| dc.description.abstractEn | One of the peculiarities of the Vietnamese land system is the existence of a ‘zero state’ withregard to land institutions: all the country’s existing land institutions were put in place in the last25 to 30 years. However, this does not mean that there is no history of such bodies; indeed, thosethat are now emerging carry the traces of each past period. The many local customary institutionsreflect the principles underpinning previous systems regulating the social and spatial distributionof resources, and elements of the French land tenure system can be seen in the decision to registerland ownership certificates rather than follow the more Anglo Saxon system of using the titlesthemselves as proof of ownership. Nevertheless, there is a clear synchronic dimension to theprocess of putting land institutions in place, which is reflected in the role it has played in theprofound transformation of the Vietnamese State and society.In the first stage of this process, between 1979 and 1993, one of the primary concerns in designingland institutions was to respond to the high expectations of a deeply rural society without makingland an autonomous domain. This period saw the progressive dissolution of the cooperativesthrough the withdrawal of their land prerogatives. Moving in incremental stages, the State firstrecognised individuals and households as potential land users (with Decree 100, Decree 10 andthe Land Law of 1989), although land use rights were still limited and defined within cooperativesthrough temporary contracts between the cooperatives, which still held delegated managementrights, and these new users. This stage ended with the Land Law of 1993 which, while not openlychallenging the cooperatives, paved the way for their disappearance by recognising thatindividuals and households had fundamental derived management rights in addition to the right touse agricultural lands (rights to exchange, assign, rent, bequeath and mortgage land) for relativelylong fixed periods. This gave them significant control over land while dispossessing thecooperatives of any real land management capacities. Since these rights are associated with userights, it was not the land that could be transferred or mortgaged, but the right to use it and enjoyits produce. However, the very existence of these rights and their fairly long-term allocation tohouseholds meant that a land market could develop, and that land tenure seemed to function onthe basis of private ownership, even if it was not characterised as such.The second stage was a transition facilitating the ‘smooth’ passage from a land tenure systemdesigned to meet the needs of the rural population to one that could support the drive to makeVietnam a modern industrial and urban country. This stage roughly corresponded to the decadeseparating the land laws of 1993 and 2003. In this period, the State did little to the rights assignedto individuals and households and hardly changed agricultural land tenure. It did, however,endeavour to put in place the land administration, for which it created an independent organ at theministerial level in 1994, the General Department of Land Administration (GDLA). For the firsttime, this brought together its decision-making, operational and technical dimensions (the formerGeneral department of land management created in 1979, and the former National department ofsurveys and cartography), demonstrating the government’s willingness to make this anautonomous domain that carried some weight. The State also progressively regulated modes ofaccess to urban, industrial and commercial lands and increased the rights assigned to privateenterprise, thus paving the way for the changes in the next period (albeit rather haphazardly bygenerating a growing number of texts).The third stage started with a reform of the land administration in 2002 and the publication of anew Land Law in 2003. Land was now becoming a tool to develop the territory forindustrialisation and urbanisation. This was made clear by the law of 2003, which incorporatedregulations from the previous period and barely touched on rural affairs. Little was done tomodify access to agricultural and forest lands, which had been regulated in 1993, or provide moreflexible access for rural households. But the other categories of land and land users – some ofwhom appeared in legislation for the first time – occupied a growing and even dominant place inthe law. Thus, the new legislation was full of arrangements to facilitate industrial and commercialinvestments by private and foreign enterprises, and allowed for the development of markets forland and land use rights. It also specified procedures for cataloguing and planning land use. Whileland use planning remained a top-down procedure steered by the Land Office at different levels,the legislation made the planning process much more flexible by extending the provinces’prerogatives and enabling the infra-provincial administrative authorities to change the status oflands.Since 2002, land issues have both multiplied and intensified on several levels. The partial andpoorly managed decentralisation of land management increased the shortcomings and tensionsbetween the central and provincial levels. On the one hand, the Land Office, which had beensubstantially modernised and was responsible for planning at every level, had never had as muchpotential power. This certainly rattled the central government and probably prompted its demotionin 2002 from a ministry to part of the Ministry of Natural Resources and Environment (MoNRE).On the other hand, the provinces have used even greater rifts within the administrative system tolessen the constraints of