Posts tagged: protest

The Tiananmen Square Sanctions – Needed Now More than Ever

The Protests on Tiananmen Square, Spring 1989

Twenty-nine years ago today, on June 4, 1989, the Chinese government ordered the unprovoked and brutal assault by the People’s Liberation Army on tens of thousands of unarmed civilians surrounding Tiananmen Square.  The exact number of people killed the night of June 3, 1989 into the early morning hours of June 4 is only known to the perpetrators of the massacre: the Chinese Communist Party (“CCP”). But whether it was a few hundred or a few thousand does not diminish the fact that peaceful protests were squashed with such a violent – and unnecessary – crackdown.

In the immediate aftermath, other countries had to figure out how to respond to a government that would massacre its own people.  In the United States, that response came from President George H.W. Bush who granted asylum to Chinese dissidents and ordered a plethora of sanctions against China, including suspension of U.S. foreign aid, arm sales, high-level government exchanges, export licenses for certain products and the linking of Most Favored Nation status to human rights. (see Congressional Research Services, China: Economic Sanctions (Aug. 22, 2016), pp. 1-3)  In the months that followed, Congress codified many of those sanctions including the suspension of export licenses for crime control and detection equipment. (see Public Law (“P.L.”) 101-246, § 902(a)(4))  Congress’ reasons for codifying these sanctions: the random arrest and detention of those suspected of participating in the Tiananmen Square protests (P.L. 101-246, § 901(a)(3)-(4)), continued surveillance on activists (P.L. 101-246, § 901(a)(5)), blocking foreign journalists from covering the events (P.L. 101-246, § 901(a)(7)), and continued and unlawful repression of human rights activists and activities (P.L. 101-246, § 901(a)(8)).

But as time progressed and the events of June 4, 1989 became a distant memory, many of the U.S.’ Tiananmen Square sanctions were waived or rendered obsolete. (China: Economic Sanctions, p. 3)  But one sanction that still remains in effect today is the suspension of export licenses to any U.S. company seeking to sell any equipment or instruments related to crime control and detection. (Id., pp. 3, 8; see also Office of the Chief Counsel, Bureau of Industry and Security of the U.S. Dep’t of Commerce, Legal Authority: Export Administration Regulations (Jan. 4, 2017) (“BIS Legal Authority”), Part III.7 (p. 106)).  Although the President can terminate the sanctions, he can only do so if he issues a report to Congress that provides one of two reasons – either that the Chinese government no longer perpetuates human rights violations or it is in the best interest of the United States to terminate the sanctions.  It does not appear that a U.S. president has ever issued such a report in regards to crime control sales, leaving the Tiananmen Square sanctions against of such equipment by U.S. companies to China very much in effect.

Chinese police with facial recognition sunglasses

As China uses technology more and more to suppress any form of spontaneous dissent and to constantly surveil its citizenry, the Tiananmen Square sanctions against the sale of crime control equipment to China seem particularly prescient.  But, unfortunately, the sanctions have rarely been enforced and U.S. companies skirt the sanctions with impunity.  In 2011, Cisco sold over 500,000 cameras to the city of Chongqing specifically to watch its citizens. Every year, U.S. technology and security companies enthusiastically market their goods at the China International Exhibition on Police Equipment, an annual trade show sponsored by the Ministry of Public Security.

And now it turns out that U.S. companies are actively participating in what can only be termed the most profound police state in human history: the mass surveillance, detention and abuse of Uighurs, a Muslim ethnic group in China’s western province of Xinjiang.  Cameras on every street are equipped with facial recognition; Uighurs are constantly stopped by police to check their social media accounts on their phones; over 500,000 Uighurs have been forced into detention without any trial, under the guise of “Political Education Centers;” iris scans and blood tests, in order to collect DNA, are randomly performed on Uighurs; the Han Chinese in Xinjiang are exempt from these abuses.

Unfortunately, U.S. company Thermo Fisher Scientific is one of the entities selling DNA technology to the Chinese Ministry of Public Security and various Public Security bureaus across China, including those in Xinjiang, according to a Human Rights Watch report.  Last month, the Congressional-Executive Commission on China (“CECC”) issued a letter to Wilbur Ross, the Secretary of Commerce, calling on him to investigate Thermo Fisher’s sales to China’s public security organs in light of the export sanctions and to report what other export licenses are being granted in violation of the law.  It does not appear that Secretary Ross has responded to the CECC’s inquiry, and if the history of the enforcement of the Tiananmen Square sanctions is any guide, he will not.

Chinese police in Xinjiang city of Kashgar

Many of the reasons for the passage of the Tiananmen Square sanctions almost 29 years ago – the repression of dissent, surveillance of peaceful protesters, the concealment of information, the violation of human rights – are very much alive and well in today’s China.  It is true that given China’s current status in the world, it will be much harder now to influence China’s domestic behavior than it was in 1989.  But that doesn’t mean that the United States should abandon its own laws, or the policies underlying those laws.  The government should not permit U.S companies to profit from the Chinese government’s creation of a Jim Crow society in Xinjiang.   To do so would be a disrespect to the many innocent lives lost 29 years ago today and to the valiant efforts of the U.S. government in the wake of the massacre to ensure that the U.S. does not play a role in human rights violations in China.

Just For Fun: Art Review – Ai Weiwei’s “According to What?”

