Posts tagged: civil society

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

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

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

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

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

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

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

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

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

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

China’s Draft Foreign NGO Law’s Impact on a New World Order

It’s not only the South China Sea that is witnessing China’s differing interpretation of international law and its commitments under various treaties.  With its draft Foreign NGO Management Law, China is also turning up its nose to various international human rights treaties and bodies.  But while the United States sends surveillance planes to bait the Chinese into a skirmish over islands that are not clearly China’s and not clearly the Philippines or Vietnam’s, it remains noticeably silent on the draft Foreign NGO Management Law. (For an interesting take on how to solve the South China Seas issue without resorting to a U.S.-China conflict, see Prof. Jerome Cohen’s analysis here).

As Human Rights in China (HRIC) pointed out in a recent analysis, ignoring the draft Foreign NGO Law’s impact on China’s international human rights commitments comes at a dangerous cost.  China is a sitting member of the U.N.’s Human Rights Council, a Council that less than a year ago issued a resolution calling on its members to create an environment where civil society can flourish and admonishing those state’s that passed laws similar to what China has proposed in the current legislation.  China’s draft law will do precisely the opposite of creating a flourishing domestic NGO sphere; it will create a vacuum in funding and in knowledge for China’s smaller domestic NGOs that do important work benefiting some of China’s most vulnerable – those left behind by the country’s economic development.  The Chinese government has yet to state whether it intends to fill that void with money from its own coffers.  But probably not.

In its analysis, HRIC goes on to highlight China’s other violations of various human rights treaties.  But its most important impact is noting that these transgressions cannot be ignored.  China is not some poor player that struts and frets its hour upon the stage and then is heard no more.  It is the world’s second largest economy with influential positions in the United Nations.  What it does, and how it interprets its human rights commitments, will inevitably impact the rest of the world.  Countries that might not have clamped down on their own civil society for fear of international reprisals, now have cover to do so.  With the world’s silence, it becomes all the more apparent that international human rights treaties play second fiddle – if even that – to military interests over a bunch of rocks that might or might not contain large oil and natural gas reserves.

To read HRIC’s analysis – which is a must read – pleas click here.

One Love: How Foreign NGOs & Governments Should Respond to China’s Draft Foreign NGO Law

In Part 1 of this three-part series, we analyzed how the draft law will restrict foreign NGOs in China,  In Part 2, we examined how the spirit of the draft law is already being felt.  For Part 1, click here; for Part 2, click here

u2More than a week has passed since the Chinese government published its draft Foreign NGO Management Law.  But yet the world largely remains silent – no word publicly from the foreign NGO community in China, the foreign universities that do work in the Mainland or the foreign governments who often fund NGOs working there.  But in light of the draft law’s potentially disastrous effects, is silence really a good strategy?

 

 

We’re One, But We’re Not the Same?  Which Foreign NGOs Will Be Covered by the Draft Law

The draft Foreign NGO Management Law is anything but an example of clarity.  But there are two things we know for sure from the current version: foreign NGOs that have an office in China are covered and foreign NGOs without offices in China that seek to conduct activities there are also covered.  (Art. 6).  We also know that the ultimate authority over all foreign NGOs, whether setting up an office in China or merely conducting activities there, is the Public Security Bureau (PSB) (Arts. 7, 12, 20 & 47).

What is the future of U.S. universities in China?

What is the future of U.S. universities in China?

As China Law Translate notes in its Cheat Sheet for Understanding the Foreign NGO Law, what is a foreign NGO is defined expansively as any “not-for-profit, non-governmental social organization.”  (Art. 2).  Such a broad definition can “include universities, international professional associations and interest groups, artistic groups and athletic associations” in addition to what we view as traditional NGOs like the Red Cross.

Similarly, the term “activity” is left undefined, allowing it to encompass anything.  However, even those foreign NGOs without an office in China will be required to establish a relationship with a Chinese partner in order to obtain a temporary activity permit to perform any work in China.  (Arts. 18-20).  The entire process can take 60 days or more, depending how easy it is to establish a relationship with a Chinese partner.  (Art. 20 & 22).  Will Doctors Without Borders have to apply for a temporary activity permit before responding to a medical emergency in China?  Under the current, vague draft, yes.

Universities are also covered under the current draft law.  It is that fact that has alarmed many Chinese scholars who realize that academic exchanges will be negatively impacted by the current, vague draft.

