Article body

“To be rooted is perhaps the most important and least recognized need of the human soul. It is one of the hardest to define.”

Simone Weil, L’Enracinement

I. Introduction

Over the past three decades, the People’s Republic of China (China) has lifted hundreds of millions of people out of poverty.[1] Since 1978, economic reform and opening-up have dramatically reoriented the country’s previous planned economy towards the free market, generating in its place an increasingly dynamic economy. Increased freedoms have broadened social and material opportunities for Chinese people.[2] The exodus of the rural labour force from the countryside to the industries of the cities significantly sustained the process of economic reform and industrialization. Economic growth, however, did not coincide with social development and has not yet led to a commensurate recognition of socio-economic, civil and political rights. One of the most relevant examples of the dichotomy between China’s extensive economic growth and its traditionally hesitant (and most recently resistant) human rights’ approach is the retention of the hukou system, a form of population registration required by law since 1958. Nearly all the rights and interests of the citizens are attached to the hukou (household registration), i.e., to everyone’s official residence. Modelled after the Soviet propiska system[3] and with deep roots in imperial China, the hukou system is a State institution that regulates and restricts population mobility. The hukou registration was one of the fundamental tools used by the Chinese government to realize a strategy of economic growth based on rapid industrialization in the cities and extraction of agricultural surplus in the farmlands.

With China’s reform and opening-up, people began to move to the cities in search of better opportunities. However, the hukou system continued to constrain such movements. Notwithstanding various attempts to reform the system, its current implementation remains at the source of some of the most serious forms of institutional exclusion against rural migrant workers and their families in China. Under this system, millions of Chinese citizens from the rural areas were treated as inferior second-class citizens: they were not only formally denied freedom of movement within their own country, but also excluded from access to welfare, state-provided goods and other entitlements.[4]

The hukou system contributed to fostering the discrimination and “uprootedness” of rural Chinese citizens. Uprootedness has been defined by the French philosopher Simone Weil as a spiritual malaise affecting the human soul, with far-reaching social and political consequences.[5] In what follows, we shall outline the symptoms of such malady in the current configuration of the hukou system. We shall then submit that the most appropriate antidote could be found in a holistic human rights approach to the most recently propounded reforms of the system.

The hallmark of Weil’s contribution in this context is perhaps the dismissal of the language of rights—individual claims against others—and the shift to that of needs, duties and obligations as the basis of a good society.[6] The vigour and lucidity of Weil’s conception of obligation have the potential to operate a truly Copernican revolution, subverting the logic of individual rights to that of subjectivity capable of responsibilities towards others, even before claiming rights. The work of Simone Weil, therefore, appears particularly relevant in a context where human rights are increasingly contested.[7]

In this article, we shall attempt to portray the tragedy of uprootedness in relation to the Chinese hukou system and to identify the human rights norms applicable in such context. To this end, the present contribution consists of three parts. The starting point rests on a brief historical exploration of the hukou system’s legal framework. In order to better understand the role of this peculiar system, we shall outline an overview of its evolution and unique features. The second part of the article considers the hukou system through the lens of international human rights standards. We propose to address the right to freedom of movement and residence within the territory of a State and its connections with other basic human rights. We shall emphasize that the possibility to move between and within states is an important condition for the exercise of human rights in general. It shall then be possible to unearth the principle of equality and non-discrimination as the ultimate benchmark for the protection internal migrants’ rights. The crosscutting nature of this fundamental principle is evidenced by a concise consideration of hukou system’s ramifications with respect to three broad areas of discrimination: the denial of just and fair conditions of work, the exclusion from health care and from public education.

Against this background, the third part of the article concludes with a comprehensive appraisal of the latest hukou reforms and their impact on the previously addressed human rights concerns. We shall finally submit that although the hukou system forms an important part of the Chinese social structure, it requires a thorough and far-reaching reform. This will be crucial to uphold China’s human rights obligations and, as a consequence, to tackle the issue of its people’s uprootedness.

II. Genealogy of the Hukou System

The origins of the hukou system are deeply rooted in the history of China and can be traced back to the Xia Dynasty (from 21st to 16th centuries BC). Thenceforth, until the fall of the Qing Dynasty (in AD 1911), the household registration system was one of the most significant instruments of social control, in terms of vital statistics, taxation and conscription.[8] The influence of this system on Chinese society and on its cultural and political evolution is vital. However, despite its long history, the influence of the hukou system on the lives of the Chinese citizens was relatively negligible in the past.

It is noteworthy that Article 90 of the 1954 Chinese Constitution guaranteed, “freedom of residence and freedom to change their residence.”[9] The provision reiterated the historical practice concerning freedom of movement and residence as codified in the 1911 Provisional Constitution of the Republic of China.[10] This constitutional guarantee was removed from the subsequent Constitutions, paving the way for the present hukou system. During the fifties, a uniform and far-reaching version of the hukou system was gradually introduced. The legal basis of the system was established in 1958, when the Standing Committee of the National People’s Congress (NPC) promulgated the People’s Republic of China Regulations on Household Registration.[11] These regulations represent the legal foundation of the hukou system and, although they have undergone various reforms during the years, they remain in force today.

Modelled after the Soviet propiska system,[12] the hukou system requires every citizen belonging to a household to be recorded in a register kept by the local authorities. Every citizen inherits a hukou registration at birth and it may be altered only under very limited, if not exceptional, circumstances.[13] The term hukou refers to two aspects of the registration: the hukou location, corresponding to the geographical location of its holder; and the hukou type, related to its holder’s occupation.[14] With regard to the first aspect, all Chinese citizens were classified according to their permanent residence, i.e., the administrative unit (city, town or village) of the hukou registration. Thereafter, the second aspect of the hukou referred to the occupation of its holder, which could be of two types: agricultural and non-agricultural. The distinction determined one’s entitlements to State-provided goods and services. Whereas agricultural hukou entailed the right to possess and cultivate the land, non-agricultural hukou were provided with goods and services necessary for their subsistence in the cities. When this taxonomy first came into being, it reflected the geographical and occupational division in China’s economy, associating agricultural hukou with peasants living in the countryside and non-agricultural hukou with the industrial workers living in urban areas. In sum, while the hukou type defined which services and welfare were available to an individual, the hukou location determined where an individual would receive them.

