Chinese local authorities and developers are forcibly evicting hundreds of thousands of homeowners and tenants who have little legal recourse. China's rapid urban development, fueled in Beijing by preparations for the 2008 Olympics, is leading to the eviction of homeowners and tenants in violation of Chinese law and international standards on the right to housing. This 45-page report details the problems many Chinese citizens face.
When developers and residents fail to reach a compensation agreement, regulations permit developers to apply for permission from the demolition and eviction department to proceed with qiangzhi chaiqian, or forced eviction.13 This term, widely used in Chinese regulations, is defined nowhere, and methods of “forced eviction” vary. Some regulations specify that demolition and eviction companies should go through special training and be informed about relevant laws.14 Others say that developers may call in the police to evict residents.15 Some developers have reportedly tried other approaches, such as, in one case, arson; in another, local officials allegedly aided a developer by shouting “Earthquake!” outside a building in the middle of the night in order to make residents flee.16
There are many reports of unidentified men evicting residents in the middle of the night. Zhang, a Chinese immigrant in the United States whose friends were forcibly evicted from their home in a Beijing compound in 2003, spoke with them often by telephone during the period leading up to and after their eviction. Zhang described what his friends said happened to them:
It started in August. My friends lived on the ground floor of the building. You know in China, ordinary people can’t own land. They got a circular saying that in one month, they had to move out. They felt [the compensation offer] was extremely unfair. There were plans to build a big shopping mall, even though the local zoning laws shouldn’t permit such a big construction.
My friends just wanted appropriate compensation. In the beginning, [developers] tried to sway their hearts. They said, “if you move, you will get good compensation.” Then after the meetings did not get anywhere, they turned to stronger methods. In the middle of the night, while they were sleeping, people came in and broke up the courtyard wall. There were lots of people living there together in this building, they had a shop, it was really dangerous, there were still people living there.
[My friends] called the emergency number the moment it happened, and the police came to investigate. But the police said, “Well, this kind of thing…”—they wouldn’t deal with it. Then the water was cut off. Eventually [my friends] moved out, they moved in with their friends. It was cold, they could have frozen to death. They were suffering, their parents were elderly, and the parents were getting ill.
The residents didn’t believe at first that something like this could happen. I tried to warn them, when I spoke to them on the phone, but they said, “no problem, no problem”—they didn’t believe me. Now they believe me! But no one cares, the government doesn’t care.17
Zhang reported that after the jailing of Shanghai lawyer Zheng Enchong, his friends feared that their international phone calls were being monitored by the government, and asked him to stop calling them.
Others in Beijing, Nanjing city, and Suzhou province have told the Chinese media that developers hired heavy equipment, usually bulldozers, to destroy homes in the middle of the night while residents were asleep inside.18 A Beijing resident reported that his home was bulldozed with possessions still inside, even while he was still arguing in the courts about the size of the house as the basis for compensation.19
There are a number of reports of threats and assaults by employees of demolition companies against residents who refuse to move. In Tianjin, residents alleged on an Internet bulletin board that they were forcibly evicted by employees of the Tianjin city Beautiful East Residential Property Development Company, who rampaged through the half-deserted building, stealing and using property of residents who were in the process of moving out.20 Others have reported that they were verbally threatened or physically attacked.21 There have been unconfirmed media reports of residents being crushed to death by bulldozers during forced demolition and eviction.22 The Tianjin evictee alleged that after residents were beaten by employees of the demolition and eviction company, police refused to investigate.23
Some residents report that these violent evictions occur without warning. More often, the final, violent confrontation between demolition crews and residents occur after prolonged, months-long disputes among residents, developers, and the city’s demolition and eviction management department over how plans are made and what the amount of compensation will be; and after arbitration and legal remedies have failed to satisfy residents.
[13] “Regulations for management of urban residential demolition and eviction,” art. 17.
[14] Dalianshi Chengshi fangwu chaiqian guanli banfa [Methods for management of urban residential demolition and eviction in Dalian city], implemented November 1, 2001, art. 12.
[15] “Methods for management of urban residential demolition and eviction in Dalian city,” art. 10.
