Why the New York Times put the news that the renminbi is now a part of the IMF’s global currency reserve below the fold is beyond comprehension. Make no mistake, this news is huge. As an IMF-designated global currency, the renminbi now joins the likes of the U.S. dollar, the British pound, the Japanese yen and the Euro as a currency of influence, stepping up China’s power on the global stage. And all of this happened in a little over 20 years. In the early 1990s, China was still an economic backwater and was destined to stay that way with the re-entrenchment of conservative socialist values after the 1989 Tian’anmen protests and subsequent crackdown. Any attempts at reforming China’s economy were rejected by the conservative party ideologues then in power. But in 1992, in a courageous move, Deng Xiaoping single-handedly took on these conservative forces by launching a grassroots “Southern Tour” to win the hearts and minds of the people for economic liberalization. The success of Deng’s tour assured China’s course to capitalism. Fast forward to 2015, China has the second largest economy in the world and the renminbi is declared a global currency reserve. To achieve this stature – and to raise millions out of poverty – in the spanse of twenty-odd years is phenomenal.
Money, money, must be funny!
China’s economic miracle cannot be denied. But at the same time, the IMF’s designation comes with the imprimatur that China offers a stable business environment, akin to the U.S., the U.K., Europe,and Japan’s environments. But with its Party-controlled economy and a Party-captured legal system, it still seems dubious to place China on the same level as these other economies. Does China’s increased global status reflect a country ready to let go and allow the economy and the legal system to operate on its own? Or is it just another necessary notch in the Chinese Communist Party’s belt of success?
For now these questions cannot be answered. But make no mistake, China’s ascendancy to a global reserve is a game-changer. And while China Law & Policy hopes to explore these issues in future posts, for now, the New York Times‘ analysis, which discusses many of these questions, is a must read (should have been above the fold!).
China’s movie market is big, real big. Five years ago, it was merely the eighth largest film market in the world. Today, it is the second and will likely surpass the United States as the world’s largest movie market within the next three years. Money-wise, China’s 2015 box office is on course to gross over 40 billion RMB ($6.25 billion). Needless to say, it is a high-stakes market and not just for the Chinese film industry. With the U.S. and European markets saturated, Hollywood only has China to turn to for increased profits.
It is within this competitive environment that the National People’s Congress recently issued its draft Film Industry Promotion Law (“Draft Film Law”) for public comment (English translation courtesy of China Law Translate). Much in the law is designed to take advantage of China’s exploding film market and encourage the growth of the Chinese film industry: towns and villages are encouraged to build more theaters (proposed Art. 39); tax incentives and state funding are to be provided (proposed Arts. 37 & 38),and domestic film companies are encouraged to seek foreign investment and cooperation (proposed Art. 41).
But in China right now, money isn’t everything. Instead, the encroachment of “Western values” consumes the current leadership. And nothing says Western values quite like a Hollywood movie. Add that fear to the fact that in China, films have long been an important propaganda tool to promote socialist values and the hegemony of the Chinese Communist Party (“CCP”). This is the reason why Article 20 of the Draft Film Law forbids movies that “violat[e]…the basic principles of the Constitution” and “harm national honor or interest.”
The Foreign Film Quota – May Be Gone But So Not Forgotten
Recent U.S. film import – The Hunger Games: Mockingjay Part 2
There are two major restrictions that limit U.S. film companies from making a killing in China: (1) foreign film imports are limited to 34 a year and (2) the foreign studios are only allowed to keep 25% of the Chinese box office revenue. Is this 34-film quota a violation of China’s WTO obligations – you betcha as the WTO determined in 2009. But even in light of the WTO decision, China continued its quota system. In 2012, the United States, with the movie industry desperate for China, entered into the U.S. – China Film Agreement which increased the number of imports and gave 80% of those imports to U.S. studios, putting to rest the WTO dispute. Currently, China permits 34 foreign films to be shown domestically, 14 of which must be 3D or Imax.
While some have stated that these quotas might be abolished when the U.S.-China Film Agreement expires in 2017, the Draft Film Law sneaks into the law a de facto quota. Article 32 of the draft states that domestic films must compass at least 2/3s of the movie theater’s total screening time. Essentially, foreign films will be limited to at most 1/3 of all screen time (although interestingly, the section of the draft law that deals with violations of the law does not address what happens if a theater dedicates more than a 1/3 of its film time to foreign films). So on some level, China’s “abolishment” of the quota system is irrelevant if Article 32 stays in the final version of the law. And there is no talk, even with the Draft Film Law, that the box office revenue limit of 25% is going out the window anytime soon.
The Cost of Censorship: The Film Industry as the Frontlines?
Coproduction with James Bond
But U.S studios have another way to obtain a greater share of the Chinese film market: participating in a “coproduction” with a Chinese partner. These coproduction are outside of the 34-film quota, with no limit and permits U.S. studios to attain 43% of the Chinese domestic box office. Coproudctions are subject to approval of the China Film Coproduction Corporation, a state-owned company that is ultimately controlled by the government State Administration of Press, Publication, Radio, Film and Television (SAPPRFT). Approvals can be obtained by filming at least one scene in China (think of the coproduction Skyfall with scenes filmed in Shanghai and Macau) or having at least one Chinese actor (co-production Transformers: Age of Extinction with Chinese actress Li Bingbing), a minimum of one-third of the movies’ total investment must be from the Chinese companies, and it must portray China in a positive light (coproduction of the 2010 version of The Karate Kidhad to remove scenes where Chinese kids were the bullies) (for more info on coproductions, see this US-China Economic and Security Review Commission (USCESRC) report, p. 8).
