Legal geographies of neoliberalism: Market-oriented tenure reforms and the construction of an ‘informal’ urban class in post-socialist Phnom Penh

Abstract

Chinese

In the late 1980s and early 1990s, Cambodia’s transition from socialist to market-oriented tenure became associated with severe tenure insecurity for those living in areas of self-built housing in the capital, Phnom Penh. This paper explores the legal geographies of this tenure insecurity by assessing how low-income urban dwellers interacted with a rapidly shifting legal system. Through analysis of historical legal documents, survey data and archived land disputes, it is found that market-oriented tenure reforms were exclusionary by design, and directly resulted in an ‘informal’ tenure system that legally rendered self-built dwellings in a constant state of provisionality. The findings provide a critique of orthodox accounts of tenure reform in post-socialist cities, which propose the deepening of market reforms to increase security. Instead, the paper builds on critical legal geographies of neoliberalism by suggesting that insecurity in Phnom Penh was perpetuated by laws, rather than their absence or the circumventing of laws. The analysis also contributes to understandings of informal tenure by presenting a post-socialist, state-constructed and exclusionary system of informality.

Keywords

exclusion informality land use poverty tenure reform

Introduction

In April 1975 the genocidal, anti-urban Khmer Rouge forcibly emptied Cambodia’s urban centres in pursuit of a Maoist agrarian utopia, leaving the capital, Phnom Penh, a ghost town. By the time of the regime’s collapse in 1979, up to 80% of the city’s housing had been destroyed (Beng Hong, 1984). Consequently, many returnees and new migrants constructed housing in the city’s open spaces as the limited existing pre-war stock was filled (Khemro and Payne, 2004), resulting in large unplanned settlements dotted across the city (Urban Sector Group, 1994). Although no accurate records exist, by the early 1990s observers believe the urban population in such settlements accounted for around 15% of the city’s approximately 1 million residents (Chan et al., 2001). This paper examines how this group were treated in laws and regulations relating to private property ownership as the country transitioned from socialism to a market-oriented economy in the late 1980s and early 1990s. Principally, it asks why those in self-built accommodation suffered severe tenure insecurity in a process that resulted in the eviction of tens of thousands of households (Sahakum Teang Tnaut (STT), 2011). The paper also assesses the types of tenure found in these settlements and the security afforded to properties associated with them. In doing so, it aims to enhance our understandings of tenure reform in post-socialist economies, and in urban contexts more generally.

Phnom Penh’s tenure transition presents a valuable case study of a rapid ‘shock therapy’ legal transition from socialism to capitalism. The orthodox narrative holds that rapid market reforms implemented in many socialist economies resulted in insecurity for low-income groups because they did not extend legal frameworks for private ownership deep or wide enough (Stiglitz, 2003). The subsequent analysis questions this representation by suggesting tenure laws in Phnom Penh were designed to exclude low-income groups, such that their application rather than their absence perpetuated insecurity. This finding responds to emerging debates about the legal geographies of neoliberalism (Brickell, 2016) and, in particular, Simon Springer’s (2013: 18) call to ‘appreciate law’s violence’, by providing a detailed study of the legal mechanics of exclusion and dispossession in the urban context. It also problematises the intellectual foundations of the ubiquitous land titling approach associated with Hernando de Soto (2000), which proposes the deepening and extending of private ownership laws to secure tenure.

This paper also feeds into debates about the nature of informal tenure. Many studies have found local tenure systems to be most appropriate to the needs of low-income groups that use them (Durand-Lasserve and Royston, 2002; Hunt, 2004; Payne, 2001). However, there have been few assessments of such tenure systems based in the post-socialist context. Through highlighting the case of informal tenure in post-socialist Phnom Penh, the study brings new perspectives to debates on informality and builds on Erin Collins’ (2016) notion of post-socialist informality.

This paper draws on a variety of historical material in its analysis of Phnom Penh’s post-socialist tenure transition. Following a discussion about legal geographies of neoliberalism and their relevance to the Cambodian context, the study draws on historical legal documents to describe the inequitable legal frameworks associated with market-oriented tenure reforms in Phnom Penh. It uses historical survey data to explore how these legal frameworks were accessed by residents of self-built settlements in the city. Shifting scale, case studies of specific land conflicts involving self-built settlements are presented, drawing on recently opened archived reports of land conflicts investigated by the UN Transition Authority in Cambodia (UNTAC) during the period 1991–1993 (see Collins, 2016). These records reveal in detail how exclusionary laws, patronage governance and negative societal perceptions of poor communities resulted in the exclusion of residents in self-built areas from acquiring ownership documents and in the transfer of their land to elites.

Legal geographies of tenure in the post-socialist city

Market-oriented tenure reform is a contentious policy issue. The orthodoxy holds that the failure of some market-oriented tenure interventions to protect the property rights of the vulnerable stems from legal reforms not penetrating deep and/or extending far enough (Brandao and Feder, 1995; De Soto, 2000). Critics, however, argue that such reforms can contribute to – or even cause – the spread of tenure insecurity and should be eschewed in favour of local-based tenure (Payne, 2005; Roy, 2005). In this section, these interpretations of land tenure are assessed in relation to post-socialist urban transitions.

Tenure reform and the legal architecture of post-socialist transition

In the late 1980s and early 1990s, many socialist economies – including Cambodia – began to transition to capitalism through enacting ‘shock therapy’ tenure reforms. This approach entailed the rapid implementation of skeletal regulatory frameworks supporting private ownership and market exchange, with the expectation that supporting laws and institutions would evolve organically over time in response to changing market conditions (Lal, 1985; Williamson, 1993).

Shock therapy reforms did not deliver the goals that their architects had expected. In practice, new laws on private ownership were leveraged by those with better access to information, including knowledge about the processes of legally documenting property ownership, to capture the assets from those with less access to market information (Gerber and Hout, 1998; Murrell, 1993). The classic example of ‘shock therapy’ occurred in the former Soviet Union, where reforms resulted in the dispossession of vulnerable urban dwellers. In Russia, for example, a 1990 law of proprietorship enabled all residents of Moscow to apply for property titles. However, the law was used by officials to enrich themselves by renovating and selling properties, rather than providing eligible residents with titles, resulting in the displacement of poorer residents from inner city areas (Pickvance, 1994). Industrial assets also fell into the hands of well-connected elites and government officials as Russia’s urban centres saw a decline in economic output and the emergence of a kleptocratic elite (Black et al., 2000; Stiglitz, 2003).

