Study the land acquisition: Principle and practice

STUDY THE LAND ACQUISITION: PRINCIPLE AND PRACTICE

Nguyen Thi Hoang Hoa^*

Tran Mai Huong^*

Nguyen Duc Kien^*

^*National Economics University

Introduction

Land has always played a crucial role in life of human community and is basics to

human existence and also a limited resource. It plays an important role as a financial asset.

Investment in infrastructure development such as airport, road, railways, hydropower,

irrigation and town development for public purpose is very important for the development

of any country and any infrastructure development needs a huge quantity of land. The

first step towards the public infrastructure development is the acquisition of land. Land

acquisition is a process of acquiring private/public land and providing for the public

benefits . There are various ways to acquire land for infrastructure development. The

Voluntary purchase, land consolidation (readjusting) and compulsory purchase are the

common ways for land acquisition in infrastructure development. The exchange of land

is known as voluntary purchase. The land readjustment allows land assembly, especially

when the budgets for compulsory purchase and infrastructure provision are limited. The

land readjustment enhances development by re-parceling of land for better planning and

distributing the benefits of the development. The compulsory purchase or expropriation

is the method for acquiring the land. Expropriating land with low market value is common

for the land acquisition in developing countries. The issues such as land valuation,

compensation, and violation of rights, loss of ownership and livelihood of affected people

come together during land acquisition. Often infrastructure developmental activities

dislocate families from their home, business from their neighbourhoods and farmers from

their farms.. Therefore the proper valuation of land and compensation for lost asset are

very important to reduce land conflicts with affected persons.

The “right” of sovereign on land has been a contested subject through history. Even

in democracies, the exigencies of collective benefit and individual land rights have been

at loggerheads. In the long run, growth dividends from infrastructure development and

industrialization are likely to be materialized (Paul and Sarma 2017), and acquisition of

land to facilitate such process remains one of the main development challenges in many

Asian countries. Households are reluctant to sell their inherited land for infrastructure and

industrialization purposes, since an optimum compensation does not guarantee a windfall

in the long-term. As a result, the risks associated with investment in infrastructure and

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industrialization and change in the ownership of land is very high. The recent political

upheaval transgressing from the industrialization drive through forcible land-grab in

many parts of Asia (India, Indonesia, Nepal, and the Philippines in particular) exacerbates

it further. All these factors point to the need for a sustainable policy—a framework that

results in a positive sum game that benefits the landowners without hurting the growth

prospects.

In countries that allow private land ownership, compulsory land acquisition is the

right and action of the government to take property not owned by it for public use. In the

United States, this right is known as “eminent domain;” the action is known as

“condemnation” (Eaton 1995). In Canada, the United Kingdom, and Australia, the right

and action are known as “expropriation” (Boyce 1984), “compulsory purchase” (Denyer-

Green 2014), and “compulsory acquisition or resumption” (Brown 1996), respectively.

In each of these countries, compulsory acquisition of private property by the government

is authorized by legislation.

Table 1 shows the huge infrastructure needs in Asia and the Pacific regions. More

than 8.8% of the GDP is need to finance infrastructure-related projects in south Asia.

Table 1: Infrastructure Investment Needs in Asia and the Pacific (2016–2030)

Baseline

Total

33

% of Climate

% of

GDP Adjusted GDP

Central Asia

East Asia

6.8

4.5

7.6

5.0

8.2

5.1

38

7.8

5.2

8.8

5.7

9.1

5.9

919

1,071

423

210

3.1

South Asia

Southeast Asia

The Pacific

365

184

2.8

Asia and the Pacific 1,504

1,745

Note: $ billion in 2015 prices (annual average

Source: Meeting Asia’s Infrastructure Needs, ADB (2017).

The compulsory acquisition of land has always been a delicate issue. Governments

are under increasing pressure to deliver public services in the face of an already high and

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growing demand for land. Many recent policy dialogues on land have highlighted

compulsory acquisition as an area filled with tension. From the perspective of government

and other economic actors, the often conflictual and inefficient aspects of the process are

seen as a constraint to economic growth and rational development.

The process also brings tension for people who are threatened with dispossession.

