Current list of known political prisoners | International conventions | List of known arrests in 2002 | List of known arrests in previous years | Nepal arrestees list | Prison and detention centre | Glossary
Section 1: Economic, Social and Cultural Rights
Section 2: Civil and Political Rights
Freedom of Religious Belief and Practice
Section 3: Appendices
Current List of
Known Political Prisoners
List of Known
Arrests in previous years (information received in 2002)
List of Tibetans Detained in Nepal
List
of Known Prisons in TAR and Outside TAR
Ratification of International Covenants by China
Glossary of Terms and Abbreviations
Monitoring and evaluating human rights violations in Tibet for 2002 has continued to be a challenge for the Tibetan Centre for Human Rights and Democracy (TCHRD) considering the tremendous lack of transparency and secretive nature in which Chinese authorities work, coupled with cynical moves by Beijing to avoid international criticism of its human rights record in Tibet. In the absence of free and independent access to Tibet, TCHRD has researched academic papers and Beijing's White Papers for data on Chinese policies in Tibet and also made use of information provided by independent travellers. However, our greatest source remains the testimonies of refugees fleeing Tibet, including former political prisoners. Tibetans can best report on what is happening in their country and the information they provide is crucial in understanding the situation on the ground.
The year 2002 was marked by key changes in the political control of the Chinese government. The 16th Chinese Communist Party (CCP) Congress in November appointed to China’s helm of affairs Hu Jintao as Party-Secretary, a man little known to the outside world but remembered by Tibetans as the hardline leader responsible for the imposition of Martial Law in Tibet in 1989 and for the introduction of potentially repressive policies that became the beginning of the end of what had been a relatively liberal decade in the region.
2002 was also a year of intensifying contradictions. China’s human rights policies and practices in Tibet were not only contradictory and self-defeating, but also without consistency. There was a pattern of Beijing’s human rights diplomacy using the cover of concessions to prelude fresh crackdowns on dissent assuming that world leaders are less likely to react strongly after a gesture of goodwill.
The 58th session of the United Nations Commission on Human Rights (UNCHR) was a huge disappointment to the peoples of China,Tibet, Eastern Turkestan (Xinjiang) and Inner Mongolia. With no “Resolution on China”, UN member countries again failed to condemn and censor China for its poor human rights record.
The universality and indivisibility of human rights, persistently reiterated by UN delegates after the Vienna Declaration in 1993, was blatantly negated by speeches of Chinese diplomats at the UN this year. According to Vice Foreign Minister Wang Guangya, “owing to their different history, culture, social system and the stage of economic development, it is only natural for countries to adopt different ways, approaches and processes in realising human rights”. China claims the right to a special form of relativism. In effect this is a claim for exemption from the very concept of the universality of human rights.
TCHRD continued to monitor the human rights situation on the ground in Tibet throughout 2002 and found little serious effort on the part of the Chinese authorities to improve the lives of the Tibetan people or to guarantee their fundamental rights and freedoms. During the year, China tried hard to block voices of dissent from being heard inside the country as well as from outside. Within the country harassment and imprisonment of dissidents remained high. Security was tight in Beijing and around the Great Hall of the People during the 16th CPC meeting. Hotels and guesthouses were strictly ordered not to accept Uighurs and Tibetans.
Outside the country, China used its power as a member of the UN Security Council to block accreditation to three Tibetan rights groups to participate in world conferences including the World Summit on Sustainable Development (WSSD). TCHRD was one of the three. Elsewhere, Chinese NGOs used civil society forums to strongly defend their government policies such as at the Asian Civil Society Forum (ACSF), held in Bangkok in December 2002.
“Despite deepening economic reforms,
China’s authoritarian government has resisted calls for political
liberalization and has made little progress improving civil and political
rights”,
- the United States Congressional Executive Committee on China (CECC) Annual Report, August 2002.
This year TCHRD in its Annual Report on the human rights situation in Tibet for 2002 takes a hard look at China’s compliance with the two international instruments of human rights, i.e. International Covenants on Civil and Political Rights (ICCPR) and Economic, Social and Cultural Rights (ICESCR). China ratified ICESCR on 27 March 2001 but is yet to ratify ICCPR, which it signed on 5 October 1998.
