For many years human rights monitors have reported on China’s denial of political and civil freedoms rather than focus on economic issues. In return, China often defends its stance on civil and political issues by claiming that its citizens are more interested in economic security than with personal freedoms. With China’s ratification of the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 2001, the time is ripe for a closer analysis of China’s record in relation to specific economic rights.

The Tibetan Centre for Human Rights and Democracy (TCHRD) has therefore prepared this Land and Housing Rights Report to present to two different forums. The first is the World Summit for Sustainable Development (WSSD), South Africa, September 2002; the second is the United Nations’ Committee for Economic, Social and Cultural Rights which will assess China’s first state report regarding the ICESCR, due in June 2003.

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.[i] 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. At the time of writing, many human rights NGOs participating in the Preparatory Meetings for the WSSD were outraged at the exclusion of human rights discourse from the Summit platform. It is to be hoped that the WSSD in Johannesburg will correct the course of international policy development. 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.[ii]

It must be stressed that this Report is not a result of fieldwork research. Although China is increasingly permitting NGOs and international academics to conduct research in various regions of China, given TCHRD’s background in human rights advocacy, we face insurmountable difficulties entering Tibet to conduct comprehensive research on housing and land conditions. TCHRD very much hopes that in the near future academics and/or international NGOs are able to conduct grassroots research in both the “TAR” and the rest of ethnographic Tibet.

In the absence of this level of access, TCHRD has researched academic papers and Beijing’s White Papers for data on China’s policies in Tibet. TCHRD has also made use of information provided to the centre by Western travellers. However, our greatest resource is the testimonies of recently-exiled Tibetans whom we have interviewed in India and Nepal since our inception six years ago. TCHRD strongly believes in a people-centred approach to human rights issues and to sustainable development. Tibetans best know what is happening in their country and the information they provide is crucial to understanding the situation on the ground.

This Report is titled “Dispossessed” because the key feature of land and housing in Tibet in the 20^th century is the dispossession by the Chinese government of Tibetan land and housing. Even recent reforms which purport to grant households greater tenure over land and housing actually have the effect of further alienating control over land resources from the people of Tibet.

The Report is divided into three sections.

Section I covers land rights issues in Tibet. The redrawing of the nation’s map by the PRC, allocating half the Tibetan Plateau to Chinese administrative provinces, was in itself a mammoth dispossession of land from the Tibetans. Subsequent control by the Chinese government has become more sophisticated, employing structural methods to achieve the same result: for example, the sponsorship of Chinese population transfer into Tibet. The section therefore examines China’s development programme which greatly affects Tibetans’ rights to their land.

This section also analyses the insecurity of land tenure of Tibetan farmers under China’s recent land reform policies. Land laws appear to give rural villagers certain rights to land, but on closer examination it is obvious that the Beijing government has reserved itself the right to dispossess farmers of their lands, without affording adequate compensation, when those lands are required for Beijing’s development agenda on the Tibetan Plateau. In addition, the biased enforcement of land protection policies has caused hardship to Tibetan farmers while permitting Chinese state and private enterprises to continue their massive resource extraction programmes. The section also reports on international research which shows that, despite strong expert evidence that Tibetan nomadism is the most sustainable use of the Tibetan Plateau’s fragile land, the PRC seems bent on eradicating nomadism within the next decade. This is causing not just poverty among Tibetan nomads but also leads to violent fights over land boundaries and hundreds of deaths.

Section II concerns housing rights and human settlements in Tibet. Laws of the PRC in relation to housing rights are found to be woefully inadequate to guard against forced evictions or racial discrimination in the housing sector. In general the PRC reserves itself the right to evict tenants and appropriate property where it is deemed in the public interest to do so. In Tibet, the public interest only too often means the interests of the Beijing government and not the interests of individual Tibetans. The Report examines the bias of the government toward providing subsidised housing for Chinese settlers while local Tibetans lack adequate housing. In urban areas, the enforcement of the hukou household registration system has a racial bias resulting in Tibetans being denied housing opportunities, rights to freedom of movement, and rights to freedom of residence. To entice migration into Tibet, Chinese settlers are exempted from the strict application of the hukou system. The erosion of Tibet’s religious institutions as a traditional provider of housing is also discussed.

