Annual World Bank Conference on Land and Poverty 2013

Re-­‐Mapping  the  Poor  and  Public  Space:  Street vendors on the sidewalks of Ho Chi Minh City

Excerpted and adapted from the forthcoming book

“Sidewalk City: re-mapping public space in Ho Chi Minh City, Vietnam” (University of Chicago Press, 2014)

By  Annette  M.  Kim  Associate  Professor  

MIT,  Department  of  Urban  Studies  and  Planning  Annette@mit.edu

Paper prepared for presentation at the “ANNUAL WORLD BANK CONFERENCE ON LAND AND POVERTY”

The World Bank - Washington DC, April 8-11, 2013 Copyright 2013 by author(s). All rights reserved. Readers may make verbatim copies of this document for non-commercial purposes by any means, provided that this copyright notice appears on all such copies.

 

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ABSTRACT: Our public spaces such as streets and sidewalks have become the site of intensifying battles in major urban centers and a major spatial strategy for the working poor. However, international development institutions and their development project priorities have largely overlooked this major development issue of rapid urbanization: reformulating the rights to urban public space to support more economic livelihoods. My paper first makes the case that concerns about tenure security and property rights in developing country cities also need to address public spaces in the urban center as this is where the populations who have migrated to the city often seek to make a living. I propose that a property rights framework for public space will provide a pathway to thinking more effectively about both the political contest and possible design solutions. The conference presentation will also introduce the methods of spatial ethnography and critical cartography that I have developed to derive knowledge about locally specific urban space and spatial practices. These were used to develop a project proposed to and approved as a pilot project by Ho Chi Minh City, Vietnam's Department of Planning and Architecture that legitimizes and integrates street vending with the city's global tourism strategies.

 

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A blue sign posted on the street reads:

Elsewhere, a red sign reads:

Government Office Area

Gathering to sell things here is prohibited

These signs were posted in Ho Chi Minh City during 2010. The signs indicate both

obligations and duties. Residents have an obligation to hang flags and clean sidewalks. Residents

also have the duty to not do a number of things: to not soil the sidewalk, to not obstruct

pedestrians, and to not vend. Of the many rules on the books about sidewalks, how were these

particular rules chosen to be printed on the signs? What impact does posting these signs have?

More broadly, how should we govern our sidewalks and how can we govern them?

Property rights is at the core of many urban controversies. As the majority of the human

race has moved to urban areas, increasing the demand for limited land by a more diverse

population, we are being forced to change our understanding of how to organize and live in cities.

For example, affordable housing shortages are not simply a question of construction technology,

more efficient design, or even financing. Often, and particularly in the developing world, the most

significant issue is determining which land will be re-developed and how site control will be

transferred from existing users. Finding and securing land is not only a significant portion of

development costs, it is also the most unpredictable step in the development process because of

Criteria of Hygiene and Civilized Streets and Sidewalks

- Hang the nation's flag on national holidays - Keep the sidewalks clear and use them in the right way; park vehicles properly, so as to give way to pedestrians. - Clean the sidewalks everyday; do not litter, pour wastewater, or throw animal carcasses into the street; do not let your pets defecate or urinate on the street. - Arrange trash bags along the sidewalks at the proper distance.

- Do not extend your businesses onto the sidewalks or the street.

 

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its political sensitivity. It is, therefore, the step that most easily derails project completion,

profitability, and affordability as well as testing the legitimacy of local government. (Kim 2008).

Despite its centrality, property rights theory has not usually been employed in our

discourse about public spaces, perhaps because “property rights” have too often been conflated

with “private property rights.” This is easy to understand since “property rights movement”

activists assume that a western, legal institutional framework protecting private property is

superior and universal (Jacobs 2004; de Soto 2000). People also commonly assume that

“property” must imply commercialization or commodification, when in fact, property may or may

not be marketable. This depends on the entitlements society constructs in rights. The exceedingly

helpful insight of property rights theory is that our relationship to space (land) is created by and

dependent on social agreement. This paper discusses how property rights theory can help our

understanding and negotiation of public space.

One of the biggest property rights and public space controversies today concerns

sidewalk vendors. Sidewalks have become one of the most hotly contested public spaces in cities

around the globe. As people move into cities, it is common for immigrants and others who cannot

afford commercial real estate to eke out a living on sidewalks, selling food and goods to

passersby. Sidewalks are also an important outdoor neighborhood space on which increasing

numbers of people seek to engage in leisure. At the same time, owners of abutting properties and

longer-term city residents often develop a sense of entitlement to particular sidewalks. As

densities increase, more people are coming into contact with each other on this narrow public

space and they each have their own spatial projects.

Reviewing some of the sidewalk controversies in the news around the world clarifies the

intensity and magnitude of the conflict, some of the common issues, and the potential for better

resolutions.

In Hong Kong, Chinese citizens have become uncomfortable with the fleet of Filipina

domestic servants that congregate and socialize in public space on Sundays. Filipinas have

become the largest foreign population residing in Hong Kong since overtaking the British in

1983. Groups of several hundred Filipinas at a time can sit down on mats on the sidewalk or in

corporate plazas for the majority of the day, which has sparked controversy and debate in the

local press. In response, Filipino welfare organizations, the Movement Against Discrimination

(MAD), and the Asian Domestic Workers Union proposed a plan to build recreational centres

dispersed around Hong Kong. However, local neighborhoods organized groups such as the Joint

Movement Against the Establishment of a Centre for Overseas Domestic Helpers in Wharf Road

(JMAEC). In a letter to the South China Morning Post newspaper, they wrote: “Undoubtedly,

 

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there will be illegal hawking of everything under the sun including cooked food. Other problems

such as traffic, littering and sanitation will follow. They (the maids) will also roam around the

private areas…our living environment will not be the same again.” A legislator stated, “It makes

people a bit resentful to see so many of them in Central. Central is a financial centre, even on

Sunday. When tourists or visitors or businessmen go to Central on Sunday or other occasions, if

they see a scene like that, it might put them off. It’s not scenic” (South China Morning Post

1994).

Disputes over public space are not only about foreign immigrants. Within mainland

China, sidewalk vendors are fellow citizens who have migrated to the city from the countryside.

Vendors are constantly being cleared by the infamous chengguan municipal security force.

Citizens regularly report instances of abuse and severely criticize the government through social

media messages and images. For example, in June 2011, it was reported that a pregnant sidewalk

vendor in Xintang was beaten by the chengguan, leading to three days of rioting. Estimates of the

number of people in the streets ranged from several hundred to tens of thousands (Malterre 2011;

Jiang 2011).

Meanwhile, some have identified as the catalyst for the Arab Spring the self-immolation

protest of a Tunisian sidewalk vendor, Mohamed Bouazizi (European Parliament 2011).

Apparently a female police officer and her colleagues harassed him and confiscated his produce

scale, which he could not afford to bribe back, rendering him unable to support his family

(Noueihed 2011). Setting himself on fire was an outcry against years of humiliation in struggling

to survive. As in Xintang, a deep and vast underlying social resentment erupted into a popular

uprising of riots and demonstrations. But in the case of the Arab Spring, this eventually led to

toppling governments in the region.

