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By Elizabeth M. Lynch, April 20, 2010

On Monday, I posted my take on the Rio Tinto trial which elicited significant response from China law scholars.  I was lucky to have a very thoughtful response from Prof. Vivienne Bath of the University of Sydney and Director of the Centre for Asian and Pacific Law at the University of Sydney.

Prof. Bath has a different perspective on the Rio Tinto trial and you can find her comments below.  She also points out two mistakes that I made in the original article.  In the original article, I state that foreign press was permitted into the bribery portion of the trial.  This is incorrect.  They were only permitted access to the verdict and sentencing portion.  A second mistake is that I state that there was live witness testimony; there was not.  There was only the presentation of written testimony; not actually live witness testimony.  I have made these corrections to the original article and my apologies to the readers.

I thank Prof. Bath for her response to my article and for giving me permission to post it to China Law & Policy to offer a different perspective.

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By Elizabeth M. Lynch, April 19, 2010

Originally Posted on Foreign Policy Digest

Developments

Last summer, the billion dollar steel industry watched in rapt attention as China cracked down on one of its own.  On July 5, 2009, Chinese authorities in Shanghai detained four employees of the Australian mining company Rio Tinto, then later sentenced them to prison terms ranging from seven to fourteen years.  Many China watchers and industry insiders considered the sentencing and charges of bribery and commercial espionage to be retaliation for the recent tough iron ore pricing negotiations, and Western media were quick to portray the Rio Tinto incident as a reflection of China’s irreverence toward rule of law and its politicization of the legal system for corporate advantage.   However, in examining the Rio Tinto case, the Chinese prosecutors followed legal procedure more precisely than they do in most ordinary criminal trials in China.  While there may have been some misuse of criminal process for corporate gain, it appears that the Australian government and Rio Tinto itself may have acted as passive accomplices in its politicization.

Background

Rio Tinto is keenly aware of China’s importance in its operations.  In 2009, China’s imports accounted for $10.56 billion, or close to a quarter of Rio Tinto’s overall profits.  With China as one of the few countries still growing during the global finical crisis, it is no wonder that Rio Tinto’s 2009 Annual Report listed “strengthen [its] relationship with China” as a key strategic goal for 2010.

In China, it is neither unusual nor unlawful for suspects to be detained without being officially arrested or charged with a crime.  Article 69 of the Chinese Criminal Procedure Law (CPL) permits authorities to detain a suspect

Stern Hu

without arrest for up to 30 days in certain instances—one of which is in cases with multiple suspects.  When the four employees were detained by Chinese State Security officials on July 5, 2009, Stern Hu—an Australian citizen—Wang Yong, Ge Mingqiang, and Liu Caikui appeared likely to be charged with stealing state secrets, a grave offense under the Articles 111 and 113 of the Chinese Criminal Law (“CL”) that can carry a life or, even death, sentence if convicted.  State secret trials are particularly nontransparent; the trial is completely closed, with even the defendant’s lawyer excluded.  However, upon their official arrest on August 12, the four Rio Tinto employees were not charged with stealing state secrets; instead all four were charged with the lesser crimes of stealing corporate secrets and commercial bribery, which carry prison terms of three to seven years and five years, respectively.  There is a thin line between stealing state secrets and stealing corporate secrets when the entity involved is a state-owned company, as are most Chinese steel companies.  But, given Stern Hu’s Australian nationality, it was crucial to Sino-Australian relations that China make such a distinction in this case.  On February 10, 2010, a three-judge panel in the Shanghai Number One Intermediate Court agreed to accept the case, and the four employees were officially indicted.

While in custody, the four employees received support from both Rio Tinto and the Australian government.  Sam Walsh, chief executive of Rio Tinto’s iron ore operations, remained confident in his employees’ innocence and repeatedly expressed his concern over the charges.  Australian officials who paid consular visits to Hu, as mandated by the China-Australia Agreement on Consular Relations (the “Consular Agreement”), continued to discuss the case with the press, and the Western media remained actively interested in the case, wondering how the Chinese government was going to execute what was perceived as trumped up charges against Rio Tinto employees.

Australian Consul-General Tom Connor (centre) makes a statement to the media outside the Shanghai No. 1 Intermediate People's Court in Shanghai, on March 22, following the first day in the trial of four Rio Tinto employees.