The compulsory acquisition of land for development purposes may ultimately bring

benefits to society but it is disruptive to people whose land is acquired. It displaces

families from their homes, farmers from their fields, and businesses from their

neighbourhoods. It may separate families, interfere with livelihoods, deprive

communities of important religious or cultural sites, and destroy networks of social

relations. If compulsory acquisition is done poorly, it may leave people homeless and

landless, with no way of earning a livelihood, without access to necessary resources or

community support, and with the feeling that they have suffered a grave injustice. If, on

the other hand, governments carry out compulsory acquisition satisfactorily, they leave

communities and people in equivalent situations while at the same time providing the

intended benefits to society.

The power of compulsory acquisition can be abused. Unfair procedures for the

compulsory acquisition of land and inequitable compensation for its loss can reduce land

tenure security, increase tensions between the government and citizens, and reduce public

confidence in the rule of law. Unclear, unpredictable and unenforceable procedures create

opportunities for corruption. Good governance is necessary to provide a balance between

the need of the government to acquire land rapidly, and the need to protect the rights of

people whose land is to be acquired. Conflict is reduced when there are clear policies that

define the specific purposes for which the government may acquire land, and when there

are transparent, fair procedures for acquiring land and for providing equitable

compensation. Effective and fair compulsory acquisition cannot exist without good

governance and adherence to the rule of law (see FAO Land Tenure Studies 9: Good

governance in land tenure and administration).

Land administration theory has developed a new, multi-disciplinary approach to

building, designing and managing land administration systems (LAS). The articulation of

the approach runs parallel to development of land indicators to improve reliability and

usefulness of international comparisons of LAS tools, especially in response to demands

for good governance.

These developments form the background to formulation of human rights based

land acquisition standards. However, land delivery processes in general, and the sub-set

of compulsory land acquisition and resettlement processes, in particular, are complex and

cross-cutting. In developing countries, technical issues, rather than humanitarian issues,

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tend to paralyze attempts to reform of land delivery processes. Capacity building is

therefore a key component of reform of land acquisition processes. New tools are

emerging that both improve technical capacity and assist with application of human rights

based land acquisition principles.

International experience suggests that the conversion of land from agricultural to

urban usage is an unavoidable phenomenon during rapid urbanisation and economic

growth (Tan et al., 2009). In this sense, Vietnam is no exception. According to the official

r

e

port of the

averaged a growth of 6.5–7 per cent in the period 2011–2015 and foreign direct investment

increased from US$ 19.7 billion in 2010 to US$ 21.6 billion in 2014 PV, 2015). Economic

transformation was accompanied rapid urbanisation, with urban areas gaining at least

communist Party of Vietnam (cPV), the gross domestic product of Vietnam

(c

by

one million people per year (GSO, 2013), resulting in the urbanisation level increasing

from 33 per cent in 2010 to a predicted 45 per cent by2020 (Wit, 2011). As a result, there

is an increased demand for quality housing, infra- structure and facilities to allow for both

economic growth and urban development. This has created tremendous pressure on land

use, especially in peri-urban areas where land, traditionally used for agriculture, is still

available and is cheaper than urban land. Peri-urban areas, according to Simon et al.

(2006), are defined not only as zones experiencing the direct transformation of urban

growth, but also in wider terms of market influence affecting the flows of agricultural and

natural resources. Peri-urban is defined as the area where traditional farming comes into

conflict with alternative economic activities; it is thecommutingareabetween villages and

central cities, where rural landscapes are being transformed into urban ones by means of

land use conver- sion and acquisition.

Land acquisition for urbanisation and industrialisation in Vietnam is not a new

phenomenon, butithasbecomeafocus of attention forthescientificcommunity,media and

policy makers because of its rapid increase and because of the adverse economic and

social impacts on local development. Between 2001 and 2010, nearly one million hectares

of agricultural land were compulsorily acquired for non-agricultural activities (World

Bank, 2011), and approximately 630,000 households and 2.5 million people were directly

impacted by land loss (Mai Thanh, 2009). Previous studies conducted in the largest cities

have attempted to investigate the impact of land loss on the livelihoods of affected people

(Tuyen et al., 2014a; Do, 2006; Nguyen, 2009; Le, 2007; Tuyen et al., 2014b).