Finally, Section III concerns the growth of homelessness in Tibet. Although statistics regarding homelessness in Tibet are largely unavailable, anecdotal evidence reveals the existence of a growing population of homeless Tibetans in urban areas. Such people are regularly subjected to grave human rights abuses including arbitrary detention and forced repatriation.

The Report concludes with a list of Recommendations to remedy the violations of international law and conform to the principles of sustainable development. Primary among these is the need for independent research and programmes in Tibet to address land rights and housing issues, particularly the escalation in homelessness.

Section I Land rights and sustainable land use

1. Traditional land use

The historic territory of Tibet consists of 2.5 million square km of land corresponding to the geological plateau China calls the Tibetan-Qinghai Plateau. Traditionally the plateau consisted of three provinces: U-Tsang in the west, bordering with India, Nepal and Bhutan; Amdo in the north-east, sharing borders with Mongolia, Eastern Turkestan (Xinjiang) and China; and Kham in the south-east, bordering China and Burma (Myanmar). Across these provinces the indigenous people identified themselves as Tibetan, rather than (for example) Han Chinese, Hui, Lisu or any other ethnicity. Tibetan people shared history, the Tibetan script and language (albeit with regional dialects), Buddhist religion and a predominantly rural culture. In 1949 the population of Tibet reached six million. While almost all were ethnic Tibetans, several thousand Nepali, Indian and other non-Tibetan traders lived in Lhasa, with some Hui Muslim Chinese from neighbouring Eastern Turkestan (Xinjiang), and some Han and other Chinese farmers in eastern Tibet.

Tibet is famous for its high mountains, sweeping grasslands extensively utilised by nomadic families, and small farming settlements perched in green valleys. It is also famous for its Buddhism, which declares a belief in the interdependence of all living things. It is hardly surprising that, traditionally, Tibetans lived in harmony with their land using sustainable development principles which kept human impact on the land to a minimum. These respectful practices also ensured survival.

A ninth century AD official from Amdo penned the following description of land in Tibet:

The Ten Virtues of Land

There are two virtues in its grass: one good for meadows near home, the other for more distant pasture;

Two virtues in its soil: earth to build houses and good earth for the fields;

Two virtues in its water: for drinking and irrigation;

Two virtues in its wood: timber for building and firewood;

(Two virtues in the Tibetan land): a land ideal for agriculture and, at the same time, good for pasturing flocks.[iii]

The vast majority of the Tibetan plateau – almost all of Amdo, the north-western part of U-Tsang, and western parts of Kham - is grassland.[iv] This region has been described as “one of the largest and most important pastoral areas on earth”.[v] Mountain ranges, some higher than 5,000 metres, are covered with green grasses for only a few months of the year.

Grasslands provided the backbone for drokpa, Tibet’s nomadic pasturing industry. Lands were traditionally used by nomads communally with the lives of pastoralists and their animals “tuned to the growth of the grass and the rhythms of the grazing lands”.[vi] Traditionally whole nomad families travelled with their herds of yaks, horses, sheep and/or goats across the massive plateau according to the seasons. In the summer the nomads traversed the high grasslands while in winter they drove their herds to lower pasture areas. Each nomadic group developed an intimate knowledge of the capacity of the land they traversed; their livelihoods depended on ensuring they did not over-graze.

The farming land of Tibet constitutes a mere 0.49 percent of land on the Tibetan Plateau. Agriculture is concentrated on the fertile soil of the valleys in the south which, at 3,000 metres above sea-level, are some of the highest croplands in the world.[vii] Kham was the most fertile cropland region, accounting for 85 percent of the plateau’s arable land.[viii] Grain-farming (shingpa) traditionally was mostly of barley, but other grains such as rice, maize, and millet were also cultivated. Non-grain crops included mustard-seed, cabbage, lettuce, radish, turnip, peas, potatoes, and tomatoes.[ix]

Semi-nomadism (sama-drok) was common in Kham. Families would split their labour between travelling with their herds in the summer and maintaining a farm in valleys. The older and youngest members of the family often stayed in the farmhouse all year to tend crops.

