III. Applicable Legal Standards

International Standards

The Right to Property and Security of Tenure

The right to property and security of tenure is widely recognized under international law. The Universal Declaration of Human Rights, which is broadly acknowledged as a statement of customary international law, states that “[e]veryone has the right to own property alone as well as in association with others,” and that “[n]o one shall be arbitrarily deprived of his property.”[69]

The United Nations Commission on Human Rights further affirmed in 1993 that “the practice of forced eviction constitutes a gross violation of human rights,” and urged governments to “undertake immediate measures, at all levels, aimed at eliminating the practice of forced eviction” and to “confer legal security of tenure on all persons currently threatened with forced eviction.”[70]

As detailed here, governments are nonetheless generally entitled to expropriate land for public purposes, if done in conformity with the provisions of international human rights law, including public participation, due process, and adequate compensation.[71] In other words, respect for international human rights law does not prohibit development or modernization projects that entail displacement, but imposes conditions and procedural limits on it.

Forced Evictions and the Right to Adequate Housing

The right to procedural protections against forced or compelled eviction derives from the right to adequate housing as provided by the International Covenant on Economic, Social and Cultural Rights (ICECSR), to which China is a state party.[72] Article 11 of the covenant sets forth that “States Parties to the present Covenant recognize the right of everyone to an adequate standard of living […] including adequate […] housing.”

The UN Committee on Economic, Social and Cultural Rights, established to oversee compliance of state parties with the ICECSR, has defined forced evictions as “the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”[73] Physical force does not have to be used in a forced eviction.

The committee has stated that the prohibition on forced evictions does not, however, apply to “evictions carried out by force in accordance with the law and in conformity with the provisions of the International Covenants on Human Rights.” It has stressed that “instances of forced eviction are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law.”[74]

The indivisibility of economic, social and cultural rights from civil and political rights provides the backdrop for distinguishing unjustified instances of eviction from those that can be considered lawful in human rights terms.

The UN Committee on Economic, Social and Cultural Rights has emphasized that for evictions to be lawful under the Covenant, they must be “solely for the purpose of promoting the general welfare in a democratic society[75] and carried out “in strict compliance with the relevant provisions of international human rights law and in accordance with general principles of reasonableness and proportionality.”[76]

The committee noted that as a way to minimize the need for force, “all feasible alternatives” to eviction must have been “explored.” This exploration, “particularly in cases involving large groups,” must have been conducted “in consultation with affected persons.”[77] Should the decision to evict stand, it is important that “legal remedies or procedures should be provided to those who are affected by eviction orders,”[78] and that “individuals concerned have a right to adequate compensation for any property, both personal and real, which is affected.”[79]

The committee in General Comment 7 further elaborated on the procedural and due process protections derived from general principles of human rights law that must be applied in any situation of forced eviction, including:

• An opportunity for genuine consultation with those affected;
• Adequate and reasonable notice for all affected persons prior to the scheduled date of eviction;
• Information on the proposed evictions and where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected;
• Especially where groups of people are involved, government officials or their representatives to be present during any eviction;
• All persons carrying out the eviction to be properly identified;
• Evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise;
• Provision of legal remedies; and
• Provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.[80]

Finally, evictions “must not render persons homeless or vulnerable to the violation of other human rights.”[81]

Additional Standards Regarding Development-Based Forced Evictions

Recognition that most forced evictions around the world are carried out in the name of development has led to the concept of “development-based evictions,” especially as many governments invoke the “right to development” as a justification for eviction programs.[82]

The 1993 Vienna Declaration and Plan of Action, endorsed by the UN General Assembly and in which China participated, had already provided that while development facilitates the enjoyment of all human rights, “the lack of development may not be invoked to justify the abridgment of internationally recognized human rights.”[83]

The UN Office of the High Commissioner on Human Rights and the UN special rapporteur on the right to adequate housing have subsequently offered additional prescriptions that clarify state obligations in complying with human rights standards when forcibly removing populations due to large scale development projects.[84]

Although not yet formally adopted by states, the Comprehensive Guidelines constitute an important framework for protecting individuals and communities against human rights violations arising from forced evictions, and reflect and detail the principles contained in General Comments Nos. 4 and 7 referred to above.

The UN Comprehensive Human Rights Guidelines on Development-Based Displacement,[85] adopted in 1997, mandate, inter alia:

• The obligation to expropriate only as a last resort;
• The obligation to explore all possible alternatives; and
• The obligation to provide effective legal remedies, including a fair hearing before a competent, impartial, and independent court or tribunal, legal counsel, and where necessary, sufficient legal aid.