Any official permanent movement from the countryside to the cities required approval from State authorities to convert the hukou type from agricultural to non-agricultural, a process referred to as nongzhuangfei; subsequently, it was possible to change the hukou location. In this two-step process, the conversion of the hukou type was the more critical, complex and strictly controlled. The rigid criteria for obtaining a nongzhuangfei were established by the central government and designed to serve the needs of the State.[15]

The 1958 codification of the hukou system was the result of the institution of a system of planned economy oriented towards industrialization that required social control and meticulous organization, coupled with a strategy premised on the unequal exchange of agriculture and industrial development.[16] The ban on rural outflows, implemented by the hukou system, along with an array of measures related to economic planning, such as food rationing, collectivization of farmlands, urban welfare and centralized labour allocation enabled the extraction of value from the agricultural to the industrial sector in urban areas. Given that the agricultural population was supposed to obtain its means of livelihood and social security from lands, citizens with agricultural hukou registration were expected to be self-sufficient, receiving very limited, if any, support from the State. By contrast, those living in urban areas were automatically entitled to rationed food grain, State-guaranteed employment and an array of welfare provisions such as housing, education, medical care, and other benefits, distributed and funded by the central government.[17] During the Maoist era, these mechanisms served to subsidize industrialization, while internal migrations were hindered. Without access to legal residence permit and all the related community membership-based facilities, rural population with agricultural hukou was de jure and de facto prevented from living in urban areas. This system confined rural citizens in the countryside, creating what has been defined as a “rural-urban apartheid.”[18]

The social and economic separation between rural and urban citizens determined by the hukou system was exacerbated by the reforms launched by Deng Xiaoping from 1978. The reform and opening-up stimulated China’s economic dynamism. This period was characterized by rural de-collectivization, marketization and urban expansion. Years of obstruction of free mobility and the exclusion of the rural population from non-agricultural employment in urban regions had curbed vitality and dynamism of urban economies. But starting from 1978, economic growth and free market alternatives increased non-compliance with hukou regulations established to prevent rural to urban migration.[19] This situation determined the origins of a particularly vulnerable segment of society, which is de facto residing in a city or town, but maintains its de jure household registration in the countryside, without having access to many basic social services and experiencing higher levels of poverty compared to local hukou holders.

A synergy of various push and pull factors was emerging: growing dynamism in urban economies created numerous job opportunities, many of which were in labour-intensive sectors, such as construction and manufacturing; meanwhile, in the countryside, pollution, loss of farmland and desertification caused arable land to decrease dramatically together with the principal means of subsistence of the rural population. This, together with the de-collectivization of countryside, created a large surplus of the labour force that was rapidly accommodated in the industries of the urban areas. Such a synergy was made possible thanks to the gradual relaxation of migratory controls related to the hukou system.[20]

Starting from the eighties, the government implemented a series of policies to adapt the rigorous hukou system to new exigencies of urbanization and industrialization and rural-urban migration, which was gaining momentum. Peasants were now allowed to move to urban areas, where they filled unwanted positions in the industrial sector, giving an essential contribution to the Chinese exponential economic growth. The opportunities opening in the cities were so attractive for the rural population that they endured working conditions intolerable for urban residents. Rural migrants rapidly became the major source of industrial labour. The law started consequently to adapt to this new reality.[21]

The major reforms of the hukou system have been combined with a process of decentralization.[22] Since the eighties, the central government has gradually implemented various programs to devolve fiscal and administrative powers to regional governments. This included the management of the hukou system. General guidelines began to be introduced at national level, while direct regulations were issued at local level. One of the most emblematic practices of many urban local administrations was the “selling of hukou,” with the introduction of the “blue-stamped” hukou. The “blue-stamped” hukou (in contrast to the official “red-stamped” one) was mostly targeted at migrants who could afford to invest or purchase housing in host cities, or who were considered to be highly qualified talents urgently needed by local employers.[23] The commodification of hukou aimed at attracting the most desirable segments of the migrant population by providing them right of abode and certain social welfare in urban areas.[24] Local governments in their management of hukou policies are generally driven by their own local interests, hence the idea of commodifying the hukou through market selectivity. This combination of factors resulted in the exclusion of the great majority of rural—urban migrants from obtaining local hukou status due to the high entry thresholds. Local governments’ policies have played an important role in stimulating the market competition, but at the same time have not duly considered the relevance of their responsibility for redistribution of social services.

Furthermore, few municipalities and provinces began to abolish the nongzhuanfei, i.e., the agricultural/non-agricultural status distinction. Consequently, the conversion of one’s hukou, which used to be a two-step process, was simplified to a unique procedure merely concerning the localization of the hukou registration. Each local administration defined the eligibility conditions to change one’s hukou location.[25] These criteria, especially in large cities, were very stringent—in general, the decision of city governments to bestow local permanent hukou was mostly based on (significant) financial means, educational accomplishments and marriage with local residents. Ordinary peasants resulted almost completely excluded from obtaining local hukou status in the large cities, whereas small towns, with far fewer social benefits, had the lowest entry thresholds. Small urban centres, however, were not migrants’ targets due to the lack of job opportunities.

