Posts tagged: China

Chen Guangcheng to Study in United States – China to Agree

U.S. DEPARTMENT OF STATE

Office of the Spokesperson

For Immediate Release                                                                                       May 4, 2012

2012/707

STATEMENT BY VICTORIA NULAND, SPOKESPRSON

Chen Guangcheng

The Chinese Government stated today that Mr. Chen Guangcheng has the same right to travel abroad as any other citizen of China. Mr. Chen has been offered a fellowship from an American university, where he can be accompanied by his wife and two children.

The Chinese Government has indicated that it will accept Mr. Chen’s applications for appropriate travel documents.  The United States Government expects that the Chinese Government will expeditiously process his applications for these documents and make accommodations for his current medical condition.  The United States Government would then give visa requests for him and his immediate family priority attention.

This matter has been handled in the spirit of a cooperative U.S.-China partnership.

# # #

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Blind Activist Escapes House Arrest in China

By , April 27, 2012

From the NY Times on Friday, April 27, 2012.

BEIJING — Chen Guangcheng, the blind rights lawyer who has been under extralegal house arrest in his rural village for the past 19 months, has escaped from his heavily guarded home and is in hiding in the capital, rights advocates and Chinese officials said on Friday.American officials would not confirm reports that Mr. Chen had entered the American Embassy. A source in the Chinese Ministry of State Security said Mr. Chen was believed to be there on Friday. Previously, early Thursday evening, a Chinese analyst cited another State Security source who said that Mr. Chen had taken refuge in the embassy.To read more click here.
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NYC Event: China’s Influence on International Human Rights – April 13

By , April 11, 2012

China’s rise raises a lot of questions for the rest of the world.  How will it flex its increasing military might?  What impact will its insatiable demand for resources have on the rest of the world?  Will its economy overtake the US’ in the near future?

Another question that is being raised with more frequency is: as China becomes a more equal player on the world stage, how will its views of human rights impact the development of international human rights laws and the role of the United Nations.

On Friday, April 13, RightsLink, a human rights law research organization based out of Columbia Law School, will host a forum examining exactly the issue of China’s influence on international human rights discourse.  It is likely inevitable that China will begin to have a louder voice on the human rights world stage, but is that destined to be a bad thing?  Find out on Friday at what will likely prove to be a thought-provoking discussion.

 

Rightslink Henkin Forum: Rise of China and Its Influence on Human Rights

Friday, April 13th, 2012
1:30 – 4:30 (2 Panel Discussions – see below)
Columbia Law School

Room 103, Jerome Greene Hall
435 W 116th Street
Box Lunches will be Served

Schedule
1:30 – 2:45 pm   China, the UN, and  Influence on International Human Rights

  Moderator: Professor Ben Liebman - Robert L. Lieff Professor of Law and Director of the Center for Chinese Legal Studies, Columbia Law School
Panelists:
  Thomas Kellogg – Program Director, Open Society Institute; Adjunct Professor, Fordham Law School
  Steven Hill Counselor for Legal Affairs, United States Mission to the United Nations
  Eva Pils – Associate Professor, Faculty of Law, Chinese University of Hong Kong
 
3:00 – 4:30 pm China’s Relationship with Africa and its Impact on Human Rights 
  Moderator: TBA
Panelists:
  Matt Wells – Researcher, Africa Division, Human Rights Watch
Sarah Cook – Senior Research Analyst, East Asia, Freedom House

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I Pledge Allegiance to the CCP….Chinese Lawyers’ New Oath Requirements

By , March 22, 2012

I Pledge Allegiance....

In its ongoing efforts to tie the Chinese legal profession as tight as possible to the Chinese Communist Party (CCP), China’s Ministry of Justice (MOJ), the government agency that oversees the legal profession, announced its new initiative on Wednesday: every new lawyer in China must pledge allegiance to the CCP.

Lawyers’ oaths are not unique to China: almost every state in the United States requires newly-admitted attorneys to recite an oath to uphold the Constitution and the laws of the state.  And this is not the first time that a lawyers’ oath has been required in China.  In 2000, the All China Lawyer’s Association (ACLA), the national bar association that all lawyers must be members of, first instituted an oath of office for all lawyers.  But in a Wednesday Legal Daily interview with an unnamed MOJ official, the MOJ determined that the ACLA oath was too general and ineffective.  As a result, the MOJ issued a new oath that must be sworn to in a formal ceremony (translation courtesy of Siweiluozi Blog):

I volunteer to become a practicing lawyer of the People’s Republic of China and promise to faithfully perform the sacred duties of a socialist-with-Chinese-characteristics legal worker (中国特色社会主义法律工作者); to be faithful to the motherland and the people; to uphold the leadership of the Chinese Communist Party and the socialist system; to safeguard the dignity of the constitution and the law; to practice on behalf of the people; to be diligent, professional honest, and corruption-free; to protect the legitimate rights and interests of clients, the correct implementation of the law, and social fairness and justice; and diligently strive for the cause of socialism with Chinese characteristics!

Compare this with the New York State oath taken by newly-admitted lawyers:

I do solemnly swear that I will support the Constitution of the United States, and the New York Constitution, and that I will faithfully discharge the duties of the office of attorney and counselor at law of the Supreme Court of the state of New York according to the best of my ability.”

There are aspects of the Chinese oath that are laudable: to be professionally honest, to be corruption-free, to serve the people, and to properly implement the law.  All of these requirements are ostensibly value-neutral and are good for the profession.  But what is decidedly different between the New York oath and the China one is that allegiance to the CCP is required.  According to the MOJ official, this was intentional.  One of the major reasons that the MOJ issued the new oath was to increase the quality of lawyers’ political thought as well as their professionalism.

That alone would not necessarily be problematic in a country where the Party is the State and let’s face it, people take oaths all the time and rarely listen to or abide by their words.  But this new oath comes in the midst of a major crackdown on China’s public interest lawyers and presumably will be used as a warning signal to this portion of the profession.

The CCP’s Increased Use of Socialist Rhetoric to Police Lawyers

Last fall, I published a law review article discussing the use of increased socialist rhetoric to step up the CCP’s control of China’s growing public

The Three Supremes

interest lawyers (China’s Rule of Law Mirage: The Regression of the Legal Profession Since the Adoption of the 2007 Lawyers Law).  The beefed-up socialist rhetoric began quietly with a speech given by President Hu Jintao at a Chinese Communist Party conference in December 2007.  In his speech, Hu announced the doctrine of “the Three Supremes:” “always regard as supreme the Party’s cause, the people’s interest, and the Constitution and laws.”

Although initially unclear if the Three Supremes were listed in hierarchical order and if the doctrine was even applicable to lawyers, Justice Minister Wu Aiying addressed the issue in August 2009.  Calling upon lawyers to “above all obey the Communist Party and help foster a harmonious society”(emphasis added),Wu stressed the need for lawyers to “pay attention to politics, take into consideration the big picture, and observe proper discipline.” Absent is any mention of “law” or the need to develop the institutions—such as an independent judiciary or a competent legal profession—integral to a rule of law society.

Further confirmation of this shift in rhetoric is found in the October 2008 MOJ pronouncement opening the new government-sponsored campaign of lawyers as “Chinese-style socialist legal professionals.”  In 2010, the MOJ went further with its rhetoric by directly stating the need for greater Party leadership of the legal profession.  In an interview with an unnamed MOJ official, the Legal Daily reported the forthcoming pronouncement of MOJ “Opinion Regarding the Further Strengthening and Improvement of Lawyers’ Work.” Like prior pronouncements, the 2010 MOJ Opinion contains flowery language detailing the need for lawyers to “always hold high the banner of socialism” and to “strengthen [their] political thought.”  But unlike previous statements, the 2010 MOJ Opinion candidly states the role that the Party will play in leading the legal profession.

