Posts tagged: China

China’s Draft Film Industry Promotion Law: What Does it Mean for U.S. Studios?

By , November 22, 2015

Movies in China

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.”

So under President Xi Jinping, with his aggressive assault on Western values (see Document No. 9, Draft Foreign NGO Law, restrictions on foreign TV over the internet), what will this Draft Film Law mean for U.S. film companies?

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 Kid had 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?

Just For Fun: Film Review – The Assassin

By , November 11, 2015

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.

Rating: ★★★☆☆


The Assassin is still showing at select, “artsy” theaters throughout the United States.  Check Fandango to see if it is showing near you.

The Anatomy of a Crackdown: China’s Assault on its Human Rights Lawyers

By , October 18, 2015

PlightandprospectscoverWhen 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.

But as the Leitner Center and the Committee To Support Chinese Lawyers‘ new and seminal report Plight and Prospects: The Landscape for Cause Lawyers in China reveals, in some ways, these arrests and detentions are the least of the human rights lawyers’ worries. Instead, Plight and Prospects makes clear that over the past five years, the Chinese government has quietly and methodically used a more effective means to limit the space for cause lawyers: the law.

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

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

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 (see China’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 survellience

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 (see CPL, 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

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.


Should Obama Downgrade Xi’s Planned State Visit?

By , August 17, 2015

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

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

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

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

Guest Blogger Adam Bobrow

Adam Bobrow

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

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

Background on State Visits

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

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

Why Should Obama and Xi Meet?

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

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

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

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

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

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

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

By , August 14, 2015

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

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

To listen to the show (55 minutes total), please click here:

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

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

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

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

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

Attorney Wang Yu

Attorney Wang Yu

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

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

Obama & Xi to meet in DC in September.

Obama & Xi to meet in DC in September.

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

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

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

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

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

China Passes National Security Law

Ready for National Security!

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

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

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

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

By , June 17, 2015


China Through the Looking Glass

China Through the Looking Glass

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

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

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

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

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

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

Anna May Wong and a dress inspired by her

Anna May Wong and a dress inspired by her

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


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

Wang Nan’s Tian’anmen 26 Years Later

An early photo of Wang Nan, late 1980s

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rating: ★★★★★

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


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

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

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

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

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

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

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

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

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

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

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