Just For Fun: Dunhuang Caves – Who Owns This Art?

By , September 17, 2015
Sand storm in Dunhuang, April 2015

Dunhuang Expert, Dr. Neil Schmid

Today, the Mogao caves are are UN World Heritage Site.  But for a few hundred years the caves fell into oblivion.  Few knew of their existence and none visited.  It was not until the turn of the twentieth century that the caves were “re-discovered” by a Taoist abbot named Wang Yuanlu.  Quickly word of his discovery reached some of the Western archaeologist-explorers traveling through Central Asia. Understanding the significance of this art, many of these Western explorers descended on Dunhuang to see this all for themselves.

As a result, many of the greatest pieces of Dunhuang art are in various museums in the West.  Was this art taken legally?  Do the Chinese want it back?

Dunhuang expert, Dr. Neil Schmid answers these questions and more in Part 2 of his interview with China Law & Policy.  If you would like to hear Dr. Schmid speak live, join him next week as he speaks on these issues on September 23 at 7:30 PM at the Courtyard Institute in Beijing.

Read the transcript below of Part 2 of this two-part interview or click on the media player below to listen:

Length: 12:29 minutes

To read or listen to Part 1 of this two-part interview series with Dr. Scmid, click here.


Sandstorm in Dunhuang, April 2015

Sandstorm in Dunhuang, April 2015

EL: Just to move away from the art to the political. I know when I visited the Mogao caves, it appears that for foreigners visiting the caves, part of the tour is a stop in a separate building documenting the Western countries’ purchasing and taking of the Mogao’s manuscripts and cave art at the turn of the 20th century. We know that in the case of the British, they purchased from the monk in charge of the caves at the time, the world’s oldest printed book, the Diamond Sutra. They had examples of an American explorer also purchasing some old Buddhist manuscripts, as well as physically lifting some of the cave art out of the caves. In that period, why were Westerns so interested in the Mogao caves and how did they even know about it to go out there?

NS: Great questions. So the first visitors were before 1900 and they were typically involved in exploration and survey. This has to do with what was called the Great Game, the machinations between the United Kingdom and Russia, the Russian Empire, to control Central Asia.[1] So it was through that process that Central Asia began to be known. While we have these military and quasi-military figures in Central Asia, the first sort of striking discovery was something called the Bower Manuscript. This manuscript was a shock because here in Central Asia we find a birch bark manuscript from the 4th to 6th Centuries in what’s called Hybrid Buddhist Sanskrit or Prakrit.

Before nobody ever thought that we would find these types of materials. What it means is that the Indian civilization in many ways reached into Central Asia. This got people very excited. Number one because these materials don’t exist in India for the most part because the climate is much too moist.

Sir Aurel Stein, 1909

Sir Aurel Stein, 1909

So what happens is after they discovered that manuscript you began to have so-called scholar-explorers, archaeologist, Sir Aurel Stein is a perfect example of that combination, come in and began to do surveys and archaeological surveys of Central Asia.[2]

It was during this period that they began to get word of this great Buddhist site and also a site with lots of manuscripts and that got them very, very excited.

EL: Based on the fact that the tours with Westerners in Dunhuang make it a point to recount this history of the Western explorers and the purchasing of many of the manuscripts, is China making any efforts to get these manuscripts back? Especially the Diamond Sutra.

NS: Not on a large basis. So what we have is a lot of scholars working together, e.g., Chinese scholars with British scholars or French scholars, on an increasingly large basis. Also museums and institutions working together. So what we find now is that on the scholarly end of things, a lot of these materials have been digitized by the International Dunhuang Project. It’s a remarkable project for the amount of material and it is based out of the British Library. They in the process, over the years, have gotten a number of other institutions on board – the Chinese, also the French, the Russians, the Germans – to begin to digitalize their materials, manuscripts and paintings. So this is one thing that has sort of lessened the desperation for return finds because scholars have access to the materials world-wide now.

The Dunhuang Mogao Caves from Afar

The Dunhuang Mogao Caves from Afar

Regarding so-called plunderer, Aurel Stein is often labeled that, but as you mentioned, he actually purchased the manuscripts. Of course that is controversial. Also there was Langdon Warner, who is from your alma mater [Harvard], and he is notorious for having used a technique which he felt was innovative. Basically to use tape – I am simplifying it – to put on the murals and rip them off. In the process some were damaged. He actually has a receipt for these. So Harvard’s response might be, for example, “Oh, we have a receipt, they were paid for, we bought them in good order.”

EL: So it’s all very legal.

NS: It’s all very legal, exactly. People might disagree with the methods and the authorities he spoke to actually purchase the materials. Of course, there is a lot of room for debate on this issue.

EL: I think in a talk you gave previously, you had mentioned that the Abbot [at the Mogao Caves] had tried to get the Qing Dynasty and the Emperor interested it. Could you just talk a little bit more about that?

NS: Yes. Wang Yuanlu was the person who was renovating the cave site in around the year 1900 when he discovered the cache of manuscripts. And it is a fantastic cache of manuscripts. He recognized that they were important, he wanted to get in touch with the authorities in order to know what to do with these manuscripts. And in fact the Qing Dynasty authorities weren’t that interested. Part of the slow response by the Chinese government at the time was that it was dominated by Confucian elites. They saw Buddhist materials as simply not that interesting. So this is one reason I believe that the process was slowed down for the Chinese government to recognize the value of this incredible find.

EL: Just to fast-forward a bit in time, when you go to the Mogao Caves you still see a tremendous amount of art

Tang Dynasty cave art peeking out of an entrance at Mogao caves

Tang Dynasty cave art peeking out of an entrance at Mogao caves

on the walls, you still see a tremendous amount of the carvings. How were these cave arts able to survive the Cultural Revolution as well as the campaign against the Four Olds that sought to destroy a lot of Buddhist art?