The failure of ‘shock therapy’ prompted much debate at the international financial institutions that had promoted such reforms in transition economies across the globe. The consensus became that the reforms failed because they were not sufficient in depth or breadth to create a legal framework that supported strong property rights and facilitated market exchange (Rodrik, 2006). Joseph Stiglitz (2003: 202), former chief economist of the World Bank, asserted that ‘insufficient attention [was given] to an institutional infrastructure that would allow a market economy to flourish … the International Monetary Fund and treasury had laid the ground work for the oligarchs’ plundering’. Consequently, prominent development policy thinkers began promoting the strengthening of market-oriented regulatory and institutional structures as the key variable explaining cross-country variations in long-term economic development (Acemoglu et al., 2001; Rodrik, 2006).

Interrogating this orthodox representation of ‘shock therapy’ is important because of the impact the narrative has had on today’s urban policy agenda and specifically on the nature of the World Bank’s current tenure reform programmes. In recent years, country- and city-wide land titling programmes have become one of the World Bank’s most popularly replicated international development interventions (Gilbert, 2002). Such projects are underpinned by the belief that tenure insecurity results from the absence of legal tenure, and the prevalence of informal tenure (De Soto, 2000; Feder and Nishio, 1998). They require deep regulatory and institutional reforms to develop global-standard property rights mechanisms, and extend legal protection across cities, often by systematically registering all property claims – public and private (Flower, 2018). The policy has received support from a range of multilateral and bilateral aid agencies and has been implemented in a range of settings across the globe including Asia (Hall et al., 2011), Africa (Briggs, 2011) and post-socialist transition countries (Ho and Spoor, 2006).

A key aim of this study is to assess the intellectual foundations of the land titling approach by providing an assessment of tenure reforms associated with ‘shock therapy’ in Phnom Penh. In doing so, it provides a different interpretation of legal reforms and tenure insecurity in the post-socialist context than offered in orthodox accounts.

Alternative legal geographies of urban development

The orthodox representation of post-socialist transition emphasises the absence of laws and institutions supporting private property rights as a cause of insecurity. In contrast, an alternative view sees the nature of top-down tenure reforms as contributing to insecurity.

Many criticisms of top-down tenure reforms take a more political approach to analysis of their effects. From this perspective, the state strategically implements laws to exert its power, reshaping that space to represent its own interests and a future vision of modernity (Scott, 1998). Consequently, analyses of legal geographies of urban space have focused on how top-down reforms commence as a political question, rather than a technical issue of regulatory and institutional reform, in their remaking of space at the local level (Blomley, 1994; Varley, 1998). Principally, it is argued, the legal landscape of cities is not defined only by the structural attributes of its laws, but also by the powers that define their implementation (Gilbert, 2002; Varley, 2002).

To better understand how laws can make urban space, Katherine Brickell conceptualises legal geographies through a ‘rule of law’ or ‘rule by law’ distinction (Brickell, 2016). The former refers to laws implemented evenly and fairly to the benefit of society, while the latter refers to law implemented in a manner to forward the agenda of elites. In many cases, tenure laws have been implemented unevenly to promote urban spaces that the powerful desire. In South Africa, for example, many of the country’s elite live in gated communities that contravene laws regarding the use of public space, as do many unplanned settlements. However, the state responds to these extra-legal activities in different ways: unplanned settlements are perceived as a problem, whereas gated communities are perceived as a rational response to insecurity and violence (Lemanski, 2004).

A key aspect of top-down tenure reforms is their extension of the rules of the formal market across urban areas by codifying property rights. This process results in an urban development agenda that aligns political elites with neoliberalism in the selective implementation of law. Here the distinction between formal/legal and informal/illegal tenure is an important tool that legally and discursively constructs territorial space, enmeshing the interests of local elites and the rationale of global capitalism. Ananya Roy (2005) sees the discourse of informality as a projection of Agamben’s (2005) ‘state of exception’: a space where normal laws are suspended. This discourse is perpetuated to justify certain kinds of neoliberal urban interventions. ‘Informal’ settlements in Israel, for example, have been discursively constructed using terms such as ‘illegal resident/immigrant’, ‘unapproved development’, ‘illegal housing’, ‘building and planning infringements’ and ‘land invasion’ (Yiftachel, 2009: 93). These areas have thus been designated ‘grey’ spaces by the state and the neoliberal elites whose interests they represent: opaque, illegitimate places that exist in a state of constant insecurity. Eventually, these settlements are ‘whitened’, as discourses are mobilised that invoke neoliberal concepts of ‘development’ or a need to protect the ‘national interest’, or ‘blackened’ through evictions (Yiftachel, 2009: 93). (See Parsons and Lawreniuk, 2018, for a discussion on the legal and discursive framing of Vietnamese Cambodians as ‘liminal’ citizens.)

Others have gone further, arguing that it is not the selective implementation of neoliberal laws by elites that causes dispossession, but rather the inherent neoliberal characteristics of such laws (Springer, 2013). That is to say, insecurity should be viewed not as a result of illegal/informal processes, but rather as a consequence of legal/formal processes. Springer notes that while it is typical to call evictions of low-income groups ‘“illegal” perversions of law’, the opposite is correct: ‘what is actually needed is a more critical appreciation of law’s violence’ (Springer, 2013: 18). In this view, it is not the actions of elites per se that cause dispossession, but the fact that it is impossible for low-income groups to achieve positive outcomes under a discriminatory legal system.

In recognition of the disjuncture between top-down tenure reforms and the interests of those living in informal settlements, many have posited that policy interventions should be based on local-based tenure systems known to residents (Durand-Lasserve and Royston, 2002; Khemro and Payne, 2004; Payne, 2001, 2005). Local or customary tenure systems are often viewed as appropriate to local needs as they have evolved ‘endogenously in response to changing resource pressures’ (Hunt, 2004: 174). Policies should, therefore, strengthen and build on rather than disrupt local tenure arrangements (Payne, 2005; Sjaastad and Cousins, 2009). Such policies could include a moratorium on evictions, the extension of public service infrastructure to informal settlements or the provision of legal recognition for local tenure documentation.

