Adam Bobrow

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

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

Background on State Visits

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

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

Why Should Obama and Xi Meet?

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

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

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

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

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

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

Mixed-Up Confusion?  The Different Ways Chinese Courts Obtain Jurisdiction

By Glenn D. Tiffert

Part 1 of a two part series exploring the jurisdictional issues in recent criminal cases

As the Chinese legal system works its way through the various cases connected to the “Bo Xilai Affair,” it is a good time to review the usually unglamorous procedural rules governing jurisdiction.  The Bo Xilai Affair has brought these jurisdictional rules to the forefront and is generating more than the usual amount of interest among China watchers; even those focused on Chinese law are finding twists worth exploring.

To keep things simple, I will explore jurisdictional issues in the Gu Kailai and Wang Lijun cases alone, although my points could apply more generally to the other defendants connected to Gu, namely her accomplice Zhang Xiaojun, and the four police officers charged with covering up her crime.  This post will look at territorial jurisdiction, in other words, where the trials were held.  A later post will examine why both cases were assigned to intermediate level People’s Courts.

Gu Kailai being led into Hefei Intermediate People's Court

To recap: Gu Kailai was convicted of the intentional homicide of Neil Heywood, a British citizen resident in China, and the crime was alleged to have taken place in Chongqing, Sichuan province, the city her powerful husband, Bo Xilai, presided over as Party Secretary.  However, Gu’s trial took place 800 miles away from the city of Chongqing, in the city of Hefei, Anhui province, a place that had no known connection to the homicide, or to the alleged crimes of the other defendants associated with her.  Observers have suggested various practical or political reasons for why the trial was not held in Chongqing, and why it may have been assigned to Hefei, but those need not concern us here.  We are interested in discovering the legal authority for the assignment of the case to Hefei.

Article 24 of the Criminal Procedure Law of the PRC establishes the general rule that: “A criminal case shall be under the jurisdiction of the People’s Court in the place where the crime was committed.  If it is more appropriate for the case to be tried by the People’s Court in the place where the defendant resides, then that court may have jurisdiction over the case.”   Additionally, the Criminal Procedure Law provides rules for cases in which more than one court could claim jurisdiction, or in which jurisdiction is unclear.  For example, Article 25 states: “When several People’s Courts at the same level have jurisdiction over a case, it shall be tried by the People’s Court that first accepted it. When necessary the case may be transferred for trial to the People’s Court in the principal place where the crime was committed.”  However, in the case of Gu Kailai, none of these basic rules provide a basis for trying her in Hefei.  As a result, we must look elsewhere.

The Chinese legal system provides several routes for transferring jurisdiction over a case from one court to another.  For example, pursuant to the Criminal Procedure Law and the Law on the Organization of the People’s Courts, a lower level court with jurisdiction over a major or complex case can request a higher level court to take over the case.  But because Gu Kailai was charged with a capital crime, we can rule this path out.  Article 20 of the Criminal Procedure Law stipulates that intermediate level courts have jurisdiction of first instance over crimes punishable by life imprisonment or the death penalty and, because this case was actually tried by an intermediate level court, a lower court could not have had jurisdiction over it first.

One jurisdictional route rises above the rest.  Article 26 of the Criminal Procedure Law provides that: “A People’s Court at a higher level may assign a People’s Court at a lower level to try a case over which jurisdiction is unclear and may also instruct a People’s Court at a lower level to transfer the case to another People’s Court for trial.”

Article 26 can be parsed in different ways, with different results attaching.  To resolve the ambiguity, we must do what we do in any legal system, move beyond the four corners of the statute to consult supporting texts and practice, both of which indicate that the Supreme People’s Court (SPC) essentially regards Article 26 as comprising two independent clauses, the second of which matters here.  Hence we get: “A People’s Court at a higher level may… instruct a People’s Court at a lower level to transfer the case to another People’s Court for trial.”

The authoritative SPC Interpretation on Certain Questions Pertaining to the Implementation of the Criminal Procedure Law of the PRC (“the SPC Interpretation”) stipulates two ways that can happen.  First, under Article 18 of the SPC Interpretation, when the President of a lower level court must recuse himself[1] and it would be “unsuitable” for that court to assert its jurisdiction over a case, that court may ask a higher level court to take over jurisdiction.  The higher level court may take jurisdiction or assign it to another court at the same (lower) level as the first court.  Article 19 of the SPC Interpretation requires the higher court to send its decision on jurisdiction – 管辖决定书 (guanxia juedingshu) – to the lower court newly awarded jurisdiction and to other relevant courts.  Second, Article 22 of the SPC Interpretation allows a higher level court on its own initiative to assign jurisdiction over a case from one lower level court to another lower level court “when necessary,” without first requiring a request from below or that the second court be of the same level as the first.