It is also worth noting that hukou reforms have often gone hand in hand with the attempt to separate land use rights and the hukou status of individuals—and, therefore, the land relations in the countryside.[26] Agricultural land was highly demanded for urban expansion. It has therefore been the target of local governments through expropriation and hukou reforms. Many local governments eliminated the distinction between agricultural and non-agricultural hukou, with the declared objective to remove social and legal discrimination against agricultural hukou holders.[27] It seems, however, undisputable that the reform also served the disguised purpose to separate rural hukou from land rights. The rights to rural land represent not only a membership status arguably linked to one’s identity, but also an important form of long-term security. Thus, rural migrants living in the cities were generally disinclined to sell land rights in exchange for an urban hukou.[28]

The decentralized nature of the hukou system implies the problem of effective implementation of central guidelines by local administrations, which have limited financial funding to support the extension of public services to the migrant population. Hence the reluctance of local authorities to open their hukou system doors indiscriminately and include migrant workers in community-based welfare systems. It remains unclear what enforcement mechanisms will be put in place in order to implement and encourage compliance at local level.[29]

Notwithstanding various attempts to reform this discriminatory system, the application of the hukou system remains the source of the most serious forms of institutional exclusion against rural migrant workers and their families. It is ultimately possible to observe two different categories of migrants: those who have hukou related rights and those who do not. Despite more permissive policies related to mobility, rural citizens remain heavily constrained by the discriminatory institutional legacy of the hukou system. These citizens, though working and residing in cities and towns, in most cases are still not considered local workers and residents. As a result, they are excluded from most of the public benefits and entitlements provided to urban hukou-registered citizens.

The hukou system plays a complex role in Chinese society. Its preservation has often been justified by arguments underscoring its pivotal contribution to the nation’s socio-political stability and economic growth.[30] The hukou system allows for selective internal migration. It provides the government with the means to control labour allocation and therefore to facilitate the growth of market economy.[31] Furthermore, the hukou system is deep-rooted in Chinese social life and profoundly influences people’s identity. Hence, it is argued that through its inherent discriminatory logic, based on a hierarchy of hukou statuses, the hukou system facilitates authoritarian governmentality in China. As Bentham’s panopticon, the contemporary hukou has become a tool of surveillance.[32] Hence, the complex and profound socio-political and economic functions of the hukou system in contemporary China make its reform both symbolically delicate and highly complicated.

The human rights relevance of the hukou system is linked to its coordination with centralized policies of planned economy, which dealt with the redistribution of social and economic resources.[33] A coordination that, to some extent, is still in place; consequently, people have access to public services and welfare based on their hukou registration. In this vein, before turning to the human rights implication of this system, it might be worth mentioning a final caveat. Even if this essay makes generalizations about the hukou system, it is important to bear in mind that it is still not implemented evenhandedly across China. The discretion of various local authorities determines uneven policies, which might lead to different human rights implications.

III. The Hukou System and International Human Rights Law

The impact of international human rights law on the hukou system and its reforms should be considered within the general framework in which international law operates in the Chinese legal system. In China, the abstract relationship between international law and domestic law is explained neither in terms of monism nor dualism. Instead, Chinese scholars adopted a dialectical approach according to which international law and domestic law are separate systems that infiltrate and supplement one another.[34] The Chinese Constitution is silent regarding the status of public international law in the domestic legal system. There is thus no need for further incorporation into national law: domestic courts can directly apply a ratified international treaty. Despite this, practice courts are quite hesitant to directly refer to international law in their decisions.[35] Generally, the impact of international law on the Chinese hukou system can be observed at two levels: one concerns the human rights obligations that China has towards individuals based on the treaties it has ratified; the other concerns the obligations deriving from customary international law and the general principles informing the international legal system.

As it will be shown in the following sections, the hukou system, as it currently stands, appears inconsistent with the obligations established by international human rights treaties that China has ratified or may ratify in the future. The first human right obligation infringed upon by this peculiar system is the freedom of movement and residence within the territory of States, included in the International Covenant on Civil and Political Rights[36] (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).[37] In this respect, it may be worth remembering that China has signed the ICESCR and the ICCPR, but while it has ratified the former it has still not accessed to the latter.[38] However, China is a party to the International Convention on the Elimination of All Forms of Racial Discrimination, [39] the Convention on the Elimination of All Forms of Discrimination Against Women,[40] the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,[41] the Convention on the Rights of the Child,[42] and the Convention of the Rights of Persons With Disabilities.[43] All these instruments deal with civil and political rights, such as freedom of movement, to a various extent. Furthermore, the hukou system appears at odds not only with the right to freedom of internal movement, but also with several human rights obligations, such as the right to just and favourable conditions of work, the right to education, the right to health and the comprehensive and crosscutting right to equal treatment with regard to the enjoyment of all these rights. These rights are intertwined with the freedom of internal movement and are included in various treaties that China has ratified. The common denominator of all these human rights concerns rests on the fundamental principle of equality and non-discrimination, the ultimate guarantee of migrants’ rights.

In what follows, we shall provide a brief overview of the human rights obligations that descend from the international legal instruments that bind China. In doing so, we shall highlight the legal complexities which arise in their actual implementation, as well as the possible avenues for their reception in the Chinese context.

A. The Right to Freedom of Movement within the Territory of a State

Restrictions on the freedom of movement of people have been considered by different philosophical stances to be morally unjustifiable, economically inefficient and socially unjust. For instance, while Adam Smith considered restrictions on the possibility to move freely in one’s country as a violation of natural justice,[44] Vladimir Lenin argued that “[u]nless the population becomes mobile, it cannot develop.”[45] According to Lenin, migration should be regarded as a progressive phenomenon which has the potential to destroy “bonded forms of hire and labour-service.”[46] It might thus appear surprising that China, whose Constitution praises the guidance of Marxism-Leninism and whose leaders at the same time favourably quote Adam Smith’s moral philosophy,[47] upholds a system premised on severe restrictions of people’s freedom of movement and residence.[48]

Freedom of movement is the norm in human history, and the right to freedom of movement, as recognized in international human rights instruments, can be easily connected to notions of individual autonomy and self-determination. Correspondingly, freedom of internal movement and residence emerges from the preparatory work to the ICCPR as “an important human right and one which was an essential part of the right to personal liberty.”[49] In the words of the UN Human Rights Committee, “[l]iberty of movement is an indispensable condition for the free development of a person.”[50] The right of freedom of movement is certainly one of the core rights of citizenship guaranteed by democratic States and one of the most fundamental human rights protected by international law.[51] The related rights of entry, residence and exit are inextricably interdependent: “The denial of any one makes the assertion of the others a chimera rather than a reality.”[52] The sine qua non for these rights is the freedom of movement and residence within the borders of a State.