Artist & Activist Ai Weiwei

Artist & Activist Ai Weiwei

For sure the best part of the Brooklyn Museum’s current exhibition of Ai Weiwei‘s (pronounced Eye Way-Way) retrospective – “According to What?” – is that it was able to obtain the six dioramas Ai made of his 81-day detention by Chinese authorities. The dioramas visually demonstrates the utter absurdity of the Chinese police state. This alone mandates that this exhibit not be missed.

But the second best part? That the Brooklyn Museum did not place Ai’s works in a vacuum. Instead, Ai’s exhibit is one of four fascinating exhibits concerning art and social activism. Any visit to Ai’s exhibit should be accompanied by a viewing of at least one of these other shows. If you get there before July 13, definitely check out “Witness: Art and Civil Rights in the Sixties” as a contrasting exhibit to Ai’s and as a powerful reminder of America’s own checkered past and unclear future concerning civil and human rights.

“According to What?” is not just a retrospective of Ai’s art but also an explanation of

Ai Photo of Police & Protestors at Washington Square Park, 1988

Ai Photo of Police & Protestors at Washington Square Park, 1988

his activism. One of the most revealing parts of the exhibition is Ai’s photographs from 1980s New York City, covering the decade when Ai lived in the city. Through Ai’s photographs, we see what he saw: constant protests in various city parks, face-to-face confrontation with the police, the beginnings of the AIDs crisis and its activism, the grit of 1980s New York City. When later on in the exhibit you watch a video of Ai challenging the Chinese police and demanding accountability, you can’t help but think back to the photos of bloody protesters in Tompkins Square Park and wonder if this is what influences Ai to be the agitator that he has become.

But Ai wasn’t always such an agitator. Unfortunately the exhibition gives only short shrift to his prior – and government-accepted – work. In overlooking this aspect of Ai’s career, the exhibit also fails to fully explain the spark that radicalized his art – the Sichuan earthquake. After an 8.0 magnitude earthquake rocked Sichuan province, Ai traveled to the region and saw the hundreds of shoddily-built schoolhouses that completely fell, killing the children in them. All the while surrounding government buildings remained standing. Seeing the thousands of children’s backpacks lying in the rubble and the fact that the government-controlled press was not acknowledging the “tofu-dreg construction,” Ai took matters into his own hands, undertaking a “Citizen’s Investigation” and uncovering the names of the 5,196 children killed.

The gallery with Ai's Sichuan earthqake remembrance art, including "Straight"

The gallery with Ai’s Sichuan earthqake remembrance art, including “Straight”

In “Sichuan Name List,” Ai lists the name, age, school and address of every single child killed.   It is the layout of this work – the 5,196 names line an entire wall of the gallery, from top of the ten foot wall to bottom – that forms the art work. Only in seeing this can one even begin to attempt to understand the enormity of the loss. The work is accompanied by “Remembrance” a three-and-a-half audio recording of strangers from around the world speaking the name of every single child that perished. Lying in the center of the gallery are the steel rebar from the shoddy construction – all of which have been straightened back to their original form.

Ai’s homage to the victims of the Sichuan earthquake is powerful. It is also the reason why Ai is so dangerous to the Chinese Communist Party (“CCP”).   To maintain its power, the CCP needs to retain its monopoly on Chinese history. Since the founding of the People’s Republic, it is the CCP that writes the country’s history; not its people. Tiananmen? Never happened. Mao Zedong? Only 10% wrong. The Cultural Revolution? Not a descent into madness, just a little blip on the radar screen. Here, Ai – who is an influential figure since his father, Ai Qing, was a well-known and respected poet – is attempting to write the people’s history. It’s that attempt that the CCP sees as an assault on its rule.

Never Lonely! Friendly little guards are there and everywhere!

Never Lonely! Friendly little guards are there and everywhere!

But if you think that is overreacting, then check out the six half-life size dioramas that Ai made of his 81 day detention. In 2011, Ai was detained by the public security bureau allegedly on tax fraud charges although the general consensus is that it was the government’s failed attempt to silence his activism. Ai designed each five-foot tall diorama with a window where the viewer can look in and see Ai in his room. In the first room, things don’t look so bad. It looks more like a hotel room than a jail cell. But as you progress and look into each scene, you begin to realize the absurdity of what is going on here. Two guards are with Ai at every moment, watching him. As he eats, as he sleeps, even when he showers. The guards are there, standing over him, watching his every move. Is this jolly, chubby man really that dangerous?

With so much of Ai’s art involving his interaction with the authorities, “According to What?” raises the question – has social activism become Ai’s art? And is this good for either: should activism merely be theater; should art be so much protest? By situating “According to What?” with other activist art, the Brooklyn Museum has largely answered those questions – art does not exist in a vacuum nor should we want it to.

Philip Guston's City Limits (1969), part of BK Museum's Witness Exhibit

Philip Guston’s City Limits (1969), part of BK Museum’s Witness Exhibit

For Americans, viewing “Witness: Art and Civil Rights in the Sixties” will demonstrate that art and activism go hand-and-hand and that we can and should respect the artist for both. It will also serve as an emotional reminder of our own dirty little past. But in the end, it will make you wonder – while these tactics worked in 1960s America, a largely democratic society, will they also work in Ai’s authoritarian China? One hopes that Ai’s art is not in vain, but, as China’s new regime even more violently cracks down on any purported challenge to its rule, only the future can tell.

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Witness: Art and Civil Rights in the Sixties” is only on view at the Brooklyn Museum until July 13, 2014. “According to What?” is on view until August 10, 2014. This will be the exhibit’s final stop on its international tour. While entrance to the Brooklyn Museum is a suggested donation of $12, “According to What?” is a required $15 ticket (which includes price of general admission). Note that the dioramas of Ai’s detention are on the first floor before purchasing tickets and thus can be viewed for free.