In a surprising turn of events, on March 22, 2010—the opening day of the long-awaited trial–all four Rio Tinto employees pled guilty to accepting bribes totaling $13 million.  In accordance with the Consular Agreement, an Australian consular official was allowed to attend the bribery portion of the trial.   Domestic press was given access to the trial, but with only guilty pleas, there was little to report.  Foreign press was excluded.* After the guilty plea, Rio Tinto and the Australian government, the only two Western entities that have seen the actual evidence that caused the four to plead guilty, stated that there was enough evidence to support the bribery charge.  But this allegedly “clear evidence” has not been made public, making it impossible to evaluate its credibility.

On the second day of the trial, the Court tried all four defendants in a closed-door trial on the charge of stealing commercial secrets.  Even Australian consular officials, who are permitted to attend all trials under the Consular Agreement, were denied entry.  After concluding the trial on March 24, the Court reached its verdict on the following Monday, March 29, 2010.  With Stern Hu’s wife in the courtroom–the first time she had seen her husband since the day he was taken away by authorities–the Court found all four defendants guilty of stealing commercial secrets.  In accordance with Chinese practice, sentences were immediately handed out: Stern Hu received a total of 10 years in prison, and Wang Yong, Ge Mingqiang and Liu Caikou received fourteen, eight and seven years, respectively.  All of the sentences were within the timeframe allowed by the Criminal Law.

Analysis

The Rio Tinto case makes clear that the Chinese criminal justice system could use improvement, particularly in regards to the public’s access to evaluate the evidence in non-closed trials.  But it is not the grave travesty the Western media portrays it to be.  In many ways, the Rio Tinto employees were given more protection of the criminal law than must ordinary Chinese defendants.  The Rio Tinto employees were all given access to defense counsel; Stern Hu met with his attorneys on ten different occasions before trial. In China, most defendants are unrepresented and the few who retain an attorney usually have no access to that attorney prior to trial.  Additionally, the Rio Tinto commercial secrets trial lasted two days, one day longer than most trials in China, with examination of evidence, including statements from witnesses.  In China, most criminal cases rely solely on a defendant’s confession with little to no other evidence.*

But the Western media has been particularly focused on the closed commercial secrets portion, with some arguing that the closed trial violates Chinese domestic law (see here and here).  Indeed, Article 152 of the CPL states that criminal trials, except for those involving state secrets or personal private matters, are open to the public.  However, the CPL is not the only instructive document.  The Supreme People’s Court (SPC), China’s highest court, issues binding interpretations to clarify the law.  Article 121 of the SPC’s “Interpretation of the CPL” maintains that in cases involving “business secrets,” the court may close the trial if a party requests it.  The Interpretation does not say that “party” is limited to either prosecutor or one of the defendants in the case; presumably any party with an interest in the secret may request the closure.  In this case, Rio Tinto, the Chinese steel companies involved, or the Chinese government, all of whom likely have reasons to keep the public out of the seedy affairs of iron ore pricing, likely requested a closed trial.

However, it is problematic that an Australian consular officer was excluded from the corporate secrets portion of the trial, and equally disturbing that the Australian Foreign Minister would neglect to discuss or criticize the Consular Agreement violations after the verdict.  The Consular Agreement is clear that an Australian consular official is permitted to attend all trials involving Australian citizens in China.  China’s claim that “judicial sovereignty” necessitated the closing of the commercial secrets portion of the trial is specious at best and leaves China open to the Western media’s assertion that the Rio Tinto case was purely political.

Yet, there is also reason to question the roles of Rio Tinto and the Australian government in the politicization of this case.  From the beginning, when the charges were changed from state secrets to commercial secrets, both the Australian government and Rio Tinto likely exerted pressure on the Chinese government, taking advantage of the political nature of the Chinese legal system which the Western media has criticized China for.

Sam Walsh, Rio Tinto's Iron Ore Chief

After the four employees were found guilty, Rio Tinto was quick to report that while “clear evidence” showed beyond a doubt that the four employees had accepted bribes, all bribe-taking was conducted outside of Rio Tinto.  It seems difficult to believe that a $13 million bribery scheme, presumably resulting in cheaper prices for iron ore for Chinese steel makers or more iron ore sold to a preferred Chinese steel maker, would leave not a single trace of evidence on Rio Tinto’s systems – not a single email or a price discrepancy or any evidence that more iron ore was being sold to one steel company, nothing. Also, as others have pointed out, with regard to the charge of stealing commercial secrets, one must wonder, who was the ultimate beneficiary of the theft?   Although evidence in the commercial secrets theft is not public, during sentencing the Court stated that the Rio Tinto employees obtained secret information about the China Iron and Steel Association’s “next price for upcoming iron ore negotiations.”  In other words, the limit one can charge the Chinese steel industry for iron ore.  This is information that Rio Tinto the company would want but would be less valuable to individual employees such as Stern Hu.

