Category: Civil Society

China Ready for Market Economy Status? Not According to the CECC

By , October 17, 2016

Seal of the CECCIn its 15 year history, perhaps no other annual report is as consequential as the one the Congressional Executive Commission on China (CECC) released on October 6, 2016 and in the midst of China’s push to be granted Market Economy Status.  China believes that with its December anniversary of its World Trade Organization (WTO) entry, it has a legally-mandated right to be granted Market Economy Status, a status that comes with significant trade benefits.  But the CECC’s 2016 Annual Report paints a different picture, revealing a Chinese government, under the leadership of Xi Jinping (pronounced See Gin-ping), intent on consolidating the Chinese Communist Party’s (CCP) power at the expense of a rule of law.

In 2001, Congress created the CECC after the U.S. normalized its trade relations with China.  Prior to normalization, Congress reviewed U.S. relations with China every year to determine if most favored nations status should continue to be granted to China.  Inevitably, this annual review focused on China’s human rights record and legal development.  However, with China’s accession into the WTO, a yearly Congressional

Photo Courtesy of china.org.cn

Courtesy of china.org.cn

vote on trade relations with China was no longer possible.  As a result, in agreeing to China’s entry into WTO, the CECC was created to monitor China’s human rights, review its legal development, and maintain a political prisoners database.  Part of the CECC’s mandate is to issue an annual report concerning these issues

For certain, since the CECC’s creation, China has made great progress in creating a more vibrant and reliable legal system.  The 2016 Annual Report highlights some of these positive developments.  In 2016, the Chinese government instituted reforms to its household registration system (hukou), a system that has long kept rural residents in a second-class citizen status; it eliminated its one-child policy in favor for a two-child policy; it passed an Anti-Domestic Violence Law that recognizes psychological abuse in addition to physical violence and applies to non-married couples; it passed a Charity Law that could make it easier to create non-profits in China; with reforms to the court acceptance system, Chinese courts have accepted more sensitive cases, including China’s first gay marriage case; and in the past year, the central and local governments have increased funding to legal aid.

Zhongze Women's Found, Guo Jianmei, given the International Women of Courage Award by Michelle Obama and Hillary Clinton, March 2011. (Photo Courtesy of Roshan Nebhrajani/Medill DC/Flickr)

Zhongze Women’s Found, Guo Jianmei, given the International Women of Courage Award by Michelle Obama and Hillary Clinton, March 2011. (Photo Courtesy of Roshan Nebhrajani/Medill DC/Flickr)

But as the CECC’s 2016 Report makes clear, this progress is heavily overshadowed by the government’s suppression of anything it deems a threat to its rule.  In 2016, China continued its prosecution of  civil rights lawyers on charges of “subverting state power” for zealously advocating for their clients on what the CCP determined to be a sensitive issue. Ironically, less than a month after the passage of the Anti-Domestic Violence Law, in January 2016, Beijing police ordered the shutdown of the Beijing Zhongze Women’s Legal Counseling and Service Center, a women’s rights organization instrumental in getting the Anti-Domestic Violence law passed.  And while China passed the Charity Law in an effort to encourage the non-profit sector, the passage of the Foreign NGO Management Law in April, seeks to limit the interaction of domestic NGOs with foreign ones, rendering illegal many of the effective relationships that have developed over the past decade and has resulted in an increasingly vibrant civil society in China.  In addition to passing the restrictive Foreign NGO Management Law, in 2016, the CCP increased its anti-Western rhetoric, equating those who seek political reform as being pawns of “hostile foreign forces.”

Images of Hong Kong bookseller Gui Minhai

Images of Hong Kong bookseller Gui Minhai “confessing” to his crimes (Photo Courtesy of Hong Kong Free Press)

The CCP continues to censor the internet by blocking its citizens from accessing certain western media websites, including the New York Times, the Wall Street Journal and Bloomberg News. Domestically, it issues pronouncements on how Chinese journalists should be reporting certain news items and detains those who do not follow orders.  In 2016, in a throwback to the Cultural Revolution, the CCP increased its use of public confessions, having dissidents admit to their “crimes” on state television. These televised “confessions” included statements by foreign NGO worker Peter Dahlin, lawyer Wang Yu and the abducted Hong Kong booksellers Gui Min Hui, Cheung Chi-ping, Lan Wing-Kei and Lui Bo.