[16] Wen Xinwen, “Tian xiaoming: ‘Tianqi’ yubao [Daybreak over the fields: ‘Weather report’], www.peacehall.com/hot/chaiqian.xhtml, December 11, 2003; “Shaanxi bufen guanyuan wei dongyuan minzhong banqian jia chen dizhen yinfa konghuang [In order to make people move, some Shaanxi officials falsely cry ‘Earthquake’ and start a panic],” www.boxun.com, November 6, 2003.
[17] Human Rights Watch telephone interview with Zhang [pseudonym], January 22, 2004.
[18] Zhu Zhongxun, “Suzhou yili chaiqian “dingfeng zuoan” shimin shenye zao yeman bangjia [Suzhou forced evictee brutally kidnapped in middle of night],” Jiangnan shibao[Jiangnan Times],December 12, 2003, news.sina.com.cn/c/2003-12-12/06531321126s. shtml; Anonymous post by Nanjing resident, “Nanjing qiangzhi chaiqian, zai si yi ren! [Nanjing forced eviction kills another person!],” November 1, 2003, www.boxun.com; “Beijing heibang yili chaiqian an fan bei pu [Beijing criminal charged for violent eviction], Ming Bao, re-posted on www.boxun.com, October 30, 2003.
[19] Wang Xiaoxia, “Baoli chaiqian anli diaocha [Investigation of violent demolition and eviction cases],” China Economic Times, November 19, 2003.
[20] Posted by “Rights of the Masses are No Small Matter”, “Fanying Tianjinshi Hedongchude yeman chaiqian wenti [Report of savage eviction problem in Hedong district, Tianjin city],” posted on Beijing Entertainment News bulletin board, www.stardaily.com.cn/liuyan/guestbook.asp?Page=4, December 12, 2003.
[21] Xie Guangfei, Chen Xiaofeng, “Chaiqian yeman xing diaocha [Investigation of the savage nature of demolition and eviction],” China Economic Times, November 5, 2003).
[22] Xie Guangfei, Chen Xiaofeng, “Investigation of the savage nature…;” “Bei yanmi fengsuo de xiaoxi: Nanjing dengfuxiang chaiqianhu Weng Biao zifen zhihou, you you liangren cansi zai chaiqian er zi zhixia [Highly classified news: Two more people die in tragic demolition and eviction after Nanjing evictee Weng Biao's self-immolation],” www.boxun.com.
[23] “Rights of the Masses are No Small Matter”, www.stardaily.com.cn/liuyan/guestbook.asp?Page=4.
One of the main sources of conflict arising during forced evictions is that residents often find out about the demolition of their residence a few days before the government expects them to move. A survey of Chinese laws and regulations on demolition and eviction shows that while some require demolition to be planned in accordance with existing plans (for example, in accordance with plans to preserve historic city areas, to protect the environment, or to develop the city), none require consultation with local residents.24 Even vast resettlement and construction projects can be planned in the absence of any community consultation. There are no requirements in Chinese law that residents be consulted or notified about such a project.
Construction projects are often implemented and residents evicted with little or no advance notice. In some extreme cases, residents return home from work to find the character chai (demolish) written on the walls of their houses, or even come home to find their house already demolished.25 Demolition and eviction regulations do contain strict requirements in terms of the permits and approvals developers must obtain from local authorities, and the time limits within which those should be applied for and issued.26 However, there are generally few or no requirements for advance notice to evictees. Some regulations require that the developer inform residents within five days of receiving government approval of demolition plans, and others require detailed information be given to residents, but they do not specify how far in advance of the demolition notice should be provided.27
Some residents allege that the information they receive regarding their eviction is intentionally misleading. According to an article in Nanfang zhoumo [Southern Weekend], residents in Jinhua city, Zhejiang, said authorities claimed in a demolition notice that they were being relocated to make way for a “green belt.” Authorities used this reason to justify low compensation for the eviction and the refusal of residents’ request that they be resettled in the same neighborhood. Evictees say they later learned that authorities were in fact building high-end private apartment blocks.28
[24] See, e.g., Liaoning sheng Chengshi fangwu chaiqian guanli banfa [Methods for the management of urban residential demolition and eviction in Liaoning province], September 29, 2002, art. 3; Nei Menggu Chengshi fangwu chaiqian guanli banfa [Methods for the management of urban residential demolition and eviction in Inner Mongolia], December 3, 2003, art. 3; Chengdushi Chengshi fangwu chaiqian guanli zhixing banfa [Methods for the implementation of the management of urban residential demolition and eviction in Chengdu city], November 1, 2001, art. 3.