Through the Party and the MOJ, the 2010 MOJ Opinion states the need for daily supervision and management of the profession, the need for standardization in how cases are handled, and the need to consider “political quality,” “professional quality,” and “ethical quality” in the yearly license renewal procedures

The CCP Re-institutes Party Cells

Party Cells in Law Firms....How Retro!

Finally, the CCP – as reported in a Legal Daily article – has successfully infiltrated most law firms, instituting Party cells in a throwback to the Cultural Revolution days when loyal party members set up “cells” within each work unit to guarantee the proper political ideology of the workers and to report any infractions in thought to the local Party.  While the 1980s saw a decline in Party cells, a 1995 Party Opinion called for the creation of more Party organizations within law firms.   In 2002, President Hu Jintao stressed that the legal profession could only become strong through Party leadership.  But in general, such efforts were met with strong resistance from the profession and law firms largely ignored the directives. However, all of that changed in 2008.

In March 2008, the CCP’s Organization Department and the MOJ’s corresponding Party organization issued a joint opinion announcing the need to improve and strengthen the Party apparatus in the legal profession. As if to indicate to the legal profession that this time the Party was serious about a greater Party presence in law firm life, Justice Minister Wu Aiying declared in July 2008 that more Party cells needed to be created within law firms as a way to better indoctrinate the profession.  This effort has largely succeeded.  Between April 2008 and April 2009, the number of Party cells found in law firms more than doubled.  Today, over 90 percent of all law firms in China maintain a Party cell.(all information can be found in the Legal Daily article).

The Oath Fits the Pattern of Greater CCP Control Over the Legal Profession

In 2007, China amended its Law on Lawyers, ostensibly to give greater independence to the profession.  As my article China’s Rule of Law Mirage points out, on paper, the amendments did in fact give the profession greater control and reduced the supervision of the MOJ.  However, as the article goes on to demonstrate, as public interest lawyers have had more success in their cases, the CCP has exerted greater control of the profession, undermining whatever promises of greater professional independence that is found in the 2007 Law on Lawyers.

Ironically, and as if to give the new oath requirement some sort of semblance of legality, the unnamed MOJ official in Wednesday’s Legal Daily interview attempts to argue that the new oath requirement is in-line with the edicts of the 2007’s amended Law on Lawyers.

Nothing could be further from the truth.  Compared to recent CCP pronouncements, the 2007 Law on Layers is largely devoid of Party allegiance.  Article 1 does require a commitment to a “building of a socialist legal system” but that is sort of like requiring U.S. lawyers to assist in building a democratic legal system.  Additionally, the new structure of law firms and the establishment of solo practitioners were both perceived as an effort of MOJ to relinquish some of its supervisory role in exchange for greater supervision by the bar associations (see China’s Rule of Law Mirage for a more detailed explanation of these provisions).

But MOJ’s new oath, which overrides ACLA’s oath, reflects its effort to maintain control of the profession.  And its requirement that lawyers pledge allegiance to the CCP is eerily reminiscent of Nazi Germany where lawyers took a similar Party allegiance oath: “I swear to remain loyal to the Fuehrer of the German Reich and people, Adolf Hitler, and to fulfill conscientiously the duties of a German attorney, so help me God” (See Matthew Lippman, Law, Lawyers, and Legality in the Third Reich: The Perversion of Principle and Professionalism, 11 Temp. Int’l & Comp. L.J. 199, 218 n. 185 (1997)).

Ultimately, the oath won’t impact the daily work of most of China’s lawyers.  In fact, it is only applicable to new lawyers or those who are re-applying for their licenses (首次取 得或者重新申请取得律师执业证书的人员); MOJ’s announcement makes no mention of its applicability to current lawyers at their yearly re-registration (年度注册); presumably current lawyers will not be subject to the oath.  But in a society where rhetoric has served as important signaling device as to what behavior is politically acceptable, the new oath could potentially have a chilling effect on current public interest lawyer’s work and could discourage new lawyers from representing individuals and issues that are perceived as politically dangerous.  It’s this chilling effect of the new oath that is the greatest threat to a rule of law in China.

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NYC Event – How are Legal Services Administered In China – Mar 12

By , March 7, 2012

 

Light refreshments will be served at the China Chat!

Hopkins Nanjing Center and Asia Catalyst are sponsoring an informal “China Chat” about legal services organizations in China.  Lawyers from the All China Environment Federation and from the Beijing Migrant Worker Legal Aid Station will speak about their work, cases they have brought and obstacles they have faced.  We read about the work of many of these lawyers in the New York Times and the South China Morning Post, but rarely is there an opportunity to hear directly for the lawyers doing the work themselves.

 

RSVP is required to this exciting event: skrumm@asiactalyst.org

 

March 12, 2012
6:30 pm – 8 pm
Ethan Cohen Fine Arts Gallery (ECFA)
14 Jay Street
Tribeca, New York, NY

Directions:  Take the #1 subway to Franklin Street, walk one block west to Hudson and two blocks south to Jay Street, make a right. ECFA is on the left-hand side going toward Greenwich.

Light Refreshments will be served!

Please RSVP to skrumm@asiacatalyst.org

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Slow Killing in Rural China

By , February 29, 2012

Human rigfhts activist and lawyer, Chen Guangcheng

One would think that a poor, illiterate, blind man, who eventually learned to read in his early 20s, taught himself the law, and used those legal skills to protect the rights of society’s most vulnerable, would be celebrated.

Unfortunately, that is not the case for Chen Guangcheng.  Chen, a blind, self-taught lawyer in rural China who blazed the way for China’s nascent disability rights law is currently under unlawful house arrest with his wife and two small children, guarded 24 hours a day by local thugs, denied access to medical care as well as to all visitors and at times subject to physical abuse.

While this has been the status quo for Chen and his family since September 2010, the situation has just become more dire.  Chinese Human Rights Defenders (CHRD), a well-respected China human rights group, reported last week that a sympathetic guard informed CHRD that Chen has grown increasingly ill, collapsing after walking only a few steps in his yard.  Chen suffers from severe gastroenteritis, a condition left untreated while he served an unjust four-year-and three-month prison term and that still remains untreated even though he is “free.”

It is time that the United States’ government publicly expresses its concern for Chen’s health, question the legal basis of Chen’s current house imprisonment, highlight China’s violations of international law treatment in its treatment of Chen, and demand that China follow through with its invitation to the UN High Commissioner of Human Rights to visit its country. Recent developments reflect that international pressure may change the Chinese government’s behavior.

How Did Chen Guangcheng Go from Good Guy to Enemy of the Chinese State?

Chen’s short legal career centered on fighting for the rights of China’s most vulnerable: those with disabilities.  After winning a series of cases, including one requiring the Beijing subway system to waive fares for the disabled, Chen turned his attention to a new injustice that was occurring in his own hometown in Linyi county in Shandong Province.

In early 2005, Chen’s neighbors began to tell him stories of forced abortions, forced sterilizations, and even abduction and physical abuse of relatives by government officials so that the Linyi government could meet a significantly lower birth rate quota imposed by Linyi’s new mayor, Li Qun.

While China maintains a one-child policy, forced abortions and sterilizations are illegal under Chinese law.  Unfortunately, as an investigation by Chen and supportive lawyers from Bejing uncovered, because local officials’ promotions are tied with keeping birthrates low, the law criminalizing forced abortions and sterilizations is sometimes ignored, especially in rural areas.  By the summer of 2005, Chen filed multiple lawsuits in Linyi on behalf of many of the victims.

But as Chen was to find out, China’s legal reform only goes so far: fighting for the rights of the disabled are acceptable; but cases challenging China’s sacrosanct and politically sensitive one-child policy are decidedly not.  Even a well-respected, blind rights lawyer puts his safety on the line if he seeks to challenge the administration of the one-child policy.

In what amounted to kangaroo justice, in September 2005, Chen was placed under strict house arrest by the Linyi government, eventually charged with “gathering crowds to undermine traffic order,” found guilty in a trial where his lawyers were not allowed to attend, and in 2006, sentenced to four years-and-three-months in prison.