Ultimately, under the proposed draft Foreign NGO Management Law these terms will all be defined by the PSB.  And changed as the PSB sees politically expedient.

Well We Hurt Each Other Then We Do it Again?  Universities and Foreign NGOs Need to Stand Together

divide_conquerAs Thomas Carothers and Saskia Brechenmacher highlight in their report Closing Space: Democracy and Human Rights Support Under Fire, governments seeking to limit foreign NGOs are “skillful at dividing and conquering the international aid community.” Is the Chinese government hoping that some foreign aid organizations will not oppose the draft law, eager to curry favor so that they can continue their work in China?

But with the amorphous definition of a foreign NGO under the draft law, that is a dangerous strategy for any foreign NGO with either offices in China or that just conducts activities there.  Almost all NGOs are covered under the current definition and that is why it is important that the foreign NGO community, including universities, stand as one in commenting and opposing the current draft.

Universities and major non-profits have an even greater responsibility to publicly comment on the proposed draft law.  In the current environment in China, not all foreign NGOs are equal.  The Rights Practice, which just had one of its staff members deported from China, likely does not have the same credibility before the current Chinese regime as the Gates Foundation, NRDC,  or Save the Children, which in January hosted President Xi Jinping at one of its spaces in Yunnan.  These are organizations that have long supported Chinese civil society actors  in benefiting the Chinese people.  It is important that these major NGOs continue to support civil society in its entirety, not just those sectors that the PSB presently approves.  Further, these major NGO’s do not know when their own work will imperil them with the PSB and thus, could find themselves subject to the harsh, vague provisions of the current draft Foreign NGO Management Law.  Five years ago, who would have thought that a group of individuals with hepatitis seeking to end discrimination would be considered a threat.  But that is where Yirenping finds itself today.

U.S. and European universities have the best footing to comment on the draft Foreign NGO Management Law. save the children These universities likely have thousands of academic exchanges – covering law, science, engineering, medicine – exchanges where the Chinese university likely derives tremendous benefit.  Even with the growing police state, the Chinese government probably does not want to risk losing even some of these beneficial relationships.

It is imperative that these major foreign NGOs and universities stand with those foreign NGOs that are the current target of the law and openly comment on the draft law.  Is the Gates Foundation really going to be kicked out of China?  Is UC Berkeley’s Engineering School?

You Give Me Nothing Now It’s All I Got: Where is the White House on All of This?

U.S. President Barack Obama (R) speaks as Brunei's Sultan and Prime Minister Hassanal Bolkiah (L) listens during the Trans-Pacific Partnership Leaders meeting at the Hale Koa Hotel during the APEC Summit in Honolulu, Hawaii, November 12, 2011. REUTERS/Larry Downing (UNITED STATES - Tags: POLITICS BUSINESS) - RTR2TXQO

REUTERS/Larry Downing

Last Friday, U.S. President Barack Obama recognized that if the we don’t write the rules, China will.  Unfortunately, for the non-profit world, Obama limited that rule-writing to trade issues and support for his Trans-Pacific Partnership.

It is time that the White House recognize that with China, there are more rules out there than those that directly govern trade.  The Obama Administration has allowed too many non-trade issues – U.S. journalist visas, now foreign NGOs – to receive scant attention as a U.S.-China policy matter.  With the U.S. abandoning these issues, China is writing the rules in these important areas, and these will be rules that other countries will copy.

But the Administration is not without recourse.  It too can submit comments on the draft law and should. When U.S. technology companies appeared to be negatively impacted by China’s draft Counter-Terrorism Law published late last year, Obama made his displeasure publicly known.  There is no reason to why he cannot do the same with the draft Foreign NGO Management Law. And comments from the Administration can no longer be relegated to a State Department spokesperson.  If there is anything to be learned from the handling of the U.S. journalist visa issue with the Chinese government, a State Department spokesperson is not going to cut it when dealing with the world’s second largest economy.  It wasn’t until Vice President Joseph Biden visited China in December 2013 and publicly raised the U.S. journalist visa hold-up, did China start taking the issue seriously.  Soon after, U.S. journalists’ visas were renewed.