[25] You Shan, “Shangfang wuxiao: Qingdao chaiqianhu Zhongnanhai jingzuo hangyi [Petitioning brings no response: Qingdao evictees stage peaceful sit-in protest at Zhongnanhai],” Radio Free Asia, November 21, 2003.
[26] “Requirements for the management of urban residential demolition and eviction.” Article 8 of the regulations states: “Residential demolition and eviction management departments and the demolishers should properly disseminate and explain [the project] to the residents in a timely manner.”
[27] “Methods for the implementation of the management of urban residential demolition and eviction in Chengdu city,” art. 9; “Methods for management of urban residential demolition and eviction in Dalian city,” art. 15.
[28] Cheng Gong, "Zhi chaiqian zhi tong (Treat the pains of demolition and eviction),” Southern Weekend, December 31, 2003.
Disputes between developers and residents often arise over low rates of compensation and poor resettlement options. Once they learn that their home will be demolished, residents generally have little option to prevent it, and instead attempt to negotiate with the development company over the amount of compensation. According to the national demolition regulations, developers must pay evictees compensation equal to the full market value of their properties,29 with an added (although unspecified) amount of compensation for business loss in the case of non-residential properties.30 Reporters have noted that in some cases developers pay compensation to the local authorities instead of to evictees.31 Some residents have alleged that municipal demolition and eviction management departments have embezzled compensations funds: in one case, a banker alleged that the developer put 8 million yuan into a demolition and eviction compensation fund managed by the municipal department. According to this allegation, the management office unilaterally lowered the amount of compensation paid to residents, and kept the remaining 960,000 yuan (about U.S.$116,000) for the departments’ own use, later investing this money in a commercial real estate project.32
Regardless of the regulations, Chinese experts also report that the amount of compensation may in some instances be unilaterally decided by the developers or the demolition companies. It may be set far below market value, with little or no account taken for loss of income in the case of properties used for family businesses.33
Sometimes the promised compensation is only partly paid or not paid at all.34 Kong, the son of a Beijing couple who were forcibly evicted, reported to Human Rights Watch that developers had been approaching his parents about demolishing their home for a year, but had been unable to convince them to sign a compensation agreement. Then, suddenly,
the demolition and eviction management department came to say they had only two days to move before forced demolition. The government department did not approach them and offer an agreement…. [My parents] didn’t get anything [as compensation], and they had no help with resettlement.35
Chinese government-run media reports have also raised concerns that, as property values rise in downtown areas and evicted residents receive compensation below market value, evictees may be unable to afford property in the area where they had been living, and may be forced to resettle in the developing suburbs where employment is difficult to find.36
[29] “The sum of the compensation money will be determined based on the location, use, construction area and other factors, and by using the appraised real estate market price of the demolished home.” Chengshi fangwu chaiqian guanli tiaoli,art. 24.
[30] “In cases where demolition and eviction of non-residential property results in a cessation of production or business, the evictor should give suitable compensation.” “Regulations for the management of urban residential demolition and eviction,” art. 33.
[31] “Jidian pingxi: Ying jiaqiang zhengdi buchangde zhengci yanjiu [Analysis: Compensation by requisitioning locations should undergo stronger policy study],” Nongmin ribao [Peasants’ Daily], September 15, 2003.
[32] Wang Xiaoxia, “Chaiqian buchangkuan bei qintun nei mu [Demolition and eviction compensation funds embezzled behind the scenes],” China Economic Times, September 24, 2003.
[33] Wang Xiaoxia, “ Chaiqian cheng raomin gongcheng, Zhuanjia jianyi tigao buchang biaozhun ” [Chaiqian has become the harassment to people, Experts suggest raising the compensation standard], China Economic Times, November 12,2003.
[34] Song Zhenyuan, Zhou Guohong, Cui Lijin, “Chaiqian zhi tong, tong che minxin [The pain of demolition and eviction severely hurts the people],” New China News Agency, November 13, 2003.
[35] Human Rights Watch telephone interview with Kong [pseudonym], December 10, 2003.
[36] A typical evictee in Nanjing complained that she couldn’t find work in the desolate resettlement area and could not afford to travel into town to work (Song Zhenyuan et. al., “The pain of demolition and eviction severely hurts the people.”).