Book Review: Ian Buruma’s Bad Elements – Chinese Rebels From LA to Beijing

By , October 17, 2013

You can’t really be a dissident in an authoritarian regime without being a difficult character. These are individuals who for some reason – call it bravery, call it madness, call it no other choice – feel the need to speak out knowing, either consciously or not, that their cause is likely futile and the full force of the authoritarian regime will come down on them like a ton of bricks.  As a result, their life often becomes their cause.  What happens to these characters when things get so bad that they are forced to flee their country?  What happens to their causes?

These questions rose again this past June when Chen Guangcheng, the blind dissident who escaped his illegal house detention in 2012 and made it to the U.S., caused a stir in the media about his departure from NYU.   But answering these questions – or at least attempting to – isn’t untraveled ground as one China scholar pointed out in the wake of Chen’s NYU exodus.  Back in 2001, Ian Buruma, a Dutch China-hand and journalist, published Bad Elements: Chinese Rebels from Los Angeles to Beijing and this past summer seemed an appropriate time to pick up the book and read it.

Buruma’s Bad Elements begins by looking at the Chinese dissidents – starting with China’s 1978 Democracy Wall Movement through the 1989

Chai Ling during the Tiananmen Protests

Chai Ling during the Tiananmen Protests

Tiananmen student activists – living a new life in the United States.  His survey from Wei Jingsheng to Wang Dan and Chai Ling shows a group of people out of sorts in their adopted land.  Without access to China, most have given up their cause.  Chai Ling, the famous female student leader of the Tiananmen protests is now a successful businesswoman with a Harvard Business School MBA.  Same is true of her former Tiananmen colleague Li Lu.  He now runs an investment company in New York.  Many of the other student leaders just seem lost and lonely.

The pre-Tiananmen/post-Cultural Revolution Chinese exiled in America do not fare any better.  Separated from their cause, most have failed to figure out how to remain relevant to the mission back home.  Fang Lizhi‘s wife, Li Shuxian, probably expressed the exiled dissident’s predicament best when she told Buruma “[n]ow I am finally free to talk, but there is no one for me to talk to.”  Even amongst the exiled dissident community itself, there is little conversation for as Buruma recounts, the splits within the community are cavernous with some dissidents refusing to be in the same room as others.  One would think the bonds within the community would be stronger, but as Buruma insightfully details, the personality traits that allows one to become a dissident are not those that allow them to create strong bonds with others.  But even in honestly observing the exiled dissidents, Buruma never loses respect for them, reminding the reader that these people had the courage to speak up and that their suffering is likely incomprehensible to anyone else.  These individuals carry the battle scars of seeking democracy in a dictatorship and Buruma is always cognizant of this fact.

Modern day Singapore; what Buruma refers to as "Disneyland with capital punishment"

Modern day Singapore; what Buruma refers to as “Disneyland with capital punishment”

But Bad Elements most fascinating aspect is Buruma’s attempt to breakdown “the Chinese Myth,” a key tenant of which is that the Chinese are just not made for or currently prepared for democracy; some form of an authoritarian rule is necessary.

Buruma begins this journey to deconstruct this myth in Singapore, a Chinese-based society where the post-colonial government took and maintained power in the most vicious of ways.  For those who have never been to Singapore or know little of the details of its history, this chapter is a must read.  Singapore is a scary society that holds tight to the belief that this type of rule is necessary in a “Confucian” and “Asian-valued” society.  But even with such pressure to conform and unfathomable methods of torture, there are still those in Singapore who choose to dissent.  Their very existence in Singapore demonstrates that the idea that democracy is too alien a notion for the Chinese is nonsense.

The experiences of Taiwan and Hong Kong further demonstrates that the Chinese can have democracy, with Taiwan offering the best hope that democracy can succeed in a Chinese society.  While Taiwanese democracy is often punctuated with physical assaults within parliament, as Buruma shows, after a period of abusive rule, it has become a rather thriving and real democracy.  Hong Kong is similar except that its reversion back to the Mainland and the change in leadership to more Mainland, business-focused executives threatens that democracy.  In fact, in Hong Kong, the Chinese myth is beginning to reassert itself, with some prominent leaders stating that perhaps the Chinese people cannot handle full democracy.

Buruma ends his journey of destroying the Chinese myth by visiting the Mainland where shockingly, the belief in the need for a strong

Beijing cab driver looking for democracy

Beijing cab driver looking for democracy

government is not just prevalent amongst China’s intellectuals (who usually are the dissidents), but is a strongly held.  It is Buruma’s cab driver who most cogently expresses the desire for democracy, demonstrating that while the intellectual class believes China’s masses are not ready for democracy, those masses sure think they are.

Although Bad Elements is 12 years old, it is certainly not dated and raises issues that are still pertinent.  Twelve years later, the Chinese Myth is still very much alive and not just among the Chinese; at times Western businesses prefer to turn a blind eye to the Chinese government’s choice of leadership and instead are easily lulled by the belief of the Chinese Myth.

Buruma believes that democracy is inevitable in China and that it must be brought more quickly than the current (as of 2001) intellectuals appear to want.  Even as early as 2001, the Mainland intellectuals, perhaps reminded of what happened in Tiananmen Square, sought to more gradually change China.

But one wonders, who is Buruma – or any non-Chinese – to say that this approach is wrong?  Only the Chinese themselves can find their path.

