Olympic ideal demolished: how forced evictions in China related to the 2008 Olympic Games are violating international law.

The Chinese governmental takings process and implementation outlined above, while an improvement, still falls short of China's treaty obligations. The most obvious infirmity is the Universal Declaration of Human Rights' promise that everyone has a right to own property as an individual. (169) All land in China is still owned either by the State in urban areas or collectives in rural areas. (170) "Private property" is an anomaly, and none of China's citizens "own" anything remotely similar to a freehold title (171) to the land upon which they live and work. Suggesting the privatization of property rights is futile, as it runs completely afoul of the socialist ideal upon which the Chinese State is built. However, a State does not have to be based upon a private property system to successfully comply with the human right referred to in Article 17. (172)

"Ownership" is not an absolute right even in Western cultures; rather, it is better understood as a bundle of rights. (173) Thus, China could continue giving more land-use rights and protections against interferences with the use of its citizens' land, thereby increasing the number of "rights" in the bundle. An increase in land-use rights and actual protection of those rights would place China in step with the spirit of the Universal Declaration of Human Rights. The recent constitutional amendments seem to be an attempt at alignment; however, without effective enforcement, the amendments are meaningless. Continued protests throughout China leave the new amendment's promises moot. (174)

Despite the recent positive changes in China's constitution, the ever-increasing forced evictions and demolition in China are clear violations of the property protections in the Universal Declaration of Human Rights, ICECSR, and ICCPR. Evictions carried out in accordance with the law and conforming to the provisions of the International Covenants on Human Rights are not prohibited by international law. (175) However "forced evictions," according to the U.N. Committee on Economic Social, and Cultural Rights, (176) are per se "incompatible with the requirements of the [ICESCR]." (177) "Forced evictions" have been defined by the Committee "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." (178) The Chinese expropriation practices fall squarely within this definition. Furthermore, the U.N. Commission on Human Rights has interpreted the Universal Declaration of Human Rights to mandate that "forced eviction[s] [are] a gross violation of human rights...." (179)

2. Right to Choose Residence and to Adequate Housing

A forced eviction, on its face, violates the right to choose your own residence found in the ICCPR. (180) Forced evictions also violate ICESCR's guarantee to adequate housing in that many Chinese residents have been displaced onto the streets. (181) Although national laws cover resettlement, reports indicate in reality citizens get poor options or no help at all. (182) A Beijing resident told Human Rights Watch in a phone interview "[my parents] didn't get anything [as compensation], and they had no help with resettlement." (183) Furthermore, because of low compensation rates, "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." (184) A Nanjing resident complained "she couldn't find work in the desolate resettlement area and could not afford to travel into town to work." (185)

3. Depriving People of Their Own Means of Subsistence

Some accounts also point to violations of the ICCPR's prohibition against depriving people of their means of subsistence. (186) Residences are not the only buildings being demolished--many small businesses, which provide families with their sole means of income, are being appropriated. (187) Beijing resident Chang Liang recalled his parents' Heavenly Light photo studio, a business run from their home, being forcefully demolished. (188) The photo equipment and tools the family depended on for their livelihood were destroyed in the incident. (189) Additionally, if any compensation is received, the evictor rarely takes into account a business' loss of future income, which further exacerbates the problem. (190)

4. Arbitrary Interference with Property

These forced evictions often arbitrarily (191) interfere with Chinese citizens' property--State action that is prohibited by both the Universal Declaration of Human Rights and the ICCPR. (192) Arbitrariness is first evident in the lack of consultation with evictees. (193)

Without consulting property holders, especially in large-scale redevelopment plans such as sports stadiums, (194) the government is not making an informed decision based on reason. It seems that in many cases, developing companies are making decisions about what land to raze unilaterally, and required governmental permits are a mere formality. (195) Even in the best-case scenario, where a developer submits a request and the governmental entity charged with approving it seriously considers the reasons given for why eviction is necessary, the decision maker may still fall prey to arbitrariness. Because the companies are not required to consult residents about their plans to demolish residents' homes, (196) the information they submit to the government is by nature one-sided. Without complete information about the impact a particular project will have on all interested parties, the government's decision will unavoidably be founded on the company's preference.

Arbitrariness is also found in the available legal remedies. A citizen may seek arbitration if he or she cannot reach an agreement with developers and demolition companies on compensation. (197) These arbitral bodies, however, have troubling conflicts of interest. (198) Demolition and eviction departments, the only available arbitrators, often have close connections with the companies that do the work, leaving the arbitrator little incentive to find in favor of residents and crack down on their own companies. (199) These conflicts render the arbitrators unable to make a decision free from personal prejudice or preference. Similar allegations have been made against judges in the court system. (200)

5. Unlawful Interference with Property

The ICCPR goes further than prohibiting "arbitrary" interference with property by adding the word "unlawful" to its text. (201) The forced evictions in China today are "unlawful" because citizens do not have appropriate procedural protections required by international law, and the limited protections Chinese law does offer are often ignored in practice. (202) Not paying some form of compensation to evictees and using violence to remove residents from their homes are both practices made illegal under Chinese law, but are happening regularly today. (203) Evictees also have no meaningful legal remedies, making the evictions "unlawful." Negotiation does not seem to be a viable option, a fair arbitral process seems impossible because of corruption and conflicts of interest, legal aid seems difficult to obtain, courts seem hesitant to find in evictees favor, and even if the process works, the law allows demolition to proceed regardless of any pending litigation.

The U.N. believes appropriate procedural protection and due process are especially pertinent in forced evictions. (204) Human Rights Watch suggests the procedural protections that should exist include:

Genuine consultation with those affected; adequate and

reasonable notice of the date of eviction; timely

information on the proposed evictions and the

alternative purpose for which the land is to be used; the

presence of government officials at evictions affecting

groups of people; proper identification of those carrying

out the eviction; and the availability of legal remedies

for those affected and access to legal aid.

Some of these protections are missing in Chinese regulation and most appear absent in practice. (206)

C. Suggested Solutions

While no simple solution to this complex problem exists, there are steps the Chinese government can take to reduce the number of evictions considered illegal under international law. (207) First, the government should implement stronger enforcement of current laws and regulations at all levels. Second, it should assess hefty fines and penalties against companies who violate these laws. (208) More specifically, two protections could be added to the Chinese peoples' property rights bundle to better align the country with its treaty obligations: (1) the ability to effectively contest the validity of governmental takings, and (2) the right to just compensation for property taken by force and the ability to effectively contest that amount.

1. Ability to Effectively Contest Validity of Governmental Takings