centralised planning and work very broadly with the legislation in orderto respond to local expectations, and especially those of private interests. The increasingprivatisation of land has been another point of tension. Since the Constitution of 1959, the Statehas owned all land in the name of the entire population, and while individual land rights haveconstantly been extended, individuals are assigned rights of use and management. However, thegrowing number of recognised users, more flexible conditions of access to land and theprogressive extension of rights associated with use rights have allowed private national andforeign enterprises to become dominant land actors – hence the spectacular growth in the numberand size of landholdings reserved for industrial, commercial, real-estate and leisure projects,especially in peri-urban areas.The creation of ‘land fund development organisations’ in 2004 is symptomatic of the problemsposed by redefing the role of the provinces and private investors. Modes of expropriation are arecurrent problem with investments, and especially compensation for those whose use rights havebeen expropriated. This issue was only settled recently, and has been treated on a case-by-casebasis by the provinces or the Land Office. The Law of 2003 still presents the State as the principalactor in land distribution insofar as it is the authority that requisitions land in order to immediatelyreallocate it to investors. However, the State has disengaged from transactions since 2004,creating a new, State-mandated body to intervene when lands are repossessed: ‘land funddevelopment organisations’ whose task is to simplify procedures for investors by offering them asingle interface, managing the funds from land recovered by the State in accordance withdecisions by the competent bodies, and preparing these lands for reallocation to investors.However, the exact status of these organisations, which are not commercial but also not totallypublic, is somewhat unclear. They are not financially autonomous, they are not mandatory, andtheir form and level of competence fluctuates as they can operate at the district or the provinciallevel. This lack of clarity, which results in the creation of bodies whose nature varies fromprovince to province, suggests that the State is trying to divest itself of the highly sensitiveproblem of expropriations at the expense of their beneficiaries, rather than seeking to resolve it inthe long term.What is the explanation for this disengagement, given that the problems created by the way thatland is expropriated for investment projects are some of the thorniest and most intractable for theauthorities in Hanoi? One reason is probably the increasing complexity of land management, andthe human and financial resources that can be devolved to the administration to carry out the tasksit habeen assigned. These are very substantial needs, especially at the lowest echelons(communes, districts) where staff usually have little or no training. But the State’s disengagementcannot be entirely ascribed to these technical and financial challenges; it is also a manifestation ofthe difficulties of addressing two very different priorities: leading Vietnam towards modernity bytransforming it into an industrial and urban country, and organising a fragile and numericallysuperior rural population with a long habit of socialist values. One of the factors currentlyexecerbating the question of expropriation is the fact that agricultural and forested lands havebeen kept in a relatively isolated state of suspension for the last 15 years. One would assume thatthe State has a duty to protect these lands (and their users), but it is actually making them morevulnerable to the dynamics of urban and/or non-agricultural land use (industrial and commercial,leisure, etc.).Agricultural land has been subject to various changes since 1993, but access to such land is stillhighly regulated. Maintaining a ceiling on the amount of land and duration of the rights allocatedlimits the process of land accumulation and ensures that the rural population has egalitarian accessto land. By the same token, households that have been allocated rights to agricultural land by theState do not have to pay tax on this land, whose value is set according to the value of itsagricultural produce rather than the price of adjacent lands (market price). Although this shouldmean that such land remains accessible even to poor rural households, this specific status, andespecially that of highly protected rice-producing land, works against rural households bytrapping them in small, low-value farms and weakening their position when private and/or nonagriculturalinterests come into play. It seems that rather than being protected, agriculturalhouseholds – along with agriculture itself – are being sacrificed to industrialisation andurbanisation.However, things are not as simple as the last few lines suggest. On the one hand, ruralhouseholds’ situations vary greatly from region to region, and there are cases where they may beprotected by modes of access to agricultural and forested land, especially the most vulnerablehouseholds. Recent events, and the global food crisis in particular, have reminded Vietnam thatthere is still a role for agriculture and rural producers, and once again put the question of ruralland under the spotlight. In response to this crisis (and soaring rice prices), the governmentdecided to freeze more than one million hectares of rice fields and launch a campaign reaffirmingthe value of rural areas in relation to urban areas (the ‘three nong’). It is too early to know whetherthe return to ‘rural values’ in 2008 will have a lasting impact on agricultural