Land acquision in Vietnam, in the developing countries, in ASIA as well as over

the world is very difficult issue to be solved. Due to an increase in a community’s needs,

services that are expected from the state are also rapidly diversified, and there is a rapid

increase in the requirements of public institutions for technology, qualified staff and

funding. For high growth rates in transitioning and developing countries, land acquisition

has assumed critical importance in the framework of neo-liberal economic thought. Public

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and authorized private institutions are bent upon large scale land acquisitions for industry

and infrastructure investments (Khan, 2014). Land acquisition is required in every

country for public services, infrastructure and superstructure investments and different

methods are used in land acquisition. In the acquisition of real estate in large quantities

necessary for the implementation of development projects, methods such as

expropriation, purchasing, zoning, land consolidation, easement, donation and leasing are

used. However, each real property acquisition method is regulated by different laws and

the implementation stages, procedures, valuations, and payment of the amount of each of

the methods differ.Real estate needed for infrastructure investments must either be owned

by the public or transferred to the public domain.

Land acquisition and expropriation processes for public investments are observed

to be conducted differently in almost every country and there is a lack of generally

recognized international procedures and best practice guidelines in this field (Viitanen et

al., 2010). The entire law of land acquisition, which operationalizes the doctrine of

eminent domain to actualize public interest, fails to make meaningful socio-economic

differentials and interventions with respect to acquisition incidence and compensation

entitlement (Khan, 2014). The execution of construction projects within public

investment through both direct procurement and contracting, as well as land acquisition

and expropriation in projects where construction work is carried out with alternative

financing options, are necessary. In particular, for projects carried out by foreign

institutions or international initiatives through models such as build-operate-transfer

(BOT), build-operate, public-private partnership (PPP), the existence of public interest in

land acquisition becomes a matter of debate.

For this research paper, we concentrate on studying the principles of land

acquisition as by reasearching, we found that it is necessary to study land acquisition

based on standards of World Bank Land Governance Assessment Framework (LGAF)

and UN-FAO Voluntary Guideline of Governance of Tenure (VGGT), especially focused

on the principles of compulsory acquisition of land. Besides that, the study also research

whether the practices and processes in compulsory acquisition of land are quite different

in different countries due to its legal, social and political contexts? The study reveals that

the different countries have different law and regulations, procedure for land acquisition

and land valuation approaches depending upon social, political and economic conditions

of the country. Anyway, based on the result of this research, it is going to be an useful

document used in study principles of land acquistion and practice as well.

Principles of Land Acquisition

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Concepts and Terms

According to Report of Land Acquisition and Resettlent Plan, Document number

GD.LAR.4000.GE.RP.0040 (March 2018), Land acquisition means the range of measure

comprising cash or kind compensation, relocation cost, rehabilitation assistance, transfer

assistance, income subtitution, and relocation which are due to Aps (Affected Persons),

depending on the type and degree nature of their losses, to restore their social and

economic base.

According to MDF 2019, Land Acquisition is the process of acquiring land under

the legally mandated procedures of emonent domain

According to WB and Department of Refugees, Office of the Prime Minister,

Republic of Uganda (June 2018), Land acquisition means the repossession of or

alienation of land, buildings or other assets thereon for purposes of the DRDIP

(Development Response Displacement Impact Project).

According to IDA/WB and Vietnam Ministry of Transport (Final Report June

2005), Land acquisition means the process whereby a person is complelled by a public

agency to alienate all or part of the land he/she owns or possesses, to the ownership and

possession of that agency, for public purpose, in return for fair compensation.

According to FAO 2008, Compulsory acquisition is the power of government to

acquire private rights in land without the willing consent of its owner or occupant in order

to benefit society. It is a power possessed in one form or another by governments of all

modern nations.

The power of Compulsory Acquisition

Compulsory acquisition is the power of government to acquire private rights in land

without the willing consent of its owner or occupant in order to benefit society. It is a

power possessed in one form or another by governments of all modern nations. This

power is often necessary for social and economic development and the protection of the

natural environment. Land must be provided for investments such as roads, railways,

harbours and airports; for hospitals and schools; for electricity, water and sewage

facilities; and for the protection against flooding and the protection of water courses and

environmentally fragile areas. A government cannot rely on land markets alone to ensure

that land is acquired when and where it is needed. However, a number of countries require

that the government should attempt to buy the required land in good faith before it uses

its power of compulsory acquisition.

Compulsory acquisition requires finding the balance between the public need for

land on the one hand, and the provision of land tenure security and the protection of

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private property rights on the other hand. In seeking this balance, countries should apply

principles that ensure that the use of this power is limited, i.e. it is used for the benefit of

society for public use, public purpose, or in the public interest. Legislation should define

the basis of compensation for the land, and guarantee the procedural rights of people who

are affected, including the right of notice, the right to be heard, and the right to appeal. It

should provide for fair and transparent procedures and equivalent compensation.