China's pollution - coming to U.S. shores

China’s pollution – coming to U.S. shores

Although the Obama Administration should oppose the draft Foreign NGO Management Law on the grounds that its radical clampdown on civil society is anathema to the interest of the Chinese people, opposition can also be tied to trade.  Chinese domestic civil society groups often deal with the flipside of  free trade – environmental degradation, workplace justice, product safety.  And these are issues that are increasingly coming to our shores: air pollution from China now reaches California; unsafe products made in China are sold in the United States.  Chinese NGOs seek to enforce environmental regulation and product safety laws.  Although their goal is to protect the Chinese people from the harms of unregulated capitalism, a side benefit of Chinese NGOs’ success accrues to the American people.  California becomes cleaner and U.S. citizens fear Chinese goods less.  But if the draft Foreign NGO Management Law is passed in its current form, an important lifeline of Chinese civil society – the foreign NGO – will potentially be cut off. To ensure a balanced trade relationship with China, the Obama Administration must comment on the current draft law.  One opportunity is right around the corner: the annual U.S.-China Strategic and Economic Dialogue to be held this June in Washington, D.C..  The draft Foreign NGO Management Law, and the important role civil society plays in a free trade world should be on the agenda.

Finally, the increasingly unbridled power of the public security apparatus, evident in the draft Foreign NGO Management Law as well as the draft National Security Law, which was published only days after the NGO law, should frighten any entity that deals with China – be it a not-for-profit, a business or the U.S. government.  To ignore that development and to believe that the supremacy of the PSB is somehow limited to civil society issues is to do so at the peril of all of the United States’ interests in Asia, including business and military interests.

commentLike foreign NGOs and universities, the United States government has the opportunity to comment on the draft Foreign NGO Management Law and should do so.  Ironically, the comment period closes on June 4, 2015, the anniversary of the 1989 Tiananmen massacre.

Would you like to make your comment public on China Law & Policy?  Please email us at info@chinalawandpolicy.com with your agency’s comment and we will publish it (assuming it is related to the topic and is family-friendly).
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This concludes China Law & Policy’s three-part series on China’s draft Foreign NGO Management Law.  To read Part I where we analyzed how the draft law will restrict foreign NGOs in China, click here.  To read Part 2 where we examined how the spirit of the draft law is already being felt, click here. 

The Future is Already Present? How the Draft Foreign NGO Management Law Could Be Applied

For Part 1, which analyzes precisely how the law will restrict foreign NGOs in China, please click here

The Five Feminists - Clockwise from top left: Zheng Churan, Li Tingting, Wang Man, Wu Rongrong, and Wei Tingting

The Five Feminists – Clockwise from top left: Zheng Churan, Li Tingting, Wang Man, Wu Rongrong, and Wei Tingting

For anyone who still doubts that the draft Foreign NGO Management Law is about the Public Security’s Bureau’s ability to control foreign NGOs and their domestic partners, recent events – namely the detention of five feminist activists, the indictment of the head of the Chinese think tank, the Transition Institute, and the expulsion of foreign aid workers – should make clear that the draft law is primarily a security document.

The recent month-long detention of five female activists for planning a small, anti-sexual harassment demonstration was less about feminism than it was about the spirit of the draft Foreign NGO Management Law.  According to a person with knowledge of the March 2015 interrogations of the five women, the police’s questions centered on the five women’s work with various foreign NGOs as well as their work with Yirenping, a successful Chinese public health NGO that often cooperates with foreign NGOs.  The subject of the women’s planned demonstrations were a secondary issue for the police.

Similarly, the recent Recommendation for Prosecution of Guo Yushan and He Zhengjun, founders of the liberal think tank, the Transition Institute of Social and Economic Research, highlighted the Institute’s overseas funding and named various foreign NGOs (Heinrich Böll Stiftung (Germany), the Friedrich Naumann Stiftung (Germany), the Center for International Private Enterprise (U.S.), and Probe International (Canada)) as supporting the Institute’s “illegal business activities.”

The draft Foreign NGO Management Law, if passed in its current form, will make harassment of Chinese NGOs even easier than what we see now.  No longer will the police need to twist the criminal law to suit its objectives or will it be stymied by an earnest prosecutor’s office. Article 38 of the draft Foreign NGO Management Law forbids Chinese individuals from receiving foreign funds from an NGO without an office in China, much like the Transition Institute allegedly did.  Further, under Article 58(4), cooperating with an unregistered and unapproved foreign NGOs could lead to administrative detention of five days and a fine of 50,000 RMB (approximately $8,050).

Administrative detention is a form of punishment in China instituted at the behest of the local public security bureauadmin dete with no judicial oversight.[1]  It has long been criticized for violation of the arbitrary detention prohibition of the International Covenant on Civil and Political Rights (ICCPR) and, with little way to challenge it, is ripe for abuse including torture.  For those considered “personnel” of the foreign NGO, administrative detention could up to 10 days (Article 57) or 15 days (Article 59). With these expansive provisions, the public security bureaus will have a new tool to harass grassroots NGOs the police believe are “troublesome,” like it currently has deemed Yirenping.