Xu Zhiyong, a more gradual reformer finds himself in and out of jail

Xu Zhiyong, a more gradual reformer finds himself in and out of jail

This theory of gradual reform within the system has only gotten stronger in the past twelve years, with current activists like Xu Zhiyong seeking to work within the system.

Unfortunately, the past four years have shown that perhaps Buruma was right to feel frustrated – the Chinese government has also crackdown

harshly on this set of reform-minded activists.  Buruma’s suggestion twelve years ago – that the “social stability” which the Chinese government and the intellectuals desire – can never be achieved where a people is ruled by an authoritarian regime – rings more true today than ever before.

Another prescient aspect of Bad Elements is Buruma’s observation that many of the dissidents, those in the US, Singapore, Tawain, Hong Kong and even China, are Christians.  This is an occurrence that has only increased over time.  Most of today’s Mainland activist profess the Christian faith.  Buruma speculates that Christianity is prevalent among Chinese dissidents as it replaces one religion – Maoism and the Party – with another.  It’s unclear if that is the reason or if the reason is more because many of the dissidents see Christian values (at least the ones that make it to China) are akin to the rights and democracy which they seek.

Chai Ling today (to the left), working with her group "All Girls Allowed"

Chai Ling today (to the left), working with her group “All Girls Allowed”

But there are aspects of Bad Elements that do show their age, mostly about the exile community.  Although slightly dismissive of Chai Ling in Bad Elements, she has re-engaged with China.  In 2010, Chai founded “All Girls Allowed,” a Christian-influenced non-profit that seeks to eliminate the injustices associated with the one-child policy in China.  Similarly, Xiao Qiang who is give short shrift in the book, has become an important force in communicating the stories of dissent from the Mainland through his website China Digital Times.  Xiao remains extremely relevant to China’s reform movement.  And that’s the aspect of the book that Buruma could not have fathomed at the time – the rise of the internet.  The internet certainly shapes the role of today’s exile differently than those of years past and perhaps allows the dissident community to continue their connections with activists on the Mainland.

Rating: ★★★½☆ — as a result of certain aspects of the book being outdated (which is too be expected from a 12 year old book about contemporary China)

Bad Elements: Chinese Rebels from Los Angeles to Beijing, by Ian Buruma (Vintage Books 2001), 341 pages.

Rachel Stern on Environmental Litigation in China – Success or Failure?

By , August 12, 2013

China Law & Policy continues its interview with UC Berkley professor and noted China environmental law expert Rachel Stern.  In Part 1 of the

Prof. Rachel Stern

Prof. Rachel Stern

interview, Prof. Stern discussed what an environmental movement looks like in an authoritarian regime.

Here in Part 2, Prof. Stern gets to the heart of the matter – how are China’s environmental laws put into practice?  What does environmental litigation look like in China?  What are the advancements its made and what are the challenges it still presently faces?  Prof. Stern addresses all of these issues and then also looks at the positive developments in administrative litigation in the environmental field.

Click here to listen to the audio of Part 2 of the interview with UC Professor Rachel Stern
Length: 20 minutes (audio will open in a separate browser)

To listen to or read Part 1 of this interview, click here.

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EL:  So you do have these [environmental] laws and presumably with these laws you would see an increase in environmental litigation.  Is that what your studies have shown?  Has there been an increase in citizen litigation of environmental claims in China?  What is the status of that litigation?

RS:  I wish we had better data on that.  [Laughing].  That would be really nice if you were writing a book on environmental litigation in China.

All research is limited by the statistics the Chinese government chooses to release.  The data on the numbers of environmental lawsuits have been really piecemeal.  So the best data I have is from a Supreme People’s Court work report from 2011.  They announced that there were about 12,000 pollution compensation lawsuits the year before – so that would be 2010.  The volume of litigation going through the legal system in general is about 4.1 million civil cases a year.  So we have a tiny fraction.  So it would be very small but that is true in all legal systems.  Environmental lawsuits are always a pretty small portion of what is going on.

what_a_stink_toxic_dischargeEL:  So in the United States, so do you know what percentage are environmental cases?

RS:  I don’t know the exact percent but the numbers would be roughly comparable.  Courts are mostly busy handling divorce, family matters, the kind of stuff that is much more every day.  I’m pretty sure that the number of environmental lawsuits [in China] have been rising because there is clear data that the number of environmental disputes have been rising.  So if disputes are going up, my expectations is that lawsuits are going up as well.

EL:  And in terms of these lawsuits – keeping in mind that a lot of people who read this blog are American students of law or students of American law – what do these cases look like?  Are they largely angry citizens bringing these suits on their own as pro se?  What role do non-profits play?  Is there a Sierra Club or an NRDC in China?  And how do these cases play out in the courts in China?

RS:  Most of the cases are what lawyers call tort cases.  The cases that I am looking at are civil [tort] cases.

EL:  A tort case is basically a case where someone has been injured?

RS:  Yes, exactly.  So they involve monetary compensation for damages.  The archetypical case that  always think about is: there is a chemical factory upstream and there is a guy farming fish downstream and there is a chemical spill at the chemical factory and the fish farmer wakes up and all of his fish are dead and he wants 10,000 renminbi [Chinese currency] from the chemical factory to pay for the dead fish.  That’s where the average case is in the Chinese legal system.  It’s not about environmental rights per se, it’s about money, it’s about monetary damages, and it’s not necessarily about health.

