Land Law in a Comparative Perspective: African and Asian Contexts

1. Land Law in a Comparative Perspective: African and Asian Contexts Dr. Fabian Thiel (CIM) Faculty Advisor, Faculty of Land Management and Land Administration, Royal University of Agriculture (RUA), Phnom Penh

2. Questions Would land laws, on global scale, be more effective and accepted if there would be no exclusive private property for land and other natural resources at all? “Making the land law work for everyone”: Private property rights or public common property rights? How to secure land (use) rights?

3. Property Rights Problems with the “Property Rights”: Combat market failures by generalizing a regime of exclusive and tradable property rights? Increase in efficiency with private property? How to reduce transaction costs?

4. Formal and Informal Rights Registered Freehold Formal Rights Leases Group Tenure Adverse Possession Anti Evictions Occupancy Customary Informal Rights

5. Rule of Law for all? • Today in many countries the state (including the private purposes of the powerful) is the primary threat to land tenure security (WB 2006) • 50 % of all fertile soils are not used efficiently, even on concession land • 100 out of 200 countries show weak Governance indicators • 4 billion people are excluded from the rule of law (CLEP)

6. Property Forms in Africa • Commercial Farmland (freehold property) • Communal Farmland (leasehold property) • Urban/Communal/Customary Land (municipal property; tribal, chiefs´ and customary land) • State Land (state property)

7. Customary Rights in Africa • Customary rights are registered now without conversion into introduced forms (e. g. in Uganda, Tanzania, Mozambique, Ghana) • Customary rights rise status over leasehold rights (most countries) • More than 90 % of rural landholding consists of unregistered customary rights which are ambivalent and permissive (2-10 % formal tenure)

8. Country Case: Namibia • Land Reform Advisory Commission • Commercial Land (Freehold) • Is the only form of secure title • Requires holders´ ownership which is transferable, inheritable and serves as a collateral • Communal Land (Leasehold) • Owned by government through Communal Land Boards • User has a customary land right (right of use), registered in the Communal Land Boards

9. Country Case: Mali • Land Law (Code Domanial et Foncier) • All land in Mali consists of: State Land, Local/Regional Land and Individual Land • Customary land rights are recognized by law (Art. 43 Land Law) • Malian legislator neglects the importance for the state to keep control over the land and gain revenues from the use

10. Country Case: China (1) • Land Management Law of People´s Republic of China (1998): “Strict control on the usage of land”. • Illegality to violate the general land use plan and change the land use • Three categories of land: • Agricultural land • Construction land • Unused land

11. Country Case: China (2) • General Plan for National Land Use (2006-2020): Quantity of cultivated land reservation by 2020 is 120.3 Mio. Ha • Rural Land Property Rights System: Turning the peasants´ land in to property effectively to protect agricultural land

12. Country Case: Mongolia • Property on Land • Private and state property • Possession (up to 60 years) • Use rights (foreigners, up to 5 years) • Constitution from 1992 changed the concept of property for land: • State protection • Public and private property • Leasing rights for foreigners

13. Country Case: Cambodia (1) • Constitution (1993) • Law on Land Management, Urban Planning and Construction (1994) • Land Law (2001) • Sub-Decrees

14. Country Case: Cambodia (2) Sub-Decrees and Royal Decrees • Sub-Decree (Examples: Phnom Penh Strategic Development Plan; Rules and Procedures on Reclassification of State Public Properties) • Royal Decree (Example: Decree on transferring Public Properties)

15. Country Case: Cambodia (3) • Private and Public Ownership (14,15,17) • Principles of Ownership (4, 8, 66) • Land Concessions (48-62) • Ownership and Possession (29-47) • Leasing (106-113) • Co-Ownership (175-185) • Immovable Property (2) • Land Administration (226-246)

16. National Level Regional Level Province Level Municipality Level District Level Commune Level Commune Development Concept (Masterplan) PLUP or /and Legally-binding Land-use planning everywhere? Building plan?

17. Restrictions on Property • Governments may guide and restrict the use of property to protect and promote public interests, provided it complies with the principle of proportionality. Expropriation with compensation. • Any restriction on private property is constitutional if it does pursue a public interest effectively.

18. Leasehold Rights • Leasehold rights as alternative secure ownership rights for agricultural land • “Quiet Enjoyment”: Divided property between lessor and lessee • Integration of leasehold rights in participatory land use planning

19. Recognition of Land Rights • Recognition of a variety of land tenure, especially for customary tenure, indigenous peoples´ group rights, certificates and land titles • Include these land rights into standardisation processes and integrate them into the legal system • Create a functioning land market with leasehold rights (rental market)

20. Outlook • Integrate customary land law into the rule of law • Harmonization of constitutional law and basic (land law • Information and education about the rule of law • Interpretation of law

21. End Questions, please? www.landmanagement-online.de www.fabian-thiel.de