The year started on a positive note with the release in January of Ngawang Choephel, a prominent political prisoner. This was followed with releases of other high profile prisoners of conscience including Takna Jigme Sangpo and Ngawang Sangdrol, two of Tibet’s longest serving political prisoners. TCHRD received information of a total of 90 known releases of political prisoners upon completion or expiry of their prison terms, including seven early releases. However, information on the arrest of 40 more new detainees was reported to the Centre. There are 208 known political prisoners currently incarcerated for exercising their basic fundamental human rights
In September this year, China received a Tibetan delegation from the exile government in Dharamsala nearly nine years after the last contact in 1993. This visit generated renewed hopes amidst the international community in general, and Tibetans in particular. Although the Tibetan delegation stressed the visit was mainly to break the ice with China for a fresh and sincere beginning, the authorities in China maintained that the visit was a private one. While hosting the delegation in Tibet the authorities continued to condemn the Dalai Lama as a “splittist”. Applying this label to the spiritual and political leader of all Tibetans did not go down well with his people. TCHRD believes the visit was crucial as a positive outcome in terms of genuine self-rule or autonomy could mean more fundamental rights and freedoms for the people of Tibet.
After years of restricting foreign observers to the region, China invited two groups of foreign correspondents on reporting trips (admittedly heavily escorted) in August and October 2002. One of the journalists, Geoffery York, after visiting Tibet’s most notorious Drapchi Prison wrote, in Globe and Mail on 17 September 2002,
“In a nearby cellblock, there was another staged tableau. A hundred inmates were staring woodenly at a Christmas cartoon on a big-screen television, not daring to move a muscle or steal an illicit glance at their visitors”. He added, “Only about 100 inmates were visible. They sat with weird rigidity, gazing silently at an American cartoon on a Chinese state television channel. Prison authorities, nervous about possible protests, had obviously warned the inmates not to speak or move”.
The recent decline in political protests is not an indication that Tibetans are happier with Chinese rule or that their aspiration for self-determination has declined. Rather, it is the result of heightened surveillance and heavy-handed, brutal suppression by the authorities. Another factor is the fear of severe physical abuse, including beating and torture, and ensuing years of imprisonment if dissidents are caught. The authorities included “illegal religious activities” and those who “illegally guide Tibetans across the borders” which expanded the scope of the renewed “Strike-Hard” campaign in Tibet.
The strongly strategic and hard line policies of the PRC - made in the interests of the State by a select few-excluded the genuine interests of the Tibetan people who as a people under the United Nations Charter have the “Right to Self-determination”. UN Resolutions of 1961 and 1965 called upon the PRC to respect the ‘Right to Self-Determination’ of the Tibetan people.
Repression of political, religious or spiritual activities by persons or groups perceived as a threat to government authority or national stability continued through the year. Linking activities of religious persons to acts of terrorism, holding secret trials and imposing extreme sentences occurred during the year. The death sentences on Trulku Tenzin Delek and his attendant, Lobsang Dhondup, on 3 December was headline news and sent shock waves through the Tibetan people aspiring to self-determination in Tibet.
TCHRD received reports of many arrests of exile returnees in the Tibet Autonomous Region”, of monks for performing religious rites in Karze, eastern Tibet, and of others for engaging in peaceful pro-independence activities. Ex-political prisoners and many others who fled the country during the year reported arbitrary detentions, torture and beatings to TCHRD. One death occurred in detention.
In the religious sphere, the anti-Dalai Lama campaign heightened and restrictive measures were imposed on observance of traditional religious practices and belief. The Chinese authorities imposed Management Committees and “work team” visits in monasteries and nunneries, enforced the official ceiling on the number of monks and nuns, imposed 18 year age limits and conducted political education classes for the clergy. This year influential religious leaders in Tibet came under severe persecution.
