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Article Excerpt
I. INTRODUCTION
II. PROPERTY RIGHTS IN CHINA A. Development of "Modern" Property Law B. Major Changes Since 1978 III. CHINESE GOVERNMENT TAKING LAND IN PREPARATION FOR THE 2008 OLYMPICS AND CITIZENS' REACTIONS A. Chinese Citizens React in Protest to Land Grab B. The Process and Its Problems 1. The Current Procedure 2. Problems with the Current Procedure IV. PROPERTY RIGHTS UNDER INTERNATIONAL LAW A. Relevant International Agreements Containing Basic Property Rights that Bind China 1. Authority for Binding Signatories 2. The Universal Declaration of Human Rights 3. The ICESCR and ICCPR B. Chinese Land Reclamation Procedure and Practice Analyzed in Light of International Obligations 1. Right to Own Property 2. Right to Choose Residence and to Adequate Housing. 3. Depriving People of Their Own Means of Subsistence 4. Arbitrary Interference with Property 5. Unlawful Interference with Property C. Suggested Solutions 1. Ability to Effectively Contest Validity of Governmental Takings 2. Fair Compensation and the Ability to Effectively Contest the Amount 3. Enforcement V. CONCLUSION
I. INTRODUCTION
The lone Chinese student halting an advancing column of tanks during the 1989 Tiananmen Square Protests (1) is a familiar image in the international conscience. (2) Protests continue in China (3) today; however, the snapshot portraying the current situation might include a man standing in front of a bulldozer poised to destroy his home (4) instead of a tank sent to suppress a demonstration. Rather than denouncing China's political corruption and inflation, (5) recent protests decry forced evictions and demolition related to the 2008 Olympic Games. (6)
The Olympic Committee's decision to select Beijing as the host for the 2008 Games could arguably reflect China's advancement in civil liberties. (7) In reality however, the decision has spurred a host of human rights violations. (8) Since accepting the Beijing bid, the Chinese government has destroyed many Chinese citizens' homes in order to make way for the upcoming Games. (9) These citizens have received little or no compensation and have had no effective way to contest the government's decision. (10) Because the Olympic Movement (11) has committed itself to high ideals (12) and the promotion of peace through competitive sport for more than a century, (13) its endorsement of Beijing, China is inapposite to its stated goals and offensive to human rights activism.
The International Olympic Committee (IOC) is the supreme authority of the Olympic Movement and the body responsible for selecting which cities will host upcoming Olympic Games. (14) In 2001, fifty-six of the one hundred and five IOC members voted for Beijing. (15) Before casting their votes, IOC members reviewed a report written by the IOC Evaluation Commission, a subgroup of the Movement. (16) The Evaluation Commission is comprised of experts who visit and report on cities that pass the initial selection phase. The Commission assesses each city's ability to meet the basic technical requirements necessary to successfully host the Olympics. (17) Although the Commission is limited to evaluating technical capabilities, in its 2008 report it declared that "it is impossible to ignore the public debate on political issues such as human rights...." (18) The Commission said it would not address the human rights issue in detail other than to acknowledge its existence, but recommended IOC members reach their own conclusions regarding applicant countries' human rights abuses. (19)
The IOC did reach a conclusion--Beijing won the 2008 Olympic bid. Such a decision implies the IOC members acknowledged the existence of human rights violations in China and ignored them. Furthermore, they apparently did not consider that an Olympic bid victory for Beijing might in fact increase these practices. If the IOC did recognize this possibility, it chose again to ignore the warning signs, resulting in more egregious consequences.
Olympism claims to utilize sport to symbolize the "harmonious development of man, with a view to promoting a peaceful society concerned with the preservation of human dignity." (20) Additionally, the Fundamental Principles of Olympism, as stated in the Olympic Charter, explain "[o]lympism seeks to create a way of life based on the joy of effort, the educational value of good example[,] and respect for universal fundamental ethical principles." (21) However, China's blatant flouting of fundamental property rights that are guaranteed in several multinational human rights instruments (22) does nothing to "promot[e] a peaceful society concerned with the preservation of human dignity," and is a far cry from respecting "universal fundamental ethical principles." (23) By choosing Beijing as the 2008 host to the Olympic Games, the international community is ignoring, if not encouraging, egregious violations of international law.
This Comment highlights the property rights violations perpetrated in gearing up for the 2008 Olympic Games by the People's Republic of China upon its citizens despite its international obligations to the contrary. Part I introduces the Olympic Movement's mission and explains how host cities are chosen. Part II briefly explores the complex historical development of property rights in China. Part III details land reclamation procedures under the current property regime and "illegal" takings associated with Olympic construction. Part IV outlines the international instruments containing property rights protection to which China is bound. Next, current land reclamation practices, specifically those associated with the upcoming Olympic Games, are analyzed in light of these obligations. Finally, specific solutions are offered to curb these international law violations, bringing the Olympic ideal back to the 2008 Games.
II. PROPERTY RIGHTS IN CHINA
During the twentieth century property in China vacillated between complete national ownership and control, and local, communal ownership. Dramatic changes in the Chinese property law landscape coincided with major economic reforms and constitutional amendments beginning in the last quarter of the century.