Some organizing has led to vendor recognition, legitimation and the designation of rights

to specific public spaces in the city. In New York, after years of struggle, immigrant Latino food

trucks at a baseball field in Red Hook, Brooklyn were granted variances from the Parks

Department and the Health Department, which had been trying to close them down for years. The

city changed its position as it came under pressure from a wider public who enjoyed the food

trucks, affirming their “authentic” cultural and social value (Zukin 2009). “Food truck chic” has

spread to other cities in the United States. Portland city planners have been particularly

supportive of the trend by finding spaces in the city and even issuing guidelines for potential food

truck entrepreneurs (Urban Vitality Group 2008). But, it is still a controversial issue in many

American cities like Los Angeles, where some vehemently oppose food trucks and sidewalk

vending, leading to legal battles (Hernández-López 2010; Kettles 2004; Linthicum 2010; Reston

 

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2009). The policies about vendors in public space can be uneven within one city. While Red

Hook vendors gained rights, there were further crackdowns on sidewalk artists in midtown

Manhattan. While the San Francisco planning department worked with the artist collective Rebar

to construct small parks on sidewalks in several parts of the city to provide more recreational

space, the city also issued an ordinance making sitting on the sidewalk illegal, which was targeted

towards low-income populations in other parts of the city.

Still, in cases like Red Hook and Portland, some cities have recognized the spatial

practices of vendors, developing ways to adjust regulations around them, as opposed to trying to

move them. Given the inevitability of urban migration and the demand for urban space and

income, we need more ideas of how to resolve the struggle for the sidewalk, particularly between

vendors and other city dwellers.

This paper begins by discussing how property rights theory can reframe the mismatch

between public space scholarship and policy debates. Legal philosophy enlightens us that real

property rights is about more than ownership and laws: it is a social contract within a particular

political institutional framework about how space is to be used to support economic livelihoods

and lifestyles. Insights from this philosophical literature indicate that the conventional public

space literature has a rather naïve understanding about what public space can and should be. The

second property rights literature I discuss, the optimal public space literature, is more policy-

oriented. It brings to the fore the much stickier challenges of how the philosophical principles

seem to get ensnared by the practicalities of enforcement, urban planning traditions, and the

physicality of space. While the literature that applies property rights theory to public space still

has much to explore, it already shows us that the “rights to the city” literature has not yet

seriously investigated emancipatory solutions. Looking at public space debates in real places

shows us that the struggle is shaped by physical conditions of the space, institutions and the

legitimacy of competing livelihoods and interests.

Property rights theory gives us a lens with which to answer fundamental questions about

this paper’s case study: how has HCMC constructed and reconstructed its sidewalk regime?

Property rights theory directs us to look for narratives about legitimate uses of space and

experimental local enforcement practices. This paper first reviews the progression of policies and

laws around which state-run media narratives have been framing sidewalk clearance as a state

concern for modernity and safety.

We then locate counter-narratives operating in the city, reviewing interviews with 270

sidewalk vendors, interviews with key informants, and local newspaper articles. These counter-

 

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narratives legitimate sidewalk vending as a cultural practice and social safety net. It then

overviews how local ward governments have been experimenting with sidewalk management

strategies, such as drawing lines on the pavement to apportion space and collaborating with

grassroots organizations of vendors.

PROPERTY RIGHTS IN PUBLIC SPACE: MISMATCH BETWEEN PRACTICE AND

THE LITERATURE

Sidewalk and street vendor controversies around the world frame many common issues:

1. Vendors crowd the sidewalk compromising public goods like mobility and public safety.

The assumption up for debate in this issue is that the primary purpose of sidewalks is

transportation.

2. Food vendors in particular are a threat to public health because their foodstuff and

handling practices are un-regulated and because of the trash they generate. One debate

around this issue is whether and how to formalize vendors (Morales and Kettles 2009).

3. A related issue but with different root concerns is one of aesthetics. Sidewalks clear of

vendors can be considered beautiful, modern, and orderly. Critics of sidewalk vending

commonly conflate vending with disorder, while advocates might still value order but

assert that we can have orderly vending and value their contribution to urban vitality,

both economically and aesthetically.

4. The attractiveness of the environment also has economic import. Property abutters and

citizens often worry that their property values will decline with unsightly sidewalk

vendors. Cities, in competition for economic development, may also worry that sidewalk

vending will repel investors and tourists.

5. Another issue raised in sidewalk vending controversies concerns social justice for lower

income peoples and/or immigrants. Some argue for vending on the grounds that it is the

only way some people can eke out a living and that we have an obligation to let the less

fortunate use public spaces to survive.

6. Business owners paying rent and taxes often oppose vending as unfair competition that

can offer lower prices given their lower operating costs.

These competing frames reveal basic disagreements about the legitimacy of vending as a

livelihood and the fundamental purpose of public space. But, if vending should not be on the

sidewalk, we have to ask where would these people vend. Or, if not vending, what other

 

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employment would they pursue? Or, if they should not be migrating to the city, how would they

be stopped from entering the urban area? Posing these crude, usually unvoiced questions brings to

the fore the unsatisfactory policy of making it illegal to be on the sidewalk. As long as the

economic forces continue to foster rapid urbanization, migration is a fact that cities will have to

accommodate rather than demand to disappear. A combination of alternative employment and

alternative spatial regimes is necessary. This paper focuses on developing the latter.

And this paper’s main point is that the creation of alternative spatial regimes involves the

social reconstruction of property rights as well as physical planning. Plans and ordinances are

bureaucratic fantasies unless they engage with social practices of space. The property rights

framework is also needed to better understand what is happening in public space.

Property rights theory has powerful insights of how space is created, claimed,

coordinated, and contested. One insight is that rights are constructed through legitimating

narratives running through society based on fundamental principles such as the sanctity of

personhood and the right to economic livelihood. Alternative spatial regimes have to either appeal

to these principles, reinterpret those principles, or more rarely introduce new principles but in

either case engage in the building of narratives. So, my investigation of HCMC sidewalk regimes

required locating these narratives and counter-narratives.

As we observe in the six common frames outlined above, the economics of public space

is particularly debated in sidewalk controversies. Another insight that property rights theory

shows us is that property regimes are largely constructed through how a particular society

interacts with the physical landscape to support its economy. Therefore, the shape of property

boundaries and rules of exclusion vary with societies and their environment. Again, the concept

of exclusion is not necessarily about social exclusiveness but rather the idea that a right does not

exist unless society agrees to exclude or restrain itself from taking entitlements of the property

rights holder and instead performs the duty to respect the right, thereby instantiating it. Rights to

property are about our relationship to everyone else.

Thus, institutionalizing these rights requires establishing ways to communicate them

widely in society so that they are generally respected, cutting down on private contracting and

enforcement. The forms of this communication can vary widely between societies as it depends

on local norms but also, ultimately, on the authority of the government, usually the state, to

enforce these rights. People can make all sorts of claims but rights are clarified through

enforcement. Beyond these basic insights, property regimes can vary remarkably: the shape and

function of property, the forms of communication as well as how they are operationalized within

a governance system and the political source of its authority. Therefore, while property rights

 

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serve an economic function, they are also intensely political in terms of establishing the

legitimacy of particular livelihoods of populations, the differences between how subjects build

the authority of political bodies, and adjudication of property rights conflicts.1

Therefore understanding public space requires understanding social structure, the local

economy, the political system, as well as the spatial practices that we can observe. This is still the

outstanding shortcoming of urban design research. While Whyte, Lynch, and Gehl made major

contributions, they did not interview people nor were reflective of power relations in space.