Land in Tibet was owned by the Lhasa government, monasteries, or aristocratic families. Traditionally grassland was the property of the state, but in practice it was held in communal tenure for nomads to traverse with their herds. Most farmers worked land belonging to one of the land-owning groups; in return they were granted a portion of land free of rent from which they would produce enough for self-sufficiency.[x] The animals herded by nomads in most cases belonged to the nomad families themselves, although the government, local monasteries and local aristocrats taxed the animals for consumption. Although there were gross inequalities in the distribution of wealth, the rural community was self-sufficient and food insecurity was rare.

2. The right to land: a norm emerging from international covenants and guidelines on sustainable development

Unlike housing, 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.

2.1 International laws relevant to the right to land

The global organisation Habitat International Coalition[xi] has pointed out that access to land is a prerequisite to the fulfilment of the right to housing, food and culture which are contained in the ICESCR.[xii] Involvement 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:

Article 1

(1) All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

(2) All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

Article 2

(2) The States Parties to present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

One instance of a violation of the rights to self-determination and development is population transfer by governments in attempts to control existing populations or limit their right to self-determination. Population transfer will be further discussed in Chapter 4.1.

The right to development contained in the ICESCR has also been clarified by the Declaration on the Right to Development. This Declaration makes it clear that the right to development obliges governments to

formulate appropriate national development policies that aim at the constant improvement of the well being of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom.[xiii]

In addition to these general rights contained in the ICESCR, the growing body of law regarding indigenous peoples also confirms the importance of land rights. While not yet formally recognised in international law, these principles give indigenous people the right to protection of traditional land tenure and land use systems, the right not to be removed or relocated away from traditional lands, and the right not to be discriminated against in the formulation of land laws and policies.[xiv]

2.2 Principles of sustainable development regarding the right to land

While the above laws imply the existence of a right to land, 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”.[xv] It also states that people should be protected by law against unfair eviction from their land.[xvi]

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”. [xvii] 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”.[xviii]

One of the central platforms of sustainable development is “people’s participation”: the involvement in policy development of the people who are affected by the policies. For example, a “farmer-centred approach”, involving the decentralisation of decision-making away from national governments and towards local and community organisations especially farmers’ organisations, is described as the key to sustainability in agriculture.[xix]

In December 2001 the Secretary-General’s Report on “Implementing Agenda 21” stated:

110. In many countries, existing systems of land tenure and land-use planning do not generally promote sustainable land use. …. There is a need to strengthen institutional arrangements for land tenure, with the participation of civil society and local governments in the delivery of decentralised land administration services. Effective land tenure reform and land-use planning require coordination and cooperation within and among several ministries and an equitable participatory process involving local communities and multiple stakeholders.

112. Land reforms have been more successful and easier to implement when beneficiaries and other stakeholders participate in their design and implementation, and when there is a strong political will to carry them out… [xx]

2.3 Working definition of a right to land

From these international laws and principles of sustainable development, 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. [xxi]

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.

3. PRC land laws and policies in Tibet

3.1 Legal and policy developments from 1949 to the present day

When the Communists gained control of China in 1949 they made it clear that they regarded Tibet as Chinese territory.[xxii] Tibetans refuted this vociferously but in 1950 Chinese troops overwhelmed the Tibetan army. From this point on, the Beijing government assumed increasing ownership and control of the land of Tibet, with Tibetans having little influence on the way in which their land was used.

The following exchange makes this point abundantly clear. A Tibetan arrested for protesting against a mining project in Meldrogonkar county, Lhasa municipality, “TAR”, was told by the authorities:

Tibetans do not have the right to say anything on the matter since the land belongs to the country of China.[xxiii]

One of the first acts of the Chinese Communist Party after invading and taking possession of the land of Tibet was redrawing the map of the Tibetan Plateau. From 1951 onwards the Communists began to demarcate administrative regions within Kham and Amdo, and started marking out the territory to become the “Tibet Autonomous Region” (“TAR”), corresponding loosely with the original Tibetan province of U-Tsang.