Freedom of internal movement and residence, however, does not merely pertain the domain of individual rights. It also is of crucial significance for collective values such as democracy and the rule of law. In fact, the right to freedom of internal movement and the right to non-discrimination accompanying such movement constrain the capacity of domestic political actors to scapegoat and exclude minorities, refusing them access to their legally guaranteed rights.[53] In this vein, the right to freedom of movement and residence to some extent constitute the “hallmark of a democratic society.”[54]

The importance of freedom of movement and residence within the territory of a State is evident. With the gradual spread of international human rights law into domestic affairs, the issue of freedom of internal movement and residence is no longer an issue of exclusive domestic concern.[55] Notably, in 1948, the Universal Declaration of Human Rights (UDHR) affirmed that “everyone has the right to freedom of movement and residence within the borders of each State.”[56] Similarly, Section 12(1) of the ICCPR reads as follows: “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.” According to the UN Human Rights Committee:

The right to move freely relates to the whole territory of a State, including all parts of federal States. […] The enjoyment of this right must not be made dependent on any particular purpose or reason for the person wanting to move or to stay in a place.[57]

At the same time, Section 12(3) provides exceptional circumstances in which this right may be restricted. Restrictions on freedom of movement shall be, however, constrained by the legal requirements included in the provisions that stipulate such freedom. Most notably, Section 12(3) of the ICCPR commands that restrictions of freedom of movement and residence should be a) provided by law; b) necessary to protect national security, public order, public health or morals and others; and c) consistent with the other rights enshrined in the ICCPR.[58]

The right to freedom of internal movement should be, however, qualified with its possible restrictions, based on legal, reasonably justified and necessary criteria. The right to freedom of movement and residence within the territory of the State should be regarded as a rule to which restrictions are the exception. Given their exceptional nature, such restrictions must be provided by the law and narrowly interpreted.[59] Furthermore, it is not sufficient that such restrictions respond to the principle of legality. Restrictive measures must be necessary to achieve their legitimate purposes; they must conform to the principle of proportionality.[60] Finally, as observed by the UN Human Rights Committee, these constraints need to be consistent not only with the principle of legality and proportionality, but also with the fundamental principles of equality and non-discrimination.[61]

As the universal underpinning of international human rights law, the ICCPR ensures a solid conventional basis to the right of freedom of movement within the territory of a State. This solid conventional basis has been confirmed and reinforced by many other universal and regional treaties. To date, the right of freedom of internal movement and residence have been included in a wide range of international and regional human rights conventions,[62] as well as endorsed in a number of soft-law instruments.[63] In the light of the consistency of State practice and general recognition of a qualified right of freedom of internal movement, it could be possible to infer the initiation of a process leading to the emergence of a customary law norm. This would imply that all the members of the international community would be bound to respect the right to freedom of internal movement automatically and independently of any specific assent.[64] By contrast, however, it has been argued that even though both the right to leave and the right to return are well established in conventional and customary international law,[65] the right to freedom of internal movement has not yet obtained the same legal status.[66]

The emergence of a customary legal norm notwithstanding, the procedural guarantees that restrictions on the right to freedom of internal movement entail are informed by general principles of law and as such they are binding on China irrespective of express consent. The principles of legality, proportionality, restrictive interpretation, equality and non-discrimination aim to restrain arbitrariness and the unfettered discretion of States[67] and, therefore, become particularly relevant when juxtaposed to the analysis of the hukou system.

First, one can question whether the current configuration of the hukou system is in line with the principle of legality. Some commentators have already put forward the argument that the hukou system rests on rather frail legal basis.[68] According to these authors, despite its important impact on the lives of Chinese citizens, the system originates from a set of administrative regulations and ministerial decrees that in the hierarchy of legal sources are in a subordinate position to that of laws.[69] Accordingly, even though the 1958 People’s Republic of China Regulations on Household Registration were issued by the Standing Committee of the National People’s Congress, they cannot be considered as law under international human rights law.[70] However, it is difficult to claim that the implementation of such system does not respond to the fundamental requirement of generality, publicity and certainty.[71]

Second, the hukou system is arguably not a set of measures necessary for the protection of national security, public order, public health, morals or the right and freedom of others and cannot be regarded as a legitimate means to achieve such ends. It appears inapt to achieve its purported functions (that is, to maintain social and economic stability). It could be contended that the hukou system serves to protect the public interest or public order. The system was indeed defended in public discourse as preventing mass migration from rural to urban areas and the consequent proliferation of slums as in many developing countries.[72] The accuracy of such an assertion can be questioned at least from two perspectives. First, the hukou restrictions on labour mobility are economically inefficient. Empirical studies show that such restrictions decrease productivity and hinder aggregate consumption.[73] Indeed, the hukou system places an unnecessary burden on rural migrant workers, who incur in important costs of migration, which could be used to improve their quality of life and reduce socio-economic inequalities.[74] Second, the increasing divide between urban and rural hukou population with the creation of a social underclass has the potential to generate social unrest. In the light of the above, the hukou system cannot be regarded as “the least intrusive instrument among those which might achieve the desired result.”[75]

Third, the consistency of the hukou system with the principle of proportionality is also doubtful. The hukou registration system represents perhaps, “the strictest set of controls over the movement of the population of any State in the modern world.”[76] Generally, States regulate the movement and residence of individuals within their territory by a variety of means, which include travel permits, registration, identity cards, passports or other documents. Systems of registering persons do not constitute per se a restriction of movement, but they provide a means for doing so, under specific circumstances provided by the law, should the necessity arise.[77] The hukou system, however, makes the restrictions to freedom of movement so severe that it deprives those subject to it from such freedom.