Foreigners are not exempt from the draft law.  The administrative penalties make little distinction between foreigners and Chinese citizens in terms of detention and fines.  In addition, Article 62 gives the public security apparatus complete authority to deport a foreigner it deems in violation of the Foreign NGO Management Law.  This provision should not come as a surprise given the recent expulsion of two foreign NGO workers – Tim Millar of the Rights Practice and Jérémie Béja of China Development Brief – on visa technicalities.  Given the vagueness of the draft law, it will be very easy for the PSB to point to a provision of the Foreign NGO Management Law as a basis for deportation.

P1000689These provisions, which give expansive, unchecked powers to the PSB, will have a chilling effect on both foreign and domestic NGOs if they are allowed to remain in the final law.  Additionally, the inclusion of administrative detention puts China that much further from being able to ratify the ICCPR and be in-line with international standards.  But this draft has yet to become law and if there is a silver lining in all of this, it is the fact that the National People’s Congress (NPC) has opened the draft to comment, even comments from the object of the law itself: foreign NGOs.

To find out what foreign NGOs and foreign governments should be doing in light of the draft law, please click here to read Part 3. 

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[1] As China Law Translate notes in its informative Cheat Sheet for Understanding the Foreign NGO Management Law, “[t]here is a mechanism for court review and compensation for those wrongfully given administrative detention, but the remedy often follows punishment if at all.”

 

A Slow Death? China’s Draft Foreign NGO Management Law

What does the future hold for Chinese civil society?
What does the future hold for Chinese civil society?

Last Monday, the Chinese government finally published the second draft of the Foreign NGO Management Law, a law that could completely alter the way foreign NGOs operate in China.  With the proposed layers of government control and final oversight by the China’s Public Security Bureaus (“PSB”), NGO work will become extremely difficult if the law is enacted in its current form.  While foreign NGOs will feel the initial pinch, the true victims will be the Chinese people.

Currently in China, Chinese NGOs – grassroots groups that seek to alleviate poverty, eliminate discrimination and conduct other activities that benefit the average citizen – are largely funded by foreign NGOs, especially those groups whose issue is considered “too political.”  And even where foreign NGOs do not offer funding, they provide essential training, informal advice and moral support that helps grow China’s nascent civil society.  Unfortunately though, the current draft Foreign NGO Management Law will result in fewer foreign NGOs able to work in China and as a result, will set the Chinese people back in their ability to vindicate their own rights.

Why would the Chinese government seek to squash civil society at this juncture?  Many of the government’s own social reform agenda items – ending corruption, ending re-education through labor, reforming the hukou system – have come from these civil society groups. So why now would the Chinese government look to pass a law that could severely limit the growth of civil society?

Make No Mistake, This Law is Not About Greater Transparency

Foreign NGOs have largely remained unregulated in China and there is something to be said about a law

Foreign NGO Managment Law

Foreign NGO Management Law – a show of force by China’s PSB (Photo by TPG/Getty Images)

that adds greater transparency to the sector.  For groups that are lobbying government officials or seeking to change the law, knowing the source of funding – even if the funder does not meddle in the organizations daily affairs –  is something we deem important to know.  The Chinese government is no exception nor should it be.  Only months ago were Americans shocked to learn that foreign governments donate money to many U.S. think tanks, with the implication being that this source of funding impacts the organization’s research direction.  It is why many Americans despise the Citizens United decision – it hides who is donating to a politician, with the inference being that the money sets the politician’s agenda.

But transparency is not what this law is about.  If it was, foreign NGOs could easily continue to be regulated by the Ministry of Civil Affairs.  But the Ministry of Civil Affairs is nowhere to be found in the draft law itself.  Instead, it has largely been replaced by China’s public security apparatus.  It is the PSB that has ultimate say if the foreign NGO can establish a representative office or conduct temporary activities in China (see Art. 47).  The PSB can, on its own volition, conduct on-site inspections of the China office, question individuals involved with the “matter being investigated,” copy or “seal” documents and when the PSB determines necessary, “seal” the venue related to the “matters being investigated” (see Art. 49).  The law is silent on what would give the PSB cause to disrupt the work of a foreign NGO, allowing for potential harassment.

