Land

The countries in the Lower Mekong – Cambodia, Laos, Myanmar, Thailand, and Vietnam – possess diverse cultures, political systems and economic conditions. Nevertheless, many common issues of land management and land rights extend across the region.¹ These similarities begin with physical geography, but extend further into administrative and legal systems; inter-ethnic relations; approaches to economic development; and the impacts of all these factors on small-scale farmers and food producers.

The Lower Mekong countries consist of two main geographical zones. The first is tropical and sub-tropical river valleys and deltas where rice has been cultivated in flooded paddies for thousands of years. The second is the uplands, characterized historically by high forest cover and shifting (swidden) agriculture. The lowlands are densely populated by national majority groups: the Burmans in Myanmar, Thai in Thailand, Lao Loum in Laos, Kinh in Vietnam, and Khmer in Cambodia. Their lands sometimes extend across modern, national boundaries, as for the Lao in northeast Thailand and Khmer in the Mekong Delta. The uplands are a mosaic of ethnic groups with traditionally more distant relations to central authority.² Smallholders have been present, and a major player in the development agricultural sector, in all of these areas.³ However, people in these geographic areas experience present-day land policies and conflicts in contrasting ways.

Over the last 200 years, the region experienced European colonialism (or direct influence, in the case of Thailand). This was followed by revolutionary and socialist regimes (again excluding Thailand) that redistributed or nationalized land, accompanied by extended periods of conflict that displaced millions of rural people and villagers. Since the 1980s, each of the countries has started transitions at varying times towards a market-based economy, resulting in higher economic growth as well as increased pressure on land use and land rights. Deforestation, dam construction, mining and other natural resource extraction have contributed to environmental damage that is exacerbated by the effects of climate change, particularly in river delta areas.⁴

Land policy and administration

The establishment of formal systems of land administration in the Lower Mekong is closely linked to processes of state formation.⁵ National states may appear monolithic, but are actually made up of a complex mix of agencies and actors that sometimes work together and sometimes compete. State power to distribute land (through patronage or concessions) can be used in pro-poor or pro-elite ways. States that are officially socialist or democratic are nevertheless faced with cases in which well-off elites have captured land policy to serve their own interests.

All states in the Lower Mekong have placed legal and constitutional limits on individual land rights. States reserve large areas of public land for their own use. Even where private ownership exists, as in Thailand and Cambodia, states still reserve powers of compulsory land acquisition and/or take advantage of legal ambiguities to pursue national development plans. To some extent, all states in the region experience a form of legal plurality in which multiple forms of authority co-exist in the same area.⁶ In all regional governments, many agencies at different levels are responsible for drafting, enacting and implementing land-related laws and policies. There are also close relationships between political and economic elites via patronage networks (sometimes family-related), profit motives, and forms of corrupt interests.

In this context, laws on land are viewed more as administrative tools of authorities than a means to protect citizens’ rights. Land titling programs, which grant tenure rights to individuals, corporations, and sometimes communities, can also be used to further state control over certain lands or even facilitate land grabbing.⁷ Although some land laws go back to the colonial period, most are products of the (post-)socialist period of market reforms. These laws show the influences of modern rationalist and bureaucratic thinking, combined with imperatives to increase foreign investment and ‘turn land into capital’.

In most Lower Mekong countries, international donors and civil society organizations have been consulted and involved in land law development and revision. Prominent donor agencies in the region include the World Bank, United Nations Food and Agricultural Organization (FAO), USAID, AusAID, Swiss Development Corporation (SDC), and the German Agency for International Cooperation (GIZ), among others. Cambodian NGOs have been particularly active on land advocacy; Laos, Myanmar, and Vietnam each have at least one domestic non-governmental network that advocates on land policies, in some cases in partnership with international NGOs such as Oxfam.⁸

National governments have also learned from each other through legal exchange or borrowing within the region: for example, Myanmar is looking to Cambodia’s experience in communal land titling.⁹ By contrast, regional institutions such as the Association of Southeast Asian Nations (ASEAN) and the ASEAN Economic Community have taken little interest in land policies, which are considered sovereign issues of each member state.

Land classifications

In addition to the basic distinction between public (state) and private land, many regional governments classify agricultural, forest, commercial/industrial, and residential land differently, with varying degrees of tenure security. In general, small farmers have less secure access than investors or city residents, and upland farmers have less security than their lowland counterparts. Both lowland rice farmers and upland farmers/forest users use customary (traditional) methods – but the lowland farmers are much more likely to also hold formal title to their land. Women, who make up 42.5 percent of Southeast Asian farmers, own only 13 percent of land and face cultural barriers such as inheritance and divorce practices.¹⁰ Among the millions of farmers in the Lower Mekong without land title, ethnic minorities are heavily represented.¹¹ In Cambodia, for example, as of June 2018 only 24 out of around 500 indigenous communities had been granted communal land titles.¹²