Beware of Foreign Forces  (Photo Courtsey of DoD/U.S. Army Staff Sgt. Sean K. Harp/Released)

Beware of Foreign Forces (Photo Courtsey of DoD/U.S. Army Staff Sgt. Sean K. Harp/Released)

The CECC’s 2016 Annual Report makes clear that the Chinese government’s retreat on the rule of law front is not happening in a vacuum.  Instead, as the 2016 Annual Report notes, the CCP’s efforts come at a time when China is experiencing its slowest growth rate in 25 years.  Will that slow growth mean that the CCP will double down?  That next year will only see a further retrenchment of the CCP’s Cultural Revolution ideology of public confessions, suppression of dissent and the suspicion of anyone who is in contact with “foreign forces”?  All at the expense of the rule of law and the Chinese people?  Given this past year’s developments, the answers to these questions seem to point to yes.

ABA’s International Human Rights Award – What Does it Mean?

By , July 12, 2016

Lawyer Wang Yu, ABA’s inaugural International Human Rights Award recipient.

On the one-year anniversary of the Chinese government’s widespread crackdown of the country’s civil rights attorneys, the American Bar Association (ABA) finally made good.  After its tepid response last summer to the Chinese government’s detention of over 300 lawyers and advocates, on Friday, the ABA boldly awarded its inaugural International Human Rights Award to Chinese civil rights attorney Wang Yu (pronounced Wong U).

But Wang Yu won’t be in San Francisco on August 6 to accept her award.  For Wang Yu and 23 other advocates are still being held by the Chinese government, many charged with the very serious crime of subverting state power, which can carry a life sentence.  All because of their representation of some of society’s most vulnerable: the poor, religious minorities, child sex victims, intellectuals that the state has deemed an enemy such as Ilham Tohti.  In other countries, this type of representation would be celebrated.  But in China, it is seen as a threat to the Chinese Communist Party’s (CCP) rule.  Ironically, the rights these advocates fought for on behalf of their clients – the right to meet with their attorney (only 6 of the 24 have had access to an attorney), the right to a fair trial, the right to a speedy trial in accordance with Chinese law – are being denied to them as they are isolated in prison.

Wang Yu, in front of a Chinese court, with a sign stating “Return my right to see my clients”

Arrests and persecution of China’s civil rights lawyers have been ongoing since Xi Jinping ascended to power in 2012.  But what makes the July 9 Crackdown unprecedented is its scope and its public nature.  Prior arrests and prosecutions, such as that of Xu Zhiyong, have not received the public attention and the vilification that the July 9 Crackdown has received.  Soon after the mass round-up of advocates, the state-run Legal Daily ran an infographic calling these lawyers a “criminal syndicate” and heavily suggesting that these lawyers are mere conduits of foreign money and ideas as opposed to their motivation coming from their own intrinsic sense of justice. (Translation of the infographic courtesy of China Law Translate)

But what the Chinese government doesn’t get with its July 9 Crackdown is that it is its own lack of transparency, unbridled corruption and squelching of citizens’ rights that ensures that this movement will continue.  Chinese civil rights advocates might be weakened but they are far from dead; to think otherwise does not give these advocates the credit they are due.  As long as the CCP continues on its course of one-party rule with little space for public disagreement, their rise is inevitable.  Wang Yu became a civil rights lawyer after the police mistreated her in a railway station and then bizarrely charged her with “intentional assault.”  Cao Shunli (pronounced Tsao Shun-lee) was just a civil servant until she was fired from her job for alerting her supervisors to the corruption of the local housing lottery.  After that, she became a rights activists only to die in police captivity in 2014.  Tang Jitian (pronounced Tang Gee Tea-an) was a prosecutor for seven years before he could no longer stand the daily injustice and corruption endemic in the system.  He then took the test to become a criminal defense lawyer to represent those whose rights were being trampled by the state.

For sure the ABA’s awarding of its International Human Rights prize falls on the CCP’s increasingly deaf ears.  But that doesn’t mean we should remain silent as the CCP dismantles a rule of law society.  For Wang Yu, and the advocates imprisoned with her, the ABA’s award is important recognition of their work, recognition that their own government refuses to bestow even as it adopts a few of the changes they have called for to make China a more just society.

Who Is the Hooligan? A Review of Wang Nanfu’s New Documentary

By , June 19, 2016

Director Wang Nanfu did not intend to make the movie that became Hooligan Sparrow, the opening feature at this year’s Human Rights Watch film festival.  But it’s hard to avoid creating such a tour de force when you become enmeshed in the absurdity that is the life of a Chinese rights activist.

In spring 2013, Wang Nanfu (pronounced Wong Nan-foo) returned to her homeland of China to make a documentary about women’s rights activist Ye Haiyan, also known by her online name “Hooligan Sparrow.”  Since 2006, Sparrow has worked with China’s sex workers, providing educational materials on safe sex and advocating on their behalf, particularly for those who work in low-cost brothels that charge only a few U.S. dollars.  To bring greater exposure to sex workers’ plights, in 2012, Sparrow engaged in a bold campaign: working for a day in one of these low-cost brothels and providing sex for free.  Her campaign worked and soon she was on TV talk shows, explaining to Chinese society the discrimination that these sex workers face.  This is what Wang Nanfu intended to cover.  But when she arrived in China, Sparrow was on to a new justice campaign: ensuring that the pimping of schoolgirls to government officials on Hainan Island would be prosecuted.