Increasing Strength of the Domestic Security Apparatus Within the Chinese Government

The role of the security apparatus should not come as a surprise.  Since April 2013, with the drafting of Document No. 9, an internal Chinese Communist Party (CCP) communiqué highlighting what the CCP leadership perceived at the greatest security threats to its rule, civil society has been one of “seven perils” to the CCP’s power.  In November 2013, Xi Jinping, China’s new president, announced the formation of a National Security Commission, answering directly to him and that would  handle both foreign and domestic security threats.  In April 2014, the National Security Commission held its first meeting.  A  “penetrating review of foreign NGOs” was on the agenda.  In December 2014, Yang Huanning, the Vice Minister of Public Security, introduced the initial draft Foreign NGO law to the Standing Committee of the National People’s Congress.  Although circulated among Chinese who would be effected, the first draft was never officially circulated to the foreign NGOs who would be impacted.

Public security’s larger role in society is likely its way to justify its ever ballooning budget.  In 2013, spending on domestic security outstripped the government’s spending on the People’s Liberation Army.  Since that milestone and the attention that fact received in the foreign press, the Chinese government no longer publishes the full domestic security figure.  But it likely still continues to rival the amount spent on foreign security.  The Ministry of Public Security, and now the National Security Commission, must find ways to justify that spending, and arguably part of that justification is the threat of “Western agents” acting through foreign NGOs.  The Foreign NGO Management Law embodies that paranoia.

Will Foreign NGOs Even Have the Resources to Follow the New Law?

The law itself does not shut down foreign NGOs in China or prevent foreign NGOs from hosting events in China.  Instead, through an onerous, supervisory structure, it makes getting anything done in China time-consuming and expensive.  Survival of the fittest will dictate which NGOs go and which stay.

Under the draft law, foreign NGOs that want to establish a representative office in China must first have the consent

Will this cooperation be allowed to continue?

Will this cooperation be allowed to continue?

of a Professional Supervisory Unit (PSU) (see Art. 11), presumably a government agency or government-approved organization in the foreign NGO’s field.  A legal-oriented foreign NGO would seek to establish a relationship with the Ministry of Justice as its PSU.  Only after it receives this consent can the foreign NGO apply for approval with the PSB (see Art. 12(6)).

But here is the rub, how many foreign NGOs can one government organization sponsor?  Would the Ministry of Justice establish a relationship with every legal-oriented foreign NGO seeking to establish an office or would it pick one, two, or maybe a handful?  It’s not their business to sponsor foreign NGOs and presumably, these government agencies have limited capacity to do so.  Even if a foreign NGO can partner with a quasi-government organization, there are still not enough of these to cover the number of foreign NGOs with offices in China.  By one estimate, there are close to 1,000 foreign NGOs in China.  As a result, some will inevitably be forced to leave China because of their failure to establish a relationship with a Chinese PSU.

But the relationship with the PSU does not end with registration.  Every year, the foreign NGO will have to submit two documents: (1) an activity plan that delineates the implementation details for the following year’s projects (see Art. 24) and (2) an annual work report which must include financial accounting and audit reports (see Art. 37).   For smaller foreign NGOs with limited resources, hiring someone to handle this paper work might not be the best use of its funding.  Even if a foreign NGO can establish a relationship with a Chinese PSU, at some point it will become debatable if it is even worth it economically.

And if that is enough to discourage a foreign NGO from establishing a representative office, the procedures are required to be repeated every five years. (see Art. 15).

Even Academic Exchanges are Not Exempt from This Law

Harvard University President Drew Faust Meets China's President Xi Jinping on a recent trip to China

Harvard University President Drew Faust Meets China’s President Xi Jinping on a recent trip to China

Those foreign NGOs that think working from abroad will be less onerous will have a rude awakening.  Under the draft law, they must also establish a relationship with a PSU before applying for a “temporary activity permit” from the public security bureau. (see Art. 20(3)).  Again, it will be interesting to see how many eligible PSUs will establish relationships with foreign NGOs.

As the law stands now, foreign universities are not exempt from the draft law.  What foreign NGO is covered by the law is unclear and the vagueness means that anything that is a not-for-profit abroad is covered by the law.  Even the state-run Global Times highlighted the negative impact the first draft of the law could have on academic exchanges.  It appears those issues remain in the second draft as well.

Where Will All The Funding Go?

