Academic journal article Washington International Law Journal

Regular Takings or Regulatory Takings?: Land Expropriation in Rural China

Academic journal article Washington International Law Journal

Regular Takings or Regulatory Takings?: Land Expropriation in Rural China

Article excerpt

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I. INTRODUCTION

In June of 2006, hundreds of Chinese farmers in the village of Sanzhou, Guangdong Province, armed with clubs and bottles of acid, held government officials and businesspeople hostage inside a newly-constructed apartment building for almost twenty-four hours.1 Earlier that year, police armed with electric batons clashed with over 1000 farmers wielding pitchforks outside the village of Panlong, also in Guangdong Province. 2 The clash may have been responsible for the death of a thirteen-year-old girl, and as many as sixty people were wounded in the struggle.3 Just over a month before that, in nearby Dongzhou village, at least three and as many as thirty people were killed when police fired on a group of villagers who had lobbed fireworks and possibly homemade bombs at police. The Dongzhou incident was the deadliest use of force by Chinese security personnel against Chinese citizens since the Tiananmen Square incident in 1989.4

These incidents are part of a minor epidemic of unrest that has gripped rural China in recent years. What unites them, besides their sensationalism, is the nature of the conflicts that inspired them. In each incident, farmers were protesting decisions by local government officials over the use of village land. "[E]nvironmental, property rights, and land-use issues" have been the single largest source of civil unrest in China in recent years, and disputes involving rural land have, as the above episodes indicate, been especially incendiary. 5 This is not a phenomenon unique to wealthy Guangdong Province; protests also erupted over the use of rural land in Huaxi, Zhejing Province in 2006;6 Hanyuan, Sichuan Province in 2004;7 Jinyuan, Zhejiang Province in 2003; 8 and numerous other locales.

The farmers in Sanzhou were protesting the seizure of 750 acres of agricultural land by the village government. That land had been sold to a developer who built the apartment building where the incident took place; the farmers claimed that the compensation paid for the land taken was inadequate.9 The protesters in Panlong resented both the seizure of village farmland for lease to a foreign investor and the level of compensation offered.10 The catalyst for the disturbance in Dongzhou was the construction of a coal-fired power plant. Villagers were upset over the prospect of air pollution and plans to fill in a local body of water. Also, like their counterparts in Sanzhou and Panlong, they were angered by the seizure of farmland for the project and asserted that the compensation offered was too low.11

One Western journalist has wondered if the incidents might represent "the birth of a revolution."12 This is surely hyperbole, but there remains little doubt that how to manage rural land is one of the most pressing issues facing the Chinese government today.13 Opportunities for public debate on this issue have been especially plentiful over the past decade, in part because of the passage of a new comprehensive Property Law, which had been under debate since 2004, by the National People's Congress ("NPC") in March of 2007.14 It has been suggested that the thorny question of how to deal with rural land was the most important reason why completion and passage of the law took so long.15

Media and scholarly attention has generally treated these conflicts as indications of pathologies in China's laws governing takings of rural land and the compensation offered when such takings occur. As will be discussed below, however, that understanding of the problem is incomplete. Below, I first analyze China's legal regime governing rural land ownership, use, and takings; the conceptual implications and practical effects of that system; and the drawbacks of various proposals offered by both Chinese and Western scholars for improving that system. To date, these proposals have tended to revolve conceptually around the ownership of rural land, drawing from theories and policy of eminent domain to approach the problem of what happens when government seizes rural land for a new use and often advocating measures that would strengthen the quasi-ownership rights of Chinese farmers to their land. …

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