Fourth, the principle of equality and non-discrimination is also inconsistent with the current implementation of the hukou system. Such fundamental principle is not respected by a discriminatory policy which makes distinctions on the basis of social origin. In the following paragraphs, this question will be addressed in further detail. For the time being, it is worth noting that even if the right to freedom of internal movement has not yet obtained the status of customary international human rights law, the principle of non-discrimination can not only be regarded as a general principle informing international human rights law, but also generally recognized as a rule of customary international law. The principle of equality and non-discrimination must therefore be respected by all members of the international community.

To conclude, the hukou system is inconsistent with the international human rights standards concerning the right to freedom of movement and residence mainly enshrined in Article 13 UDHR, as well as in Article 12 ICCPR and other international and regional treaties. China has, however, not yet ratified the ICCPR and is not bound by Article 12.[78] By the same token, China is also not subject to the treaty’s monitoring body, the Human Rights Committee (HRC), which has already critically questioned the compatibility of systems of travel restriction comparable to the hukou.[79] That notwithstanding, the principles of legality, proportionality, restrictive interpretation, equality and non-discrimination remain the fundamental benchmarks for the evaluation of the hukou system and for the protection of internal migrants’ rights, irrespective of China’s membership to a given treaty.[80]

Finally, and from a different angle, despite the inapplicability of Article 12, it is worth remembering that the People’s Republic of China signed the ICCPR on 5 October 1998 and has ever since been seriously pondering the issue of ratification.[81] It could thus be argued that there is a legitimate expectation that China will abstain from any action that would have the effect of defeating the object and purpose of the Convention. The legitimate expectations that a party of a treaty would act with reasonable loyalty are protected by the general principle of good faith. The principle of good faith permeates the law of treaties.[82] Good faith is particularly relevant when it comes to the interim obligations of signatories of treaties not yet in force. In this vein, according to Article 18 of the Vienna Convention on the Law of Treaties (VCLT):

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) It has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.[83]

Given the multifarious repercussions that the hukou restrictions on freedom of internal movement have on many other fundamental rights,[84] as well as its incompatibility with the idea of individual freedom propounded by the ICCPR,[85] it seems conceivable that by maintaining such restrictions China would defeat the object and purpose of the ICCPR. The principle of good faith mandates that, in preparation for its eventual ratification of the ICCPR, China should enact gradual reforms to enhance people mobility, while including every citizen irrespective of their social status or origins in the basic public service system.

B. Economic, Social and Cultural Inequalities

Arbitrary restrictions upon the right to freedom of internal movement often lead to the denial of economic, social and cultural rights, as well as of other civil and political rights.[86] The hukou system showcases this delicate interplay. In what follows, we shall focus on its relation to economic, social and cultural rights. Bearing in mind that China has ratified the ICESCR, and that the State is thus obliged to the progressive realization of legal obligations enshrined therein,[87] it is important to emphasize that the exercise of such rights is subject to the principle of equality and non-discrimination which, as will be discussed in the next section, is directly applicable.[88]

Restrictions on freedom of movement and the inherent discriminatory nature of the hukou system determines inequality in various ways. First, they prevent rural residents from moving to urban areas where these residents would have access to better opportunities in relation to their work and consequent income.[89] Second, citizens with rural hukou registration have access to poorer education compared to their urban counterparts, creating educational disparities that exacerbate social inequalities.[90] Third, the hukou status, in combination with the restriction of mobility and uneven distribution of resources, led to significant inequalities in access to health-related goods and services for different segments of the population.[91]

Migrants’ contribution to economic growth in China has come at a human cost, especially for those in an irregular situation. This is generally the case of migrant workers without local hukou registration, who are still forced by circumstances to migrate in order to find work in larger cities at whatever physical, psychological or economic cost.[92] Their irregular position makes it more difficult for migrant workers to demand a labour contract, and it exposes them to exploitative working conditions without any effective legal remedy.[93] Article 7 ICESCR mandates the guarantee of just and favourable conditions of work, including “fair wages and equal remuneration for work of equal value without distinction of any kind.”[94] The hukou system, with its barriers to workers’ legal mobility, leads to unequal conditions of work, where rural migrant workers are less paid and are less protected by the legal system than their urban peers.

In terms of health care, Chinese internal migrants inhabit an environment of vulnerability and marginalization. Their status as outsiders in the urban areas virtually excludes them from the health care system. They are typically not eligible for urban health insurance, which is available only to urban residents. Moreover, expensive insurance programs are beyond their economic capacities. The health care available to Chinese internal migrants is usually provided in the rural areas from which they come by virtue of their hukou registration. However, in general, rural health care is remarkably inferior to that offered in the cities.[95] Article 12 ICESCR recognizes, “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” It provides that States must take the necessary measures to achieve the full realization of this right. According to the Committee on Economic, Social and Cultural Rights (CESCR), services related to health care and the determinants of health must be:

[…] based on the principle of equity, ensuring that these services, either privately or publicly provided, are affordable for all, including socially disadvantaged groups. Equity demands that poorer households should not be disproportionately burdened with health expenses as compared to richer households.[96]