In 1965, China officially declared the creation of the “TAR”. The provinces of Kham and Amdo were eradicated, becoming a collection of “Tibetan Autonomous Prefectures” or “Tibetan Autonomous Counties” under administration of the province of Qinghai in the north and the provinces of Sichuan, Yunnan, and Gansu in the south-east. These areas collectively were almost as large as the “TAR” and even today contain a greater number of Tibetans than “TAR” itself.[xxiv] It is worth noting that Kham and Amdo contained most of the fertile agricultural land, forests, and river resources of the Tibetan Plateau (see Chapter 1). In incorporating Kham and Amdo into existing Chinese provinces China made sure that the choicest parts of the plateau came under immediate provincial control.

The confiscation of land from private owners and redistribution to “the masses” was one of the Communists’ central platforms. In the 1950s China’s attempts to implement land reform and to settle the nomads in Kham (Gansu, Sichuan and Yunnan) met with fierce resistance which turned into a wide-spread revolt against Chinese rule, causing thousands of deaths, and sparking the 1959 Tibetan uprising in central Tibet.[xxv] After the revolt, part of the Communists’ motivation in implementing land reform was to punish anyone who had taken part in the 1959 uprisings, anyone who had fled to India with the Dalai Lama, or anyone who belonged to the “aristocratic class”.[xxvi]

Many poorer sections of Tibetan society welcomed receiving land from the large manorial estates, particularly when they were handed the land titles.[xxvii] However, “while the Tibetan masses did not question their right to the land, they doubted whether the Chinese had the right to dispense it”.[xxviii] The situation was different, however, when the Communists began taking land from monasteries. Tibetan Buddhism was so tightly interwoven into the fabric of Tibetan culture that the Tibetan people viewed land confiscation from monasteries as an attack on Tibetan identity.[xxix]

From 1955-1962 the Communists continued to redistribute land to individual Tibetan farmers, and also organised the majority of farmers into “mutual aid groups” which replaced the traditional economic structures based on manorial estates.[xxx] However, ill-conceived attempts to cultivate grassland led to food shortages and crop failures.[xxxi] It was during this period that the International Commission of Jurists examined the situation of Tibet and found, inter alia: that Tibetans had lost control over the affairs of Tibet; that Article 17 of the Universal Declaration of Human Rights which guaranteed property rights including rights to land, had been violated; and that the Chinese authorities were carrying out the economic and social reforms against the will of the Tibetan people.[xxxii]

In the mid-1960s the Communists began to phase out “mutual aid groups” to be replaced by communes. This was extremely unpopular in Tibet. The peasants who had been so happy to receive their own plots of land, and the nomads their own animals, now had to relinquish all of this, and more: they were ordered to give away their personal household possessions.[xxxiii]

Although communes themselves could be quite large, below the commune there was a production team, basically an administrative construction for further ease of control, and below that a production group which generally correlated with natural villages or groups of nomads. All levels of the communes were controlled by Chinese Communist policy. The farmers could not choose the crops to farm, the quotas or the farming methods. Surplus grain was sold to the state procurement board and the people received no benefit from hard work.[xxxiv] Effectively the farmers were being employed by the State to work land which for one brief moment they had proudly called their own. To make matters worse, the Chinese Communists attempted to convert grasslands to cropland with disastrous effect. Not only did the crops fail, causing mass food shortages, it also set off a degradation of the grasslands that persists to this day.[xxxv]

Following the Cultural Revolution (1966 – 1976) the PRC admitted that the commune system had been disastrous throughout China and Tibet. In the early 1980s the Tibetan communes were disbanded. The commune was replaced with a new administrative unit called townships; the production team was replaced by administrative villages; and the production groups became villagers groups.[xxxvi] Ownership of rural land was still said to vest in the “collectives” but they were leased to individual households under the “Household Responsibility System”.[xxxvii] The amount of land allocated to families was based on the number of people in the family at that time, with re-allocations only authorised by local provincial governments.[xxxviii] The leases were eventually extended under the current Land Administration Act to 30-year terms, as detailed in the next Chapter.

3.2 Current land laws

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[xxxix] 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.[xl]

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”[xli] and a keystone to their sustainable development policies.[xlii] 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.[xliii]

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.[xliv]

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.[xlv] 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.[xlvi] As one legal analyst says, government officials take co