Internet censorship in China remained a big issue in 2002. There were reports of the State employing more than 100,000 cyber police to maintain a tight control over the Internet. In Tibet ordinary people are unable to access information freely. Key words that the PRC deems “sensitive” such as democracy, human rights, Dalai Lama, Tibet and Taiwan trigger blocks on the Internet: jamming and strict control of foreign radio, TV and news broadcasts in Tibet remained as before.
In the area of Economic, Social and Cultural Rights the PRC’s policies on the Tibetan plateau fall short of international standards of good governance. Under the Chinese Constitution there are provisions for safeguarding the Right to Livelihood but these are not implemented on the ground. It is evident from the testimonies of refugees that it is those assigned the task of guaranteeing these rights who are the abusers. Tibet, along with 11 other western provinces of China, forms one of the country’s poorest and most underdeveloped regions. There is huge income disparity between the rural and urban populations.
At the core of the complexities surrounding livelihood issues for Tibetans is the fact that the PRC does not recognise the right of the Tibetan people to self-determination, nor their right to freely pursue economic, social and cultural development, which is at the heart of ICESCR.
Under the Western Development Program (WDP) launched in 1999, China is pouring billions of dollars into Tibet and other remote western areas. Beijing likes to believe that as long as the country’s economy is burgeoning everything else will take care of it. Despite the huge propaganda hype relating to the WDP, Tibetans view its main aims as being the exploitation of their natural resources and the transfer of Chinese settlers on to their land. In addition to the economic targets, WDP is aimed at cultural assimilation. The profits will largely benefit government officials, local elites and well-connected entrepreneurs from China’s affluent coastal regions. The major projects - including the Golmud-Lhasa railway line, gas pipelines, water transfer schemes and electricity transmission lines-are aimed at sending western resources to the east. One Chinese scholar has candidly described the Western Development Program as a policy of “Western Exploitation and Eastern Development”.
The PRC in its White Paper on Tibetan culture released on 22 June 2001 speaks on "great attention to maintaining and safeguarding the Tibetan people's right to study, use and develop their spoken and written language". The White Paper also speaks highly of its educational policies in Tibet and quotes impressive statistics on the development of education in Tibet. However, out of the 2,000 to 2,500 Tibetans fleeing Tibet every year the percentage of refugees who can read and write is not very high. A large percentage of the young people flee in search of freedom and to seek a broader-based education outside Tibet. Education in the rural areas in Tibet is hugely neglected.
Education policies in Tibet are meant to indoctrinate communist ideologies. Students must denounce the Dalai Lama. Tibetan students are taught a Chinese version of the history of Tibet. The medium of language and instruction in most schools is in Chinese sidelining the Tibetan language. As a result many Tibetans are losing the ability to write their own language. In July 2002, the Chinese authorities closed down a private Tibetan school “Tsangsul” in Lhasa. The school had a record of stressing on preservation of Tibetan culture.
Tibetans in Tibet have very limited or no access to health care facilities. Health provisions for Tibetans continue to lag far behind China’s national averages, and fall short of international standards of adequate healthcare. The increasing cost of hospital care, and the shortage of trained village-level health professionals, contribute to a worsening health situation for Tibetans. Health care is no longer a right. It is the privilege of those who can pay and have the right connections.
The prison conditions in Tibet are alarming and way below international standards. They are overcrowded, lacking proper ventilation, with very poor sanitary conditions and low-grade food. Since 1986, TCHRD has recorded the deaths of 79 prisoners, many of who succumbed to the unhygienic and inhumane conditions of the prisons after long periods of torture.
Conclusion
The world today is pre-occupied by its fight against terrorism. China joining
the United States-led anti-terrorist coalition could be an end to or at least a
toning down of criticism of Beijing’s human rights record by western
governments, in particular the United States and the European Union.
The fundamental problem in Tibet in regard to human rights abuses and restrictions on human freedom is the Chinese government’s lack of implementation and abuse of Laws. It becomes clear that the strength of the rule of law, in which lies its universal relevance and application, is non-existent. “All too often these laws are not honoured, all too often; domestic laws are subverted to provide a cloak of legitimacy for breaches of fundamental human rights, or infringements on civil liberties” said UN Secretary-General Mr. Kofi Annan on the occasion of Human Rights Day, 10 December 2002.