Principles for legislation on compulsory acquisition should include:

Protection of due process and fair procedure. Rules that place reasonable constraints

on the power of the government to compulsorily acquire land strengthen the confidence

of people in the justice system, empower people to protect their land rights, and increase

the perception of tenure security. Rules should provide for appropriate advance

consultation, participatory planning and accessible mechanisms for appeals, and should

limit the discretion of officials.

Good governance. Agencies that compulsorily acquire land should be accountable

for the good faith implementation of the legislation. Laws that are not observed by local

officials undermine the legitimacy of compulsory acquisition. Good governance reduces

the abuse of power and opportunities for corruption.

Equivalent compensation. Claimants should be paid compensation which is no

more or no less than the loss resulting from the compulsory acquisition of their land. Laws

should ensure that affected owners and occupants receive equivalent compensation,

whether in money or alternative land. Regulations should set out clear and consistent

valuation bases for achieving this.

The acquisition of the land of indigenous communities is particularly sensitive.

Protection of indigenous peoples’rights in relation to land is specifically expressed within

a human rights framework. The Universal Declaration of Human Rights (Article 17)

provides that “everyone has the right to own property alone as well as in association with

others” and that “no one shall be arbitrarily deprived of his property” which was shown

in The American Convention on Human Rights 1969, The African Charter on Human and

Peoples’Rights, 1986, The European Convention on Human Rights and Fundamental

Freedoms, 1950. Each country has its own set of agencies, ministries and officials who

have the power to compulsorily acquire land. The national level of government is usually

granted authority for compulsory acquisition by the constitution, and relevant laws often

designate the head of government or a specific minister as the person empowered to

authorize the functions associated with compulsory acquisition. In some countries, power

is assigned only to the national government while in other countries it may be also vested

at the regional level. It may be possible for local governments and parastatal organizations

to compulsorily acquire land for public works, although usually with the permission of

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higher levels of government. Relevant laws and regulations should clearly identify the

authorized government bodies in order to reduce opportunities for abuse of power

When does compulsory acquisition occur? This question is usually easy to answer,

but on occasion it can be more difficult than it appears at first glance. The extent of loss

of land rights by owners and occupants may vary considerably, both in terms of the

amount of land involved and the types of rights that are affected. This has implications

for the extent to which a particular government action is governed by the principles of

compulsory acquisition. It also has implications regarding the rights and remedies of

people affected by that action. Compulsory acquisition is not limited to contexts in which

the state seeks to acquire land that is privately owned. Full private ownership of land does

not exist in some countries, and the state is the owner of all land. In other countries, the

state retains ownership of substantial areas of land. A range of private occupancy, lease

or use rights may be permitted over such state-owned land

Process of Compulsoy Acquisition

Compulsory acquisition is a power of government, but it is also the process by

which that power is exercised. Attention to the procedures of compulsory acquisition is

critical if a government’s exercise of this power is to be efficient, fair and legitimate.

Processes for the compulsory acquisition of land for project-based, planned development

are usually different from processes for acquiring land during emergencies or for land

reforms. Yet other processes may exist for electricity companies and others to acquire

easements or servitudes. In general, a well designed compulsory acquisition process for

a development project should include the following steps:

1. Planning: Determining the different land options available for meeting the

public need in a participatory fashion. The exact location and size of the land to be

acquired is identified. Relevant data are collected. The impact of the project is assessed

with the participation of the affected people.

2. Publicity: Notice is published to inform owners and occupants in the designated

area that the government intends to acquire their land. People are requested to submit

claims for compensation for land to be acquired. The notice describes the purpose and

process, including important deadlines and the procedural rights of people. Public

meetings provide people with an opportunity to learn more about the project, and to

express their opinions and needs for compensation.

3. Valuation and submission of claims: Equivalent compensation for the land to

be acquired is determined at the stated date of valuation. Owners and occupants submit

their claims. The land is valued by the acquiring agency or another government body. The

acquiring agency considers the submitted claim, and offers what it believes to be

appropriate compensation. Negotiations may follow.

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4. Payment of compensation: The government pays people for their land or

resettles them on alternate land.