At the heart of many residents’ complaints about the demolition and eviction process is frustration with the lack of meaningful redress. Arbitration and legal remedies, when available, are poorly implemented, and are often rife with official corruption. As Ji, a Chinese lawyer with experience defending the rights of residents in forced eviction cases, explained to Human Rights Watch: “There are two reasons for demolition and eviction: national development and individual benefit. Big corruption is a serious cause behind demolition and eviction problems.”37
Chinese regulations specify that in cases where residents and developers are unable to reach an agreement on compensation for the demolished home, residents may seek arbitration by the municipal demolition and eviction management department or bring a lawsuit against the developer.38 In practice, the arbitration system appears to be deeply flawed. Many city demolition and eviction departments are said to have conflicts of interest that would make it difficult for them to render a fair decision in a hearing between developers and residents. First, while demolition regulations forbid local demolition and eviction departments to carry out demolition and eviction themselves,39 such departments often have close connections with the companies that do the work. In these cases, authorities have little incentive to find in favor of residents trying to block demolition or to crack down on breaches of regulations by their own companies.
In addition, there have been allegations of corruption and improper financial interests within the administration of demolition and eviction. An evictee in Hunan province posted a letter on the Internet complaining that he was refused the right to negotiate compensation for his home by the demolition company. The legal representative of the company, it turned out, was both the city’s deputy mayor and the director of the city’s construction bureau. 40 As the China Economic Times observed, local authorities profit from fees associated with the issuance of permits to developers, who then also are likely to choose to hire demolition companies with official connections in order to conduct forced evictions.41
All these problems lead many who have sought and failed to find redress in the arbitration system to take their cases to court. However, those who do so, and who are able to find and afford a qualified lawyer to represent them, are likely to encounter familiar conflicts of interest in the court system. Chinese legal experts say that many courts refuse to hear cases brought by evicted urban residents.42 One resident told Human Rights Watch that even when the municipal department has clearly not followed procedures spelled out in the regulations, such as obtaining a relocation agreement signed by developer and resident, the court may still find against the resident.43 Political interests may intercede: China’s judicial structure permits local Communist Party committees to decide which cases are and are not heard by courts. In some demolition and eviction cases where there are strong official interests, Party committees may instruct judges to refuse to hear the cases.44 In others, courts simply tell plaintiffs that demolition and eviction cases are “outside of their area of responsibility.”45
In the wake of the jailing and conviction of Shanghai lawyer and tenants’ rights advocate Zheng Enchong, some residents and lawyers told Human Rights Watch that lawyers are afraid to take forced eviction cases. “My friends [who were evicted in Beijing] wanted to find policies and laws that would help them, but the police investigated and failed to find any. So they found a lawyer willing to take their case, but after Zheng Enchong, the lawyer wouldn’t dare to [represent them],” said Zhang, the friend of a Beijing family who were forcibly evicted from their home.46 Two other Chinese legal experts on demolition and eviction who spoke with Human Rights Watch on condition of anonymity after the Zheng Enchong trial expressed similar fears. One was careful to stress that unlike Zheng, he was only sharing information with Human Rights Watch that had already been published in officially approved news sources.
Should a plaintiff triumph over this system and win the case, his home is already likely to have been demolished, because China’s regulations render the judicial process irrelevant. All the national and local regulations surveyed for this report permit forced demolition to proceed even before lawsuits have been decided; that is, one cannot get a judicial injunction blocking the demolition pending resolution of the case. For instance, the national regulations state that “during a lawsuit, the implementation of demolition and eviction will not be stopped.”47 Two Beijing residents reported that the demolition department ordered the demolition of their homes, even though the local court had only authorized one of the demolitions. Both houses were destroyed anyway, and when residents protested, they were detained by police. Both later alleged they had been physically abused by the police.48
[37] Human Rights Watch interview with Ji [pseudonym], lawyer, November 11, 2003.
[38] “In cases where evictors and evictees, or evictors, evictees and tenants who have still not reached an agreement on demolition and eviction compensation and eviction; then persons involved in the matter may apply to the residential demolition and eviction management department for arbitration.” “Regulations for the management of urban residential demolition and eviction,” art. 16.
[39] “Residential demolition and eviction management departments may not act as demolishers and evictors, and may not be entrusted with demolition and eviction.” “Regulations for the management of urban residential demolition and eviction,” art. 10.
