Regular Takings or Regulatory Takings?: Land Expropriation in Rural China
Washburn, Valerie Jaffee, Pacific Rim Law & Policy Journal
Abstract: This article takes as its starting point the recent spate of unrest in rural China over government takings of rural, agricultural land. Though the popular and scholarly press has paid a great deal of attention to this issue, few analyses have explored in depth the institutional and legal framework surrounding it. This piece first attempts such an exploration and concludes that the underlying issues have as much to do with China's national land use regulatory system as they do with the behavior of local governments that seize privately-farmed land for other uses. In fact, it is more productive to see this as a regulatory takings issue than an eminent domain issue. With that analysis in mind, the article proceeds to explain why commonly-presented proposals for solving the rural takings problem are inadequate and then offers a novel solution based on the regulatory takings analysis: granting individual farmers transferrable, monetizable land development rights that will be separable from the land use rights that are the basis of the current rural land ownership regime.
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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. …