The guidelines from the special rapporteur mandate that governments:

• Lay down stringent criteria under which displacement can occur in “exceptional circumstances,” with “full justification” and procedural guarantees;[86]
• Enumerate detailed steps to be taken by states to protect human rights prior to, during, and after evictions;[87]
• Call for comprehensive “eviction-impact assessments” to be carried out prior to displacement;[88]
• Call for provision of compensation, restitution, and adequate rehabilitation consistent with human rights standards[89]; and
• Establish a “right to resettle” consistent with the right to adequate housing for displaced communities living in adverse conditions.[90]

A number of international financing organizations, such as the World Bank[91] and the Asian Development Bank,[92] have also developed standards for the financing of projects causing relocation. These standards currently fall short of international human rights law.[93]

In July 2000 the Chinese government withdrew its request for World Bank support for a project that would have led to the resettlement of 58,000 mostly ethnic Chinese farmers in a traditionally Tibetan in Qinghai province. [94] To Human Rights Watch’s knowledge, neither organization was involved in financing relocation programs on the Tibetan plateau as of 2011.

Non-Discrimination Guarantees for National Minority Groups

The protection of minorities is a core element of the international human rights framework, with the principle of non-discrimination at its core.[95] The International Convention on the Elimination of All Forms of Racial Discrimination of 1965 (ICERD) states that, “States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law,” notably in the enjoyment of the following rights: 

• The right to equal treatment before the tribunals and all other organs administering justice;
• Political rights, in particular the right to participate in elections—to vote and to stand for election—on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;
• Other civil rights, in particular: the right to freedom of thought, conscience, and religion; the right to freedom of opinion and expression; the right to freedom of peaceful assembly and association; and
• Economic, social and cultural rights, in particular, the right to housing.

Indigenous Rights

Chinadefines itself as a “unitary multi-national state” and does not consider Tibetans or other nationality or ethnic minorities as indigenous people.[96] However, while it has not adopted an official definition of indigenous peoples, the UN and its specialized agencies consider self-identification as a fundamental criterion for indigenous status.

The rights of indigenous peoples derive from several international human rights instruments to which China is a party.[97] There are specific references to indigenous peoples in the Convention on the Rights of the Child and in the ICESCR. In its general recommendation No. 23 (1997), the Committee on the Elimination of Racial Discrimination has called on States parties to recognize and protect the rights of indigenous peoples, “to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories.”[98]

The instrument most applicable to indigenous populations with respect to relocation is the UN Declaration on the Rights of Indigenous Peoples, which was adopted by the UN General Assembly in 2007 after many years of negotiation.[99] China was one of the states that voted for the declaration. Under the declaration, states are urged to provide effective mechanisms for prevention of, and redress for, any action that has the effect of dispossessing indigenous peoples of their lands, territories, or resources; any form of forced population transfer that has the effect of violating or undermining any of their rights; and any form of forced assimilation or integration by other ways of life imposed on them by legislative, administrative, or other measures.[100]

The declaration also provides that indigenous peoples shall not be forcibly removed from their lands or territories. It states that no relocation shall take place without the free, prior, and informed consent of the indigenous peoples concerned, and only after agreement on just and fair compensation and, where possible, with the option of return.[101]

Some Tibetans do not want to be identified under this label because they see it as antithetical to the cause of Tibetan national independence, while some others see it as compatible with the position of the Dalai Lama and the Tibetan government in exile that Tibet only seeks autonomy within China, not independence.

General Human Rights Safeguards

China has ratified over 20 human rights treaties, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the Convention on the Rights of the Child (CRC) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). China has signed but has yet to ratify the International Covenant on Civil and Political Rights (ICCPR), but as a signatory it is obliged under the Vienna Convention on the Law of Treaties “to refrain from acts which would defeat the object and purpose” of the treaty.

These international treaties set out fundamental rights to which all persons are due, including the right to freedom of opinion and expression; the right to freedom of peaceful assembly and association; as well as freedom from arbitrary arrest, torture, and racial discrimination. Under international law, states also have an obligation to investigate grave violations of human rights and to ensure that victims of abuses have an effective remedy and that persons claiming such a remedy shall have their rights determined by competent judicial, administrative, or legislative authorities.

Domestic Standards

Property Rights and Land Tenure Systems

Under Chinese law, rural land is not privately owned. Instead, it is the property of the “collective.”[102] Village committee officials exercise, in the collective’s name, effective control of land and land use rights.[103] They contract out collective land to its members[104] and have authority to decide on disputes regarding ownership or the right to use land.[105] The most prevalent tenure form, the household responsibility contract, grants use rights for fixed periods of time (generally 70 years), but does not permit the right to sell, transfer or inherit. In practice, land in most villages can be divided into two types: privately managed plots (ziliudi) (contracted-out to households) and collectively controlled land (jitidi).