Property rights theory informs us that we need to locate property narratives and enforcement

systems. Furthermore, effective alternative spatial regimes have to engage in a social discursive

process and be contextualized for the particular structure of the local society.

But, this synergy is lacking: our physical plans have not been adroit to dynamic property

rights reconstruction processes nor has our rights theory deeply considered the physicality of

space. As a result, cities often struggle to manage their sidewalks given the competing concerns

outlined above, but the literature has few answers to suggest. Instead, much public space

literature is founded upon an under-theorized concept of public space. For example, some assume

that public space is defined as a space to which all members of the public should have free,

unfettered access. But, no such space exists in reality. All urban space is restricted and regulated.

This is so for many reasons: First, because of our bodies and the physicality of space, one

person’s use inevitably excludes another’s at any point in time. Second, because of the density of

urban areas, we are constantly subject to the proximity of others and so our use depends on

others’ cooperation. So, whether by local norms or legal codes, there is a regulatory system

governing our public spaces, and because of our corporeality, we cannot opt out of the regime.

In academic literature, public space’s main function is to serve as a place for political

discourse. Therefore there is a predominant focus on the importance of large public spaces that

can hold public demonstrations. As we saw in recent current events, occupying public spaces

such as Tahrir Square or Zucotti Park is a powerful form of politics. However, these large public

spaces are not the main public spaces in the city and political demonstrations are not the only

function of that space. As the outline of common controversies above indicates, public space is

also an important place for economic livelihoods and everyday life practices. The under theorized

issue is how to use public space for living and making a living. This is a nuanced distinction

because the protests related to the sidewalk vending situation can encapsulate larger frustrations

with the government and destabilize its legitimacy. But, after revolution, when trying to set up a

new social order, the question still remains as to where and how people can live and make a

living in the city.

 

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The literature on public space is also too preoccupied with ownership rather than the

particular constellation of entitlements, duties, and obligations built into ownership. Increasingly,

as cities and private developers make deals in which the developer gains density bonuses for

providing public spaces, some argue that the resulting spaces are often nominally public. Popular

gathering spaces on private commercial venues such as shopping malls can be more restrictive to

lower income populations and to political discourse activities. Or not. As the example in Hong

Kong shows, people are not so powerless in occupying corporatized spaces for their own

purposes and recreation. Furthermore, some of the most vigorous vendor clearance takes place on

publicly-owned spaces. Beyond ownership, public spaces are subject to broader societal

constructions about property rights in public space that have to do with the spatiality of lifestyles

and livelihoods.

Similarly, the recent “rights to the city” literature displays a simplistic view of the law

(Blomley 2007). This literature is generated by a humanist philosophy about rights rather than

being grounded in real spaces in the city. Unempirical, it misses the location and tactics of the

battle over public space. For example, philosophers have accused that the state is serving

corporate interests by employing modernist, pseudo-scientific tools like land use mapping and

zoning that transforms place into abstract space (LeFebvre 1992; de Certeau 1984; Scott 1998).

While these tools certainly form part of the arsenal of controlling space, the irony emerges when

critical theory itself abstracts place instead of more grounded analysis (Massey 2005). To abstract

“the state,” for example, is to ignore the fact that in sidewalk disputes, “the state” is actually the

local police force. These local “state” agents employ a variety of techniques, including older

forms of governance like nuisance laws, which are very much grounded in sensorial disputes

between local agents rather than spatial abstraction. Also, the creators of the abstract drawings,

the engineers and planners, form their professional identities as defenders of public property,

rather than corporate interests (Blomley 2011). Instead of Scott’s “seeing like the state”, Valverde

suggests "seeing like a city," which requires utilizing a variety of legal and regulatory controls

(Valverde 2011).

This brings us to the fledgling literature that tries to use property rights theory to devise

practical governance for public space. Most of this literature deals with homelessness in North

America rather than on vendors or non-participatory political contexts. Still, at least one area of

this literature has much relevance for contexts like Vietnam: how police and other street-level

bureaucrats practice and co-construct property rights.

Empirical studies have often noted a disconnect between what is specified in laws and the

practice of local state actors. This has been framed in a number of ways. One is that the “rule of

 

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law” has not yet been institutionalized, meaning that there is a generally low level of respect for

the law either because the state has limited authority or alternatively because the state’s power is

so great that it is above the law. Or local government actors who seem to stray from the national

government policies is explained as a principal-agent organizational problem in which the

national government has trouble keeping its ground staff in line because they are incompetent

and/or corrupt. However, instead of trying to figure out why police are not more strictly adhering

to a formal reading of the law, we could view the police as key members of a social construction

project of defining property rights to public space (Lipsky 1980) who negotiate between different

legitimating narratives (Maynard-Moody and Musheno 2003).

CONSTRUCTING RIGHTS TO THE SIDEWALK

How is HCMC’s mixed-use sidewalk governed, especially since the observed practices

diverge from the law? Why is there so much variation in sidewalk regimes within the city?

Taking the social construction perspective, we look at how conceptions and rules have been

formed about what the sidewalk is and who has legitimate claims to use this space, for which

particular kinds of activities, at which times of the day. To do so, theory informs us to focus on

two realms of construction: legitimating narratives and enforcement practices.

A) COMPETING LEGITIMATING NARRATIVES

We need to look at legitimating narratives about rights to public space that are circulating

both inside and outside of the law. This is especially true for places like Vietnam where the

written law is not widely followed. Investigating the interaction between law and society is

necessary because not only does the law make commands and rules in society, it also responds to

social sentiments. Therefore, it is just as important to look at the text of the law as it is to observe

how people relate to the law, live with it, invoke it and circumvent it (Silbey and Ewick 2003).

Where this give and take happens, where the authority of the law is questioned and resisted, can

be found in the counter-narratives that operate widely in society to legitimate operating by extra-

legal principles.

Legal scholars have suggested that law-breaking is an important and generalizable

process of legal development (Peñalver and Katyal 2009). Tacitly condoned rule-breaking seems

to be an unwritten policy in Vietnam in order to allow for policy experimentation while

minimizing political risks for the state2 (Malesky 2004). Others have documented that

 

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Vietnamese local governments practice considerable discretion in order to tailor policies to local

socio-economic conditions (Fforde and de Vylder 1996), while others draw attention to the role

that citizens play in co-constructing institutional change (Kerkvliet 2005; Kim 2008). In effect,

both state and citizen actors participate in the reconstruction of property rights by spreading the

legitimating narratives (Gillespie 2008; Kim 2011).

To identify state narratives in Vietnam, I examined the text of official policies and

regulations about the sidewalk and in particular the language that justifies these policy initiatives.

