Adoption of the international model of a well-

governed land expropriation system in China—- problems and the way forward

Linlin Li (linlin.li@rug.nl)Ph.D. Candidate

University of Groningen The Netherlands

International documents on the governance of land issues including expropriation

The Land Tenure Studies of FAO No.10 (2009)

The LGAF of WB (2012)

The VGGT of FAO (2012)

The Working Paper of GLTN (2013)

VGGT: voluntary guidelines on the governance of land tenureLGAF: land governance assessment frameworkGLTN: global land tool network

What is good land governance?

► The VGGT of FAO (2012) ▪ five founding principles of promoting responsible governance of land tenure: recognize and respect all legitimate tenure rights; safeguard these tenure rights; promote and facilitate the enjoyment of rigts; provide access to justice; and prevent tenrue disputes, conflicts and corruption opportunities

a responsible governance of land is a holistic and interconnected system, and the fairness to the vulnerable people is the objective of land tenure governance

► The LGAF of the World Bank (2012) ▪focuses on the assessment of the effectiveness of such an interconnected system

▪the 21 Land Governance Indicators (LGIs) and 80 dimensions to these indicators

good land governance should be cost-effective and efficient, in addition to the fairness

What is good land governance?►The Working Paper of the GLTN (2013) ▪Evictions, Acquisition, Expropriation and Compensation: Practices and Selected Case Studies

requirements for better definition of pubic interest and a fair compensation are proposed, and more elements should be included in expropriation system

► The Land Tenure Studies of FAO No.10—the Compulsory Acquisition of Land and Compensation (2009) Each phase of land expropriation should be well planned and judicially protected

☺ Good land governance should base on a right balance between efficiency of the process and fairness to the affected people

A redefinition of expropriation from a governance perspective

Fairness

Efficiency

A well-governed

expropriation

procedure

A redefinition of expropriation from a governance perspective

More elements should be added to the expropriation system, e.g. judicial review and transparency

A prior examination on the necessity of the expropriation itself

Additional methods to evaluate public purpose and fair compensation

A broader participation framework

4 phases in land expropriation

1. Approval of expropriation plan

2. Compensation and resettlement decision

3. Implementation

4. Monitoring the use

(pariticipation should be improved in all 4 phases)

Phase 1: approval of an expropriation plan

The international framework

1. Public purpose should be clearly enumerated in law 2. In the case of inclusive lists/open-ended article, a SIA and a developed land use planning system3. Attempts to acquire the land through voluntary transactions4. If the voluntary purchase failed, power imbalances, provision of related info., people who can participate and forms of participation 5. Judicial review

Land expropriation in China

1. Not listed2. No SIA (SSRA only for E of houses on state-owned land); government-dominated planning3. No such attempts 4. No effective participation; only one public hearing either in phase 1 or phase 2 (not compulsory)5. In the case of disagreements, may sue the agency directly (the new APL)

SSRA: Social Stability Risk AssessmentAPL: Administrative Procedure Law

SIA: Social Impact Assessment

Phase 2: compensation and resettlement decision

The international framework1. The state shall ensure a fair valuation and a fair compensation (market value of the land)

2. The affected people may hire their own valuers and independent valuation agencies

3. Be compensated or resettled with alternative land first

4. Judicial review

Land expropriation in China

1. Not market value (based on original land use, much lower)

2. Can only be valued by authorities

3. Yes

4. If disagree, may sue the agency directly (the new APL)

Phase 3: implementation of expropriation

The international framework 1. Only after the entire compensation or a substantial percentage of it has been received by the affected people, may the acquiring agency take possession of the land

2. Clear rules on distribution of the compensation between landowners and actual land users

3. The affected farmer should have enough time to vacate land or recoup his investment in land

4. Judicial review

Land expropriation in China

1. Yes

2. No clear rules on the distribution inside the village collective

3. No clear rules

4. May sue the acquiring agency if it breaks the compensation agreement (the new APL)

Phase 4: monitoring the use of the expropriated land

The international framework1. A special monitoring agency is supposed to be established2. The affected party can help to supervise if and how the land is used 3. The original landholder should have a right to reacquire the expropriated land if the land is not needed due to changes of plans 4. Judicial review

Land expropriation in China

1. Yes -- the State Land Supervision system2. Emerging, but no clear channels 3. Even if having new planning, the original landholder has no right to reacquire4. No judicial review

Lessons for China from the international framework (1)

A clear and rigid definition of public interest is crucial for the justification of any land expropriation

As the legal basis for initiating any expropriations, a well-functioning land use planning system is desired.

Participation of affected people (e.g. collective farmers ) should be introduced as much as possible to ensure the fairness

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Lessons for China from the international framework (2)

A unified urban and rural market and a clear and fair distribution of the compensation between the collective and farmers involved are needed

The original landholder should have a right to reacquire the expropriated land that is not used or the use is changed

Judicial review should be available throughout the whole process

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Conclusion

The specialities of Chinese land system should also be well considered

There is still a lot room for China, an efficiency pursuer, to improve the fairness

4-phase participation in land expropriation can ensure fairness to affected people

A right balance between efficiency and fairness is desired in a well-governed expropriation procedure

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Thank you for your attention