land, and exactlywhat this impact will be. But the decisions that have been taken show that agricultural land stillconstitutes a lever that the government will not hesitate to use when the need arises. For certainnational officials, agricultural land remains a strong symbol of socialism, and its regulation acrucial element of social peace in what is still a largely rural society with close attachments to theland. Agricultural land is also an issue that raises questions about the State’s role in the movetowards ‘market socialism’, and the legitimacy of the Communist Party. While the State’sindecision (or approximations) with regard to land matters could be interpreted as evidence of acertain pragmatism and determination to work with the legacy of the socialist period, recentdevelopments in this domain are testing the very foundations of the Communist Party’slegitimacy, and it could try to deflect this threat by getting the government to maintain the specificstatus of rural land. So is Vietnam heading towards a two-tier system where some land – the vastblock of agricultural and forest lands allocated free of charge – continues to be managed bycentral government in the nation’s interest, while other agricultural land can be mobilised atleisure and managed under a liberal regime in order to support the country’s economicdevelopment?In order to answer this question we needed to turn to the land actors and seek their opinions. Themajority of foreign actors (who were historically excluded from this sensitive strategic domainand whose involvement is therefore relatively recent) view the reform as incomplete and thus amajor cause of corruption. They are pushing to divest the law of these ‘socialist archaisms’ andmake it even more liberal. As recently as March 2008 the World Bank, which some see as theglobal symbol of liberalism, and which had until then deliberately avoided land matters, signed upto the highly ambitious Land Administration Project, making it the lead foreign actor in thisdomain and giving a strong indication of the direction in which land affairs are heading. However,the positions expressed by various national land actors are much less clear. On the one hand,officials in the land administration in particular take a fairly technical approach to land: their mainconcern is the effectiveness of the administration and legislation, and making land an autonomousdomain. Officials working directly with foreign experts tend to take a ‘top-down’ approach,looking at the development of the whole country and seeing the constraints associated with theprocesses of urbanisation, industrialisation and increasing openness. On the other hand, some ofthe actors we spoke to from the Ministry of Agriculture and Rural Development (MARD) see landas something that cannot be detached from local and sectoral contexts. Therefore, they believethat agricultural land should respond to the needs of agriculture and rural populations, while forestland should primarily respond to environmental protection objectives. At the moment the firstgroup of actors is much more influential because of their strategic position within the landadministration and support from international cooperation; however, in the current economicclimate the question of agriculture and rural areas and populations has re-emerged as a priorityand is slowing the pace of liberalisation.So far there is no indication that agricultural land will be able to take account of the specificitiesand great diversity of rural areas, whether or not it is prioritised, planned or liberalised.Agricultural land tenure is controlled by the State, and characterised more by the numerousconstraints that it imposes (categories, temporal and spatial limits, etc.) than its capacity to adaptto the problems facing the country’s rural populations, agricultural practices and environment.Liberalising agricultural land tenure would bring it closer to a system of individual ownership,which would make land legislation more onerous in many settings where local rights of access toresources are not managed in this way. The Land Law of 2003 introduced several innovations thatare helpful in this respect, mainly by creating a new category of users, ‘residential communities’,which allows groups to collectively hold use rights to unlimited amounts of agricultural and forestland that they are allocated free of charge for unlimited periods. However, this new measure isitself very restrictive in terms of what constitutes a ‘community’, the procedures it entails and theframework it imposes on collective management. So what place do customary land tenure systemshave in the emerging land system? Vietnamese land institutions seem to have made little or noattempt to plan for this; and the main reason why there are still such diverse local situationsappears to be the government’s hesitant approach to agricultural land tenure. The co-existence ofactors with divergent positions on this question and on the role of the State, and the relativeabandonment of the rural world (especially remote rural areas) because it is not consideredimportant as long it doesn’t challenge the objectives of urbanisation and industrialisation have lefta gap where customary systems can continue to function. The recent resurgence of interest in thisdomain could revive the debate about systems that are considered incompatible with theestablishment of a modern State, either because of agricultural practices such as slash-and-burn orthe functioning of longstanding local power systems, but customary systems will continue tosurvive as long as efforts to develop intensive, industrial-type agriculture are not sustainedeffectively across the country. | |