5. Possession: The government takes ownership and physical possession of the

land for the intended purpose.

6. Appeals: Owners and occupants are given the chance to contest the compulsory

acquisition, including the decision to acquire the land, the process by which the land was

acquired, and the amount of compensation offered.

7. Restitution: Opportunity for restitution of land if the purpose for which the land

was used is no longer relevant.

Processes should be based on the following principles:

• The land and land rights to be acquired should be kept to a minimum. For

example, if the creation of an easement or servitude can serve the purpose of the project,

there is no need to acquire ownership of the land parcel.

• Participatory planning processes should involve all affected parties, including

owners and occupants, government and non-governmental organizations.

• Due process should be defined in law with specified time limits so that people can

understand and meet important deadlines.

• Procedures should be transparent and flexible, and undertaken in good faith.

• Notice should be clear in written and oral form, translated into appropriate

languages, with procedures clearly explained and advice about where to get help.

• Assistance should be provided so owners and occupants can participate effectively

in negotiations on valuation and compensation.

• The process should be supervised and monitored to ensure that the acquiring

agency is accountable for its actions, and personal discretion is limited.

• The government should take possession of the land after owners and occupants

have been paid at least partial compensation, accompanied by clearly defined

compensation guarantees.

Principles of Land Acquisition: Land Acquisition in Developing Economics

In developing countries, technical issues, rather than humanitarian issues, tend to

paralyze attempts to reform of land delivery processes. Capacity building is therefore a

key component of reform of land acquisition processes. New tools are emerging that both

improve technical capacity and assist with application of human rights based land

acquisition principles. Good governance in land administration is now the primary over-

arching aim of well designed land projects. Land administration theory has developed a

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new, multi-disciplinary approach to building, designing and managing land

administration systems (LAS). Land administration theory needs to identify a series of

tools for land delivery consistent with good government standards. Standard tools that

deliver land for private and public purposes fall into two broad categories: market

acquisition systems and human rights based acquisition systems. Most of the large

international institutions apply some or all of these standards for land acquisition or

compulsory purchase designed to both respect the rights of existing land users and owners

and to deliver secure tenure to developers, especially for public projects and projects

funded by development aid. As a general observation, even if the initial costs of the land

and the compensation constitute a high percentage of the cost of the overall development,

the budget will be justifiable especially if land disputes are minimized and secure tenure

is delivered to the new owners.

Human Rights Model of Compulsory Acquisition Standards

A human rights model of compulsory land acquisition is still under construction.

In broad terms the model seeks to solve the problems that arise when countries with

predominantly informal land markets try to use market based solutions. The model adds

additional components to land delivery processes designed to empower land occupiers

and owners. The model builded shown include the standards as following:

Displaced persons protection: Parallel with the international efforts to develop

good governance indicators in land administration, professional groups, institutions and

development aid specialists are articulating appropriate indicators of land acquisition

through compulsory procedures. To complicate matters, many acquisitions involve

conquest, war and revolution. Thus a starting point involves looking at standards of

treatment of displaced persons organised through the international efforts at resettlement

of refugees, the world’s largest groups of displaced persons, especially the refugee

displacement principles. These Pinheiro Principles, the UN Principles on Housing and

Property Restitution for Refugees and Displaced Persons, from Centre on Housing

Rights and Evictions (COHRE undated) are the starting point in thinking about the human

consequences of displacement. Displacement consequences are experienced regardless of

whether interference is generated by international, intranational, or non-national land

taking activities. In terms of designing land administration systems, nation states

therefore need to anticipate the social and human consequences of displacement by small

and large scale projects. The land acquisition processes that are institutionalized must

minimise civil unrest and disputation. The initial cost is, of course, high. The value of

these processes are however long term, especially in their contribution to civil peace and

elimination of land disputes.

Protection of people affected by land projects: International development aid

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agencies are also engaged in setting standards for a human rights based model.

Multilateral financial institutions have institutionalized pro-poor and humane processes

for land delivery. The Asian Development Bank, for example, carefully articulated and

updated safeguard policy statements for compulsory take over in 2009, especially

applicable in Asia and the Pacific where 70% of the world’s 150 million Indigenous

People reside (ADB Safeguard Policy Statements 2009, page 2). Other major

development banks, including the World Bank, the International Finance Corporation

(whose standards are adopted by 60 commercial banking institutions), the European Bank

for Reconstruction and Development, and the Inter-American Development Bank (ADB

2009, page 2), all have standards aimed at protecting people whose land or life styles are

targeted for take-over which must be applied in project development.

