Posts tagged: China

The Trump-Xi Summit – Making Plans to Make Plans

By , April 11, 2017

Presidents Trump and Xi Jingping at Mar-a-Lago, April 6, 2017 (Photo courtesy of JIM WATSON/AFP/GETTY IMAGES)

To say that the U.S. air strike on Syria overshadowed the Trump-Xi summit last week would be an understatement.  The event basically eclipsed the two day conference, pushing the meeting between the leaders of the world’s two largest economies to second page news.

But even without the Syrian air strike, the summit would not have created much news.  In fact, in the way Trump and Xi each described the outcome of the meeting – deepening their friendship  and making progress in their relationship – it seemed more reminiscent of a marriage proposal in Elizabethan England than a discussion between two powerful countries that have been having a difficult relationship.

But did anything substantive come out of the summit?  The South China Morning Post has a great review of the issues discussed – and not discussed – at last week’s summit.  But here are some highlights:

Trade

At Mar-a-Lago last week (Photo Courtesy of AP Photo/Alex Brandon)

Trump did raise the issue of trade and, according to Secretary of State Rex Tillerson, Trump “underscored the need for China to take concrete steps to level the playing field for American workers, stressing repeatedly the need for reciprocal market access.”  But it is unclear if the statement resonated with the Chinese delegation.  And, contrary to some pundits’ expectations, Xi did not come to Mar-a-Lago with a peace offering, namely proposing job-creating investments in the United States.

Instead, the two sides announced the 100-Day Plan, a policy to completely overhaul their trade relationship within 100 days.  While most countries take years to rebalance a trade relationship, Trump and Xi are going to do it in a mere 100 days.  Secretary of Commerce Wilbur Ross correctly noted that this approach would be a “very big sea change” but offered no explanation exactly how all of this can occur in a matter of three-and-a-half months or even why it should; why such a rush to recalibrate the most important trade relationship in the world is a good idea.

North Korea

While both countries acknowledged North Korea as a growing nuclear threat, no middle ground was met.  It appears that Trump continued to warn China that if it did not do more, the U.S. would follow its own course of action, and with the Syrian attack in the backdrop, one can only imagine what Xi was thinking in all this.  China’s foreign minister however noted that if North Korea ceases its nuclear program, then military action in the region should also cease.  Interestingly, this was the suggestion that Beijing made last month: to halt the joint U.S.-South Korea military drills to induce North Korea to coming back to the negotiating table.  The U.S. did not listen and instead continued with the drills.

Human Rights

Just say no to human rights

Neither side mentioned whether human rights was raised during the summit and, given the agendas of these two men, it likely was not.  But in a White House-approved statement after the summit, Tillerson again used the vocabulary of the Chinese Communist Party (“CCP”) to describe the U.S.-China relationship: one of “mutual interest.”  For the Chinese, this is not rhetoric but words that come with baggage.  Mutual interest is often used by China to scold other countries when those countries question China’s domestic policies.  Usually used in relation to China’s interest in Tibet and Taiwan, it can also be used in defense of foreign criticism of policies that seek to viciously stamp out civil society. So expect human rights to play a low role in Trump’s policy toward China.

State Visit & U.S.-China Comprehensive Dialogue

Trump – already big in China

Xi invited Trump to a state visit in China this year and Trump said yes.  But more importantly, the U.S. and China established a framework by which to hold high-level talks, the U.S.-China Comprehensive Dialogue.  Make no mistake, this is not a new idea.  Under the Obama Administration, the U.S. and China would periodically host the Strategic and Economic Dialogue, the Human Rights Dialogue and on occasion, the Legal Experts Dialogue.  It appears that Trump and Xi are going to replace these dialogues with the U.S.-China Comprehensive Dialogue (date yet to be announced) which will have four tracks: a diplomatic and security dialogue; a comprehensive economic dialogue; a law enforcement and cybersecurity dialogue; and a social and cultures issues dialogue.  Again, human rights was not named as a specific issue and if it is unclear if this issue will merely be squished into the social and cultural issue dialogue.

So in the end, not many outcomes from the Trump-Xi summit.  Perhaps what is more telling though is what was not said at the summit.  No mention of Taiwan, no mention of human rights and no mention of increased Chinese investment in the U.S. to create jobs.  But check back in 100 days.

Trump Tough on North Korea Before Xi Meeting – Will it Work or Just Backfire?

By , April 3, 2017

Trump and Xi to meet on Thursday and Friday

On Thursday, President Donald Trump will host Chinese President Xi Jinping at his resort in Mar-a-Lago for their first summit meeting.  While it is not clear what will come out of this two-day meeting, what will certainly be on the agenda is North Korea.  But is Trump and his administration ready?

Trump has barely staffed up the upper echelons of the State Department or the Department of Defense and on Sunday, in an interview with the Financial Times, Trump yet again claimed that “China has great influence over North Korea.”

But, as North Korea expert Jenny Town made clear in an interview with China Law & Policy, China does not have the influence over North Korea that Trump thinks it has.  “China’s current relationship with North Korea is not very good either, especially compared to past years” Town told China Law & Policy.  “I think that there’s a lot of problems with the way that people think about China’s influence on North Korea, and I think they really over estimate that influence.”

Jenny Town, Assistant Director of the US-Korea Institute

And in a way, Trump underestimates the influence that the U.S.’ rhetoric has on North Korean leader, Kim Jong-un. “I think some of [North Korea’s] antagonism with China is maybe also somewhat triggered by all this U.S. talk of ‘if we just push China enough, China will take care of this problem'” Town told China Law & Policy.

In his interview with the Financial Times, Trump also stated that if China won’t exert its influence – which, in reality, may not be that strong right now – the U.S. will go it alone.  But will it really?  Any actions the U.S. takes with North Korea will have a strong impact on South Korea and Japan, important strategic allies in the region with populations that  will unfairly bear the brunt of the U.S.’ bellicose engagement with North Korea. In terms of a preventive strike on North Korea (preemptive strike is in fact a misnomer in this situation according to Town), “North Korea is almost guaranteed to have some kind of response. The response might not even be directly on the U.S., but again our allies in the region” stated Town.

Now if the Trump Administration’s idea of going it alone is one-on-one dialogue with North Korea, that could actually be game-changing.  According to Town, the Obama Administration’s policy of

North Korea leader Kim Jong-un (Photo courtesy of CNN)

“strategic patience” – where it ignored diplomatic relations with North Korea and instead doubled-down on sanctions – was a failure, allowing North Korea to rapidly advance its missile technology.  The Trump Administration has stated that it rejects the policy of strategic patience. But in her interview, Town questions if that is true, especially if the Trump Administration is just looking to issue more sanctions: “[W]hen [Secretary of State] Tillerson said strategic patience is over, we all look at the things that he talks about after that. Those are really just tenets of strategic patience. So again without negotiation you’re still just doubling down on the same tactic and hoping for a different result. Even if you’re making them harder-edged, it’s still not a new tactic. Again, if it’s been ineffective now for eight years, what makes you think just pushing a little harder is going to help?”

To listen to the full podcast of China Law & Policy‘s exclusive interview with Jenny Town of the John Hopkins’ US-Korea Institute, click the media player below (total time – 37:08).  To read the full transcript, click here

CL&P Exclusive – Talking North Korea with Jenny Town (Part 2)

By , March 30, 2017

Part 2 – The Role of China

Yesterday, China Law & Policy published Part 1 of its exclusive interview with Jenny Town, Assistant Director of the U.S.-Korea Institute and noted expert on North Korea.  While Part 1 of the interview focused on North Korea’s military build-up and the U.S.’ prior policy toward North Korea, in Part 2, Ms. Town discusses Secretary Tillerson’s announcement that no options are off the table, the precarious future of U.S-North Korea relations, and what role can China play in all of this.  Is it really that “China has done little to help” as President Trump tweeted a few weeks ago?