Aware of its rising global status, China is today obsessed with presenting a clean image to the world. Its increasingly prominent international profile was symbolised in 2001 by its entry into the World Trade Organisation and Beijing’s successful bid to host the 2008 Olympics. Yet the communist administration remains an international bete noire for its violation of human rights and is facing huge opposition from various rights groups, western countries and donors against giving aid to China. International attention to its policies on Tibet is a continuing thorn in China’s global image.
However, TCHRD sees change in China as inevitable, and with that there is hope for a peaceful solution to the Tibet issue. Noting resolutions adopted on Tibet in particular the Tibet Policy Act of the US Congress, signed into United States Public Law 107-228 by President George Bush on 31 September 2002, TCHRD calls upon the international community to maintain the pressure on the PRC until signs of real improvement in human rights are seen on the ground. China must adhere to international standards of human rights both for its own citizens and the people of Tibet.
Xu Wenli, a prominent Chinese dissident freed in late December 2002, said, "There is a strong awakening of consciousness within Chinese society towards democracy, freedom and human rights".
Economic, Social and Cultural Rights
×
TCHRD deplores the fact that China is
yet to submit its initial report to the UN Committee on Economic, Social and
Cultural Rights, which was due on 30 June 2002.
×
TCHRD calls upon China to carry out
its obligations to recognise and provide implementation mechanisms to safeguard
the right to work and adequate standard of living
×
Inspite of having ratified the ICESCR
the Chinese government does not respect the Tibetan people’s right to preserve
their culture and identity and their Right to Self-determination. TCHRD calls
upon the PRC to allow the Tibetan people direct control of the content of the
curriculum and the medium of instruction in Tibetan schools and monasteries.
×
TCHRD calls upon PRC to halt its
population transfer policy that has adversely affected the livelihood of the
Tibetan people
× TCHRD would like to urge all international development agencies collaborating with China to ensure the participation of Tibetan people at all levels of developmental projects that are being undertaken in Tibet in particular, the Western Development Programme.
×
TCHRD urges China to develop and
enforce health-care policies, which match the standards of healthcare
guaranteed in the Conventions, which it has ratified. China must provide its
citizens and Tibetans the right to free or affordable healthcare services.
× TCHRD deplores China's failure to submit its second periodic report to the UN Committee on the Rights of the Child, which was due in March 1999.
Civil and Political Rights
×
TCHRD urges China to immediately
ratify the UN Covenant on Civil and Political Rights.
×
TCHRD demands that the Chinese
government clarify the scope and extent of the term “endangering state
security” in its Criminal Procedural Law. The term’s ambiguity is used to
suppress multiple legitimate rights, including the right to freedom of
expression and speech.
×
TCHRD calls upon the Chinese
government to respect the rule of law, its universal relevance and application.
It urges the Chinese government to create a system of free and fair trial for
people accused for political, religious or other reasons.
×
TCHRD calls upon the Chinese
government to release all prisoners of conscience held in prisons, labour camps
and detentions centres in Tibet.
× TCHRD also calls upon China to extend a standing invitation to all Thematic Special Rapporteurs of the UN Commission on Human Rights as already done by 40 countries as of 3 December 2002.
×
TCHRD urges the Chinese government to
allow free movement of Tibetan people wishing to travel within or outside
Tibet. Tibetans must be allowed to return to their homeland freely, without
fear of harassment or arrest.
×
TCHRD calls upon the Chinese
government to stop the ongoing anti-Dalai Lama campaign and to halt the
“patriotic education” of monks and nuns. China must stop limiting the number of
monks and nuns in the plateau’s monasteries and desist from coercing the
monastic population to conform to communist ideology. We also call upon the
Chinese authorities to end its atheist campaign in Tibet.
×
TCHRD reiterates its appeal to the
international community and governments to raise the issue of Gedhun Choekyi
Nyima, the X1th Panchen Lama of Tibet, whose whereabouts are unknown since May
1995. The Chinese authorities continue to insist that the boy is safe and well
but have provided no evidence of this to date. We demand the release of Gedhun
Choekyi Nyima.