Admittedly, we know few hard facts about the procedural history of the Gu Kailai case, but one nugget stands out.  The Xinhua reporting on the trial indicates that the SPC issued a decision on jurisdiction to the Hefei Intermediate People’s Court, and the Hefei court accepted the case for trial on that basis.  We do not know precisely whether this decision was based on Article 18 or 22 of the SPC Interpretation, as either might reasonably have applied, but the SPC evidently used its inherent power under Article 26 of the Criminal Procedure Law, as expounded in the SPC Interpretation, to transfer Gu’s case to Hefei.  One may furthermore assume that the Supreme People’s Procuratorate issued complementary instructions so that procurators would actually argue the case there, too.

The Supreme People's Court

Assuming that the SPC complied with its own Interpretation of the Criminal Procedure Law, we may infer from its decision on jurisdiction that another court originally accepted the case.  We do not know which court that may have been, but an obvious candidate would have been the Chongqing Intermediate People’s Court.  Under this scenario, three possibilities present: first, the unnamed court claimed jurisdiction over the case without the approval of senior Party and judicial authorities in Beijing, which seems implausible; second, Beijing granted its approval and then changed its mind; and third, acceptance by the unnamed court served, in the interests of formal compliance with procedural requirements, purely as a trigger for transfer to Hefei.  Regardless, as the highest court in the land, once the SPC transferred jurisdiction, the decision was effectively immune from challenge or appeal.

In comparison, the Wang Lijun case is more straightforward.  At least one of Wang’s alleged crimes took place in Chengdu: his purported “defection” in the United States consulate.  Notwithstanding substantive problems matching the facts as we know them to the elements of this crime, Chengdu judicial authorities may properly claim jurisdiction over the case under Article 25 of the Criminal Procedure Law (discussed above), and barring an unlikely protest from their counterparts in Chongqing or any other locale in which Wang is alleged to have committed crimes, the trial will take place in the Chengdu Intermediate People’s Court.  Indeed, given the stakes in trying Wang, one may assume that the SPC, and the political leadership behind it, assents to Chengdu jurisdiction, either tacitly or by assignment.  When the verdict is announced, we may know which.

Historically, reassignments of lower court jurisdiction by higher level courts are not uncommon in the Chinese judicial system, where concerns about local protectionism, judicial independence and varying levels of judicial competence adversely affecting trial outcomes run high.  The 2008 criminal trial of former Shanghai Party Secretary Chen Liangyu in Tianjin is another prominent, recent example.  Cases like those of Chen Liangyu and Gu Kailai shine a spotlight on one of the Chinese judicial system’s underappreciated features.

Steven Hill on a New Beijing Consensus in UN Peace Operations

By Zachary Kelman and Desiree Sedehi*

Steven Hill on China's role in UN peace operations

Steven Hill, Visiting Professor from 2010-2011 at the Hopkins-Nanjing Center in Nanjing, China, visited Seton Hall Law School on September 22, 2011, and spoke in a personal capacity about the research he conducted there on the subject of Chinese participation in UN peace operations. At an event hosted by Professor Margaret K. Lewis, a Public Intellectuals Program Fellow with the National Committee on US-China Relations, and Professor Kristen E. Boon, Director of Seton Hall Law’s International Programs, he posed the following questions: How has China’s approach to international relations changed since assuming its role on the UN Security Council in the 1970s? And is China’s approach to the humanitarian intervention in Libya the harbinger of a new “Beijing Consensus”?

In his presentation, Mr. Hill discussed the evolution of China’s approach to foreign relations, from the “Molotov cocktail-throwing revolutionaries” of the early 70s to the top contributor to peacekeeping missions among the five permanent members of the Security Council. According to Mr. Hill, this movement signals a shift from “non-intervention” to “tolerance, maybe even some enthusiasm and engagement.”

Mr. Hill recounted for his audience how, from when the People’s Republic of China regained China’s seat in the UN in 1971 until the 1990s, China had been largely detached from UN peacemaking activities.

Mr. Hill noted that China’s “traditional approach” to UN peacekeeping privileges stressed the importance of non-intervention. While China’s position has evolved considerably as it applies to UN peace operations, shades of it can be seen, for example, in Ambassador Li Baodong’s 2011 statement that the international community should “respect the sovereignty, independence, unity and territorial integrity” of Libya.

Hill further noted, importantly, that in spite of this rhetorical deference to sovereignty, China abstained from voting on UNSCR 1973—an abstention which was instrumental in authorizing the largely European-led intervention in Libya. China’s rhetoric led many commentators to believe that it would vote against the resolution. However, China’s ultimate abstention has been seen by many to symbolize its larger shift from a non-aligned power to a global power that has a substantial stake in the international community.

According to Mr. Hill, that China felt it necessary to evacuate 36,000 workers from Libya due to this humanitarian crisis featured prominently in its decision on how to vote on the Libya resolutions. Moreover, China’s growing stake in the international community means increased interest in avoiding catastrophic scenarios, and hence likely a more active China on the global scene.