When I was writing this book in the end of the first decade of the 2000s, lawyers were trying to get money for health claims for pollution victims and that was very much on the frontier.  If you could get money for a cancer victim and link that case to pollution, that was a huge victory.  That was not the mainstream case that was going through the legal system at all.

EL:  And is that more of a result of evidence issues to show that the — because I mean I know even in the United States, if you see Erin

Where is China's Erin Brockovich?

Where is China’s Erin Brockovich?

Brockovich – which you mention in your book which I thought was funny – proving that people’s cancer is a result of a certain chemical, is hard even in the United States.  Is that hard to show even more in China where presumably you wouldn’t have the resources because lawyers aren’t paid maybe in the same way.

RS:  Yeah, I think there are two things going on.  I think the issue you are talking about is causation which is really hard.  This is so hard in all environmental law suits; it doesn’t matter if they are happening in China or Zambia or New Jersey – that link is always super hard.  And it’s really hard for Chinese judges to figure it out.  Here in the US we would have competing experts dueling it out over what the ground water patterns show.  In China what they tend to do is they tend to outsource this issue of causation to an appraisal agency.  So judges impulse is usually to find a neutral third party to write something up.

One of the big issues that came out of my field work was that the quality of these appraisals are all over the place.  Sometimes they are done really conscientiously by people with a really strong background in environmental science and they’re really good.  And sometimes they’re really awful and done by people who have no idea what they’re talking about.  There is not a lot of quality control.

So that’s the critical piece of evidence when it exists in these cases and one of the steps forward for Chinese environmental litigation to work better is that you have to  control of the quality of these appraisals better than has been done in the past.

EL:  In terms environmental cases getting into the court system – I know a lot of people talk about how the courts don’t have to take a case…

RS:  No, they sure don’t.

EL:  How successful are environmental cases in making it past that first hurdle?

RS:  It’s really hard.  I think that’s actually the biggest stumbling block is getting the case into court and convincing judges at the case acceptance

Getting your case "accepted" by the court is the first hurdle to overcome

Getting your case “accepted” by the court is the first hurdle to overcome

division of the court [li’an ting -立案庭] that this is a good way to handle the dispute.  That’s the moment in which the case is likely to be turned away.  The best data I have suggests that if you get your case accepted by the court as a plaintiff in one of these environmental lawsuits, plaintiffs will get something, not everything they want, maybe it’s just one renminbi, but they will get something 50% of the time.  So the big stumbling block is getting it in the door and convincing judges that this is a case that they can deal with, that it is within the court’s jurisdiction and realm of possibility.

EL:  You have the monetary relief, so you have to show damages for that guy whose fish are dead because of chemicals in the water.  Do you ever see cases where they ask for injunctive relief, where they ask for the industry to stop polluting to shut down the industry or anything like that. 

RS:  So a very typical sentence in an environmental decision will call on the polluter to stop harm.  It is not an injunction but that’s usually part of the decision.  The problem of course is enforcement.  It’s very rare for the courts to follow up and make sure that the decision is actually enforced.

So one of the more exciting things that have been happening is that some of the environmental courts have been working with the environmental protection bureau to establish monitoring of decisions after the fact to make sure there’s a cleanup plan and that it actually happens.  But again that is really the frontier of where we hope environmental law is going as opposed to the mainstream of where it is right this second.

EL:  I guess given all of that do you think there are successful environmental cases in China.  You had talked in one of your chapters in the book about the Pingnan case where the villagers won on the law.  They ostensibly won – the company had to clean up the pollution and pay a fine.  But ultimately the fine amounted to such a small amount – $63 USD per person.

Farmer in Pingnan

Farmer in Pingnan

RS:  I know, isn’t that a depressing story?

EL:  It was very depressing.

RS:  Especially because this was the most celebrated environmental lawsuit of 2006.  So this is trumpeted as a major victory and then it is kind of the glass is half empty.  It’s not that much.

EL:  In your mind and I guess in some of the people who are on the forefront of the environmental movement in China and the judges in the environmental courts and the governmental agencies that deal with it, how do they define victory?  Do they really see this [the Pingnan case] as a victory?  Do they understand that…

RS:  They would definitely see Pingnan as a victory.  Not so much because of what the villagers got but because of the media attention the story got and the way in which it called attention to the issue and the way in which it re-framed the debate.

So the media attention itself is a victory regardless of what people actually get.  The articles that came out of the Pingnan lawsuit are questioning the old economic-growth-at-all-costs model that has been on for so long.  So in so far as the real story is about raising environmental consciousness and creating groundwork for the environmental movement, any lawsuit that gets national attention is a success.

But it’s hard to know.  I would sometimes in my interviews, I would ask lawyers “can you tell me about a successful lawsuit?” And they would come back with a story and the punch line of the successful lawsuit for them was that the factory closed up and moved away.  So then my next question is “where did it go?”  The answer is often that it went to this poorer part of the province.  So is that a real victory?  It is for people who live in that place, but it raises real concerns about environmental justice and whether or not these lawsuits, if you take the nation as the unit of analysis, whether or not they are really doing that much to improve environmental quality.  This is such a tough field, you have to celebrate every little success even it doesn’t add up to success on the level of Brown v. the Board of Education.

ELWhen that [Brown] came down wasn’t enforced in a lot of places, it was just enforced in that one place and then the Supreme Court

Media attention is important in environmental litigation

Media attention is important in environmental litigation

decided to wait to integrate.  So I guess it is kind of fair to see Pingnan as a victory because it did get media attention and did raise consciousness but then it was just a little bit of money for the people that were harmed.

