or other loan,

27

and possession or ownership certificates have proven useful inlocal disputes between community members of relatively equal means.

28

Anotherconsideration often overlooked by human rights activists is cost: the cost per titleof Cambodia’s systematic registration system is among the lowest in the world.
Before one becomes too optimistic, however, the scale of the task should be kept
in mind. The total number of land parcels in Cambodia is now estimated at upwardsof ten million, so while 1.5 million systematically issued titles is impressive, to title
the entire country would take another 45 years at the current rate.

29

Therefore achange in approach may be necessary to expedite the process, especially when it is

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remembered that the least contentious areas were done first.
Connecting Legal Reform to Policy Implementation

Humility should be the watch word in making even a tentative evaluation of
Cambodian land law reforms. Time has been short; reliable data are scarce; available
reports often mirror the interests of their authors; and finding an appropriate metric
may be impossible. Judging Cambodian bureaucrats and foreign donors by the often
utopian rhetoric of proponents of land titling in general or a Torrens-style registration system in particular may be satisfying on one level, but it suffers from the unacknowledged assumption of a counter-factual that might very well have had additional
negative unanticipated consequences. The analysis that follows is offered with theselimitations in mind.
Although the titling and registration elements of LMAP have received someof the most virulent criticism,31

it is perhaps here that the most progress has beenmade. In response to a 2006 corruption scandal over LMAP’s relocation of 4,250
families in the Boeung Kak Lake area of central Phnom Penh, the Centre for Housing
Rights and Evictions filed a formal Request for Inspection with the World Bank.
When the Bank’s independent Inspection Panel discovered substantial grounds for
32

concern,the political fallout led to the World Bank’s withdrawal from LMAP in 2009.

It should be noted that the World Bank was not alone in devising the policy or
guiding the implementation of LMAP, and activists criticized other donors including
GiZ, Finnmap, ADB, and CIDA. The Bank was targeted because, unlike the other
donors, it has transparent and user friendly mechanisms by which outsiders canchallenge project integrity. The success of the advocacy community is a credit
to the World Bank’s responsiveness, and it may have consequences beyond thecessation of Bank funding and the momentary political embarrassment of the Hun
Sen regime. Although initially dismissive of the NGOs’ criticism and opposed to the
Bank’s withdrawal, LMAP’s other patrons have become more conscious of social
justice issues. GiZ’s parent organization, for example, amended its terms of reference
to include additional human rights protections.

33

There has also been discussion

at the MLMUPC about instituting a ‘one window’ program wherein all the relevant

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authorities (e.g. the Ministry of Interior, Ministry of Economy and Finance and
MLMUPC) would be available in one place to simplify the process of obtaining anownership certificate. Additionally, banking services would be provided at this office
to avoid the need to pay cash and increase the transparency of the fee payments.
While implementation of this idea would likely increase the formal cost of sporadic
registration, it would likely result in savings to the individual applicant in fewer
informal payments.
It should be noted, however, that new processes cannot be implemented in a
vacuum but must be integrated into Cambodian society and politics. An obvious issue
is the need for informal payment at every step. While perhaps normatively less objectionable in Cambodian culture – one observer noted that Cambodians “feel compelled”
to reward a civil servant working on their behalf, partly for cultural reasons but
also because bureaucratic salaries are so low, the result is increased cost andcomplexity, both of which work against effective administration and the enforcementof legal rights. Then there is politics. Local government leaders, even if honest, often
acquiesce in large scale land grabs because they fear state reprisals if they oppose
34

politically connected outsiders.

Nor do judges or cadastral officials offer much hope.

They are appointed along party lines, and political affiliation and prestige are often
determinative of an issue. One critic quipped that “legal representation for the poor
doesn’t really matter because it is all about whether you can pay the judge off. It
might be useful to have a lawyer to make noise and publicize your case outside of the35

courtroom but it has little effect on the outcome.”