Chen Guangcheng’s Life Since September 2010 – An Absurd Version of Freedom

In September 2010, Chen completed his four-plus-year jail term only to learn that his home would become his prison.  Lacking any legal basis under Chinese law and in contravention to multiple international treaties, since his “release,” Chen and his wife have not been able to leave their home.  Chen’s six-year old daughter, Kesi, was initially denied access to school.  But, after much domestic and international pressure, Kesi is now permitted to go to school, walked to and from school by the thugs who surround her home, unable to play with any of her classmates.

Freedom House reportsthat Chen and his family are completely surrounded by thugs hired by the Linyi government to keep all visitors out and keep Chen in.  It is estimated that the

Christian Bale, accosted by Linyi "security guards" in his attempt to visit Chen Guangcheng in December 2011

local government has hired almost 100 men to maintain 24-7 surveillance of Chen and his family.  These thugs resort to force to keep all visitors out, physically attacking Chen’s friends, reporters, foreign government officials, and even Batman star Christian Bale who attempted to visit Chen last December.  Freedom House also reports that surveillance checkpoints points have been set up on various roads into the village, six cameras positioned throughout the village to record all activity and two cell phone jammers make it impossible for Chen and his family to communicate with the outside world.

In February 2011, a sympathetic government source smuggled to ChinaAid, a U.S.-based China human rights group,   a video recording that Chen made of his new life.  Soon after ChinaAid posted the video to its website, the Linyi thugs entered Chen’s home and beat him and his wife for close to two hours.  After the severe beating, Chen and his wife were denied medical treatment.

The continued denial of all medical treatment and Chen’s worsening gastroenteritis has appeared to raise Chen’s medical condition to emergency status, distressing his friends and supporters. Chen’s longstanding friend lawyer Jiang Tianyong, himself the victim of ‘forced disappearance,’ retweeted a recent comment from another that ‘everybody’s now just waiting for the news that Chen Guangcheng has died; so we can erect a memorial for him….’ Jiang’s immediate and emotional reaction to any thought that his friend could die: ‘you’re really sick.’

Prof. Jerome A. Cohen, a Chinese legal scholar with over 60 years of experience in China likely thought that China’s worst was behind it.  But the current situation with his friend Chen Guangcheng visibly alarms the old China hand.  “This cruel, slow killing seems to be the only way the Party can think of to rid itself of a courageous critic without having him appear to die in its custody” Cohen told China Law & Policy.

Will International Pressure Change the Chinese Government’s Treatment of Chen?

On one level, the internationally community doesn’t have a choice if it wants Chen Guangcheng to live.  But on another level, pressure in this case would be a smart strategic move.  Although the Chinese central government is fully aware of the abuse of Chen and his family, it isn’t directly perpetuating it.  The torture of Chen and his family is largely the result of Linyi’s officials’ vengeance.  In statements to foreign officials, Chinese officials have allegedly explained that “house arrest does not exist under Chinese law” and that Chen is free and leading a “normal life.”

If foreign and domestic pressure remains strong, the Chinese central government will have less of an incentive to acquiesce to the Linyi’s government blatant violations of Chinese law.  Other signs seem to indicate that not everyone in the Chinese government is on board with Linyi officials’ behavior.  Although Chen and his family are being held completely incommunicado, information is still able to get out.  ChinaAid receives information, including the smuggled video and letters from Chen’s wife, from a “reliable government source;” CHRD learned of Chen’s worsening medical condition from a sympathetic guard.

Chen & family

In October 2011, the Global Times, a state-run newspaper that is considered the voice of the Chinese Communist Party’s hardliners, published an editorial attempting to distance the central government from Linyi government’s actions.   As CHRD reported in “Let There Be Light, Let There Be Sincerity: Citizens Campaign to Free Chen Guangcheng,” there is a growing citizen campaign to free Chen, even with the censorship of most news regarding Chen.  In December 2011, several of Chen’s collegues and friends made a film about Chen – “Who is Chen Guangcheng” – publicly calling for his release (film is in Mandarin with no subtitles).

Foreign governments should hold the Chinese government to its statement that Chen is leading a “normal life” and specifically request that Chinese government officials accompany foreign officials to visit Chen Guangcheng.  Given his worsening condition, foreign governments should make this a priority.  Vice President Xi Jinping’s visit to Washington, DC offered the perfect opportunity to publicly raise the U.S. government’s concern for Chen’s health; unfortunately it didn’t.

The United Nations should bring public attention to China’s clear violations of the of Universal Declaration of Human Rights (Article 25, the right to adequate health) as well as violations of treaties it has voluntarily ratified including: the International Covenant on Economic, Social and Cultural Rights (Article 12 for denial of medical care); the Convention on Rights of Persons with Disabilities, and the Convention on Rights of the Child (for denying Kesi the freedom of association (Article 15), for the mental anguish caused by her imprisonment (Article 19), for denying her the right to play (Article 31)).   In addition, the Human Rights Council should look to issue a new opinion concerning Chen’s arbitrary detention to update its 2006 opinion when Chen was first held under unlawful house arrest.

Finally, the international community should demand that China follow through with its invitation to the UN High Commissioner of Human Rights to visit its country.  In 2009, the Chinese government invited the High Commissioner to visit China and see first-hand China’s human rights situation, both good and bad.  That was two years ago and China still hasn’t allowed the current High Commissioner to visit.  But if China waits only a few more months, it won’t have to worry: the current High Commissioner’s term expires this fall.

The fact that China verbally commits to human rights reviews and ratifies certain conventions demonstrates that international status means something to it; not necessarily enough to always abide by human rights laws, but enough for international pressure in the case of Chen to make a difference.

What About the Forced Abortions, the Issue that Caused all of this?

In September 2005, soon after Chen was placed under his first house arrest, China’s National Population and Family Planning Commission, the government agency that oversees China’s one-child policy, conducted its own investigation and announced that government-enforced abortions and sterilizations occurred in Linyi in contravention of China’s law.  Although many officials were arrested and penalized for their behavior, Li Qun, the mayor who initialized Linyi’s campaign of forced abortions, was eventually promoted and today serves as Party Secretary of the major metropolis Qingdao.

Li’s promotion demonstrates the importance of people like Chen Guangcheng, those willing to put their lives on the line to protect citizens’ rights and dignity; rule of law might not be what local governments want but it is what the Chinese people are desperate for.

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Below are sources that can provide more information on Chen Guangcheng, his legal career and his current struggle:

  • Philip Pan, Out of Mao’s Shadow: The Struggle for the Soul of a New China, Chapter 7 – Blind Justice, (Simon & Schuster 2009) (describing Chen’s legal career, Linyi’s harsh one-child policy, and the 2006 arrest and trial of Chen);
  • Jerome A. Cohen has written and spoken extensively on Chen’s persecution since his release from prison.  Articles calling for change can be found here and here;
  • Peter Foster, Beijing correspondent for The Telegraph has a good piece here on the effectiveness of Chinese citizens’ “Free Chen Guangcheng” campaign and their efforts to enter his village.
  • Congressional-Executive Commission on China has brief background on Chen as well as a list of those who have attempted to visit him here (current through Dec. 11, 2011).
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Labor Abuses in Zambia’s Chinese State-owned Copper Mines

By , February 20, 2012

While Apple’s alleged labor abuses at its factories in China have been the talk of the press – both in the U.S. and in China – ignored has been China’s labor abuses in Africa.  But two weeks ago, Seton Hall School of Law, which is quickly establishing its China law credentials in the tri-state area, hosted a timely and informative discussion on labor abuses at Chinese state-owned copper mines in Zambia.  Like western consumers – and increasingly China’s middle class – hungry to get their hands on the newest Apple product, China, with its rapid growth, is desperate for natural and mineral resources.  Seton Hall‘s event, “Labor Abuses in Zambia’s Chinese State-owned Copper Mines,” examined the issues that arise when a country uses another to feed its insatiable hunger and raised questions about what is the legal and moral responsibility of China in its Zambian mines, the responsibility of the Zambian government to its own people, and the role of the international community, which itself hasn’t shied away from exploiting African nations in a similar manner for their own gain.  Below, James J. Baber, a first-year law student at Seton Hall, reports on the February discussion. 

