Academic journal article Washington International Law Journal

Women's Land Rights in Rural China: Transforming Existing Laws into a Source of Property Rights

Academic journal article Washington International Law Journal

Women's Land Rights in Rural China: Transforming Existing Laws into a Source of Property Rights

Article excerpt

I. INTRODUCTION

Prior to land reform policies instituted in China during the late 1990s, rural women like Hou Cunli did not anticipate losing land rights upon marriage.1 After moving to her husband's village at marriage, Hou's natal village redistributed her share of land among other villagers.2 Hou's recourse was likely a seemingly endless waiting list for a land share in her new residence.3 Village governments told other women like Zhu Daiyin that land was not given to daughters at all, as they would inevitably marry off to other villages.4

These stories are not unique. During the first half of 1999 alone, over 2000 rural women in twenty-two provinces reported loss of land5 to the All-China Women's Federation.6 Complaints primarily concerned village governments' refusal to allocate land to women upon marriage into a new village and deprivation of any land upon divorce or widowing.7

While China's recent reforms to strengthen land tenure security hold potential to improve the economic welfare of 850 million rural poor,8 the social mores intersecting with these reforms limit women's rights to land. In 1998, China promulgated sweeping changes for farmers via the Land Management Law,9 guaranteeing land use contracts for thirty-year terms and greatly limiting the scope of "readjustments"10 during the interim. Simultaneously, reports emerged that rural women experienced discriminatory treatment in land allocations.11 Field research conducted with women between the ages of eighteen and fifty revealed that those married after 1995, the year when many villages began implementing a noreadjustment policy, were more likely to have no land share.12 Meanwhile women's economic participation in agriculture increased following implementation of the Household Responsibility System ("HRS")13 in the early 1980s.14 Today, women's relationship to the land is central to rural China's economic welfare.15

China's legal framework fails to support women's rights to land at marriage, divorce, and widowhood. Despite a constitutional guarantee of gender equality16 and myriad national laws ostensibly protecting women's right to property, women's status within the family and at the village level has not substantially improved.17 Virilocal (or patrilocal) residence patterns, whereby a woman becomes part of her husband's household, remain the norm in rural China.18 A woman's father, husband, or father-in-law serves as de facto head of household.19 China enacted the 2003 Rural Land Contract Law ("RLCL") in part to remedy women's loss of land by preserving a woman's share of land in her natal village upon marriage or in her marital village upon divorce or widowhood.20 Yet social realities in rural China limit the effectiveness of this provision. Local authorities may no longer take back women's natal land shares, but women hold no practical right to these allocations.21

This Comment assesses the viability of current laws and legal strategies, such as partitioning land, to secure rural women's property rights. Part II discusses how changes in property laws designed to promote economic development in rural China contribute to women's land loss. Part III argues that ambiguities within the Marriage Law,22 the RLCL, and the 2007 Property Law23 will prevent these laws from serving as vehicles to end women's landlessness. Part IV turns to examples from other developing countries and argues why legal proposals to strengthen women's property rights should be framed in the cultural context of social relations. This section also introduces the social climate in rural China that dictates implementation of law at the local level. It further explains why the RLCL fails to offer immediate relief in the context of rural China. In light of this social climate, Part V concludes that China should adopt a community property regime that legally recognizes land allocated prior to marriage as jointly possessed by both husband and wife. China recognizes property acquired during marriage as jointly possessed, and going one step further would prove a more successful legal platform for advocating women's land tenure in rural China. …

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