That being said, Mr. Hill cautioned against unbridled optimism with respect to China’s “new role.”  He noted that China made every effort to defer to traditional notions of national—and then regional—self-determination. This position was evidenced by China’s acknowledgment of Arab League and African Union positions.  In addition, China reserved abstention as a “special circumstance” and was careful not to set precedent. This cautiousness, said Mr. Hill, exemplifies China’s broader attitude toward UN peacekeeping—the possible emerging “Beijing Consensus”—to promote a limited “blue helmet” approach within the general understanding of military procedure, but to avoid “nation building” and other more interventionist forms of intervention. Whether this approach will change to a more progressive humanitarian attitude, as held by some of China’s Western counterparts on the Security Council, remains to be seen.

After Mr. Hill’s presentation, both Professors Lewis and Boon offered commentary to the audience. Professor Lewis,

Steven Hill & Margaret Lewis discuss the Beijing Consensus at Seton Hall Law School

who recently appeared before the Congressional-Executive Commission on China in a roundtable discussion on the “Current Conditions for Human Rights Defenders and Lawyers in China, and Implications for U.S. Policy,” raised China’s need for global stability for the safety of its investments as an impetus for its increased role in UN peace operations. Professor Lewis further emphasized that China’s increased participation in UN peacekeeping efforts may be improving its reputation in the eyes of the international community. Such positive reputational benefits could encourage China’s future involvement.

Professor Boon, who has written extensively on the UN and the Security Council, suggested it might be wise for the US to rethink its skepticism towards international institutions, given the growing influence of China.  The United Kingdom took the approach in the 20^th century of placing greater emphasis on international institutions. As its national power waned relative to the rising US, it has maintained a far more powerful seat in global affairs than it would have if it had not actively engaged in international institutions. The US has an opportunity to solidify its interests in the current international legal and political order, which could serve it well in the future. Professor Boon also highlighted the importance of the new Draft Articles on the Responsibility of International Organizations, and suggested that these could affect the willingness of permanent Security Council members to engage in new endeavors as much as a new “Beijing Consensus.”

Following their commentary, both Professors Lewis and Boon invited the audience to ask questions and provide comments. Professor Michael Ambrosio of Seton Hall Law School asked Mr. Hill to comment on the success and efficiency of China’s participation in UN peacekeeping, and to rate China’s involvement. Mr. Hill responded that he would rate China’s increased participation quite high, and noted that China has provided crucial assistance in terms of medical and engineering troops, police units, and military observers to UN missions around the world. Mr. Hill emphasized the dire need for police units and explained that China’s assistance in this capacity was especially successful because it was so necessary.

* The authors are both third-year Juris Doctor students at Seton Hall University School of Law. Mr. Kelman is also a Deborah T. Poritz Fellow and Ms. Sedehi is the former president of Seton Hall’s International Law Society.

By Marcy Nicks Moody

Over the last two months, a spate of violent attacks against schoolchildren in China’s eastern provinces have heightened authorities’ concerns about the instability of China’s poor and mentally ill, many of whom feel left behind as the rest of China gets wealthier.   On March 23, a retired doctor, reportedly driven by a desire to take revenge on the rich, stormed a local elementary school in the southeastern province of Fujian and stabbed eight children to death, injuring five others.  The shocking incident inspired four copycat killing sprees by unemployed or under-employed adult males, most of whom reportedly suffered from mental illness.  The killings highlight the need for a better social safety net and social welfare services for the mentally ill, and put into sharp focus the uneven nature of China’s economic development and its concomitant social pressures.  Soaring income inequality, widespread perceptions of helplessness and the corrupt, self-seeking behavior of some Chinese government officials have become part of the public debate as the world seeks to understand these tragedies and China seeks to prevent future ones.

….CLICK HERE TO READ MORE….

By Marcy Nicks Moody

Last Thursday, Americans celebrated the fortieth anniversary of Earth Day, established by U.S. Senator Gaylord

Earth Day Founder, Sen. Gaylord Nelson

Nelson in 1970 to raise awareness of environment-related issues. Last Sunday, thousands gathered on the National Mall in Washington, DC to participate in the Earth Day Climate Rally with the alleged goals to “stop protecting polluters,” “enact comprehensive climate legislation,” and “demand accountability from Washington.” There were exhortations to grow kitchen gardens along with clamorous chanting of the word ‘green.’ The weather was glorious, and spirits did not seem dampened by the blow dealt to climate legislation by the U.S. Senate just the day before.

Sandwiched between Earth Day and the Earth Day Climate Rally was the day on which another U.S. Senator, Republican Lindsey Graham of South Carolina, announced that he would no longer participate in negotiations on a Senate version of proposed climate legislation. In a letter to colleagues Senators John Kerry (D-MA) and Joseph I. Lieberman (I-CT), Senator Graham cited his disappointment over reports that the Democratic leadership of the Senate was planning to take up discussions of immigration before addressing climate change as a reason for his changed stance.