[40] Letter posted on the site of real estate lawyer Qin Bing, “Qin lushi, nihao! Women shi Liuyangde bei chaiqian hu [Hello, Lawyer Qin, we are evictees in Liuyang],” posted November 29, 2003, http://www.qinbing.com/article.asp?articleid=5253.
[41] Zhang Fan, “Chaiqian jiufen beihou you zhongda falu wenti [Serious legal questions in the background of demolition and eviction conflicts],” China Economic Times, October 22, 2003.
[42] Prof. Cheng Jie, public presentation at Columbia University, November 13, 2003; Human Rights Watch interview with Yi [pseudonym, lawyer, New York, November 11, 2003.
[43] Human Rights Watch telephone interview with Kong [pseudonym], December 20, 2003.
[44] Human Rights Watch interview with Yi [pseudonym], lawyer, New York, November 11, 2003.
[45] Prof. Cheng Jie, public presentation at Columbia University, November 13, 2003.
[46] Human Rights Watch telephone interview with Zhang [pseudonym], January 22, 2004.
[47] “Regulations for the management of urban residential demolition and eviction,” art. 16.
[48] Wang Xiaoxia, “Baoli chaiqian anli diaocha [Investigation of violent demolition and eviction cases],” China Economic Times, November 19,2003.
Much debate, at the grassroots level and in senior levels of government, has circled around China’s constitution and the degree to which it does or should protect property rights. In particular, critics have pointed to article 10, which addresses reallocation of property rights; article 13, which protects the rights of individuals to income, savings, residence, and inheritance rights; and article 39, which prohibits illegal search or entry. This popular movement ultimately has succeeded in pressing senior officials to promise to amend the constitution.
One remarkable effort to strengthen the constitution was led by retired professor Liu Jincheng in Hangzhou, himself a victim of forced evacuation. Liu organized 116 residents to sign a petition calling on Beijing officials to investigate conflicts between the constitution and Hangzhou’s demolition regulations.109 On March 7, 2003, he led a small group of Hangzhou residents in writing phrases such as “protecting constitutional law is everyone’s responsibility” on white overcoats. Wearing the overcoats, they walked to the local government compound, where two major meetings were convening. At the government compound, officials reportedly told Liu, “You may not wear this kind of clothing to petition.” Liu responded, “We are not petitioning, we’re promulgating the constitution.” Liu was subsequently arrested and remains embroiled in a series of lawsuits in Hangzhou courts.110 Other Chinese experts have raised procedural concerns about demolition regulations, arguing that they breach the constitution, the Legislation Law, the Civil Law and the Contract Law.111
[109] “Hangzhou bairen shangshu quanguo renda: Dui chaiqian tiaoli tiqi weixian shencha [One hundred Hangzhou people petition the National People’s Congress: Recommend investigation of demolition and eviction regulations for contravening the Constitution],” Falu fuwu shibao [Law Service Times], August 1, 2003.
[110] Sheng Xueyou, “Yici you zhengyide shimin ‘xuanchuan xianfa’ xingdong [A controversial instance of a city resident’s ‘Constitution promulgation’ movement],” Nanfang Zhoumo, December 4, 2003.
[111] Xie Guangfei and Wang Xiaoxia,“Rang xingzheng quanli jinkuai tuichu chaiqian lingyu [Discussion: Residential demolition and eviction disputes unceasing, remove power away from the area],” China Economic Times, October 15,2003. Zhang Fan, “Chaiqian jiufen beihou you zhongda falu wenti [Serious legal problems in the background of demolition and eviction conflicts],” China Economic Times, October 22,2003.
In response to the wave of protests and calls for change by legal experts, the Chinese government issued a flurry of circulars and statements expressing concern and promising reform. While these are generally positive signals, the proposed reforms fail to address many of the key problems at stake.