NS: Mogao and Dunhuang was fortunate because they had a powerful patron if you will, Zhou Enlai, Premier Zhou Enlai. He was hugely supportive of the renovation project, the project to stabilize the cliff face, to begin the catalogue process and also research in general. He specifically said that Mogao Caves were not to be damaged. And I have to put in a plug here also for the Dunhuang Research Academy and the people there, scholars there, who had been working on the materials for literally dozens of years at that point, they made a serious effort to talk to Red Guards, to discuss the value of the materials.

EL: And what about today, what’s being done to preserve the caves and will preservation be successful especially as more tourists come to Dunhuang?


Camel on the Silk Road

NS: Part of the problem with the caves today is that moisture and also carbon dioxide is beginning to deteriorate the caves. There’s also ground water coming up because there’s a lot of irrigation to make pretty gardens, if you will, in front of the attraction. So that water is seeping up into the caves so that the lower level of caves, at the bottom of the murals, they’re beginning to completely deteriorate.

So what’s been done over the last three decades is that the Getty Conservation Institute has gotten involved – of the Getty Museum in L.A.. That’s since 1985. It’s been their longest running project of conservation, heritage conservation. They have been instrumental in working with the Dunhuang Research Academy and also the Chinese government in creating, number one an analysis, a very detailed analysis, of the materials involved in the construction of the caves, how they deteriorate, why they deteriorate and ways to prevent it. On top of that there’s also a digitalization project going on [and a major upcoming exhibit on Dunhuang caves May 2016 at the Getty Museum, Los Angeles]

Part of that, along with the visitors center that recently opened, is to provide tourists with an alternative experience. So through the digitalization or the immersive digitalization of the case themselves at the vistor’s center and then to decrease the number of visitors actually going into the caves.

Mogao Cave #98, Uighur retinue

Mogao Cave #98, Uighur retinue

EL: The visitor’s center is very, very impressive and a lot of fun which leads me to think they’re hoping a lot more people come to visit it. For people who aren’t China people, China scholars, what do you think is the significance of these caves? Why should just regular Americans, when they take a trip to China, why should they go out to Dunhuang?

NS: The caves which span in their creation 1,000 years are the largest repository of Chinese art. Maintain and contain items and designs and styles, aesthetics, and also the very space itself that doesn’t exist anywhere else in China. So in terms of this kind of immersive experience, you can’t get better than Dunhuang to see how people experienced Buddhism in the Tang, for example, period. So that’s a major reason. Dunhuang itself and the Mogao caves, the site is stunning and gives you a sense of what the power of trade that unfolded over 1000 years on the silk roads or silk route if you will. The caves themselves have a cosmopolitanism. Dunhuang at that time we know from manuscripts was incredibly mixed and well-integrated. So there is a fascination with that as well.

EL: Finally, can you describe your favorite cave and why it is your favorite cave? You have to have a favorite.

NS: [laughter]

EL: You can’t love them all.

Mogao Cave #98, King of Khotan and retinue (c.920)

Mogao Cave #98, King of Khotan and retinue (c.920)

NS: In spite of its formulaic nature, there’s a cave, Cave 98, which is remarkable. It’s quite large; it’s a large family cave, it’s an elite’s cave. But what’s fascinating for me is it’s well preserved but it also lays out the political nature of the caves, the political nature of Buddhism also. You have large donor portraits of the King of Khotan and his relations to the Dunhuang elite. Its remarkable for that reason that here we have a sort of detailed outline of political alliances that were being constructed and set in a ritual space, which is a cave. This sort of liturgical moment that in some ways is frozen in time. That’s what these caves do, they maintain relationships both among people and also with the Buddha forever and forever. I find that fascinating and Cave 98 is particularly rich in the historical-political elements.

EL: Okay, well, thank you again Dr. Schmid for your enlightening explanation of the Mogao caves. Hopefully, more people will go there but not breathe on the caves. Thank you.

NS: Thank you very much

[1] See, for example, Peter Hopkirk’s The Great Game: The Struggle for Empire in Central Asia (London: Kodansha International, 1992).

[2] Peter Hopkirk, Foreign Devils on the Silk Road: The Search for the Lost Cities and Treasures of Chinese Central Asia (Amherst: The University of Massachusetts Press, 1980)


For Part 1 of this series, please click here.

A selection of Dr. Schmid’s publications and talks can be found by clicking here. Or join Dr. Schmid at the Courtyard Institute in Beijing on September 23, 2015 at 7:30 pm.

Further Reading:

Hansen, Valerie. The Silk Road: A New History. Oxford: Oxford University Press, 2015.

Hopkirk, Peter. Foreign Devils on the Silk Road: The Search for the Lost Cities and Treasures of Chinese Central Asia. Amherst: The University of Massachusetts Press, 1980.

Rong, Xinjiang, and Imre Galambos. Eighteen Lectures on Dunhuang. Leiden: Brill, 2013.

Whitfield, Roderick, Susan Whitfield, and Neville Agnew. Cave Temples of Mogao at Dunhuang: Art and History on the Silk Road, Second Edition. Second Edition, Revised edition. Los Angeles, California: Getty Conservation Institute, 2015.

Just for Fun: The Buddhist Art of Dunhuang – An Interview with Dr. Neil Schmid

By , September 16, 2015
Dunhuang Expert, Dr. Neil Schmid

Dunhuang Expert, Dr. Neil Schmid

Tibet is considered the Buddhist capital of China, causing many not familiar with China’s geography to believe that Buddhism came to China from India through Tibet. But with the highest mountain peaks in the world, the Himalayas, separating India and China, Buddhism had to take a different route. Instead, it entered northern China through what has become known as the Silk Road. As a result, some very early Buddhist art can be found in remote northwestern regions of China. One such example are the Buddhist cave art in Dunhuang, an oasis town situated in the Gobi Desert which with its desert climate was able to preserve this art. The Mogao Caves are probably the best known.

But any trip to the Mogao caves by a Buddhist art novice leaves one with many questions on the art, the history and its significance. Fortunately, China Law & Policy had the opportunity to sit down with Dr. Neil Schmid, an American expert on Buddhist Studies and Dunhuang.  If you are in Beijing, Dr. Schmid will be speaking on these issue next week, September 23 at 7:30 PM at the Courtyard Institute.