Post-socialist neoliberalism in Phnom Penh

Emerging from debates on legal geographies of tenure reform are two key questions related to Phnom Penh’s transition. The first concerns the relationship between market-oriented legal reforms and tenure insecurity: does insecurity result from the absence of tenure laws, laws that have been implemented selectively, or the inherent exclusionary nature of laws? The second relates to the attributes of informal or extra-legal tenure: are such tenure systems a source of insecurity or are they appropriate systems that provide the basis for security if strengthened? The remainder of the paper explores these questions in relation to Phnom Penh’s transition.

Background

Cambodia provides a textbook ‘shock therapy’ transition. In 1989 the country saw the departure of the Vietnamese troops and advisers that had upheld a socialist republic for a decade, the rapid liberalisation of the economy after 15 of years of socialism, and even a change in name from the People’s Republic of Kampuchea (PRK) to the State of Cambodia (SOC). Moulding this transition, however, were the same leaders that had governed through the socialist 1980s. During that period, governance was defined by mutually beneficial political relationships centred on the distribution of state resources in return for political support, underpinned by strong personal, often familial, bonds (Frings, 1994; Gottesman, 2004). In this context, ‘shock therapy’ market reforms in the late 1980s and 1990s enabled key figures to distribute newly created assets to cement their power (Hughes, 2003; Ledgerwood, 2008).

The commodification of urban real-estate in 1989 unlocked a vast asset-base that the state could draw on to increase its power (Collins, 2016; Engvall and Koko, 2007). In return for their political backing, powerful individuals were permitted to privatise large sections of vacant real-estate – or that which could be ‘rendered vacant through the use of force’ (Engvall and Koko, 2007: 7). Allocating land ownership to residents across the country was also a populist strategy to ensure mass support for the new government (Ledgerwood, 2008): nearly 5 million land title application receipts were distributed in the period 1989–1993 by a new government seeking to cement its legitimacy (Collins, 2016).

As the government distributed land ownership rights across Cambodia, an emerging policy question concerned how to treat Phnom Penh’s self-built settlements, which were rapidly emerging as a significant part of the city’s social fabric (Shatkin, 1998; Urban Sector Group, 1994). Self-built areas became ubiquitous as the capital re-urbanised following the fall of the Khmer Rouge in 1979, and the end of its policy of de-urbanisation. Returnees and other migrants initially settled in abandoned housing, but by the late 1980s the existing housing stock was filled and new arrivals constructed dwellings in the city’s open spaces (Khemro and Payne, 2004; Urban Sector Group, 1994). By the early 1990s, approximately 150,000 of the city’s 1 million residents lived in such areas (Chan et al., 2001).

In general, government policy was not accommodating to the residents of self-built settlements. According to Socheath Khemro (2001: 37), a high-ranking official and the son of a deputy mayor of Phnom Penh during the 1990s, authorities viewed such settlements as ‘a disgrace to the city’s image and the nation as a whole’. The settlements were aesthetically incongruous with the vision of capitalist urbanity that politicians were keen to promote: a global city which reconnected Cambodia into the global economy following years of isolation (Khemro, 2001; Shatkin, 1998). As a result, far from being furnished with ownership rights, many settlements were demolished by the authorities in the name of development: in the two-year period from 1994 to 1995, for example, approximately 1700 households were evicted in the course of ‘beautification’ projects across Phnom Penh (STT, 2011).

Legal tools of exclusion

The underlying political, economic and social drivers of exclusion were represented in the promulgation, structure and implementation of land laws by the Cambodian government. On 22 April 1989 the government of Cambodia issued sub-decree No. 25 (State of Cambodia, 1989c), which in principle paved the way for all Phnom Penh households to obtain ownership titles for their property. The decree stated that the government would ‘provide ownership to each Cambodian family occupying any house in any commune or district of the country’.¹ In theory the 1989 decree permitting land ownership in Phnom Penh applied to all families occupying a residential abode. In practice, however, the government established procedures for registering ownership rights that provided a legal framework for the exclusion of those living in self-built areas.

Circular 05, promulgated in June 1989 (State of Cambodia, 1989a), was a key procedural document in the exclusion of those living in unplanned areas from receiving ownership documents. It established the process by which households could apply for land titles, making a distinction between those occupying housing in planned and self-built areas. Owners of planned housing – planned accommodation on planned streets – were automatically eligible for title and could begin the application process at their local government office – the commune office – immediately.² By contrast, residents of self-built areas were not automatically eligible, and could not apply for titles at the commune office. Instead, municipal authorities would decide whether those living in such areas were eligible for titles on a case-by-case basis. While Circular 05 did not deem the ownership claims of residents in self-built areas illegitimate by default, it introduced ambiguity as to their legality. Later, the 1992 Land Law (State of Cambodia, 1992) formalised this ambiguous tenure status by introducing the concept of ‘possessor’ as a distinct tenure category from ‘owner’.³ While an owner enjoyed the range of legally secured property rights associated with their plot, possessors’ relationship to their plot was considered as ‘temporary’ in nature; the property was not privately owned and hence remained de facto state land (Grimsditch and Henderson, 2009).

The legal reforms of 1989 and 1992, then, had two important implications for residents in Phnom Penh wanting to register property claims. First, the 1989 decree gave residents in planned dwellings the automatic right to apply for ownership documents from the local commune office, and denied residents in self-built dwellings this same right. Second, the 1992 Land Law made provisions for those denied the automatic right to apply for title by creating a second-tier tenure category of ‘possessor’. As we shall now see, these procedural attributes manifest as two distinct modalities of tenure document: ‘ownership’ documents associated with planned areas, and ‘possession’ documents associated with self-built settlements.