I triangulated this text with quotes from state officials from Vietnamese media and my own

interviews in order to locate major narratives. Similarly, to locate unofficial narratives that

countered these state narratives, I used content analysis of newspapers and key informant

interviews. I also reviewed our interviews with 270 sidewalk vendors to identify narratives that

were circulating in everyday conversation.

B) DISCRETIONARY ENFORCEMENT ACTIONS

However, it is also important to look beyond narratives. Property rights are social

institutions broader than private contracts between individuals. Rather than treating all narratives

equally, some of which may be delusional, we look for talk that is widespread and undergirds

institutions. I particularly focus on those narratives that reference the enforcement actions by

local state actors.3 State actors are not governed solely by the law, their job descriptions, nor their

professional identities, especially in Vietnam where there are widespread accounts of local

government discretion. Literature suggests that “street-level” bureaucrats are key to constructing

the institutions that are actually practiced, including property rights. Alongside citizens, they

interpret and negotiate formal laws or create local regimes because they exist within a larger path-

dependent history of institutions and/or because they are embedded within other identities or

projects besides being representatives of the state (social groups, religion, etc.). So, we should

investigate the actions of local wards and their interactions with sidewalk vendors in HCMC.

To locate discretionary enforcement actions, we investigated leads of where experimental

sidewalk management practices had been happening. Because it was a politically sensitive topic

that would be impossible to discuss with a foreignor, I had a Vietnamese research assistant

interview ward level managers of the sidewalk. We also physically observed what various wards

in our survey area had done to manage their sidewalks. We interviewed the members of the first

moped taxi association that had formed in HCMC. Finally, our sidewalk vendor interviews

 

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informed us about the rules and property systems that they encounter and negotiate on the

sidewalk.

VIETNAM’S STATE NARRATIVES AND COUNTER-NARRATIVES ABOUT THE

SIDEWALK

Basically every previous government of what is now HCMC has tried to clear the

sidewalks of vendors with varying levels of success. The French colonial period had many

regulations, but were as photographs and contemporary accounts indicate, Vietnamese continued

to use sidewalks for vending, eating, and recreating. In the post-colonial, pre-revolutionary

period, photographs show everyday people playing chess on the sidewalk and using pushcarts to

peddle wares almost identical to what we now see in the doi moi transition period.

Only during the post-revolutionary, communist period are there some accounts of

effective sidewalk vending clearance. Many anecdotally recount to me that before the doi moi

transition period, the streets were empty and quiet without any vending. There were generally

fewer goods to trade as the new household registration policies restricted migration into the city,

which would have taken advantage of surpluses and shortages through market transactions.

But even then, there were small signs, literally, of a sidewalk economy. While officially

households were to receive state distributions of goods, there were constant shortages.

Furthermore, Koh’s review of Hanoi sidewalk vending policies and regulations starts before the

1986 doi moi period, indicating that vending must have been present at a scale large enough to

warrant official regulation. He cites decrees promulgated in 1981, 1983, and 1984, which

included campaigns titled “Tidy houses, Clean streets, Beautiful capital.” These decrees stated

that sidewalks were for walking and that other uses must have approval from the Hanoi

Department of Transportation and Urban Public Works (Koh 2007).

These state narratives and policies would then be disseminated down the chain of

command and try to create new norms. For example, in 1986 the national government started a

national sidewalk and traffic order campaign called “404.” It mandated that every ward in Hanoi

should set up a “Team 404” consisting of ward police, public works and market management

representatives, neighborhood leaders, and mass organization representatives. The strategy was to

educate citizens about proper behavior on sidewalks and streets and to use peer pressure to stop

sidewalk vending. Ward-level Communist Youth Group representatives were also enlisted to

patrol the neighborhood. But in 1988, two years after the Sixth National Congress legitimized

private sector trade, peasants were officially allowed to sell their surpluses directly to the market

 

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after fulfilling state contracts. This policy move instigated rapid migration into cities and an

increase in sidewalk vending, thereby frustrating the “404” campaign. Also in 1988, in Article 2

of the Decree 66/HDBT the government identified sidewalk vendors as a legitimate household

economic entity. It also stated that they were not required to register as businesses and were

exempt from business taxes (Koh 2007).

Koh’s review of policies and campaigns suggest a regular pattern of the state pushing to

clear sidewalks and then relenting because of the economic hardships of citizens. In particular,

city policies have tended to be relatively more accommodating to sidewalk vendors than national

level policies. For example, Hanoi City started issuing licenses to vendors for sidewalk use in

1989. Two years later, they curtailed this practice when the 1991 nation-wide traffic and sidewalk

order campaign (Decree 135/CT) first framed sidewalk vending as a cause of transportation

problems. In 1995, the Prime Minister personally advocated for a major effort to improve traffic

behavior and cleanliness with Decree 36/CP, in which all levels of government were to employ a

36/CP committee to implement the decree. However, later that year, due to difficulties with

hyperinflation, Hanoi officially allowed vending in 57 places and let retired people sell lottery

tickets on the sidewalk.

When campaigns have strong political support from national government,

implementation is generally more effective for a time and state narratives play a large role. With

Decree 36/CP, the state used all of the means available to spread its narrative. State-run television

ran daily special programming including quizzes about traffic rules and news on major traffic

events. The government also used long-established propaganda methods, posting huge posters,

hanging red banners with slogans across streets, erecting painted panels on all major roads, and

speaking to the population through loudspeakers to remind them of the rules. For the Decree 36

campaign, additional staff were hired to patrol the sidewalks. Other methods included asking

people in work places to sign a pledge to acknowledge that they had been briefed by a ward

official of the rules. The pledge promised compliance, and if they were found wanting, they were

to accept punishment without question. The state also attempted to embed the new rules with

socialization techniques. They instituted family groups to govern the sidewalk of seven to ten

households each. Members were paid 200,000 dong per month. The groups developed rules and

agreements among themselves to tackle special sidewalk order problems specific to their areas.

With the backing of the ward’s authority, these groups were able to enforce rules on fellow

residents without involving police. But, even with the most ardent campaigns, changes in

behavior waned and things went back to normal, so to speak (Koh 2007).

During 2008-2009, HCMC policies tried to pin down how sidewalks were to be used.

 

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Decisions 74 and 1762 focus on protecting the space of pedestrians by having city districts create

lists of street sidewalks on which it would be possible to apply for a license to vend or park.

Decision 74 stated that only sidewalks wider than 3 meters could possibly be designated for

vending or parking and that 1.5m of the sidewalk on the curb-side portion must be maintained for

pedestrians. Decision 1762 about constructing and upgrading sidewalks requires 1 to 1.5m width

for pedestrians. By 2010, very few sidewalks in the city had been selected for vending and those

that were selected were located in seemingly arbitrary places on the periphery, as shown by Map

4.12 on pages 120-121. None of the downtown sidewalks were licensed for vending.

There was also some discussion of a policy that would charge fees for sidewalk use and a

schedule of rates was even proposed (Nam 2010). Ultimately, this idea was abandoned because of

the lack of popular support for charging fees for public land and the bureaucratic impracticality of

handling such payments (Quang 2010). While some policies have specifically designated space

on the sidewalk for pedestrians, maintaining spatial order also included Decree 34 passed on May

20, 2010, which made it illegal for people to walk in the street, subject to fines.