Senators Graham, Kerry, and Lieberman were the primary architects of this bill-to-be and had been planning to formally announce the bill with the White House last Monday. But any debate on immigration would make it impossible to deal with national energy and climate change policy, the South Carolina Senator said. So he won’t support the draft climate change bill, in spite of the fact that he helped create it. Senator Graham won’t support some legislation because talking about something else would just be too painful or distracting? This seems a bit irrational.

In Happier Times - Senators Graham, Kerry & Lieberman

Setting aside speculation over why Senator Graham radically and suddenly changed positions, the simple fact that he did it is disappointing. To be sure, the Senator is not the only culpable party in this turn of events. He is likely under enormous pressure from fellow Republicans to stop negotiating with Democrats. And if reports are true that both the White House and the Democratic Senate leadership had been planning to take up immigration first not because it could pass (the House has not yet discussed the matter) or because it is more urgent (climate change is equally as urgent: the longer we wait to address climate change, the more expensive it will be), but because it could present a useful wedge issue for the Democrats in the coming election cycle, then Senator Graham has every right to be peeved.

But unless Graham’s strategy has the result of getting climate change legislation considered in this session of Congress, it is bad for Americans. The science demonstrating the negative and possibly catastrophic consequences of anthropogenic climate change is overwhelming. That emissions of greenhouse gases (GHGs) must decrease is flagrantly obvious. And that the United States, which prides itself on its innovative strength, global leadership, and remains the largest economy in the world, has still not acted on this evidence is disgraceful.

It is also bad for business. The clean technology market is big and growing, but without the passage of climate change legislation, signals to U.S. businesses as to the future prices of clean versus pollution-intensive energy remain unclear. A recent Pew report on clean energy in the G-20 economies notes that appropriate domestic policies—such as those aimed at reducing GHG emissions or incentivizing the use of renewable energy—have tended to positively affect a country’s competitive position in the clean-tech market. The winners in this race include Brazil, the United Kingdom, Germany, Spain, and—who else?—China. The United States does not make the shortlist of enlightened energy and environment policymakers of the rich world.

Lights out for the U.S. in the race for green tech?

In fact, the Pew report finds that China has already overtaken the United States on several important measures (including, of course, its dubious distinction of being the largest emitter of greenhouse gasses for the past several years). In 2009, for instance, China overtook the United States for highest financing of and investment in clean energy. And it is likely to overtake the United States in installed renewable energy capacity soon. Though targets are not always met, Beijing has set ambitious targets for wind, biomass, and solar energy usage, and these targets do not exist solely not to be met. They may currently be aspirations, but that’s more than the United States currently has to go on.

Mitigating climate change and making U.S. clean-tech business better is accomplished by limiting greenhouse gas emissions. The best way to limit GHG emissions is to put a price on them. Indeed, the fact markets have not already done so has been described by climate expert Nicholas Stern as “the greatest market failure the world has ever seen.” The climate legislation which has been stalled and stalled and stalled again in the U.S. Senate is generally envisaged as a cap and trade system that would cap GHG emissions at a certain level, create a scheme in which licenses to emit GHGs could be traded, and eventually shrink gross amount of permissible emissions. This amounts to an indirect tax on GHG emissions, and though it is far from ideal, it would create a price for emissions at the margin and therefore makes strides in the right direction.

As the Senate continues to dawdle, the Earth Day Climate Change rally on the National Mall was far from unimportant. Especially in a democracy like the United States, it is important that citizens buy into ‘going green.’ It is important, frankly, that green be cool. But though considerations of how to green one’s lifestyle are admirable, they are not game changers. Coal is still cheap; Whole Foods is expensive, and “going green” remains largely the privilege of the wealthy in society.  Unless we change our laws.  The Senate should get to work. The alternative is to accept an outcome in which a hundred U.S. kitchen gardens bloom while a hundred Chinese companies compete for the top spots in clean-tech. In addition to, well, catastrophic climate change.

Marcy writes about China. In 2007-08, she was a Fulbright Scholar in China, where she was also a Research Fellow with the U.S.-Asia Law Institute. She received an M.A. in East Asian Studies from Columbia University and graduated from Brown University.

By Marcy Nicks Moody

Though Haiti’s plight no longer appears above the fold of our daily newspapers, it remains one of the world’s most dire. At least 230,000 lives were lost in the earthquake of January 12. More than 300,000 people were injured, and at least 1.3 million were left homeless. This would be a catastrophe anywhere, but for a country of some 10 million, the proportion is gargantuan. More than two months following the magnitude 7.0 quake, shelter, security, and sanitation remain inadequate, and people live in camps of tents and tarpaulins, unlikely to move to more permanent dwellings any time soon.