There are other legal tools to use to find out this information, but it appears that the Australian government has chosen not to use them.  Under Australian law, bribery of foreign officials by an Australian company and its employees is illegal and can be prosecuted in an Australian court, even if the bribery happened abroad.  Here, the Rio Tinto employees were convicted of stealing commercial secrets.  While one could steal commercial secrets by burglarizing someone’s office or hacking into their computer, it is most likely that the Rio Tinto employees obtained the secrets from someone on the inside of China’s state-owned steel industry.  It is most likely the Rio Tinto employees paid for this type of information, which is not easily attainable or free.  Such an act would be in violation of Australia’s criminal law prohibiting bribery of foreign officials and could subject Rio Tinto to large monetary penalties.  But the Australian government has made no overtures of either investigation or prosecution of other Rio Tinto employees or Rio Tinto itself.

China’s legal system is far from perfect; greater transparency could result in a more reliable legal system, less vulnerable to censure.  In this case, allowing the public to see the evidence relating to the bribery charges and giving some sort of an explanation for closing the commercial secrets portion of the trial could have been useful.  But, ultimately, the Rio Tinto case is not the poster child for China’s retreat from rule of law or for the danger of foreign companies doing business in China.  Instead, this case makes clear that the oft quoted adage by lawyers that “bad facts make bad law” is equally as apt to the press: “bad facts make bad journalism.”

__________________________________________________________________________________________

* Corrections were made to the original article to better reflect the facts (see here).  The author still stands behind the views expressed in this article.

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By Elizabeth M. Lynch, March 9, 2010

Prof. Jerome A. Cohen - Photo by George Washington Law School

On February 19, 2010, George Washington School of Law and Georgetown University Law Center hosted an academic conference in honor of noted Chinese legal scholar Prof. Jerome A. Cohen.  Consisting of four separate panel discussions on current legal issues in China, the afternoon conference, and it’s participants (all of whom were students of Prof. Cohen’s) was a testament to the continued importance of Prof. Cohen’s work in the field.

Panel 1 – Google & Freedom of Online Information
(7:20 start) Rebecca MacKinnon, Visiting Fellow, Center for Information Tech. Policy, Princeton
(19:35 start) Lawrence Liu, Senior Counsel, Congressional-Executive Commission on China
(28:49 start) Sharon Hom, Executive Director, Human Rights in China
Click here for video of this panel.

Panel 2 – Business Law
(1:43 start)Donald Clarke, Professor of Law, George Washington University Law School
(10:25 start) Nicholas C. Howson, Assistant Professor of Law, University of Michigan Law School
(19:22start) James Feinerman, Co-Director/Prof. of Law, Law-Asia Leadership, Georgetown Law
Click here for video of this panel.

Panel 3 – Human Rights, Civil Society & Criminal Law
(1:07 start) Xiaorong Li, Research Scholar, School of Public Policy, University of Maryland
(9:18 start)Karla Simon, Professor of Law, Columbus School of Law, Catholic University of America
(21:25 start)Eva Pils, Associate Professor, Faculty of Law, The Chinese University of Hong Kong
(33:38 start) Scot Tanner, China Security Analyst, The CNA Corporation
Click here for video of this panel.

Panel 4 – International Law
(1:32 start) Julia Qin, Associate Professor of Law, Wayne State University Law School
(10:35 start) Michael Schlesinger, Of Counsel, Greenberg Traurig, LLP
(20:00 start) Timothy Stratford, Former Assistant U.S. Trade Rep. for China Affairs, USTR
(28:15 start) Alex Wang, Senior Attorney & Director, China Environmental Law Project, NRDC
Click here for video of this panel.

CLOSING REMARKS BY PROF. JEROME COHEN – Click Here

Thank you to Prof. Don Clarke of George Washington School of Law for making the videos of the conference available.

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By Elizabeth M. Lynch, March 4, 2010

Lies, cheats and suicides.  It sounds like the plot of a daytime soap opera.  But unfortunately, it is the reality that is academia in China.  Chinese lawyer CAO Xinglong discusses the underbelly of faculty promotion in China and the abdication of the courts in enforcing the law in this area.  Without some sort of legal recourse, it is not just individual professors that are being hurt; as Mr. Cao argues, it is the integrity, reliability and prestige of the Chinese university system that will ultimately suffer the most.