First and most significantly, in December 2003, the National People’s Congress Standing Committee approved draft constitutional amendments for consideration by the National People’s Congress in March 2004, including an amendment to article 13 to bolster existing language protecting individual property rights.112 This marks a success for the popular constitutional reform movement, and sets a positive precedent in general for Chinese movements for social change. It is an indication of the growing desire of many within China to move toward a system that respects the rule of law. As symbolism, the new amendment also signals a degree of government concern about the problems of evicted tenants.113
However, since Chinese constitutional law is not usually judiciable without implementing legislation, constitutional reforms will be of little immediate value for evicted residents. One Hangzhou official told Liu Jincheng that China’s constitution was simply “a set of principles,” while local regulations are “concrete.”114 Thus, constitutional change will not in and of itself result in actual reform. But as one foreign expert on Chinese rural politics observed, “The first step is to have broad pronouncements on a grand scale. There will be no direct impact, but it signals a direction…. Constitutional reform will change the process because it creates a greater political space for proponents [of legal reform].”115
Second, on December 9, 2003, the State Council issued a notable circular on land requisition in rural areas that criticized the use of force in land expropriation and that criticized the state’s participation in expropriation for commercial use. Among its conclusions, the State Council said, “We must establish a hearing system [to determine compensation standards] as well as a judicial and arbitrary [sic, probably “arbitration”] system for land requisition disputes.”116 On December 30, the national Ministry of Construction issued new regulations on administrative rulings that permit forced eviction. According to the new regulations, Demolition and Eviction Management departments may hold hearings before forced evictions are approved.117
Third, the many reports of violent incidents in the process of forced evictions has led the government to issue statements condemning excesses in the implementation of forced eviction. On September 18, 2003, an official at the national Ministry of Construction warned work units against violating demolition and eviction laws and policies.119 On September 30, Beijing’s Department of Land Management issued a circular calling for “civilized” demolition and eviction, and published a telephone hotline number that residents could call to file complaints.120 On January 5, 2004, the national Ministry of Construction announced that residents should be given fifteen days’ notice before forced eviction.121
There has also been at least one case where construction workers were held liable for a suicide protest. On November 7, Beijing municipal court held a government work unit responsible for the suicide of a resident during construction near his home. The man drank poison in front of construction workers to protest the construction, and instead of calling for medical help, the workers simply walked away and left him. The court found that the construction was undertaken without the proper permits and that construction workers had failed to attempt to save the man. The court charged the work unit to pay compensation to the family, including the cost of his funeral.122
While all these are steps forward, most of these reforms do not adequately address the crucial problems of implementation and enforcement posed by the weak arbitration and judicial systems. China must engage in much more difficult reforms, particularly improving the administration of justice, in order to address demolition and eviction issues effectively.
[112] Congressional Executive Committee on China, “Constitutional Amendments to be Considered by the National People’s Congress in March 2004,” January 27, 2004.
[113] “China to make private property a right,” AP, March 2, 2004.
[114] “Hangzhou bairen shangshu quanguo renda: Dui chaiqian tiaoli tiqi weixian shencha [One hundred Hangzhou people petition the National People’s Congress: Recommend investigation of demolition and eviction regulations for contravening the Constitution],” Law Service Times, August 1, 2003.
[115] Human Rights Watch telephone interview with Albert B. [pseudonym], December 15, 2003.
[116] BBC Monitoring Asia Pacific, December 9, 2003.
[117] Chengshi fangwu chaiqian xingzheng caijue gongzuo guicheng [Regulations for urban residential demolition and eviction administrative arbitration work], no. 252, issued December 30, 2003, to be implemented March 1, 2004.
[118] “Pinglun: Fangzhi chaiqian jiufen bu duan, rang quanli tuichu chaiqian lingyu [Discussion: Residential demolition and eviction disputes unceasing, remove power away from the area],” Xinjing Bao, posted on www.sina.com.cn, January 2, 2004.
[119] “Jianshebu guanyuan chenyao yansu cha chu weifa weigui chaiqian pinggu danwei [Ministry of Construction official announces it will seriously investigate local illegal and counter-policy demolition and eviction, and will evaluate work units],” China News, September 18, 2003, www.chinanews.com.cn/n/2003-09-18/26/348068.html.
[120] “Yeman chaiqian yao zhuiyan falu ziren, Beijing gongshi jubao dianhua [Savage demolition and eviction should study legal responsibility, Beijing publishes telephone number for reports],” Beijing Entertainment News, September 30, 2003.
[121] “Jianshebu: Qiangzhi chaiqian ying tiqian shiwu ri tongzhi bei chaiqianren [Construction bureau: Forced evictions should be announced fifteen days in advance to evictees],” New China News Agency, January 5, 2004.