The international community has responded to the tragedy in Haiti with laudable humanitarian assistance as well as more extended commitments to help “build [Haiti] back better,” and just today, the United Nations and United States co-hosted an International Donors Conference to mobilize support as Haiti lays the foundation for its long-term reconstruction and development. The financial resources necessary for this undertaking are huge: $11.5 billion now, $34.4 billion over the next decade, or five years to Haiti’s current GDP.

Chinese Aid Workers in Haiti

For China watchers, this conference—and, more importantly, the commitments made at it—may provide further insight into the status of China’s global influence. There has been much ado about China’s arrival on the world stage since its apparent and early exit from the nadir of the economic crisis. And over the last several months, Beijing has increasingly comported itself in such a way as to suggest that it believes in the veracity and longevity of this arrival. Largely, this has taken the form of vitriolic verbiage on issues ranging from Copenhagen to Tibet to its exchange rate. But there are better metrics for global influence than causticity. One of these is a country’s response to other countries in times of need.

Haiti is a particularly interesting case in that it is one of fewer than twenty-five countries left in the world that maintains diplomatic relations with Taiwan in lieu of the People’s Republic. Beijing’s traditional response to such countries—often poor ones in Africa and the Caribbean—has generally been a deep-pocketed charm offensive, with preferential loans and big investments. Cynical though it may sound, Haiti’s crisis could be seen as China’s opportunity to curry favor with—or extract a quid pro quo from—a country with which it would like to have diplomatic relations.

Indeed, China has already taken a number of steps to wean countries in the Caribbean and Latin America from Taiwan.

Sichuan Earthquake

China is a non-borrowing member of both the Caribbean Development Bank as well as the much larger Inter-American Development Bank (IADB), meaning it provides capital but takes no money in return. Though in the latter case, IADB procurement contracts for Chinese firms was also an important motivation for joining, it was not the only one. Moreover, Chinese—in Beijing and elsewhere—understand the tragedy an earthquake can wreak better than many, or perhaps most. On May 12, 2008, a magnitude 7.5 earthquake struck Sichuan Province, killing almost 90,000, injuring 360,000, and leaving 5 million homeless. Like Haiti, poor building construction contributed to the scale of human loss. The outpouring of emotion and assistance was immense. With such a horrible tragedy in China’s recent past, one might think that China might sympathize with Haiti’s plight.

But China’s response to the Haitian earthquake has not been as generous as either of these arguments would suggest. Beijing has donated $1 million to the emergency aid efforts, and does not yet appear to have made longer term commitments. It is not among the ranks of the largest donors, which include the United States, Brazil, Canada, and the European Union. The United States, for example, immediately pledged $100 million for the relief effort, and Congress is considering an additional aid package of $2.8 billion. That said, a 125 member search-and-rescue team, medics, and aid supplies coming from China were the first to reach Haiti. The tragedy has not gone unnoticed in China.

So why has China done so little? To be sure, Beijing does not tend to view its assistance activities as ‘foreign aid,’ but rather frames them as offering help to brother or sister countries in times of need. With a quasi-colonial history of its own, China tends to avoid activities that may smack of imperialism or appear to encroach upon a country’s sovereignty. This may be why China avoids national-level coordination efforts and refrains from coordinating donor activities. However, avoiding international coordination now, which may be part of China’s reasons for remaining relatively inactive, will do Haiti no good.

Moreover, Haiti’s relatively small size and vast humanitarian tragedy, coupled with China’s phenomenal ability to execute construction and public works projects in minimal time, present an extraordinary opportunity to showcase China’s arrival and its ‘harmonious’ foreign policy, not just in Haiti or Latin America, but to the world. As Beijing continues to be roiled by the public relations disaster that is its dispute with Google, Haiti is a place in which China could do well. It might actually do some good, too.

Marcy writes about China. In 2007-08, she was a Fulbright Scholar in China, where she was also a Research Fellow with the U.S.-Asia Law Institute. She received an M.A. in East Asian Studies from Columbia University and graduated from Brown University.

Will China allow its currency to float?

By Marcy Nicks Moody

Last week, in a discussion about the administration’s approach to China’s exchange rate policy, White House press secretary Robert Gibbs remarked that President Obama “mentioned just a few days ago that he wished and hoped that China approached their currency using a more market-based interpretation.”

If only wishing and hoping were the ne plus ultra of sound policy-making. Unfortunately, they’re not. And Mr. Gibbs’ comment was more revealing of his administration’s approach to the Chinese exchange rate than he may have hoped. Or wished.

On a more or less biannual basis, chatter over China’s undervalued currency increases, coinciding with a report that the Treasury Department must submit to Congress on international economic and exchange rate policies. This is the document in which a country is formally designated a currency manipulator or, in the case of China or any other country since 1994, is not.