Because of the sensitivity of the issues, names of universities and professors have been removed from this article.  However, China Law & Policy has confirmed the factual details of these incidents.  If you would like more information about the cases mentioned in the article below, please email Mr. Cao directly: xinglongcao@yahoo.com

The Lancet just recently published an article about academic fraud in China and the need to take action. You can link to the article here (free login required).

Also, for those who read Chinese, “Academic Criticism” contains many examples of academic misconduct.  Please click here to get to the site.

Thank you David Cowhig for bringing these links to our attention.

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By Elizabeth M. Lynch, February 16, 2010

February 19, 2010 from 1:30 pm – 6 pm; George Washington School of Law

Prof. Jerome A. Cohen

Free & Open to the Public
Click here for the event’s flier

The name Jerome A. Cohen is synonymous with the study of Chinese law in the U.S.  Why?  Because the man basically created the field.  Prof. Cohen started studying Chinese law in 1960, while mainland China was in the throes of the Cultural Revolution and no foreigners were allowed in.  Instead of giving up, Prof. Cohen went to Hong Kong and interviewed refugees as they fled the Mainland.  Through his interviews, he was able to gather information on the criminal law under the Communists.  To this day, “The Criminal Process of the People’s Republic of China: 1949-1963” is the only holistic examination of the Chinese criminal law in early Chinese communist history.

In returning to the U.S. and joining the faculty of Harvard Law School, Prof. Cohen founded the first East Asian legal studies program, inviting many Chinese students who would later become important legal reformers including the current President of Taiwan, the former Vice President of Taiwan, the Chief Justice of Taiwan’s highest court, and former dean of Tsinghua University Law School.  After China opened in 1979, Prof. Cohen joined Coudert Brothers and opened the first foreign law office in Beijing.

But Prof. Cohen’s career is more than just writing books and opening offices.  As a pioneer in the field, Prof. Cohen has taught the second, third, and now fourth generation of Chinese legal scholars and has made the field what it is today.  And this year, Prof. Cohen turns…..well, he turns an age where it is respectable to host a conference in his honor so the world can celebrate his achievements.

This Friday, George Washington School of Law and Georgetown Law present a conference in Prof. Cohen’s honor.  Discussing four fields of law that are undergoing significant change in China, the conference will feature powerhouses in the field, many of which are former students and colleagues of Prof. Cohen’s.  Below is the schedule of events.  This event is free and open to the public.  RSVPs are not required but would be appreciated.  Please email jacfestrsvp@gmail.com

****Prof. Cohen will be in attendance*****

Schedule:

Panel 1 – Google & Freedom of Online Information – 1:45 pm
Sharon Hom, Executive Director, Human Rights in China
Lawrence Liu, Senior Counsel, Congressional Executive Commission on China
Amy Porges, International Attorney, Law Offices of Amelia Porges PLLC
Susan Weld, Adjunct Prof. of Law, Georgetown Law

Panel 2 – Business Law – 2:45 pm
Donald Clarke, Prof. of Law, George Washington School of Law
James Feinerman, Prof. of Law, Georgetown Law
Nicholas C. Howson, Assistant Prof. of Law, University of Michigan Law School

Panel 3 – Human Rights, Civil Society & Criminal Law – 4:00 pm
Xiaorong Li, Research Scholar, School of Public Policy, University of Maryland
Eva Pils, Associate Prof., Faculty of Law, The Chinese University of Hong Kong
Karla Simon, Prof. of Law, Columbus School of Law, Catholic University of America
Scot Tanner, China Security Analyst, The CNA Corporation

Panel 4 – International Law – 5:00 pm
Julia Qin, Associate Prof. of Law, Wayne State University Law School
Michael Schlesinger, Attorney, International Intellectual Property Alliance
Timothy Stratford, Assistant U.S. Trade Representative for China Affairs, USTR
Alex Wang, Senior Attorney & Dir., China Environmental Law Project, NRDC

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By Elizabeth M. Lynch, February 8, 2010

In Petition: The Court of Complaints, director Zhao Liang (pronounced Zhwow Le-ang) takes on a huge and important subject – the Chinese petitioning system.  While the documentary fails to produce a cohesive story, it does successfully portray vignettes of a society very much in turmoil and tells the story of the many people left behind by China’s progress.

