Establishing Security of Tenure: An Analysis of the Core Principles of Cambodia’s Post-Crisis Land Law

Abstract

Following its period of crisis in the 1970s and 1980s, Cambodian lawmakers faced a considerable task. The Khmer Rouge regime had abolished all previous law, forbade private property rights, destroyed land records and displaced entire urban populations. The country was in turmoil and, in particular, lacked any effective regulation of land tenure. This is a study of the core principles introduced into Cambodia’s current land law to assess whether it has succeeded in restoring security and order to land tenure in Cambodia. An analysis of the core principles shows that the key private property rights in Cambodia’s law are appropriate to Cambodia’s post-crisis context. The right of ownership, the highest form of private right, is simply expressed and apparently well understood. The Acquisitive Possession process, the legal device used to determine rights of ownership, is a useful tool for restoring order amidst the country’s levels of displacement and lack of land records. Cambodia’s reliance on a title-by-registration system, however, exposes several weaknesses in achieving security of tenure. The process of land registration lies in the hands of the Cambodian Government. Several well-documented incidents reveal that the Government routinely omits to adjudicate the interests of occupiers who claim Acquisitive Possession rights. Furthermore, if no private interests burden land, the land falls into the residual category of state-owned land which is used and controlled by government ministries. Additionally, Cambodia lacks effective disputeresolution mechanisms to address issues concerning rights to unregistered land. Consequently, unregistered occupiers are often without remedies against a Government that can assert state title to land by refusing to recognise Acquisitive Possession rights. The findings presented in this study suggest that, in post-crisis jurisdictions where government authorities have low capacity or questionable integrity, tenure rights should not be contingent on the administrative acts of the state. Accordingly, a number of law and policy reforms are suggested to strengthen the land rights of Cambodians against those of the state, thereby fostering security of tenure.