Any argument that the draft Foreign NGO Management Law will lead to necessary transparency is belied by the rigorous regulations that will make it impossible for many foreign NGOs to legally do work in China.  For many that will mean a decision to leave China.  But, as Thomas Carothers and  Saskia Breechenmacher highlighted in their prescient report, Closing Space: Democracy and Human Rights Support Under Fire, some organizations committed to staying in a country with increasing harsh laws against foreign NGO funding, might implement a policy of “distancing.”  Distancing is essentially the opposite of transparency – trying to hide the source of funding through various offshore means.

But this avenue, with its greater risks to the foreign NGO and in particular to its partners in China, will be used by very few.  The ultimate result of the draft Foreign NGO Management Law is that a large number of grass-roots Chinese NGOs that are doing essential work in China will close.

To see how the spirit of the draft Foreign NGO Law is already being implemented,  for Part 2 of this three-part series, please click here

Heaven Help the Working Girl: The Impact of the Law on Women in China

By , January 28, 2015
Dr. Leta Hong Fincher, author of Leftover Women

Dr. Leta Hong Fincher, author of Leftover Women

Sure women might not demand that their names be on the deed even after giving money to purchase the house, but does that matter in the case of divorce in China?  As Dr. Leta Hong Fincher points out in  Leftover Women: The Resurgence of Gender Inequality in China, you bet that matters.  Changes in the law in 2011 – requiring physical proof of monetary contribution – has diminished women’s ability to claim their rightful part of the marital property in the case of divorce.  By why this change?  And why now?  Fincher expounds upon these questions in Part 2 of her interview with China Law & Policy and informs us why the rest of the world needs to wake up and  care about what is happening to women in China.

Read the transcript below of Part 2 of this two-part series or click the media player to listen to the podcast.

Length: 10:15 minutes

For Part 1 of this interview, please click here.

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EL: To switch gears a bit, you mention in your book some of the laws that impact this. You discuss the Supreme

Who gets the ugly couch in the case of divorce?

Who gets the ugly couch in the case of divorce?

[People’s] Court 2011 Interpretation of China’s Marriage Law. You basically argue that this Interpretation – which in cases of divorce only allocates property to those whose name is on the deed absent some exceptions – denies women even more rights in the property market. Can you give a little bit more background on this Interpretation? Also, do you have any background on what caused the Supreme People’s Court to issue this Interpretation?

LHF: Effectively the Marriage Law was originally a real cornerstone of the Communist Revolution and it gave women rights to property, the right to divorce, all sorts of new rights. Over the years actually women’s rights to common marital property were strengthened. But in 2011, with this new judicial interpretation, effectively if the woman is unable to prove through legal, financial receipts that she put in a certain amount of money toward buying the home, she’s not entitled to that home in the event of a divorce. None of the women that I interviewed kept any receipts of their financial contribution to the homes. Moreover, money is fungible. So there many ways in which women’s money – if they are working women working for pay – there are many ways in which their pay is supporting the household. The man’s money may be going directly to paying off the mortgage so there is a receipt for the man’s contribution to the home.

This law is really detrimental to women’s property rights. Now, what I have heard anecdotally – I wasn’t specifically researching why the court issued this new judicial interpretation – but what I’ve heard anecdotally from some lawyers is that the Court was deluged with letters from parents of men who wanted to protect their sons when they got married. They didn’t want the wives of their sons to have any share in the home because the parents tend to put up so much money to buying these homes for their own sons. Because of China’s rapidly rising divorce rate, I’ve also heard that the Court simply wanted to simplify divorce rulings; just get these cases through the court fast.

But it has been an incredibly controversial interpretation and a lot of women across China are very upset about it but there’s no organized movement to protest it because organizing and protesting is so difficult [in China].

gender_balanceEL: I guess in looking at the Supreme Peoples Court interpretation and how that has a negative impact on women, one of the things though that has happened recently is that China has had its first gender discrimination lawsuit in employment. That seems like a positive development in terms of womens rights. So how do you gel the fact that in a country where the court can reject cases, so they allowed obviously this case to be heard and even though it settled, they did allow it and its been published in the newspaper. How do you gel that kind of a development with the leftover women and the 2011 Marriage Law Interpretation?

LHF: Well, Chinese society is certainly not static and there are some legal success. That gender discrimination lawsuit was very important and it set an important precedent. But the fact is that there are so many other systemic ways in which women’s rights and gains are being reversed in the past two decades. One successful lawsuit here or there doesn’t fundamentally change the situation for the vast majority of women. Most notably there is still no specific law on domestic violence. Feminist lawyers and activist had been lobbying for over a decade to pass a law. And they’ve drafted the language, it’s all ready, but it simply hasn’t been passed.