Read the transcript below of Part 1 of this two-part interview or click on the media player below to listen:

Length: 10:00 minutes


EL: Thank you for joining us today. First, can you give us a little bit of background on the caves: when were they first constructed, why and by whom?

NS: Elizabeth, thank you for inviting me. So there’s a story, maybe apocryphal, that in 366 [CE] a monk by the name of Le Zun had a vision. This is a vision that happened outside of the oasis of Dunhuang, in a small, small ravine with a cliff face. There he had this vision that he was basically to build a cave. This is, again maybe it is apocryphal, is the originating story of the Mogao caves.

EL: And what year was that again?

NS: 366. So he was followed by another monk, Fa Liang, and then a series of monks after that.

EL: So can you explain more why these caves were created?

NS: As I said initially they were dug out as meditation spaces. Spaces where monks could live relatively distant from Dunhuang or some sort of urban or town center due to spiritual practices. This is the origin of these caves. Then what happens over time, over the centuries, is that the site becomes a pilgrimage site and with these powerful monks – spiritually that is – people began to patronize them. In doing so, they began building caves themselves. These people were typically the elites or also groups of people who would gather together and fund the digging and the construction of a cave in Mogao, in this area.

You asked about whom they were actually built by. So they had funders, they had donors, but there was – and we have a lot of information especially from the 10th century on. We know that it was a professional class of artisans who actually did the construction work – painters, sculptors, metal smiths, textile workers. [1]  They were organized hierarchically according to their expertise and their titles reflected their skill and their standing. So these are the people who actually built the caves and we can talk a little bit later about that process of building itself.

EL: So that’s interesting that you talk about the professional class of artisans and also just the changes over who was sponsoring the building over centuries. When you go to the Mogao caves themselves, you do see some changes to the art when you visit different caves. Can you explain more or highlight what some of those changes are from the beginning to the later parts. And do you believe there’s a high point to the art itself?

NS: The earliest caves we have are from the Northern Liang and that’s 397 [CE] to 439 [CE]. These caves are very, very heavily influenced by Indian and also Central Asian styles. The motifs, the iconography, the sculpture, is very, very much dominated by something other than Chinese. Over the years, these artistic forms and iconography and also the ritual space itself begins to shift away from monks towards an increasingly lay-oriented perspective. What the caves also take on in terms of transformation of the artistic styles and ritual styles is an increasingly sinicized, i.e. Chinese aesthetic. So for example what happens later, you have stories about Indian, about the Buddha done completely in Chinese costume, in Chinese-like settings. It naturalizes in some ways Buddhism for Chinese. We see this very clearly evidenced in the caves.

Mogao Cave #275, Northern Liang (397-439)

Mogao Cave #275, Northern Liang (397-439)

EL: I know some art historians believe that some dynasties have better art than others or higher-end art than others. Do you agree with that? I think everyone always thinks the Tang Dynasty but how do you deal with that?

NS: That’s a good question. I could talk about my personal favorites.

EL: That’s okay.

NS: I particularly like Tang, what’s known as high Tang style. But it is very, very difficult to say one style is a high point. Obviously it depends on the reference points of what you consider a high point. There’s amazing artistic skill that goes into the creation of earlier caves in terms of actual painting styles which are now lost in China. So in some ways you could say that due to their introduction and disappearance, these were high points in particular artistic styles.

EL: That’s fair. I guess the other thing is when visiting the caves you can’t help but wonder how starting in 400 AD, people were able to paint and build such amazing art. In particular, there is that one awe-inspiring Buddha. Do we know exactly how these caves were built? How the painting was put onto the walls? How many people it took to build these caves? I think you were already talking a little bit about the professionalization of the artisans. If you could go into a little bit more depth about that.

NS: So what happens in the Tang, the Five Dynasties period, and also in the Song, is that you have elite families funding the construction of caves and in the process they create what is essentially a painting academy. At this painting academy you have trained artisans. Note that they are laity; they are not monks, they are not clerics. We have lots and lots of documentation from this period and detailed manuscripts about what they were paid, how often they were paid, were they lived, the types of work, individual specialties. We know that laborers were typically paid in food, so cooked meals. Also oil, also grains. This was a typical form of payment.

How the caves themselves were actually constructed, they were constructed by starting at the top of the interior of a cave and then digging it out and down. So what they would do then after it was dug out is they would begin to furnish the walls and then apply a straw and stucco mix. Then on top of that begin the painting process.

In this period, again very late Tang, Five Dynasties period, Song period, it became very programmatic, very organized in terms of the pictorial program of the caves themselves. And very standardized. They used a variety of drawings for example to create on a regular basis the paintings in the caves. They also used something called “pounces” which is a piece of paper with dots cut in that they would then typically blow a paint across to get an outline. Then they would color that in. One of the motifs you see again and again at Dunhuang in the Mogao caves is the Thousand Buddha motif.

Mogao cave 249, Western Wei (534-556AD) Early version of Thousand Buddha motif.

Mogao cave 249, Western Wei (534-556AD)
Early version of Thousand Buddha motif.

EL: Right, right. You see that it is painted like in an assembly line.

NS: Exactly. There is this whole modularity to the construction and also the painting process. Then the paint themselves typically use things like -the expensive ones – lapis lazuli and malachite. The painting was done on dry stucco and again through a series of artisans. The construction of a cave, or a large cave, during this period would be perhaps a year. It would take a year.


[1] On the construction of the caves and guilds, see Sarah Fraser’s excellent overview, Performing the Visual: The Practice of Buddhist Wall Painting in China and Central Asia, 618-960 (Stanford University Press, 2003).


To read Part 2 of this two-part interview series, please click here.

A selection of Dr. Schmid’s publications and talks can be found by clicking here.

Or join Dr. Schmid at the Courtyard Institute in Beijing on September 23, 2015 at 7:30 pm.

Should Obama Downgrade Xi’s Planned State Visit?

By , August 17, 2015

Last week, China Law & Policy published a post encouraging President Obama, even in light of the current crackdown on rights defending advocates in China, to move ahead with President Xi Jinping’s State Visit to the U.S. currently scheduled for September. However, China Law & Policy recommended that President Obama raise the plight of the rights defending lawyers by highlighting the important role public interest lawyers have played in the United States.

