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By Elizabeth M. Lynch, August 1, 2013

Tom Friedman

“Every so often you read a news article so revealing…[and] say ‘…That story was the warning sign.”” So begins Tom Friedman’s unfortunate return to writing about China.

In Wednesday’s “Revenge of the Mistress,”  Friedman feebly attempts to argue that China has reached a turning point on official corruption and that turning point has been the online blitz of one “jilted mistress” of the deputy director at the State Administration of Archives.  For Friedman, this 26 year old woman, Ji Yingnan, and her online posts and photos of their lavish life together – a life she thought was forever until she found out that the man was married with a kid – are important in exposing the corruption that is prevalent in China.  For Friedman, she is the whistleblower that could change the course of China and potentially of the world. 

But Friedman’s article completely misses the mark and paints a picture of China that doesn’t really exist. 

First, a jilted mistress as a whistleblower?  Really?  Do you really think that the popularity of her blog posts is a result of an never-before-exposed seeping anger against official corruption?  Or is it more perhaps the lurid details of an affair that went wrong?  Are the excesses she exposes really that unknown to the Chinese public?

No.  The lavishness of government officials has been reported on by the domestic Chinese media for at least the past year.  What Ji “exposes” are facts that are already well known.  The Chinese public knows that graft and corruption is very much a part of their leadership’s lives.  China’s new President Xi Jinping has openly called for the end of corruption among government officials, implicitly admitting to the fact that corruption is wide-spread. 

While certain aspects of the leadership’s wealth – such as the wealth amassed by former Premier Wen Jiabao’s family and reported by David Barboza in the N.Y. Times – have been kept a secret, the lavish spending and mistresses of some government officials has been reported.  And Ji’s post  in no way rises to the damning level of Barboza’s well-documented accumulation of wealth through government ties.  Unlike Barboza’s series of articles which were censored in China, Ji’s posts are still on the internet and she is even receiving media attention.  The reason: because she is not a threat to the ruling elite or necessarily their ways.  She is not a whistleblower; she is not a game-changer; she is a woman scorned. 

But the bigger fault of Friedman’s analysis is his complete ignorance of the fact that since May, the Chinese government has waged a crackdown on anti-corruption activists, petitioners and lawyers, detaining more than 30 individuals for their anti-corruption campaigns.  Most of these activists have been freed.  But most recently, the Chinese government has detained  well-known rights lawyer Xu Zhiyong who has called for greater government transparency and accountability of officials and their families’ assets. 

To ignore the work of these activists and the largely illegal crackdown on their activism (Xu was denied access to his lawyers in contravention of the Lawyers Law and the new Criminal Procedure Law) does a disservice to explaining what is really going on in China.  To claim that a “jilted mistress” is a civil society actor misinterprets what civil society is.   Likely Ji doesn’t have a “cause” other than herself.  The detained activists, their cause is to better Chinese society and have the government follow a rule of law.

Friedman naively calls on civil society actors to find allies within the ruling Chinese Communist Party (CCP)  and convince them that cracking down on corruption is in their best interest.  As if these activists – sitting in their detention cells – hadn’t already thought of that.  While the CCP is not a monolith and there are some reformers within the government, it’s still not an open group of people.  It’s not like some reformer in the CCP is going to invite Xu Zhiyong out for a beer summit and get his take on things.  And what’s Xu suppose to do, write a letter about ending corruption?  In China, that’s what gets you detained.

Courtesy of China Human Rights Defenders, chrdnet.com

Finally, Friedman’s article ends by focusing on how corruption in the Chinese government doesn’t just destabilize China, but given our intertwined relationship, the United States as well.  But this is too simplistic of an analysis.  Certainly what happens in China impacts the U.S.  But would ending corruption solve everything?  Would that change the fact that the Chinese government ties its currency to the U.S. dollar?  Would that result in better air quality standards in China?  Largely no. 

What would have a bigger impact would be a rule of law.  Corruption goes unchecked because there isn’t an independent prosecutor to check local government officials.   Air quality in China is horrible because environmental regulations are not enforced and the people have no independent courts in which to bring their case.  Corruption is merely a symptom of the underlying disregard for a rule of law. 

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By Elizabeth M. Lynch, June 8, 2011

Who received the invitation to the Legal Experts Dialogue?

One would think that after a six-year hiatus, the resumption of the U.S.-China Legal Experts Dialogue would receive a little more fanfare than a cursory four-sentence press release from the Department of State (“DOS”), issued on June 6, a mere two days before the big event.

For the past two years, almost every high-level discussion between the U.S. and China has raised the issue of the Legal Experts Dialogue (“LED”), with the goal of resuming the talks (last held in 2005).  When President Obama visited China in November 2009, the two countries’ Joint Statement directly stated that “[t]he United States and China decided to convene the U.S.-China Legal Experts Dialogue at an early date.”  Ditto for the Joint Statement after President Hu’s visit to Washington, D.C. in January 2011.

It wasn’t until April 28, 2011, at the Human Rights Dialogue, that anyone provided somewhat more of a hard date.  At a press conference, Assistant Secretary of State Michael Posner announced that the U.S. and China finally agreed to convene the LED in “June 2011.”  This vague date was reiterated a few weeks later in the statement issued at the conclusion of the Strategic & Economic Dialogue.

So why the lame press release about the LED?  It’s been a priority item in the U.S.’s negotiations with China.  One would think that finally being able to achieve the goal of actually having the LED and especially of hosting it in the midst of the Chinese government’s crackdown on rights-defending lawyers, would be a feather in DOS’s cap; something that they would want the world to know about.

Why remain mum on who these “experts” are and what they will be discussing?  Instead, DOS only states that there will be “government and non-government experts” who will “explore key legal issues of mutual interest.”  Could DOS be more vague?