In early May 2013, the principal of a local school on Hainan Island took six of his female students – ages 11 to 14 – to hotels where they were forced into sex with him as well as with a government official.  Although the story sparked outrage online, the local police initially claimed that the two men did not have sex with the girls, even though the parents uploaded pictures to the web which provided ample evidence that the two men did.

Sparrow with her sign: Principal: Get a room with me, leave the schoolchildren alone!

Sparrow and a group of other activists, including noted human rights lawyer, Wang Yu, leapt into action, immediately traveling to Hainan to protest outside of the girls’ school and demand the arrest of the principal and the government official on charges of rape.  Realizing that a trial in the media – especially the social media – is increasingly the only way to achieve justice in China, Wang captures Sparrow’s genius as Sparrow comes up with a slogan that she knows will go viral: “Principal, get a room with me, spare the schoolchildren!”  Almost immediately the picture of Sparrow holding that sign gets picked up by hundreds of netizens, and in a show of solidarity, many post selfies holding signs with the same slogan.  By the end of May, Sparrow’s campaign finds success and the two men are charged with “sex with underage prostitutes,” a charge though that is less severe than the crime of rape. For Sparrow, that charge is not enough, and she and Wang Yu continue their fight to eradicate the lesser crime of “sex with underage prostitutes,” arguing what people in China and the rest of the world know to be true: that any sex with a minor – be it paid or not paid – is not consensual and is rape.

This intense incident, with plainclothes police physically jostling the protesters, is only the start of what becomes an increasingly powerful condemnation of the current Chinese Communist regime.  Although Sparrow was successful in her protest – with the legal system prosecuting the principal and the government officials – the Chinese government, as Wang Nanfu skillfully documents, views Sparrow as anything but a success.  Instead, the full power of the regime comes down on Sparrow, and hard.  But, as Wang Nanfu beautifully captures, Sparrow is more than an activist.  She is also a single mother to a 12 year old daughter.  It is watching Sparrow’s relationship with her daughter – and the concern any mother would have for her child – that makes Hooligan Sparrow into more than a documentary about a rights activist and her movement.  It captures the human toll that such advocacy has on both the activist and her family. When Sparrow is unlawfully detained on trumped up charges in what appears to be a way to punish her for her Hainan protests, her daughter is largely left to fend for herself.  Once freed, government-hired thugs hold a protest outside of Sparrow’s home, calling her a prostitute and demanding that such a loose woman move from their neighborhood.  Sparrow’s daughter hears all of this.

Sparrow’s daughter, trying to get homework done while her mother gets arrested.

But slander against her mother is not the end.  Sparrow is eventually evicted from her apartment, a tactic that Chinese authorities increasingly use against human rights activist.  Why detain activists in violation of the law when you can put pressure on landlords to evict them and make their life one on the run?

What Wang Nanfu documents next is Sparrow and her daughter’s constant movement, looking for a place to live.  In one city, Sparrow is able to rent an apartment but the local school will not accept her daughter because of Sparrow’s activism.  Yet again, Sparrow is forced to move.  With each move their possessions become less and less until all they have is one backpack each.

The next city Sparrow moves to, the authorities already know she is coming, and in one of the movie’s most harrowing scenes, the film goes dark and only confused sound is heard as Wang Nanfu and Sparrow’s daughter run up the stairs to try to get into the apartment before their pursuers  can capture them.  In the black background, you hear Sparrow yelling at the authorities, unclear if there has already been a physical altercation but knowing if there was one, Sparrow was not going to win.

Sparrow can never win and that is one of the absurdities about the current regime that Hooligan Sparrow captures perfectly.  In any other society, Sparrow’s successful advocacy would be celebrated.  But in China, even when the regime adopts the exact measures advocated for, the rights advocate must still be persecuted.  In other words, if your cause is successful, it is that success that will be your downfall.  Which makes one wonder, how will Chinese society ever become more just if this is the catch-22 that rights advocates constantly find themselves in?  The Chinese Communist Party’s mantra is largely maintaining the status quo; reform that brings greater justice to society’s vulnerable is hardly a priority.  Even President Xi Jinping’s campaign against official corruption did not capture the corrupt government officials having sex with minors, a much more common occurrence than just an isolated incident in Hainan.