State Visit or not, the real question is: What Will the First Lady Wear?

State Visit or not, the real question is: What Will the First Lady Wear?

Our posting received a plethora of responses, including one from Adam Bobrow, CEO and Founder of Foresight Resilience Strategies, LLC, a Maryland-based strategic consulting firm to develop new solutions for companies facing cybersecurity challenges. With prior experience in the White House and the Department of Commerce, Bobrow explains the procedures surrounding a State Visit and argues that while the Xi visit must occur because of many thorny issues plaguing the US-China relationship, the visit should be downgraded to an “official visit,” not a State Visit.

Guest Blogger Adam Bobrow

Adam Bobrow

By Guest Author Adam BobrowThanks to Elizabeth for her original post which made me think more about Chinese President Xi Jinping’s September State Visit to Washington.  Elizabeth’s thoughtful take addressed the question of the White House’s response to the crackdown on rights defenders in China.  I agree that President Obama’s meeting with Chinese President Xi should go forward but I have tried to take into account additional strategic and economic policy considerations in assessing whether Xi’s State Visit seems appropriate at this time.  For reasons addressed below, I do not think that incorporating a session on the crackdown will work but suggest that the White House downgrade the meeting from a State Visit to another category of Head of State visit, such as an official visit or a working visit.

The Obama-Xi meeting should take place because there are many issues that the United States and China need to discuss at the highest levels.  But the pomp and circumstances and the inherent approbation of a State Visit sends the wrong message to China about the ways in which Chinese government policies impact the U.S. economy and elements of global security that the United States has vested interests in maintaining.

Background on State Visits

A State Visit, while it does not have an absolute definition, follows certain traditional guidelines surrounding its logistics and the respect accorded the foreign Head of State or Government.  In the United States, such a visit has an arrival ceremony on the South Lawn of the White House, a 21-gun salute for the visiting Head of State, a joint review of U.S. troops, and a State Dinner with the visiting Head of State as the guest of honor.  Because the last element is the easiest to measure—either a State Dinner occurred or it did not—I have used the inclusion of a State Dinner during a visit as a proxy for State Visits.

During the current Administration, President Xi’s State Visit would be only the ninth State Visit in the almost seven years since President Obama was sworn into office.  Perhaps more telling, of those nine State Visits, President Obama will have hosted two different Chinese Presidents.  No other country’s leaders have enjoyed two State Visit invitations during this Administration even though Mexico, South Korea, Japan, and India—all State Visit countries during the Obama Administration—have changed leaders since President Obama hosted their previous Head of State or Government.

Why Should Obama and Xi Meet?

In Elizabeth’s blog post, she advocates that President Obama should, “invit[e] Xi Jinping to a session with U.S. public interest lawyers and their supportive corporate law brethren” to demonstrate the United States’ support for the plight of rights defenders in China.  During President Xi’s visit President Obama can and certainly should raise the unacceptable and self-defeating nature of the ongoing roundup of weiquan (rights defending) lawyers by the Chinese authorities––either by insisting that there be a window reserved in the primary bilateral meeting (preferred) or by bringing the topic up spontaneously in that meeting or at the joint press conference. The latter is less effective to change Chinese behavior but important as a domestic political issue in the United States. But keep in mind that the Chinese officials planning the State Visit will not agree to a meeting that includes some of the private critics of their conduct in the United States.  The U.S. government cannot unilaterally control the broad agenda for the visit by insisting on certain meetings, such as one with U.S. public interest lawyers.

But even with this limitation, the larger question remains: why should the U.S. and Chinese Presidents meet?  Currently, the United States and China face a number of urgent issues that directly impact their relationship.  For far too many of these, however, neither side will agree even on the terms of reference for their differences, preferring either to deny a problem exists or to insist on a formulation that assigns the responsibility exclusively to the other party.  These thorny issues are myriad: Chinese island reclamation and freedom of navigation in the South and East China Seas; alleged cyber incursions into U.S.-based systems including personnel files held by the U.S. government and commercially valuable data held by a wide range of U.S. businesses; the devaluation of China’s currency in response to slowing growth in China; the creation of the Asia Infrastructure Investment Bank, a new international development institution created with China as the leading shareholder; national security limitations on Chinese investment in the United States; the impact of China’s own National Security Law on U.S. businesses operating in China; and even China’s continued non-market economy status in U.S. antidumping investigations. Today’s New York Times reveals another agenda item: Chinese public security agents operating in the United States and allegedly intimidating or threatening some Chinese expatriates suspected of graft to return to China. This is an additional issue for which the two countries offer incompatible explanations. Unfortunately, political leaders in both countries have framed these issues in ways that make them difficult to discuss, much less resolve.

The meeting of the two Presidents could advance bilateral cooperation, however, on two issues of current importance.  First, both sides seek to advance negotiations on the U.S.-China Bilateral Investment Treaty (BIT) by exchanging updated negative lists of excluded investment areas.  Second, each side also wants to advance cooperation on curbing greenhouse gas emissions in advance of the 21st session of the United Nations Framework Convention on Climate Change (UNFCCC) Conference of Parties (COP 21) in Paris in December.  Obama and Xi could announce concrete and meaningful progress on BIT and greenhouse gas emissions based on strong preparation at the staff- through Cabinet-levels and help provide negotiating teams on each topic with clear instructions on the way forward in both cases.