× TCHRD appeals to the UNHCR to make arrangements with the Royal Government of Nepal to secure the release on 13 Tibetans who remain incarcerated in jails in Nepal for lack of residential permits and legal travel documents.
With its ratification of the International Covenant on Economic, Social and Cultural Rights (ICESCR) on 27 March 2001, China has undertaken to enact domestic legislation that implements the articles of the Covenant. Therefore, China is now obligated to recognise and provide implementation mechanisms to safeguard such rights as the right to work, the right to social security for all, and the right to an adequate standard of living.
The covenant has been critiqued as failing to deliver specific protections and for giving developing countries such as China a pretext to appear committed to safeguarding human rights. They thereby can be seen to be bolstering human rights, when simultaneously supporting arguments for development superceding civil and political rights. However, in recent years the international community has begun to push for economic and social rights to be taken more seriously and to be seen as interconnected with civil and political rights.
The promise of such rights is that they apply to peoples collectively. We consider, below, problems with the way in which countries like China have utilised economic and social rights. A key issue is that the implementation of the rights outlined in ICESCR is considered to be progressive; the ratifying country is only obligated to move towards the general objectives of the rights. It is noted that economic and social rights are to be “exercised under a guarantee of non-discrimination” except in the case of non-nationals.[1]
This is an important qualification when we come to look at the privileges of the Chinese urban migrants and elites in the economic development of Tibet.
The vagueness and the aspirational tone of the ICESCR is the result of compromise by the international community to encourage developing countries such as the People’s Republic of China (PRC) to engage in a human rights framework, while recognising the difficulties faced by developing nations.
In this light does ratification offer any real protection? China claims that the ratification
fully demonstrates
the Chinese government’s positive attitude toward carrying out international
cooperation in human rights as well as China’s firm determination and
confidence in promoting and protecting human rights.[2]
Based on Beijing’s claim, TCHRD makes two observations. The first is that the standards upheld are vague, the international community does not presently enforce them, and thus they do not count for much. This may be the case in the short term, but at least in rhetoric the international community has moved towards taking a more rigorous approach to these rights.
This points the way to a second approach of warily testing the claims of China. Through ratification, China has set standards for its own conduct, which Tibetans can rightfully test with due diligence. For a long time the developing countries — including China — were insisting that social and economic rights were as important to human rights as civil and political rights. They used this argument to push for pro-development policies and a more equitable international economic system as a necessary corollary to the effectiveness of human rights in general.
In recent times, some of the major industrialised countries have also begun to stress the need to link development with human rights. Arguments based on the right to development framework have highlighted that “development does not merely amount to economic growth, but also involves a human dimension; furthermore, it directly concerns not only governments but the whole population; consequently its realisation should not be to the sole advantage of ruling elites.”[3]
Land rights, housing, and sustainable habitats are economic issues, which are crucial not just to individuals’ personal rights, but also to the future of a country. A balance must be struck between affording individuals equitable access to quality land/housing, and ensuring that the settlements in which such housing is located, or the uses to which the land is put, are sustainable. This report therefore examines housing and land issues using a rights framework that embraces the right of a people to sustainable development.
In 1996 the PRC government made a public commitment to the full and progressive realisation of the right to adequate housing.[4] In ratifying the ICESCR in 2001, China has made a legal commitment to recognise this right. Over the past decade, the PRC has also regularly made submissions to the United Nations’ Committee for Sustainable Development claiming compliance to sustainable development including the right to land. Despite this public face, there are serious violations of international law and principles currently occurring within Tibet.
In studying Tibet’s housing and land rights issues against the framework of both human rights and sustainable development, TCHRD hopes to contribute to the ongoing debate about the links between the two issues. Many human rights NGOs participating in the Preparatory Meetings for the WSSD and the final conference were outraged at the exclusion of human rights discourse from the Summit platform. The fact is no country can claim to be achieving sustainable development if it denies its people their fundamental political, civil, religious, economic, social and cultural rights. Sustainability is meaningless if people are not involved in creating or taking part in its benefits.[5]
There is no explicit international law, which states that people have a right to ownership or use of land. However, the right to land is implicit in many rights contained in the ICESCR and other covenants. In addition, equitable access to land has been recognised as central to sustainable development.