In reviewing the texts of the campaigns, decisions, and decrees, and state-run media

accounts about the sidewalk, I summarize three major state narratives and their contradictions

below:

I) “SIDEWALK VENDORS CAUSE TRAFFIC PROBLEMS”

The majority of sidewalk regulations and policies are couched within the context of

transportation regulation. Decision 74 invokes the 2001 Law on Road Traffic and other

infrastructure and traffic decrees and circulars. The regulations are based on the sidewalk widths

to determine if sidewalk space can handle other uses while maintaining pedestrian flow. Several

stories in the state-run media discuss the dangers of the traffic situation and the role that how

outdoor markets and vendors play in exacerbating it (Nam 2010). “Obviously, sidewalk

appropriation is one of the main causes of traffic accidents. For instance, a woman, Nguyen Thi

Sanh located in ward 4, Go Vap district was hit by a motorbike and suffered a broken leg while

walking off the sidewalk to dodge vendors around Gia Dinh Park” (Nam 2011).

The story is that while vendors are on the sidewalk near the curb, commuters stop by the

side of the road, in turn slowing traffic and causing accidents (Higgs 2003). In these narratives,

the vendors are implicated, but the customers are not. It is important to note that the connection

between vending and traffic accidents may be questionable. According to the National Traffic

Safety Committee, speeding and driving in wrong lanes were the main causes of accidents in

 

Page 15

2010 (Nhi 2010). This is reminiscent of how planners in the West used to blame pedestrians for

traffic accidents instead of drivers, viewing pedestrians as an obstruction to traffic flow.

II) ”SIDEWALK VENDORS ARE AN EYESORE”

The creation of a beautiful city is another stated reason for regulating sidewalks in

HCMC. For example, we have already mentioned that one of the earliest sidewalk campaigns was

named “Tidy houses, Clean streets, Beautiful capital.” Decision 74 also cites the city’s aesthetics

as a victim of vending and eating on sidewalks, listed below in Article 14:

“Article 14. On preserving roadways and sidewalks

1. Strictly prohibit activities affecting the city aesthetics and environment on the roadways and

sidewalks, including:

a) Using sidewalks for eating and the hygiene of individuals and households…

g) Organizing open market, selling food or goods on roadways, and using sidewalks without

permission.”

Some state-run media stories concur that vending is unattractive. After writing about how

dirty and dangerous vending is, a journalist writes, “It goes without saying that vending is a

means of earning a living for thousands of needy people…However, the downside of this issue is

that it is definitely preventing our city from becoming a modern, developed one” (Nam 2010).

III) “STREET FOOD IS UNHYGIENIC”

The food safety and hygiene issues about vending are another concern. One reporter

writes that “the spontaneous (markets) are crowded until night, not only sleazy and unhygienic

but also causing jumbled order traffic jams, which really bother the local people” (Nam 2010).

But again, implicating sidewalk vending may be mis-directed. In 2009, there were more

than 4,100 reported cases of food poisoning, including 31 fatalities. With only 325 food

inspectors in the entire country, the formal food handling industry may also be under-regulated.

For example, Hanoi’s health department found that many manufacturers of jams and sweets had

violated food safety regulations by drying their food on pavements (VNS 2010).

 

Page 16

COUNTER-NARRATIVES

As the issue of sidewalks and vendors became “hot” and popular sentiment was not

supportive of the bans against sidewalk vendors, Hanoi officials at one point officially collected

public opinion. A survey of nearly 7,500 Hanoi residents conducted by the local newswire

VietNamNet on whether or not they supported a full ban showed that 57 percent did not support

the ban. (Thanh Nien News Special Report 2008). Some of the counter-narratives that we found

circulating either in the press or in our interviews with key informants and vendors included:

I) “WE SHOULD BE SYMPATHETIC TO VENDORS NEEDING TO MAKE A LIVING”

Perhaps the most common justification invoked by our interviewees is that vendors are

people who are just trying to make a living and should therefore be allowed to use the sidewalk.

There are many news stories sympathetic to the plight of the poor who become vendors.

For example, one newspaper article features a 78-year-old war veteran who has been biking in

from an outer district to sell his art from 6:30AM to 10:30PM on one of the most expensive

streets in Saigon for several decades. He speaks about having to pay a fine everyday. The article

portrays him as a likable old man with a sense of humor and who takes up little sidewalk space,

close to the wall out of everybody’s way (Hoang 2010).

Over and over in our interviews, vendors justified their activities by portraying

themselves as a poor person who needs to make a living. Some vendors shared about their

difficulties and tragic situations. For example one older woman vendor with major medical

problems explained that she ekes out a very meager living only to lose her savings when the

police chase her and confiscate her goods.

Sympathy for the poor is a common narrative in Vietnamese society. One of the most

popular television shows is a short format program called “Dream House” (Ngôi nhà mơ ước) in

which scholarships or housing is provided to poor families. My Vietnamese assistants related that

they had been moved by their interviews with the vendors. One recalled a vendor who was raising

his daughter by helping her with homework as she sat next to him on the sidewalk. In regards to

the total ban on vendors in Hanoi, a newspaper reported: “Amidst these changes, the public is

openly questioning whether authorities will introduce alternatives to support affected citizens”

(Thanh Nien News Special Report 2008).

 

Page 17

One of the most surprising findings from our interviews was the number of instances of

reported empathy from property abutters to vendors. It was common for vendors to say that the

property abutters, whether homeowners, shopkeepers of small business, or caretakers of

institutional property, did not harass them and in fact often aided them, giving them free water

and electricity to use in their operations, hiding them during sidewalk clearance raids, and storing

their goods overnight for small fees. Most of the vendors said that they were not asked by the

property abutters to pay rent or give in-kind payments for the sidewalk space. Again, what was

commonly invoked as the reason for their being allowed to stay was that people understood that

they needed to make a living.4 This is surprising because most literature has documented

acrimony between vendors and property abutters (Loukaitou-Sideris and Ehrenfeucht 2009). This

finding calls for researching whether forms of cooperation also exist in other places and what we

might learn from them for our city planning and policy making.

Empathy is facilitated by poverty not being heavily stigmatized in Vietnam, perhaps due

to its prevalence. The General Statistics Office (GSO) conducted an August 2007 labor force

survey on a national representative sample of 170,176 households, including 3,170 in Ho Chi

Minh City (HCMC). In a first for Vietnam, this survey counted the informal sector. Their

methodology probably undercounts employment, especially since they also undercount the

official population. Still, the survey provides important insights such as that one-third of

households earn all or part of their income from an informal production unit (Cling et al. 2009).