Does China manipulate its currency? Yes. This fact is well-known and rarely questioned. The gargantuan scale of its global trade and current account surpluses and rate at which China is intervening and accumulating foreign exchange reserves to keep the renminbi (“RMB”) from appreciating make it all but impossible to argue otherwise.

But does China intend to manipulate its currency in order to gain an unfair trade advantage? Well yes, but this is part of the legal metric by which China must be judged in the foreign exchange report, and it remains the technical basis on which the Treasury sidesteps formally designating China a manipulator of its currency. The arguments for so doing do not include any serious contention that China does not intend to manipulate its currency, but rather that engagement works better than saber-rattling.

That is one possibility. Another is that there is no saber. What if China were designated a currency manipulator in a Treasury report to Congress? Would the administration huff and puff and hold its breath until all of Washington turned blue? That might be the best option, for nothing necessarily follows from the findings in these reports, other than expedited negotiations, which are fancy words with few teeth. And demonstration of ineffectiveness on an important issue is something the Treasury might understandably like to avoid. Naming China a currency manipulator would strain relations further but in itself provide no foreseeable gain. And besides, the whole world knows it anyway – it’s not like the report would be telling us anything we didn’t already know.

The U.S. Treasury - preparing its April 15 report

Though the Treasury Department’s stance is far from principled, it does have some weight. But the exceptionalist tone of this stance—which suggests that China is exempt from Treasury censure because of some special status it holds—may well damage U.S.-China relations in the longer term. For years, the United States has encouraged China to act as a responsible stakeholder in the global economic and financial system, playing by the rules China increasingly helps to write. Allowing China to escape criticism for undervaluing its currency simply because ‘it is China’ runs counter to the notion of that stakeholder. Given the belligerent tone Beijing has recently taken on a range of foreign policy issues from Copenhagen to the Dalai Lama’s recent U.S. visit to exchange rate policy itself, the United States would do well to move away from this more recent G2-style exceptionalism and towards responsible stakeholdership in its rhetoric and substantive discussions with China.

Moreover, American concern about undervaluation of the RMB dates to at least 2003. Modest appreciation notwithstanding, engaging and talking softly behind closed doors have not worked. That Chinese surpluses cost Americans jobs should be an abomination to Washington, especially now, as unemployment remains unacceptably high. China is unlikely to move on its exchange rate unless it perceives that doing so would be in its own interest, and for better or for worse, it is up to Washington to create that incentive.

Might a Treasury report designating China a currency manipulator encourage China to move on its exchange rate? Let’s be clear: This is only a document submitted by one branch of the federal government to another, and by itself, the report does little. But might a Treasury report designating China a currency manipulator trigger other events that could encourage China to move on its exchange rate? Congress may be emboldened to pass legislation mandating countervailing duties on goods from countries with misaligned currencies. Indeed, even without the Treasury’s report, which isn’t due until April 15, Congress has already started to move forward on the issue. There is currently a bill with unusual bipartisan support in the Senate that would give Treasury less flexibility in determining whether a country manipulates its currency. Further, the Chinese exchange rate is not solely a U.S. problem. If Washington did, for example, undertake trade sanctions, the frustrated international community would likely follow suit. And this would create a strong incentive for China to allow the RMB to appreciate.

A Treasury report designating China a currency manipulator is unlikely, by itself, to produce any results vis-à-vis the RMB. And it might not even trigger events that would compel China to allow the RMB to appreciate. But it might. The current state of affairs is unacceptable, and as even Dusty Springfield knows, wishin’ and hopin’ and dreamin’ and prayin’ are not enough.

Marcy writes about China. In 2007-08, she was a Fulbright Scholar in China, where she was also a Research Fellow with the U.S.-Asia Law Institute. She received an M.A. in East Asian Studies from Columbia University and graduated from Brown University.

by Mr. CAO Xinglong

At the end of 2008 and during the first half of 2009, allegations of scientific misconduct by a research group at a university in southern China and led by an “academician” of the Chinese Academy of Engineering, triggered broad discussion in China, a discussion that can still be traced on the Internet today, over a year later.  The University condemned one member of the research group, a male associate professor, accusing him of fabricating experimental data and forging the co-authors’ signatures.  A University official maintained that the associate professor’s actions should not be attributed to the University since the transgression was done while the man was postdoctoral researcher, before he was on the staff of the University as an associate professor.  Contrary to the University’s interpretation, public opinion maintained that the University was using this unlucky man as its scapegoat in order to conceal the pervasive academic misbehavior on its campus; the public seemed to think that the associate professor was compelled to produce enough Science Citation Index and Engineering Index articles (“SCI/EI articles”) to beat out other article-forging rivals for a faculty position and an academic title.