An attempt to organise the multitude of international standards was undertaken in a

Seminar on Compulsory Purchase and Compensation in Land Acquisition and

Takings, 2007, September 6-8, Helsinki, Finland by a large number of interested parties,

including FIG Commission 9, Baltic Valuation Conference, FAO, World Bank, and others.

Getting humane land acquisition theory to work in practice: Land

administration systems must be able to manage delivery land for essential developments,

private infrastructure and change of land uses in response to human, social and economic

demands. For countries sharing an English common law heritage, compulsory acquisition

is the familiar method. Countries often lack a theoretical basis to form their fundamental

policy of land taking. Eminent domain (a term familiar in European countries) is the

government ability to take land particularly in civil law countries. In developing countries

with civil law history, government capacity can be an initial problem. Civil law countries

which give strong constitutional protection of land ownership restrict opportunities for

compulsory acquisition, sometimes with fatal results for public projects.

Compulsory land purchase is part of the larger question is land delivery itself –

most developing countries experience difficulties in delivering land for any purpose

through formal systems and hence tend to rely on ad hoc responses.

The new approaches in land administration encourage civil society, developers and

governments to use new tools in land delivery processes. The broadening of land

administration theory into multi-disciplinary competence is both welcome and essential.

The addition of non-technical goals in building sustainable systems is compatible with

articulation of standards and guidelines on land acquisition. No developing country is in

a position to apply best practice methods throughout its entire suite of land administration

processes. However, the lessons from land administration and good governance theories

are capable of informing change strategies in most countries. Indeed, many of the less

developed nations are in a better position to adapt their systems to modern standards than

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are economically successful nations where legacy systems and technologies inhibit

substantial change.

Land development is a constant in all nations and the management tools selected

by a country need to be developed in the context of their capacity to contribute to overall

good governance and sustainability. Compulsory land acquisition, whether for

development aid projects or private projects, needs tools that work at the country level.

Unless appropriate tools are selected, land acquisition planning associated with

development aid and project financing will concentrate on identifying standards for the

social processes associated with movement of people away from the development site

and into replacement sites. This focus misses the point that most countries need to build

capacity to undertake essential scalable and technical land delivery processes. Other tools

have unforeseen consequences. A legal framework is always recommended; however,

legalism and formalism can paralyze land delivery, even for essential public infrastructure

projects, a problem now evident in Indonesia.

From the perspective of capacity building in land administration efforts to improve

land delivery processes must improve formal and technical capacity to use formal systems

to manage the creation of parcels. Long term improvements that will assist removal of

residents and occupiers and their resettlement in permanent homes and alternative work

opportunities require transparent processes, formal systems that give parcel identification,

resilient boundaries and a large scale base map built by using modern spatial technology

to record coordinates. Each of these adds capacity in the national LAS.

Practice of Land Acquisition

This study focused on the land governance in practice. The relevant land

governance elements such as public participation, access to information, fair

compensation, transparent procedure and stakeholder co-ordination are derived using the

World Bank Land Governance Assessment Framework (LGAF) and UN-FAO Voluntary

Guideline of Governance of Tenure

Land acquisition by expropriation involves the compulsory taking of land. The

compulsory land acquisition is the action and right of the government to take land for

public use for public benefit in the countries having private land ownership. The

procedure and practices of land acquisition for infrastructure development differs among

the countries. There are various ways of acquiring land such as voluntary purchase, land

readjustment and compulsory purchase. The exchange of land is known as voluntary

purchase. The land readjustment allows land assembly, especially when budgets for

compulsory purchase and infrastructure provision are limited. The compulsory purchase

is the expropriation of land with use right or ownership right. The idea for the

expropriation comes from sovereign’s power of eminent domain. This power permits the

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state to acquire private land for the benefit of the society and is undertaken worldwide.

Compulsory purchase is one of the ways in which local and national governments acquire

land for development purpose. “If compulsory land acquisition is done poorly, it may

leave people homeless and landless, with no way of earning a livelihood, without access

to necessary resources or community support, and with the feeling that they have suffered

a grave injustice. If projects carry out compulsory acquisition satisfactorily, they leave

communities and people in equivalent situations while at the same time providing the

intended benefits to society”.