There are occasions when the U.S. might achieve more by pressuring China behind the scenes.  In the case of Xu Zhiyong in 2009, it looks like that approached worked.  But the LED is a completely different beast – the existence of the Dialogue has long been made public and given that there will be non-government experts, it does not appear that there will be high-level discussions here on par with Hu-Obama talks.  It sounds like it is one group of lawyers talking to another.  Given some of the issues that have sprung up in the past few months, including the assault on public interest lawyers, China’s indigenous innovation policy, various WTO cases, and the criminal trials of U.S. citizens, it would be interesting to know what is on the agenda.

But in general, I do not hold out hope that the LED will produce any earth-shattering results, if it produces results at all.  While DOS has stated that there will be “in-depth discussions and practical cooperation on the rule of law” (yeah, I don’t know what that means either), it’s basically two days of meetings among strangers with translators in between.  How much can really be achieved?

And maybe that’s why the U.S. hasn’t given the LED the credit one would think it is due.  Maybe even DOS realizes that bringing over a delegation of Chinese lawyers and legal experts for a mere two days is likely a waste of taxpayer’s money.

I do think that more open dialogue between the U.S. and China is a good thing.  But there are better ways to increase the lines of communication between the legal communities in the two nations and assist China with improving upon its commitment to a rule of law.  Identifying and inviting reform-minded Chinese lawyers to the United States for a longer period of time – anywhere between three months to a year – is a better use of money.  Through that experience, a Chinese lawyer can see how our legal system functions, see the good and the bad, interact with U.S. lawyers, and determine which aspects if any should be replicated in China.

These types of sustained contact are what can best assist China with implementing a rule of law.  A two-day conference likely cannot.  But unfortunately, we won’t really know because nothing about the LED is publicly available.

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By Elizabeth M. Lynch, February 21, 2011

Originally posted on The Huffington Post

Rights-Defending Lawyer, Tang Jitian

The Chinese government has tried to break Tang Jitian’s spirit.  Failing, it now seeks to break his body.  Tang, a Chinese human rights lawyer, was forcibly abducted from his home on Wednesday, February 16 by the Beijing police.  Five days later, in contravention of Chinese law, Tang’s whereabouts remain unknown to his family, friends, and other human rights lawyers who desperately await some news of him.  Tang’s wife, after waiting at the police station for over four hours, was not permitted to see her husband and not informed of his whereabouts.  Tang’s “crime” in all of this: seeking to uphold individual’s legally-guaranteed rights and hold the State to its promise of a rule of law.

When Tang Jitian (pronounced Tang Gee Tea-ann) emerges from this unlawful and forced seclusion, he may be badly beaten, tortured and abused.  Soon after his abduction on Wednesday, Tang was transferred to the Beijing Public Security Bureau (PSB), an outfit that has been assigned the task of suppressing China’s nascent human rights movement.  Violence is a necessary part of the PSB’s mandate: it provides a very physical signal to other human rights lawyers what awaits them if they become too vocal, organized, or, ironically, too successful in bringing cases to protect citizen’s rights.  But this State-sanctioned violence is outside the limits of the law, and makes one wonder that if, by attacking these rights-defending lawyers (in Chinese, weiquan lawyers), the Chinese government is really committed to a “rule of law” society or if the use of such language by Chinese officials is a mere mirage.

The Breaking of a Body: Tang Jitian’s Potential Fate While in PSB Custody

Human rights lawyer Gao Zhisheng (pronounced Gao Zhi-sheng) likely serves as the most potent reminder of the

Human Rights Attorney, Gao Zhisheng

lawlessness of the PSB.  In 2001, Gao was listed by China’s Ministry of Justice as one of the country’s top-ten lawyers for his work representing victims of medical malpractice and farmers who were denied just compensation for their land.  But as Gao took on more controversial cases – particularly defending Falun Gong practitioners, a quasi-religious organization that the Chinese government perceives as a real threat to its power – government respect for his work quickly faded.   In December 2006, Gao was convicted of subversion and was given five years probation to be served from his home.  However, in February 2009, Gao was abducted from his home by the police.  This was the second time he was abducted, the first in 2007 where he was tortured for over 50 days.  But this time, Gao’s abduction would be for much longer.  For over fourteen months, he was not heard from and no one knew where he was.  In April 2010, Gao emerged from seclusion only to be abducted again only two weeks later.  During the time he was free, he was able to report to the Associated Press the torture he underwent while in police custody.

What awaits Tang may be similar – 48 hours of continuous beatings, various forms of physiological torture, wet towels over one’s face to give the feeling of suffocation – or even worse.  Unlike Gao Zhisheng, who is well known in the international community, or Teng Biao, a famous Chinese law professor and human rights activist who, because of his status, experienced a less violent beating when he was taken into custody for a few hours by police last December, Tang does not have such connections to protect him.  Without such an international cache like Teng Biao, Tang is an easy target for the Chinese security apparatus and will likely be used to violently symbolize the PSB’s power over the human rights lawyers.

Trying to Break a Spirit: Tang Jitian’s Disbarment

Wednesday’s abduction was not the first time that Tang has been on the Chinese government’s radar.  In May 2010, because of his defense of a Falun Gong practitioner in Sichuan province, the Beijing Bureau of Justice – the government body that manages the legal profession in Beijing – disbarred Tang from the practice of law.  Ostensibly arguing that Tang violated courtroom rules, the Beijing Bureau of Justice’s decision was largely seen as political.  Similar to the United States, disbarment in China is reserved for those lawyers who commit a crime.  Tang was the first lawyer to be disbarred for what merely appeared to be zealous advocacy.