Then, in the second half of 2009, another academic event stirred up even more turbulence among the public.  A Ph.D. graduate from a renowned U.S. university joined the faculty of a Chinese university in June 2009 as a lecturer; on September 17, 2009 he committed suicide.  In his suicide note, he regretted his decision to join the University, viewing the decision as imprudent and overly-optimistic.  The man also criticized China’s academia as cruel, ruthless and cheating.  The University negated the charge that it had lured him to its campus by offering the academic title of associate professor and then broke their promise.  However, many of the man’s friends said that he told them he chose the job offer from the present university over a more prestigious one because the University promised to make him an associate professor; the other only promised an assistant professorship.  The University argued that no written evidence was offered to determine if this promise existed.  Instead the University stated that the man’s academic title was to be determined by the upcoming 2009 Academic Title Competition Procedure (held from September through December).  Instead of giving any credence to his criticism, the University claimed that the suicide had nothing to do with the academic setting and instead should be ascribed to something else.  However, public opinion was again against the University; numerous netizens regarded the suicide as evidence that there was an oral offer of an associate professor title and, given the time frame of the suicide, speculated that the man was probably told at the beginning of the competition (September) that he would not obtain the title of associate professor.  According to the netizens, it was his broken academic dream that led to his suicide.

Although disputes between scholars and their institutions are common in China, it is rare that that these disputes are handled by the legal system.  And when they are, the scholar usually receives no relief.  At an unnamed university in China, an assistant professor applied for an associate professor position through the University’s 2008 Academic Title Competition Procedure.[i] Through a series of letters, the assistant professor modestly advised the University that a certain statute allowed his overseas Ph.D. experiences to be substituted for other qualifications.  After he received no response to his letters and failed to be promoted to associate professor, he telephoned University administrators.  He was told that such complaints could not be considered.

In 2009, he tried again, but again the University’s Academic Title Competition Procedures appeared to be hostile to his efforts.  He failed to be promoted a second time.  However, this time he decided to contest the procedural defects and filed an appeal with one of China’s administrative governmental departments (the “ Department”) in accordance with the Teachers Law of China.  In the appeal, he alleged the following six procedural defects: (1) not weighing his overseas study achievements; (2) all of the referees were academic bureaucrats outside of his research topic; (3) some of the referees’ had close personal relationships with some of the other candidates and had animosity toward other candidates; (4) fabrication of some of the competition files; (5) twisting competition rules to favor or disfavor certain candidates; and (6) a lack of transparency due to closed-door and back-door hearings.  Under the Teachers Law, faculty at a State-affiliated, public university, such as the University in this situation, is permitted to appeal a decision to a government Department.  The Department is required to issue a ruling within 30 days (see Teachers Law, Art. 39).

The assistant professor made his appeal in December 2009.  Now, three months later and way past the 30-day time frame, neither the government Department nor the University has issued an official response; unofficially though, the Department and the University have pressured the professor to drop it.  As a result, he abandoned his appeal and the opportunity to bring the case into court.

But even if he did bring his case to court, prior precedent shows that he would have failed there as well.  In 2003, two professors at a different university in southern China, another State-affiliated university, sued the Department for its refusal to arbitrate their complaints of unfair treatment in their University’s Academic Title Competition.  The Court dismissed their action on the grounds that the Department should not interfere in a university’s internal affairs and tamper with its academic autonomy.  In other cases that question university promotion procedures, courts continuously refuse to extend jurisdiction for similar reasons. The courts’ reasoning of “internal affairs” and “academic autonomy,” undermines the purpose of the Teachers’ Law and leaves aggrieved faculty members with nowhere to go.

Although academic institutions might seem self-governed and that power dynamics among the academic elite remains an internal affair, the government does have authority to rein in these institutions.  For example, on October 29, 2009, one of the State’s administrative departments announced that it had established a special panel to punish its affiliate universities’ academic misconduct.  Soon after unfortunately, the department decided that it was not in fact obliged to take such action.

As a result, China has established a system by which academia largely polices itself, and the law plays little to no role.  And often an academic’s personal benefit dwarfs that which is right and honest. New Threads (http://www.xys.org/), a pivotal website exposing academic misconduct in China, amasses a great number of postings charging the misuse of academic power; power used for illegitimate benefit, such as money, honor, or even sex.

In my view, the perception of academic autonomy and freedom has been disproportionately distorted and unduly expanded in these situations. Academia should be under some rules, even if it impacts its autonomy.  The process and procedure of academic activities, including faculty promotion, should be governed by law, a law that requires honesty and fairness. Without some legal oversight, academics can easily “cook procedures” and produce whatever experimental results they want.  In addition, today, China’s quantity of SCI/EI articles is disproportionately large, causing many to raise a skeptical eyebrow and elicit the critique that China’s research is perhaps transitioning from quality to simple quantity.  For better quality in research and more reliable results, the priority for academia should be a rule of law.

