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.

VI.  ACKNOWLEDGEMENTS

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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We investigate and expose human rights violations and hold abusers accountable.

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We enlist the public and the international community to support the cause of human rights for all.

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.