The process of applying for land title for those in planned areas followed a number of steps and generated a number of official ‘ownership’ documents, which signified increasing levels of state recognition of an ownership claim. When an application for title was made at the local commune office, the applicant would receive a title receipt if the authority recognised the applicant’s ownership claim.⁴ If the claim was supported, a survey team would then visit the plot and demarcate boundaries, and if there were no disputes, the applicant would receive a survey paper receipt with a stamp from district authorities. If this claim was deemed valid, the district chief could then approve issuance of a land title, and communicate this to the central cadastral authority, which would enter the ownership details into the national cadastre. Finally, a land title would be printed and issued to the applicant (Sovannarith et al., 2001).

The available data suggest that numerous residents of planned residential areas applied for titles beginning in 1989. Overall, figures from municipal authorities show that between 1989 and 2001, 5649 land titles were distributed in Phnom Penh (Sovannarith et al., 2001: 20, 39). The number of titles issued represent only a fraction of the total applications made: the bureaucratic, time-consuming and expensive process of acquiring a title meant that many were content to understand ownership to be conferred by a document generated in the title application process, rather than following the process through to the end (Flower, 2018; So, 2009). This is illustrated in survey data of 1989/1992 tenure documents conducted by the Cambodia Development Resource Institute (CDRI, 2007), which collected details of tenure documents of 2826 units across six municipal districts. The survey results suggest that at least 75% of planned properties were documented with an ownership associated document – either an application for title receipt, a survey paper or – in far fewer cases – a full land title.

In contrast, numerous studies suggest that those in self-built accommodation were generally unable to acquire any of the ‘ownership’ documents associated with the application for land title (Collins, 2016; Sovannarith et al., 2001; Springer, 2013; Sahakum Teang Tnaut, 2009). A survey by the NGO Sahakum Teang Tnaut (2009), for example, interviewed representatives from 410 ‘urban poor’ settlements in Phnom Penh, representing a combined total of 40,458 households, finding that only 7% of respondents reported any residents in their settlements having acquired any ‘ownership’ documents. Instead, dwellings in self-built settlements were typically documented with ‘possession’ documents. In this regard, the 1992 Land Law made provisions for those with ‘unclear ownership status’ to be issued certificates of ‘temporary occupation’ by local authorities.⁵ Household-level studies confirm this tenure modality as typical in self-built settlements (Flower et al., 2018; Khemro and Payne, 2004). A survey of a self-built settlement in Russie Keo District, for example, found that out of 1097 respondents, 62% had obtained a possession document from local authorities, while 34% had no tenure documents and 2% had tenure conferred by informal contract of transfer between two parties; only 2% had obtained the lowest form of ‘ownership’ document – a title receipt (Flower and Grimsditch, 2015).

The distribution of tenure documents between planned and self-built areas differed markedly even within local authority areas. This is demonstrated by survey results from two villages (an administrative unit below commune) in the commune of Tonle Bassac (CDRI, 2007). In Village 9, a planned and established residential area, the majority of households had some form of ownership document (Table 1). Around 83% had survey papers, 7% had land title and 4% had a commune-issued land title receipt. In contrast, in nearby Village 16, which consisted predominantly of self-built dwellings, the majority of households’ documents conferred only possession rights. Nearly 60% of households had a local authority-stamped possession document, while 15% had no tenure document, and 6% had an informal contract of sale between two parties (not stamped by authorities). Around 20% of properties did have ‘ownership’ documents in the form of a title receipt; this accounted for a row of planned structures along the main road that were not part of the self-built settlement. During a site visit to Village 16 in 2013, residents claimed to have been denied land ownership documents by commune authorities and frequently threatened with eviction; they noted other residents of self-built areas in their vicinity had been evicted.

Table 1.

Tenure documents in planned and self-built areas.

Tenure document	Village 9(planned)	Village 16(self-built)
Land title	7.2%	1.5%
Survey paper	82.6%	–
Title receipt	4.3%	19.1%
Possession document	5.8%	58.8%
Informal contract of sale	–	5.9%
No tenure document	–	14.7%
Total	100.0%	100.0%
N	69	68

Note: Ownership documents highlighted in grey.

Source: CDRI (2007).

The legal framework defined in the 1992 Land Law and previous decrees on ownership, therefore, created two systems of tenure. First, in planned areas authorities recognised households’ ownership rights and provided official ownership documents (though not necessarily full title). Second, in self-built areas residents were denied ownership documents and only granted papers acknowledging their temporary possession. In this way, the state formalised a class of ‘temporary’ residents who had no rights to occupy their dwelling permanently and who could be – and often were – evicted (Sahakum Teang Tnaut, 2011). The attributes of informal tenure in Phnom Penh suggests that the system did not evolve in response to local needs, but rather was constructed by the state to create an informal class of urban dwellers who had no permanent right to live in the city.

Legal mechanisms of elite transfer

Excluding those in self-built areas from acquiring legal ownership caused tenure insecurity, which was not an end itself, but rather a prelude to dispossession. The remainder of the paper attends to the issue of elite property transfer, to explore how land rights associated with self-built areas were reallocated. The two case studies presented here are drawn from the hundreds of files documenting land conflicts in Phnom Penh during the UNTAC period, sourced from Cambodia’s National Archive. The first case has been selected to illustrate how land was transferred away from residents of self-built dwellings, highlighting the involvement of powerful officials whose support the ruling party required to remain in government; the second, highlights the transfer of land to urban developers who could remake Phnom Penh into the capitalist vision of modernity to which the government aspired. The widespread evictions that occurred as a result of elite property accumulation during this period have been documented extensively in other studies (e.g. Collins, 2016; Engvall and Koko, 2007; Sahakum Teang Tnaut, 2011; Urban Resource Centre, 2002; Urban Sector Group, 1994).

A land conflict involving a Lieutenant General

The transfer of land rights from low-income communities to state entities, and the involvement of powerful officials in this process, can be illustrated by a 1991 land conflict involving an official from the Ministry of Defence and a community living in a self-built settlement. The plot in question was an area of open space administered by the Ministry of Defence, which became home to a low-income community of demobilised soldiers and their families. In 1991, the community received threats of eviction, which involved a high-ranking official: a Lieutenant General who was also Director General of the Department of Materials and Techniques – a powerful entity because it controlled the military’s armaments. In the face of threats, residents appealed to UNTAC to protect their property.