Director Wang Nanfu

But it is Hooligan Sparrow‘s poignant portrayal of the unnecessary suffering of Sparrow’s brave daughter that resonates the most.  How can a government do this to an innocent child?  To be on the run, to be rejected from schools, to be a social outcast at the age of 12?  It isn’t Sparrow that is the hooligan in all of this.  That title clearly belongs to the current regime.

To understand China today, Hooligan Sparrow is a must see.  Wang Nanfu has created a master documentary, one that rejects the staid interviews of the past and instead gets in the center of the action.  It is through her own brave film making that we can begin to understand the trauma of being a rights activists in China.  But it is also through Wang’s artful storytelling that one can also see their humanity, providing hope that Sparrow – and all the activists like her – will continue to go on.

Rating: ★★★★★

Next Showing: Washington, D.C. – June 23 & 26, 2016 at the AFI Docs Film Festival; showing in New York again in July and to be shown on PBS’ POV on  October 17, 2016.  Coming to a theater near you before then?  Check the film’s website here.

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.

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.

One Love: How Foreign NGOs & Governments Should Respond to China’s Draft Foreign NGO Law

In Part 1 of this three-part series, we analyzed how the draft law will restrict foreign NGOs in China,  In Part 2, we examined how the spirit of the draft law is already being felt.  For Part 1, click here; for Part 2, click here

u2More than a week has passed since the Chinese government published its draft Foreign NGO Management Law.  But yet the world largely remains silent – no word publicly from the foreign NGO community in China, the foreign universities that do work in the Mainland or the foreign governments who often fund NGOs working there.  But in light of the draft law’s potentially disastrous effects, is silence really a good strategy?

 

 

We’re One, But We’re Not the Same?  Which Foreign NGOs Will Be Covered by the Draft Law

The draft Foreign NGO Management Law is anything but an example of clarity.  But there are two things we know for sure from the current version: foreign NGOs that have an office in China are covered and foreign NGOs without offices in China that seek to conduct activities there are also covered.  (Art. 6).  We also know that the ultimate authority over all foreign NGOs, whether setting up an office in China or merely conducting activities there, is the Public Security Bureau (PSB) (Arts. 7, 12, 20 & 47).

What is the future of U.S. universities in China?

What is the future of U.S. universities in China?

As China Law Translate notes in its Cheat Sheet for Understanding the Foreign NGO Law, what is a foreign NGO is defined expansively as any “not-for-profit, non-governmental social organization.”  (Art. 2).  Such a broad definition can “include universities, international professional associations and interest groups, artistic groups and athletic associations” in addition to what we view as traditional NGOs like the Red Cross.

Similarly, the term “activity” is left undefined, allowing it to encompass anything.  However, even those foreign NGOs without an office in China will be required to establish a relationship with a Chinese partner in order to obtain a temporary activity permit to perform any work in China.  (Arts. 18-20).  The entire process can take 60 days or more, depending how easy it is to establish a relationship with a Chinese partner.  (Art. 20 & 22).  Will Doctors Without Borders have to apply for a temporary activity permit before responding to a medical emergency in China?  Under the current, vague draft, yes.

Universities are also covered under the current draft law.  It is that fact that has alarmed many Chinese scholars who realize that academic exchanges will be negatively impacted by the current, vague draft.

Ultimately, under the proposed draft Foreign NGO Management Law these terms will all be defined by the PSB.  And changed as the PSB sees politically expedient.

Well We Hurt Each Other Then We Do it Again?  Universities and Foreign NGOs Need to Stand Together

divide_conquerAs Thomas Carothers and Saskia Brechenmacher highlight in their report Closing Space: Democracy and Human Rights Support Under Fire, governments seeking to limit foreign NGOs are “skillful at dividing and conquering the international aid community.” Is the Chinese government hoping that some foreign aid organizations will not oppose the draft law, eager to curry favor so that they can continue their work in China?

But with the amorphous definition of a foreign NGO under the draft law, that is a dangerous strategy for any foreign NGO with either offices in China or that just conducts activities there.  Almost all NGOs are covered under the current definition and that is why it is important that the foreign NGO community, including universities, stand as one in commenting and opposing the current draft.

Universities and major non-profits have an even greater responsibility to publicly comment on the proposed draft law.  In the current environment in China, not all foreign NGOs are equal.  The Rights Practice, which just had one of its staff members deported from China, likely does not have the same credibility before the current Chinese regime as the Gates Foundation, NRDC,  or Save the Children, which in January hosted President Xi Jinping at one of its spaces in Yunnan.  These are organizations that have long supported Chinese civil society actors  in benefiting the Chinese people.  It is important that these major NGOs continue to support civil society in its entirety, not just those sectors that the PSB presently approves.  Further, these major NGO’s do not know when their own work will imperil them with the PSB and thus, could find themselves subject to the harsh, vague provisions of the current draft Foreign NGO Management Law.  Five years ago, who would have thought that a group of individuals with hepatitis seeking to end discrimination would be considered a threat.  But that is where Yirenping finds itself today.