Of course, “making noise” need not depend on a lawyer. Nor need the judicial
result be the end of the story. Dispossessed Cambodians are willing to take matters
into their own hands through protests to the ruling Cambodian People’s Party or
symbolic marches to Hun Sen’s palace in Phnom Penh. “Noise” can work:
One community completely avoided the formal land resolution
mechanisms and instead sent a complaint to the CPP party representative in their province asking him to resolve their land dispute. The Headof the CPP formed a team and met with the villagers. Following the

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discussion the community was verbally allocated 1200 ha (approximately
the land area they had requested). While the verbal grant has no legal
power it at least provides temporary security for the community andthey saw results much faster than if they had gone through the Cadastral
36

Commission.

And politics is not simply a domestic matter. More than most, the Cambodian
government must respond to an external audience, and the “court of international
public opinion” is likely more powerful than any domestic one. High profile evictions
and protests over resettlement find their way across the news wires and reflect
poorly on the government, which is often frustrated by its inability to match theactivists’ adroit manipulation of the international media. Since the government isdependent on foreign aid for the continued functioning of many core state services,
the NGO and donor communities are powerful shadow players in domestic politics.
“The Cambodian government should really employ a top notch public relations firm tomanage its reputation on the international scene,” one private sector lawyer quipped.
There are limitations, however, and they are not necessarily ones of diplomaticleverage. As this lawyer pointed out, “The Cambodian government knows that theforeign donors won’t ever really pull out since so many of the foreign advisers havesuch a nice life here. The NGOs will only push so hard until they realize that theircountry is actually considering withdrawing support.”
Ⅳ . Conclusion
Cambodia may be unique in the degree of foreign influence and presence, but
it is not exceptional in terms of land law reform in the developing world. Indeed,as long as the universal approach is title formalization and registration with central
cadastral authorities, it is unclear that any reform could proceed without massive
foreign aid and technical assistance. The software used by professional surveyors
may appear seamless as they use satellite data to design cadastral maps, but thesoftware may not be as flawlessly responsive when the professional returns toAustralia or Denmark and is replaced by a rural Cambodian who has never owned
an iPhone. Similarly, a Torrens-style registration system may promise certainty in a

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developed society with an honest bureaucracy and a legally savvy population, but in asociety where a bureaucrat might easily be offered twice his monthly salary to misfile
a document or a buyer of land from a relative faces spending two days of travel andpaying six months worth of crops to register the transaction, human factors may
quickly erode that certainty. Even if we posit a technically proficient cadastral staff, awell paid bureaucracy, and a conscientious populace, waiting 45 years for registration
to be completed while meanwhile refusing to recognize informal possession seems arisky course of action.
As we stated at the outset, however, comparing the messy reality of a very
poor country with a utopian dream of clear property rights readily exchanged inperfect markets seems unfair even to those in thrall to the dream. It might be more
useful to ask what the alternatives might be. While the 2011 legislation attempts
to resolve contradictions between the Civil Code and the Land Law with someacknowledgement of the social context, other effects of the law remain to be seen.
Furthermore, even if JICA scored a clear win over the World Bank, team many of thesame questions will persist. What might be heuristically useful, however, is some
speculation on what might have happened had Cambodia chosen to do nothing. Or,
more precisely, if it had chosen to reject, politely, offers of foreign technical and legal
expertise and attempted, maybe with foreign money, to work with whatever social
and normative systems were (and probably still are) maintaining whatever degree oforder and stability existed in Cambodian land practice.
An initial question, which we will only mention, is whether Cambodia would
have been allowed to make this choice. The “rule of law” is a prerequisite to someof the privileges of developing countries in today’s world, e.g., to favored access to
the US market, and there are legal criteria for entry into the WTO. While a panel oflegal anthropologists might welcome a land law based on local practice, internationalorganizations and the US Congress may be less amenable. And even if “utilizing
its own resources,” as the former dean of Beijing’s law school proposes for China
when he opposes Western legal models, is a possible choice, it presumes that thoseresources exist and can be the foundation for law and specifically for a law that will
facilitate the market economy and foreign investment that Cambodia has decided