To further take advantage of coproductions, Hollywood studios are anxiously watching the future of Dreamworks’ Oriental Dreamworks, created in 2012 as a Shanghai-based joint venture and set to release its first movie, Kugfu Panda 3, in 2016. The Draft Film Law encourages this type of relationship (draft Art. 41) because the Chinese film industry is still years behind Hollywood and needs its technical assistance. These coproductions provide that knowledge and technology. As the USCESRC report (see p. 9) notes, filming of the Avatar sequel, a coproduction, provided the Chinese side with sophisticated 3D technology as well as how to use that technology cost-effectively.
President Xi Jinping, not a fan of Hollywood values
But coproductions do not necessarily offer a win-win situation with U.S. studios avoiding the quota system and Chinese companies receiving Hollywood’s technology and know-how. In the end, these coproductions are still subject to the censorship whims of the Chinese government. True draft Article 20 delineates what content is forbidden but “harming national honor and interests” is anything but specific. While draft Article 12 implies that there will be a proper “film evaluation system” to provide some clarity to the censorship parameters, this is all being proposed while the Chinese government constantly discusses the need to contain foreign forces and influence. And there is likely little coincidence that the Draft Film Law was issued only a mere weeks after President Xi Jinping’s speech on the arts was finally released in the state-controlled media. In his speech, Xi makes clear that the Chinese film industry cannot merely be led by the market; economic benefit takes a second seat to the movie industry’s social purpose. Further, Xi highlighted that the Chinese movie sector, while it must take advantage of the foreign film industries’ technology and skill, should not be “chasing the foreign.”
This uncertain censorship environment will negatively impact U.S. film studio’s investment in costly coproductions. Unlike Chinese studios, U.S. studios take many years to produce a movie and at significantly higher cost than their Chinese counterparts would ever invest. As Rogier Creemers has pointed out, China’s post-production censorship, if it continues to be capricious, could result in U.S. investors eventually walking away from the field:
“[Because of censorship] [r]egulations and obligations can shift significantly in a very short space of time, and the possibility for media enterprises to influence this policy is relatively limited. Making a film, especially one involving significant technical effects or animation, takes a long time from start to finish, and it’s difficult to see how investors would be willing to part with their money if there’s no guarantee that their project will be permitted on the market two or three years from now.”
As a result, it may be U.S. film studios that are the first businesses to feel the tightening yoke of the Chinese government’s censorship as well as its current obsession with containing foreign forces. No longer can U.S. businesses ignore what is happening in China’s civil society space – with the mass round up of China’s civil rights advocates and the squelching of any opinion that counter’s the Chinese government’s narrative. For this is what Hollywood does without even knowing it – undermining CCP rule. For example time travel which the Chinese censors have banned because it could be perceived as undermining CCP rule. Will it be the U.S. film studios to be the first industry to finally recognize that the Chinese government’s mindset cannot just be contained to just its crackdown on domestic dissidents but will also impact their bottom line?
There are scenes from Hou Hsiao Hsien’s (pronounced Hoe See-ow See-en) new movie – The Assassin – that are breath-taking. As the camera silently holds the scene, you are transported – even if just for a moment – to the actual place: fog rises slowly off a lake on a cold fall morning; a group of itinerant government officials march on horseback to their new assignment, tiny against China’s karst mountains; in bright blues and reds, a grandfather sips his evening tea as the sun fades. It is these sublime scenes that justify Hou’s best director award at this year’s Cannes because, as one of my film companions noted, “the cinematography is quietly masterful” but at the same time, mind-blowing.
But if it is a simple story line that is your favorite part of a movie, you will be sorely disappointed. Every beautiful scene is matched with some ill-described plot development. The film opens in 9th century China with the return of Nie Yinniang to her family home after studying to become an assassin. For some reason – which never becomes clear – at a young age, Nie Yinniang was sent away to a nunnery where it turns out, the nun who took her in was trained in wuxia (martial arts and pronounced woo see-ya) and decided to use her talent to kill people. The nun instructs Nie Yinniang to avenge her family’s pride and assassinate Tian Ji’an. At some point, the movie attempts to explain why her family’s pride must be avenged, but as post-film conversations proved, none of us fully got that part.
Nie Yinniang contemplating her choices.
What develops next is Nie Yinniang’s internal struggle. She doesn’t want to kill Tian Ji’an but she is loyal to her nun-master who has instructed her to do so. It is this struggle, and all the female characters that propel this movie forward, that makes this a feminist movie. The male characters play second fiddle to their female counterparts while the women break traditional female roles.
But those excited to finally see a true feminist wuxia movie will also be disappointed. Unfortunately, wuxia is missing from a lot of the scenes. While Hou hearkens back to the golden age of wuxia – where the actors do their own stunts without strings and special effects – the wuxia is minimal, much like the plot line. As one film-goer and a wuxia fan dryly stated after the movie “this is a Hou Hsiao Hsien interpretation of a wuxia movie.”