According to their testimony to UN investigators, residents had lived on the land since 1984, having received permission from their unit commander to construct dwellings. The 23 families had resided there without incident for seven years when they received a letter from the General, purportedly acting on behalf of the Department for Materials and Techniques, informing residents that their land was state property that was required for use by the military; they were ordered to vacate the site within 15 days.⁶ Each household would receive the equivalent of 450 USD in gold in compensation if they complied.

Testimony given to the UN investigators suggests that residents were unconvinced by the General’s claim that the plot was required for military purposes, and instead suspected that the General intended to sell it to a private sector interest:

The Director General of Materials and Techniques sold large areas of land, armament warehouses, car warehouses, materials warehouses that belonged to the military. He did so to serve the interests of a number of people, above all himself. We are aware that the Director General of Materials and Techniques took our land as his own property and he is negotiating its sale with a businessman for the price of 1,200 damlang of gold [approx. 540,000 USD].⁷

Under threat of eviction, all but one of the threatened households left the land and squatted nearby.⁸

This land conflict demonstrates how the 1989 and 1992 land reforms could be leveraged to transfer property rights from residents of self-built settlements to state entities, potentially enriching unscrupulous officials in the process. The land in question was not legally ‘owned’ by residents, but instead remained state land under the administration of the Ministry of Defence. The rights that residents had to their property came from a verbal agreement of an official, and hence constituted no more than claims of ‘possession’; it is unknown if/what tenure documents were provided to residents. The residents’ ‘possession’ claims were superseded by the General’s claim that the land was state property and needed for government use – although this claim, according to residents’ testimony to the UN, may have been spurious.

The government’s political rationale for eliciting the support of powerful officials, including the General in question, was demonstrated five years later in 1997, as the ruling party crushed the biggest challenge to its rule. When a political dispute turned into a military confrontation between troops loyal to the government and units loyal to the opposition, the powerful General threw his support behind the government, and was accused of using his position in charge of Cambodia’s arms deposits to funnel military equipment to government-aligned units (Phnom Penh Post, 13 June 1997).

A land transfer to a tycoon

The case of a 1993 land dispute provides an example of how well-connected private-sector interests acquired property occupied by communities living in self-built settlements. The case involved a well-connected tycoon who had acquired a reputation for conducting many dubious land deals. The company’s dealings had drawn the attention of UNTAC officials, who thought it responsible for ‘major land purchases throughout Phnom Penh’.⁹ In a number of instances, residents in self-built areas evicted as a result of these purchases complained to the UNTAC Phnom Penh provincial headquarters.¹⁰

The process through which the company acquired urban real-estate reveals much about how ownership rights were transferred among elites and, in particular, to powerful businessmen. In February 1993, UNTAC provincial headquarters in Phnom Penh received a complaint regarding an unauthorised eviction (i.e. one not carried out by the state) involving the company in question. According to investigators, a land dispute had begun two years earlier, when the company bought a 26,000 m² piece of land from Cambodia’s Supreme Court in central Phnom Penh for 500,000 USD.¹¹ The Supreme Court had been allocated land by the central government in 1988 in order to build a new court building. However, the planned construction did not go ahead. Instead, lower-level employees from the court were permitted to build dwellings there, a resident of the area at the time testified to UNTAC civil authority investigators.¹² They lived in the area without incident until the Supreme Court began negotiations to sell the land to the company.

Negotiations related to the transaction were conducted through informal networks involving powerful government officials. The key broker between the government and the company was the Deputy Chief of Cabinet of the Supreme Court. The deal was brokered behind closed doors and there was no public announcement of the court’s intention to sell the land, which might have enabled rival bids or allowed the sale to be publicly scrutinised or challenged.¹³

The informal negotiations between the company and the court resulted in a legal process, which lent legitimacy to the transfer. The Supreme Court made a request to the Council of Ministers for legal authority to sell the plot to the company, and on 11 November 1991 the Vice-President of the Council of Ministers approved the Supreme Court’s request and issued a decision permitting the court to sell the plot.¹⁴ A few days later the president of the Supreme Court issued decision No. 1082/91, giving the court the legal mandate to (i) sell the 26,000 m² plot to the company and (ii) remove all existing structures on the plot within 30 days of the announcement. ¹⁵

Residents living in the self-built settlement only became aware of the process when the decision was issued by the court. The households living on the site refused to comply with a number of eviction notices and, eventually, in January 1993, the company decided to evict residents by force. The company evicted the residents without informing the municipality, even though by law the municipality had to issue and execute all eviction notices.¹⁶ During the UNTAC investigation it emerged that the company had enlisted the services of Military Unit 246 as a private army; the unit had participated in the eviction brandishing Kalashnikov assault rifles.¹⁷ UNTAC officials also noted with alarm that when the company’s chairman visited the UN office to give evidence as a civilian he was accompanied by an attaché of policemen as his personal bodyguards.

A striking aspect of this case is the close links between patronage networks and the promulgation and enforcement of law to the benefit of elites. The most remarkable aspect of the case is that the country’s highest judicial authority – the Supreme Court – played a central part in the deal. It is reasonable to speculate that the Supreme Court claimed that it needed the land for a new court building in 1988, on the eve of land privatisation, in the knowledge that it would soon become a valuable asset. Once administrative control of the property was secured, its sale to a well-connected tycoon was brokered through informal channels hidden from public view. At the same time the legality of the sale was ensured by a decision of lawmakers at the Council of Ministers. This, in turn, vested in the Supreme Court the legal authority to demand that self-built households vacate the area. Finally, an eviction was carried out by the company, in contravention of Cambodian law, and using military units accountable to the government. These enmeshed legal and informal processes resulted in the transfer of state land to a private investor, potentially enriching corrupt bureaucrats in the process, and using state force to violently dispossess residents of their property. Transacting the transfer of large plots of land to powerful tycoons served an important additional purpose: transitioning Phnom Penh from a site of low-income housing, to a place where global capitalism was reproduced. The tycoon referred to in this case was an influential figure in bringing foreign investment to Phnom Penh: one of his better-known ventures was partnering with a global hotel brand to bring the first international hotel to the city (Phnom Penh Post, 12 October 2012).