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it needs. Perhaps it could. It is clear from the Chinese example that clear property
rights and an effective judiciary are not necessary for economic growth or foreign
direct investment. China is growing faster than any other country and is a leading
destination for FDI, but that too may be a false comparison. What is working for
China may not exist in Cambodia: the Cambodian People’s Party for better or worse
is not the Chinese Communist Party, and the Chinese population at the beginning ofreform, despite being abjectly poor in monetary terms, had what some have called
the “social pre-requisites” for growth. A post-conflict society, especially when thatconflict involved Khmer Rouge rule, may not possess those prerequisites.
As the reader may have guessed, we are not going to answer these questions.
They are of course unanswerable, but some consideration of them may not be uselessas we wait to see how the Cambodian land law story evolves.
Notes
１
２

See, e.g., Hernando de Soto, The Other Path (1989).

The ideological perspective behind this vision of market exchange can be traced to Ronald H.
Coase’s October 1960 article in the Journal of Law and Economics, The Problem of Social Cost. Coasefamously argued that in a market without transaction costs (and other characteristics), clear and legally
enforceable property rights would lead to an optimal allocation of economic resources. Coase himself
acknowledged that such markets do not exist, but his ideological followers seem all too often to forget
this limitation.
３ One government official noted that “We need land deals to attract foreign direct investment, provide
employment, technology and human capacity, and infrastructure development, and as a way to properly
manage national resources for the benefit of all Cambodians.” Alison Elizabeth Schneider, What shall we
do without our land? Land Grabs and Resistance in Rural Cambodia, paper presented at the International
Conference on Global Land Grabbing (Apr. 6-8, 2011).
４ The SLC framework was seen as a more appropriate and orderly way to transfer land from the state
to poor Cambodian households. SLC recipients who comply with the provisions of the concessionagreement can apply to the MLMUPC for ownership after five years of land use.
５ Economic land concessions grant concessionaires all the rights of ownership, save alienation, for agricultural and agro-industrial purposes. Concessions are limited in size to 10,000 hectares and in duration
to ninety-nine years.
６ Japan International Cooperation Agency, Outline of Project, http://www.jica.go.jp/project/english/
cambodia/0701047/outline/index.html.
７ This law became effective in early 2012. Accordingly, the Civil Code will be applicable to new landtransactions – and apply to existing land rights – from that time onward.
８ It should be noted that there are some Japanese scholars who interpret the Civil Code to apply only totransfers between private parties after a parcel has been registered, while the 2001 Land Law applies
only to unregistered land. Arguments in favor of this interpretation stress the fact that the Land Law isa public law and therefore governs relationships between the state and the public, while the Civil Codeas a private law only pertains to private transfers. However, the Civil Code contains other provisions
that draw this interpretation into question. Article 132 of the Civil Code establishes the right of“ownership” and article 131 elaborates that “no real right may be created except as permitted by thisCode.” This seems to imply that the Civil Code intended to govern the recognition of all real property