In many developing countries, compulsory land acquisition is not successful. It is a

challenging task that may enhance land conflicts as well as social and economic problems.

People are unaware about land acquisition procedure due to lack of transparency and lack

of access to information about the projects. Therefore, the infrastructure development

projects are not sustainable. The landowner gains the right to receive a monetary payment

not less than the loss imposed on him in the public interest but no greater. The reasons

behind providing the compensation on land acquisition is to ensure that affected

landowner is no worse off and no better off as a result of his eviction. The clear and

transparent expropriation procedure, fair compensation, expropriation for public purpose

is the governance indicators for this issue.

Case study in China, Malaysia, and India: The study shows that law regulations,

procedure for land acquisition from governance perspective are very improtant for

infrastructure development (Subash 2017). The study also found that different countries

have different practices in planning and land acquisition for infrastructure development

depending on their willingness and capability to consider the land valuation issues in

infrastructure development plan

Table 1. Summary of Land Governance Issues and Indicators.

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Source: Governance in Land Acquistion and Compensation for Infrastructure

Development, American Journal of Civil Engineering 2017; 5(3): 169-178

Case study in Vietnam: Policy Framework

Government’s and standards required to be applied under various official

development assistance and therefore now more closely approaches the principles of the

World Bank’s policy on involuntary resettlement (OP 4.12). The Policy Framework is

prepared based on relevant Government laws and decrees and World Bank policy OP 4.12

on Involuntary resettlement.

Laws Regarding Land Acquisition in Vietnam

The study uses the the main laws and decision regarding land acquisition before the

year 2005 which includes:

The Constitution of the Socialist Republic of Viet Nam (April 1992);

The Land Law No. 13/2003/QH11 (December 2003);

Decree No. 181/2004/ND-CP (October 2004) on guiding the implementation of the

Land Law;

Decree No. 197/2004/ND-CP (December 2004) on compensation, assistance and

resettlement when the State recovers land;

Circular 116/2004/TT-BTC (December 2004) on guiding the implementation of

Decree 197;

Decree No. 188/2004/ND-CP (November 2004) on methods for determining land

process for various types of land;

Circular 114 /2004/TT-BTC (November 2004) on guiding the implementation of

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Decree 188;

Decree No. 60/CP (July 1994) on property ownership and the right to use urban

residential land;

Decree No. 45/CP (August 1996) allowing land use rights to those non-eligible under

Decree No. 60/CP; and

Decree No. 64/CP (September 1996) transferring agricultural land to households for

long-term use.

The Land Law 2003 is a comprehensive law that establishes the regulations of land

allocation, lease management, land acquisition for development purposes, changes of

land value under market mechanisms, and gives people access to land through land-user

rights via land use right certificates (LURCs), which are similar to private ownership. In

essence the law allows the State to recover land in cases of national defence or security,

or national and public interest. In these cases, under Article 27, the land user will be

compensated for loss of land or assets. below there are still gaps between Government’s

procedures and the requirements of OP 4.12. Waivers of a number of articles of the Land

Law and Decrees will be required to ensure that the World Bank’s policy is complied

with. Such waivers of Vietnamese law and decrees are provided for under both Decree

197 and Decree 17/ND-CP (May 2001), which regulates the management and use of

official development assistance. Under Decree 197, Article 1 (2) states that in the case

where Viet Nam has signed an agreement for official development aid and the agreement

or treaty contains regulations that are different from the regulations provided in the

decree, then the regulations of the agreement or treaty shall be applied. While under

Decree 17, Article 29 stipulates that where an international aid agreement has provisions

that are inconsistent with the provisions of Viet Nam law, the provisions of the official

development assistance agreement shall prevail.

Conclusion

The principles of land acquisition and compulsory acquisition of land are based on

on standards of World Bank Land Governance Assessment Framework (LGAF) and UN-

FAO Voluntary Guideline of Governance of Tenure (VGGT). Besides that, the study also

shows that the practices and processes in compulsory acquisition of land are quite

different in different countries due to its legal, social and political contexts. By overview

of previous reseaches, this study reveals that the different countries have different law

and regulations, procedure for land acquisition depending upon social, political and

economic conditions of the country. Besides, these are primary results and ideas of our

reseach groups, the further study is going to be continued which is going to be an useful

document used in study principles of land acquistion and practice as well.

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