Post-socialist Phnom Penh and the legal geographies of tenure transition

The legal analysis of post-socialist tenure reform in Phnom Penh presented in this paper brings new perspectives to debates about ‘shock therapy’ and the nature of ‘informal’ tenure in urban contexts.

The findings suggest that the orthodox representation of post-socialist ‘shock therapy’ reforms – that legal systems cause insecurity if they do not penetrate deep enough or extend far enough – is not apparent in Phnom Penh. Instead, insecurity was found to be a product of laws that prevented those in self-built accommodation accessing ownership documents, not the absence of laws relating to private property. Similarly, the transfer of self-built plots to tycoons was sanctioned by officials promulgating laws, not in the absence of laws or by officials breaking the law. Tenure laws, therefore, were deliberately designed by the state to engender a land transfer from low-income urban dwellers to the political and private sector elite. They were rooted in the political, social and economic realities of the time and the urban future that government was keen to promote – a future where the urban poor were replaced with structures and practices that were viewed as more akin to a site of global capitalism.

The legal geography of Cambodia’s transition presented in this paper links with emerging critical legal geographies of neoliberalism, and in particular, Simon Springer’s (2013) call to appreciate ‘law’s violence’. In this regard, it is important to note the informal networks and vested interests that worked to develop the formal rules of violent dispossession. Perhaps the most notable example from this study is the Supreme Court legalising its own land transfer and the corresponding eviction of residents in self-built dwellings. This case vividly demonstrates how laws can be inherently exclusionary because of the interests they represent. The Supreme Court case is a clear example of what Katherine Brickell (2016) refers to as ‘rule by law’.

The legal geographies of post-socialist tenure transition detailed in this study question the intellectual underpinning of the ubiquitous land titling policy model. Land titling programmes focus on regulatory and institutional reforms in order to increase tenure security. The premise of these reforms is that limited state capacity to extend private ownership across the population is the cause of tenure insecurity. In Phnom Penh, however, the state has exercised its capacity to enact laws relating to private property ownership. These laws are identified in this paper as the cause of tenure insecurity for low-income dwellers. The logical inference from this observation is that increasing the capacity of the state to enact and implement such laws may only deepen the state’s capacity to (legally) evict low-income groups from the city. It is suggested, therefore, that tenure laws can be conceived not as a fixed set of rules that define state action, but as a fluid space that is constantly being reshaped to define urban space. Efforts should be made to align the political, social and economic needs of elites and low-income groups if laws are to be effective in securing tenure for the latter. In this regard, an incremental – rather than a ‘shock’ – approach to tenure reform may be useful to secure the rights of the most vulnerable. In Afghanistan, for example, a first step of an incremental tenure reform process involves local government providing receipts to residents on their payment of the traditional Safayi tax, thus furnishing the government with revenue to provide public services, and residents a level of official recognition of their property rights (French et al., 2016; Turkstra and Popal, 2010). In this way, the interests of the residents and the state are aligned to produce mutually beneficial outcomes: increased public revenues, and tenure security for local authorities and low-income households, respectively. From this foundation, subsequent cooperative interventions can further strengthen tenure security, with a view to establishing full legal recognition of low-income residents’ property rights in the longer term.

This study also has implications for understandings of informal tenure, particularly in post-socialist contexts. Arguments supporting local tenure as an alternative to formal tenure have usually been based on case studies in the Sub-Saharan African and South Asian contexts, where in some cases established local tenure arrangements have developed over decades or longer, and are often thought of in distinction from imported market-oriented systems (Varley, 2013). In post-socialist Phnom Penh, however, the situation was different: those locked out of the new ‘formal’ system did not have a traditional tenure system to fall back on. The 15 years of communism that preceded the 1989 market-oriented tenure reforms meant that there was no such local system in existence.

In post-socialist contexts, therefore, a different conception of ‘informality’ is needed. In this regard, Erin Collins (2016) emphasises the symbiotic nature of the formal and informal in Phnom Penh’s post-socialist setting: that informality was produced at the same time as formalised private property, through the process of excluding large swathes of the city where low-income residents resided. This paper builds on this notion of post-socialist informality in Phnom Penh, asserting that categories of formal and informal tenure were strategically created by the state in the 1989 decrees and 1992 Land Law with a view to excluding – and ultimately removing – those in self-built settlements. In this sense, the laws created the binary categories of permanent ‘owner’ and temporary ‘possessor’, which were represented in the different modalities of tenure documents found in planned and self-built areas, respectively. Informal tenure, therefore, was not the organic ‘local’ system of tenure found in other contexts. Rather, it was a ‘top-down’ legal construct to project state power: informal tenure was actively promoted by authorities as a means to perpetuate tenure insecurity by providing residents with second-tier documents that conferred only limited possession rights. Much like those living in Yiftachel’s (2009) grey spaces, this ‘illegitimate’ population had few legal rights to their property and were often evicted in the name of development.

The attributes of informal tenure in Phnom Penh suggests policy makers should be wary of calls to strengthen ‘local’ tenure in post-socialist cities. While these calls may be appropriate in other contexts, in post-socialist Phnom Penh they may merely lend legitimacy to an inherently exclusionary legal architecture.

Conclusion

This article has explored the legal geographies of neoliberalism through which Phnom Penh was turned into an inequitable urban space during the transition from socialism to a market economy. It has argued that residents in self-built areas were prevented from receiving ownership documents and lived in a constant state of legal ambiguity and tenure insecurity, and suffered frequent evictions. Their exclusion from acquiring formal ownership was perpetuated by government and formalised in laws relating to ‘temporary possessors’. In turn, plots belonging to those in self-built accommodation were often transferred to a private-sector elite to serve the strategic interests of powerful politicians.

