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 tenure

LGAF: land governance assessment framework

GLTN: 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

system

3. Attempts to acquire the land

through voluntary transactions

4. 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 listed

2. No SIA (SSRA only for E of

houses on state-owned land);

government-dominated

planning

3. 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 Assessment

APL: Administrative Procedure Law

SIA: Social Impact Assessment

Phase 2: compensation and resettlement

decision

The international framework

1. 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 entirecompensation or a substantialpercentage 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 framework

1. A special monitoring agency is supposed to be established

2. 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 system

2. Emerging, but no clear

channels

3. Even if having new planning,

the original landholder has no

right to reacquire

4. 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

1

2

3

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

4

5

6

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

1

4

3

2

Thank you for your attention