Since his disbarment, Tang has had no way to economically support himself, relying solely on the kindness of other human rights lawyers.  Such a blow has had its impact and more recently, Tang had become depressed about his situation, although still very active in the human rights movement.  One would have thought that this would have been sufficient for the Chinese government – that by taking away Tang’s livelihood, it would not seek to detain him.  One would also think that such action would be unnecessary: Tang’s disbarment was a clear signal to other human rights lawyers that the State could use vague provisions of the law to disbar them and deny them their raison d’etre.  But it appears that disbarment was not punishment enough for the PSB.

Why Abduct Tang Jitian Now? China’s Rule of Law Regression

The immediate cause of Tang’s abduction relates to the recent house arrest and abuse of another human rights lawyer,

Human rights lawyer, Jiang Tianyong

Chen Guangcheng (pronounced Chen Gwang-chung).  Chen, a blind, self-taught lawyer who represented women forced into abortions by their village government, has been under house arrest since he was freed from prison in September 2010.  Last week, Chen and his wife were reportedly beaten after they leaked an hour-long video of their daily surveillance to the U.S.-based human rights and religious group, China Aid (for the video, click here).  On Wednesday afternoon, Tang Jitian had lunch with a group of Beijing human rights lawyers to discuss what the group could do to support Chen.  Soon after this brain-storming session, Tang was abducted.  Additionally, another participant of the Wednesday lunch group has also been abducted.  On Saturday, February 20, 2011, human rights lawyer Jiang Tianyong (pronounced Gee-ong Tea-ann young) was taken away in an unmarked van, only days after he was roughed up while in police custody.

But Tang and Jiang’s belief that the law should be followed and individuals’ rights should not be trampled on by the State is the real reason for his abduction and likely abuse at the hands of the PSB.  Over the past few years, China’s human rights attorneys have become more organized, using modern technology to quickly communicate with each other, and increasingly vocal, demanding that  the government abide by its own laws when it comes to the people’s civil rights and civil liberties.  Instead of responding positively to these developments – developments that largely symbolize a growing rule of law society and an emerging civil society  – the Chinese government and the Chinese Communist Party (CCP) has further entrenched its authoritarian rule and has used increasingly sever measures to break these human rights lawyers. While Chinese human rights lawyers’ cases would be everyday affairs for public interest lawyers elsewhere in the world, the CCP views these lawyers as a threat to their one-party rule and the PSB views them as a threat to its all-inclusive, and many times illegal, policing methods.  Based upon the recent abduction of Tang Jitian and Jiang Tianyong, the PSB and the CCP will do whatever it takes to suppress these human rights lawyers.

On Saturday, while rumors were circulating on the internet that China itself was to have a “Jasmine Revolution” following the events in the Middle East, a Chinese rights activist tweeted that the Chinese government detained twenty-one other human rights attorneys: Zhu Yufu, Liao Shuangyuan, Huang Yanming, Teng Biao, Ran Yunfei, Li Tiantian, Liu Guohui, Ding Mao, Lu Yongxiang, Xiao Yong, Zhang Jianping, Shi Yulin, She Wanbao, Li Yu, Lou Baosheng, Wei Shuishan, Zhang Shanguang, Li Xiongbing, Xu Zhiyong, Huang Yaling, and Li Bo.  Many may suffer physical abuse at the hands of the PSB.  Some already have.

Why Should Anyone Care?

I met Tang Jitian when I was last in China and was impressed, not just with his bravery, but also with understanding of his role in pushing the Chinese government to truly commit to a rule of law.  If human rights lawyers are suppressed now he told me, there will be no one to take over the movement.  Tang is right and breaking the movement appears to be one of the goals of the Chinese government.  By openly subjecting human rights attorneys to constant surveillance, disbarment, psychological threats, and physical abuse, the Chinese government hopes that once this generation of human right lawyers pass, no younger lawyers will dare to take up the mantle; the repercussions are too severe.

Secretary of State Hillary Clinton to take a hard line on human rights

But the question remains, will the rest of the world allow this?  Last month, the Obama Administration impressed many by repeatedly raising the issue of human rights with Chinese President Hu Jintao.  Just days before Hu’s arrival in Washington, D.C., Secretary of State Hillary Clinton bluntly discussed the plight of China’s human rights lawyers, stating that the United States will expect China to fulfill its own promise of rule of law: “America will continue to speak out and to press China…when lawyers and legal advocates are sent to prison simply for representing clients who challenge the government’s positions….”  The time has come for the United States to back-up that statement.

The Obama Administration has already expressed its concern with the treatment of Chen Guangcheng.  But it cannot forget the less known advocates like Tang Jitian and Jiang Tianyong – without some form of international recognition of his situation the PSB will believe it has the cover to do with Tang and Jiang what it wants.  Furthermore, the Obama Administration needs to see the Chinese government’s recent reaction as an affront to a “rule of law” and also needs to comment on the importance of not just a “rule of law” in China but on the existence of a vibrant public interest law bar.  Human rights lawyers directly challenge the State in order to protect individual’s legally-guaranteed rights; only when these lawyers are able to more freely function in society will China have any meaningful rule of law.

A meaningful rule of law in China is not just an abstract principle for Americans.  As more Americans do business in China and as the U.S. government seeks to increase the number of students studying in China to over 100,000, rule of law in China will become an everyday concern.  Last year’s arrest and prosecution of Australian citizen and Rio Tinto executive Stern Hu and the recent conviction of U.S. citizen and geologist Xue Feng embody the importance of China’s rule of law development for Americans.  The Obama Administration needs to publicly condemn the Chinese government’s recent suppression of human rights lawyers, call for the release of Tang Jitian, and frankly question the Chinese government’s commitment to a rule of law.  Tang and Jiang’s safety depends on it.