No plotline, very little wuxia. But still a film worth seeing for the sheer beauty of every single scene. Hou is a master director who, in The Assassin has made every scene into a master painting.
When the Chinese government detained, harassed and disappeared over 280 human rights lawyers and legal activists in July 2015, the international community took notice. These simultaneous, country-wide, nighttime and early morning raids made front page news in the United States, often described as the Chinese government’s attempts to eradicate cause lawyering from its shores.
Although the Chinese government still relies on extra-judicial measures such a illegal detentions, torture, constant surveillance when “free,” and pressures on families, employers and even landlords in an attempt to destroy the lawyer’s life, Plight and Prospects underscores that soon these extra-judicial methods will be unnecessary. Through amendments to the Lawyers Law (amended 2007), the Criminal Law (amended 2015), the Criminal Procedure Law (amended 2012), the National Security Law (passed 2015) and through the annual lawyer licensing procedure, the Chinese government can limit the ability of cause lawyers to practice and still pay lip service to “the rule of law.”
Chinese President Xi Jinping
As Plight and Prospects points out, under President Xi Jinping (pronounced See Gin-ping) there has been a stepped-up effort to enshrine in law methods that will effectively break the cause lawyering movement. But even before Xi took power in 2012, there were already concrete efforts in the Chinese government to use the law to limit human rights lawyers’ advocacy.
Take for example, the Lawyers Law. Amended in 2007 and believed to provide the profession with greater protection to practice law, it has proven to be a double-edged sword. Sure Articles 36 and 37 of the Lawyers Law maintain that the lawyers “rights to debate or a defense shall be protected in accordance with the law,” but Article 49, which lists the examples of lawyers’ conduct subject to punishment, increased the number of categories from four to nine with the 2007 amendments. Added to the Lawyers Law as Article 49(6) was instances where a lawyers “disrupts the order of a court . . . or interferes with the normal conduct of litigation or arbitration.” Vague and unclear, this provision could be used to limit the courtroom advocacy of lawyers who take cases the government just does not like.
Lawyers Liu Wei and Tang Jitian review papers in April 2010
And in 2010, it was. In April 2010, Tang Jitian (pronounced Tang Gee-tee’an) and Liu Wei (pronounced Leo Way), two cause lawyers who had represented a practitioner of the spiritual movement Falun Gong and who both quietly left the courtroom in protest when they were unable to present their client’s defense, were hauled before the Beijing Bureau of Justice for a hearing concerning whether they should be disbarred (seeChina’s Rule of Law Mirage: The Regression of the Legal Profession Since the Adoption of the 2007 Lawyers Law). While Tang and Liu both raised Article 37 – that their ability to practice law was being infringed upon – as a defense, both were permanently disbarred under Article 49(6) for “disrupting the courtroom.” (Id.).
Further attempts to limit the advocacy of human rights attorneys have been proposed more recently by the All China’s Lawyers Association (ACLA), the national bar association that operates under the guidance of the Ministry of Justice. ACLA’s draft revisions to the Lawyers Code of Conduct (proposed in 2014), if adopted, could limit methods of advocacy that lawyers must use when representing vulnerable populations, including the use of the media and internet (draft Article 9), organizing demonstrations or “inflaming” public opinion (draft Article 11), or supporting organizations that do cause lawyering (draft Article 13). These draft provisions are in contravention of Article 35 of the Chinese Constitution which provides for freedom of speech, of the press, of assembly, of association, of procession and of demonstration.
When your home becomes your prison: residential surveillance
The Criminal Procedure Law (CPL) provides another example. Amended in 2012, it was hoped that the amendments would better protect suspects’ rights and ensure a more fair system. But, as Yaqiu Wang at China Change has pointed out, it left one gaping loophole: “residential surveillance at a designated place.” Articles 72 through 77 of the CPL deal with residential surveillance. Although this sounds like a more mellow way to be detained than at a detention center, for those investigations that might involve crimes of “endangering state security,” “terrorism” or “serious crimes of bribery,” residential surveillance does not occur at one’s home. (CPL, Art. 73) Instead, it occurs at an undisclosed location – the family is informed of the fact that the person is being detained under residential surveillance (required by CPL, Art. 73), but not necessarily of the location of the residential surveillance. The suspect has a right to retain a lawyer (seeCPL, Art. 73, applying CPL, Art. 33). But because “residential surveillance in a designated place” presupposes a possible state security, terrorist, or serious bribery charge, the requirement that a meeting with the lawyer take place within 48 hours (CPL, Art. 37) is suspended for those possible charges. (CPL, Art. 37). Instead, any meeting must be approved by the police. (CPL, Art. 37). Which fits with the rules that the suspect must follow when in residential surveillance: only with permission of the public security agency can the suspect meet or correspond with someone else. (CPL, Art.75(2)). And it is not hard to place someone under residential surveillance at a designated place. All that the police need is approval from the chief of public security above the county level. (see Ministry of Public Security Implementing Regulations of the CPL, Art. 106). Residential surveillance pending investigation is permitted for up to six months. (CPL, Art. 77).