To listen to the audio of the entire discussion, please click here
Length: 1 hour 51 minutes

China's relations with Zambia is largely about copper

Phelim Kine on Chinese Abuses of Workers’ Rights in Zambia

By James J. Baber*

On February 6, 2012, Phelim Kine, a Senior Asia Researcher for Human Rights Watch, spoke at Seton Hall Law about his experiences investigating the business practices of Chinese corporations investing in Zambia’s copper mines.  Mr. Kine presented the official Human Rights Watch (“HRW”) report “You’ll Be Fired If You Refuse”: Labor Abuses in Zambia’s Chinese State-owned Copper Mines“.  The event was hosted by Seton Hall Law Professor Margaret K. Lewis, a Public Intellectuals Program Fellow with the National Committee on US-China Relations.  Mr. Tom Kellogg, Program Director and Advisor to the President of Open Society Institute, also took part, offering commentary on the report.

The Human Rights Watch report details the persistent abuses in Chinese-run mines, including poor health and safety conditions, regular 12-hour and even 18-hour shifts involving arduous labor and anti-union activities, all in violation of Zambia’s national laws or international labor standards. The four Chinese-run copper mining companies in Zambia are subsidiaries of China Non-Ferrous Metals Mining Corporation, a state-owned enterprise under the authority of China’s highest executive body. Copper mining is the lifeblood of the Zambian economy, contributing nearly 75 percent of the country’s exports and two-thirds of the central government revenue.

The discussion focused on HRW’s concerns regarding Chinese business practices overseas. A central question is whether the Chinese government or Chinese state-owned firms are effectively “exporting” the kinds of abuses – of labor rights and rights of freedom of expression and association that occur all-too-frequently in China – to foreign countries which are targets of Chinese investment.

Mr. Kine began by speaking about labor practices in the Chinese-run copper mines in Zambia.  China has had for some time a massive presence in Africa, and the copper mines in

Zambian copper miners

Zambia are an extension of this long-term investment.  The driving force behind this modern day scramble for Africa is a desire of the Chinese government to both secure new markets and to maintain a stable flow of resources for its rapidly expanding economy.  According to Mr. Kine, despite the badly needed foreign investment and job opportunities that the Chinese investment brings to Zambia, the relationship leaves something to be desired from the Zambian workers’ perspective.  Mr. Kine stated that the conditions in some mines were found to be a “flagrant violation of both Zambian law and international law.”  HRW interviewed numerous workers to obtain first-hand information about the miners’ working conditions.  The HRW investigators uncovered various abuses of workers’ rights, ranging from the firing of workers who refused to work in hazardous areas to the manifest reluctance of the Chinese firms to provide their workers with proper safety and protective equipment.  Despite the issues and clear dangers involved, however, few of the miners quit these jobs because of the high double-digit unemployment in Zambia.  [See CIA Handbook for a review of Zambia's economy]

In total, the HRW researchers interviewed 170 people and found three main problems: abuses of the miners’ legal rights to health and safety, violations of overtime pay requirements, and what Mr. Kine called a “pronounced anti-union sentiment” in the Chinese mines.  The miners were routinely denied access to, or left unsupplied with, personal safety equipment like protective clothing and respirators.  Mr. Kine stated that workers at the Chinese mines were also paid “one third to one sixth less than their international competitors.”  In addition, the Zambian miners were severely discouraged from associating with one of the two national unions, thereby depriving the miners of the right to associate.

After Mr. Kine concluded his initial presentation, Tom Kellogg raised additional questions and offered comments. Mr. Kellogg spoke about the common perception of the local Africans that the Zambian government encouraged the influx of Chinese investment and thus the Zambian government gave only lax scrutiny to the mines’ labor practices.

Despite the Chinese government’s history of bluntly refuting international criticism, Mr. Kellogg noted that the Chinese government is beginning to present a more evolved response to international criticism.  He specifically mentioned the detailed response of Chinese authorities with regard to the letter from HRW detailing reported issues within the mines.  Mr. Kellogg speculated on whether or not such a response would have happened five years ago.

The microphone was then returned to Mr. Kine for response.  He responded to Mr. Kellogg’s suggestion of Beijing’s possible new openness to international criticism as opposed to the traditional stonewalling.  He noted that HRW had in fact been able to speak directly with the China Nonferrous Mining Corporation in order to address alleged violations of the Zambian workers’ rights.  Mr. Kine also highlighted that all of the Zambian workers with whom HRW spoke stated that they were happy to have jobs despite complaints about the working conditions.  Zambia suffers from both high unemployment and an AIDs epidemic.  And the jobs and infrastructure provided by the Chinese companies are significant assets to the African nation.

Professor Lewis then commented that the Zambian laws regarding mining were quite good on paper but, as noted by one of the interviewees in the report, seemed to be disconnected from the reality on the ground.  Other questions revolved around whether the miners were aware of international labor laws and whether foreign consumers might play a more pronounced role in demanding better labor practices in copper mines.

Professor Lewis also commented on Beijing’s soft power push to present a new image by spreading Chinese culture through the Confucius institutes and classrooms.  The Chinese government is being more responsive to international human rights concerns, but Professor Lewis noted that the current crisis in Syria shows that Beijing is still very concerned about not being seen as promoting popular uprisings or infringing on a state’s sovereignty.

Mr. Kine then noted that the Zambian government has very limited resources at its disposal to combat the issues arising out of the Chinese-owned-and operated mine facilities.  A lack of

Workers strike at Chinese mine in Zambia

money and manpower coupled with the apparent lack of importance that the Chinese government places on human rights in its overseas endeavors is creating a very difficult situation for the Zambian miners.  However, Mr. Kine did find cause to express some hope for the future.  Recently, a Zambian government official had threatened to shut down a mine (albeit a privately invested mine, not a Chinese state-invested one) that did not conform to safety codes.  Mr. Kine thought that this action might indicate that the Zambian government will in the future be better able to provide for the safety of Zambian citizens who work in the copper mines.  Mr. Kine, in fact, called the Zambian threat to close the mine, “a shot across the bow” that may help convince the Chinese government to start toeing the line with more vigor.

The presentation concluded with a lengthy question and answer segment, in which the three experts tackled various questions both about China in general and the discussion at hand.  One questioner asked whether the Chinese companies could in fact be forced out of their mines for rampant safety violations.  Mr. Kine stated that this approach was “worth testing” because the Zambian government needs to use its leverage more directly, instead of engaging in mere fiery rhetoric. He then again referenced the renewed push by the Zambian government to assert its authority by threatening to close one of the mines.  The discussion ended on a high note, with the three presenters presenting their “wish lists” for the future of change in China.

* The author is a first-year Juris Doctor student at Seton Hall University School of Law, and received his BA in Philosophy from the University of San Francisco. Mr. Baber is a member of Seton Hall’s International Law Society.

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Language, Life & Piracy: An Interview with Pleco CEO Michael Love

By , February 15, 2012

Pleco Founder & CEO, Michael Love

Perhaps not since Prof. John DeFrancis, with his publication in the early 1960s of the 12 volume series of Mandarin Chinese textbooks, has anyone so revolutionized the study of Chinese like Michael Love.  In 1999, while living in Beijing between high school and college, Michael became so frustrated with the time and effort it took to look up an unfamiliar character in a Chinese dictionary that he used his computer skills to create an electronic dictionary for his Palm Pilot.  Soon other students in his class were buying Palm Pilots just so they could use Michael’s software.  Upon his return to the States, and while he was studying computer science at Harvard, Michael founded Pleco, an online Chinese-English, English-Chinese dictionary where students of the language can look up Chinese characters via pinyin, handwriting, or camera phone.  Yes, before the age of 20, Michael was well on his way to starting his own company and changing the way Americans learn Chinese.