Turning collective land into state land, as well as the transfer of use rights from agricultural to industrial, business, or tourism, is lucrative and has long been one of the main sources of revenue for local governments.[106] Abuses of power, illegal land seizures, and corruption are recognized as prevalent problems countrywide.[107]

Procedural Protections Against Evictions

China’s Constitution was revised in 2004 to stipulate that the right to “lawful private property is inviolable” but that “[t]he State may, in the public interest and in accordance with law, expropriate or requisition private property for its use and shall make compensation for the private property expropriated or requisitioned.”[108] These guarantees were incorporated in the Property Rights Law, which was adopted on March 16, 2007, and came into effect on October 1, 2007.

The Property Rights Law provides protection of the right to property,[109] including housing and means of livelihood.[110] While it makes provision for expropriation of property and houses in the “public interest,” such expropriation must comply with procedures “prescribed by the relevant law.” The law states that “relocation compensation shall be paid under the law, and the lawful rights and interests of the person subject to expropriation shall be safeguarded; where an individual's dwelling unit is expropriated, the dwelling condition of the person subject to expropriation shall also be assured.”[111]

The Land Administration Law spells out the processes by which property can be requisitioned and compensation should be paid, including the amount of compensation.[112] The State may requisition land owned by collectives according to law for public interest purposes,[113] such as “urban infrastructure projects or public welfare undertakings; major energy, communications, water conservancy and other infrastructure projects supported by the State; and other purposes as provided for by laws or administrative regulations.”[114]

The law requires that those who are to be moved off their land or are to have their property confiscated must be consulted and, if they are moved, compensated for their losses.[115] Articles 41 and 111 of China's constitution guarantee the right to consultation, as does the 1989 Administrative Procedure Law.[116]

The Grassland Law

The Grassland Law governs the administration of grasslands, which make up a large portion of the Tibetan plateau.[117] The law was revised in 2002 to explicitly provide the government the right to radically limit herds and resettle people so as to “protect, develop and make rational use of grasslands.”[118] The law provides that grasslands are “owned by the State, with the exception of the grasslands owned by collectives,” and that the State Council “shall exercise the right of such ownership on behalf of the State.”[119]

The State Council exercises direct authority over the administration and development of grasslands under a system of “unified planning.”[120] The law provides that when grasslands owned by collectives are to be requisitioned for construction, “compensation shall be made to the said collectives in accordance with the Land Administration Law.”[121]

The sweeping powers over grasslands granted to the central government by this law stand in contradiction with China’s Regional Ethnic Autonomous Law (hereafter, “the Autonomy Law”), which provides that:

Organs of self-government of autonomous areas […] determine, in accordance with legal provisions, the right to own and use pastures and forests within their autonomous area. They manage and protect local natural resources by law. They have the priority, in accordance with legal provisions and the unified plans of the state, in developing and using the natural resources that are available to them.[122]

However, a close reading of the Autonomy Law shows that many of the provisions guaranteeing the “exercise of power of autonomy” were negated by other provisions of the law stressing “unified state leadership” and the operation of autonomy “under the guidance of state plans.”[123]

National Human Rights Action Plan Pledges

In addition to formal protections in law, the Chinese government has made additional pledges in recent years regarding forced evictions. In April 2009 the Chinese government issued the National Human Rights Action Plan 2009-2010 (NHRAP), which stated that the government will take further measures to “guarantee farmers’ land rights [...] protect farmers’ right to own and use their own land and obtain profits from the land, and punish any actions violating the regulations on land management,” as well as to “protect the rights of ethnic minorities.”[124] The NHRAP did not have the force of law, but stated that, “Governments and government departments at all levels shall make the action plan part of their responsibilities, and proactively implement it.”[125]

However, by the government’s own admission the NHRAP fell short of its objectives in this area.[126] Reporting on the plan’s completion in July 2011, the vice minister of the State Council Information Office recognized that social conflicts spawned by “illegal land requisitioning” were increasing.[127] In February 2012, Premier Wen Jiabao publicly acknowledged that “arbitrary seizure of farmers land” remained a “widespread problem” sparking numerous mass protests.[128]

In June 2012, the government published a secondplan, the National Human Rights Action Plan of Chinafor 2012-2015, that states that “[f]urther efforts will be made to ensure ethnic minorities enjoy equal economic, political, social and cultural rights.”[129]