Whereabouts Unknown: Lawyer Wang Yu
As Plight and Prospects points out, the use of residential surveillance at a designated place has been used with abandon in the current crackdown. The section entitled “Whereabouts Unknown” highlights that eight of the suspects still being held as a result of the July crackdown are held under residential surveillance at a designated place but no one outside of the police, not even their lawyers, know where. Amnesty International researcher William Nee has pointed out that although a legally-authorized form of detention under the amended CPL, it still carries with it the dangers associated with enforced disappearances: held secretly and without access to a lawyer, these suspects in residential surveillance are vulnerable to torture to force a confession.
By being able to point to the law it is using to crackdown on cause lawyers, the Chinese government likely aspires to punt the international critique of a failure to follow a rule of law. It is following a rule of law, it will say. But as Plight and Prospects notes, it is a hollow one where the Chinese government undermines its own Constitution, other provisions of many of the laws it has used in the crackdown, its international treaty obligations as well as the desires of its own people.
Today, the Mogao caves are are UN World Heritage Site. But for a few hundred years the caves fell into oblivion. Few knew of their existence and none visited. It was not until the turn of the twentieth century that the caves were “re-discovered” by a Taoist abbot named Wang Yuanlu. Quickly word of his discovery reached some of the Western archaeologist-explorers traveling through Central Asia. Understanding the significance of this art, many of these Western explorers descended on Dunhuang to see this all for themselves.
As a result, many of the greatest pieces of Dunhuang art are in various museums in the West. Was this art taken legally? Do the Chinese want it back?
Dunhuang expert, Dr. Neil Schmid answers these questions and more in Part 2 of his interview with China Law & Policy. If you would like to hear Dr. Schmid speak live, join him next week as he speaks on these issues on September 23 at 7:30 PM at the Courtyard Institute in Beijing.
Read the transcript below of Part 2 of this two-part interview or click on the media player below to listen:
Length: 12:29 minutes
To read or listen to Part 1 of this two-part interview series with Dr. Scmid, click here.
EL: Just to move away from the art to the political. I know when I visited the Mogao caves, it appears that for foreigners visiting the caves, part of the tour is a stop in a separate building documenting the Western countries’ purchasing and taking of the Mogao’s manuscripts and cave art at the turn of the 20th century. We know that in the case of the British, they purchased from the monk in charge of the caves at the time, the world’s oldest printed book, the Diamond Sutra. They had examples of an American explorer also purchasing some old Buddhist manuscripts, as well as physically lifting some of the cave art out of the caves. In that period, why were Westerns so interested in the Mogao caves and how did they even know about it to go out there?
NS: Great questions. So the first visitors were before 1900 and they were typically involved in exploration and survey. This has to do with what was called the Great Game, the machinations between the United Kingdom and Russia, the Russian Empire, to control Central Asia. So it was through that process that Central Asia began to be known. While we have these military and quasi-military figures in Central Asia, the first sort of striking discovery was something called the Bower Manuscript. This manuscript was a shock because here in Central Asia we find a birch bark manuscript from the 4th to 6th Centuries in what’s called Hybrid Buddhist Sanskrit or Prakrit.
Before nobody ever thought that we would find these types of materials. What it means is that the Indian civilization in many ways reached into Central Asia. This got people very excited. Number one because these materials don’t exist in India for the most part because the climate is much too moist.
Sir Aurel Stein, 1909
So what happens is after they discovered that manuscript you began to have so-called scholar-explorers, archaeologist, Sir Aurel Stein is a perfect example of that combination, come in and began to do surveys and archaeological surveys of Central Asia.
It was during this period that they began to get word of this great Buddhist site and also a site with lots of manuscripts and that got them very, very excited.
EL: Based on the fact that the tours with Westerners in Dunhuang make it a point to recount this history of the Western explorers and the purchasing of many of the manuscripts, is China making any efforts to get these manuscripts back? Especially the Diamond Sutra.
NS: Not on a large basis. So what we have is a lot of scholars working together, e.g., Chinese scholars with British scholars or French scholars, on an increasingly large basis. Also museums and institutions working together. So what we find now is that on the scholarly end of things, a lot of these materials have been digitized by the International Dunhuang Project. It’s a remarkable project for the amount of material and it is based out of the British Library. They in the process, over the years, have gotten a number of other institutions on board – the Chinese, also the French, the Russians, the Germans – to begin to digitalize their materials, manuscripts and paintings. So this is one thing that has sort of lessened the desperation for return finds because scholars have access to the materials world-wide now.
The Dunhuang Mogao Caves from Afar
Regarding so-called plunderer, Aurel Stein is often labeled that, but as you mentioned, he actually purchased the manuscripts. Of course that is controversial. Also there was Langdon Warner, who is from your alma mater [Harvard], and he is notorious for having used a technique which he felt was innovative. Basically to use tape – I am simplifying it – to put on the murals and rip them off. In the process some were damaged. He actually has a receipt for these. So Harvard’s response might be, for example, “Oh, we have a receipt, they were paid for, we bought them in good order.”
EL: So it’s all very legal.
NS: It’s all very legal, exactly. People might disagree with the methods and the authorities he spoke to actually purchase the materials. Of course, there is a lot of room for debate on this issue.