The irregular situation of the most part of migrants’ workers in urban areas causes severe difficulties of access to social services. Given the inherited nature of the hukou, this problem also affects migrant workers’ children if they move to the cities with parents in an irregular situation.[97] Lacking urban hukou registration, migrant children in the largest cities have no access to public education.[98] Migrant families are often faced with the decision whether to leave their children behind in the villages, where they would receive state-subsidized education, or turn to expensive and often inefficient private system alternatives.[99] Article 10 ICESCR requires States to recognize, “the widest possible protection and assistance […] to the family […] particularly for its establishment and while it is responsible for the care and education of dependent children.”[100] Further, Article 13 ICESCR mandates the recognition of “the right of everyone to education.”[101] These rights are guaranteed and protected in the Chinese domestic legal system.[102] The 1995 Education Law of the People’s Republic of China provides the legal framework sustaining the Chinese educational system. In accordance with a general decentralization trend, the State Council is responsible for the overall planning, coordination and management of education policies, while local administrative departments of education take responsibility for concrete educational activities in their respective local jurisdictions.[103] Notwithstanding various laws and regulations issued by the central government to urge local administrations to undertake the costs of compulsory education for migrant children, these laws have been rarely implemented thus far.[104] Local authorities do not receive additional funding for migrant children education from the central government and, therefore, take virtually no responsibility for their education. National laws regarding the State’s commitment to provide free, compulsory education to all children are interpreted as imposing local authorities’ responsibility only for the education of children registered in the districts whose parents are permanent residents. Thus, public schools often claim to be full or set quotas and very high (or even unachievable) admission criteria. It emerges that the institutional division among citizens created by the hukou system, accompanied with growing financial decentralization and consequent unchecked discretion of local public administrations, still jeopardizes the inclusion of migrant children into state’s compulsory education system.

It might be worth remembering that according to Article 4 ICESCR:

The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.

In this respect, the same considerations already put forward with regard to the limitations of right of freedom of movement. Freedom of movement is inherently intertwined with the enjoyment of economic social and cultural rights.[105] The hukou system has been described as an “invisible wall”[106] that not only impedes free movement, but also restricts the economic social and cultural rights of the Chinese rural population.[107] The current implementation of the hukou system fails to meet a condition laid down by Article 4 ICESCR: that is to say that its unique purpose is not the promotion of “the general welfare in a democratic society.” Instead, it contributes to perpetrating inequality and discrimination.

In its 2014 report to the Committee on Economic, Social and Cultural Rights, China has provided a list of the main measures taken to reform the household registration system. These measures regard, in particular, access to employment, social security, public health services and education and are meant to progressively align the situation of rural-to-urban migrant workers to that of urban residents.[108] The political and technical complexities that a comprehensive reform entails risk to reduce such statement into mere wishful thinking. Further steps need to be taken, as observed by the Committee, which in its concluding observations remained concerned about the vulnerable position of migrant workers, particularly those who lack household registration.[109]

C. The Principle of Equality and Non-Discrimination and the Hukou Invisible Wall

Equality is a deep-rooted idea in human morality. It is therefore unsurprising that it has widely been legally recognized as a fundamental principle in most constitutions. The principle of equality and non-discrimination is enshrined among the founding norms of the Chinese Constitution. Yet, the law still neglects discrimination based on hukou registration.[110]

The inherent discriminatory nature of the hukou system is the hallmark of the various human rights violations that it occasions. This system divides China’s population into two distinct “social classes”: hukou registered citizens and those who are not. This division determines inequality in various ways. It significantly affects the rural population hindering their legal mobility and their access to many opportunities and social benefits. Even after several reforms, this system remains one of the major sources of discrimination and inequality in China and arguably contributes to the country’s most prevalent human rights violations.

Equality is coupled with non-discrimination to prohibit unjustifiable and differential treatment. While the notion of equality expresses the fundamental value of respect for the inherent dignity of all human beings, non-discrimination ensures that no one is denied the protection of the law based on unjustified and exogenous factors. The idea of equality and non-discrimination is a fundamental principle of general international law.[111] It is generally recognized that such principle is a rule of customary international law and the rules prohibiting the most serious forms of discrimination are jus cogens norms in international law.[112] However, it is worth remembering that the principle of non-discrimination does not prohibit all differences in treatment. A differential treatment is still admissible provided that the conditions for such differentiation are deemed “reasonable and objective.”[113] This confers on States a relatively broad margin of appreciation.[114] In this sense, treaty law might be helpful to grasp with somewhat more certainty the implications of such fundamental principle with regard to the hukou system.

Two of the core UN human rights treaties, of which China is a State party, are entirely devoted to the issue of equality and non-discrimination: the Convention on the Elimination of All Forms of Discrimination Against Women[115] and International Convention on the Elimination of All Forms of Racial Discrimination.[116] All the other UN human rights treaties (except the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment)[117] deal with the issue of non-discrimination on various grounds.[118]

Equality and non-discrimination is a leitmotif with respect to civil and political as well as economic, social and cultural rights. There are, however, some differences between the two most prominent international treaties protecting these two groups of rights. On the one hand, while Section 2(1) ICCPR limits the prohibition of discrimination to the Covenant’s rights, Article 26 holds an independent guarantee of equality before the law and equal protection of the law.[119] Both provisions prohibit discrimination of any ground such as “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”[120] On the other hand, the ICESCR does not include a “free-standing” provision on non-discrimination.[121] The obligation of non-discrimination established under Article 2 ICESCR is accessory to a violation of a substantive right guaranteed by the Covenant. According to Section 2(2), similarly to its counterpart in the ICCPR, the rights included in the ICESCR should be provided without discrimination on grounds such as “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”[122] Most importantly, the ICESCR anticipates the progressive realization of the rights defined therein. However, the principle of equality non-discrimination is “immediately applicable and is neither subject to progressive implementation nor dependent on available resources.”[123] Even though the ICESCR endorses obligations of results in relation to the progressive realization of the rights recognized therein, the principle of non-discrimination and equal treatment is considered to have an immediate and crosscutting effect. State parties have therefore the immediate obligation to adopt the necessary measures to prevent, diminish and eliminate the conditions and attitudes, which cause or perpetuate de jure or de facto discrimination.[124]