Something Rotten in Denmark: What the United States & China Need to Do to Make the Most of Copenhagen

By Marcy Nicks Moody

Earlier this month, Danish Prime Minister Lars Lokke Rasmussen flew to Singapore to meet with President Obama and

Danish Prime Minister Lars Lokke Rasmussen, trying to save the Copenhagen Conference

other leaders on the sidelines of the Asia Pacific Economic Cooperation (APEC) Leaders Summit. With less than one month until the United Nations Climate Change Conference opens in Copenhagen on December 7 and little in the way progress on the negotiations, the APEC leaders and Danish Prime Minister discussed metrics for the success of the talks. APEC, an organization widely known for accomplishing little, served as an all too fitting forum for an announcement that a legally binding agreement is not going to emerge from the Copenhagen conference.

Though the announcement simply confirmed the writing already on the wall for those familiar with the negotiations, it was nonetheless disappointing. The terms of the Kyoto Protocol will expire in 2012, and a ‘Copenhagen Protocol’ to replace Kyoto has been a key goal for some time.

Indeed, the history leading up to Copenhagen is far from short. The aforementioned Kyoto Protocol is a legally binding protocol to the 1992 United Nations Framework Convention on Climate Change (UNFCCC). And the UNFCCC, in turn, is a non-binding treaty aimed at stabilizing greenhouse gas (GHG) concentrations in the atmosphere in order to prevent severe changes in the world’s climate. It is, so to speak, the fountainhead of global climate change negotiations.

Moreover, though 182 countries (with the notable exception of the United States) are signatories to Kyoto, only 37 of these are bound to limit GHG emissions. Since Kyoto, climate science has become more precise, the price tag associated with the consequences of climate change has become more daunting, and the need for a broader global agreement has become more pressing. To that end, during the 2007 UN Climate Change Conference, an accord called the Bali Action Plan called for a new legally binding climate change agreement to be finalized by the 2009 conference in Copenhagen, with the aim of it going into force in 2013. Since the administration of George W. Bush proved generally unfriendly to restrictions on carbon emissions, it was hoped that 2009 would be the earliest point at which a broader global agreement could be reached.

The lack of a successor to Kyoto is not just disappointing, it will also be costly. The International Energy Agency’s 2009 World Energy Outlook estimates that each year of delay before moving to an emissions path consistent with the agreed level of a 2° C temperature increase will add $500 billion to the global incremental investment cost of $10.5 trillion for the period between 2010 and 2030. A new global climate change agreement is not simply necessary, it’s urgent.

Though the Obama administration is much more serious about climate change than the Bush administration was, U.S. negotiators have nonetheless had little to offer their foreign counterparts. In particular, the Senate does not plan to begin debating Waxman-Markey, the relatively stringent climate change bill passed by the House of Representatives, until next year. With the world’s strongest economy and largest historic emitter of greenhouse gases currently uncommitted to binding emissions targets, why would the rest of the world possibly want to offer up pledges of its own?

On Monday, Danish Ambassador to the United States Friis Arne Petersen published an article in The New York Times arguing that “Yes we can reach a strong, comprehensive and global agreement next month.” His letter, likely an attempt to control the reputational damage done to Copenhagen during APEC, makes the case for a ‘political agreement,’ with the goal of really, actually deciding upon a timeline for a successor to Kyoto this time. On the one hand, locking in progress made seems like a reasonable way to salvage failed dreams for Copenhagen. On the other, however, a “politically binding” agreement – as opposed to a legal one – will likely lack the teeth to be enforceable. Whatever emissions targets emerge from Copenhagen may thus evolve into nothing more than numbers on pieces of paper.

Can the U.S. & China Save Copenhagen?

In spite of Senate sluggishness, however, officials in the Obama administration have been hinting that they will try to provide momentum by bringing something to the table in Copenhagen next month, and the other elephant in the global climate room—China—did agree to language in a joint statement during Obama’s Asia trip indicating that a comprehensive agreement would “include emission reduction targets of developed countries and nationally appropriate mitigation actions of developing countries.” Some may scoff, but it’s better than nothing. And though it is currently the world’s largest GHG emitter, China is far from ignorant about the dangers of local pollution and global climate change.

One way in which the United States and China could reinvigorate climate change negotiations is by articulating a broad agreement (one which has not yet been reached) on the differentiation of financial responsibilities for mitigation and adaptation. The United States and China are, of course, the world’s most prominent emitters from the developed and developing worlds. How they plan to account for these very different roles would be a useful outcome of Copenhagen.

A legally binding agreement is, tragically (and expensively), out of the question, but Copenhagen is still not a foregone conclusion. China Law & Policy will keep its fingers crossed that the United States and China will give some momentum to the process, and that we can really, actually have an agreement in Mexico in 2010.

Marcy writes about China. In 2007-08, she was a Fulbright Scholar in China, where she was also a Research Fellow with the U.S.-Asia Law Institute. She received an M.A. in East Asian Studies from Columbia University and graduated from Brown University.