EL: I think in a talk you gave previously, you had mentioned that the Abbot [at the Mogao Caves] had tried to get the Qing Dynasty and the Emperor interested it. Could you just talk a little bit more about that?
NS: Yes. Wang Yuanlu was the person who was renovating the cave site in around the year 1900 when he discovered the cache of manuscripts. And it is a fantastic cache of manuscripts. He recognized that they were important, he wanted to get in touch with the authorities in order to know what to do with these manuscripts. And in fact the Qing Dynasty authorities weren’t that interested. Part of the slow response by the Chinese government at the time was that it was dominated by Confucian elites. They saw Buddhist materials as simply not that interesting. So this is one reason I believe that the process was slowed down for the Chinese government to recognize the value of this incredible find.
EL: Just to fast-forward a bit in time, when you go to the Mogao Caves you still see a tremendous amount of art
Tang Dynasty cave art peeking out of an entrance at Mogao caves
on the walls, you still see a tremendous amount of the carvings. How were these cave arts able to survive the Cultural Revolution as well as the campaign against the Four Olds that sought to destroy a lot of Buddhist art?
NS: Mogao and Dunhuang was fortunate because they had a powerful patron if you will, Zhou Enlai, Premier Zhou Enlai. He was hugely supportive of the renovation project, the project to stabilize the cliff face, to begin the catalogue process and also research in general. He specifically said that Mogao Caves were not to be damaged. And I have to put in a plug here also for the Dunhuang Research Academy and the people there, scholars there, who had been working on the materials for literally dozens of years at that point, they made a serious effort to talk to Red Guards, to discuss the value of the materials.
EL: And what about today, what’s being done to preserve the caves and will preservation be successful especially as more tourists come to Dunhuang?
Camels on the Silk Road
NS: Part of the problem with the caves today is that moisture and also carbon dioxide is beginning to deteriorate the caves. There’s also ground water coming up because there’s a lot of irrigation to make pretty gardens, if you will, in front of the attraction. So that water is seeping up into the caves so that the lower level of caves, at the bottom of the murals, they’re beginning to completely deteriorate.
So what’s been done over the last three decades is that the Getty Conservation Institute has gotten involved – of the Getty Museum in L.A.. That’s since 1985. It’s been their longest running project of conservation, heritage conservation. They have been instrumental in working with the Dunhuang Research Academy and also the Chinese government in creating, number one an analysis, a very detailed analysis, of the materials involved in the construction of the caves, how they deteriorate, why they deteriorate and ways to prevent it. On top of that there’s also a digitalization project going on [and a major upcoming exhibit on Dunhuang caves May 2016 at the Getty Museum, Los Angeles]
Part of that, along with the visitors center that recently opened, is to provide tourists with an alternative experience. So through the digitalization or the immersive digitalization of the case themselves at the vistor’s center and then to decrease the number of visitors actually going into the caves.
Mogao Cave #98, Uighur retinue
EL: The visitor’s center is very, very impressive and a lot of fun which leads me to think they’re hoping a lot more people come to visit it. For people who aren’t China people, China scholars, what do you think is the significance of these caves? Why should just regular Americans, when they take a trip to China, why should they go out to Dunhuang?
NS: The caves which span in their creation 1,000 years are the largest repository of Chinese art. Maintain and contain items and designs and styles, aesthetics, and also the very space itself that doesn’t exist anywhere else in China. So in terms of this kind of immersive experience, you can’t get better than Dunhuang to see how people experienced Buddhism in the Tang, for example, period. So that’s a major reason. Dunhuang itself and the Mogao caves, the site is stunning and gives you a sense of what the power of trade that unfolded over 1000 years on the silk roads or silk route if you will. The caves themselves have a cosmopolitanism. Dunhuang at that time we know from manuscripts was incredibly mixed and well-integrated. So there is a fascination with that as well.
EL: Finally, can you describe your favorite cave and why it is your favorite cave? You have to have a favorite.
EL: You can’t love them all.
Mogao Cave #98, King of Khotan and retinue (c.920)
NS: In spite of its formulaic nature, there’s a cave, Cave 98, which is remarkable. It’s quite large; it’s a large family cave, it’s an elite’s cave. But what’s fascinating for me is it’s well preserved but it also lays out the political nature of the caves, the political nature of Buddhism also. You have large donor portraits of the King of Khotan and his relations to the Dunhuang elite. Its remarkable for that reason that here we have a sort of detailed outline of political alliances that were being constructed and set in a ritual space, which is a cave. This sort of liturgical moment that in some ways is frozen in time. That’s what these caves do, they maintain relationships both among people and also with the Buddha forever and forever. I find that fascinating and Cave 98 is particularly rich in the historical-political elements.
EL: Okay, well, thank you again Dr. Schmid for your enlightening explanation of the Mogao caves. Hopefully, more people will go there but not breathe on the caves. Thank you.
NS: Thank you very much
See, for example, Peter Hopkirk’s The Great Game: The Struggle for Empire in Central Asia (London: Kodansha International, 1992).
A selection of Dr. Schmid’s publications and talks can be found by clicking here. Or join Dr. Schmid at the Courtyard Institute in Beijing on September 23, 2015 at 7:30 pm.
Hansen, Valerie. The Silk Road: A New History. Oxford: Oxford University Press, 2015.