From a policy perspective, neither the orthodox approach of deeper market reforms nor the alternative approach of building on local tenure appears to address the mechanisms through which insecurity has been perpetuated in Phnom Penh. Rather, the analysis presented in this study suggests that if tenure security is to be strengthened, then the political dimensions of insecurity should be considered. In particular, actions should be taken to align the interests of low-income groups with those of the state. The example of an incremental process of tenure reform in Afghanistan has been provided as a possible model for such a transition. More research is necessary to aid our understandings of tenure insecurity in systems that experience severe disruption, such as those associated with political, economic and/or social upheaval, in order to develop appropriate policy responses. In this regard, the study has demonstrated the importance of legal analysis in uncovering the dynamic and complex ways tenure laws can affect residents’ tenure security.

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This research was funded by a UCL Impact Award Studentship and a Royal Geographical Society Slawson Award.

UNTAC archive documents (in chronological order)

Letter sent to residents from General, 6 January 1991.

Petition against eviction submitted to UNTAC Civil Administration Phnom Penh HQ, 6 June 1991.

Decision No. 1082/91, Supreme Court and General Attorney attached to the Supreme Court, 15 November 1991.

Letter from Director, UNTAC Phnom Penh Provincial HQ to Director, UNTAC Civil Administration, 1 January 1993.

Letter from Director, UNTAC Phnom Penh Provincial HQ to Director, UNTAC Civil Administration, 1 February 1993.

Deputy Director of the People’s Supreme Court, statement given to UNTAC Civil Administration, 16 February 1993.

Letter from Deputy Director, UNTAC Phnom Penh Provincial HQ to Commanding Officer, Ghana Battalion, 23 March 1993.

Supreme Court official and affected resident, statement given to UNTAC Civil Administration, 1993 (exact date not recorded).

Notes

References

Acemoglu

Johnson

Robinson

(2001) The colonial origins of comparative development: An empirical investigation. American Economic Review 91: 1369–1401.

Agamben

(2005) State of Exception. University of Chicago Press. Available at: https://books.google.co.uk/books?hl=en&lr=&id=NTZBBfnmYowC&oi=fnd&pg=PP11&dq=agamben+the+state+of+exception&ots=b6Pz4LgXsM&sig=1e8m-kYP_2Ige3sHrLaUjLLJa24 (accessed 15 July 2016).

Beng Hong

(1984) Survey of the Housing and Infrastcutrue of Phnom Penh. Phnom Penh: State of Cambodia.

Black

Kraakman

Tarassova

(2000) Russian privatization and corporate governance: What went wrong? Stanford Law Review 52: 1731–1808.

Blomley

(1994) Law, Space, and the Geographies of Power. New York: Guilford Press.

Brandao

Feder

(1995) Regulatory policies and reform: The case of land markets. Available at: http://agris.fao.org/agris-search/search.do?recordID=GB2013200655 (accessed 14 July 2016).

Brickell

(2016) Gendered violences and rule of/by law in Cambodia. Dialogues in Human Geography 6(2): 182–185.

Briggs

(2011) The land formalisation process and the peri-urban zone of Dar es Salaam, Tanzania. Planning Theory and Practice 12(1): 115–153.

CDRI (Cambodia Development Resource Institute) (2007) Land Titling Urban Baseline Study. Phnom Penh: CDRI.

10.

Chan

Saravy

Acharya

(2001) Land Tenure in Cambodia: A Data Update. Phnom Penh: CDRI.

11.

Collins

(2016) Postsocialist informality: The making of owners, squatters and state rule in Phnom Penh, Cambodia (1989–1993). Environment and Planning A 48(12): 2367–2382.

12.

De Soto

(2000) The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else. New York: Basic Books.

13.

Durand-Lasserve

Royston

(2002) Holding Their Ground: Secure Land Tenure for the Urban Poor in Developing Countries. Earthscan. Available at: https://books.google.co.uk/books?hl=en&lr=&id=DcrLxppydcQC&oi=fnd&pg=PR3&dq=Durand-Lasserve+and+Royston+2002&ots=HHiBqo1uVy&sig=ah_eKtF–0Gkqx9bYYIeNJmnf6Y (accessed 14 July 2016).

14.

Engvall

Koko

(2007) Poverty and Land Policy in Cambodia. Stockholm: EUS.

15.

Feder

Nishio

(1998) The benefits of land registration and titling: Economic and social perspectives. Land Use Policy 15(1): 25–43.

16.

Flower

BCR

(2018) Does informal tenure result in land inequality? A critique of tenure formalisation reforms in Cambodia. Land Use Policy 77: 240–248.

17.

Flower

BCR

Grimsditch

(2015) Legal Analysis of Land Tenure in Urban Poor Settlements in Phnom Penh. Phnom Penh: People in Need.

18.

Flower

BCR

Fortnam

Kol

et al . (2018) Using participatory methods to uncover interacting urban risks: A case study of three informal settlements in Phnom Penh, Cambodia. Environment and Urbanization 30(1): 301–316.

19.

French

Turkstra

Farid

(2016) Vacant land plots in Afghan cities: A problem and an opportunity. Urbanisation 1(2): 79–94.

20.

Frings

(1994) Cambodia after decollectivization (1989–1992). Journal of Contemporary Asia 24(1): 49–66.

21.

Gerber

Hout

(1998) More shock than therapy: Market transition, employment, and income in Russia, 1991–1995. American Journal of Sociology 104(1): 1–50.

22.

Gilbert

(2002) On the mystery of capital and the myths of Hernando de Soto: What difference does legal title make? International Development Planning Review 24(1): 1–19.

23.

Gottesman

(2004) Cambodia After the Khmer Rouge: Inside the Politics of Nation Building. Yale University Press. Available at: https://books.google.co.uk/books?hl=en&lr=&id=ESatwt6zGD0C&oi=fnd&pg=PR9&dq=gottesman+cambodia&ots=1fSC1uYc_j&sig=ngAoS0d99IDQQIjLpIHAyXbuqjU (accessed 15 July 2016).

24.

Grimsditch

Henderson

(2009) Untitled: Tenure Insecurity in the Cambodian Land Sector. Phnom Penh: COHRE.

25.

Hall

Hirsch

(2011) Powers of Exclusion: Land Dilemmas in Southeast Asia. Singapore: NUS Press.

26.

Spoor

(2006) Whose land? The political economy of land titling in transitional economies. Land Use Policy 23(4): 580–587.

27.