U.S. and European universities have the best footing to comment on the draft Foreign NGO Management Law. save the children These universities likely have thousands of academic exchanges – covering law, science, engineering, medicine – exchanges where the Chinese university likely derives tremendous benefit.  Even with the growing police state, the Chinese government probably does not want to risk losing even some of these beneficial relationships.

It is imperative that these major foreign NGOs and universities stand with those foreign NGOs that are the current target of the law and openly comment on the draft law.  Is the Gates Foundation really going to be kicked out of China?  Is UC Berkeley’s Engineering School?

You Give Me Nothing Now It’s All I Got: Where is the White House on All of This?

U.S. President Barack Obama (R) speaks as Brunei's Sultan and Prime Minister Hassanal Bolkiah (L) listens during the Trans-Pacific Partnership Leaders meeting at the Hale Koa Hotel during the APEC Summit in Honolulu, Hawaii, November 12, 2011. REUTERS/Larry Downing (UNITED STATES - Tags: POLITICS BUSINESS) - RTR2TXQO

REUTERS/Larry Downing

Last Friday, U.S. President Barack Obama recognized that if the we don’t write the rules, China will.  Unfortunately, for the non-profit world, Obama limited that rule-writing to trade issues and support for his Trans-Pacific Partnership.

It is time that the White House recognize that with China, there are more rules out there than those that directly govern trade.  The Obama Administration has allowed too many non-trade issues – U.S. journalist visas, now foreign NGOs – to receive scant attention as a U.S.-China policy matter.  With the U.S. abandoning these issues, China is writing the rules in these important areas, and these will be rules that other countries will copy.

But the Administration is not without recourse.  It too can submit comments on the draft law and should. When U.S. technology companies appeared to be negatively impacted by China’s draft Counter-Terrorism Law published late last year, Obama made his displeasure publicly known.  There is no reason to why he cannot do the same with the draft Foreign NGO Management Law. And comments from the Administration can no longer be relegated to a State Department spokesperson.  If there is anything to be learned from the handling of the U.S. journalist visa issue with the Chinese government, a State Department spokesperson is not going to cut it when dealing with the world’s second largest economy.  It wasn’t until Vice President Joseph Biden visited China in December 2013 and publicly raised the U.S. journalist visa hold-up, did China start taking the issue seriously.  Soon after, U.S. journalists’ visas were renewed.

China's pollution - coming to U.S. shores

China’s pollution – coming to U.S. shores

Although the Obama Administration should oppose the draft Foreign NGO Management Law on the grounds that its radical clampdown on civil society is anathema to the interest of the Chinese people, opposition can also be tied to trade.  Chinese domestic civil society groups often deal with the flipside of  free trade – environmental degradation, workplace justice, product safety.  And these are issues that are increasingly coming to our shores: air pollution from China now reaches California; unsafe products made in China are sold in the United States.  Chinese NGOs seek to enforce environmental regulation and product safety laws.  Although their goal is to protect the Chinese people from the harms of unregulated capitalism, a side benefit of Chinese NGOs’ success accrues to the American people.  California becomes cleaner and U.S. citizens fear Chinese goods less.  But if the draft Foreign NGO Management Law is passed in its current form, an important lifeline of Chinese civil society – the foreign NGO – will potentially be cut off. To ensure a balanced trade relationship with China, the Obama Administration must comment on the current draft law.  One opportunity is right around the corner: the annual U.S.-China Strategic and Economic Dialogue to be held this June in Washington, D.C..  The draft Foreign NGO Management Law, and the important role civil society plays in a free trade world should be on the agenda.

Finally, the increasingly unbridled power of the public security apparatus, evident in the draft Foreign NGO Management Law as well as the draft National Security Law, which was published only days after the NGO law, should frighten any entity that deals with China – be it a not-for-profit, a business or the U.S. government.  To ignore that development and to believe that the supremacy of the PSB is somehow limited to civil society issues is to do so at the peril of all of the United States’ interests in Asia, including business and military interests.

commentLike foreign NGOs and universities, the United States government has the opportunity to comment on the draft Foreign NGO Management Law and should do so.  Ironically, the comment period closes on June 4, 2015, the anniversary of the 1989 Tiananmen massacre.

Would you like to make your comment public on China Law & Policy?  Please email us at info@chinalawandpolicy.com with your agency’s comment and we will publish it (assuming it is related to the topic and is family-friendly).
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This concludes China Law & Policy’s three-part series on China’s draft Foreign NGO Management Law.  To read Part I where we analyzed how the draft law will restrict foreign NGOs in China, click here.  To read Part 2 where we examined how the spirit of the draft law is already being felt, click here. 