Hopkirk, Peter. Foreign Devils on the Silk Road: The Search for the Lost Cities and Treasures of Chinese Central Asia. Amherst: The University of Massachusetts Press, 1980.
Rong, Xinjiang, and Imre Galambos. Eighteen Lectures on Dunhuang. Leiden: Brill, 2013.
Whitfield, Roderick, Susan Whitfield, and Neville Agnew. Cave Temples of Mogao at Dunhuang: Art and History on the Silk Road, Second Edition. Second Edition, Revised edition. Los Angeles, California: Getty Conservation Institute, 2015.
Tibet is considered the Buddhist capital of China, causing many not familiar with China’s geography to believe that Buddhism came to China from India through Tibet. But with the highest mountain peaks in the world, the Himalayas, separating India and China, Buddhism had to take a different route. Instead, it entered northern China through what has become known as the Silk Road. As a result, some very early Buddhist art can be found in remote northwestern regions of China. One such example are the Buddhist cave art in Dunhuang, an oasis town situated in the Gobi Desert which with its desert climate was able to preserve this art. The Mogao Caves are probably the best known.
But any trip to the Mogao caves by a Buddhist art novice leaves one with many questions on the art, the history and its significance. Fortunately, China Law & Policy had the opportunity to sit down with Dr. Neil Schmid, an American expert on Buddhist Studies and Dunhuang. If you are in Beijing, Dr. Schmid will be speaking on these issue next week, September 23 at 7:30 PM at the Courtyard Institute.
Read the transcript below of Part 1 of this two-part interview or click on the media player below to listen:
EL: Thank you for joining us today. First, can you give us a little bit of background on the caves: when were they first constructed, why and by whom?
NS: Elizabeth, thank you for inviting me. So there’s a story, maybe apocryphal, that in 366 [CE] a monk by the name of Le Zun had a vision. This is a vision that happened outside of the oasis of Dunhuang, in a small, small ravine with a cliff face. There he had this vision that he was basically to build a cave. This is, again maybe it is apocryphal, is the originating story of the Mogao caves.
EL: And what year was that again?
NS: 366. So he was followed by another monk, Fa Liang, and then a series of monks after that.
EL: So can you explain more why these caves were created?
NS: As I said initially they were dug out as meditation spaces. Spaces where monks could live relatively distant from Dunhuang or some sort of urban or town center due to spiritual practices. This is the origin of these caves. Then what happens over time, over the centuries, is that the site becomes a pilgrimage site and with these powerful monks – spiritually that is – people began to patronize them. In doing so, they began building caves themselves. These people were typically the elites or also groups of people who would gather together and fund the digging and the construction of a cave in Mogao, in this area.
You asked about whom they were actually built by. So they had funders, they had donors, but there was – and we have a lot of information especially from the 10th century on. We know that it was a professional class of artisans who actually did the construction work – painters, sculptors, metal smiths, textile workers.  They were organized hierarchically according to their expertise and their titles reflected their skill and their standing. So these are the people who actually built the caves and we can talk a little bit later about that process of building itself.
EL: So that’s interesting that you talk about the professional class of artisans and also just the changes over who was sponsoring the building over centuries. When you go to the Mogao caves themselves, you do see some changes to the art when you visit different caves. Can you explain more or highlight what some of those changes are from the beginning to the later parts. And do you believe there’s a high point to the art itself?
NS: The earliest caves we have are from the Northern Liang and that’s 397 [CE] to 439 [CE]. These caves are very, very heavily influenced by Indian and also Central Asian styles. The motifs, the iconography, the sculpture, is very, very much dominated by something other than Chinese. Over the years, these artistic forms and iconography and also the ritual space itself begins to shift away from monks towards an increasingly lay-oriented perspective. What the caves also take on in terms of transformation of the artistic styles and ritual styles is an increasingly sinicized, i.e. Chinese aesthetic. So for example what happens later, you have stories about Indian, about the Buddha done completely in Chinese costume, in Chinese-like settings. It naturalizes in some ways Buddhism for Chinese. We see this very clearly evidenced in the caves.
Mogao Cave #275, Northern Liang (397-439)
EL: I know some art historians believe that some dynasties have better art than others or higher-end art than others. Do you agree with that? I think everyone always thinks the Tang Dynasty but how do you deal with that?
NS: That’s a good question. I could talk about my personal favorites.
EL: That’s okay.
NS: I particularly like Tang, what’s known as high Tang style. But it is very, very difficult to say one style is a high point. Obviously it depends on the reference points of what you consider a high point. There’s amazing artistic skill that goes into the creation of earlier caves in terms of actual painting styles which are now lost in China. So in some ways you could say that due to their introduction and disappearance, these were high points in particular artistic styles.
EL: That’s fair. I guess the other thing is when visiting the caves you can’t help but wonder how starting in 400 AD, people were able to paint and build such amazing art. In particular, there is that one awe-inspiring Buddha. Do we know exactly how these caves were built? How the painting was put onto the walls? How many people it took to build these caves? I think you were already talking a little bit about the professionalization of the artisans. If you could go into a little bit more depth about that.