Articles that are sympathetic are usually couched in a tone of moderation rather than in

terms of human rights: “Therefore, instead of coldly banning [vending], the authorities should

objectively evaluate the role of this type of service in order to render a more appropriate policy to

guide its development in a legal and well-organized way…admittedly, street vendors and

sidewalk cafes need more management, but we should not take such extreme measures. Just let

people live normally. If the streets are spotlessly clean, they are no different from a glass case,

lifeless and forgettable” (Lu 2010) Interestingly, this journalist identifies the important role of

government narratives and competing narratives framing the debate: “Information about street

vendors and sidewalk cafes clearance campaign travels around very fast, reinforcing some

people’s belief that street vending is a hindrance of urban civilization. It does make sense to some

extent, but doesn’t really do street vendors justice”

II) “SIDEWALK LIFE IS PART OF VIETNAMESE CULTURE”

Another narrative that supports sidewalk vendors is that “street vendors and informal

sidewalk cafes play an important part in the life of Vietnamese communities” (Hoang 2010). This

 

Page 18

journalist further shares, “it may be because of my countryside origin, or my low income, or my

lack of open air, or a thousand more reasons that I really love dining at sidewalk cafes and buying

from street vendors.” Others hypothesize that customers enjoy the convenience of shopping

without leaving their motorbikes (Higgs 2003).

Another tack to this argument is to affirm that sidewalk vending and life is “natural” and

happens in other more economically developed places like South Korea, Singapore, Thailand, and

India (although in all of these Asian countries, their governments have at times tried to remove

vendors, just like in Vietnam). A French tourist is quoted as saying, “I don’t understand why the

government wants to ban it when street vending brings a cultural flavor to the streets. In my

opinion, if people could not perceive the warmth and friendliness created by street vendors, Ha

Noi or HCMC would only be an ordinary, or even boring, city” (Lu 2010).

The head of the national Vietnam Architects’ Association personally expressed to me that

they do not support a total ban on vending. He even told national leaders that “Vietnam is a

sidewalk economy” and that sidewalk vending “is part of our culture.”

III) “THE GOVERNMENT CANNOT STOP VENDING ANYWAYS”

Another narrative operating in society related to why sidewalk vending must inevitably

occur concerns the incompetence of the government. There are several variants of the narrative to

account for why there is widespread vending despite legal regulations against it. One reason is

that the civil service is simply outnumbered: in a population of at least 8 million, “HCMC only

has 600 traffic policemen to patrol 3,853 roads” (VNS 2010). On top of that, the civil service is

poorly compensated. Some wards report shortage of funds to pay over-time to policemen or to

pay for printed copies of regulations. “Talking with us about clearing the spontaneous market

within the local area, the government offices of these districts are all depressed, shifting the

blame for their weakness in management on the difficulties of finance and human resource.”

(Nam 2010)

This reasoning implies a need to increase the number of police. At a conference of

government leaders about sidewalk management, a new foreign-style development was held up as

a model: “Phu My Hung is the place where the streets and sidewalks are used most appropriately.

Any act of violation regarding the use of streets and sidewalks is always quickly found out and

strictly punished. Phu My Hung is able to do so because they have a (private) urban order force

consisting of around 650 members who patrol all the streets from time to time in order to discover

and handle urban violations,” stated the Deputy Head of the city government. However other

conference attendees countered that even though within a few months of a recent sidewalk

 

Page 19

clearance campaign, “the related authorities had fined over 60,000 violations of the street and

sidewalk regulations, but the situation does not get better,” (Lê 2009).

Another explanation for the failure of sidewalk clearance is that the regulations were

misguided in the first place. Koh reports that in 1984, articles in Vietnamese newspaper Ha Noi

Moi reflected the public opinion that trying to enforce pedestrian-only sidewalks was unrealistic

(Koh 2007).

Impracticality is related to the idea discussed earlier that the rule of law is not established

in Vietnam: “…as the market clearance is executed interruptedly, the people do not intentionally

conceive of the law and have signs of ‘law resistance’” (Nam 2010). Koh quotes from a 1992

Hanoi Police Department survey of two Hanoi wards that revealed that 100 percent of vendors

who gathered in illegal markets, on sidewalks, and on streets responded they have a “lack of

concern” for the regulations. Thirty-five percent of respondents knowingly offended rules that

prohibited sidewalk vending.

A few vendors we interviewed expressed criticism of the government. “I am extremely

dissatisfied with such government policies nowadays,” said one vendor. “It is much too harsh

when poor people are just trying to get by and earn a living. I hate the police a lot. My father

fought in the South Vietnamese Army alongside the Americans.”

ENFORCEMENT AND DISCRETION ACTIONS ON THE GROUND

As the complicated and mostly unsuccessful history of decrees and campaigns attests, the

police can only enforce so much. There is a fatigue factor: after the heat of a new campaign,

enforcement cools off. Koh recounts that in Hanoi five months after the 1995 campaign of Decree

36/CP, the city police department conducted an informal survey of 180 streets. They found that,

despite official regulations, on all sidewalks surveyed, sidewalk commerce continued in the early

mornings and late evenings (Koh 2007). Similarly, post Decision 74, the HCMC Department of

Transportation conducted an inspection of actual sidewalk practices from March 9-25, 2009.

They found non-compliance. For example, some sidewalks that had been taken for car and

motorbike parking did not meet the minimum width requirement nor were they on the official list

of approved sidewalks. They also found some motorbike parking arrangements that had

completely blocked pedestrian throughway access (No. 594/SGTVT-GT). A settlement or norm

develops between police and citizens. Police maintain these standards with drive-by monitoring

and occasional confiscation and fines. Enforcement may be uneven spatially and discretionary but

through such practices police still maintain their authority some sense of limits and order as

vendors and shop owners scurry at the sight of them.

 

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We have already seen that the divorce of practice from regulations has sometimes been

attributed to the incompetence of local officials. Vietnamese police discretion practices towards

vendors has been documented by others (Koh 2007; Turner and Schoenberger 2012). Koh

hypothesized that the police are bending rules not out of corruption or laziness but rather as a

means to provide social relief to a poor population and to navigate the multiple forces (i.e. public

opinion, superiors) acting upon them. For example, Koh recounts how his favorite noodle

sidewalk vendor’s working hours are the result of an informal understanding between the vendor

and the ward to balance the vendor’s economic gain with the need to maintain order on the

sidewalk. Within the city, the neighborhood ward level official represents the lowest level of state

actors. The vendor sold food when people need to eat from 6AM to 8:30AM, cleared the sidewalk

for a few hours, and then sold again for the lunch crowd from 11AM to 2PM. Once a month, the

vendor had a meeting with the leadership of the ward, during which she might pay formal and

informal taxes. With this arrangement, the ward is allowing vending to take place in order to

provide jobs and services in their jurisdiction while limiting public nuisance.

The idea of a street-level bureaucracy that builds up the practiced regime as an interaction

between local state actors and citizens has been developed by others (Lipsky 1980; Maynard-

Moody and Musheno 2003; Kettles 2004; Garnett 2009). This section examines how the

interactions between local police, property abutters, and vendors have produced the spatial order

on sidewalks in HCMC.

By the time we arrived to conduct our fieldwork in 2010, invisible lines on the pavement

had been drawn. Interviewees reported that there had been a substantial increase in sidewalk

clearance since “the new laws” were passed in 2008. “It was more acceptable to sell things on the

sidewalk only a few years ago, but now that is not the case,” said one vendor. In hearing the

vendors’ experiences, it appears that there has been an evolution in enforcement practices from

being asked to leave, to being fined, and now to facing confiscation of goods. The sense of

anxiety among vendors was palpable. I was struck by the changed demeanor and behavior of a

vendor I had been buying coconut water from since 1999. She sells in the most heavily enforced

ward, Ben Nghe, and reported that now when she sells, she doesn’t look at the customer’s face

anymore because she is so preoccupied with watching for police.