The global organization, Habitat International Coalition[6] has pointed out that access to land is a prerequisite to the fulfillment of the right to housing, food and culture, which are contained in the ICESCR.[7] Involvements in the development of economic policies and in the equitable use of land resources are also inherent in the first two Articles of the ICESCR.
The sustainable development principles formulated over the past decade have increasingly called for equitable land tenure systems. Agenda 21, formulated in 1992 after the Rio Earth Summit, advises governments to “establish appropriate forms of land tenure that provide security of tenure for all land-users, especially indigenous people, women, local communities”.[8] It also states that people should be protected by law against unfair eviction from their land.[9]
In 1996, the second United Nations Conference on Human Settlements (Habitat II) drew a link between land rights, housing rights and sustainable development by noting that “access to land and legal security of tenure are strategic prerequisites for the provision of adequate shelter for all and for the development of sustainable human settlements affecting both urban and rural areas”. [10] The Habitat Agenda arising from Habitat II committed governments to protecting “the legal traditional rights of indigenous people to land and other resources, as well as strengthening of land management”.[11]
Habitat International Coalition have proposed that the right to land can be stated in the following terms:
Land is a resource integral to survival, livelihood and adequate
housing. To this end, the state must
ensure reasonable access to land. In particular, the state must ensure
equitable distribution with emphasis on the provision of necessary resources
for poor households and other marginalised and vulnerable groups. Governments
must implement land reforms where necessary to ensure fair distribution as a
public good. [12]
To this we would add: Governments must design and implement land reforms through meaningful consultation with, participation and consent of, local communities. Governments should also respect the skills, knowledge and rights of indigenous/local people developed through their long connection with the land.
Article 10 of the Constitution of the PRC (as amended) sets out ownership of land in China as follows:
Land in the cities is owned by the state. Land in the rural and suburban areas is owned by collectives except for those portions which belong to the state in accordance with the law; house sites and private plots of cropland and hilly land are also owned by collectives. The state may in the public interest take over land for its use in accordance with the law. No organization or individual may appropriate, buy, sell or otherwise engage in the transfer of land by unlawful means. The right to the use of land may be transferred according to law. All organizations and individuals who use land must make rational use of the land.
The General Principles of the Civil Law of the People's Republic of China (1986) outlines the way in which state-owned land can be used (Article 80):
State-owned land may be used according to law by units under
ownership by the whole people; it may also be lawfully assigned for use by
units under collective ownership. The state shall protect the usufruct[13] of the land, and the
usufructuary shall be obligated to manage, protect and properly use the land.
The right of citizens and collectives to contract for management of land under
collective ownership or of state-owned land under collective use shall be
protected by law. The rights and obligations of the two contracting parties
shall be stipulated in the contract signed in accordance with the law. Land may
not be sold, leased, mortgaged or illegally transferred by any other means.
The full regime of land ownership and use rights is then set out in the Law of Land Administration of the PRC (1998) (LAL). The purpose of the LAL is claimed to be to protect the total amount of farmland and to “protect cultivated land against industrial development” (Article 4). To this end, governments at all levels have to compile general plans “in accordance with the national economic and social development programme”, environmental policies, land consolidation and construction projects (Article 17).
The LAL declares that the State Council, on behalf of the nation, owns all land in urban areas or land occupied by state departments; while land in rural areas is owned by the village collective (Articles 2 and 8). The definition of “village collectives” is not contained in the LAL but is assumed to mean local villagers groups, generally conforming to the population of traditional villages. However critics have pointed out that the ambiguity in the definition of “village collectives” permits bureaucrats of “administrative villages” (which replaced the old production teams which existed under the commune system) to appropriate the rights under the LAL.[14]
The distinction between state-owned land (the rights of which can be exercised by county governments or higher) and collective-owned land (the rights exercisable by two-thirds of the village collective) is important because different land appropriation rights and compensation calculations apply. In rural Tibet most land would be held by village collectives so only these provisions shall be discussed in detail. The law in relation to urban Tibet shall be discussed under Section III on Housing Rights.