Fortunately for China Law & Policy, Michael Love is not just a symbol of American ingenuity, but also very generous with his time.  After releasing the Droid version of Pleco, Michael sat down with China Law & Policy to muse about the way we learn languages, the future of Pleco, and the obstacles he faces as an internet company in doing business in China.

Click here to listen to the interview with Pleco founder and CEO, Michael Love or read below for the entire transcript.
Length: 27 minutes (audio will open in a separate browser)

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[1:08]EL: Thank you for joining us today Michael.  So after more than 10 years in the business, where are we today with Pleco?

[1:16] ML:  I just finished what I call a major transitional period, basically because smartphones themselves and mobile devices themselves have just gone through a huge transition.  Most of our efforts the last three to four years have been focused getting from the sort of old-fashioned PDAs – windows mobile, palm pilots – to the iPhone and Android–   to the modern devices people want now.  And there’s a lot of changes built; it gives us a lot more capabilities: obviously much faster hardware, much better and bigger screens, but also different interfaces.  People now are controlling the device with their fingers instead of styluses.  That has really forced us to redesign a lot of things, rethink the way we do a lot of things.  There is better internet connectivity.  These have all influenced the design of our software.

[02:08] So we – I wouldn’t say have been treading water –  but we’ve been kind of spending a lot of time dealing with those issues and not so much time lately on expanding our notions of what we can do with electronic Chinese learning and now we’re getting back in the direction of new stuff again.  We are thinking of interesting new features we can add; new things we can do with flashcards; new ways of looking up characters.  We’re shifting back from this platform-focused phase to a phase were we are more thinking about Chinese again, which honestly is really much more fun.

[02:42] As far as how Pleco is doing, we have several orders of magnitude more customers than we have ever had before.  The App Store is awesome, the Android Market is pretty awesome; people looking for a Chinese dictionary with a few buttons can download our app, try it out. So our reach has expanded enormously and that’s great.  We make apps because we like for people to use our apps; we want to help people learn Chinese, and if we can do that for more people, that’s great.  We love this transformation and now that were finally up to date, now that we are finally on iPhone, Android, iPad and all sorts of other stuff, we can once again turn back to improving Chinese learning for everyone.

[03:24] EL: So you guys just released – Pleco just released its Droid app.  So it is downloadable now for the Droid?

[03:29] ML: Yeah.  Android Market.  Just [type in] P-L-E-C-O.  It should be the first thing that comes up.  Though since Pleco is actually a type of fish, a type of aquarium catfish, there

Pleco the catfish

are actually a few apps related to the catfish that will come up too.  But the first app you look for P-L-E-C-O in Android Market should be ours

[03:49] EL: So in terms of some of the other technology, you now have OCR [“Optical Character Recognition”] software that can recognize a character if you take a picture of it.  Can you tell us more about that?

[03:59] ML: Yeah, this is something that has been floating around actually as an idea for years, and years, and years.  People were writing this way back when the first Palm Treo with a little dinky VGA camera you can use for taking postage stamp like photos that didn’t really look very good.

[04:17] People have been saying “hey wouldn’t it be good to take a picture of a character and look it up” for a long time and finally – summer 2010 – Apple released a new version of IOS that added, for the first time, a really good direct way to get at what phone cameras see and do stuff with it.  That combined with the latest generation of mobile processors, the speed we get on modern iPhone 4 or iPhone 4S made it possible for us to use a sort of algorithm that had been floating around for a long time to instantaneously look up Chinese characters in the phone camera.  So the technology of Chinese OCR has been around for 10 years.  People would use it on a flatbed scanner.  Just like with English, you put your Chinese paper on a scanner; but now the cameras are good enough, the optics are good enough, the process is good enough that you can do this on an iPhone or an Android phone, you can do it instantly.  So it’s great.  Arthur C. Clarke said that any sufficiently advanced technology is indistinguishable from magic.  The first time we got it working in our labs, that was kind of the reaction, that holy crap now we can point cameras at things and look up characters.  Yeah, it’s great, it’s easily the best selling, most popular feature we have ever offered

[05:40] EL:  It  seems like everybody I know who speaks Chinese or studies Chinese uses Pleco.  How many customers or downloads have you had?  How big is your customer base, if you know?  

[05:52] ML:  It’s tough to tell exactly because we get download numbers, we don’t get usage numbers.  We don’t believe in app metrics, we don’t believe in collecting data about people’s usage of our app.  It’s kind of a privacy violation and a lot of our customers, for political or other reasons, are rather privacy sensitive so we don’t collect any metrics.  We don’t measure what you are doing with the app.  So for that reason, we don’t exactly know how many people are actively using Pleco day-to-day.  But just based on our download numbers and anecdotal reports and so forth, it’s in the high six to low seven figures.

[06:31] EL: That’s pretty impressive.  So right now, what do you see – you mentioned a little bit on what you want to focus now with Pleco, where you want to take it.  What do you see as the future of [Pleco]?  Do you think there will be a translation tool on the level of Google Translate or hopefully something better?

[06:49] ML: Google Translate is in a different field than what we’re doing.  They’re really about making it so you don’t have to learn Chinese.  That’s neat and for a lot of people who don’t have the time, who don’t want to learn Chinese, who want to communicate in a dozen different languages, that’s great.  We’re all for lowering the barriers to communication.

[07:10] We’ve only been focused on people learning Chinese and for them, we actually think just sentence translation is counterproductive.  If there is even one or two words in the sentence that you do know, then the mental act of remembering those words, is going to be really good for you in learning your Chinese.  We love the idea of making it easy for looking up words you don’t know, piece together things, but we want you to have to look in some sort of mental translation operation yourself to put this together, to think about it, to improve your own Chinese ability and that’s what we’ve been focused on.

[07:49] So our future plans mostly revolve around that.  We’ve got a lot of new things we are working on for flashcards; we want to have a better type of audio flashcard.  We look at lessons like Pimsleur that will sort of teach you Chinese through audio prompting and sort of a set pattern.  We think we can improve on that with something more interactive.  We’re looking at other ways of just practical things like synchronizing flashcards between your iPad and your iPhone which is actually really complicated for a variety of reasons.

[08:22] And better dictionaries, better content.  We’ve been asking about commissioning our own versions of a few types of content.  For example, we’ve never found a really, really good, comprehensive Chinese menu reader.  We’d love to have some kind of a guide, a reference of   tens of thousands of Chinese dishes and what they are.  It’s funny because the same poetic Chinese name will apply to one thing in one area and another in [a different] area.  We want to get it in all of them.  So a comprehensive menu reader, we think it would be a great thing.  We think it would be great for OCR certainly.  Since no one has developed one, we are thinking of commissioning one ourselves.

[09:02] EL: I just want to jump off of something you mentioned when we compared Pleco to Google Translate.  You were saying that Google Translate is not a tool for people to learn Chinese and Pleco is very much a tool for people to learn Chinese.  In a way [Pleco] has been a huge innovation in the way that students learn Chinese.  But it isn’t without controversy, specifically in the way that foreign [non-native Chinese] students learn Chinese characters.  I’m wondering if you could just give for our listeners who don’t speak or have never studied Chinese, if you could just give a little bit of background about how – before Pleco – someone would look up a character in a dictionary.   For example, let’s say I am reading a newspaper in Chinese, I see a character I don’t recognize – there is no Romanization for it so I don’t even know how to pronounce it – how, before Pleco, did someone look that up in a dictionary?