A. Development of "Modern" Property Law
China first implemented Western property law concepts (24) in the 1930s, (25) but the laws did not have any real effect and were abolished by the Chinese Communist Party (CCP) during the 1949 Communist Revolution. (26) Immediately thereafter, China redistributed land to peasants, thus providing them limited ownership rights. (27) However, the government began collectivization (28) of rural land in 1955, again destroying any individual land ownership rights. (29) Collectivization culminated with the Great Leap Forward (30) in 1958 when the State combined the collectives into larger communes (31) of approximately 4,000 families. (32) Urban land, on the other hand, was nationalized completely. (33) Individuals in both rural areas and cities owned little more than their clothes. (34)
B. Major Changes Since 1978
Economic reforms beginning in 1978 (35) changed the property law landscape in China. (36) The government dismantled the commune system and began contracting out farming to peasants, consequently creating a right of land-use. (37) In 1982 China adopted a new constitution, (38) which explicitly declared the State owned all urban land, whereas collectives owned all rural land. (39) Astonishing to some, the Constitution expressly acknowledged the State would protect the "right of citizens to own ... houses and other lawful property" and the right to inherit private property. (40)
China reiterated its constitutional commitment to its citizens' property rights several times during the 1980s. (41) In 1986, it adopted the General Principles of Civil Law of the People's Republic of China. (42) This law enumerated citizens' personal property rights, including the right to possess lawful income, a house, savings, articles used in daily life, cultural objects, and books. (43) In 1986 the P.R.C. adopted the Land Administration Law of China (LALC). (44) This law provided, "The ownership and use right of land registered according to law shall be protected by law and no unit or individual is eligible to infringe upon it." (45) LALC also stated, "Disputes arising from the ownership or use right of land shall be settled through consultation among parties concerned; should consultation fail[], the disputes should be handled by [the] people's government[]." (46)
Finally in 1988, China amended its constitution to allow individuals the right to retain and transfer land-use rights, although the State maintained actual ownership. (47) Article 10 of the 1988 constitution, as amended, specifically states:
Land in the cities is owned by the state. Land in the rural and suburban areas is owned by collectives.... The state may, in the public interest, requisition land for its use in accordance with the law. The rights to the use of land may be transferred according to law. (48)
Article 11 of the 1988 amendment also added the protection of "economic" land ownership. (49) Article 13 further protects citizens' right to own and inherit private property. (50) A strict reading of Article 13 suggests private property as used here does not include land, as Article 10 exclusively governs land ownership. (51)
The most recent governmental action regarding property rights occurred on March 14, 2004, with the passage of three property-related constitutional amendments. (52) First, the amendments made all legal forms of private property explicitly inviolable. (53) Second, they encouraged, supported, and protected the rights of nonpublic sectors. (54) Third, the amendments subdivided expropriation into takings with ownership change and use without ownership change--both of which require the State to compensate citizens. (55)
Because of these numerous changes, land suddenly had value in China, and a real estate market emerged. (56) However, the economic and real estate boom of the 1990s created new problems, such as where to house the rapidly growing population and business sectors. (57) The government began taking (58) large areas of vital agricultural land for housing construction (59) and evicting urbanites to make way for development. (60) Beijing's victory in the 2008 Olympic bid "has spurred accelerated demolition, eviction[,] and construction in the city." (61)
III. CHINESE GOVERNMENT TAKING LAND IN PREPARATION FOR THE 2008 OLYMPICS AND CITIZENS' REACTIONS
The recent protests by evicted Chinese residents have brought Chinese land reclamation practices into the international spotlight and under the scrutinizing eyes of numerous media outlets (62) and human rights watch groups. (63) Much of the demolition and eviction in Beijing today relates to China's preparations for the 2008 Games. (64)
A. Chinese Citizens React in Protest to Land Grab
The Geneva-based Centre on Housing Rights and Evictions (COHRE) (65) handed China one of its not-so-prestigious "Housing Rights Violator Awards" in 2005. (66) The Centre's executive director Scott Leckie stated, "The Beijing government has admitted [to] a minimum of 400,000 people [being] moved to create space to build various Olympic venues...." (67) COHER also reports the "800 year old Jiaodoku neighbourhood was flattened in July 2003, destroying over 2,000 households, to make way for Olympics-related construction." (68)
These evicted residents, left with few avenues of redress, have increasingly taken to the streets in protest--protests the government has repeatedly attempted to suppress. (69) Beijing police prevented a demonstration by evictees over low compensation by blocking off streets surrounding the central government compound in July 2003. (70) Beijing authorities foiled another protest that same month by Guan Zengli, a housing rights organizer who had previously led a "protest by about 50 people in front of the Ministry of Land and Resources." (71) On September 15, 2003 Zhu Qingliang poured gasoline over his body and lit himself on fire in protest against poor compensation for his demolished home. (72)
Another widely reported protest occurred on October 1, 2003. Beijing resident Ye Guoqiang jumped from the Jinshui Bridge in an attempted suicide to protest how the Chinese government forcefully evicted him from his home to make way for Olympic construction. (73) He survived the fall but was jailed for illegally demonstrating. (74) Apparently Guoqiang was not alone; in November of 2003, over 1,200 Beijing residents signed a petition on the Internet in support of his actions. (75) Seven other protesters were charged with causing social unrest in October 2003, and two more protesters were detained. (76) In 2004, another protestor, Ye Guozhu was detained...
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