The hukou system creates several institutional and social barriers to the exercise of the rights included in the core UN human rights treaties.[125] Such hindrances discriminate Chinese citizens on the basis of their social origin, i.e., on the basis of their hukou registration. According to the Committee on Economic, Social and Political Rights, the expression “social origin” refers to a “person’s inherited social status.”[126] Since individuals’ hukou registration generally depends upon the holder’s place of birth and upon his or her parents’ hukou statuses, it indisputably qualifies as “social status.” Accordingly, the UN Committee on Economic, Social and Cultural Rights has recommended the complete abolition of the hukou system.[127] With regard to the Convention on the Elimination of All Forms of Discrimination Against Women[128] and the International Convention on the Elimination of All Forms of Racial Discrimination,[129] while the hukou system has been the object of severe criticism, its gradual reform was welcomed as a positive step towards equality.[130]

The principle of non-discrimination implies the prohibition of direct, indirect or systematic discrimination to ensure real and effective equality. Discrimination consists not only of different treatments of similar situations, but it may also arise by failing to take due and positive account of all relevant differences. This implies that the principle of equality and non-discrimination imposes to take adequate steps to ensure that the rights and collective advantages are genuinely accessible by and to all. By hindering people from moving to areas where they would be economically productive, the hukou system has contributed to economic and social inequality. Furthermore, even if the system has been the object of various reforms and it may no longer permanently confine citizens to their place of birth, some of its bureaucratic barriers remain in place and deter the free movement of people, as well as their access to other economic, social and cultural rights. Through its fundamental function in the distribution of social services, this system continues to deter legal mobility and contributes to social inequalities. The challenge ahead will be to fight substantive and systemic discrimination, which in practice requires paying sufficient attention to a group of individuals that continues to suffer persistent prejudice.[131]

IV. Most Recent Reforms and Challenges Ahead

Some scholars have pointed out that, though manifestly discriminatory, the hukou system serves the need to maintain a certain degree of social stability.[132] By preventing large-scale movement of rural populations to the cities on a permanent basis, the hukou system reduces pressure on China’s congested cities with implications that concern not only migrants themselves, but also society as a whole. Indeed, the rapid movement of people from rural to urban areas in developing countries has already led to social marginalization and exclusion, reflected by the creation of areas where the poor live with limited social services, inadequate public infrastructure and scarce economic opportunities. The failure of many developing countries to manage the pressure of internal migration is evident in the slums present in the cities of countries such as India and Brazil.[133] The hukou system has consistently mitigated some of the concerns that accompanied urbanization. For this reason, despite the problems related to the consistency of the hukou dualism with many human rights obligations, and the calls from the UN, academics, civil society and the media for its abolition, reforms have been somehow hesitant.[134] In the same vein, many scholars, instead of suggesting the complete elimination of this system, prefer to advance various proposals for its amendment.[135] Reform proposals include, inter alia, the removal of all the extra functions related to the hukou system and the establishment of implementation mechanisms including judicial review;[136] the creation of a hybrid hukou registration, which would allow its holder to exchange his or her rural hukou for an urban one after several years of residence in a city or to return to the countryside and there invest their earnings;[137] a nationwide harmonization, in which the central government will put forward general guidelines pertaining to social welfare.[138]

The continuing inequities and inequalities of the hukou system are a source of deep concern and discontent in China. Thus, the system’s renovation was one of the main objectives of the reform plan outlined by President Xi Jinping.[139] In March 2014, China’s central government released its New National Urbanization Plan, which proposed to grant approximately 100 million rural migrant workers and other long-term residents a local urban hukou by 2020. The priority group is that of migrant workers with stable employment in urban areas, but other groups are also included: graduates of universities, vocational and technical schools, workers from other cities and local population with a rural (rather than urban) hukou.[140] On 24 July 2014, the State Council, the cabinet which supervises China’s government apparatus, released a circular pertaining its Opinions on Further Promoting the Reform of the Hukou System that proposed to unify the registration system, implementing a comprehensive residence permit system and an improved mechanism of basic public service supply.[141]

These initiatives reflect China’s central government commitment to change the present system thorough comprehensive reform. More generally, the Chinese government seems determined to demonstrate to the world and to its own population its commitment to improve the human rights situation in the country.[142] In this vein, in June 2015, the Information Office of the State Council issued a white paper on Progress in China’s Human Rights in 2014.[143] The document reported the increase of basic public services coverage in both urban and rural areas, the heightened awareness about the limited access to education of children of rural migrant workers and the improvement of legitimate rights and interests of rural migrant workers thanks to a series of measures, such as the Plan to Raise the Vocational Skills of Migrant Workers and the State Council’s Opinions on Further Promoting Household Registration System Reform.[144] Further, in 2015, the State Council issued the Interim Regulation on Residence Permits, which was aimed at “promoting the sound development of new-type urbanization, enhancing the availability of basic urban public services and conveniences to all permanent residents, protecting the lawful rights and interests of citizens, and promoting social fairness and justice.”[145] The Interim Regulation on Residence Permits was enacted in January 2016 and requested provinces to formulate detailed regulations on residence permits, and therefore, on access to social welfare according to local economic and social situations.

The new governmental strategies oriented towards the promotion of a comprehensive hukou system reform should be regarded as a positive step towards equality and social justice. Many crucial issues, however, have yet to be adequately addressed and resolved. First, the eligibility conditions for obtaining a residence permit under the Interim Regulation on Residence Permits appear rather narrowly defined. According to Article 2, the possibility to request a residence permit applies to those citizens who, having left their permanent residence, reside in another city for more than half a year and satisfy one of the following conditions: 1) having a legal and stable job; 2) having a legal and stable residence; 3) attending school continuously.[146] These conditions appear inapplicable to most part of migrant workers who are irregularly working and living in the cities. Second, the distinction based on hukou locations still represents a legally consecrated distinction between two different classes of citizens: the local and the non-local. Notwithstanding the removal of the hukou registration requirement in towns and smaller cities and its relaxation in medium-sized cities, largest cities—the main migration destinations—maintain severe control regimes limiting the possibility to obtain a local hukou conversion. This will imply that for the vast majority of Chinese internal migrants the situation will not change: they will still be legally excluded from basic state-provided services and welfare dedicated to local hukou holders. Most recently, the National Human Rights Action Plan for 2016–2020[147] reiterated that ongoing hukou reforms would remove the differences between agricultural and non-agricultural registration. However, abolishing the agricultural/non-agricultural hukou distinction at national level will probably have scarce effect on migrants in Chinese larger cities if they cannot obtain a local hukou.