In China, the petition system is a way for individuals to lodge complaints against corrupt government officials or corrupt governmental process to higher authorities.  Also known as “Letters and Visits” (from the Chinese xinfang and shangfang), it’s a form of extrajudicial action that can trace its origins to imperial days.   If an individual believes that a judicial case was decided not in accordance to law or local government officials illegally violated his rights, he can complain to officials in a higher level of government to hear his case, re-decide it and punish the lower level officials.  In some ways, every country has a similar process – if you don’t like the way a government official in New York City is treating you, you can complain to your city council member or write a letter to the mayor.  But what makes the petitioning system different in China is the fact that it is a formal process.  Every level and office in the Chinese government has a bureau of “Letters and Visits.”

The petitioning system is vital to the Chinese government’s success, be it today’s Communist government or to the

Beijing's new Letters & Visits Office - near the South 4th Ring Road

imperial courts of the past.  By ruling a large country through an authoritarian dictatorship, the Chinese central government inevitability leaves much discretion in the hands of local officials.  But through the petitioning system, complaints of local official corruption will eventually make its way to top levels of government and allow the government to solve the problem, satisfy the aggrieved individuals, and by getting rid of corruption, solidify its rule.  The petitioning system serves as a safety valve in a system that does not allow popular participation or protest.

But as Zhao’s documentary successfully shows, the petitioning system, which receives over 5 million petitions a year according to Chinese statistics (many outside of China speculate that the number is closer to 10 million), is largely a failure.  Zhao focuses on the thousands of petitioners who travel from the provinces to lodge their complaints in person with the highest petitioning body, the State Bureau of Letters and Calls in Beijing.  But many of these petitioners are there for years, repeatedly getting the brush-off by state officials.  With one petitioner, Qi, who is in Beijing to seek compensation for her husband’s death after local officials beat him, we watch her daughter, Ju’an, grow up before our eyes on the streets of Beijing.  Only twelve at the start of the movie, Ju’an eventually leaves Beijing with her boyfriend and returns years later with her husband and son only to find her mother still petitioning.

If all that was lost was time, the petitioning system might not be so bad.  But there is also violence, and a lot of it.  Zhao captures many of the “retrievers” beating petitioners.  Retrievers are thugs hired by the local officials whom petitions are being filed against.  Because each petition to the central government is a black mark on a local official’s advancement, these local officials are desperate to prevent the petition from being heard.  An easy way is through

A "lawyer" of sorts to help others with the petitioning process - Beijing, China

intimidation and violence.  In one particularly troubling scene, Zhao films an overhead shot of a group of retrievers chasing and beating a single petitioner.  Zhao also juxtaposes one scene of a petitioner discussing his case with another scene where the petitioner has a black, bloody eye after a day of beatings.

Petition also raises the issue of forced psychiatric confinement of individuals the government deems “difficult,” something that is becoming more common in China.  Petitioner Qi is repeatedly detained and forcibly sent to a mental hospital.  Another petitioner describes the treatment at the psychiatric hospital – forced medication of drugs that have not been tested.  After a stint at a Chinese mental hospital and a diet of untested anti-psychotic drugs, one wonders if these women are still in fact sane.

While Zhao successful portrays many of the horrors of the petitioning system, he never describes if this system works for anyone or if there are any redeeming characteristics of the system.  If the petitioning system is abolished, would that mean the people would be better off if this is their only outlet?  At one point, Zhao shows a group of petitioners calling for democracy.  After a female petitioner is hit and killed by a train while running away from a group of retrievers, her neighbors in the petitioners’ tent village decide to launch a protest in her memory.  Zhao films the rhetoric of some of these protest-petitioners, with many of them discussing the prevalent corruption, the need for transparency, and the desire for democracy.

But these calls for democracy should not necessarily be seen as a new revolution in China.  The petitioning system relies on the average citizen’s belief that the government system has failed on the local level but that the highest levels in Beijing still work; each petitioner thinks the same thing – if only President Hu Jintao could hear what I have to say, he would understand that this isn’t just a violation of my rights but is also terrible for our country.  They have to believe this; if petitioners believed that the central government was just as corrupt as the local level, they wouldn’t petition.  Zhao’s focus on these protesting petitioners and their calls for democracy are certainly attractive to a Western audience.  But it’s unclear how these petitioners define their “democracy” and whether that democracy excludes a role of the Chinese Communist Party.

While there is room for improvement (especially the 2 hour length), in all, Petition: The Court of Complaints is worth the watch if only to feel the frustrations of a multitude of people and to allow them to finally be heard.