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rights from the time that it came into force. While there is an exception for real rights created by speciallaw, it is disputed whether the Land Law qualifies as a special law for article 131 purposes.
９ In fact article 134 of the Civil Code explicitly exempts possession from the default provision that“a real right pertaining to an immovable cannot be asserted against a third party unless the right isregistered in accordance with the provisions of the laws and ordinances regarding registration.”
10 Civil Code 2007, art. 234.
11 Some scholars limit the Code’s provisions on prescriptive acquisition to buildings rather than land,
which would avoid some of the conflict with the Land Law’s prohibition on new possession, but thewording is at best questionable. See e.g. Nhean So Munin, Land Reforms and Registration in Cambodia 5(Mar. 6, 2010) (unpublished manuscript, on file with authors).
12 See Haugerud, Land Tenure and Agrarian Change in Kenya, 59 AFRICA 61 (1989) (“Nowhere has the
Kenyan state had the capacity to keep the land registers up to date since the reform.”) and Pinckney
and Kimuyu, Land Tenure Reform in East Africa: Good, Bad or Unimportant? 3 J. AFR. ECON. 1, 22-24 (1994)(“Formal changes of title are lengthy and expensive. … Title holding therefore does not necessarily
imply ownership, and a significant number of titles are held by persons not owning the land. … Thus land
titling in Kenya has in many ways caused more problems than it has resolved. One response of local
communities has been to ignore the titles, and revert to the indigenous system of land tenure.”)13 It should be noted, however, that in the contract law sections of the Civil Code there are protections
for bona fide third parties. See Civil Code, article 347.
14 See Finnmap FM-International Cambodia, Major Reference Projects in Cambodia (2010) http://www.
finnmap-cambodia.com/ProRefFMC.pdf.
15 Note the 2011 projects mark the first time the Kingdom of Cambodia is itself a client as opposed toforeign countries or development banks.
16 Formerly GtZ, GiZ stands for Deutsche Gesellschaft für Internationale Zusammenarbeit GmbH.
17 This project now goes by the name Land Management, Administration and Distribution Program(LMADP).
18 See 2001 Land Law art. 229.
19 Statistics are from Cambodian Council of Land Policy, Report On Achievements of Land Reform Implementation (2002- 2009) and Ways Forward through the Program Based Approach (2009- 2013) 4 (June2011).
20 World Bank Media Statement, Statement from the World Bank on Termination by Royal Government of
Cambodia of the Land Management and Administration Project, available at: http://web.worldbank.org/
WBSITE/EXTERNAL/COUNTRIES/EASTASIAPACIFICEXT/CAMBODIAEXTN/0, contentMDK:22303344~
menuPK:293861~pagePK:1497618~piPK:217954~theSitePK:293856,00.html.
21 Mark Grimsditch & Nick Henderson, Tenure Insecurity and Inequality in the Cambodia Land Sector, 9(2009).
22 Similarly, the LMAP policy was that informal settlements will not be titled without agreement of thegovernment. As informal settlements had no definition, in practice authorities often label urban poor
communities as informal settlements, regardless of whether they have legal possessory rights under thelaw. Id. at 35.
23 Although formal fees are reasonable, informal “fees” and the need to hire a broker to manage theprocess make the total cost much higher. Estimates for sporadic registration of a “small piece of land”
were $600-$800. Another source estimated that sporadic registration cost $2,500. Sources agreed that
informal fees also vary based on size and location and thus roughly track land value.
24 Grimsditch & Henderson, supra note 21.
25 Interview with villagers involved in land dispute and Legal Aid lawyer in O’voi Preng. See also Munin,supra note 11, at 10. In addition to these particular issues, cadastral administration and implementationis generally plagued by the technical capacity deficiencies one would expect in any such complicatedprocess in a poor society. Id.
26 Grimsditch & Henderson, supra note 21, at 47. But see Ministry of Land Management, Urban Planningand Construction, Annual Progress Report 2010: Achievements of the Implementation of National Strategic
Development Plan and Way Forward for 2011, 4-5 (2010) describing annual public awareness efforts.
27 Interview with private real estate lawyer and former World Bank consultant.
28 Interview with country director of international NGO.
29 There have also been questions about the verifiability of these figures and a call for additional
evidence of the number of titles actually distributed to individuals.
30 As one would expect, the dispute resolution process also has its failings, see the annual reports of

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NGO Forum, e. g., Statistical Analysis of the Land Dispute Situation in Cambodia (for the year 2009),
http://www.ngoforum.org.kh/eng/lic/land_ld.html.
31 See, e.g., Bridges Across Borders South East Asia and Centre on Housing Rights and Evictions reports.
32 World Bank, Inspection Panel Investigation Report Cambodia: Land Management and Administration
Project, No. 58016-KH, v (Nov. 2010).
33 Interview.
34 One observer noted that “Commune councilors blame the system and feel that resolution of the land
administration system must take place at the national level.” Schneider, supra note 3, at 19.
35 Interview with country director of international NGO.
36 Interview with representative from the International Labour Organization.