Article 10 states that “village committees” administer collective-owned land. Under the Organic Law of Village Committees (1987) village committees are elected by adult villagers.
Farmers’ contracts for their land are guaranteed for 30 years unless changes are approved by a two-thirds majority of the village assembly (Article 14). The law requires that “no unit or individual is allowed to let the land lie idle or go wasted” (Article 37). The LAL also prohibits the sale or purchase of portions of land by the land-users themselves – any transfers must be done by the collective (Articles 2, 14 and 73).
Land owned by village collectives can be requisitioned by the state (represented by county, provincial or prefectural governments) for construction purposes (Articles 43-46) or, less specifically, “according to the law on public purposes” (Article 2). There doesn’t appear to be any Chinese law on public purposes so Article 2 effectively grants wide, ambiguous discretion to the state for requisitioning rural land. Similarly Article 58 permits the state to take back its own land (rather than land held by collectives) if it requires the land for “public purpose” or for urban reconstruction (this shall be further discussed in Chapter 7.2). The village collective can also itself take back land from farmers if they want to use the land for public facilities or if the land is not being used properly (Article 65).
The level of compensation given for loss of land varies under the LAL according to the purposes for which the land is taken. Where land owned by collectives is requisitioned by the state for construction purposes, the LAL sets out a compensation formula which includes “resettlement” costs and the value of the land based on the average output over the past three years (Article 47). Where rural land is requisitioned for water conservancy projects and hydroelectric power projects, the compensation and resettlement fees can be determined separately by the State Council (Article 51). Where the state wants to exercise its broad discretion in Article 2, the ambiguous “law on public purposes” would apply to compensation. Where the state takes back its own land (rather than requisitioning land held by collectives) compensation is merely to be “proper” (Article 58).
Where the state requisitions rural land from collectives, compensation is given to the village committees which are then obliged to pass the money onto individual farmers whose land has been taken (Article 49).
The LAL has been proclaimed by the PRC Government as imposing “the world’s strictest land-use regulations”[15] and a keystone to their sustainable development policies.[16] However, when considering the way in which the LAL actually works in the context of Tibet, it becomes apparent that the LAL’s strictness has the effect of consolidating control over land-use in the hands of the Chinese government, while Tibetan farmers are given few rights at all.
This lack of power stems from the fact that Tibetan farmers do not own land, but merely lease the land from village collectives. This means that farmers are vulnerable to having their land removed either by the village collective or by the State (county governments or higher). Farmers are not given rights to transfer portions of their land privately, to defend the requisition of their land, or to challenge the amount of compensation granted to them.[17]
Village collectives are also not perfect models of democracy. Many critics have noted that election processes for the committees often fall far short of democracy, and that village committees – particularly in politically sensitive areas such as Tibet - are controlled by higher levels of government or local Communist party officials.[18]
Despite the appearance that land use and allocation occurs at a village level, the requirement for government-developed plans (Article 17) means that land use and land management strategies remain controlled at county level. The people who know the most about the land – the Tibetan farmers themselves – have very little control over the allocation system or the use to which their land is put.
The level of compensation offered through the LAL (whether under the formula set out in Article 47 or through the ambiguous requirement for “appropriate” compensation) has been criticised as inadequate to actually compensate farmers for the loss of their livelihood.[19] The World Bank has also noted that the requirement for compensation to go through the collective before it gets to the farmers gives opportunities for corruption and embezzlement at the local level.[20] As one legal analyst says, government officials take contracted land away from farmers for development because they want to and they can.[21]
The LAL’s failure to protect Tibetan farmers’ land tenure, and its inadequate compensation regime, is illustrated by the following case study. In this case land was taken from the farmer not for construction purposes but merely because the government wanted to farm it for its own profit. In 2002, farmers from Dechen township, Taktse County (26 kms east of Lhasa city), have been forced to return 100 mu of land to the government for it to cultivate. A recently arrived Tibetan explained:
It is said that the government paid 3,000 yuan for a mu of land. It was for that year only, with no extra money being given in subsequent years. 3,000 yuan does not compensate farmers for the yield from the land over many years. ... There is no choice as to whether you want to sell your land or not. They said it is the government’s land, which has been leased to the Tibetans, the Tibetans do not own the land. The government will grow vegetables on the land with the profit going to the government. The local farmers criticise these confiscations of land for such a paltry sum but they can’t say anything in public.[22]
It is not wholly clear which provisions of the LAL support the government’s requisition of land from these Tibetan farmers. However given the wide discretion of both Articles 2 and 58, which permit the state to requisition or take back land for “public purposes”, the state can simply justify requisitions as being in the interests of the national economic and social development programme (Article 17). Thus an understanding of land use in Tibet requires an understanding of China’s development agenda for the plateau.