Hughes

(2003) The Political Economy of the Cambodian Transition. Routledge. Available at: https://books.google.co.uk/books?hl=en&lr=&id=bE0eJLASs68C&oi=fnd&pg=PT8&dq=shatkin+cambodia&ots=847TGNeCeu&sig=vDxticfTPJ0GxBNGVawwaEdgySw (accessed 22 March 2016).

28.

Hunt

(2004) Unintended consequences of land rights reform: The case of the 1998 Uganda Land Act. Development Policy Review 22(2): 173–191.

29.

Khemro

BHS

(2001) Patterns of Squatting in Phnom Penh: An Evaluation of the Socio-economic Characteristics of Squatters and their Reasons for Squatting. London: UCL Press.

30.

Khemro

BHS

Payne

(2004) Improving tenure security for the urban poor in Phnom Penh, Cambodia: An analytical case study. Habitat International 28(2): 181–201.

31.

Lal

(1985) The misconceptions of ‘development economics’. Finance and Development 22(2): 10–13.

32.

Ledgerwood

(2008) Ritual in 1990 Cambodian political theatre: New songs at the edge of the forest. At the Edge of the Forest: Essays on Cambodia, History, and Narrative in Honor of David Chandler, Ithaca, Southeast Asia Program. Available at: https://seap.einaudi.cornell.edu/sites/seap/files/Ledgerwood%20Theatre%20Forest_0.pdf (accessed 22 March 2016).

33.

Lemanski

(2004) A new apartheid? The spatial implications of fear of crime in Cape Town, South Africa. Environment and Urbanization 16(2): 101–112.

34.

Murrell

(1993) What is shock therapy? What did it do in Poland and Russia? Post-Soviet Affairs 9(2): 111–140.

35.

Parsons

Lawreniuk

(2018) Seeing like the stateless: Documentation and the mobilities of liminal citizenship in Cambodia. Political Geography 62: 1–11.

36.

Payne

(2001) Urban land tenure policy options: Titles or rights? Habitat International 25(3): 415–429.

37.

Payne

(2005) Getting ahead of the game: A twin-track approach to improving existing slums and reducing the need for future slums. Environment and Urbanization 17(1): 135–146.

38.

Phnom Penh Post (13 June 1997) Accusations Fly Over Arms Deals. Available at: https://www.phnomhpenhpost.com/national/accusations-fly-over-arms-deals (accessed 11 August 2018).

39.

Phnom Penh Post (12 October 2012) Gunslinger Tycoons. Available at: https://www.phnompenhpost.com/7days/gunslinger-tycoons (accessed 11 August 2018).

40.

Pickvance

(1994) Housing privatization and housing protest in the transition from state socialism: A comparative study of Budapest and Moscow. International Journal of Urban and Regional Research 18(3): 433–450.

41.

Rodrik

(2006) Goodbye Washington consensus, hello Washington confusion? A review of the World Bank’s economic growth in the 1990s: Learning from a decade of reform. Journal of Economic Literature 44(4): 973–987.

42.

Roy

(2005) Urban informality: Toward an epistemology of planning. Journal of the American Planning Association 71(2): 147–158.

43.

Sahakum Teang Tnaut (STT) (2009) The 8 Khan Survey. Phnom Penh: STT.

44.

Sahakum Teang Tnaut (2011) Displacement Figures for Phnom Penh 2011. Phnom Penh: Sahakum Teang Tnaut.

45.

Scott

(1998) Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed. New Haven, CT: Yale University Press.

46.

Shatkin

(1998) ‘Fourth World’ cities in the global economy: The case of Phnom Penh, Cambodia. International Journal of Urban and Regional Research 22(3): 378–393.

47.

Sjaastad

Cousins

(2009) Formalisation of land rights in the South: An overview. Land Use Policy 26(1): 1–9.

48.

(2009) Political Economy of Land Registration in Cambodia. Dekalb, IL: University of Northern Illinois.

49.

Sovannarith

Sopheap

Utey

et al . (2001) Social Assessment of Land in Cambodia: A Field Study. Phnom Penh: CDRI.

50.

Springer

(2013) Illegal evictions? Overwriting possession and orality with law’s violence in Cambodia. Journal of Agrarian Change 13(4): 520–546.

51.

State of Cambodia (1989a) Circular 05, 05/06/1989: On the Implementation of Sub-Decree Regulating the Granting of Ownership on the House of People Living in Phnom Penh. Phnom Penh: SOC.

52.

State of Cambodia (1989b) Prakas No. 2746 02/08/1989: Prakas on the Papers Relating to the Land. Phnom Penh: SOC.

53.

State of Cambodia (1989c) Sub-Decree No. 25 ANK 22/04/1989: Sub-Decree on Providing House Ownership to the Cambodian Population. Phnom Penh: SOC.

54.

State of Cambodia (1992) 1992 Land Law. Phnom Penh: SOC.

55.

Stiglitz

(2003) What I learned at the world economic crisis. In: Clark

(ed.) Globalization and the Poor: Exploitation or Equalizer? New York: IDEAS, pp. 195–204.

56.

Turkstra

Popal

(2010) Peace Building in Afghanistan through Settlement Regularization. Nairobi: International Society of City and Regional Planners.

57.

Urban Resource Centre (2002) Study on the Relocation of Urban Poor Communities in Phnom Penh. Phnom Penh: ACHR.

58.

Urban Sector Group (1994) Report on the Survey of Phnom Penh Squatter Settlements, 1994. Phnom Penh: USG.

59.

Varley

(1998) The political uses of illegality. In: Fernandes

Varley

(eds) Illegal Cities: Law and Urban Change in Developing Countries. London: Zed Books.

60.

Varley

(2002) Private or public: Debating the meaning of tenure legalization. International Journal of Urban and Regional Research 26(3): 449–461.

61.

Varley

(2013) Postcolonialising informality? Environment and Planning D: Society and Space 31(1): 4–22.

62.

Williamson

(1993) Democracy and the ‘Washington Consensus’. World Development 21(8): 1329–1336.

63.

Yiftachel

(2009) Theoretical notes on gray cities: The coming of urban apartheid? Planning Theory 8(1): 88–100.