The Future is Already Present? How the Draft Foreign NGO Management Law Could Be Applied

For Part 1, which analyzes precisely how the law will restrict foreign NGOs in China, please click here

The Five Feminists - Clockwise from top left: Zheng Churan, Li Tingting, Wang Man, Wu Rongrong, and Wei Tingting

The Five Feminists – Clockwise from top left: Zheng Churan, Li Tingting, Wang Man, Wu Rongrong, and Wei Tingting

For anyone who still doubts that the draft Foreign NGO Management Law is about the Public Security’s Bureau’s ability to control foreign NGOs and their domestic partners, recent events – namely the detention of five feminist activists, the indictment of the head of the Chinese think tank, the Transition Institute, and the expulsion of foreign aid workers – should make clear that the draft law is primarily a security document.

The recent month-long detention of five female activists for planning a small, anti-sexual harassment demonstration was less about feminism than it was about the spirit of the draft Foreign NGO Management Law.  According to a person with knowledge of the March 2015 interrogations of the five women, the police’s questions centered on the five women’s work with various foreign NGOs as well as their work with Yirenping, a successful Chinese public health NGO that often cooperates with foreign NGOs.  The subject of the women’s planned demonstrations were a secondary issue for the police.

Similarly, the recent Recommendation for Prosecution of Guo Yushan and He Zhengjun, founders of the liberal think tank, the Transition Institute of Social and Economic Research, highlighted the Institute’s overseas funding and named various foreign NGOs (Heinrich Böll Stiftung (Germany), the Friedrich Naumann Stiftung (Germany), the Center for International Private Enterprise (U.S.), and Probe International (Canada)) as supporting the Institute’s “illegal business activities.”

The draft Foreign NGO Management Law, if passed in its current form, will make harassment of Chinese NGOs even easier than what we see now.  No longer will the police need to twist the criminal law to suit its objectives or will it be stymied by an earnest prosecutor’s office. Article 38 of the draft Foreign NGO Management Law forbids Chinese individuals from receiving foreign funds from an NGO without an office in China, much like the Transition Institute allegedly did.  Further, under Article 58(4), cooperating with an unregistered and unapproved foreign NGOs could lead to administrative detention of five days and a fine of 50,000 RMB (approximately $8,050).

Administrative detention is a form of punishment in China instituted at the behest of the local public security bureauadmin dete with no judicial oversight.[1]  It has long been criticized for violation of the arbitrary detention prohibition of the International Covenant on Civil and Political Rights (ICCPR) and, with little way to challenge it, is ripe for abuse including torture.  For those considered “personnel” of the foreign NGO, administrative detention could up to 10 days (Article 57) or 15 days (Article 59). With these expansive provisions, the public security bureaus will have a new tool to harass grassroots NGOs the police believe are “troublesome,” like it currently has deemed Yirenping.

Foreigners are not exempt from the draft law.  The administrative penalties make little distinction between foreigners and Chinese citizens in terms of detention and fines.  In addition, Article 62 gives the public security apparatus complete authority to deport a foreigner it deems in violation of the Foreign NGO Management Law.  This provision should not come as a surprise given the recent expulsion of two foreign NGO workers – Tim Millar of the Rights Practice and Jérémie Béja of China Development Brief – on visa technicalities.  Given the vagueness of the draft law, it will be very easy for the PSB to point to a provision of the Foreign NGO Management Law as a basis for deportation.

P1000689These provisions, which give expansive, unchecked powers to the PSB, will have a chilling effect on both foreign and domestic NGOs if they are allowed to remain in the final law.  Additionally, the inclusion of administrative detention puts China that much further from being able to ratify the ICCPR and be in-line with international standards.  But this draft has yet to become law and if there is a silver lining in all of this, it is the fact that the National People’s Congress (NPC) has opened the draft to comment, even comments from the object of the law itself: foreign NGOs.

To find out what foreign NGOs and foreign governments should be doing in light of the draft law, please click here to read Part 3. 

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[1] As China Law Translate notes in its informative Cheat Sheet for Understanding the Foreign NGO Management Law, “[t]here is a mechanism for court review and compensation for those wrongfully given administrative detention, but the remedy often follows punishment if at all.”

 

A Slow Death? China’s Draft Foreign NGO Management Law

What does the future hold for Chinese civil society?
What does the future hold for Chinese civil society?