Read the transcript below for Part 2 of this two-part interview where Ms. Town explains the role of China on the Korean peninsula.  Or click on the media player below to listen to the interview (total time – 20:38)

For Part 1 of the series, please click here.

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Secretary Tillerson at the DMZ, March 2017 (Photo courtesy of CNN)

CL&P:            I guess in that regard, I mean when Tillerson was over there this past month, he stated that he was going to leave all options on the table. What exactly do you think he meant by that, and is this harsher stance? I mean it sounds like it’s a harsher stance than strategic patience. Is it good or bad for peace on the Korean peninsula?

JT:      I think it’s a little bit out of context. I think that the reality is Tillerson is not a seasoned diplomat, and so when he says certain things, he says certain things in ways that a seasoned diplomat wouldn’t. The reality is right now the [U.S.] government is going through a policy review. And as part of the policy review of course, they’re reviewing all options, including military options, including negotiations, and so they haven’t necessarily come out with their policy yet. So part of what he was saying is that yes, all options are still on the table, but that doesn’t necessarily mean that that’s exactly what we’re going to be doing in the future.

President Xi Jinping (Photo courtesy of Time)

The [U.S.] government is expected to be done with their policy review in the next couple of weeks, especially before the visit by Xi Jinping to be able to have some level of strategic discussion with Xi Jinping. But, you know, it isn’t helpful for him to have said it either, again without those qualifiers, because it does come across more aggressive and more belligerent at a time when tensions are already very high. This kind of talk is very dangerous especially if that isn’t the direction which we end up going because it already put the thought out there, and it’s already sort of antagonizing the situation more than it needs to be.

CL&P:            I think that’s true, because I think of lot of the press already have interpreted that statement as also equating it with preemptive strike. How serious of a possibility do you think right now in diplomatic circles down in D.C. people are talking about preemptive strike against North Korea?

JT:      I would say people are talking about it, and they’re talking about it a lot. But most of the discussion about that’s happening right now is why it’s a really, really bad idea because all of the things that could go wrong in the process. Here’s the problem.  It’s not even preemptive strikes. It’s not like we’re watching them load up an ICBM that we know is coming to the U.S. which would give us the right to defend ourselves from an attack. That’s what preemptive means.

What people are talking about now is more preventive strikes or surgical strikes. So basically preventing them from having the technology by trying to disrupt their systems; preventive strikes on say missile bases or missile arsenals, things like that. But, I think there’s a huge miscalculation if people think that North Korea wouldn’t retaliate. If the U.S. were to do something, North Korea is almost guaranteed to have some kind of response. The response might not even be directly on the U.S., but again our allies in the region. It makes it very dangerous. It’s a very dangerous proposition, one that could easily escalate into war.

CL&P:            You had mentioned the new Trump administration figuring out a more precise North Korea policy before Xi Jinping comes to visit Trump, and I think that’s interesting. Because in President Trump’s Tweet a couple weeks ago about the North Korean situation, in addition to saying that they were behaving badly, he also brought up China, and stating that China has done little to help. I guess just to start us off if you can explain a little bit more what exactly is China’s current relationship with North Korea.

Better times. Prior N.Korea lead Kim Jong-il meeting with prior Chinese President Hu Jintao (Photo courtesy of the Wall Street Journal)

JT:      China’s current relationship with North Korea is not very good either, especially compared to past years. Under Kim Jong-il China had a good understanding of North Korea and had a relationship with Kim Jong-il and could signal to him when he’s gone too far. They had a personal relationship with him and knew how he would react to certain things. Since Kin Jong-un has come to power, Kim Jong-un does not have a relationship with Xi Jinping. He hasn’t been to Beijing. They don’t know what to expect from him. They don’t know him. Everything that anyone is doing that’s trying to send signals to North Korea, we don’t exactly know how he will react.

We knew how Kim Jong-il would react because Kim Jong-il had been there for 20 years. He had been apprenticed under Kim Il-sung for 16 years before that. Kim Jong-un only came to the scene a year before his father died. We never got to know him as the successor before he took over, and now that he’s in power there’s a lot of times where people say he’s unpredictable. Well, of course he’s unpredictable to us because we don’t know him and we don’t have a relationship with him. And we don’t know how he’s going to react. Too many people assume that he will react like Kim Jung-il did, but he’s proven he’s not his father.

The question is now when are people finally going to take the time to accept that notion – he’s not his father – and try and build a relationship with him.  To try and get to know him and better understand how he’s thinking and how he’s going to react to things.

Kim Jong-un’s half brother, murdered in Malaysia. (Photo courtesy of the South China Morning Post)

CL&P:            I mean I guess also in that regards with Kin Jong-un taking over leadership and the relationship with China, it’s been mentioned a number of times that he hasn’t visited Beijing. Also, my understanding, correct me if I’m wrong, is that the execution of his uncle. His uncle was close to Beijing, and then also the half brother was protected by Beijing. Are any of these things being done to sever even further the relationship with Beijing or to prove something to Beijing, or do we just not know?

JT:      It clearly has had a damaging effect on an already frustrated Beijing. I think that there’s a lot of problems with the way that people think about China’s influence on North Korea, and I think they really over estimate that influence. Again, under Kim Jong-il, I think it might have had a little bit more credence just because, again, they had a legacy of working together. With Kim Jong-un, it’s a much different relationship. It’s one of those things where Beijing does not want North Korea to have nuclear weapons either. But it’s hard to imagine a scenario where they [China] have this secret formula where if they just did certain things, North Korea would fall in line and that they just choose not to do it.

China’s Wu Dawei (center) visits North Korea

I think this is how a lot of Americans think about China policy towards North Korea. In the meantime, I think China has done a lot to try and address the issue, but has limitations on the influence that they have. They say this to us all the time. It’s not like China has a China-North Korea joint army like the U.S. and South Korea does. They don’t have a presence in North Korea. They can certainly send messages and send signals, but even the fact that back in 2015. Was that it? No, in 2016, even when Wu Dawei had gone to Pyongyang to talk to the North Koreans about settling things down.  The fact that they announced that they were going to do another SLV launch on the day that he landed, I think shows a lot about how Kim Jong-un thinks about Beijing right now.

And I think a lot of it is the relationship has been damaged as Kim Jong-un is trying to show he can’t be pushed around. I think some of this antagonism with China is maybe also somewhat triggered by all this U.S. talk of ‘if we just push China enough, China will take care of this problem.’ I think it puts the Chinese in a very awkward position, but the Chinese always come back to us and say ‘hey look we’re doing what we can, but the U.S. should be doing more, too.’ And the doing more part has to do with direct bi-lateral diplomacy as well. So without that factor, all we’re doing is kind of skirting around the issue and just putting more pressure on an already boiling pot.

The border between China and North Korea

CL&P:            I guess in that regards, with the situation today in the relationship between China and North Korea now, then how instrumental is China in easing the tensions on the Korean peninsula?

JT:      I think China definitely plays a big role, but it doesn’t play the only role. It’s not something where if we just use China enough that China can scold North Korea and North Korea’s going to come to the table. The other problem too is that even if China – and here’s always sort of these clash of tensions – is that China’s national interest is to prevent instability in the region because instability is good for no one. The U.S., part of strategic patience, they’re kind of hoping that North Korea will collapse and that if we put enough pressure on the situation, we can get the regime to change which is sort of the path of most resistance and the most danger.