When weighing the decision of whether to downgrade the meeting, political and protocol reasons for the level of the visit must also contend with the substantive policy questions already discussed. The issue of face plays a role in this calculation as President Xi hosted President Obama for a State Visit in Beijing last year, complete with State Arrival Ceremony at the Great Hall of the People and a State Banquet. Refusing to accord President Xi the same courtesies would cause great offense. In addition, leaders meet to increase opportunities to get to know one another and build a relationship that might advance issues or prevent future conflicts. Two years ago, the White House cited this reasoning in meeting in a more relaxed setting away from Washington in the lead-up to the two Presidents’ summit at the Sunnylands Estate in California. The very specific intention of the informal setting away from Washington was to reduce the pressure to make public pronouncements and face the increased scrutiny of a scripted and formal visit so that the leaders could get to know one another better. Whether the more informal setting did allow greater candor, the added scrutiny of a State Visit can only undermine efforts by the two Presidents to build their relationship as a hedge against growing frictions in any meaningful way.  Next month, the two Presidents will meet farther apart on urgent bilateral issues than at any prior meeting they have had and with often conflicting visions of the world as they would like it to be.  Ranging from President Xi’s marketing of China’s New Model of Great Power Relations, which premises more space for Chinese actions on the world stage free of American interference or even commentary, to President Obama’s preference for selling the Trans-Pacific Partnership trade agreement (TPP) as a way of writing new international trade rules to prevent China from writing those rules instead, these competing visions are not currently amenable to building trust during a one-day visit.

Where does that leave us in terms of a verdict on the impending visit?  Looking at the list of issues where no progress is likely, it is probable that each President will raise a differing subset of those issues without actually hearing what the other has to say.  They will talk past each other and reach no conclusions nor even advance the terms on which officials at lower levels will address these issues going forward.  On the other (skimpier) hand, the Presidents may make meaningful progress on the two issues identified above:  BIT negotiations and climate change measures ahead of the Paris negotiations in December. The non-policy considerations present a trickier, more qualitative question of whether the slim possibility of greater candor in a less formal set of meetings makes it a better bet to risk the strong negative reaction of a Chinese government that sees the downgrade as a personal snub to President Xi. The White House needs to decide based on the best interest of the United States and the American people, of course, rather than how its decision in Washington will be received in Beijing or even by some larger subset of the Chinese people.

In this instance, the pomp and circumstance of a State Visit will reduce the efficacy of the potential positive outcomes of the meeting and send a misleading positive message about the current parlous state of U.S.-China relations.  Rather than providing additional space for the two Presidents to increase mutual understanding and provide clear guidance to their bureaucracies on how to resolve some outstanding issues, the Presidents may make some small and specific progress in two areas.  But the strictures of a State Visit also make it likely that the two governments will feel compelled to send a message that the visit demonstrates a highly productive bilateral relationship on firm grounding. That message would obfuscate real differences in search of solutions, potentially setting back relations rather than moving them forward, and backfire as the evidence clearly belies such a positive message. The White House should downgrade the meeting, restore the informal approach of Sunnylands, and hope that more time focused on substance and less on meaningless public praise by each country of the other may permit more candid discussion and advance solutions to pressing problems.

CL&P on the BBC Discussing China’ Rights-Defending Lawyers

By , August 14, 2015

BBC_News.svgOwen Bennett Jones, on his new and insightful BBC radio show, NewsHour Extra, discussed the recent assault on China’s rights-defending lawyers.  Featuring Dr. Li Ling of NYU’s U.S.-Asia Law Institute, Prof. James Feinerman of Georgetown Law School, Prof. Eva Pils of Kings College London, barrister Philip Riches, and yours truly, the discussion proved lively if slightly pessimistic regarding the current crackdown on China’s rights-defending activists and their future under the current Chinese Communist regime.

Rights-defending lawyers Yu Wensheng and Teng Biao both give their assessments of the recent crackdown.

To listen to the show (55 minutes total), please click here: http://www.bbc.co.uk/programmes/p02yg6z4

Obama, China & Lawyers: Xi’s Visit Must Go Forward

By , August 4, 2015
China's President Xi Jinping, leading a major crackdown on China's human rights attorneys.

China’s President Xi Jinping, leading a major crackdown on China’s human rights attorneys.

For the past few years, the Chinese government – under the leadership of Xi Jinping (pronounced See Gin-ping) – has methodically targeted China’s human rights lawyers and advocates.  On a yearly basis, dozens of human rights lawyers, known in Chinese as weiquan (pronounced way-choo-ann) lawyers, are detained, some disappeared, and a few tried and convicted usually on the trumped up and amorphous charge of “picking quarrels and provoking troubles” (Art. 293 of China’s Criminal Law).  By focusing its energy on key civil rights advocates such as Xu Zhiyong (currently serving a four-year prison term for picking quarrels), Pu Zhiqiang (currently awaiting trial on picking quarrels) and Cao Shunli (died in police custody on a charge of picking quarrels), the Chinese government hoped the weiquan movement would cease from growing.

But it did not.  By the beginning of 2014, the number of Chinese lawyers who self-identified as part of the weiquan movement number around 200 (see Eva Pils, China’s Human Rights Lawyers: Advocacy and Resistance).  And this number does not include non-lawyer advocates.  These lawyers and advocates have taken on a variety of issues: disability discrimination, sexual harassment in public places, product safety, persecution of the religious group Falun Gong, and official corruption just to name a few.  While their causes are broad, their approaches are similar: use of the weiquan lawyers’ network; bold courtroom tactics; and use of the media – both traditional and social – to call on the government to abide by its own laws and protect individual rights.  It is these tactics and this message that the Chinese Communist Party (“CCP”) considers a threat to its rule.

Attorney Wang Yu

Attorney Wang Yu

In the early hours of July 9, 2015, the Chinese government tried a new approach to rid itself of the weiquan movement.  Beginning with the detention of Wang Yu, a weiquan lawyer known for representing persecuted Falun Gong practitioners, public security authorities instituted a well-orchestrated, nationwide campaign where over 200 weiquan lawyers and advocates were apprehended and brought to various police stations throughout the country for interrogation.  According to Amnesty International, as of August 3, 2015, 232 advocates had been targeted in the past month with 27 still in police custody or just “missing.”  Their transgressions?  Zealously advocating for China’s most vulnerable.  Likely though the police will charge them with “picking quarrels” or “inciting subversion of state power.”

Not only is this crackdown unrivaled in its scale, it is also filled with a vitriol not seen since the days of the Cultural Revolution or the weeks after the Tian’anmen massacre. Wang Yu and her law firm, the Fengrui Law Firm, have been lambasted in the state-controlled media with the claims that Fengrui is nothing more than a “criminal gang” in “serious violation of the law (see also China Law Translate‘s translation of the infographic appearing in China’s Legal Daily).  Never before has a group of lawyers received such a public and broad rebuke.