Last Monday, the Chinese government finally published the second draft of the Foreign NGO Management Law, a law that could completely alter the way foreign NGOs operate in China.  With the proposed layers of government control and final oversight by the China’s Public Security Bureaus (“PSB”), NGO work will become extremely difficult if the law is enacted in its current form.  While foreign NGOs will feel the initial pinch, the true victims will be the Chinese people.

Currently in China, Chinese NGOs – grassroots groups that seek to alleviate poverty, eliminate discrimination and conduct other activities that benefit the average citizen – are largely funded by foreign NGOs, especially those groups whose issue is considered “too political.”  And even where foreign NGOs do not offer funding, they provide essential training, informal advice and moral support that helps grow China’s nascent civil society.  Unfortunately though, the current draft Foreign NGO Management Law will result in fewer foreign NGOs able to work in China and as a result, will set the Chinese people back in their ability to vindicate their own rights.

Why would the Chinese government seek to squash civil society at this juncture?  Many of the government’s own social reform agenda items – ending corruption, ending re-education through labor, reforming the hukou system – have come from these civil society groups. So why now would the Chinese government look to pass a law that could severely limit the growth of civil society?

Make No Mistake, This Law is Not About Greater Transparency

Foreign NGOs have largely remained unregulated in China and there is something to be said about a law

Foreign NGO Managment Law

Foreign NGO Management Law – a show of force by China’s PSB (Photo by TPG/Getty Images)

that adds greater transparency to the sector.  For groups that are lobbying government officials or seeking to change the law, knowing the source of funding – even if the funder does not meddle in the organizations daily affairs –  is something we deem important to know.  The Chinese government is no exception nor should it be.  Only months ago were Americans shocked to learn that foreign governments donate money to many U.S. think tanks, with the implication being that this source of funding impacts the organization’s research direction.  It is why many Americans despise the Citizens United decision – it hides who is donating to a politician, with the inference being that the money sets the politician’s agenda.

But transparency is not what this law is about.  If it was, foreign NGOs could easily continue to be regulated by the Ministry of Civil Affairs.  But the Ministry of Civil Affairs is nowhere to be found in the draft law itself.  Instead, it has largely been replaced by China’s public security apparatus.  It is the PSB that has ultimate say if the foreign NGO can establish a representative office or conduct temporary activities in China (see Art. 47).  The PSB can, on its own volition, conduct on-site inspections of the China office, question individuals involved with the “matter being investigated,” copy or “seal” documents and when the PSB determines necessary, “seal” the venue related to the “matters being investigated” (see Art. 49).  The law is silent on what would give the PSB cause to disrupt the work of a foreign NGO, allowing for potential harassment.

Increasing Strength of the Domestic Security Apparatus Within the Chinese Government

The role of the security apparatus should not come as a surprise.  Since April 2013, with the drafting of Document No. 9, an internal Chinese Communist Party (CCP) communiqué highlighting what the CCP leadership perceived at the greatest security threats to its rule, civil society has been one of “seven perils” to the CCP’s power.  In November 2013, Xi Jinping, China’s new president, announced the formation of a National Security Commission, answering directly to him and that would  handle both foreign and domestic security threats.  In April 2014, the National Security Commission held its first meeting.  A  “penetrating review of foreign NGOs” was on the agenda.  In December 2014, Yang Huanning, the Vice Minister of Public Security, introduced the initial draft Foreign NGO law to the Standing Committee of the National People’s Congress.  Although circulated among Chinese who would be effected, the first draft was never officially circulated to the foreign NGOs who would be impacted.

Public security’s larger role in society is likely its way to justify its ever ballooning budget.  In 2013, spending on domestic security outstripped the government’s spending on the People’s Liberation Army.  Since that milestone and the attention that fact received in the foreign press, the Chinese government no longer publishes the full domestic security figure.  But it likely still continues to rival the amount spent on foreign security.  The Ministry of Public Security, and now the National Security Commission, must find ways to justify that spending, and arguably part of that justification is the threat of “Western agents” acting through foreign NGOs.  The Foreign NGO Management Law embodies that paranoia.

Will Foreign NGOs Even Have the Resources to Follow the New Law?

The law itself does not shut down foreign NGOs in China or prevent foreign NGOs from hosting events in China.  Instead, through an onerous, supervisory structure, it makes getting anything done in China time-consuming and expensive.  Survival of the fittest will dictate which NGOs go and which stay.

Under the draft law, foreign NGOs that want to establish a representative office in China must first have the consent

Will this cooperation be allowed to continue?

Will this cooperation be allowed to continue?

of a Professional Supervisory Unit (PSU) (see Art. 11), presumably a government agency or government-approved organization in the foreign NGO’s field.  A legal-oriented foreign NGO would seek to establish a relationship with the Ministry of Justice as its PSU.  Only after it receives this consent can the foreign NGO apply for approval with the PSB (see Art. 12(6)).