I think there is a certain degree to where China also recognizes that the more pressure it puts by cutting off,. . .Implementing sanctions is one thing, but a lot of people think ‘well if China just cuts of North Korea and all trade and all oil and all goods, that North Korea again will just bend over, and will come running back and beg for forgiveness kind of thing,’ but I think the problem is that that scenario is very unlikely. Even if China does that, North Korea’s more likely to be more belligerent. Belligerent could be belligerent towards China as well, so you never know. We talk about this a lot these days: be careful what you wish for. Getting China to cut off North Korea could go one way in a positive way. It could go really bad as well.

Xi to meet Trump next week at his Florida resort, Mar-a-lago

CL&P:            When Xi Jinping meets with President Trump, what do you think he’ll be asking the U.S. to do with North Korea? What do you think his request will be?

JT:      I’m almost positive he’s going to tell the U.S. that negotiations have to be part of any new policy. For instance if you look at the U.N. Security Council resolutions, when the U.S. talks about  the U.N. SPR 2270 or 1718 or 2048, all the different resolutions now, they always talk about the sanctions resolution. In the last round, in the 2270 resolutions for instance, in those negotiations, I think people came away thinking ‘wow China really agreed to some tougher measures.’ We’re kind of impressed that China agreed to these tougher measures definitely sending signals to Pyongyang that they were unhappy with Pyongyang’s behavior.

When the Chinese talk about 2270, they talk about resolution 2270, not the 2270 sanctions. The big difference is that in that resolution, there’s also a mandate for negotiations.  So when the Chinese talk about these things, and in response to pressure or criticism that they’re not doing enough, they always come back with ‘but you’re not fulfilling your end of the portion either.’

U.N. Security Council

CL&P:            So basically the 2270 called for not just sanctions, but also going back to the table, and that hasn’t happened?

JT:      Right.

CL&P:            Okay. So what they’re looking for, Beijing, is reverting back to the six party talks?

JT:      Not necessarily.  But at least getting some level of negotiations going and some level of engagement going because we’re not going to break this cycle of provocation and response until there’s some kind of diplomatic offer.

CL&P:            In terms of getting negotiations going again, do you think that’s even possible given the current regime in North Korea and what’s been happening and also the language that’s been being used by the Trump administration, even if Tillerson misspoke. Do you see that given the tensions between the U.S. and North Korea right now, negotiations are a possibility?

Trying to get all parties to the negotiation table

JT:      I think if it was up to the North Koreans, yes negotiations are possible. If it’s up to the Trump administration, I have increasing skepticism that we’re going to get anywhere. This is going back to your question of when Tillerson said strategic patience is over, we all look at the things that he talks about after that. Those are really just tenets of strategic patience. So again without negotiation you’re still just doubling down on the same tactic and hoping for a different result. Even if you’re making them harder-edged, it’s still not a new tactic. Again, if it’s been ineffective now for eight years, what makes you think just pushing a little harder is going to help?

CL&P:            I know the new administration’s still getting together their policy team. Do they have anybody in the administration that specializes in North Korea to advise them on some of these issues?

JT:      Well, in the State Department, there is a U.S. representative for North Korea policy, Joe Yun, Ambassador Yun.  But it’s unclear to us who else is working on these issues at this moment because there still hasn’t been an effort to staff up the State Department or senior leadership in the DOD [Department of Defense]. There’s still a lot of questions even here in D.C. that we just don’t have answers for.

North Korean soldiers. Looking for the six party talks? (Photo courtesy of Int’l Crisis Group)

CL&P:            If you had the opportunity to advise the current administration, assuming that it’s goal is to avoid war on the Korean peninsula, what would your advice be?

JT:      My advice has been pretty consistent.  The fact that yes, you can double down on sanctions and bolster defenses, but without the diplomatic track, the situation is going to get worse. The longer it takes to try and actually try to have talks about talks and see what’s even possible any more, the higher the stakes are going to be in the process and the more leverage that North Korea builds over time as it continues to grow its strategic arsenal. So if we really want to make a difference, then create a different relationship and one that serves our national interest, they’re going to need to have some kind of diplomatic track and need to be able to shoulder the criticism that’s going to come along with that from all the skeptics.

CL&P:            The criticisms within the United States?

JT:      Yes.  There’s always the arguments of ‘well we’ve tried negotiations before, but they didn’t work,’ or ‘North Korea always cheats.’ Well just because we tried it before, does that mean … Diplomacy is not a one-off, and it’s not a linear path, and national security is not a linear path. If you don’t have at least talks about talks to figure out what’s even possible within the negotiating framework, you’re losing the battle. You’re limiting yourself as to what you can do. But these days there’s so much criticism because we’ve gotten so far off track.  Whichever president decides that the situation’s gotten dire enough where we need to suck it up whether we like it or not and try some level of diplomacy, it’s going to come with criticism, and they need to be able to deal with that.

CL&P:            I guess if you’re leaving all options on the table, why would you take diplomacy off the table?

JT:      Right.

CL&P:            We talked about China, and we talked about the United States. I guess Japan and South Korea, I mean I would assume their interest is for more negotiations, or …/

JT:      Not necessarily. You have a pretty hard-line government in Japan these days. They want to build up more missile defenses. They’ve even talked about missile interception and they sort of take the lead from the U.S. as far as that goes. With South Korea, it’s different. South Korea, it’s hard to tell what they will do next because it really will be dependent on who the next president is. Their policy could change drastically towards North Korea. It could be at odds with what the U.S. decides to do as well. Then that is going to really put pressure on the U.S.-Korea alliance.

Jenny Town, Assistant Director of the US-Korea Institute

CL&P:            Well, this is a very interesting interview. It doesn’t sound like there’s any solution any time soon. I want to thank you again for spending time talking to China Law & Policy. Hopefully, people will listen to this interview, and conflict can be avoided.

JT:      I hope so, too. Thanks for having me.

CL&P:            Thank you.

JT:      Sure

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For Part 1 of this two-part interview, click here.

 

CL&P Exclusive – Talking North Korea with Jenny Town (Part I)

By , March 30, 2017

Part I – Shifting U.S.- North Korea Relations

Jenny Town, Assistant Director of the US-Korea Institute

Since January, the situation on the Korean peninsula has become increasingly tense with North Korea test firing missiles, using toxic nerve agents to assassinate Kim Jong-un’s half brother, and announcing that it has the capability for its missiles to reach the West Coast of the United States. Meanwhile, the Trump administration has responded to North Korea equally bellicose and frightening with threats noting that no options are off the table in dealing with North Korea including possibly preemptive strike.

Are we on a collision course for nuclear war, and what role does China play in all of this? To answer those questions and more is noted North Korea expert Jenny Town. Ms. Town is the Assistant Director of the U.S.-Korea Institute at John Hopkins School of Advanced International Studies and is the managing editor and producer of 38 North, a web journal and vital resource on all things North Korea.

Read the transcript below for Part I of this two-part interview, where Ms. Town discusses shifting U.S.-North Korea relations.  Or click the media player below to listen (total time – 16:26).

CL&P: Thank you for joining us today, Ms. Town. Before we get into the current situation on the Korean peninsula, I wanted to give our listeners a little bit more background on North Korea. In the western press, North Korea is often portrayed as a hermit impoverished kingdom run by a dictatorial mad man, but is that perception true? Is that how we should view North Korea?

Kim Jong-un, Supreme Leader of the Democratic People’s Republic of Korea (North Korea) (Photo courtesy of CNN)

JT:      Thank you. It’s great to be here. I’m happy to be a part of this podcast. I think you’re asking all the right questions. The problem is that the more we treat North Korea as a caricature and we don’t take it seriously, the harder the problem becomes in the long run. A few years ago my colleague and I, we did write an article that talked about these myths about North Korea. It’s not a hermit kingdom. I think at some point we’re more isolated from it than it is from the rest of the world. There certainly are restrictions on information access and travel and movement, but there is a lot of contact with the outside world. There’s a lot of trade that goes on. There’s a lot of businesses, a lot of tourism. There’s a lot of NGO workers and diplomats, and so they do have access to the outside world. Not the same level that other countries have, but it’s not completely isolated.

