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Elizabeth Doisy, First Paper | | | Elizabeth Doisy, First Paper | |
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> | | | | Introduction | |
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< | The right to travel freely is fundamental to freedom, and one basic component of the right to travel is the right to move to another locality within the same country. However, the ability to relocate means nothing if once there an individual faces discrimination based on their origins. China has long maintained a system of social control that prohibits individuals from moving outside of their home area without government permission. While this system has been laxly enforced in recent years, discriminatory treatment of individuals upon their relocation still impedes the free movement of individuals and implicates a series of additional rights. | >
> | China has long maintained a system of social control that prohibits individuals from moving outside of their home areas without government permission. Even when the system is laxly enforced, individuals often experience discrimination upon their relocation, which implicates a series of additional rights. While the U.S. has historically experienced unique geographic mobility, China provides an example of why the freedom to move freely within the U.S. must not be limited. | | |
History of the Hukou System | |
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< | China maintains a hukou (household registration) system where each individual must register at birth and maintain registration throughout their lifetime. Although the system has imperial roots, the modern form of hukou was established in 1958 by the State Council’s Instruction on Limiting Peasants Blindly Migrating to Urban Cities, and various regulations of the National People’s Congress. The system is not mentioned in the Constitution or Civil Code, is mostly governed by internal regulations, and is administered by the Ministry of Public Security.
Originally under the hukou system, individuals were classified as either urban or rural, and those in rural areas were not allowed to enter urban areas without official permission. The system was implemented as a form of social control to maintain stability and allocate workers within the controlled economy. However, beginning in the 1970s increased agricultural productivity, the rapid development of the urban economy, and the emergence of a private market led many rural workers to leave the countryside and flood into major urban areas. While still not technically permitted to move without permission, laws were changed so that migrant workers could purchase temporary residency permits, although many found it impossible to afford the permit or meet its requirements (for example, maintaining a stable job).
There have been other reforms as well. Until 2003, individuals were commonly stopped, arrested, and sent back to their home areas for failing to carry the correct permanent or temporary residency papers. However, after a young university-educated fashion designer was arrested and beaten to death for not carrying the proper identification card and residency permit, the central government ended this custody and repatriation procedure. In addition, in 1998 the hukou laws were changed so that children could inherit hukou through either their mother or father (before, if a rural woman married an urban man, her child would inherit her rural hukou). But by far the biggest changes in the hukou system since China began developing a private economy have been the localization of hukou laws (leading to different hukou rules throughout the country)and more relaxed enforcement. Both of these changes are the result of the practical need for more workers to fill vacant jobs in certain regions of China, especially in the eastern part of the country. | >
> | Laws limiting geographic mobility have a long history in China, possibly going back to the Xia Dynasty, which began in the 21st century B.C. The government imposed a household registration system that organized people into households, through which officials could collect taxes and organize social projects. Those who left their assigned household without official permission faced harsh punishment, and often had nowhere to go. The practical effectiveness of the system varied with the rise and fall of each dynasty, and also contained some structural inaccuracy, as evidenced by common reports of floaters, migrants, and other unrecorded persons.
The modern form of hukou was established in 1958, when the government classified individuals as either urban or rural, and prohibited those in rural areas from entering urban areas without official permission. The system was implemented as a form of social control to maintain stability and allocate workers within the controlled economy. However, beginning in the 1970s increased agricultural productivity, the rapid development of the urban economy, and the emergence of a private market led many rural workers to leave the countryside and enter major urban areas. While still not technically permitted to move without permission, laws were changed so that migrant workers could purchase temporary residency permits, although many found it impossible to afford the permit or meet its requirements (for example, maintaining a stable job).