[09:57] ML:  Well the main way was using a system actually developed in the 18th, 17th [century] – well it may have been even longer than that – called radicals.  So there are a couple hundred basic pieces that is the closest thing Chinese has to an alphabet.  Basically pieces of characters, most of them tied to old-fashioned pictograms, that between them pretty much all Chinese characters are assembled from some combination of these couple hundred pieces.

Each of the 4 characters have the "man" radical on the left. You would use this radical as the first step in looking up each character in the dictionary.

[10:25] What you used to do is that you would find the first one of these pieces – and there is a whole set of rules for that – the most prominent, the most important one of these pieces in a character.  You look at the character, you’d figure what that piece was, sometimes you’d have to guess about that.

[10:41] Then you would look up in a very complicated index [in a dictionary]; you’d get a list of all the characters that contained that piece as their primary radical.  Those would be grouped usually by the number of strokes that are not part of that radical.  And then further sorted by the type of stroke that was the first stroke.  So basically you’d have to figure out what the most prominent component is to this character, look that up in a very long, very small-printed index, go to the right page with a list of all the characters containing that radical, count the number of strokes – so you have to know Chinese stroke order pretty well and Chinese stroke break downs pretty well – count the number of strokes in the character outside of the radical, find that section of the index, and then scan through this long list of characters to find the character you are looking for.

[10:35] So even when you’re pretty good at this it usually takes 30 seconds to a minute and then you have to flip through the dictionary to find the actual things.  It’s painstaking.  It makes it really, really hard to read or made it really, really hard to read a Chinese text you didn’t know.

[11:51] EL: In terms of the radical, the radical – just to clarify for our readers – often does give the character meaning.  So if you have the three water drops, you know that character is related to water.  But with Pleco because you can use either the stylus on the Palm Pilot or for the iPhone or Droid, you can use your finger to draw the character, you don’t need to identify the radical anymore.  So you don’t need to know which radicals have what meaning and you don’t necessarily need to know stroke order anymore – how the Chinese, for thousands of years have written the character.   Do you think Pleco is downplaying the traditional way in which one learned Chinese?  Has there been any loss in not forcing students of Chinese language to learn radicals or stroke order, if that’s even happening?

[12:42] ML:  I think the art of Chinese writing and Chinese calligraphy should not be as prominent a part of the Chinese language curriculum as it is because, honestly, even Chinese people don’t do that that much anymore.  For the last twenty years or so at least, the majority of written Chinese is written on computers.  When Chinese people compose Chinese text on computers they don’t handwrite, they don’t use a radical index, they just key in the Romanized pronunciation of the thing they are trying to write.

[13:18] It turns out if you look at a Chinese computer keyboard, it looks like an American computer keyboard, it’s the same kind of letter based system.  That’s way faster than anything character based with the exception of a specialized methods called wubi and cangjie that I won’t get into.  Most Chinese people write Chinese with an English language keyboard and therefore don’t really ever need to – well hardly ever need to – do anything with stroke order.

[13:43] So the notion that American, European, other foreign students of Chinese need to – even Chinese students to some extent – need to learn to write really well is outdated.  We

A character-intensive Chinese lesson!

don’t handwrite anymore; we haven’t been handwriting for decades.  We use keyboards.  [As for] stroke order, it’s an interesting historical item, it still has some relevance today in understanding how characters are built, certainly it can help you understand characters if you build up some fluency with radicals, with the way characters are constructed, with meanings of those piece, but I don’t think it is anywhere near as important to a Chinese curriculum as learning to speak, learning to read, learning to understand what people say.  To the extent that Pleco is discouraging people from spending a lot of time early on in their Chinese studies learning to practice writing Chinese characters, I don’t think we’re hurting Chinese learning.  I think we are helping people focus on the parts that really matter.

[14:42] EL:  Do you have any idea about how a tool like Pleco or other translation tools, like NJ Star if you are on the computer, how that’s being used today in colleges and high schools in the United States to teach Chinese?  Do you have any idea about that?

[15:01] ML: A lot of that actually has to do with the changing nature of the Chinese teacher population in the U.S.  In the very early days it was sort of a random accumulation; you had a lot of people who had taken Chinese as a second language, knew enough and happened to already be teachers so they would have a little elective class at whatever school it was in Chinese.

[15:20] Then you had a bunch of disgruntled expats who left China in the 80s or 90s and were kind of set on this very old-fashioned way of teaching Chinese; very focused on rote memorization, on practicing things over, and over, and over again, and just sort of felt that the best sort of way to learn Chinese was the way they learned Chinese when they were kids which we would now consider outdated.  We did the same things in the U.S. in those days which we no longer do, just very rote memorization-based.

[15:54] Recently however, [in] the last decade or so, younger people have started teaching Chinese, people who have come up more recently, people with educational degrees, people who have a more modern way of thinking about teaching language.  So they’ve proven much more receptive to a natural language approach to learning Chinese.  They increasingly appreciate that you maybe shouldn’t be quite so fixated on learning characters early.  They appreciate the importance of exposing students to real world reading materials, not just things that were in a textbook, sort of made-up reading materials.  They appreciate even more conversation practice.

[16:33] So Pleco, I think we have always been more in the latter strategy.  We’ve been from the very beginning about helping people work with real Chinese more easily, lowering that barrier.  As far as other tools, like Google Translate, I still don’t really view Google Translate as a Chinese learning tool.  I view it more as a tool for people who don’t know Chinese at all or whose Chinese level is just not even close to what it would need to be to understand something to muddle through.  In my early days of Pleco, I would sometimes run a Chinese language contract or a Chinese language document which I wasn’t sure of my translation, I would run it through [Google Translate] to sort of check to make sure I wasn’t missing something.  It’s good for stuff like that.  But it’s not really a learning tool, it’s more of a learning replacement.  Sort of a mediocre translator to help you through stuff that you are just not confident to do yourself.

[17:29] EL:  Let’s switch beers, oops, gears – I should let listeners know we are in a bar doing this interview.  But let’s switch gears a bit and talk about your experiences in China and currently what Pleco is doing in China.  Is Pleco used by Chinese students learning English and do you do a lot of business in China? 

[17:52] ML:  Actually, no.  There are two reasons for that.  Part of it is that we never really targeted that market.  In the early days mostly because there was so much piracy it just didn’t seem worth it.  We literally had people selling our Palm OS software on CDs in Zhongguancun, in computer markets, that looked so real that people would write to us for technical support for this pirated copy of our software because they didn’t realize they bought a pirated copy. So we kind of dismissed it early on as “well we’re not going to make any money off of this market anyway so let them make their own software.” And that’s what a lot of Chinese software companies did.

[18:32] More recently, it’s just that we don’t really think we can do it as well with the kind of materials we have.  A Chinese-English dictionary for someone learning Chinese, you are going to want to have extremely sensitive vocabulary coverage, you want any possible word they might encounter to be covered, but you don’t need to be very detailed necessarily in the definitions.  You may want a lot of example sentences, but you’re not try to provide comprehensive listing of every English word you might use to translate a Chinese word.  A Chinese person is looking at Chinese to English dictionary almost like a thesaurus, at least that is one of its functions: “I have this Chinese concept I want to translate into English; I don’t necessarily need a comprehensive Chinese-English dictionary because if it doesn’t have this word I’ll type in another word that means the same thing; but I really want it to give me all the different ways of saying this in English and all the different commutations so that I can master the right way of doing this in English.”

[19:28] Fundamentally, Chinese-English and English-Chinese dictionaries, people learning Chinese and people learning English, are totally different.  So we have focused all of our efforts on the people learning Chinese.  Our software features are tailored toward them.  A Chinese person doesn’t need an OCR system to look up a Chinese character; they just type in its pronunciation because they know it.  While they seem like very similar operations, they’re really different enough that it doesn’t make sense for one company to focus on both.  So we don’t.

[20:00] EL: In terms of your business, do you go back to China a lot with Pleco?