The idea that Kim Jong-un is a mad man is also a dangerous characterization because he’s actually very calculating. The North Korean regime, even when Kim Jong-il was there, people liked to make fun of his sort of eccentricities. But when it came to state security, the decisions that he made were very rational. Sometimes miscalculated, but he’s the ultimate realist. They’re a country that perceives to have many enemies, and in the process will make decision on how to protect itself and how to protect the regime.

North Korea’s missiles in a military parade. (Photo courtesy of BBC)

CL&P:            So in essence, we should see their movements as something that is rational if your goal is to protect the current regime?

JT:      Yes, and we should take them seriously for what they’re doing because discounting them is not serving anyone’s good.

CL&P:            Agreed. Recently there seems to be a lot of bellicose activity from North Korea. In the middle of February it test fired a medium long range ballistic missile, and then it used, I guess, what’s known as an illegal nerve agent to assassinate Kim Jong-un’s half brother at an airport in Malaysia. Then two weeks ago, it announced a successful test of a high thrust rocket engine. Then this week they had two failed missile attempts.

Why are we seeing such activity, so much activity that seems warlike in the past month or two? Why now? What’s going on?

US-South Korea joint military drills (Photo courtesy of The Sunrise)

JT:      Well, some of this is a little bit expected. This is a time when the U.S. and ROK [South Korea] are running their joint military exercises in South Korea. Over the past year, especially the last year and this year, the nature of those exercises has expanded. It’s become more belligerent and it’s also included such things as decapitation drills and strategic over flights. These kinds of things always spark some kind of response and a strong response from North Korea because again, they do see it as more than just business as usual; but as a more provocative, more aggressive signaling to North Korea. Over the past couple of months, though, we’ve really seen an acceleration of testing and demonstration of capabilities over the past year.

At the end of the Obama administration, when it was clear that the nature of U.S.-DPRK [North Korea] relations was not going to change under the Obama administration, we saw a lot of demonstrations. In the past, there might have been missile tests, but they [North Korea] didn’t send out pictures of it, for instance. They didn’t send out pictures of Kim Jong-un celebrating different successes. I think now they’re clearly trying to prove capacity to the outside world. I think it was actually though very quiet from elections until inauguration and for a short time after inauguration as they [North Korea] were trying to figure out what to expect from America and if there was room for changing the nature of our relationship.

CL&P:            Just to go back, when you were talking about the exercises that the U.S. and South Korea are doing, you’re saying because those have become stronger and more belligerent, North Korea is taking it more serious?

US and South Korean soldiers at the DMZ

JT:      Yes. The exercises have been going on for decades and part of the function of the exercise is also signaling as to how the nature of the relationship with North Korea. There are times when they’re much more kind of routine standard operations and drills, but over the past couple of years, they’ve been adding drills and expanding it. And on top of that, the messaging coming out to the media about the [U.S.-ROK] drills and to the public about the drills has really emphasized certain things like decapitation strikes and strikes on Pyongyang and things like that. So it’s really become a much more antagonistic venture.

CL&P:            Then [what about] the recent U.S. response to North Korea’s actions the past couple months, especially with the new administration. So Secretary of State, Rex Tillerson, when he was visiting South Korea this past month, announced that the U.S. policy of what he called strategic patience has ended. I guess can you first explain a little bit more what this policy of strategic patience is or was?

U.S. Secretary of State Re Tillerson visit South Korea, March 2017 (Photo Courtesy of NY Daily News)

JT:      Sure. So strategic patience was the Obama policy.  Basically it was a supposedly principled approach that negotiations were only under certain conditions, and that in the meantime it was kind of doubling down on pressure on the regime to change it’s strategic calculus using such tactics as mostly sanctions. And then also trying to bolster defenses in the region, so in South Korea and Japan as well. But it was largely dependent on this whole intimidation, kind of pressure and intimidation factor to try and get North Korea to change its mind about how it wants to move forward.

CL&P:            Under strategic patience, I assume that the policy, whether or not it was a failure, was put in place to try to limit North Korea’s ability to develop its nuclear weaponry. Was it successful with that at all?

JT:      Absolutely not. It was a complete failure. If the goal of strategic patience really was to deter

President Barack Obama implements Strategic Patience

North Korea from developing it’s weapons programs, it’s WMD programs, it’s a complete failure because they have completely accelerated their programs during the Obama administration. In 2013, for instance, they restarted their five megawatt reactor to help produce more plutonium for nuclear weapons. In 2010, they had revealed that they had a uranium enrichment program, and in 2013, we saw that the main facility that they had shown to U.S. inspectors before had doubled in size. The centrifuge hall has doubled in size, potentially doubling it’s capacity to create weapons-grade uranium or highly enriched uranium.

We’ve seen several demonstrations of tests. Last year alone, we had two nuclear tests and over 20 missile tests. During the Obama administration, there’s been four nuclear tests. So, if the goal of strategic patience was to deter North Korea from moving forward and making the cost of nuclear weapons programs and WMD programs so untenable that it had to come back to the table, then of course it completely failed.

CL&P:            So then they’re not going to come back to the table?

JT:      Well, I wouldn’t draw that conclusion that they’re not going to come back to the table. What I’m saying is that the policy is not compelling the right response.

CL&P:            In terms of all this development, I mean I guess this goes back to the first question, and your answer to the first question about not perceiving North Korea as this shut in country, where do they get the ability to develop this technology? How do they have the knowledge to develop this technology for nuclear weapons?

JT:      They’ve been working on this program for a very long time, for decades. They have scientists in country. We know there has been cooperation with other states. They’ve gotten information from Pakistan and Syria and Russia in the past. There’s definitely plenty of people that they’ve worked with over the years to get to a point where some of it’s indigenous, some of it’s reverse engineering of designs that they’ve gotten from other countries. They’re a very resourceful people, and I would go back to again your first question and tying this all together, too. I think the underlying premise of strategic patience was this idea that Kim Jong-un would never be able to consolidate power under a third generation of the Kim family and that all we had to do was wait them out, and that eventually the state would collapse and then we could deal with someone else. That’s just simply not the case.

CL&P:            No, it doesn’t look that way. I guess since the Obama administration’s policy of strategic patience allowed North Korea to develop it’s weapon technology, and it had all these tests and it’s really advanced, just to put it in more perspective, where exactly is North Korea as a likely  nuclear threat? What can it do right now to its neighbors in Asia, and is it really true that they could potentially in very near future have something hit at the West Coast of the United States?

JT:      We did a series of reports last year that was a technical assessment of North Korea’s nuclear and missile programs. And based on what we know or what we estimate to be their capacity to make fissile materials or to produce fissile material for nuclear weapons, we estimate the baseline for their nuclear weapons arsenal to be somewhere between 12 to 15 nuclear weapons. They would have enough material to be able to make at least 12 to 15 nuclear weapons now. Given the capacity that they have to produce more – their five megawatt plutonium reactor, their uranium enrichment facility – we did projections that with the worst conditions for North Korea, making it most difficult for them for instance, that even by 2020 they could double the size of their arsenal.