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By Elizabeth M. Lynch, December 27, 2010

With President Hu Jintao set to make an official State visit to the U.S. next month, expect an increase in op-eds concerning violations of human rights in China and the demand that President Obama raise human rights issues with President Hu.  These op-eds usually name particular human rights activists, those who have been at it the longest and whose regular imprisonment and abuse make the international news.  Teng Biao is one such human rights lawyer who receives international attention whenever the Chinese police take him into custody, which, unfortunately, is a fairly regular occurrence.

In a recent essay translated in the Wall Street Journal, Prof. Teng recounts the wrongful detention and police brutality he suffered on December 23, 2010, when attempting to visit a colleague’s mother.  But what makes Prof. Teng’s essay particularly poignant is that he admits that because of his special status as an internationally-known human rights lawyer, the beatings he suffers at the hands of the police are much less severe than someone with less international name recognition.

The op-eds that will inevitably appear prior to President Hu’s visit to the U.S. should not just call for the freedom of a single human rights activist; rather it is important that these op-eds also look at the systemic problems with the culture of lawlessness that permeates the Chinese police and the lack of a rule of law.  Prof. Teng portrays a police force drunk on its own power and willing to cast aside the law to do as it pleases, including abusing its citizens.

‘A Hole to Bury You’
A first-hand account of how China’s police treats the citizens it’s supposed to serve and protect.

Human Rights lawyer, Teng Biao

By Teng Biao*

Beijing – On Dec. 23, the United Nations International Convention for the Protection of All Persons From Forced Disappearance came into force. China has declined to accede to this convention. My experience that same day is just one of many examples of how the authorities continue to falsely imprison Chinese citizens.

That evening, I was in the Xizhimen area of Beijing chatting with my colleagues Piao Xiang, Xu Zhiyong and Zhang Yongpan. Ms. Piao had been disappeared after she and I went to Dandong on Oct. 7 to argue the court case of Leng Guoquan, a man framed by the police for drug trafficking; she had only been released on Dec. 20. Her abductors had been officers from the state security squad of the Public Security Bureau. I asked her to narrate the entire process of her disappearance in detail.

Later, I suggested to Mr. Zhang, “Let’s go and see Fan Yafeng’s mom.” The day before, we had contacted fellow human rights lawyer Fan Yafeng and found out that he was under strict house arrest. But he had said that his mother was going to be alone at home in the evening and so I thought we should go see her.

Because I used to go there frequently I remembered clearly where she lived. As Mr. Zhang and I entered the block of flats and started walking up the staircase, I had a feeling that someone was following us. Observing that we went to the third floor, a young security guard asked us whom we were visiting. We said, “We’re seeing a friend.” Immediately, he called out for someone else to come up.

We knocked on the door and were greeted by Mr. Fan’s mother. But as we entered the flat, the security guard came with us, and a person in plainclothes stormed in just behind him. The man in plainclothes demanded to check our IDs in a very coarse manner. I asked him in a loud voice, “What sort of people are you? How can you enter a private residence without permission?”

The plainclothes man said, “I am a police officer. We want to check your ID cards.” “You’re a police officer? I want to see your police ID.” “If I am telling you I’m a police officer, then that’s what I am. What are you doing here?” “Is that your business? How can you prove you’re a police officer if you don’t show your police ID card?”

***Click here to Read More***

*Prof. Teng Biao is a lecturer of law at the Law School of the China University of Political Science and Law (CUPL), one of China’s most prestigious law school.  After working with human rights lawyer Xu Zhiyong to successfully abolish the Custody and Repatriation system, Teng and Xu opened the public interest law firm, Open Constitution Initiative, which was shut down in summer 2009.  Teng has been repeatedly warned by administrators at CUPL that if he continues with his rights defense work, he could lose his job and even his personal freedom.

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By Elizabeth M. Lynch, July 21, 2010

Zhao Zuohai, freed after 11 years in jail for a murder that never happened

May 2, 2010 was the day that Zhao Zuohai got his life back.  It was also the day that China was forced to re-examine its criminal justice system and deal with the very real fact that many innocent people in China are in jail.

In 1999, after being tortured for 33 days, including being handcuffed to a chair, beaten with sticks and denied eating and sleeping for long periods of time, Zhao Zuohai, a poor farmer from a village in Henan Province, confessed to killing a fellow villager who had gone missing.  Although only a behead body was found, its identity not 100% certain, Zhao was convicted of murder.  But after Zhao served 10 years of his 29-year sentence, the “murder victim” turned up alive, returning to his village to obtain his social security benefits.  On May 10, 2010, a court threw out Zhao’s conviction and Zhao returned to his village.

Zhao’s wrongful conviction led to a very open critique of the Chinese criminal justice system and produced changes.  At least on paper.  A month after Zhao was freed, China passed its first rules to exclude during a trial any confessions obtained through torture.  While the regulations had been a work in progress for at least the past year, Zhao’s case likely sped up their issuance.  Then, on Friday, the Supreme People’s Procuratorate  took action, upgrading its compensation scheme for wrongful conviction from 111.99 yuan (approximately $16.50) to 125.43 yuan (approximately $18.50) for every day of a person’s sentence.

Although the recent police investigation into the circumstances surrounding Zhao’s detention has been surprisingly candid, with the public release last week of the police’s investigation (in the form of a “prosecution recommendation proposal” as required by Article 129 of China’s Criminal Procedure Law (CPL)), actual repercussions for the perpetrators remain to be seen.  While five police officers have been charged with “forcing a confession,” all remain free out on China’s equivalent of bail.  Unlike in the U.S., bail is notoriously uncommon in China, where suspects remain in custody up until trial.  The example of Australian national Stern Hu is typical – denied bail even though he posed little to no flight risk.