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By Elizabeth M. Lynch, November 11, 2009

More than a McDonald's for China's public interest lawyers

Originally Posted on the Huffington Post

Beijing, China – You would never expect a group of professional attorneys to hold a serious meeting in a McDonald’s, but for Chinese public interest lawyers, it is one of the few remaining safe places to meet.  With constant surveillance and random harassment by Chinese police, a public place like McDonald’s decreases the very real risk that the police will arbitrarily drag these public interest lawyers, known in Chinese as weiquan lawyers (pronounced way choo-ann and translated as “rights defending” lawyers), into custody.  So that is where I found myself last Friday when I met with three public interest attorneys in Beijing, all recently disbarred, to discuss their expectations for President Barack Obama’s inaugural visit to China next week.

“The government took away our ability to work…to help the people achieve their rights” Beijing lawyer surnamed Xie* (pronounced Syeah) said as he explained the recent disbarment of over 20 weiquan lawyers from practicing law in China.  While acknowledging that the Chinese Ministry of Justice (MOJ), which controls all bar associations in China, has the right to initiate procedures to discipline poorly-behaved attorneys, Xie countered “here, they didn’t even follow their own procedures….Because we did nothing wrong, they [the government] couldn’t use the procedures…instead, they used pressure on our law firms and other secretive means to punish us weiquan lawyers.  This is becoming more common.”

To say that public interest law in China is a small, burgeoning field is an understatement.  Only a handful of lawyers take on the cases of the most weak and vulnerable of Chinese society, and in a country of close to 1.4 billion people, there are a lot of these cases.  These are the cases on behalf of parents who lost their only child in the Sichuan earthquake and who want justice from the local government for shoddy school construction; or cases that seek to protect the rights of

Weiquan Activist, Hu Jia

members of Falun Gong to practice their religion, a right guaranteed under the Chinese Constitution; and cases as simple as protecting individuals infected with HIV or AIDS from discrimination.  While these lawsuits can all legally be brought under Chinese law, politically they are dangerous.  And the weiquan lawyers who bring these cases, cases that the Chinese government sees as upsetting their narrative of a “harmonious society,” subject themselves to harassment, disbarment, and, in the case of Hu Jia (pronounced Who Gee-ah), prison time.

These weiquan lawyers want President Obama, a fellow public interest attorney and Noble Peace Prize recipient, to acknowledge the importance of their struggle when he comes to Beijing.  “I don’t have great hope [for the visit]” attorney Liu* (pronounced Leo) admitted “but it is important for him [President Obama] to say something.”

“When Clinton and Pelosi came to China, they spoke little of human rights” Beijing lawyer Tang*, who was detained by police for a few days this past June, noted.  “But I want Obama to speak more about these issues.”

“President Obama and the U.S. government shouldn’t just look at today’s China, but where China will be in the future” Xie said “they need to look at the Chinese people’s hopes and their changing state of mind.”

President Obama and many who are traveling with him to China, including Secretary of State Hillary Clinton, know all too well the importance of public interest lawyers in guaranteeing that the laws on the books are a reality for society’s most vulnerable.  Upon law school graduation President Obama returned to Chicago to help the poor and least represented achieve their legally-entitled rights.  As first lady of Arkansas, Secretary Clinton co-founded the Arkansas Advocates for Children & Families and was the chair of the Legal Services Corporation.

In many ways, the difficulties that President Obama and Secretary Clinton surely faced as public interest lawyers are not unlike those of the weiquan attorneys in China – financially powerful adversaries, clients with little to no voice in society, and never-ending work with limited resources.  But there is one additional factor that neither President Obama nor Secretary Clinton had to contend with as public interest attorneys in the U.S. – their government shutting down public interest organizations in order to squelch their missions as well as the entire public interest movement itself.

Because of this and because they are colleagues of these weiquan lawyers, during next week’s visit, President Obama or Secretary Clinton needs to publicly acknowledge the increasingly difficult challenges faced by China’s weiquan lawyers and stress the benefits a flourishing public interest law movement can bring to China.

The importance of U.S. opinion to these weiquan lawyers cannot be overstated.  “America still serves as a model for human rights….it’s their duty to say something” Tang implored.  Like many Americans, I have often read about the beacon of hope that the U.S. provides to rights activists abroad.  But it wasn’t until last Friday, in talking to people ostracized by their own government for doing what they believe in, that I began to understand the significance of U.S. moral authority and the tangible dependence of activists abroad on it.