RS:  I know.  I find again – just speaking in general – the plaintiffs tend to be pretty happy if they get any part of what they wanted.  They really feel like the deck is stacked against them in these type of cases and if they get a fair hearing and if they get a portion of what they wanted, they tend to think that that that’s a success.

EL:  What do you think are the major roadblocks to what we would define as success where the plaintiff is made more whole than they are being made right now?  What are the major roadblocks you are seeing in environmental litigation in China?

RS:  Well we already mentioned two of the really big ones – one is getting the case into court and convincing judges that this is part of their responsibility to hear these kinds of cases and [second is] improving the quality of appraisals so that they have a real scientific basis and judges can really rely on them.  I think that those two reforms would go a long way toward improving the quality of justice in these kind of cases.

The third one is enforcement of decisions.  Putting teeth in the idea that you have to clean up after a decision as opposed to basically pay off plaintiffs with a little bit of money.  It would be the third thing.  And I think for that really to work there would need to be cooperation between the court and the environmental protection bureau to a much a deeper degree.

EL:  What are you seeing right now between the court and the environmental protection bureaus?

RS:  Usually nothing.

EL: In China is it that when the court orders for the plant to stop polluting the water is it then the responsibility of the local environmental protection bureau [EPB]to enforce that?

pollution beijingRS:  Right now it is kind of no one’s responsibility.  It is kind of in a gray zone where nobody is going to be held to task for it, nobody is going to follow up, everybody knows that.  One of the criticisms of China is that there is not enough judicial independence, the courts are too likely to communicate with other branches of government.  The flip side is that you could really take advantage of that.  If the courts were communicating with the EPB and making this cleanup part of the EPB’s mandate, that could really make a big difference.  Of course the problem is that the environmental protection bureaus are chronically underfunded and understaffed so that probably needs to be addressed.  But at least the possibility is there.

EL:  When I was reading your book, definitely these are problems in environmental litigation in China but honestly a lot of this seems to be problems in a lot of citizens’ rights cases – disability rights things like that.  Do you think this is also a problem in other areas?

RS:  Totally.  Some of its a little bit specific like the issues of the appraisals, that’s a little special  But problems getting cases accepted, problems getting decisions enforced, this is totally endemic to the whole legal system.

EL:  Well, that’s positive, at least it is not focused on environmental issues. [Laughter]

RS:  No, it is not personal.

EL:  The other thing in reading your book, I think a lot of people outside of China because there has been so much press about China passing

EPB at work, measuring emissions

EPB at work, measuring emissions

so many laws one environmental protection, that in the Western press there is this talk of an environmental movement in China, you see protests.  So you think oh, this is a hotbed of activity – stuff is really happening here.  But then I read your book and I am like oh, no, not really.  But when I did read your book, one of the hopeful things I did read it was there were parts where you talked about the success of administrative litigation in China.  What’s been happening with administrative litigation in China in the environmental sphere and can you just describe more what that looks like vis-à-vis civil litigation.

RS:  So the most hopeful thing that I found was not so much in terms of civil litigation.  I need to  give a shout out to Zhang Xuehua whose research this really draws on.  What she found is that there is a part of the environmental litigation law that’s not that well know which is what call “non-litigation administrative execution cases.”  I always have to look at my notes because I never get that quite right.  But that’s what they are called and what it means – to put it in English – is that under the administrative litigation law, government agencies can bring lawsuits in court when their administrative decisions are not being followed.

What she found in Hubei province was that sometimes the environmental protection bureau brings these lawsuits in court to sue polluters who are not paying their fines and to get the court’s moral authority and help calling these polluters to task.  So you can get this sort of synergistic relationship and alliance that can emerge between the EPB and courts.  So between two parts of the Chinese government that are traditionally perceived as very weak.  They can kind of help each other out.  The court doesn’t have a lot of tools at its disposal but two things they can do is that they can detain managers of firms that are not paying up and they can freeze bank accounts.  Plus they have some moral authority.

So if you put all of this together, sometimes the EPB bringing these lawsuits can scare polluters into thinking “wow the courts have gotten involved, the judges have shown up, now I have to pay.”  And she’s [Zhang Xuehua] just describing this pattern – this alliance emerging – in just a few places.  But it is really optimistic that there is that possibility of cooperation between these bureaus.  They can get more done together than either one can ever get done on their own.

Pollution in China - still much work to be done

Pollution in China – still much work to be done

EL:  So you’re seeing this in just a few places in China?  Has it spread since she started investigating Hubei.  Do you think this is a model that will spread throughout China?

RS:  I don’t know.  I hope so.  There’s been quite a few of these non-litigation administrative execution cases in some of the environmental courts in Wuxi in particular and in Chongqing.  In those two places this type of case makes up a large percentage of what the courts are dealing with.  There it has provided real way for the court to get enough cases to justify its existence.  I am optimistic that this may be a path forward for the environmental courts in particular.  It kind of works out well for both sides.  The EPB brings cases and that is a way for the environmental court to expand its case load and reach a more stable footing.

EL:  In terms of the EPB, the environmental protection bureaus on the local level and then – your book does talk about how even though they still are underfunded and understaffed it does talk about the huge increase in the number of staff that they have had over the past decade and that in 2008 the National Environmental Protection Administration was raised to a ministry-level which gives it more power.  Is this changing the culture of people who work there.  What are the types of people who work there.  I know in the United States a lot of people who work at EPA, they are very into the environment and they will often go to NRDC or Sierra Club.  Is that culture you are starting to see created in the government agencies that supervise environmental [issues] or is there still a lot of people where it’s just a job?

