Introduction

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.

History of the Hukou System

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.

Effects of the Hukou System

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.

Comparison to the United States

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.

Conclusion

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.

(Word Count 962)

Sources: 1. http://news.bbc.co.uk/2/hi/asia-pacific/4424944.stm 2. Fei-Ling Wang, Brewing Tensions While Maintaining Stabilities: The Dual Role of the Hukou System in Contemporary China in Discontented Miracle, edited by Dali L. Yang 3. Lawrence Cox, Freedom of Religion in China: Religious, Economic and Social Disenfranchisement for China’s Internal Migrant Workers, 8 Asian-Pac. L. & Pol'y J. 370 (2007). 4. Xe Frank He, Regulating Rural-Urban Migrants in Beijing, Institutional Conflict and Ineffective Campaigns, 39 Stan. J. Int’l L. 177 (2003). 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

-- ElizabethDoisy - 09 Mar 2009

• Seems to me a reasonably comprehensive and certainly clear summary of relatively accessible facts. The comparison between China and the US serves some limited purposes, if only to make US Americans feel better about not having gotten everything quite as wrong as the Chinese Communist Party, but it's not clear to me that comparison is apt, except on the absolutely a-cultural basis of "human rights" comparison. Mobility of persons, considered as an abstract topic, has a somewhat different history over the last, say, two thousand years in China and in North America. To begin only from the current state of constitutional law and residence regulation is to make an implicit assertion that history is irrelevant. I'd like at least an argument about that.