NS: So what happens in the Tang, the Five Dynasties period, and also in the Song, is that you have elite families funding the construction of caves and in the process they create what is essentially a painting academy. At this painting academy you have trained artisans. Note that they are laity; they are not monks, they are not clerics. We have lots and lots of documentation from this period and detailed manuscripts about what they were paid, how often they were paid, were they lived, the types of work, individual specialties. We know that laborers were typically paid in food, so cooked meals. Also oil, also grains. This was a typical form of payment.
How the caves themselves were actually constructed, they were constructed by starting at the top of the interior of a cave and then digging it out and down. So what they would do then after it was dug out is they would begin to furnish the walls and then apply a straw and stucco mix. Then on top of that begin the painting process.
In this period, again very late Tang, Five Dynasties period, Song period, it became very programmatic, very organized in terms of the pictorial program of the caves themselves. And very standardized. They used a variety of drawings for example to create on a regular basis the paintings in the caves. They also used something called “pounces” which is a piece of paper with dots cut in that they would then typically blow a paint across to get an outline. Then they would color that in. One of the motifs you see again and again at Dunhuang in the Mogao caves is the Thousand Buddha motif.
Mogao cave 249, Western Wei (534-556AD) Early version of Thousand Buddha motif.
EL: Right, right. You see that it is painted like in an assembly line.
NS: Exactly. There is this whole modularity to the construction and also the painting process. Then the paint themselves typically use things like -the expensive ones – lapis lazuli and malachite. The painting was done on dry stucco and again through a series of artisans. The construction of a cave, or a large cave, during this period would be perhaps a year. It would take a year.
 On the construction of the caves and guilds, see Sarah Fraser’s excellent overview, Performing the Visual: The Practice of Buddhist Wall Painting in China and Central Asia, 618-960 (Stanford University Press, 2003).
Last week, China Law & Policy published a post encouraging President Obama, even in light of the current crackdown on rights defending advocates in China, to move ahead with President Xi Jinping’s State Visit to the U.S. currently scheduled for September. However, China Law & Policy recommended that President Obama raise the plight of the rights defending lawyers by highlighting the important role public interest lawyers have played in the United States.
State Visit or not, the real question is: What Will the First Lady Wear?
Our posting received a plethora of responses, including one from Adam Bobrow, CEO and Founder of Foresight Resilience Strategies, LLC, a Maryland-based strategic consulting firm to develop new solutions for companies facing cybersecurity challenges. With prior experience in the White House and the Department of Commerce, Bobrow explains the procedures surrounding a State Visit and argues that while the Xi visit must occur because of many thorny issues plaguing the US-China relationship, the visit should be downgraded to an “official visit,” not a State Visit.
By Guest Author Adam BobrowThanks to Elizabeth for her original post which made me think more about Chinese President Xi Jinping’s September State Visit to Washington. Elizabeth’s thoughtful take addressed the question of the White House’s response to the crackdown on rights defenders in China. I agree that President Obama’s meeting with Chinese President Xi should go forward but I have tried to take into account additional strategic and economic policy considerations in assessing whether Xi’s State Visit seems appropriate at this time. For reasons addressed below, I do not think that incorporating a session on the crackdown will work but suggest that the White House downgrade the meeting from a State Visit to another category of Head of State visit, such as an official visit or a working visit.
The Obama-Xi meeting should take place because there are many issues that the United States and China need to discuss at the highest levels. But the pomp and circumstances and the inherent approbation of a State Visit sends the wrong message to China about the ways in which Chinese government policies impact the U.S. economy and elements of global security that the United States has vested interests in maintaining.
Background on State Visits
A State Visit, while it does not have an absolute definition, follows certain traditional guidelines surrounding its logistics and the respect accorded the foreign Head of State or Government. In the United States, such a visit has an arrival ceremony on the South Lawn of the White House, a 21-gun salute for the visiting Head of State, a joint review of U.S. troops, and a State Dinner with the visiting Head of State as the guest of honor. Because the last element is the easiest to measure—either a State Dinner occurred or it did not—I have used the inclusion of a State Dinner during a visit as a proxy for State Visits.
During the current Administration, President Xi’s State Visit would be only the ninth State Visit in the almost seven years since President Obama was sworn into office. Perhaps more telling, of those nine State Visits, President Obama will have hosted two different Chinese Presidents. No other country’s leaders have enjoyed two State Visit invitations during this Administration even though Mexico, South Korea, Japan, and India—all State Visit countries during the Obama Administration—have changed leaders since President Obama hosted their previous Head of State or Government.
Why Should Obama and Xi Meet?
In Elizabeth’s blog post, she advocates that President Obama should, “invit[e] Xi Jinping to a session with U.S. public interest lawyers and their supportive corporate law brethren” to demonstrate the United States’ support for the plight of rights defenders in China. During President Xi’s visit President Obama can and certainly should raise the unacceptable and self-defeating nature of the ongoing roundup of weiquan (rights defending) lawyers by the Chinese authorities––either by insisting that there be a window reserved in the primary bilateral meeting (preferred) or by bringing the topic up spontaneously in that meeting or at the joint press conference. The latter is less effective to change Chinese behavior but important as a domestic political issue in the United States. But keep in mind that the Chinese officials planning the State Visit will not agree to a meeting that includes some of the private critics of their conduct in the United States. The U.S. government cannot unilaterally control the broad agenda for the visit by insisting on certain meetings, such as one with U.S. public interest lawyers.