The decision to release a suspect on bail is usually made by a high official in the police or the prosecutor’s office.  And if the recent case of Xu Zhiyong is any guide, bail means that the case will likely never go to trial.  While it creates a legal limbo for the suspect, the suspect remains free, which beats sitting in a Chinese prison.

The fact that the five police officers responsible for the torture of Zhao Zuohai are on bail means that a trial against them is unlikely.  Additionally, a recent article by Shen Bin, a Shanghai lawyer, questions if a case can even be brought against the police (English translation courtesy of the Dui Hua Foundation).  Article 87 of the Criminal Law (CL) sets a statute of limitation for criminal prosecutions; for crimes that receive a sentence of five years or less, the statute of limitations is five years. In this case, the maximum sentence the police could receive is three years (CL Article 247), making the statute of limitations for bringing a case five years, which Zhao Zuohai’s case has long surpassed. Article 88 of the CL permits the statute of limitations to be ignored if the victim brought a charge of prosecution and the prosecutor ignored it, but it is unclear if Zhao Zuohai’s complaints of torture soon after his conviction are sufficient to rise to the level of “charge of prosecution.”

Zhao Zuohai’s wrongful conviction case confirms a criminal justice system that has a lot of failings.  But it also shows a somewhat more open Chinese government willing to confront some of these issues and a populace seeking to better protect criminal suspects.  However, with the fact that the police who tortured Zhao remain free on bail with little risk of prosecution, China still has a way to go before the danger of wrongful convictions is minimized.

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By Elizabeth M. Lynch, November 23, 2009

Originally Posted on the Huffington Post.

 Beijing, China – The U.S. press has not been kind to President Barack Obama and his recent visit to China.  Claiming that the U.S.’ tone has become conciliatory toward China, that the trip “yielded precious little” and even oddly comparing the Obama Administration’s behavior on the visit to a one-party, authoritarian regime, the U.S. press has all but designated the trip a failure.

But the trip was most certainly not a failure and in many ways fulfilled the U.S. press’ predictions – an event filled with a huge agenda covering a multitude of global issues, likely offering few deliverables, and probably playing down, at least publically, human rights.

So if the trip confirmed the press’ earlier predictions, then what’s got their panties all in a bunch?  Perhaps the one thing that upsets the press more than anything is a lack of access, and on this trip, the press certainly played second fiddle.  Questions were not taken from the press during last Tuesday’s press conference and very little other access was offered to the President.  But with only a day and a half in Beijing, this trip was not really about the press.

But in measuring President Obama’s trip based solely on their access, or lack of, the U.S. press has failed to report on some pretty substantial results of President Obama’s trip to China.  In what you likely will not find in other media outlets that are still licking their wounds from an alleged snub, below are some of the surprising deliverables from the visit.    

1.  Increased Military-to-Military Contact and High Level Military Exchanges

If the lack of communication between the U.S. and Chinese militaries does not keep you up at night, well it should.  The U.S. has a better relationship with Russia’s military than it does with China’s, but has more potential to cross paths with China’s because of the U.S.’ military presence in Asia.  Without proper channels of communication between the two militaries, a small skirmish can easily become a major crisis, as President Obama knows from his first months in office when Chinese navy ships circled and threatened a U.S. navy vessel in the South China Sea. 

Adding to the lack of communication is China’s broad interpretation of its “exclusive economic zone” (EEZ). A country’s EEZ extends 200 miles from the coast and gives the country sovereign rights over economic activities in those waters (usually the country uses its economic zone to search for natural resources).  By China’s broad definition, its sovereign rights in the EEZ expand outside of the economic realm, permitting it to interfere with other countries’ ships that enter its EEZ.  The U.S., as well as most other countries, perceives the EEZ as providing solely economic sovereignty for the coastal state, allowing other countries’ ships free access.  For the U.S., this also includes ships that are conducting military surveillance on the coastal state (for an excellent assessment of these different interpretations, see Margaret K. Lewis’ “An Analysis of State Responsibility for the Chinese-American Airplane Collision Incident”).  Needless to say, these different interpretations only add to the tensions between the two militaries. 

In the U.S.-China Joint Statement issued last week, much needed progress was made on the military front, especially in terms of communication.  High level exchanges between the U.S. and Chinese militaries will continue, with the Chief of the General Staff of the China’s People’s Liberation Army, General Chen Bingde, visiting the U.S. and both Secretary of Defense Robert Gates and Chairman of the Joint Chiefs of Staff Admiral Michael Mullen making a trip to China.

In regards to differing definitions of the EEZ, the Joint Statement alludes to this issue, showing that the two sides likely discussed and acknowledged the problem (From the Joint Statement: “The United States and China agreed to handle through existing channels…maritime issues in keeping with norms of international law and on the basis of respecting each other’s jurisdictions and interests”).  Granted they failed to reach a compromise, but this is not an issue that will be easily solved.  Just discussing this sensitive topic is progress. 

2.  Both Public and Private Discussion of Human Rights

Interestingly, a press that largely ignored this issue prior to President Obama’s trip is making a big deal of his “silence” on human rights violations in China.  Last I checked though, freedom of speech is usually regarded as one such right and President Obama discussed this issue rather bluntly and passionately at the Shanghai town hall.  While it is debatable as to whether focusing on freedom of expression on the internet is sufficient to assist China with a development of a civil society and a rule of law, it is difficult to argue that President Obama did not publically bring up the subject of human rights. 

Furthermore, in his letter written to China’s Southern Weekend newspaper, President Obama stressed the importance of a free press.  True, this letter was not permitted to be circulated to a wider audience, but it portrays the President’s continued emphasis, both publically and privately on human rights.