Obama & Xi to meet in DC in September.

Obama & Xi to meet in DC in September.

The Chinese government’s unprecedented and alarming attack on its weiquan lawyers comes only weeks before President Xi Jinping’s first state visit to the United States.  Many have called on President Obama to cancel the visit because of the detention of these lawyers.  But that would be a mistake.  Instead, President Obama should take Xi’s visit as an opportunity to highlight the United States’ commitment to public interest lawyering by inviting many of the country’s various public interest lawyers to a meeting with President Xi.  And not just the American Civil Liberties Union and the Center for Constitutional Rights, two organizations that repeatedly sue the federal government for its civil rights transgressions.

human_rights_firstEveryday throughout the United States, legal services attorneys challenge the power of the state while simultaneously accepting the state’s funding.  In New York, to advance the rights of individuals with disabilities, MFY Legal Services, Inc. sued New York State for warehousing adults with mental disabilities in adult homes instead of integrating them in the larger community as demanded by the Americans with Disabilities Act.  In California, the Public Interest Law Project, working with local legal services organizations, has repeatedly sued various city governments for their failure to zone for  and finance the development of affordable housing, a requirement under California law.  The National Center for Law and Economic Justice sued various New York City agencies for failing to ensure that public benefits information was accessible to the visually-impaired.

Affordable housing, mental health issues, disability discrimination, these are all issues that China is currently grappling with and is why President Obama should highlighting the role that United States legal services attorneys have played in bringing these issues to the forefront and protecting these individuals’ rights in this country.  Even though these cases appear to challenge the government’s authority, in the end this approach is necessary to provide an escape valve for growing societal pressures.

800px-The_Association_of_Bar_of_New_York_EntranceFinally, if China wants to ensure that it remains hospitable to international business, it cannot round up weiquan lawyers, refer to them as a criminal gang, deny them access to lawyers (even though such a right is guaranteed by China’s Criminal Procedure Law), and detain them on trumped up charges. A functional legal system cannot be limited to just to business disputes.  A  legal system is only as strong as the protections it affords society’s weakest.  It is part of the reason why some of the legal services cases mentioned above were co-counseled with corporate law firms.  It is why the recent letter from New York City Bar Association President, Debra Raskin, to President Xi condemning his government’s recent round-up of public interest lawyers is essential.

State visits are highly choreographed affairs where words and actions matter.  Too often this means that words that directly criticize are not said.  But here, by inviting Xi Jinping to a session with U.S. public interest lawyers and their supportive corporate law brethren, such as Ms. Raskin, President Obama could get the message across that the Chinese government’s current behavior is not just in violation of its own law and international law, but is also self-defeating.  Individual claims must be heard; this is why the United States and every state government continues to fund legal services organizations that directly challenge them.

China Passes National Security Law

Ready for National Security!

Within a day of its publication of the second Draft Foreign NGO Law on May 5, the Chinese government also published for comment a Draft National Security Law.  Today, that document became law. Although criticized for its vagueness and breadth, the passed law is still just as broad if not more so.  The new law also covers protection of seabeds and adds the word “extremism” to the provision on terrorism (Article 28), a provision that immediately follows the one that protects “normal religious activity” and calls for the opposition to foreign influences and interference in domestic religious affairs (Article 27).

The law itself comes off more as abstract principles. But make no mistake, the Chinese government and the Public Security Bureau which has oversight of the Law, means business.  The fact that they elevated this abstract document to the level of a law is a telling sign and foreign governments should be looking at it carefully.

The full English translation of the National Security Law has been published at China Law Translate and can be found here.

Just For Fun: Art Review – China Through the Looking Glass

By , June 17, 2015


China Through the Looking Glass

China Through the Looking Glass

Picasso did it with Africa; Gauguin did it with Tahiti; Remington with the American West  And, as we learn from the Metropolitan Museum of Art’s amazing new show, China Through the Looking Glass, many of the West’s greatest fashion designers have done it with China.  What is the it?  Using another culture for inspiration for your art.

But as the first room in this exquisite exhibit demonstrates, this show is not about China.  It is about the fantasy that China is for many of the West’s most famous designers: Paul Pioret, Chanel, Alexander McQueen, Yves Saint Laurent.  Each of these designers have looked to China for inspiration, using their interpretations of China in their designs.  This is strikingly clear in the first room of the exhibit – an incredible display of mirrors, movies, music and clothing.  Each of the Western dresses are showcased next to a traditional, Chinese imperial piece of clothing (graciously on loan from Beijing’s Palace Museum), showing that while there are similarities, the two are far from the same.

The Looking Glass Gone Wrong?  Backwards Chinese Characters on this Chanel Dress

The Looking Glass Gone Wrong? Backwards Chinese Characters on this Chanel Dress

Fortunately, the Saturday I attended the exhibit, I was accompanied by an American fashion designer friend who could not get enough of this exhibit.  As she explained, what is exciting about “China” is that for Western designers, they can “add another layer of creativity because they do not carry the cultural context” that Chinese designers would have.  In many ways, these Western designers are more free to create new concepts.  Silk, manchu robes, the qipao, the mao suit, often shorthand for China in the Western fashion, can be taken to another level by Western designers while maintaining something “Chinese-y” (of course the French have a word for this: chinoiserie).

But at what point does homage become stereotype and in today’s globalized world, does that stereotype become a harmful public view? Those questions are asked, but left largely unanswered, in the portion of the exhibit featuring Anna May Wong, an American actress of Chinese descent who served as a muse to many fashion designer.  Wong repeatedly received ecstatic reviews of her performances, but in America, she was constantly typed-cast to play one of two roles: the Lotus Woman or the Dragon Lady.  The clothes in this gallery – inspired by many of Wong’s movie outfits – are juxtaposed with pictures of Wong in many of her stereotyped roles.  At what point do Western apply their interpretations of China to more than just clothes, but also to people?  These questions are raised in another gallery on the floor, the one dedicated to Yves Saint Laurent’s 1977 campaign “Opium.”  Would such marketing fly today?