[20:07] ML: I go back about once a year.  Meeting up mostly with companies that we do licensing business with, companies we get dictionaries from, companies we want to license more dictionaries from, companies that develop interesting technology we’d like to use.  Occasionally we will run into a product that has some interesting idea that we want to either shamelessly copy or take inspiration from because there is a little bit of overlap between the process of Chinese people learning English and English speakers learning Chinese.  Occasionally we will learn something from them and I think they have gotten some ideas from us over the years.  But mostly when I go to China it is to talk to business partners.

[20:55] EL: You mentioned piracy as one of the reasons why….well, the big reason seems to be that the Chinese audience, the product you’re producing is for foreigners studying Chinese but you have mentioned piracy a little bit.  Has that been a problem for Pleco in China?  And do you do anything about that?

[21:16] ML: It depends on the product actually.  It was a huge problem for us with Windows Mobile in 2008 or so.  We released a new version we had been working on for two years and it was pirated almost immediately. That was a bummer because it really did hurt our sales a lot.  But on iPhone there is really very little piracy problems because any iPhone that hasn’t been what’s called “jail broken” to run non-Apple approved apps basically can’t run pirated software; it’s impossible, there is no way to do it, the phone will just refuse to run a pirated app.  Jail breaking your iPhone violates the warranty.  So we see very little piracy on iPhone.

[21:56] On the Android it’s too early to know.  We are hoping that it will take them a while to crack it and that it won’t be widely pirated.  But at the very least on iPhones there is very little loss to piracy.

[22:12] EL: Before the iPhone, with the Windows-based [program] and it was pirated almost immediately, as a business person doing business in China, did that make you feel that you did not want to be in the Chinese market?  What do you think can be done to change that?   Or do you think it’s inevitable?

[22:36] ML:  I think at some point you have to provide a better value proposition; that’s always been the issue with piracy; it’s true with media too.  People will pay some money for the convenience of downloading your app legally – having updates, having support, the things  that a pirated version simply can’t provide – are worth something to people.  In a lot of cases it’s a pricing and a convenience problem.  People pirate TV series because there is no easy place for them to watch them online without ads.  If our software couldn’t be downloaded quite so easily, I think we would see a lot more piracy.  If our stuff was only offered in CD say, people would pirate it because that would be the only way to download and get it immediately.

[23:21] The problem is that the Chinese naturally place a much lower value on a given piece of content than Westerns do just because of what they are used to paying for it.  Even if a Westerner would consider our prices perfectly reasonable, a Chinese person might not.  So we have this awkward situation – we’d have to make some sort of a Chinese market product priced at a level a Chinese person could be comfortable with in order to keep them from pirating.  There have certainly been attempts at doing that, but really for us we’re happy with our primarily Western customer base.  Really, the reason we are worried about piracy in China is that it makes it easier for honest Westerners [in China] who might otherwise pay us for our product to pirate it.  We don’t really care about Chinese people using pirated copies of our software, we don’t think they were going to pay for it anyway; but Westerners might have.  We want to make it just hard enough that they won’t pirate.

[24:10] EL: In terms of talking about piracy and some of the issues of Chinese law, as an online commerce operation do you have any experience with internet censorship, any of those issues that have been in a lot in the press lately with China?

[24:26] ML: We have never been blocked.  We’ve taken certain preventative measures to make sure that things that might cause us to be Great Firewalled would be isolated.  Our discussion forum site is on a different domain name, different IP address.  So if the Chinese government ever took issue with something someone posted on our public forums, their block of that site would not prevent people from accessing our official company site and downloading our software and so on.  So we’ve taken some measures against that but they haven’t really been necessary so far.

Slow download speeds in China

[24:57] There is a little bit of an issue just physically, network typology, in China with the Great Firewall.  It is hard for a Western company to offer good download speeds for people downloading files, downloading software in China.  There are some very expensive Chinese distribution systems that will work around that; we haven’t yet seen fit to pay, seeing that as a good value for us because they are generally tailored to much larger companies and they cost a lot of money and we can’t really afford it.  So most people in China download our software from Hong Kong and get so-so performance but good enough that people don’t complain too much.  It would be nice if it was easier for a foreign company offering relatively innocuous downloads to have a server in China so people could download our stuff more quickly.

[25:50] So the existence of ICP numbers and the difficulties of getting a website passed the firewall where you can distribute high speed downloads [or] media, etc. to Chinese people, that’s been a bit of a hassle but that’s the only issue we’ve had with China censorship so far.

[26:07] EL: In general, this problem with not having the quicker download speeds and the fact that you do have to do a little bit of a work around for your blog, which is basically questions and answers about the software, have you seen any changes in the Chinese government’s approach to the internet over the ten, twelve years that you’ve been doing business on line?  A lot of the press has been talking about the increased laws that China has been passing to regulate the internet.  But has that affected foreign business?

[26:40] ML: A little bit.  It means that we need to use China-market specific means to reach our customers.  We have a Twitter feed and a Facebook feed and those do absolutely no good for our customers in China because they can’t access Twitter or Facebook, so we need to have a work around.  We need to have a Weibo blog too.  Chinese customers can’t access YouTube so we have to have alternate videos for them.  That didn’t used to be a problem years ago because they [the Chinese government] weren’t quite so aggressive in blocking social networking, in blocking open-content sharing sites.  So that’s been a bit of a hassle.

[27:16] Beyond that….as far as the network typology problems I mentioned, download speeds, those have been as much of a hassle for the last ten years.  It’s sort of the nature of the Chinese internet.  It’s a bit harder to reach our customers, it’s more of an effort to share content, but it hasn’t changed for our purposes all that much.

[27:35] EL:  Well, I think that does it for now Michael.  Thank you very much for a very interesting and thought provoking interview!  Thank you.

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Follow Up on the Wukan Protests – A Constitutional Challenge?

By , February 7, 2012

It's a Constitution We are Propounding!

In the beginning of January, we posted a piece on the recent protests in Wukan, admitting that while there was something happening in Wukan, we at China Law & Policy where unclear what it was.  Enter Prof. Keith Hand of UC Hastings School of Law, a specialist in Chinese constitutional law, who on Friday published a fascinating piece in the China Brief interpreting Wukan as a manifestation of the villagers’ constitutional discontent.

Hand’s piece teaches the lesson that, in analyzing legal developments in China,  we are often prisoners of our own legal systems.  Case in point is constitutional law.  China is often criticized by foreign scholars about not having constitutional law; yes there is a law on paper, but the courts are prevented from hearing any constitutional claims and for American legal scholars used to constitutional jurisprudence being propounded by the courts, this is almost anathema.

But as Hand’s piece, “Constitutionalizing Wukan: The Value of the Constitution Outside the Courtroom,”  emphasizes, the constitution is alive and still kicking in China.  Courts may not hear constitutional claims, but such claims are still being made and still being interpreted in China, just outside the courthouse doors.  For Hand, protests like Wukan and the subsequent government response serve the same role as the courts in interpreting the constitution.  In Wukan, the villagers protested for their version of the Chinese constitution and the government, in its compromise with the villagers, provided theirs, moving constitutional jurisprudence forward.  As Hand points out, this explains why Chinese constitutional scholars are interpreting the Wukan protests in a positive light and as one of the most important constitutional cases of 2011, even though it never made it to a courtroom.

Why do these guys get to have all the constitutional fun?

This grassroots, constitutional interpretation is not absent from America.  In fact, as Hand mentions, some American constitutional scholars view many popular protest movements as an important part of moving society – and in the U.S., the courts – forward to a different view of the constitution and have called this “popular constitutionalism.”  Could the Supreme Court handed down all of its decisions of the 1960s without the Civil Rights Movement and the Women’s Rights Movements?

Will constitutional claims ever be heard in a Chinese court?  Who knows, but as Hand makes clears, constitutional jurisprudence i happening in China, just not where most Americans might look to find it.

For a deeper understanding of popular constitutionalism in China, read the Hand’s short piece here.