The Joint Statement also discusses human rights in general and calls for the next official human rights dialogue between the U.S. and China to be held by the end of February 2010 in Washington, D.C.  The Joint Statement also stressed the importance of rule of law in China and agreed to reconvene the U.S.-China Legal Experts Dialogue (see the Dui Hua Foundation website for further background).  With the increasing push back by the Chinese government in the area of rule of law, especially as it pertains to civil rights and civil liberties, deepening cooperation is an important deliverable.

It is true that the Obama Administration has opted more for a strategy of quiet engagement on this issue.  Whether the approach is effective remains to be seen.  This past summer, the Administration was able to secure the release of public interest attorney Xu Zhiyong through behind the scenes pressure on the Chinese government.  However, almost immediately after President Obama left China, the Beijing police apprehended and beat public interest lawyer Jiang Tianyong (pronounce Geeang Tian-young) as he was walking his 7 year old daughter to school.  While Mr. Jiang has since been released, he is under very tight surveillance.  Perhaps if President Obama had mentioned the plight and importance of public interest attorneys in China, the arrest of Mr. Jiang might not have happened.  Or maybe it would have.

Either way, the U.S. press’ conclusion that President Obama “soft-peddled” human rights on his trip does not appear to ring true.  Human rights was certainly discussed, both publically and privately, it just appears that perhaps China was not listening. 

3.  Clean Energy and Climate Change

As expected, the U.S. and China entered into a series of cooperative agreements pertaining to clean energy and climate change technology.  While neither side agreed to emission targets, the level of detail provided for in the issued agreements was more than anticipated.  Most interestingly, the U.S.’ Environmental Protection Agency and China’s National Development Reform Commission signed a memorandum of cooperation to help China develop its capacity to measure its greenhouse gas inventories.  This is no small feat.  China’s does not currently have the capacity to accurately measure its greenhouse gas emissions and thus, if it was to agree to emission targets, would be unable to provide verifiable data.  China’s lack of capacity on this front has rightly been a sticking point for many in the U.S. Congress, preventing the passage of domestic climate change legislation that would be used to bind the U.S. internationally.

This memorandum of cooperation is the first step to enable China to agree to emission targets and for the rest of the world to believe them. 

President Obama’s visit to China was certainly not overly exciting but it was far from the failure that the U.S. press has made it out to be.  It also does not signify the U.S.’ decline as some alarmist media outlets have claimed.  Instead, the visit was a series of tough negotiations between two global powers.  Both had winning issues and losing ones.  And in the end, President Obama likely walked out with a little more than expected.  For me, that’s an accomplishment.

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By Elizabeth M. Lynch, November 3, 2009

Originally posted on the Huffington Post.

Obama & Hu share the stage in Pittsburgh. Soon it will be Beijing.

President Obama will visit China, his first trip to the country, from November 15 through the 18.  Although his visit is less than two weeks away, the question remains – what will be on the agenda for his three days in China.  While the White House has yet to release President Obama’s schedule, expect President Obama and President Hu Jintao (pronounced Who Gin-tao) to discuss military ties, global economic health, climate change and human rights.  

(1)   Improved US-China Military Relations – Let’s Hope

While U.S.-China economic ties bring the two nations into alignment on various issues, military-to-military relations remain dangerously tense.  President George W. Bush realized this early on in his presidency after a U.S. spy plane crashed with a Chinese military jet and was then forced to make an emergency landing on Hainan Island in China.  For a few days, it was unclear what the Chinese military would do with the captured U.S. pilots, leading to the acknowledgement that better communication between the two militaries was necessary.  

President Obama has already had a taste of the danger of weak military ties this past March, when five Chinese naval vessels circled and threatened a U.S. navy ship in international waters, 75 miles off of Hainan Island.  

The People’s Liberation Army (PLA) is largely to blame for the lack of communication between the two militaries.  Historically, the PLA has remained secretive about its military development and has usually refrained from military-to-military relations with other countries, although that is slowly changing.  While the Clinton Administration made some headway, at least on paper with the signing of the Military Maritime Consultative Agreement (MMCA), suspicion between the two militaries has remained high and there are no procedures in place for each country’s military to follow should unexpected events occur.   The U.S.’ military agreements with all other countries, including Russia, contain provisions to deal with emergency incidents to prevent their escalation.

As an emerging superpower and already a regional one, minor military incidents with China will likely continue to

Xu Caihou & Robert Gates - maintaining close ties?

occur, especially as China rapidly expands its military spending and build-up. Without better communication, these incidents can easily turn to major crises.  The Obama Administration appears to recognize this danger.  Defense Secretary Robert Gates just concluded a meeting with Vice-Chairman of the Central Military Commission (CMC), Xu Caihou (pronounced Sue Tsai-ho) in Washington, D.C. after Mr. Xu spent a week in the U.S. viewing U.S.  military bases and meeting with other military leaders. 

Securing a better understanding between the two nations’ militaries would be no small feat.  The PLA remains a very powerful, and largely independent, force within the Chinese government and President Hu Jintao’s control over the organization remains questionable (see Susan Shirk, China: Fragile Superpower, p. 73).  But it appears that President Obama, especially after the March 2009 incident in the South China Sea, recognizes the importance of pushing China forward to secure better military ties.  However, anticipate that China will raise the issue of U.S. arm sales to Taiwan, and may very well use that as a bargaining chip for better U.S.-China military relations. 

(2)   Coordination on the Global Economic Crisis – Tow Superpowers Tied Together

To make it through the current global economic crisis, China needs the U.S. and the U.S. needs China.  While China’s stimulus package has taken hold quicker then its American counter-part, China’s future is still largely dependent on the U.S.’ success.  Last year, China surpassed Japan as the largest holder of U.S. Treasuries, holding approximately $800 billion (25% of total U.S. Treasuries); this amount accounts for approximately 40% of China’s foreign reserves.  In order for the U.S. to continue to fund its stimulus, it needs China to continue to purchase U.S. Treasuries.  But at the same time, China right now has no choice but to hold the treasuries, intertwining China with the future of the U.S. economy. 