But here is the rub, how many foreign NGOs can one government organization sponsor?  Would the Ministry of Justice establish a relationship with every legal-oriented foreign NGO seeking to establish an office or would it pick one, two, or maybe a handful?  It’s not their business to sponsor foreign NGOs and presumably, these government agencies have limited capacity to do so.  Even if a foreign NGO can partner with a quasi-government organization, there are still not enough of these to cover the number of foreign NGOs with offices in China.  By one estimate, there are close to 1,000 foreign NGOs in China.  As a result, some will inevitably be forced to leave China because of their failure to establish a relationship with a Chinese PSU.

But the relationship with the PSU does not end with registration.  Every year, the foreign NGO will have to submit two documents: (1) an activity plan that delineates the implementation details for the following year’s projects (see Art. 24) and (2) an annual work report which must include financial accounting and audit reports (see Art. 37).   For smaller foreign NGOs with limited resources, hiring someone to handle this paper work might not be the best use of its funding.  Even if a foreign NGO can establish a relationship with a Chinese PSU, at some point it will become debatable if it is even worth it economically.

And if that is enough to discourage a foreign NGO from establishing a representative office, the procedures are required to be repeated every five years. (see Art. 15).

Even Academic Exchanges are Not Exempt from This Law

Harvard University President Drew Faust Meets China's President Xi Jinping on a recent trip to China

Harvard University President Drew Faust Meets China’s President Xi Jinping on a recent trip to China

Those foreign NGOs that think working from abroad will be less onerous will have a rude awakening.  Under the draft law, they must also establish a relationship with a PSU before applying for a “temporary activity permit” from the public security bureau. (see Art. 20(3)).  Again, it will be interesting to see how many eligible PSUs will establish relationships with foreign NGOs.

As the law stands now, foreign universities are not exempt from the draft law.  What foreign NGO is covered by the law is unclear and the vagueness means that anything that is a not-for-profit abroad is covered by the law.  Even the state-run Global Times highlighted the negative impact the first draft of the law could have on academic exchanges.  It appears those issues remain in the second draft as well.

Where Will All The Funding Go?

Any argument that the draft Foreign NGO Management Law will lead to necessary transparency is belied by the rigorous regulations that will make it impossible for many foreign NGOs to legally do work in China.  For many that will mean a decision to leave China.  But, as Thomas Carothers and  Saskia Breechenmacher highlighted in their prescient report, Closing Space: Democracy and Human Rights Support Under Fire, some organizations committed to staying in a country with increasing harsh laws against foreign NGO funding, might implement a policy of “distancing.”  Distancing is essentially the opposite of transparency – trying to hide the source of funding through various offshore means.

But this avenue, with its greater risks to the foreign NGO and in particular to its partners in China, will be used by very few.  The ultimate result of the draft Foreign NGO Management Law is that a large number of grass-roots Chinese NGOs that are doing essential work in China will close.

To see how the spirit of the draft Foreign NGO Law is already being implemented,  for Part 2 of this three-part series, please click here

It’s the Police? How to Make Sense of Judicial Reform & the Civil Society Crackdown

By , April 29, 2015

P1000689Last week, Young China Watchers asked a question that many who study China’s legal development have been grappling with: how to gel the Chinese government’s call for greater judicial authority, announced at October’s Fourth Plenum, with its current crackdown on anti-corruption and civil society.  China Law & Policy was fortunate to be invited to comment on this important question along with Jeremy Daum, senior research fellow at the Yale China Law Center, founder of China Law Translate, and recent participant in a China Law & Policy interview.

While we both reached the conclusion that these two phenomena – a call for judicial reform and the current crackdown  on civil society – are not mutually exclusive, we came at it from very different directions.

Jeremy Daum: “Far from constraining the Party’s power, these legal reforms are designed to reinforce the legitimacy of Party rule by creating more complete and effective mechanisms for the implementation of Party policy through all levels of government……The leadership’s ongoing concern with stability, which includes not just preventing social unrest, but also maintaining continuity of Party rule, resists the development of such perceived alternative sources of influence in civil society. 

Elizabeth M. Lynch: “[W]hat we are seeing are not necessarily two mutually exclusive ideas.  Instead, it is the reflection of the increased dominance of the public security forces. The Party’s calls for judicial independence – eliminating local government control of the judiciary and seeking to appoint legal professionals to the judiciary – can still occur even as this crackdown is happening since the proposed rule of law reforms do nothing to reign in the public security forces….”

The discussion, which can be read in its entirety here, proved an interesting one and even I don’t know who is right.  Feel free to read for yourself and offer any comments!

Read the Full Text of the Young China Watcher’s Conversation by clicking here.

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