Legal framework provides no rights over land to individual farmers, system lacks transparency and consultation

It is rather disingenuous for central government to castigate local governments for their role in appropriating rural land for “development,” since the roots of the conflicts with resettled farmers clearly lie in a combination of national laws and policies, as well as in the limitations of existing avenues of redress.

On the policy level, the idea that “development is the highest priority” (fazhan shi ying daoli) has been a consistent theme of the reform program, and one of the main criteria for assessing officials is their ability to deliver in this area. With the decline of township and village enterprises, local governments have faced a financial crisis, and, at least for rural areas bordering on cities, one solution has creating “development zones.”[1] In some areas, income from sale of land use rights has accounted for between 30 and 70 percent of local government’s fiscal revenues.[2] According to one estimate, local governments raised $600 billion in the past three years alone through the sale of land use rights for requisitioned farmland.[3]

The country is littered with development zones set up in what can only be termed official land grabs, which have severely diminished the nation’s supply of farm land. Official sources put the loss of arable land at about one million hectares per year; total cultivated land area fell from 130.1 million hectares in 1996 to 123.5 million hectares by the end of 2003. According to a 2004 article, of 6,015 development zones and industrial parks in the country, only 1,251 had obtained the proper approvals.[4]

China’s land market emerges from innovations of the Deng era. Prior to the constitutional amendment of 1988 legalizing the transfer of “rights to the use of land”[5] all commercial transactions involving land were illegal. Despite this change, the state has retained a monopoly on decisions over the transfer of use of land from one purpose to another through reassignment of land use rights, particularly the expropriation of rural land for development. Thus although the Constitution stipulates that suburban and rural land is “owned by the collective,”[6] the precise locus of collective ownership is unclear,[7] making it difficult for villagers to assert this power. Effectively, the only decision rural collectives can make independently on assignment of land use rights is the initial allocation of contracts to farm and plots for houses to members of the collective. Even reassignment within the rural collective prior to the expiry of such contracts is supposed to receive state approval.[8] This lack of real ownership over land is more apparent in the Land Management Law, which makes clear that the underlying principle for all land ownership, whether collective or “ownership by the whole people” is “socialist public ownership,” in other words, state ownership.[9]

Rural collectives cannot negotiate directly with developers or others who are taking over their land for “development.” Collective ownership of the land is abrogated when the state, as represented by the county-level government, chooses to appropriate rural land for development “in the public interest.” While such land requisition does generally require higher level approval (depending on the size of the land parcel) and should be in accordance with annual plans, this is normally pro forma. In theory the transfer of arable land to development use is strictly controlled.[10] Once it becomes state land, villagers no longer have any say over its use or any control over the revenues it generates. County-level governments have the power to deal in a unified manner with all phases of the land requisition process and sale of land use rights.

Processes for consultation over requisition and development of land are virtually non-existent. The Land Management Law does not require local governments to consult village representative bodies (either the village representative assembly, which is supposed to represent all adult villagers, or the villagers’ committee, the elected self-administration of villagers) when they choose to requisition land. The Law does not even require the local government to negotiate with villagers, whether those affected, or the collective entity to which they belong, over compensation, but merely states: “After the plan for land compensation and resettlement fees is finalized, related local people’s governments shall make an announcement and hear the opinions of the rural collective economic organizations and peasants whose land has been appropriated.”[11]

 “[W]hether in the countryside or in the big cities, the decision to requisition and evict is rarely subject either to public scrutiny or participation. Before they have had an opportunity to voice their grievances, those displaced have often already lost their homes and livelihood and face an uphill battle in getting compensation for their losses.”[12] According to an organization which has studied such issues in China:

RDI’s fieldwork in China indicates most farmers report that at least some arable land in their village has been recently expropriated for non-agricultural purposes. In the majority of such cases we have studied, farmers who lose use rights to expropriated land receive inadequate compensation. Furthermore, such farmers typically are excluded from participation in the processes and procedures leading to expropriation…. Moreover, when land is taken by the state or a non-owning collective unit, farmers are generally unaware of the amount of compensation fees and resettlement subsidies provided to the unit from which the land has been expropriated and have little recourse in assuring that the revenues are applied according to law.[13]

Minimal compensation for affected farmers is a common problem of land requisition cases. Most sources indicate that individual farmers only receive about 10 percent of the value raised by the sale of their land.[14] Part of the problem is that the Land Management Law sets compensation standards for rural land very low: compensation for agricultural land is set at between six and ten times average annual output value for the preceding three years; while compensation for resettlement is set at between four and six times this figure. The combined total may not exceed 30 times the average annual output value.[15] This is hardly sufficient when people have lost their entire livelihood. Given acute rural under- and unemployment, the lack of adequate compensation is a critical problem affecting people’s survival.