The meeting of the two Presidents could advance bilateral cooperation, however, on two issues of current importance. First, both sides seek to advance negotiations on the U.S.-China Bilateral Investment Treaty (BIT) by exchanging updated negative lists of excluded investment areas. Second, each side also wants to advance cooperation on curbing greenhouse gas emissions in advance of the 21st session of the United Nations Framework Convention on Climate Change (UNFCCC) Conference of Parties (COP 21) in Paris in December. Obama and Xi could announce concrete and meaningful progress on BIT and greenhouse gas emissions based on strong preparation at the staff- through Cabinet-levels and help provide negotiating teams on each topic with clear instructions on the way forward in both cases.
When weighing the decision of whether to downgrade the meeting, political and protocol reasons for the level of the visit must also contend with the substantive policy questions already discussed. The issue of face plays a role in this calculation as President Xi hosted President Obama for a State Visit in Beijing last year, complete with State Arrival Ceremony at the Great Hall of the People and a State Banquet. Refusing to accord President Xi the same courtesies would cause great offense. In addition, leaders meet to increase opportunities to get to know one another and build a relationship that might advance issues or prevent future conflicts. Two years ago, the White House cited this reasoning in meeting in a more relaxed setting away from Washington in the lead-up to the two Presidents’ summit at the Sunnylands Estate in California. The very specific intention of the informal setting away from Washington was to reduce the pressure to make public pronouncements and face the increased scrutiny of a scripted and formal visit so that the leaders could get to know one another better. Whether the more informal setting did allow greater candor, the added scrutiny of a State Visit can only undermine efforts by the two Presidents to build their relationship as a hedge against growing frictions in any meaningful way. Next month, the two Presidents will meet farther apart on urgent bilateral issues than at any prior meeting they have had and with often conflicting visions of the world as they would like it to be. Ranging from President Xi’s marketing of China’s New Model of Great Power Relations, which premises more space for Chinese actions on the world stage free of American interference or even commentary, to President Obama’s preference for selling the Trans-Pacific Partnership trade agreement (TPP) as a way of writing new international trade rules to prevent China from writing those rules instead, these competing visions are not currently amenable to building trust during a one-day visit.
Where does that leave us in terms of a verdict on the impending visit? Looking at the list of issues where no progress is likely, it is probable that each President will raise a differing subset of those issues without actually hearing what the other has to say. They will talk past each other and reach no conclusions nor even advance the terms on which officials at lower levels will address these issues going forward. On the other (skimpier) hand, the Presidents may make meaningful progress on the two issues identified above: BIT negotiations and climate change measures ahead of the Paris negotiations in December. The non-policy considerations present a trickier, more qualitative question of whether the slim possibility of greater candor in a less formal set of meetings makes it a better bet to risk the strong negative reaction of a Chinese government that sees the downgrade as a personal snub to President Xi. The White House needs to decide based on the best interest of the United States and the American people, of course, rather than how its decision in Washington will be received in Beijing or even by some larger subset of the Chinese people.
In this instance, the pomp and circumstance of a State Visit will reduce the efficacy of the potential positive outcomes of the meeting and send a misleading positive message about the current parlous state of U.S.-China relations. Rather than providing additional space for the two Presidents to increase mutual understanding and provide clear guidance to their bureaucracies on how to resolve some outstanding issues, the Presidents may make some small and specific progress in two areas. But the strictures of a State Visit also make it likely that the two governments will feel compelled to send a message that the visit demonstrates a highly productive bilateral relationship on firm grounding. That message would obfuscate real differences in search of solutions, potentially setting back relations rather than moving them forward, and backfire as the evidence clearly belies such a positive message. The White House should downgrade the meeting, restore the informal approach of Sunnylands, and hope that more time focused on substance and less on meaningless public praise by each country of the other may permit more candid discussion and advance solutions to pressing problems.
Owen Bennett Jones, on his new and insightful BBC radio show, NewsHour Extra, discussed the recent assault on China’s rights-defending lawyers. Featuring Dr. Li Ling of NYU’s U.S.-Asia Law Institute, Prof. James Feinerman of Georgetown Law School, Prof. Eva Pils of Kings College London, barrister Philip Riches, and yours truly, the discussion proved lively if slightly pessimistic regarding the current crackdown on China’s rights-defending activists and their future under the current Chinese Communist regime.
Rights-defending lawyers Yu Wensheng and Teng Biao both give their assessments of the recent crackdown.
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
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.
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.
Everyday 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.
Finally, 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.
Within a day of its publication of the second Draft Foreign NGO Law on May 5, the Chinese government also published for comment a Draft National Security Law. Today, that document became law. Although criticized for its vagueness and breadth, the passed law is still just as broad if not more so. The new law also covers protection of seabeds and adds the word “extremism” to the provision on terrorism (Article 28), a provision that immediately follows the one that protects “normal religious activity” and calls for the opposition to foreign influences and interference in domestic religious affairs (Article 27).
The law itself comes off more as abstract principles. But make no mistake, the Chinese government and the Public Security Bureau which has oversight of the Law, means business. The fact that they elevated this abstract document to the level of a law is a telling sign and foreign governments should be looking at it carefully.