By 2020 under mid-range with a little better conditions and getting their experimental light water reactor partially militarized as well, so they’d have more fissile materials, they would be able to produce maybe 50 nuclear weapons by 2020. Under the best conditions for them, if they have ample procurement, international procurement, and they have everything running in tip-top shape, at the high end we estimated they would have the potential to make about 100 nuclear weapons by 2020.
We see them really now in those ranges under those conditions that are laid out in the report. They’re somewhere on that mid to high range track. Then you add in the ballistic missile programs, and the fear is always for the how soon are they going to get an ICBM, an intercontinental ballistic missile. With the new engines that they tested last year and this year, [engines] that would be suitable for missiles and not rockets, space rockets, we’re talking that once they have an operational capacity, that they would be able actually to hit the East Coast of the United States, not just the West Coast. What we see that is probably given the designs that we’ve seen in the prototypes that they’ve displayed to us, we would suggest somewhere around 2020, somewhere in that range. Some estimates have that a little bit earlier. It really just depends.

But the reality is that they don’t need ICBMs to be a strategic threat because our strategic partners and strategic alliance partners are in Asia, so it’s South Korea and Japan. They definitely have missiles that can reach South Korea and Japan already. The big question is whether or not they have miniaturization capabilities. A lot of experts do believe they have the capability even if they haven’t been able to demonstrate it. Given the number of partners that they’ve worked with and the programs that those partners have as well and how long that they’ve been working on it. We do believe they do have the capability. It’s a huge threat, and it’s a growing threat the longer it takes to be able to have a real strategic dialogue with them.

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To listen to Part 2 of this two-part interview with Ms. Town, please click here.

 

China Attempts Economic Globalization Without Human Rights

By , March 14, 2017

In July 2015, the Chinese government detained close to 250 lawyers, paralegals and activist in a nationwide crackdown on China’s nascent civil rights movement.  The crackdown was unprecedented in its scope, with lawyers and activists simultaneously abducted from their homes and often in the dead of night.  It seemed to signal the nadir for China’s rights activists but, as China Human Rights Defenders‘ (“CHRD”) Annual Report reflects, it was far from rock bottom.  In 2016, the world witnessed the fallout from these arrests and a regime even more intent than ever on stamping out China’s civil rights movement.  But while that fallout continues domestically, internationally, China is seeking to play a more important role and reshape the current global order.  But the United States and western Europe – intent on pursuing more isolationist policies – ignores China’s domestic turmoil at its peril.

Map reflecting the national crackdown of Lawyers and support staff, July 2015 – October 2015 (courtesy of China Human Rights Lawyers Concern Group)

2016: Things Just Got More Serious – Rights Lawyers & Activists Charged with National Security Crimes

As CHRD’s 2016 Annual Report demonstrates, the Chinese government  views these civil rights activists’ work – even activities as seemingly innocuous as bringing a lawsuit to test China’s commitment to its own laws – as a threat to its power.  In 2016, these activists were not detained nor charged with the relatively minor crimes such as disturbing public order or unlawfully organizing a protest; instead, these arrested activist were charged with the more serious crimes that implicate national security issues and carry much heavier sentences.  Look at what happened two years prior.  In January 2014, Xu Zhiyong, an influential civil rights lawyer and activist, was convicted of  “gathering crowds to disturb public order” (Criminal Law (“CL”), Art. 296)and sentenced to a prison term that was considered extreme at the time: four years.  Fast forward to 2016 and  Zhou Shifeng, one of the alleged “ringleaders” of the lawyers detained in July 2015, was convicted of subversion of state power (CL, Art. 105) and sentenced to seven years in prison.

And Zhou is not the only one.  As CHRD portrays in a powerful chart in its Annual Report, in 2016, 16 rights activist were convicted of crimes relating to national security.  Compare this to only three in 2015.

Graphic courtesy of CHRD’s Annual Report

These more drastic charges of national security means that the police and prosecutors can all but abandon most due process rights enshrined in the amended Chinese Criminal Procedure Law.  As the CHRD Annual Report notes, a national security investigation allows the police to unilaterally hold a suspect under “residential surveillance in a designated location.”  With residential surveillance in a designated location, a location that is often unknown to the person’s family and lawyers, the police can legally hold a suspect for six months and, because the person is being investigated for a national security crime, the police can also lawfully deny access to an attorney.  (For a case analysis of the laws surrounding residential surveillance in a designated location, see Codifying Illegality? The Case of Jiang Tianyong).  Without access to a lawyer, contact with the outside world and likely subject to torture, CHRD’s 2016 Annual Report notes an uptick in a disturbing trend: televised forced “confessions” of rights activists before any trial.

2016: The Passage of Laws that Specifically Target Civil Society

China’s Foreign NGO Law is no lighthearted 1940s Hollywood movie.

But if these long prison sentences are not enough to squelch future rights activists, the Chinese government has adopted a series of laws to further restrict civil society.  China’s Foreign NGO Law, passed in 2016 and went into effect on January 1, 2017, is an attempt to cut civil rights activists from contact with international civil rights organizations, especially those that provide financial support.  In fact, as CHRD notes, in many of the recent prosecutions of  rights activists, accepting foreign funding has been used as evidence of the activists’ subversion of state power.  Foreign NGOs that the police believe engage in behavior that “endangers national security” are blacklisted.  Presumably any Chinese person who interacts with these blacklisted foreign NGOs will likely be suspected of national security violations.

Similarly, the Charity Law makes it near impossible for many Chinese civil rights organizations to raise money domestically if they are not officially registered with the Ministry of Civil Affairs.  Most likely those organic civil society groups that have been most effective but also have been viewed by the Chinese government – or more aptly the Chinese Communist Party – as a threat to its rule, will not receive permission to register with the Ministry of Civil Affairs.  As the stakes get higher, these organizations will likely cease to exist, eliminating an important channel that exposes societal discontent in an authoritarian regime.

(image courtesy of WCCF Tech)

But if those laws prove insufficient to completely eradicate any form of civil society not controlled by the government, in November 2016, the Chinese government passed its National Cyber Security Law which will provide for unprecedented surveillance of its citizens.  Under the Cyber Security Law, the government has the right to restrict the internet to protect national security and social public order (Art. 58).  Although implementation of the law has yet to be seen, presumably it can be used to shut down any online communication the Chinese government deems a security or public order threat. And as its recent prosecution on national security charges show, the Chinese government will likely view any efforts for civil rights activists to organize over social media to be a national security threat.

China’s Domestic Human Rights Conflicts With its Idea of “Economic Globalization”

President Xi at the 2017 World Economic Forum in Davos, Switzerland (photo courtesy of Forbes)

While CHRD’s Annual Report reflects a deteriorating human rights situation, China’s star on the global stage has only risen, especially as the United States has elected an isolationist president.  China’s most recent zenith came on January 17, 2017, when President Xi Jinping was granted the honor of delivering opening remarks at the Davos World Economic Forum, the world’s orgy to capitalism and globalization.  In his speech, Xi  called on the world to maintain its longstanding policies of “economic globalization,” implicitly distinguishing this concept from the liberal world order that created it.

For sure, Xi’s speech, calling on continued free trade, a policy that allowed China to quickly develop as an economic power, was a success at Davos.  Especially as the United States and some parts of Europe retreat in their commitment to the world order they helped to put in place after World War II.  But what Xi misses in his exclusive focus on “economic globalization” is that it does not exist in a vacuum.  Economic globalization is only one aspect of the current liberal world order.  Liberal political systems,  liberal economics, more inter-connectedness among people of different countries cannot be eliminated from the post-World War II world order that brought the free trade Xi celebrates.  All of these elements together is what has brought peace to much of the Western World and East Asia for close to 65 years, a peace that has been essential to China’s economic rise.

Setting up the post World War II order at Yalta in 1945

But Xi’s assault on Chinese civil society undermines these other essential elements  of the world order.  With the Chinese government’s constant attack on civil rights activists, this aspect of Chinese society lose the ability to impact China’s policy.  Some of the issue Xi raised in his Davos speech – environmental protection and income inequality – are issues that the Chinese government was forced to confront because of pressure from its domestic civil society. But the Chinese government now seeks to cut off that important channel  of protest.