The U.S. is currently experiencing a great deal of self-doubt – our economy is tattered, we are in the midst of what appears to be two never-ending wars, our political parties can’t seem to cooperate to get anything done, and to get out of some of these problems we appear dependent on China.  But Tang is right – we should not shrink from the responsibilities of our ideals.  If President Obama, who likely best understands the importance of rhetoric in defining a movement, does not say something on behalf of these weiquan lawyers, then who will?

Our relationship with China is between two nations, between two peoples, not just between two governments.  The weiquan lawyers, and the poor and vulnerable people that they represent, are an indelible part of the Chinese people.  Certainly the Chinese government, and maybe even many of the Chinese people, would prefer that President Obama not acknowledge this, but there are many in China that hope he does.  I don’t pretend to know exactly how President Obama should walk the fine line between encouraging these weiquan lawyers and not outright offending the Chinese government and other sections of the Chinese public.  The weiquan lawyers I met with would like him or someone in the Administration to meet with one of the lawyers.  Others have called on the President to request the release of weiquan activists like Hu Jia.  I think at the very least President Obama should acknowledge these weiquan lawyers in a public statement to the Chinese people and encourage the continued growth of China’s public interest law movement in order to make the ideals of China’s law a reality for 1.4 billion people.

* The lawyers requested that only their last names be used in order to protect their identities.

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By Elizabeth M. Lynch, November 10, 2009

I wholeheartedly agree with Prof. Stanley Lubman’s recent call on the Obama Administration and Congress to provide more funding for legal development work in China.  But in requesting additional funding, it is important to ensure that such funding is provided in the way best able to achieve results.  Current U.S. development policy could do a better job at this.

The amount of government funding to legal projects in China is a small fraction of the funding for similar projects in places such as Iraq. While the development of a functioning legal system in Iraq is an important goal, in some ways it is even more critical for China.  China is already one of the largest economies in the world with influence that far extends beyond its borders and even beyond Asia.  With the world’s increasing interaction with China, a legal system that functions in China is essential for its relations not just with other countries, but with its own people.

Prof. Stanley Lubman

But in increasing the amount of aid for China’s legal development, it is also important that the U.S. seeks to distribute that aid in the most efficient way.  Prof. Lubman correctly points out that to effectively assist China with its legal development, the U.S. must not preach to China and should not ignorantly call for the all out adoption of Western values by China.  Instead, it is important to look to areas of legal reform, like environmental law, administrative law, and open government policy, that the Chinese government has willingly begun to move forward in.

But state-side, the U.S. needs do more as well.  Currently, various U.S. agencies, committees and other government bodies, with little to no coordination, provide funding to multiple NGOs and academic institutions doing legal development work in China.  This has caused the U.S. approach to legal development in China to be less one of strategy and more one of “throw anything against the wall to see what sticks.”

Apparently, this is a problem throughout the development field in the U.S.  Both the White House and the State

Dueling Directives between the White House and State or Friendly Competition?

Department are currently undertaking in-depth studies to reorganize and revitalize the U.S.’ global development policy (the White House called for a “Presidential Study Directive” on the issue on August 31, 2009; the State Department began a “Quadrennial Diplomacy & Development Review” on July 10, 2009.  Both reports should be issued in the next month or two).

While flexibility is important and to some degree should remain, with China, a better organized effort on the U.S. end is necessary.  Prof. Lubman has called on President Obama to discuss with President Hu Jintao a U.S.-Chinese program on legal issues.  If this does come to pass, this could be the perfect opportunity for the U.S. to coordinate across various agencies and governmental bodies its legal development work in China. The U.S. side of such a program should not just serve as a representative to China on the U.S.’ legal work there, but should also serve as the creator of a coherent China legal development strategy and seek to coordinate that strategy across the various U.S. agencies that provide funding for legal development work in China.

Additionally, the individuals who serve in this program should be individuals with knowledge or experience with China and its legal development.   In developing a U.S. strategy, these individuals should not just rely on their own experience however, but should also look to the many and varied people and organizations working on legal development in China, including U.S. academic institutions, U.S. NGOs on the ground in China, and even Chinese legal development organizations. Only through an informed, coordinated strategy will the U.S. effectively assist China in its legal development, justifying increased funding for such efforts.

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By Elizabeth M. Lynch, October 21, 2009

On October 16, 2009 the Congressional Executive Commission on China (CECC) released its 2009 Annual Report examining China’s human rights record and its progress toward a rule of law.  Click here for a PDF version of the CECC’s 2009 Annual Report.