Because of this arrangement, expect China to scold the U.S. on its increasingly high levels of debt.  This though is more for the domestic Chinese market than actually for U.S. policy makers.  The Chinese government’s hands are tied – it cannot sell off their Treasuries; its act of selling would inevitably cause market to decrease the price of U.S. Treasuries while China is attempting to sell.  But it still has to show the Chinese people that it is doing something. 

On the U.S. side, anticipate the issue of currency manipulation to be raised but not to be discussed in-depth.  Commerce Secretary Gary Locke raised the issue on his trip to Guangzhou last week, a surprise since currency has not been a high priority as of late.  However, for certain U.S. industries, such as the steel industry, China’s currency policy remains a viable issue. 

In terms of trade issues, such as the recent U.S. tariffs on tires and Chinese threats to slap tariffs on certain U.S. imports in response, expect some discussion.  But largely, this “trade war” has become much less of a problem.

Instead, U.S.-China discussions on the economy will likely entail how U.S. and Chinese companies can continue to work together.    

(3)   Climate Change & Copenhagen – “I’ll Go If You Go”

Do not expect much in terms of climate change.  Todd Stern, the Administration’s special envoy on the issue, announced last week that a bi-lateral agreement is not likely to emerge from President Obama’s and President Hu’s discussions on climate change.  Instead, the heads of state of the two leading emitters of greenhouse gases are hoping to reach “a common understanding.” 

Anticipate that a “common understanding” will involve a discussion of financial and technical assistance to China to help combat climate change.  As of the U.N. General Assembly in September, the U.S. and China do not see eye-to-eye on this issue.  While the European Union has pledged to provide financial assistance to developing countries, including China, the Obama Administration has yet to agree to such assistance to China.  However, it is this issue that the U.S. should attempt to parlay into actual emission targets from China. 

In terms of greater technical assistance, expect President Obama to ask for more protection of intellectual property and actual enforcement of the law in China, an issue Commerce Secretary Gary Locke recently raised on his October 2009 trip to China. 

Finally, the success of the Obama-Hu talks on climate change will determine whether either leader will join the rest of the world in Copenhagen in December.  This is pretty much a package deal; if the U.S. and China reach a “common understanding,” expect both Obama and Hu to attend Copenhagen.  If they do not, expect both to be watching it on T.V. from home. 

(4)   Human Rights & Rule of Law – This is Where the Surprise will Lie

Whether President Obama brings up the issue of human rights is currently the big “if” of his visit.  Secretary of State Hillary Clinton received tremendous backlash, both at home and internationally, when she heavily implied that the U.S. would not press China on human rights at the expense of other issues. 

However, during Ambassador Huntsman’s Senate confirmation hearing, he repeatedly stressed the importance of a continuous dialogue with China on human rights.  Furthermore, the release of activist-attorney Xu Zhiyong upon Ambassador Huntsman’s arrival to Beijing is likely a reflection of pressure from high up in the Administration (Xu Zhiyong ‘s organization received financial support from Yale University, Secretary Clinton’s alma mater).  But more than anything else, Xu Zhiyong’s detention made apparent to the Administration the important role that the U.S. still plays to many of these Chinese human rights activists; the U.S. still serves as their beacon of hope, and often gives these activists the courage to push forward when many in their country and their government work against them. 

Will President Obama make public comments about human rights?  Expect something.  Likely though, the issue of human rights will be painted as one of “rule of law.”  Recently, a group of Chinese lawyers convened a press conference in China imploring President Obama to raise the issue of human rights but in terms of their ability to bring cases in court concerning religious freedom and human rights.  Additionally, the Xu Zhiyong case showed the still arbitrary nature of the Chinese justice system.

Obama Before the Crowds in Germany. Will it be the same in China?

In Beijing, rumors abound on whether President Obama, like his Democratic predecessor President Bill Clinton, will speak at one of the many universities in the capital.  President Clinton’s speech at Peking University was historic, impressive and broadcasted to the Chinese people; the capital essentially stood still while he spoke.  Given President Obama’s panache for large-scale, media-friendly events, it is very likely that Chinese officials will allow a speech to the Chinese people.  However, will the Chinese state-controlled media appropriately translate President Obama’s speech remains to be seen.  Even President Obama’s inaugural speech, which never even mentioned China, was partially censored.

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By Elizabeth M. Lynch, October 21, 2009

On October 16, 2009 the Congressional Executive Commission on China (CECC) released its 2009 Annual Report examining China’s human rights record and its progress toward a rule of law.  Click here for a PDF version of the CECC’s 2009 Annual Report.

The CECC was established in 2001 after the U.S. normalized its trade relations with China.  Prior to normalization, Congress reviewed U.S. relations with China every year to determine if most favored nations status should continue to be granted to China.  Inevitably, this annual review focused on China’s human rights record and legal development.  However, with China’s accession into the World Trade Organizations (WTO), a yearly Congressional vote on trade relations with China was no longer possible.  As a result, in agreeing to China’s entry into WTO, the CECC was created to monitor China’s human rights, review its legal development, and maintain a political prisoners database.

As part of their mandate, the CECC is required to issue an annual report.  This report is thoroughly researched and provides an excellent snapshot of China’s progress in regards to international human rights standards and development of rule of law in more sensitive areas such as freedom of expression, criminal justice and access to justice.  The 2009 Annual Report is perhaps the most in depth, providing over 300 pages of data; pages 8 through 39 provide a summary of the Commission’s findings, showing both China’s progress as well as recent set-backs, and recommendations for U.S. policy makers.