But perhaps most dangerous is the Chinese government’s current vilification of anything foreign and its intent to keep its people separate from the rest of the world.  The peace that much of the West and East Asia has experienced can be traced to the interconnectedness among people.  But the Foreign NGO Law and the Chinese government’s persecution of activist who are connected to foreign organizations destroys that vital connection.  The National Cyber Security Law only further exacerbates the internationally-isolated internet that already exists in China, keeping Chinese netizens separate from their compatriots in other countries.

Captain America, time to go back in your box! (image courtesy of Marvel Comics)

As the United States and some of Western Europe recede from the liberal world order to deal with their own domestic political turmoil, there will be space for other countries to step into positions of greater leadership on the global stage.  China has demonstrated that it wants to.  But with its continued assault on civil society and its increased xenophobia, are we sure this is what we really want?

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China Human Rights Defenders’ 2016 Annual Report, entitled “They Target My Human Rights Work as a Crime,” can be found on their website here.

恭喜发财!Happy Year of the Rooster!

By , January 26, 2017

On Saturday, the world will awake to the crow of the rooster as most East Asian countries mark the beginning of a new year: the year of the rooster.  But this is not just any old rooster; instead, it is the year of the fire rooster and it is that fire rooster that is causing many Chinese Feng Shui masters to predict that 2017 will be a tumultuous year.

Asian lunar new year, also known as the Spring Festival in China, doesn’t just usher in a new animal in the 12 animal zodiac, it also brings forth a new element.  In addition to being associated with an animal, each year is also associated with one of the five astrologic elements (metal, wood, water, fire and earth).  For 2017, that element is fire.  But at the same time, each zodiac animal is independently associate with one of the five elements.  And a rooster is metal.

So, you have a metal animal in a fire year.  According to Feng Shui master Raymond Lo, this just produces all sorts of ugly as fire conquers metal, making for a destructive relationship and causing disharmony in the year to come.  For Lo, “it will not be surprising that there will be serious explosions, fire disaster and war in 2017.”  Noted Feng Shui master Joey Yap is also on the same wavelength, remarking that with a metal rooster in a fire year, 2017 will be “dominated by challenges, fierce competition and scarcity of resources.”  As if on cue, the PBS Newshour just ran a story that water may soon become unaffordable for one-third of Americans.

But just because the world might be going to pot doesn’t necessarily mean that your life will.  How you fare in the fire rooster year is dependent on how your birth sign deals with the rooster. Check out your personal horoscope here (note you may have to do a Bazi test to determine the strength of your birth year element.  You can do that here – note that birth date is entered day-month-year).

But it might not all be bad.  In past fire rooster years, good things have happened. In 1897, aspirin was invented; 1957 saw the production of West Side Story as well as the formation of band the Quarryman with John Lennon and Paul McCartney, essentially the predecessor to the Beatles.

For those having a baby in year of the rooster, expect a faithful, reliable yet ambitious child, quick to speak and express his opinions. But budget a lot for clothes.  Roosters are known to dress up and be meticulous about their appearance.  Elton John, Bette Midler, Kate Middleton – all roosters

Whatever Year of the Fire Rooster may bring, may you celebrate the new year with family, friends and good food!  To all our Chinese friends who celebrate the new year, 新年快乐 (sin knee-an k-why le)!

Happy Lunar New Year! (courtesy of the Int’l Business Times)

Codifying Illegality? The Case of Jiang Tianyong

By , January 20, 2017

Jiang Tianyong

For the Chinese state, human rights lawyer Jiang Tianyong (pronounced Gee-ang Tee-an Young) never seems to learn his lesson.  In 2009, after taking on a slew of politically sensitive cases such as representing Falun Gong practitioners and ethnic Tibetans prosecuted following the 2008 Tibet riots, the Beijing Bureau of Justice declined to renew Jiang’s lawyers license.

But lack of a law license did not stop Jiang from continuing to advocate for some of China’s most vulnerable. Instead, Jiang played an active role in ensuring that blind activist Chen Guangcheng‘s cruel house arrest remained in the public eye. Again the Chinese state came for Jiang.  In February 2011, after meeting with fellow advocates to discuss Chen Guangcheng’s case, Jiang was abducted by local police, beaten, psychologically tortured and held incommunicado for two months.  (For Jiang’s own description of his two month ordeal, click here). Jiang was released, but only after he promised to give up his advocacy work, stop associating with his current friends, cut off ties with foreigners and refrain from making comments on social media disparaging the Chinese Communist Party (CCP).

Jiang, on the left, with other human rights attorneys and advocates, protesting in Heilongjiang

But even in light of these guarantees, Jiang’s advocacy did not cease. Nor did the Chinese state’s reprisals, which became increasingly violent. In May 2012, Jiang attempted to visit Chen Guangcheng in a Beijing hospital.  After Jiang was denied entry, state security officers took him away, beat him and then placed him under surveillance. In 2013, when Jiang exposed Sichuan province’s largest “black jail,” a secret and unlawful detention center, he was again beaten by local police.  When, in 2014, Jiang went to Heilongjiang province to protest the detention of Falun Gong practitioners in a “legal education base,” Jiang was administratively detained for 15 days and subject to various beatings while in police custody.

Not surprisingly, Jiang, who has yet to give up his advocacy, is back on the Chinese government’s radar, this time with much more serious charges that could land this civil rights attorney in prison for life.  But there is one thing that should make this time different from Jiang’s prior detentions: the implementation of China’s new Criminal Procedure Law (“CPL”), amended in 2012.  When these amendments passed, they were herald as more protective of criminal suspects’ rights, much needed in a system with a 99.9% conviction rate. In October 2016, the Supreme People’s Court (“SPC”), Supreme People’s Procuratorate (“SPP”), and the Ministry of Public Security (“MPS”) doubled down on the 2012 amendments, issuing a joint opinion, reaffirming each agency’s commitment to a more fair criminal justice system.

But as Jiang’s case highlights, these are just  paper promises.  For Jiang, some of the provisions of the CPL are outright ignored.  But more dangerously, the Chinese police have placed Jiang under “residential surveillance at a designated location,” a form of detention that was added to the CPL with the 2012 amendment.  In the case of Jiang, this amendment is being used to keep him away from his lawyers and, with his precise whereabouts unknown to the outside world, in a situation where torture while in custody is highly likely.  So much for better protecting criminal suspects’ rights.

Why Is Jiang Under Residential Surveillance at a Designated Place?

On November 21, 2016, Jiang went missing.  According to the Legal Daily, Jiang was picked up by the Changsha police after using someone else’s identity card to purchase a train ticket home to Beijing. After being taken into custody, Jiang is now suspected of harboring state secrets, a crime that carries a three to seven year prison sentence depending how serious (Crim. Law Art. 282) and of providing those state secrets abroad, a crime that results in a sentence anywhere between five years to life depending on the severity (Crim. Law Art. 111).

However, according to an advocate close to the investigation, the police notice eventually issued to Jiang’s family also lists suspicion of inciting subversion of state power, a national security crime that the Chinese government has increasingly used to silence its civil rights lawyers.  That charge can carry a sentence of anywhere between three years to life (Crim. Law Art. 105), and where inciting subversion involves foreign entities, the punishment shall be heavier (Crim. Law Art. 106).