[122] Niu Aimin, “Beijing qiangjian gongci zhi jumin zisha [Forced construction of public toilet in Beijing leads to resident’s suicide],” New China News Agency, November 8, 2003.
Recommendations to the Chinese Government:
Hold officials accountable for failure to enforce existing regulations that protect the interests of evictees. Establish an office at the national level with ombudsmen at the provincial levels to register and investigate complaints of abuses relating to forced evictions. These offices should be independent of the demolition and eviction management departments, and should be empowered to negotiate resolutions between developers, management departments and residents, and when necessary, to file lawsuits.
Release Zheng Enchong, Xu Yonghai, and all other jailed tenants’ rights advocates. The Chinese government should immediately release from detention Zheng Enchong, Xu Yonghai, andother tenants’ rights advocates who are being detained for exercising their rights to freedom of expression, association, and assembly. The Chinese government should be listening to those who have struggled with the practical obstacles to due process, and should be requesting their recommendations for policy reform. The arbitrary arrest and detention of Zheng Enchong and other tenants’ rights advocates has deterred lawyers who might handle property cases and others providing assistance to tenants at risk of eviction.
Uphold the rights to freedom of expression, assembly, and association. The government must recognize the rights of tenants and their advocates to speak out publicly on evictions and demolitions and other issues of concern. Article 35 of China’s constitution guarantees the right to freedom of expression, association and assembly. As a member of the United Nations, China has promised to abide by the Universal Declaration of Human Rights, proclaimed by the U.N. General Assembly in 1948, which protects rights to free expression, assembly, and association.123 The provisions of the Universal Declaration are widely accepted as customary international law. China is a signatory to the International Covenant on Civil and Political Rights, which guarantees the rights to freedom of expression (article 19), peaceful assembly (article 21), and association with others (article 22).
Require community consultation as part of city planning. While mass resettlement poses different problems than neighborhood demolition and eviction, policies that have been developed for the former could be used for the latter. For instance, international financial institutions that fund or fundraise for projects in China require that project officials consult with affected communities. The World Bank’s policy on involuntary resettlement requires that in projects requiring eviction, “Displaced persons should be meaningfully consulted and should have opportunities to participate in planning and implementing resettlement programs.”124 It also requires that displaced persons be “consulted on, offered choices among, and provided with technically and economically feasible resettlement alternatives.”125 China should establish a requirement for community consultation in its national and local demolition and eviction regulations.
Require that tenants be given adequate advance notice of eviction. The national Regulations for the Management of Urban Residence Demolition and Eviction should be revised to include a requirement that municipal demolition and eviction management departments give advance notice to evictees. This period should include enough time for the negotiation of compensation agreements and for resettlement. Local regulations in cities and provinces should be similarly revised to include the same provisions.
Have government officials and police on site to monitor forced eviction. In cases where courts find that forced eviction is permissible, the General Comment on the right to housing of article 11 of the ICESCR recommends that government officials be present to monitor the process of forced eviction. Chinese regulations should be revised to meet this international standard. In cases where violent incidents occur, the authorities should investigate and prosecute those responsible.
Revise regulations that permit demolitions during pending lawsuits. Chinese national and local regulations should be revised to eliminate the provisions permitting demolitions of homes even while lawsuits are pending.
Create a functioning arbitration system. Chinese legal experts have made a number of recommendations for the improvement of the existing arbitration procedures in urban and rural areas. This is one area in which there have been some efforts by the government to respond to protests and calls for reform. Until the state establishes more effective mechanisms for investigation and elimination of corruption in local governments, the arbitration of demolition and eviction disputes should be put in the hands of an unbiased third party, such as an ombudsman or non-governmental organization.
Expand pilot legal aid projects. The ICESCR General Comment on housing rights recommends the provision of legal aid to tenants who wish to file lawsuits to prevent their forced eviction.126 While small legal aid clinics exist in most areas, legal aid programs are not available to most Chinese citizens who need them.127 China should expand its legal aid programs to guarantee that legal representation is made available to those who cannot afford it.
Strengthen judicial independence in China’s court system. Chinese lawmakers should enact provisions to strengthen weak local courts, strengthen judicial independence and eliminate the direct and indirect intervention of the Communist Party in the day-to-day workings of the judiciary. To enhance judicial independence at the local level, funding and personnel for local courts should be funneled through the People’s Court system, independent of local government agencies.