There have been other reforms as well. Until 2003, police commonly stopped, arrested, and sent back individuals to their home areas for failing to carry the correct permanent or temporary residency papers. However, after a young university-educated fashion designer was arrested and beaten to death for not carrying the proper identification card and residency permit, the central government ended this custody and repatriation procedure. In addition, in 1998 the hukou laws were changed so that children could inherit hukou through either their mother or father (before, if a rural woman married an urban man, her child would inherit her rural hukou). But by far the biggest changes in the hukou system since China began developing a private economy have been the localization of hukou laws (leading to different hukou rules throughout the country)and more relaxed enforcement. Both of these changes are the result of the practical need for more workers to fill vacant jobs in certain regions of China, especially in the eastern part of the country. | | |
Effects of the Hukou System | |
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< | While enforcement of hukou laws has become much more lax, once individuals move they still face discriminatory practices and enjoy few legal protections, which prevent their movement from being “free” in any real sense. If an individual does not have the proper hukou for a certain region, even if they are able to enter the area, they will only be able to find only a low-paying job in the informal sector of the economy (“off the books”). While China has in recent years instituted a Labor Law to protect workers, Article Two of the General Provisions explicitly excludes workers in the informal sector from the scope of its protections, and employers often abuse migrant workers because they know they have no legal protections. In some provinces, individuals who do not hold the correct hukou are ineligible for most social goods from the state, such as medical insurance, and sometimes are not even able to enroll their children in school. In addition, migrant workers often face cultural discrimination. Cumulatively, the hukou system has resulted in a society where political power and wealth are concentrated in the hands of those with urban hukou. Because of these effects, the hukou system has been compared to apartheid in South Africa. | >
> | While enforcement of hukou laws has become more lax, once individuals move they still face discriminatory practices and enjoy few legal protections, which prevent their movement from being “free” in any real sense. If an individual does not have the proper hukou for a certain region they will find only a low-paying job in the informal sector of the economy. China has in recent years instituted a Labor Law to protect workers, but Article Two of the General Provisions explicitly excludes workers in the informal sector from the scope of its protections, and employers often abuse migrant workers because they know they have no legal protections. In some provinces, individuals who do not hold the correct hukou are ineligible for most social goods from the state, such as medical insurance, and sometimes are not even able to enroll their children in school. In addition, migrant workers often face cultural discrimination. Cumulatively, the hukou system has resulted in a society where political power and wealth are concentrated in the hands of those with urban hukou. Because of these effects, some have compared the hukou system to apartheid in South Africa. | | | | |
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< | Comparison to the United States | >
> | Lesson For The United States | | | | |
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< | The situation is far different in the United States, where one component of the right to travel among the states is the “right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State.” (Saenz v. Roe, 526 U.S 489, 502 (1999)) This right is located in the Equal Protection Clause of the Fourteenth Amendment and states must be promoting a compelling government interest to restrict it. In Saenz v. Roe (526 U.S. 489 (1999)), the Supreme Court applied this component of the right to travel to strike down a California law that provided new state citizens welfare benefits equal only to the amount they received in their previous state of residency. In determining whether the state had a compelling interest, the Court noted that length of time one has lived in a state is irrelevant to the need for welfare benefits, and that benefits would be consumed within the state (unlike divorce or a college education). Unlike China, the United States recognizes that the right to travel and move freely requires the ability to receive equal benefits and privileges upon arrival, including social goods such as welfare. | >
> | The history of migration control in the U.S. stands in stark contrast to that of China. From the beginning of colonization to present day, Americans have been uniquely geographically mobile. While there were some government restrictions on migration (for example, the British Proclamation of 1763, which restricted settlements east of the Appalachian Mountains), government generally encouraged the movement of people westward by offering cheap or free land. Census data show that about one‐fourth of the mid‐nineteenth‐century population lived outside its state of birth. The U.S. has had other migration patterns as well, for example mass migration from the Northeast to the Sunbelt in the 1970s. This geographic mobility extends to present day---between 1995 and 2000, almost half of all Americans changed addresses, more than in any European country.
The historic geographic mobility of the U.S. is buttressed by constitutional law, including the right to travel freely among the states (Shapiro v. Thompson, 394 U.S. 618 (1969)), and the right of new residents to the same privileges and immunities enjoyed by long-time residents (Saenz v. Roe, 526 U.S. 489 (1999)). However, since 9/11 technological advances in monitoring the movement of the U.S. population and changes in policy have sometimes impeded the ability of individuals to travel freely within the country. These include the No-Fly List, RFID chips in passports, face-recognition technology, and public video surveillance, just to name a few. | | |
Conclusion | |
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< | China’s hukou system is a current example of how the right to travel is not fully realized without equal privileges and immunities among new and long-time residents. In addition, without equal privileges and immunities, other rights such as the right to health care, education, and worker protections are meaningless. This can have a huge impact in a case like China, where over 100 million individuals have no permanent hukou. | >
> | China stands as an example of why the right to move freely within one’s own country is so important, and the vast implications of this right. As the movement of individuals within the U.S. is monitored more closely, it is crucial to remember the vital role geographic mobility has played throughout the history of the U.S., and ensure that this value is upheld. | | | | |
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< | (Word Count 962) | | | Sources:
1. http://news.bbc.co.uk/2/hi/asia-pacific/4424944.stm | | | 5. Samm Tyroler-Cooper, Promoting Rights Consciousness Among China’s Migrant Workers, China Rights Forum, no. 3, 2006
6. Women Migrant Workers Under the Chinese Social Apartheid, Committee for Asian Women, May 2007 | |
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> | First Draft Comments: | | | -- ElizabethDoisy - 09 Mar 2009
- Seems to me a reasonably comprehensive and certainly clear
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