Anna May Wong and a dress inspired by her

Anna May Wong and a dress inspired by her

On one level, China Through the Looking Glass is sublime and should not be missed – beautiful, Chinese-inspired fashions are artistically laid out (by Hong Kong film director Wong Kar-wai no less) throughout the show, surrounded at times by traditional Chinese artifacts.  The fantasy-feel permeates the show, giving an otherworldly excitement to many of the outfits.  But Looking Glass is more than just a pretty show – it is a show that challenges and questions just how far that looking glass should go.  At what point should our short hands for China stop?


Rating: ★★★★½
China Through the Looking Glass
New York’s Metropolitan Museum of Art
On Display until August 16, 2015

Wang Nan’s Tian’anmen 26 Years Later

An early photo of Wang Nan, late 1980s

Wang Nan (pronounced Wong Nan) is a 45 year old Beijinger.  Born in 1970, he has seen his city radically change under China’s economic miracle.  In fact, as a photojournalist, he has documented China’s unfathomable rise and has been fortunate enough to partake in it.  Wang Nan and his wife live more than comfortably in their renovated, Western-style apartment, where his photos from around the world line the walls.  He knows he has been lucky, and he will tell you that immediately when you meet him; even with his world travels, he is still a fairly humble man.  His 11-year-old daughter worships him even when he sings off key on their Sunday morning car rides to visit his mother.  His 78-year-old mother, like all mothers, criticizes him as soon as he arrives – his hair is too long, he’s too skinny, he spoils his daughter – her granddaughter – too much.  But like all mothers, she is proud of her son.  And Sunday is her favorite day of the week.

But Wang Nan is not 45 years old.  He has not shared in China’s economic miracle.  He does not have a daughter.  And he never sees his mother.   For Wang Nan never made it past the age of 19.   Instead, in the early morning hours of June 4, 1989, on the corner of Nancheng Street and Chang’an Boulevard – the Boulevard of Eternal Peace – a People’s Liberation Army’s bullet ripped through this high school student’s head.

As Louisa Lim recounts in her powerful book The People’s Republic of Amnesia, Wang Nan’s heart was still faintly

June 4, 1989, the aftermath of the Tian’anmen Crackdown

beating when doctors found him unconscious, bleeding from the head.  They wanted to take him to the hospital, but the soldiers forbade it.  Frantically, the doctors used their last bandage to cover his wound and stayed with him until he died two hours later.  With the sun rising on that June 4 morning 26 years ago and desperate to hide the bodies, the soldiers dug a shallow grave in the lawn of the nearby school and dumped Wang Nan’s body  there along with two other civilians.  There it would lie until a few days later, when the stench was overwhelming  and the dirt was beginning to wash away, the health department came to collect the bodies.

Wang Nan’s mother, Zhang Xianling (pronounced Zhang See-ann Ling), one of the founders of the Tian’anmen Mothers, has never been allowed to visit the spot where her son took his last breath.  Every June 4, she is held under house arrest, with police standing guard at her apartment door, refusing to let her leave or for anyone else to come in.  In a symbol of tormented anguish, she will communicate with the outside world on the anniversary of her son’s death by holding a photo of him out of her apartment window.

Zhang Xianling with a picture of her son, Wang Nan, killed on June 4, 1989

Twenty-six years later, as Lim poignantly recounts in her book, it is this impediment to remembrance and the Chinese Communist Party’s (“CCP”) complete control of the history surrounding June 4th that is perhaps the greatest tragedy of all.  And as Lim points out, it is not just the parents who lost children that are not permitted to remember.  Bao Tong (pronounced Bow (rhymes with pow) Tongue), director of China’s Office of Political Reform in 1989 and right-hand man to his mentor Zhao Ziyang, believed that Deng’s economic reform must be coupled with political reform, otherwise corruption would prevail.  After the Tian’anmen crackdown, it was those thoughts that were blamed for the student protests and resulted in a seven year prison sentence for Bao.  In 2005, when Zhao Ziyang passed away, the police, which constantly stand guard at his apartment, refused to let Bao attend the funeral.  When his elderly wife attempted to go, the police pushed her to the ground, causing her to break a bone.

It is this recounting of the people’s history and the ghosts that still haunt them, that makes The People’s Republic of Amnesia one of the most important and moving books about the Tian’anmen crackdown.  Lim also does an excellent and unbiased job of describing the precise events that lead up to the crackdown making the book a must read for anyone who wants to understand China’s history and the current leadership’s obsession with “social stability” and complete control.

But Lim not only tells the stories of those who witnessed the crackdown, but also those for whom June 4, 1989 has no significance, namely the babies born after 1990.  In one study that Lim conducted, only 15 out of 100 Chinese college students were able to identify the infamous Tank Man photo, a photo that epitomizes the Tian’anmen crackdown and that is perhaps one of the world’s greatest symbols of courage.  She follows a college student who goes to Hong Kong to try to understand Tian’anmen, but when he returns to China, he just seems confused and deflated.  And then there is the Patriot, a Chinese car salesman who goes to Beijing to participate in the government-sponsored protests against the Japanese.  Their failure and inability to know about the Tian’anmen crackdown demonstrates the true effectiveness of the CCP’s re-writing of the Chinese people’s history.

Or does it?  Yes, there is a generation of Chinese who have not heard of the Tian’anmen massacre.  And then there are others who choose not to care.  But to assume that the CCP can so easily erase this dark moment in China’s history is to deny the Chinese people their conscience.  There is still a generation of Chinese – those born in the late 1960s and early 1970s – who know about Tian’anmen because they were alive when it happened.  When this generation comes to power and can change the history, will they?  Yes they might be busy making money now, but they have yet to ascend to leadership roles that would enable them to disclose the truth and recognize the bravery of those who died on June 4, 1989.