Recommendations to international financial institutions, developers, construction companies, architectural firms, and others involved in building projects in China:
Show due diligence in ensuring that local authorities protect due process rights for evictees. The World Bank Operational Policy on Involuntary Resettlement aims to ensure that involuntary resettlement related to Bank projects is carried out with due process, adequate compensation and with the full participation and consideration of the affected people. This policy should be used as a baseline, though lenders and businesses should take additional steps to ensure that analysis and evaluation is done by monitors who are truly independent of the government. In addition, international investors and businesses involved in construction projects in China should require that local authorities provide advanced notice to residents of eviction, monitor the process of forced evictions, avoid use of force, and establish functional arbitration and judicial procedures for residents who refuse to relocate. They should monitor and report on compliance with these requirements.
Businesses should conduct a risk analysis of forced evictions in target project areas, and develop policies to prevent abuses. Businesses should conduct an analysis of the process of forced evictions in project areas that includes an examination of persons currently living in the planned building site, and the background and prior conduct of contractors and the local development and eviction management department. Based on this analysis, they should develop policies that will minimize negative impact on residents.
As part of working agreements with Chinese partners, press for the reform of national and local demolition and eviction regulations. Regulations should be reformed to include basic due process protections for evicted residents, and to eliminate provisions that permit demolition during pending lawsuits.
Recommendations to the United Nations:
The U.N. Special Rapporteur on Adequate Housing should write to the Chinese government raising concerns about forced eviction violations, and should request an invitation to conduct a mission to China.
The U.N. Special Rapporteur on Human Rights Defenders should write to the Chinese government calling for the release of Zheng Enchong.
The Committee on Economic, Social and Cultural Rights should raise questions about forced eviction violations in relation to China’s first report to the Committee, which was submitted in 2003.
This report was researched and written by Sara Meg Davis, researcher with the Asia Division of Human Rights Watch, and Lin Hai [pseudonym], a consultant. Sam Zia-Zarifi, deputy director of the Asia Division; Joseph Saunders, deputy program director; and Jim Ross, general counsel, edited the report. Ami Evangelista, Elizabeth Weiss, Andrea Holley, Veronica Matushaj, Fitzroy Hepkins, and Jose Martinez provided production assistance. Arvind Ganesan and Rory Mungoven gave useful input at early stages of the project. Human Rights Watch gratefully acknowledges the input and assistance of Susan Ellsworth, Keith Hand, Annie Hoban, Steve Rasin, Brian Schwarzwalder, and other colleagues who must remain anonymous in China.
Human Rights Watch
Asia Division
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The staff includes Kenneth Roth, executive director; Carroll Bogert, associate director; Michele Alexander, development director; Barbara Guglielmo, finance director; Lotte Leicht, Brussels office director; Steve Crawshaw, London office director; Maria Pignataro Nielsen, human resources director; Iain Levine, program director; Wilder Tayler, legal and policy director; and Joanna Weschler, United Nations representative.
Its Asia division was established in 1985 to monitor and promote the observance of internationally recognized human rights in Asia. Brad Adams is executive director; Saman Zia-Zarifi is deputy director; Veena Siddharth is advocacy director; Sara Colm and Mickey Spiegel are senior researchers; Sara Meg Davis, Meenakshi Ganguly, Ali Dayan Hasan, Charmain Mohamed, John Sifton, and Tejshree Thapa are researchers; Thomas Kellogg is Orville Schell Fellow;Liz Weiss is coordinator; and Ami Evangelista is associate. Joanne Leedom-Ackerman is chairperson of the advisory committee.
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[123] Universal Declaration of Human Rights, adopted and proclaimed by United Nations General Assembly resolution 217 A (III) on December 10, 1948.
[124] World Bank Operational Policy on Involuntary Resettlement OP 4.12 Involuntary Resettlement, December 2001, para. 2(b).
[125] World Bank Operational Policy on Involuntary Resettlement OP 4.12 Involuntary Resettlement, December 2001, para. 6 (a) (ii).
[126] CESCR General Comment 7, “The right to adequate housing (art. 11.1 of the Covenant): forced evictions,” Sixteenth session, 1997, para. 15.
[127] “Falu yuanzhu zai zhongguo [Legal aid in China],” Southern Weekend, November 13, 2003.