EL: To go back to that because your book ends where you do discuss some individuals that are trying to change things a little bit, incrementally, but I have to admit it didnt seem like there was going to be a lot of change from them even though theyre brave in what they are doing. It sounds like, based on what you say you dont see a lot of change happening soon. Is that correct? Or if you do see any change, where do you see it coming from?

LHF: I certainly don’t see change coming from an organized nationwide women’s rights movement simply because

Will there be an organized and vocal  women's rights movement in China?

Will there be an organized and vocal women’s rights movement in China?

the political atmosphere is too severely oppressive for that to happen. But what does give me hope is that individual women can make choices in their own lives to avoid getting trapped in a very discriminatory system.

For example, there are women in their late 20s who have told me that they refuse to ever get married because marriage is a bad institution for women in China. They see this as an empowering choice. That doesn’t mean that they’re never going to have a lover or a boyfriend or maybe they’re lesbian. But there are individual ways in which women can act to empower themselves. But once they enter the institution of marriage it is very, very difficult. Marriage as an institution doesn’t protect women’s rights.

Contrary to the myths that are spread by the propaganda of the state media that single women in China are extremely miserable and lonely, I see the reverse. Single women are the ones who tend to do better. They don’t have husbands holding them back, telling them what to do; they have a lot more freedom. Women who are married, if there is any problem at all in the marriage, they’re extraordinarily vulnerable.

EL: And just in closing, youre book is a fascinating book and I do recommend for everybody to read, especially if they really want to understand China today and women in China today. But why do you think the rest of the world should be paying attention to this issue if at all?

"Working women are a great revolutionary force"

“Working women are a great revolutionary force”

LHF: Well the thing is that, let’s put aside the issue of fair treatment for women. Obviously women are being treated unfairly in China and are being discriminated against. But, as an economic issue, it’s very important. China’s obviously becoming increasingly a driver of global economic growth. The fact that women are basically being told by the government that they should stop working so hard and return to the home is going to end up having very damaging long-term economic consequences for China.

There’s already a declining labor force participation among women, particularly in the cities according to the latest census results; there’s a dramatically widening gender income gap. These are the most talented women in the country and if you’re telling the most talented female workers in China – it’s okay just leave the workforce – that’s going to hurt China’s economy. Of course if China’s economic development is hurt, if it is destabilizing, that’s going to affect the rest of the world. So it is something the rest of the world should be interested in.

EL: I want to thank you again for spending time with China Law & Policy. Just so our readers know, Leftover Women: The Resurgence of Gender Inequality in China, that can be purchased at amazon.com. Thank you again.

LHF: Thanks so much for having me.

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For Part 1 of this interview, please click here.

What’s Up with LGBT Rights in China?

By , November 15, 2012

Meg Davis, Executive Director of Asia Catalyst Introduces the Speakers
Photo by Robert Burnett, Jr.
www.rburnettjr.com

Last week, the day after the United States elected its first openly gay Senator and more states extended the right to marry to gay couples, Asia Catalyst and Fordham Law School’s Leitner Center co-hosted a fascinating talk about Lesbian, Gay, Bisexual and Transgender (LGBT) rights in China entitled “China’s Comrades.”

Featuring two on the ground LGBT activists – Sam Zhao (co-founder of China’s only lesbian magazine) and Dan Zhou (a Shanghai lawyer who has taken on some hard-hitting LGBT rights cases) – and John Balzano, a law professor and China expert who provided a more macro view of the movement, the talk broke down some common assumptions about China and the development of individual rights.

Zhou started his talk stating that this discussion was a “queer event” – although talks about Chinese legal development are common, Zhou noted that rarely if ever do these talks discuss LGBT rights development.  But while true, what was perhaps most queer about the talk was learning of the Chinese government’s response to the LGBT rights movement.  Usually the narrative at many of these rights development talks are the same – an authoritarian government trampling over individual rights, fearful that its monopoly on power will be destroyed by such nascent rights movements.

But for LGBT rights, the story seems to be different.  Zhao made a joke about how in

Sam Zhao, speaking at “China’s Comrades”
Photo by Robert Burnett, Jr.
www.rburnettjr.com

1996, a friend called her, excitedly telling her to return to Beijing because there was going to be a “big” lesbian party – eight lesbians were getting together.  Fast forward a little over a decade and in 2008, Zhao helped organize a two-day lesbian independent film festival where 600 lesbians attended.