Tens of thousands march in Hong Kong last year to commemorate the 25th Anniversary of the Tian’anmen Massacre

There are the 11 Chinese college students, currently studying in various universities in the United States, the United Kingdom and Australia, who wrote an open letter to the Chinese people to communicate what happened on June 4, 1989.  The government-controlled Global Times responded with an op-ed condemning these students.  Like the students of 1989, these students have chosen to jeopardize their futures in China in an attempt to get the CCP to acknowledge June 4.

And then there are those – like the doctors who tried to help Wang Nan as he laid dying or the medical intern who, knowing the danger, gave Zhang Xianling her son’s last effects, or the individual who took out an ad in 2007 in a Chengdu newspaper stating “Paying tribute to the strong(-willed) mothers of June 4 victims” – who, when confronted with the choice, will do what is morally right, not what is politically expedient.

For these people, the world must continue to remember June 4, 1989, so that when the Chinese people themselves can commemorate this anniversary on their own terms, the memory will still be there.

Rating: ★★★★★

The People’s Republic of Amnesia: Tiananmen Revisited
By Louisa Lim
(Oxford University Press, 2014)
211 pages


Where Have All the Flowers Gone? Still Time to Respond to China’s Draft Foreign NGO Law

Less than a week is left for the public, including foreign entities, to submit comments on China’s draft Foreign NGO Management Law, a law that will completely alter the ability of foreign NGOs to work in China.  But it will be China’s own grassroots NGOs that will feel the blow of this law the most.  Many of China’s grassroots NGOs, in particular those that assist society’s most vulnerable, receive funding as well as capacity-building support, from these foreign NGOs.   (To read more about various provisions of the law and how exactly it will work, please click here).

Aside from human rights groups, little has been said about the law from the foreign entities that will be covered by it.  As Prof. Jia Xijin, an expert on NGO management in China, has made clear, the current draft law covers almost every non-profit that wants to do anything in China.  A non-profit that wants to set up an office in China will be covered.  But even more than that, any non-profit that just wants to do an event in China or an exchange, that behavior will also be covered even if the organization or its event is not particularly China-focused.  A dance troupe that wants to perform in China, covered.  A museum that wants to do an exchange in China, covered.  Doctors Without Borders responding to an emergency in China, covered.  Universities in particular, with their myriad educational, scientific and other exchanges with Chinese counterparts, will likely be the first victims of the law if it is passed as it is currently written.

Fortunately, New York University (“NYU”) has taken the lead in organizing a group U.S. universities to respond to the current draft law.  For universities interested in participating in that effort, the university’s general counsel’s office should email Danny Magida. [Email address removed since the comment period is over]

Other fields – the arts, bar associations, business associations, medical non-profits – should be taking a page from academia’s playbook and  submit joint comments.  If this law is passed as it is currently drafted, it will cover these fields as well and, because there is a limited number of Chinese partners that will be willing to work with a foreign NGO, could squash the ability of many of these non-profits to continue their work and exchanges with China.  That would ultimately hurt the Chinese people.  And the American people.  Average American’s understanding of China sometimes come from these changes, creating feelings which have largely been positive to U.S.-China relations.

Even businesses and corporate lawyers should be paying attention to this draft Foreign NGO Management Law.  Foreign businesses and corporate law firms are the few entities not covered by the current draft.  But foreign corporations doing business in China should be frightened by this law and its sister – the draft National Security Law.  Both are extremely vague – almost definitional-less – and overly-broad in the entities and conduct covered.  Both show the current power of the security apparatus in crafting China’s laws.  This type of legal drafting might currently be limited to civil society-like laws,  but it may reflect a larger mindset – that law should serve the Chinese Communist Party – that will inevitably be felt in the business world as well, if it hasn’t already.

Comments are open until June 4, 2015 and can be filed through the China’s National People’s Congress’ website here.

For instructions on how to comment, click here to this helpful cheat sheet.

To read China Law & Policy’s in-depth three-part series on the Foreign NGO Management Law, click here for Part 1; click here for Part 2; click here for Part 3.

China Law & Policy is happy to post entities comments to our website.  Please feel free to email info@chinalawandpolicy.com and we will post your comment on the draft Foreign NGO Management Law.

China’s Draft Foreign NGO Law’s Impact on a New World Order

It’s not only the South China Sea that is witnessing China’s differing interpretation of international law and its commitments under various treaties.  With its draft Foreign NGO Management Law, China is also turning up its nose to various international human rights treaties and bodies.  But while the United States sends surveillance planes to bait the Chinese into a skirmish over islands that are not clearly China’s and not clearly the Philippines or Vietnam’s, it remains noticeably silent on the draft Foreign NGO Management Law. (For an interesting take on how to solve the South China Seas issue without resorting to a U.S.-China conflict, see Prof. Jerome Cohen’s analysis here).

As Human Rights in China (HRIC) pointed out in a recent analysis, ignoring the draft Foreign NGO Law’s impact on China’s international human rights commitments comes at a dangerous cost.  China is a sitting member of the U.N.’s Human Rights Council, a Council that less than a year ago issued a resolution calling on its members to create an environment where civil society can flourish and admonishing those state’s that passed laws similar to what China has proposed in the current legislation.  China’s draft law will do precisely the opposite of creating a flourishing domestic NGO sphere; it will create a vacuum in funding and in knowledge for China’s smaller domestic NGOs that do important work benefiting some of China’s most vulnerable – those left behind by the country’s economic development.  The Chinese government has yet to state whether it intends to fill that void with money from its own coffers.  But probably not.

In its analysis, HRIC goes on to highlight China’s other violations of various human rights treaties.  But its most important impact is noting that these transgressions cannot be ignored.  China is not some poor player that struts and frets its hour upon the stage and then is heard no more.  It is the world’s second largest economy with influential positions in the United Nations.  What it does, and how it interprets its human rights commitments, will inevitably impact the rest of the world.  Countries that might not have clamped down on their own civil society for fear of international reprisals, now have cover to do so.  With the world’s silence, it becomes all the more apparent that international human rights treaties play second fiddle – if even that – to military interests over a bunch of rocks that might or might not contain large oil and natural gas reserves.

To read HRIC’s analysis – which is a must read – pleas click here.

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