The CECC was established in 2001 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 World Trade Organizations (WTO), a yearly Congressional 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.

As part of their mandate, the CECC is required to issue an annual report.  This report is thoroughly researched and provides an excellent snapshot of China’s progress in regards to international human rights standards and development of rule of law in more sensitive areas such as freedom of expression, criminal justice and access to justice.  The 2009 Annual Report is perhaps the most in depth, providing over 300 pages of data; pages 8 through 39 provide a summary of the Commission’s findings, showing both China’s progress as well as recent set-backs, and recommendations for U.S. policy makers.

Interestingly, the 2009 Annual Report was issued on the eve of President Obama’s trip to China (set for November 15-18), raising the question, will President Obama discuss any of these issues with Chinese President Hu Jintao?  On Secretary of State Hillary Clinton’s visit to China in February 2009, Secretary Clinton seemed to imply that human rights would take a backseat to other issues with China, such as the global financial crisis, climate change, and nuclear non-proliferation and regional security.  However, more recent events, such as the release of rights activist and attorney Xu Zhiyong as the new U.S. Ambassador to China arrived in Beijing and even more recent interviews with Secretary Clinton, have shown that the Obama Administration is raising human rights issues, albeit in a behind the scenes sort of way.  Will President Obama publically discuss human rights and legal development to the Chinese public in November?  And even if he does, will that portion of his speech be translated into Mandarin?

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By Elizabeth M. Lynch, October 19, 2009

Many Western China observers were dismayed by this past summer’s arrests and harassment of Chinese public interest lawyers; for many, such a crackdown evidenced a step back in creating an independent legal system.  Cheng Li and Jordan Lee of the Brookings Institution offer a different interpretation.  In their recent work, “China’s Legal System,” Li and Lee maintain that while the arrest and detention of rights lawyers like Xu Zhiyong was certainly a disappointment, China’s recent progress with legal reform overshadows this past summer’s events.  But even though Li and Lee are correct to note some of the positive developments, especially with the growth of the legal profession in China, they perhaps put too much weight on these developments at the expense of recent obstacles.

Li and Lee offer four developments that they claim bode well for legal development in China: (1) an increasing body of law, with new laws being written and old ones amended; (2) the astronomical growth in the number of lawyers; (3) increasing economic autonomy and a greater sense of professionalism in the legal profession; and (4) the rapidly rising number of legally-trained government officials.

Li and Lee cite the huge number of laws that China currently has on the books (231 individual laws, 600 administrative regulations, 7,000 local rules and regulations, and a sizable number of departmental regulations), but only pay passing attention to China’s difficulty in implementing laws on the local level, arguably the most important aspect of a functioning legal system.  To be sure, drafting laws is the first step; but without meaningful and consistent implementation, the value of such a large body of law is questionable.

Additionally, Li and Lee look to the increased professionalization of the legal profession as a positive sign.  It is true that the Chinese bar has become more professionalized and lawyers are no longer employees of the State as they were in the 1950s.  But Li and Lee make no mention of the fact that the All China Lawyers Association and local bar associations are government-controlled and answer to the Ministry of Justice (MOJ).  Prof. Jerome Cohen of NYU’s U.S.-Asia Law Institute has consistently commented on this lack of independence of the Chinese bar and has noted the role that the MOJ has played in influencing bar associations to punish rights lawyers that go a bit too far for the government’s taste.

Finally, Li and Lee are correct to note that there has been an increase in the number of legally trained government officials rising through the ranks.  Most officials in the current leadership have a science background, with very few with a background in law or even the social sciences.  In the next generation of officials, currently being groomed for powerful positions in the Party and the government, a majority have a background in the social sciences.  But only one, Li Keqing, has a background in law.  Thus, a shift toward leaders with legal training is not as apparent as Li and Lee contend.  Furthermore, such a shift is not reflected in the positions in the Chinese government that one would think necessitate legal training.  Hu Jintao’s recent appointments to the MOJ and the Central Party Political-Legal Committee (the committee responsible for all legal institutions) all lack legal training; instead, many have training in the police force providing for a more militant view of justice.  Even the new president of the Supreme People’s Court, Wang Shengjun, has no formal legal training.

China’s legal development has come a long way since the era of Mao, when law was merely a tool for class struggle and lawyers were often harshly persecuted.  But using the Cultural Revolution as a baseline will only impede China’s progress; arguably, everything is better now than it was during the Cultural Revolution.  China has made progress, but its progress should not be overstated and its limitations need to be noted in order to move forward.