Jiang Tianyong’s wife, Jin Bianling, calling on the Chinese government to inform her of her husband’s whereabouts. Photo courtesy of Hong Kong Free Press

For close to a month, Jiang’s whereabouts were unknown; unknown to his lawyers and to his family.  And while this might seem illegal, China’s amended Criminal Procedure Law (“CPL”) forgoes many of the protections intended to make the system more fair when the crime of endangering national security is potentially involved. When a suspect is taken into custody, Article 83 of the CPL requires that the police inform the suspect’s family within 24 hours except for those crimes that endanger national security or involve terrorism.  Here, Jiang is suspected of subverting state power and passing state secrets abroad, two crimes that certainly endanger national security.  And as a result, the police did not inform Jiang’s family that he had been taken into custody.

In what is increasingly necessary when a civil rights lawyer lands in the exclusive control of the police and his whereabouts are unknown, Jiang’s family and friends resorted to the one tool they had left: pressuring the foreign press to repot that Jiang had gone missing.  With the story of Jiang’s abduction splashed across the international press, on December 16, 2016, the Chinese government, through the government-controlled Legal Daily newspaper informed the world that Jiang not only had been taken into custody but that he was placed in “residential surveillance in a designated place.”

Residential Surveillance in a Designated Place – likely not here.

One of the major amendments to the CPL included what China terms  a “compulsory measure” but in reality is a new form of detention: “residential surveillance” (Articles 72 through 77 of the amended CPL).  Residential surveillance might sound like a more mellow form of detention but when applied, it provides carte blanche for police to interrogate – and usually torture – a suspect without any interference from the outside world.

For any residential surveillance that occurs outside of the suspect’s hometown, or if the suspect is being investigated for 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 and while the family is required to be informed that their relative is under residential surveillance at a designated place (CPL, Art. 73), the family is not necessarily informed as to the precise location of the place.

And this is why Jiang shouldn’t be expecting any care packages in the near future from his family; they have no idea where he is.  In fact, according to a source close to the investigation, Jiang’s family first learned about his residential surveillance through the Legal Daily article on December 16, 15 days after he was placed in that form of detention.  True that the amended CPL  does a great job at severely circumscribing suspects rights once they are under residential surveillance, but the one thing that the Chinese government still gives these suspects is reuiring the  police to provide a written notice to the suspect’s family within 24 hours of placing the suspect under residential surveillance, regardless of the type of crime involved, national security or not. (CPL, Art. 73; see also Ministry of Public Security Implementing Regulations of the CPL Art. 109)  But here, according to an advocate close to Jiang’s case, Jiang’s family was not provided official notification until December 23, 2016, 22 days later.

Under the residential surveillance provisions of the amended CPL, the police are given so much power over the suspect, power that is largely illegal in other forms of detention and for other crimes. But even with this power, the police still feel the need to violate the clear language of CPL Article 73 and withhold notice to Jiang’s family.

Jiang Can Be Held for Up To Six Months and Without Access to a Lawyer

Empty chairs at empty tables – No lawyer for Jiang anytime soon

Jiang should also not be expecting any visits from a lawyer for the six months that residential surveillance at a designated place is permitted. (CPL, Art. 77)  And that’s another way that, by slapping a national security charge on a suspect, the Chinese government is able to circumscribe rights otherwise enshrined in the amended Criminal Procedure Law.

Because “residential surveillance in a designated place” usually 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)).  That permission must be granted unless the investigation would be obstructed or national secrets may be leaked (Ministry of Public Security Implementing Regulations of the CPL Art. 49)

Changsha police notice informing Jiang Tianyong’s lawyer that he cannot meet with Jiang due to crimes endangering national security (click for bigger image)

Although the regulations strongly favor meeting with a lawyer, in practice, civil rights attorneys held on charges that involve endangering national security are rarely given approval to meet their attorney.  Jiang is no exception.  According to an advocate with close ties to Jiang’s case, on December 27, 2016, Jiang’s lawyer requested permission to meet with his client.  On December 29, 2016, Changsha police denied this request, stating  that  “Jiang Tianyong was accused of crimes of endangering state security, and a meeting with lawyers would obstruct the investigation or possibly divulge state secrets.”

Codifying Illegality?

Jiang’s case makes clear that the 2012 CPL amendments have done little to curb the power of the police and that the Chinese government’s recent pronouncements that it needs to do better to protect suspects’ rights, is nothing more than window dressing. As long as the police unilaterally, and without due process, decide to investigate the suspect for crimes involving national security, all rights are essentially lost: the suspect can be held incommunicado for up to six months without access to a lawyer.  That kind of situation – with no one watching – all but guarantees torture and abuse.  Ironically, it is potential charges of endangering national security where these protections are needed most.

But, starting with the 2015 crackdown on lawyers and now continuing with Jiang Tianyong, the Chinese government has demonstrated that it will use the label of “endangering national security” to forgo the rights that it says it is committed to providing criminal suspects.  In late 2015 and early 2016, the Supreme People’s Procuratorate issued two sets of rules ostensibly to curb the police’s abuse of residential surveillance in a designated location.  But, as others have noted, the new rules seem to be designed more to ensure that everything looks good on paper than to guarantee criminal suspect’s rights and access to due process.  The case of Jiang Tianyong appears to prove that even those new regulations have had no effect.

As the rest of the world marks the seventh annual Day of the Endangered Lawyer next Tuesday, Jiang Tianyong, one of China’s great civil rights attorneys, languishes in an unknown place, likely subject to constant interrogation and torture, and without any access to a lawyer.  His rights deprived all because the Chinese police are able to claim that it is investigating him for endangering national security.  But the only thing that is being endangered by making a mockery of the protections of the amended Criminal Procedure Law is the actual rule of law.

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Thank you to China Law Translate for providing free of charge most of the translations of China’s laws used in this article. 

Trump’s Call with Taiwan: A Hard Rain’s A-gonna Fall?

By , January 2, 2017

U.S. President-elect Donald Trump (left) and Taiwanese President Tsai Ing-wen

Every four years, leaders from around the world call the newly-elected president of the United States, congratulating him on winning his country’s election.  Although a quaint custom, there is a lot of backroom dealing that goes on before the two leaders talk: staff has to ensure that it isn’t a prank, that translators are on hand if necessary, and that an agenda and time is appropriately set.

But one thing that never happens is a congratulatory phone call between a U.S. president-elect and the President of Taiwan.  That is because for the past 40 years, the U.S. has not recognized Taiwan as a separate country; to take an official phone call from the President of Taiwan signals a possible change in the United States’ “one-China policy,” potentially inciting the anger of the People’s Republic of China (“Mainland China,” “China” or “PRC”), and potentially undermining the tense status quo between Mainland China and Taiwan.

Hotline Bling! President-elect Trump on the phone (photo courtesy of CNN.com)

And that is why President-elect Donald Trump’s decision, on December 2, to accept a phone call from Tsai Ing-wen, the current president of Taiwan, was such a shock and front page news across the globe.  Although originally downplayed by his transition team, Trump doubled-down only a few days later where, in an interview with Fox News, he stated that he doesn’t “know why we have to be bound by a One-China policy unless we make a deal with China having to do with other things. . . .”

But if Trump is sincerely thinking that such a policy shift would benefit Taiwan or thinking that this is a good way to strong arm Mainland China on other issues, he will likely be proven dead wrong. Toying with China about Taiwan is not going to give the U.S. the upper hand in its relations with China. For almost 70 years, the Chinese Communist Party (CCP) has tied its legitimacy to the eventual reunification of Taiwan with the Mainland. For the U.S. to make overtures that it might abandon the one-China policy goes to the heart of the CCP’s rule.  Because of this, the CCP will not respond lightly – nor necessarily in accordance with what we think might be rational – to President-elect Trump’s public insinuations of a shift in the one-China policy.