Still, there is clear evidence of police discretion in enforcement practices. The same

police will clear the sidewalk one time and then pass by it another time without taking any action

against the vendors. Fines also vary considerably: vendors we interviewed reported fines varying

 

Page 21

from 30,000 to 100,000 VND, with the occasional outlier fine of 200,000 and 400,000 VND.

They also reported that it was unpredictable when they would be fined and when their goods

might be confiscated.

While almost all vendors cited wariness of police, some vendors were regularly

overlooked, most often those who had been there longest, the elderly, and the frail. These vendors

shared instances of police helping them skirt the letter of the law Discretion is explained by the

fact that police are people, too. They are embedded social agents, not robots of the state. Other

research explains that when examining how local police maintain order in public space, the

formal law is balanced by pre-existing social sentiments and prejudices (Martin 2007; Garnett

2009; Maynard-Moody and Musheno 2003). For example, the vendors we interviewed told us

that police were not enforcing clearance in the month before Tet, the lunar new year. Their

theories were that the police understood the vendors’ need to make more money during the

holiday in order to buy the gifts that tradition demands be given. It would be bad form and bad

luck to enforce clearance before Tet. There were also many accounts of police practicing

discretion because they had built up social relationships with those they govern. One vendor

explained that he sold food to the ward police when the policemen were children, so he was

exempt from stricter clearance enforcement. There were also accounts of discretion because of

social values: police tend not to clear or fine the elderly, the disabled, and the indigent. This is

clearly dependent on the individual police officer. One elderly woman vendor recounted how a

“nice policeman” used to return her confiscated goods, but after a change in personnel, the new

police chase her.

Instances of cooperation with police were particularly telling. One policeman suggested

to vendors that he personally knew that they sit just off the edge of the sidewalk in the street so he

wouldn’t have to clear them off the sidewalk, which directly contradicts the public safety

reasoning of the regulations. But through literal reading of the law, he only looked at the sidewalk

space. Another vendor recounted how the police call ahead to give vendors advance warning of

raids so stores can know to put goods away in preparation. There were also many instances of

police telling vendors to move their operations closer against the wall to keep the curb clear so

that they could overlook the vendors rather than clear them.

We also obtained a few reports of corruption where police required “lucky money” in

exchange for favorable treatment. Others forced vendors to give them free drinks and meals. One

motorbike taxi driver said he regularly had to pay off police in order to operate. But, we did not

gather many such reports.

The ward officials also have to negotiate with other entities. Communist Party-affiliated

 

Page 22

associations sometimes get involved in supporting resident vendors. One chairwoman of a Hanoi

ward’s Women’s Association explained that roaming vendors in her area are driven off the

sidewalk while vendors who officially live in the ward are allowed to stay because the ward is

responsible for helping residents in economic difficulties, cites Koh. Women’s Association

officials also acted as guarantors for poor families who asked for permission from the ward to

have a vending stall on the sidewalk. The ward then gave these requests special consideration.

Other research on vendors in Hanoi also found a social hierarchy where city resident vendors

looked down on roaming migrant vendors. City residents expressed to the researchers that

migrants do not have a right to be in the city (Turner and Schoenberger 2012). Newspaper stories

also quote Hanoian business people angry with vendors because they are unfair competition

(Nam 2010).

However, our interviews suggest that in HCMC there might be greater tolerance for

migrant vendors by the longer-term city residents. One newspaper reporter pretended to be poor

and sought advice about how to become a vendor from existing vendors in HCMC. He reports

that he was given advice such as: “Feel free to sell here, you don’t have to care about paying any

tax. Just remember to run away when the police come!” and “You want to start a small business

here? Don’t worry! Just find a cart, put your goods on it, doing a mobile business is the best

way.” He enquired about how often he should expect to be chased by the police and was told,

“just sometimes during times of campaign. After that it’s all ok” (Nam 2010). This tolerance may

also have to do with larger, historical structures. One interviewee claimed that “if other

sellers/street vendors come around, we consider each other friends because we see it as we are all

in this together in a constant fight against the government and its policies. We welcome other

street vendors and migrant sellers to sell in front of the shop for free.”

In addition to cooperation, we did find some instances where property abutters charged

vendors to rent the sidewalks in front of their properties. Particularly in Cholon, the city’s

Chinatown, vendors reported paying a variety of rents: “taxes” to operate, a “hygiene fee” to help

pay for trash pickup, as well as fees for storing goods in the shops. Why might property abutters

feel entitled to collect fees for public space? There might be several reasons why property

abutters in Cholon feel entitled to charge rent. With the widespread and historical practice of

using the sidewalk as an extension of one’s shop, shopowners might assume they should be

compensated for “lost” floorspace. A woman selling rice porridge in front of her building in

Cholon asserted that she had a right to sell here “because I live here.” Particularly, if shopowners

rent the groundfloor space from a landlord, they view the sidewalk space as theirs and therefore

 

Page 23

clear any would-be vendors from this space.

Outside of Cholon, most vendors said they were not forced to pay rents for sidewalk

space. Undoubtedly, some neighbors do not like having vendors in front of their houses. Some

neighbors pressured vendors without direct confrontation by having commercial renters of their

ground floors be the ones to clear or calling upon wards to clear sidewalks. Still, as mentioned

earlier, there were many surprising accounts of store owners going to extraordinary lengths to

help vendors: hiding them in their buildings during raids, giving free water and electricity,

helping carry disabled vendors’ goods. This finding contrasts with the North and Latin American

literature in which property abutters are the main force working against street vending.

Another surprising finding was that among interviewees, vendors did not verbally express

they had a right to be on the sidewalk even though they might have been vending in the same spot

for 30 years. Rather, they said that because they had been there so long, neighbors and the police

were more likely to allow them to stay. They talked about how little space they were taking, how

responsible they were about keeping it clean, and what a great service they were providing. But

mostly they talked about how they needed to make a living.

It was surprising that vendors who had been in one spot for so long did not express any

sense of entitlement. They said they would not resist if they were cleared and that if the

government actually enforced bans on vending, they would somehow find other work. Usually in

other studies as well as in property rights theory, occupancy builds up a sense of entitlement.

Even in Vietnam, this is true of residential occupancy, which brings about difficult compensation

negotiations in the case of relocation (Kim 2011). But, for the sidewalk, while there are

negotiations for space and a system to communicate claims to space, it was not considered private

property. Rather the right was a more generalized right to public property for livelihood purposes.

And a common strategy for building up their justification was to contribute to the economy and

orderliness. Some vendors said they were less hassled by police and neighbors if they helped keep

the sidewalks clean. Another vendor recounted that they helped maintain sidewalk order by

enforcing a clear path to the abutting shop’s entrance.

HCMC’S SIDEWALK REGIME:

In HCMC, vendors coordinate with each other, taking turns on the sidewalk. Through

fieldwork I found that since breakfast is the biggest income generator for street food operations,

when the commuter rush is over by 9 AM, some vendors pack up and leave for the day. Other

vendors then step in to fill the now empty spaces. Vendors shared space and cooperated with each

other selling different foods: noodle soup, drinks, and candies. They also shared the costs of

 

Page 24

capital investments like plastic chairs and tables for their customers and were easy-going about

whose customers occupied which parts of the sidewalk.