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The Wukan Protests –Because Something Is Happening Here But You Don’t Know What It Is

By , January 2, 2012

The tale of Wukan village is not an uncommon one in China. Rural farmland is constantly taken by corrupt village officials for real estate development and the villagers – the owners of the land through the collective – receive little to any compensation. For certain Wukan’s story is a little different from other run-of-the-mill land taking protests: the length of the protests (close to three months), the unity of the group (close to 20,000 villagers), the complete expulsion of the Chinese government from the village, the death of a protest representative in police custody, and the attention from the western media distinguishes Wukan from other taking protests.

But now that it appears that the villagers and the provincial government have reached some sort of agreement, has Wukan ended differently from other protests?

Some China watchers have argued that it has and see Wukan as the general populace’s deepening understanding of its rights under the law and its willingness to fight for those rights (see here and here). But given the discriminatory structure of China’s Real Property Rights Law (“the PRL”) and the Land Administration Law (“the LAL”), one hopes that these villagers are not really fighting for their rights under the law as it stands now. As Prof. Eva Pils points out in “Waste No Land: Property, Dignity and Growth in Urbanizing China”, China’s property laws have been written specifically to render villagers into “second class property rights holders” and permit their land to be legally taken for urban development. The below summarizes much of the article and views the Wukan protest in light of Prof. Pils’ analysis.

How Villagers in China Get Screwed

(1) The Limitations on Rural Land Use Rights

As a nominal communist country, land cannot be privately owned in China. The PRL, passed in 2007, maintained that distinction. Instead, the land is owned publicly; in urban areas, the land is owned directly by the state; in rural and suburban areas, the land is owned by the village collective, usually through the villagers’ collective economic organization or the village committee. This difference in ownership between urban land and rural/suburban land is not just limited to who owns the land, but extends to what individuals can do with the land.

Although not directly owned, individuals are able to own certain usage rights associated with the land that they occupy. These land usage rights differ depending on the underlying ownership of the land – if it is owned by the state or if it is owned by the collective. In urban areas, these usage rights include the ability to live on and to construct non-primary residence buildings on the land (known as “construction rights”); rights to the land can last for 70 years in urban areas. As a result of the ownership of these “usage property rights” and the fact that these rights last for 70 years give urban residents the ability to buy, sell and lease their usage rights, providing somewhat of an appearance of actual individual ownership.

But in rural areas, the usage rights are much more restricted and this is where the problem first begins. First, villagers are pretty much limited to one type of usage right: the right to farm (there are other rights, such as the right to building housing). Under the LAL, which was adopted in 1986 and last amended in 2004, this land use right cannot be transferred or rented for “non-agricultural construction.” (See LAL Art. 63). Urban land use rights have no such restriction. The Property Rights Law (“the RPL”), passed eight years later, continued the limitation on rural usage rights.

Furthermore, rural land use rights are limited to 30 year terms. As a result of these restrictions, there is no free flowing market for the sale of rural land use rights – real estate companies interested in building a housing complex in a suburban area do not go directly to the owners of the rural land use rights; all they would be able to purchase is the right to farm the land (note that Prof. Pils does discuss the illegal minority use rights market between the farmer and the real estate investor).

Instead, where a real estate company is interested in building a housing complex or a factory in a rural area, the land must first undergo a transformation from a rural (where usage rights are limited to agricultural purposes with 30 year terms) to urban land (with “construction usage rights” for 70 years). To undergo such a transformation, the land must go from being collectively owned by the villagers to being state-owned. Under Article 60 of the PRL, it is the “village’s collective economic organization” or the “villagers’ committee” that acts on the villagers’ behalf, negotiating the compensation for the villagers’ land use rights.

As Prof. Pils points in her example of the Nongkou village in “Waste No Land,” the village committee itself often acts in its own interest, not that of the villagers. It appears that in the case of Wukan, the village committee was not representing its constituents; part of the reason that the Wukan villagers deposed of its government was the allegation that the village committee was corrupt and not reflecting the interest of the villagers.

(2) No Just Compensation

The first problem for villagers is the fact that the law leaves them with second class property rights – usage rights that can never be sold for non-agricultural purposes, necessitating the expropriation of the land by the village committee. But the second major issue is that the compensation villagers receive – if they receive anything at all after the village committee is done with the transaction – is nowhere near what is being paid for the transformation of agricultural land into urban land.

Under Article 47 of the LAL, when agricultural land is expropriated, compensation is “made according to the original purposes of the land being expropriated.” As a result, farmers are only entitled to compensation of the value of what they would have farmed over the remaining life of the 30-year lease rights (there are also other compensation other than the value of the land use right, such as resettlement fees but the largest part of the compensation package is for the land use rights).

The villagers themselves do not reap the benefit of the market value of the underlying land or even the full value of what they are relinquishing. In fact, as Prof. Pils notes, for most villagers, the compensation is a mere 5% to 10% of the value of transforming agricultural land to urban land. Article 49 of the LAL requires transparency to the village regarding money received by the collective for the land, but as the Wukan protesters point out, they had little knowledge of anything that was going on.
Furthermore, any complaint regarding the amount of compensation occurs after the compensation plan has been set (see LAL Article 48), making one wonder – what can really be done after the fact. Again, as Prof. Pils notes, because the compensation schedule is considered an administrative decision, it is not subject to judicial review, leaving the villagers with little legal recourse to contest the compensation (although petitioning always remains as an option).

Compensation appears to be a major in the Wukan protest. As part of the brokered settlement between the villagers and Guangdong provincial officials, the low-level of compensation will be reconsidered. (See China Media Project’s translation of a Nanfang Daily article). Hopefully, the villagers will be able to recoup some of the value of the actual transfer of the land to urban use and not just the value of their agricultural land use rights.

(3) The Discriminatory Definition of Public Interest

As Prof. Pils argues in “Waste No Land,” given China’s economic development philosophy over the past 35 years and the fact that land takings account for a significant portion of the local GDP, converting agricultural land into urban land is inherently defined as a taking for the “public interest.”

In fact, the whole drafting of the 2007 Property Rights Law has been predicated on the ability of governments to easily and cheaply take rural lands without providing the villagers with a more realistic compensation. Although both the Chinese Constitution and the PRL reiterate the government’s commitment to equal protection of the laws, the purposeful distinction between urban land use rights and rural land use rights, Urban land use rights are not under the same restrictive

The third and biggest challenge to being a villager in rural China is the expansive definition of “public interest.” Takings of rural land against the villagers’ wishes are legal in China if it is done in the public interest.
In January 2011, the State Council promulgated new regulations (in Chinese here) better defining “expropriation for the public interest.” But those regulations were limited to state-owned land, or in other words, urban lands. In the countryside, what is the public interest remains intentionally vague.

So What Happened in Wukan?

Wukan is not an example of villagers seeking their rights under the law. China’s property laws – the PRL and the LAL – provide little rights to villagers.

But there is certainly something happening here….I’m just not so sure what it is and perhaps it is still too early to determine if Wukan is in fact a harbinger of something more. Protests in China against rural land takings and the lack of just compensation occur on an almost daily basis. But in Wukan, these protests were large, public and extreme. Add to the mix that one of the protest leaders died while in police custody.

On some level Wukan had the potential to end differently, to end violently. But it didn’t. Instead, the provincial government stepped in to admonish the local officials (although interestingly enough such punishment is going to happen outside of the legal system and under shuangguai, the Party adjudication method – see Nanfang translation), praise the villagers, admonish against further protest and agree to provide greater compensation.
But how often can the provincial or central government step in and continuously calm these tensions? Arguably the government must recognize that it is the structure of the law itself that leads to such discontent. But such a discriminatory law is necessary to provide for real estate development, an increasingly important part of China’s GDP. Will the government change this paradigm and provide equal property rights to villagers? Right now it is unclear. Wukan seems to have ended in the same way as all of these protests do. But perhaps this time the central leadership will realize that constantly involving itself in these local protests is unsustainable.

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