RS:  The visible upgrade in status for the environmental protection bureau employees over the last ten years has been positive.  There is more of a feeling of pride in their work as you would expect as the work has more visible importance placed on it.  I think there is a ways to go before everyone who works for the EPB is a dedicated environmentalist.  In the interviews I have done with EPB officials the discourse is usually – it is about protecting the environment – but its mostly about finding more appropriate balance between economic growth and environmental protection.  And recalibrating that balance so that it is more appropriate for the current moment in China.  I think that makes sense for where China is right now and for the kind of rhetoric that is coming out of the central government.  But it does strike me that there is a big gap between finding balancing point between economic growth and environmental protection and being a fervent and committed environmentalist as we might see here at least in parts of the EPA.

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To listen to Part 1 of the interview with Prof. Stern, click here.

In the next post, China Law & Policy concludes its interview with Prof. Stern where she discusses the role that international NGOs have played and what she sees as the future of the environmental movement in China.

Rachel Stern on China’s Environmental Rights Movement

By , August 6, 2013
Prof. Rachel Stern

Prof. Rachel Stern

Back in January, Beijing saw some of the worst air pollution in its modern history.  Even the state-run media, which usually tries to cover up environmental disasters, openly discussed the off-the-chart pollution levels that were literally suffocating the city.  Did this open discussion signal change?

Certainly over the past decade China has passed many environmental protection laws.  There has been increasing citizen awareness and on occasion government responsiveness.  But what role has the law and litigation played in moving Chinese society forward?

Fortunately, China Law & Policy was able to sit down with Rachel Stern, assistant professor of law and politics at UC Berkley and author of the amazing book, Environmental Litigation in China: A Study in Political Ambivalence .

Below is the audio and transcript of part 1 of a three part series.  In Part 1, Prof. Stern  discusses the origins of China’s environmental rights movement and what that movement looks like in an authoritarian state.

Click here to listen to the audio of the interview with UC Professor Rachel Stern
Length: 10:08 minutes (audio will open in a separate browser)

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EL: Thank you for joining us today Rachel. 

RS:  It’s a pleasure to be here.

EL:  Let’s start with the pollution in Beijing this past January, specifically the horrible smog that covered the city for days with residents being warned not to leave their homes.  A lot of outsiders compared the Beijing smog in January to the Great London Smog of 1952 or the New York City killer smog of 1966.   First off, do you think it’s fair to compare Beijing’s pollution to London’s in the 50s or New York in the 60s?  Is this the same level and type of pollution?

RS: Well, I can certainly see where the comparison is coming from.  All those examples you mentioned are all examples of air pollution in major

Photo from Beijing Air-pocolpyse, Jan. 2013

Photo from Beijing Air-pocolpyse, Jan. 2013

cities that are the outcome of industrialization and economic development.  They’re huge crisis events that really galvanize the public and draw attention to an issue area.  So sure, I think the comparison is fair.

Whether or not it is totally accurate is a little harder to say just because, at the risk of sounding like a social scientist, it is hard to get data that is exactly comparable.  So one of the things that was in the news that you are probably know about was that China just started measuring particulate matter under 2.5 microns in January [2013].  So whether or not the quality of the smog is exactly the same, it’s really hard to compare.  That London smog that you mentioned, I just glanced back at some of the historical accounts, there were accounts that 4,000 people died in that smog.  So that’s not quite the same as the “air-pocalypse” that were coming out of.

But I do think that the events are comparable in terms of drawing attention to a problem and galvanizing the public behind the issue.

EL:  And that’s what I think a lot of foreign journalists and China watchers kind of also looked at when they compared Beijing to London and New York.  That they argue that these kind of incidents are necessary to get the society on board to promote environmental awareness and movements.  But to what extent do you think China is different from London or the United States?  Do you think the fact that China is a one-party state with a developing legal system will cause a different result?

RS:  Of course.  The fact that it is a one-party state with a developing legal system shapes all the possibilities for environmental activism in China.  But let me talk about the part where they are actually kind of the same.  I think one of the things we see in environmental movements worldwide is the difference between crisis events and chronic problems.  Chronic problems: the fact that air pollution is terrible day in and day out, in general what happens is that people learn to live with it.  It just becomes the new normal.   Sometimes you get this with Chinese friends who are visiting the States for the first time and hadn’t realized that it could be different.

The role of the crisis event is to create a sense of urgency.  Crisis events for that reason tend to play a really large role in environmental movements.  So I am actually hopefully that the air-pocalypse will play a similar kind of role in China as the Great Smog and other events like that did in the United States.

What’s so different in China is that the opportunities for public participation are so much more limited.  We’ll talk more about this but it’s really hard for NGOs  to bring environmental litigation under the current legal system.  So that’s really different than here in the United States where NRDC and the Sierra Club were really instrumental in some of the major pollution law suits in the 1960s and the 1970s.  And of course there is no elections [in China].  That’s really different from Japan where the LDP started to take on environmental issues when they started losing elections over it.  So that mechanism of accountability is somewhat broken in the Chinese case as well.

From a red China to a green China?

From a red China to a green China?