The United Nations’ Expert Seminar on Forced Evictions issued Human Rights Guidelines on Development-Based Displacement in 1997.[23] These guidelines relate to people who are evicted from land or housing to make way for developments ranging from urban expansion programmes to infrastructure construction such as dams and railways. The guidelines apply equally to developments carried out by governments and those initiated by private companies. The guidelines entitle people to be given information about the project; to be consulted in the resettlement plans; to defend eviction in an independent court or tribunal; to be protected against violence or intimidation in the process of eviction; to be awarded appropriate compensation if their land or property is taken from them; and/or to be resettled in a location agreeable to them.[24]
China’s population transfer programme has mostly focused on encouraging non-Tibetan settlers to move to urban areas of Tibet. The result has been a rapid growth of Tibet’s towns and cities. Urban expansion inevitably means a loss of land to farmers or nomads who use the land on the periphery. Most are not compensated sufficiently. Nowhere is this expansion more obvious than in the area surrounding Lhasa. Lhasa city was no more than three square km in area and had a population of 30,000 and a mere 600 buildings in 1949, had grown to 53 square km in size with an estimated population of up to 400,000 in 2001. Moves for further expansion of Lhasa are afoot. The Chinese Communist Party’s Five Year Plan for 2001-2005 envisages Lhasa’s urban area to expand to 70 square km by the end of 2005, while the goal by 2015 is for a Lhasa, which, at 272 square km, will take up half of the Lhasa municipality. [25]
One initiative to expand Lhasa was the announcement in 2001 of a new Special Economic Zone (SEZ) in Toelung Dechen County, just outside of Lhasa. The SEZ will centre around the Lhasa terminus of the Qinghai-Tibet railway, currently under construction. Reports from Tibetans indicate that Chinese investors have begun land speculation: it is not known whether offers of compensation or alternative accommodation have been made to Tibetan farmers in Toelung Dechen. A Tibetan former official, now living in exile, predicted that anyone protesting against evictions resulting from this development will be dealt with severely because “...they would be accused of being a ‘splittist’, as someone who wants to destroy the country”.[26]
Clearly where the Beijing government has plans, private individuals must forego any rights. China’s Constitution, Civil Law or the LAL permit the goals of the government to take precedent over individual rights. If there is an order from the State Council to confiscate land in autonomous areas for “economic development” then private individuals may end up with very little or no compensation. Objectors to the development will be branded “splittists”.
One of the most fundamental elements of the UN Guidelines for Development-Based Evictions is informed consent. There are reported cases of some Tibetan families were completely overlooked in the resettlement plans and ended up with no land. In early 2000, the local Chinese authorities called the 60 families of a township in Gonjo County, Chamdo Prefecture, “TAR” for a meeting. The authorities explained that they would have to move out of the area to another area and if they did not they would have to pay a 70,000 yuan as fine. A refugee who escaped from Tibet early 2002, from the same township recounts that:
“The area chosen for the families to move to was Kongpo Gyama County, Nyingtri Prefecture, “TAR” where the Chinese authorities spent nearly two years building new houses. In December 2001, the authorities told us that the houses were ready for us to move. All the 60 families were then loaded into about 100 military trucks and we travelled for five days. While the Chinese authorities did not ask the families to pay for transportation, the families had to pay for all other expenses on the trip such as food and water.