There continues to be a lack of political will accompanied by resistance from urban residents to any hukou reform that would provide an easier path to regularization for migrant workers in largest cities. Given the decentralized nature of these policies, local administrations have insufficient incentives to open their hukou systems door to migrant workers.[148] In this vein, the UN Special Rapporteur on extreme poverty and human rights recently pointed out that “[r]eforms would only be feasible if accompanied by additional governmental resource allocations.”[149]

Finally, it is worth noting that the hukou system can have a significant impact not only on internal, but also on international migration, a phenomenon that is now gaining momentum in China. In 2003, Zhu observed that:

If the disparity between the urban areas and rural areas in terms of living standards becomes little through economic development, the mutual flowing of persons between the urban areas and rural areas will hopefully be helpful for the settlement of the problem of huge population in cities.[150]

With the gradual approximation of living standards, people might be less willing to move from rural to urban areas. This, however, will open new challenges for the industrial sector, which will no more be able to rely on the cheap labour of internal migrants. As it is often the case, the solution can come from international migrants.[151] This development might open new protection gaps, since international migration is controlled through the hukou system.[152] The consequences of this new phenomenon have yet to be observed and call for further research.

***

With these words, Simone Weil lucidly described in 1943 what she considered the most dangerous malady to which human societies are exposed: uprootedness. As a consequence of the disconnection from the past and the loss of one’s community, uprootedness results in the inability to actively participate in the life of the different communities to which one belongs. Being rooted is not synonymous with immobility or closure. Weil’s call for the preservation of roots, “doesn’t mean they should be fenced in. On the contrary, never was plenty of fresh air more indispensable. Rooting in and the multiplying of contacts are complementary to one another.”[153] In this sense, roots themselves are constantly moving and fluidly changing.[154]

The contemporary phenomenon of uprootedness has a global dimension that presents a great challenge to international human rights law.[155] Uprootedness emerges in the domain of global migration and manifests itself in various forms in different regions of the world. The primacy of the capital overwork, which corresponds to the preeminence of egoism over solidarity, emerges in the condition of irregular migrants all over the world.[156] The vulnerable condition of international migrants in an irregular situation, to some extent, mirrors that of Chinese internal migrants without a regular hukou registration.

This article has attempted to show how the hukou system, in its modern declination, has contributed to uprooting millions of Chinese migrant workers and their families within their own country. Disconnected from both original home and host communities, Chinese internal migrants are forced in a condition of exclusion and marginalization. In line with the dominant hydraulic metaphor around international migration—which tends to dehumanize migrants by treating them in terms of canalization, damns and infiltrations—Chinese internal migrants are generally represented as the “floating population.”[157] These waves of “floating illegalities” are wasted lives, with no other option than trying to keep afloat in the urban stagnant waters conveyed by market exigencies.

The socio-economic inequality determined by the hukou system was not an appalling accident, but a structural necessity for the Chinese economic system. It was the price to be paid to reach economic growth and development. In the name of the greater good of the nation’s economic growth, the rural population has been forced to live in the poorest conditions and to experience systemic discrimination.

Profound divisions remain even though the “invisible wall” of the pre-reform years between urban and rural China no longer exists. Whereas rural migrants do not face the same legal restrictions as before, the removal of those formal barriers has merely provided them a second-class form of citizenship, which maintains their discrimination in terms of entitlement to employment, education and medical care in the cities. Disregard for the fundamental principle of equality and non-discrimination underlies the uprooted condition of the “floating population.”

Simone Weil’s sharp prescriptions against uprootedness cogently translate abstract speculation into concrete action. Prescriptions such as public and compulsory education accessible to all, vocational training and workers’ mobility provide lucid guidelines for the realization of a more just and equitable social order. In this sense, Weil’s prescriptions mirror those later incorporated in the core UN human rights treaties.[158] Accordingly, the problem of the uprootedness fostered by the hukou system should be considered within a framework of action oriented towards the eradication of discrimination, social exclusion and extreme poverty. A holistic human rights approach to the recently propounded institutional changes is crucial in order to allow China to maintain socio-economic and uphold its founding principle of equality.

The reform agenda proposed by the central government in 2016 should be regarded as a positive step towards the eradication of legal and social inequalities. The persistent concern about internal migrants’ access to social provisions cannot be solved by the governments of sending provinces, because of their insufficient financial capabilities, nor can it be addressed by the local destination authorities, which do not have enough incentives to abandon the hukou system and integrate migrants. The renewed political orientation of the central government signals more disposition for progressive reforms and has the potential to facilitate a more open public discussion on the intertwined issues of citizenship, equality and solidarity. The concrete implementation of the governmental reform agenda will be crucial, and the monitoring function of the UN treaty bodies could play a relatively significant role in that process, not least with regard to the public exposure that hukou reforms have gained. The critical challenge would be to strike a balance between administrative and fiscal decentralization and the enforcement of national reforms to promote social equality.[159] Enhancing the incentives of local administrations to align with governmental guidelines would be decisive. In this sense, a key feature of future reforms could be improving local administration’s revenues (for instance, through the tax system).

Migrants’ rights in China depend to a certain extent on the technical ability and political willingness to reconceive decentralization in ways that will foster social equality rather than just economic growth. This issue can only be effectively confronted bearing in mind the indivisibility of all human rights—civil, political, economic, social and cultural. The firm determination to reform the hukou system on the basis of solidarity can lead China to better uphold its founding principle of equality and alleviate the sufferings of the uprooted.