In practice local governments often coopt the members of the villagers committee so as to facilitate the deal and ensure their cooperation in the distribution of what compensation there is.[16] Compensation and resettlement fees are generally not paid to affected people directly, but go through the collective. While this is understandable, given that the whole collective may be affected by the requisition of some of its land, it provides many opportunities for corruption, and this means even less to cover the needs of displaced people.

In recent years a number of Chinese leaders have expressed concern about illegitimate and even illegal land takings by local officials. Most recently, at a press conference at the conclusion of the annual meeting of the National People’s Congress, Premier Wen Jiabao acknowledged that land requisition had been a major cause of social conflict, and urged local officials to protect the legal rights and interests of the people involved.[17] However, it seems the priority is to halt those cases that are ongoing, through such measures as imposing new requirements for the reporting of land takings.[18] There are plenty of these: in 2003 alone, some 168,000 illegal land transfers resulted in the punishment of officials involved, according to the Ministry of Land and Resources.[19]

However, the law gives affected farmers few opportunities to bring legal action in such cases. Review of compensation decisions can question how land and houses were assessed, but the low rates set in the law limit what the courts can offer to plaintiffs. If farmers wish to challenge the requisition of their land, they have to show that the government did not follow its own procedures. While the Administrative Litigation Law (ALL) under which such a suit would be heard does give courts the power to require government departments to produce evidence relating to administrative actions and puts the burden of proving that they acted lawfully on defendants,[20] courts have often been unwilling to take these requirements seriously. As mentioned above, courts are dependent on the local government for their funding, and are thus often unwilling to take on cases that challenge its power and decisions. In addition, the prohibition in the ALL on review of “abstract administrative acts” has often permitted the courts to avoid taking on cases in which official behavior was possibly illegal and certainly questionable on the grounds that the acts were authorized by “normative documents” issued by local governments.[21] The system of administrative review, which allows people to request review of official decisions, involves the agency that made the original decision reviewing itself, and thus does not offer much hope of impartial examination of claims.

Mostly enforcement of the law depends on the government policing itself. For example, the Land Management Law makes the land administration departments at and above county level responsible for supervising the implementation of a law which charges them with making many key decisions on such matters as transfer of land use rights.[22] Thus although illegal approval of land requisition for personal gain or as an abuse of power is a criminal offense punishable by up to seven years in prison in the most serious cases,[23] such prosecutions depend entirely on the willingness of the local state to take action against its own officials, or on the insistence of higher levels that it do so.

The lack of effective remedies for resolving grievances related to land disputes means that many affected people end up petitioning the higher authorities for years and years about their cases, as their only hope is that the higher ups will take notice and do something. But generally, even when someone in the provincial capital or in Beijing accepts their petition papers, all that happens is that local officials are asked to look into the case. Provincial and central governments are generally unwilling to force local governments to deal with long-standing grievances, however clear the issues involved.

Conclusion

Serious violations of human rights are occurring in the context of land requisition in rural China, and these often become more extensive over time as problems of abuse of power and inadequate compensation are ignored, and people’s lives and livelihoods become increasingly precarious.

There is an urgent need for the Chinese government to review the system for requisitioning rural land, and to reform it in line with its obligations under the ICESCR and other relevant international human rights standards, particularly taking note of the recommendations of the CESCR in its review of China’s first periodic report.

Several of the human rights principles outlined above should guide any reform of law and practice. CRD believes that the principle of participation of affected people in decisions over their land would be crucial in determining whether “public interest” is really served by a specific plan, and this will not happen unless such participation is required by law. The obligation to explore alternatives to displacing people should be written into the law. The law should also establish an effective system for preventing forced evictions and ensuring the greatest possible security of land tenure. Compensation levels should be revised to reflect the reality of the impact of displacement on the livelihoods of people affected, both short term and long term. Finally, people affected by land requisition should have access to impartial and effective means of gaining redress for violations of law and human rights committed at all stages of the process of displacement.

Finally, in light of the widespread nature of the land expropriation problem in rural China, we respectfully request that either the Special Rapporteur on Adequate Housing or the Representative for the Human Rights of Internally Displaced Persons undertake a country visit to investigate and report on this deeply disturbing phenomenon in China.