The Creation and Evolution of the One-China Policy

1971 PRC Propaganda Poster: “We will definitely liberate Taiwan!”

The one-China policy is not the brain child of the United States.  Rather, it is a concept created in 1949, after the Chinese Civil War, by the leaderships of both Mainland China and Taiwan.  Up until 1949, Mainland China, of which Taiwan was a part, was called the Republic of China (“ROC”) and was ruled by the Kuo Mintang party (“KMT”), under the leadership of Chiang Kai-shek.  But on October 1, 1949, the CCP gained control of Mainland China, establishing the People’s Republic of China (“PRC”) and the KMT and its supporters fled to the island of Taiwan.

On Taiwan, Chiang Kai-shek and the KMT re-established the Republic of China. Both the CCP and the KMT agreed there was only one China, a China that includes the Mainland and Taiwan; both agreed that eventually the Mainland and Taiwan would be re-united. Where the two states differed was to which was the legitimate leader of this phantom one-China.  For the KMT, the ROC in Taiwan was the legitimate China with the mainland consisting of renegade provinces that would eventually be re-united under KMT rule.  For the CCP, the opposite held true: it was the PRC that was the legitimate government, Taiwan was a wayward province that would eventually be re-united with the mainland under CCP rule.

U.S. President Jimmy Carter and Chinese President Deng Xiaoping sign the accords where the US switches recognition to the PRC

Because of the CCP and KMT’s one-China concept, the rest of the world had to choose “one China” to recognize and establish diplomatic ties. Neither Taiwan nor the Mainland would allow a country to recognize both Chinas. Like most things during the Cold War, the choice was political.  Between 1949 and the early 1970s, almost all western, democratic countries recognized the ROC on Taiwan as China and most communist countries recognized the PRC on the mainland as legitimate China.

By the early 1970s, things began to change and in 1979, the United States switched its formal diplomatic recognition to the PRC.  As a result, the United States cut off all official diplomatic relations with Taiwan, closing its embassy in Taipei.

But only official diplomatic ties were severed.  The United States continued to maintain strong economic and military ties with Taiwan.  In fact, to show that the United States was not completely abandoning Taiwan, in 1979, Congress passed the Taiwan Relations Act.  The Act didn’t just create the American Institute in Taiwan (“AIT”), a non-profit organization, funded by the U.S. government and serving as a de facto embassy in Taipei, it also, by committing the U.S. to make available “defense articles and defense services,” tied U.S. military support to the island.  Since the passage of the Act, the United States has sold over $30 billion in defensive military arms to Taiwan; $14 billion of that has been under the Obama Administration.

For Mainland China, the One-China Policy Is Not A Joke

For Mainland China, the belief that Taiwan is an indispensable part of China and will eventually be re-united is sacrosanct. It is the line the CCP has been propagating to its people since 1949 and which the majority of the Chinese people believe. Enshrined in preamble to the PRC Constitution is the notion that Taiwan is an inalienable part of the PRC and will be re-united with the Mainland. Every time relations between Taiwan and another country gets too cozy, the CCP, through the state-run media, vehemently criticizes the offending nation for interfering in their internal affairs.

As China’s economy continues to lag, the CCP’s promise of constant economic property for its people is undermined, making its nationalist promises of a one-China even more necessary to fulfill. For the CCP, failure to fulfill that promise threatens its rule.  And the CCP has no interest in relinquishing its rule.

But for the Taiwanese people, the concept of one China has evolved especially as the KMT has lost its complete control of the island’s political system.  From 1949 to the early 1990s, Taiwan was a one-party country, with the KMT and its allegiance to the one-China policy, in control.  However, starting in the mid 1990s, a new political party emerged on Taiwan, the Democratic Progressive Party (“DPP”).  The DPP rejects the idea of a one-China.  It even rejects the idea of a two-China.  Instead, it maintains that Taiwan has become a separate country and culture, distinct from Mainland China.  For the DPP, there is only one China, the Mainland, and then there is Taiwan.

Taiwanese protesters who oppose the One China Policy

In 2000, when DPP candidate Chen Shui-bian won the presidency, the CCP grew fearful.  With the increased stature of the DPP in Taiwan and the fact that it can win national elections, China has built up its military to be capable of dealing with Taiwan if the country should ever publicly repudiate the one-China policy and change its laws to establish the independent country of Taiwan.  After Chen won a second term in 2004, the CCP decided to make its intentions more clear.  In 2005, the CCP passed a new law – the Anti-Secession Law – exclusively about the Taiwan situation.  While it continues to call for the peaceful reunification of the Mainland with Taiwan, Article 8 of the Anti-Secession Law makes it clear that China will use force if Taiwan declares its independence.  In 2015, the CCP passed the National Security Law, a sweeping law that seeks to expand and reinforce China’s international reach.  Article 11 mentions sovereignty over Taiwan.

While the Taiwanese people have elected a DPP president in 2000, 2004 and then again with current President Tsai in 2015, the Taiwanese repeatedly prefer to maintain the status quo in their relationship to the Mainland.

The Trump Call Is More Than A Phone Call

Taiwanese protesters supporting the One China Policy

It is within this powder keg – two entities armed to the teeth, one voting in an “independence party” and the other feeling insecure with its economic slowdown – that President-elect Trump decided to accept Taiwan President Tsai’s call, feigning ignorance that the call was somehow not monumental. Not surprisingly, China’s reaction was quick and angry.  But in ways, less so toward the U.S. than to Taiwan. In an op-ed in the state-run Global Times, the CCP reminded Taiwan that it would not hesitate to “punish” Taiwan and that Taiwan must pay the price if it breaks the status quo.

True the one-China policy is increasingly a rotten deal for Taiwan, especially as China seeks to use its might to squeeze Taiwan out of important international organizations and meetings, including meetings held recently by the U.N. and Interpol. And there might be reasons to re-calibrate some of the customs surrounding the one-China policy.  Currently, the Taiwan Travel Act, which would permit officials from the Taipei Economic and Cultural Representative Office (Taiwan’s de facto embassy in the U.S.) to conduct official business with the U.S. government, is pending before Congress. Additionally, last year Congress passed, and President Obama signed into law, a bill requiring the U.S. State Department to develop a strategy to obtain observer status for Taiwan at Interpol.  When President Tsai travels to Latin America this month, the Obama Administration has agreed, regardless of China’s protests, to grant her a “transit visa”, allowing her to meet with people while on U.S. soil. The U.S.’ continued advocacy to ensure Taiwan’s inclusion as an important international entity is not only a benefit to Taiwan but also a benefit to the rest of world as it permits an East Asian state with an democratically-elect government and vibrant civil society to serve as a counter-example to China.

But President-elect Trump’s December 2 call with President Tsai does not come off as a well thought out and effective means to bolster Taiwan’s place in the world.  Based on his follow-up interview with Fox News, the call appears to have been solely a strategy to anger Beijing in an attempt to work out a better trade deal for the U.S.  But Taiwan – and the one-China policy – is too essential of an issue for the CCP to simply bargain for as if this is a mere business deal.

If Trump continues to carelessly trifle with the one-China policy, it will be Taiwan and its people that will bear China’s initial wrath. But with the U.S.’ ostensible obligation under the Taiwan Relations Act to support Taiwan defensively, it could very well be American lives that are also at stake.

For a thoughtful rebuke of President-elect’s phone call with President Tsai, please read former American Institute in Taiwan senior official and China expert Richard Bush’s “Open Letter to Donald Trump on the One-China Policy”: https://www.brookings.edu/blog/order-from-chaos/2016/12/13/an-open-letter-to-donald-trump-on-the-one-china-policy/

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

By , October 17, 2016

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

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

Photo Courtesy of china.org.cn

Courtesy of china.org.cn

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

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

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

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

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

Images of Hong Kong bookseller Gui Minhai

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

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

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

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

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

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

By , July 12, 2016

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

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

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

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

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

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

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

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