EL:  You had mentioned in comparing London and New York to Beijing, it is kind of similar path with the industrialization so let’s rewind a bit with China and focus now just on China.  China basically starts industrializing in the early 1980s with Deng Xiaoping.  With that we see the increasing environmental pollution and degradation.  But when do you see the development of an environmental movement or concern about the environment?  I know the past decade we have seen a lot of laws but do you see it before that and was there a certain incident or crisis moment that really sparked public and government attention to the issue before 2000?

RS:  I always felt uncomfortable talking about China’s environmental movement.  I think I only started using that term with some degree of comfort maybe last year.  It was really recent.

EL:  What made you uncomfortable about using it?

RS:  Well, movement implies a sustained political push by a large group of people.  China’s first environmental NGO is founded in 1994 by Liang

Liang Congjie celebrates some of Friends of Nature's victories

Liang Congjie celebrates some of Friends of Nature’s victories

Congjie; that’s Friends of Nature.  That’s sort of the first generation of environmental NGOs in China is the in 1990s.  They had a few really notable successes, particularly drawing attention to the hunting of a rare Tibetan antelope.  That was one of the big, early Friends of Nature successes.  But throughout that early period, the NGOs are really focused on environmental education and raising awareness of environmental issues.  And they really had their work cut out for them.  When I think about surveys from the 1990s they were just a few but they are really super interesting.  One of the survey questions that got asked for example in Anhui province was “have you ever heard of the term environmental protection; have you ever heard of the term ‘huangbao’ [环保] “  Over 90% of people said “nope, never herd of it.”

EL:  Who were these surveys given out to?  Who gave out the surveys and was it then just to the general public?

RS:  No, it was to the general public in a rural part of Anhui province.

EL:  Was this sponsored by the Friends of Nature NGO?

beijingRS:  No, this was a group of environmental researchers that were mostly based in the US.

So that was the story throughout most of the 1990s.  Then attention to environmental issues really started to pick up in the 2000s.  There was a dramatic expansion of the NGO sector in general and a blossoming number of environmental NGOs were a big part of that story.  With more groups you got more diversity of approaches.

This coincides with a time when the central government started making environment more of a priority too.  So one of the key moments was in 2007 when Wen Jiabao introduced the phrase “ecological civilization” – shengtai wenming [生态文明] – at the 17th Party Congress.  A lot of observers, both within China and outside of it, really saw that as a sign that environmental issues were rising in prominence for the central government.  So that was a big event that 17th Party Congress.

The Green Olympics of course in Beijing – is it going to be possible to hold the Olympics in one of the world’s most polluted cities?  That was a huge event in the 2000s.

Also the cancer villages and the amount of media attention surrounding villages were there were lots and lots of people dying of cancer.  This was all the Chinese media, not the international media.  But the linking of those cancer cases to pollution [was important].

Those are three of the events in the 2000s that really, really jacked attention to environmental issues inside of China.  And as the decade has worn on we have started to see more of the NIMBY [Not In My Back Yard] protests especially in the urban areas.  I finally started to feel more comfortable thinking about an environmental movement.  It’s widespread enough and it isn’t just a few people.

EL:  You had said before that you don’t have elections in China and that there is less accountability but this media attention to some of these

China's new President Xi Jinping - ready to be responsive?

China’s new President Xi Jinping – ready to be responsive?

cancer villages, the fear of 2008 Olympics being a pollution nightmare for the government, there is in a way some accountability.

RS:  I think there is definitely responsiveness.

EL:  Yeah, I guess that is different.

RS:  Yes.  I think there is some degree of accountability too through responsiveness.  It’s just that the mechanisms are different.  In democracies elections are the mechanism by which government officials are held accountable.  And here [in China] you have a government that is really trying to be responsive and you see this all the time in the kind of NIMBY protests that come out of urban areas.  They [the Chinese government] actually back down quite a bit and give urban residents what they want.  But that’s because of fears of unrest or media pressure or being embarrassed; not because of elections.

EL:  Now in terms of the Chinese government responding to some of this pressure.  So the past decade has seen enormous amounts of laws written for environmental protection and you discuss this in your book Environmental Litigation in China.  Based on what is written, how well written are [these laws] and how thought out are they?

And you thought the 1990s was just a good time for this guy?  Also boom time for Chinese legal drafters.

And you thought the 1990s was just a good time for this guy? Also boom time for Chinese legal drafters.

RS:  I think they’re pretty well thought out.  It’s part of a big trend toward drafting lots of laws.  The 1990s and 2000s were boom times for legal drafters in China.  There are laws being drafted all the time on all subjects; we can’t have gaps.  Often the process of legal drafting is really a thoughtful one – of looking around the world, seeing what other countries do, trying to pick and choose the elements or the best practices that are really going to work well for China.

So I think over the course of the last decade, the consensus has changed a little bit from saying China doesn’t have enough environmental laws to saying well the laws that we have on the books, they’re not perfect but they’re not bad.  So I think the consensus has shifted to thinking that the problem is really about enforcement, about the gap between what should be happening and what’s actually happening.

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Please return to China Law & Policy for Parts 2 and 3 of our interview with Prof. Stern.  In Part 2, Prof. Stern maps out what environmental litigation looks like in China today as well as discusses other alternatives to litigation that has been having more success.  In Part 3, Prof. Stern concludes the interview with her analysis of international NGO’s work in China as well as what she sees for the future of environmental litigation in China. 

Interested in purchasing Prof. Stern’s book? You can purchase it here: Environmental Litigation in China: A Study in Political Ambivalence

Follow Up on the Wukan Protests – A Constitutional Challenge?

By , February 7, 2012

It's a Constitution We are Propounding!

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

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

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

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

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

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

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

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