Compared to formal land title, customary tenure arrangements are by definition undocumented. While legal frameworks across the region vary in regards to legal recognition of customary tenure, in most cases it remains poorly and irregularly unrecognized by authorities.¹³ Customary land users are further disadvantaged by their frequent location in upland and border areas, ethnicity, and use of farming methods such as swidden cultivation and collection of forest products, which are deemed ‘backward’ and not ‘modern’ by lowland elites. To authorities promoting economic growth, untitled land is often considered unused or underused, as it could contribute more to the national economy if it were used for intensive agriculture or industrial purposes. The fixation on gross domestic product (GDP) does not allow for considerations of the productivity of land for its users, cultural values, or environmental protection.

Land transfer and public land lease

Sihanoukville’s Special Economic Zone (SSEZ) as seen from National Highway No. 4 near Ream commune, Cambodia. Photo by Wikirictor via WikiMedia Commons, taken 15 October 2014. Licensed under CC BY-SA 3.0.

Economic development in the Lower Mekong countries is resulting in increasing conversion of land from small-scale to commercial agriculture, as well as from agriculture to industrial and other uses. Around major cities, prime farming land is disappearing to form new urban residential areas and factories. As land prices rise, those who own land can benefit from sales, while tenants are displaced.¹⁴

Source: Asian Development Bank Environment Operations Center (2014). Created by Open Development Mekong, June 2016. Licensed under CC BY-SA 4.0. Explore the data. Visit Map explorer tool.

All Lower Mekong countries, most recently Thailand, have established special economic zones (SEZs) and other industrial zones that aim to stimulate trade through providing advantageous legal terms to investors.¹⁵ Most SEZs are located near main cities, borders, or along the economic corridors established through the Asian Development Bank’s Greater Mekong Sub-Region initiative (GMS).¹⁶ The roads and other infrastructure financed through GMS and similar programs have opened upland and border areas to land investment and cross-border trade.

The past decade has witnessed a growing trend of large-scale acquisitions of land by domestic and foreign developers, counter to the historical regional norm of smallholder agriculture. These acquisitions are not simply land grabbing by outsiders, but occur through a complex process involving local elites and government relationships with investors.¹⁷ A more appropriate term might be ‘land giveaways’.¹⁸ Government authorities grant a land concession to private, foreign, or state-owned enterprises, allowing the user full rights to clear, plant, or develop the land. According to proponents, concessions will lead to increased production, export growth, and jobs in the rural economy.¹⁹ However, research suggests that most concessions do not achieve these purposes: instead, the benefits go into private hands. In some instances, concessions are used as a cover for illegal logging or speculation.²⁰ Local communities living within or around concessions are affected through loss of livelihoods and access to communal and household land, often with little or no compensation; few villagers are hired by the concession owners.²¹

In Laos and Cambodia, the primary concession holders are regional investors from China, Thailand and Vietnam. Wealthy domestic investors also hold concessions in Cambodia and Myanmar, often with overt or hidden financing from foreign backers. In Vietnam, few large concessions have been made to investors; instead, state-owned enterprises hold tracts of forest and farmland, particularly in upland areas.²² 76% of land in the region under agricultural concessions are used for the so-called “boom crops”: rubber, sugar cane, oil palm, cassava and maize.²³ 

Land dispute resolution

Disputes over land access, use and compensation for land seizures are common throughout the Lower Mekong region. Some of the highest profile conflicts are linked to alleged rights violations in land concessions, SEZs and other development projects. Other disputes arise from inconsistencies or unclarity in land laws and policies, such as competing interests among ministries or levels of government. In other cases, particularly in peri-urban areas, citizens accept the loss of their land for national development purposes, but protest against below-market compensation or corruption in land transactions. Data on land disputes and their resolution is scarce in all countries: Some governments provide summary national data (see Cambodia, Myanmar and Vietnam), while NGOs and journalists focus on certain more serious cases.

With the partial exception of Thailand, legal systems in the Lower Mekong countries are limited in their ability to provide remedies for perceived violations. Many laws and courts favor interests of investors and landowners over small-scale farmers.²⁴ In place of lawsuits, dispossessed farmers turn to media and the blogosphere (particularly in Vietnam and Myanmar) and/or direct action (notably in Cambodia as well as Myanmar). In the context of ongoing contested relationships between state agencies, investors and land users, consultation and mediation may offer more promising opportunities for dispute resolution.²⁵

Up to now, land conflicts have remained local in nature and do not threaten the stability of political regimes in the Lower Mekong. What is at stake is the viability of small-scale farming and forest use by rural citizens, especially ethnic minorities, or their displacement by a growth model that favors urban elites. An unfolding water rights crisis, coupled with the effects of climate change, pose new challenges to land management and risk expanding land-related conflicts if underlying issues are not resolved.