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 rec