What was interesting about Zhao’s story was the fact that the Chinese government even allowed the film festival, and not because it necessarily has an anti-gay bias.  Usually, when movements get too large, the Chinese government sees the movement – be it LGBT rights activists organizing a film festival, rural villagers decrying the taking of their lands, or factory workers protesting inhuman working conditions – as an alternative source of power and threat to its rule – events are broken up and email listserves are shut down.

But both Zhao and Zhou discussed the success they have had in creating an LGBT community throughout China, with much of this success a result of the internet.  Even Balzano noted that while it is true that when movements in China get too large, too overt or too public, the government seeks to crack down, the LGBT movement thus far has not faced the same kinds of pressure.

Audience listens during China’s Comrades
Photo by Robert Burnett, Jr.
www.rburnettjr.com

Zhou did point out that the LGBT rights movement is not completely immune.  In 2012, some LGBT rights bloggers held a successful conference in a southern city that many activists attended.  When they tried to re-create the event in Beijing, the government put a stop to it.  But according to Zhao, when the activists asked the Beijing government if the reason was because the event was about LGBT rights, the government said no.  According to the authorities, the basis for denying the activists their conference was because it bordered upon a “mass incident” which the law forbids.

But not everything is rosy for LGBT individuals in China.  While Balzano remarked that there is no law in China that is overtly discriminatory toward the community, the law is still used at times to harass LGBT individuals.  Zhao confirmed this, noting the difficulty in obtaining the proper government approvals for her lesbian film festival because many officials equated lesbian film with pornography.

Zhou also commented that while there is no law that governs sexual relations in a

Photo by Robert Burnett, Jr.
www.rburnettjr.com

private place, what is still up for debate, at least with some government officials and courts, is what is private.  There have been cases where a hotel room is considered public or a bedroom in an apartment that serves as a business office during the day.  Zhou also discussed the prosecution of one of his clients – a gay D.J. who was part of a party in a gay nightclub.  He was taken in for “lewd” behavior.

Finally, although only briefly touched upon in the talk but much more fully fleshed out in the readings that Asia Catalyst and the Leitner Center diligently selected (see “Resources” list below) is the societal pressure that all Chinese face but is more acute in the LGBT community – parental pressure for a heterosexual marriage and a grandchild.  All of the reading went into depth on this issue, noting that traditionally in China, homosexual conduct has been tolerated so long as that behavior is more “on the side” of a heterosexual marriage that produces children (in this regard, Balzano’s article made an important distinction between traditional acceptance of homosexual behavior and not necessarily homosexual identity).  This pressure and to some degree behavior is still very much present in the LGBT community in China (the Kam article interviewed a number of Shanghai lesbians to ascertain how they deal with the heterosexual marriage issue).

Photo by Robert Burnett, Jr.
www.rburnettjr.com

Although China’s LGBT community is still in greater need of protection, especially since vague laws are arbitrarily used to harass some individuals, its movement appears to be on more solid footing than other rights groups.  By the end of the talk, Zhou’s initial remark – that it is queer that discussions of LGBT rights rarely happen – made one wonder, why isn’t Western China watchers especially those who focus on and seek to promote civil society development, examining China’s LGBT movement more.  The LGBT rights movement is an outlier in the normal course of civil society development in China.  What is it that allows it right now to be a bit more immune to traditional government pressure?  And is there anything other movements can learn from the LGBT rights movement?  China’s Comrades proved that more a deeper understanding of the LGBT movement are necessary.

Resources:

John C. Balzano, Toward a Gay-Friendly China?  Legal Implications of Transition for Gays and Lesbians, 16 Tul. J. L. & Sexuality (2007).

Lucetta Kam, Opening up Marriage: Married Lalas in Shanghai, in As Normal as Possible: Negotiating Sexuality and Gender in Mainland China and Hong Kong (Yau China ed., 2010; Hong Kong University Press).

Holning Lau, Grounding Conversations on Sexuality and Asian Law, 44 U.C. Davis L. Rev. 773 (2011).

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If you are interested in learning more about Asia Catalyst, its events or how you can support this on-the-ground organization, please visit its website here.  For its Fifth Anniversary Campaign, Asia Catalyst’s Board of Directors has generously offered to match all individual gifts donated in 2012 (up to $8,000).  All donations are tax deductible.

 

 

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