The space-time dynamic to this current accommodation means that we cannot map “the

city” of HCMC, but rather we must map the many different “cities” within HCMC. Sidewalk

clearance is targeted at the widest sidewalks of the major streets in the downtown area during the

daytime. Conversely, sidewalk vending is more lax and permissible on the urban periphery, in

alleys, at nighttime, and on rainy days. Land uses around sidewalks also matter as certain types of

official government buildings and schools are both officially named in regulations as well as

practically more enforced than other building types. Also, the police are less restrictive in the

weeks leading up to the lunar new year for good luck, but then increase enforcement after the

holidays.

The generalizable micro-spatial order that has developed in HCMC is as follows: dining

occurs against the wall face, merchandise is located either on the wall face or near the curb, and

motorbike taxis wait on sidewalk corners. The lowest income and most insecure vendors

generally stay mobile, carrying or rolling their wares. Because of increased enforcement, vendors

in many areas of the city now leave a path for pedestrians. Police enforcement times are generally

mid-morning and afternoon, during which vendors decrease their use of the sidewalk.

The negotiation between the vendors and police is spatial, as is the regulatory system.

One point of reference is the wall face – vendors are less likely to be cleared if they stay close to

the wall and leave the curb clear. In order to organize the sidewalk space, some wards had taken

to painting lines on the sidewalk. Lines were neither painted in all wards nor on all sidewalks in a

ward, but for those sidewalks that did have a line, the visible marker was a common reference

point in the negotiation of sidewalk space. Some lines have been painted to show where

motorbike parking is allowed and where vending might be allowed. The police will be more

likely to pass by without fining vendors if they stay behind the line. Also, the police are less

likely to hassle vendors the less space they take and the less street furniture they lay out. These

unofficial painted lines were a powerful tool in constructing sidewalk boundaries. They are the

manifestation of a local negotiation where the local state body takes into account and reinforces

different, legitimate narrated claims to public space.

Sidewalks on the periphery that had been officially designated for legal vending, such as

in Tan Phu District had painted lines on the sidewalk but these markers were not as closely

observed as in the city center. Instead, invisible lines between parcels appeared on the sidewalk

by the way property abutters edged their goods or belongings against it. Here, the taking of

sidewalk space was for extra living space as often as it was for vending. Laundry was drying and

 

Page 25

potted plants were getting extra sunlight. When we interviewed residents about the painted lines

they said they did not know why they had been painted. These legal vending sidewalks did not

appear to have higher demand for sidewalk commerce than any others nearby. In other words,

there was a mismatch between local conditions and official regulations, resulting in a rather

useless painted line. Meanwhile, the unofficial lines painted by wards in the city center actually

help construct sidewalk property boundaries.

The difficulty in formalizing these local innovations was also apparent in the case of

motorbike taxi organizing. The very busy Cho Ray hospital in District 5 is a popular spot for

motorbike taxis waiting for customers. Usually motorbike taxis work in small groups on a

specific corner, but apparently, there were so many in front of the hospital that they used to fight

for customers until the drivers organized themselves around the year 2000. They made a board

with numbered tags hanging on it to show whose turn it was for the next customer. While

Vietnam does not allow non-Communist party organizations to form, the ward did allow this to

happen and continue. As this was proven to be successful, this idea was shared with other wards

within District 5 and then eventually to other districts in the city. The ward police now officially

manages each of the formerly unofficial motorbike taxis associations. Those who wish to join

must sign up with ward officials and receive a location assignment. The drivers wear blue shirts

with a patch that reads “motorbike taxi unit.” Members told me that they contribute a nominal

amount each week to fund a health account for the members. Because of their position on

sidewalk corners, motorbike taxis have even been enlisted to help fight petty crime by serving as

eyes on the street.

However, adoption of an organically derived institution can turn into formal, inflexible

regulation. On August 9, 2009, the Ministry of Transport issued Circular 08 requiring all moped

taxis to wear badges and uniforms to be designated by the province or city. In May of the

following year, the Ministry issued a decree establishing the level of fines for those who were not

in compliance. However, most places including Hanoi and HCMC’s Department of

Transportation had not promulgated any regulations about this. The head of the HCMC Lawyers’

Association’s Propaganda Committee stated that the regulation is infeasible due to its rigidity

(Kha 2010).

CONCLUSION:

This paper focused on the most controversial issue about sidewalks in HCMC and in

many cities around the globe: sidewalk vending. Legal scholars agree that property rights theory

should provide insight into this conflict, but its application to public spaces like sidewalks is

 

Page 26

under-developed. In order to provide practical criteria for optimal governance, some have

suggested the need for a laboratory of local government property regimes in order to understand

how to balance the need for centralized legal protections and standards with the flexibility and

nuance of local discretionary practices.

Ho Chi Minh City provides such a laboratory. While official state policies and

regulations attempt to clear sidewalks, city district and ward levels of government have been

pragmatically engaging in experiments governing sidewalk space in practice. Some have allowed

de facto vendor organizations to form and others have painted lines on the sidewalk to share the

space between parties. This paper drew upon interviews with 270 street vendors and local police

as well as field observations to describe the kinds of sidewalk property regimes being created.

The social construction process of property rights interprets and modifies laws and

policies in order to match economic livelihoods on the ground and political governance

structures. This occurs both through a discursive process operating in everyday conversations as

well as in media that compete to frame the sidewalk controversy and narratives of legitimacy. In

HCMC the narrative that vendors are sympathetic everyday people just trying to make a living

carries considerable weight, shaping the attitudes and actions of both local police and property

abutters. Therefore, the property right to public space that they created, the social contract of who

and what kinds of activities have legitimate claims to using sidewalk space, supported the kind of

sidewalk system that exists in HCMC. The fieldwork supports the re-framing of local government

discretion not as a principal-agent problem but a social construction project, which must take into

account economic livelihoods and the practicalities of enforcement.

This paper raises the need to move scholarly discussions beyond an a-physical conception

of “rights to the city” to a more grounded discussion about real property rights. HCMC’s example

shows property rights at work on the sidewalk and the potential for a wide range of sidewalk

regimes.

 

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                                                                                                               1  These factors intersecting with Vietnam’s reforms to rejoin the global economy introduced the titling of private land use rights which had complex impacts to both the economy and polity in both rural and urban areas (Spencer 2007). 2 Although there are explicit state-sponsored examples such as special economic zones and business improvement districts, etc. that allow exceptions to certain laws and regulations to a specified geographic area. The stated idea is to allow limited experimentation to a confined area and if it is shown to be beneficial, to expand it to other areas and eventually lead to larger legal reforms. 3 Here I assume state actors since Vietnam’s state is authoritarian and is the only political party allowed. In cases where state authority has diminished to the extent that non-state actors enforce their own regimes through force, then non-state actors, of course, would be relevant (Davis 2009). 4 Of course, this is a selection bias issue, that only those who had networks and good relations with property abutters and the vendors who are still on the sidewalk and that we can interview.