Interestingly, the 2009 Annual Report was issued on the eve of President Obama’s trip to China (set for November 15-18), raising the question, will President Obama discuss any of these issues with Chinese President Hu Jintao?  On Secretary of State Hillary Clinton’s visit to China in February 2009, Secretary Clinton seemed to imply that human rights would take a backseat to other issues with China, such as the global financial crisis, climate change, and nuclear non-proliferation and regional security.  However, more recent events, such as the release of rights activist and attorney Xu Zhiyong as the new U.S. Ambassador to China arrived in Beijing and even more recent interviews with Secretary Clinton, have shown that the Obama Administration is raising human rights issues, albeit in a behind the scenes sort of way.  Will President Obama publically discuss human rights and legal development to the Chinese public in November?  And even if he does, will that portion of his speech be translated into Mandarin?

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By Elizabeth M. Lynch, October 19, 2009

Many Western China observers were dismayed by this past summer’s arrests and harassment of Chinese public interest lawyers; for many, such a crackdown evidenced a step back in creating an independent legal system.  Cheng Li and Jordan Lee of the Brookings Institution offer a different interpretation.  In their recent work, “China’s Legal System,” Li and Lee maintain that while the arrest and detention of rights lawyers like Xu Zhiyong was certainly a disappointment, China’s recent progress with legal reform overshadows this past summer’s events.  But even though Li and Lee are correct to note some of the positive developments, especially with the growth of the legal profession in China, they perhaps put too much weight on these developments at the expense of recent obstacles.

Li and Lee offer four developments that they claim bode well for legal development in China: (1) an increasing body of law, with new laws being written and old ones amended; (2) the astronomical growth in the number of lawyers; (3) increasing economic autonomy and a greater sense of professionalism in the legal profession; and (4) the rapidly rising number of legally-trained government officials.

Li and Lee cite the huge number of laws that China currently has on the books (231 individual laws, 600 administrative regulations, 7,000 local rules and regulations, and a sizable number of departmental regulations), but only pay passing attention to China’s difficulty in implementing laws on the local level, arguably the most important aspect of a functioning legal system.  To be sure, drafting laws is the first step; but without meaningful and consistent implementation, the value of such a large body of law is questionable.

Additionally, Li and Lee look to the increased professionalization of the legal profession as a positive sign.  It is true that the Chinese bar has become more professionalized and lawyers are no longer employees of the State as they were in the 1950s.  But Li and Lee make no mention of the fact that the All China Lawyers Association and local bar associations are government-controlled and answer to the Ministry of Justice (MOJ).  Prof. Jerome Cohen of NYU’s U.S.-Asia Law Institute has consistently commented on this lack of independence of the Chinese bar and has noted the role that the MOJ has played in influencing bar associations to punish rights lawyers that go a bit too far for the government’s taste.

Finally, Li and Lee are correct to note that there has been an increase in the number of legally trained government officials rising through the ranks.  Most officials in the current leadership have a science background, with very few with a background in law or even the social sciences.  In the next generation of officials, currently being groomed for powerful positions in the Party and the government, a majority have a background in the social sciences.  But only one, Li Keqing, has a background in law.  Thus, a shift toward leaders with legal training is not as apparent as Li and Lee contend.  Furthermore, such a shift is not reflected in the positions in the Chinese government that one would think necessitate legal training.  Hu Jintao’s recent appointments to the MOJ and the Central Party Political-Legal Committee (the committee responsible for all legal institutions) all lack legal training; instead, many have training in the police force providing for a more militant view of justice.  Even the new president of the Supreme People’s Court, Wang Shengjun, has no formal legal training.

China’s legal development has come a long way since the era of Mao, when law was merely a tool for class struggle and lawyers were often harshly persecuted.  But using the Cultural Revolution as a baseline will only impede China’s progress; arguably, everything is better now than it was during the Cultural Revolution.  China has made progress, but its progress should not be overstated and its limitations need to be noted in order to move forward.

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By Elizabeth M. Lynch, October 10, 2012

Too often Westerners’ views of China are shaped through the eyes of a select few – Ai Weiwei, Han Han, and in the legal world, He Weifang, Xu Zhiyong, and Chen Guangcheng.  How they see China is often how we see it.  China is far from an open society and these individuals are educated, media savvy, and maintain a good rapport with foreign reporters.  Make no mistake, they have important stories to tell.

But it is rare to know what the average Chinese person thinks and feels about his own history; what is important and what shouldn’t be forgotten.  Although China has a history that spans more than 2,000 years, it doesn’t have the same respect for the individual history and experiences of the everyman.  There is no Library of Congress that attempts to collect the stories of former slaves before they die or a StoryCorps project where anyone can go to a recording booth and interview a friend or family member.  In some ways, there are likely stories that the Chinese Communist Party (“CCP”) would rather forget.

Fortunately for China and for us, there is LIAO Yiwu and The Corpse Walker: Real Life Stories, China From the Bottom Up.  In his way, Liao Yiwu is trying to be the Library of Congress, interviewing average people before their histories are forgotten.  In The Corpse Walker, 27 of Liao’s interviews with average Chinese people are translated into English, giving the reader a more democratic view of China.

Three of the first four of Liao’s  interviews – The Professional Mourner, The Public Restroom Manager, and The Corpse Walkers – paint a picture of a China that is long gone.  But Liao is able to capture these  dying professions and the men who filled them.  And while they tell the stories of China’s past, their stories are still familiar.  The public restroom manager is still bitter from an incident with a young punk who teases him because of his work, but ultimately he is just happy to have a job.  The corpse walker discussing how to “walk a corpse” and tells his story with the nostalgia of an old man thinking back to other times.

But in each of the 27 interviews, not a single person has been left unscathed by the CCP’s various campaigns and politics.  Liao doesn’t have to delve deep to get these stories.  For each person, the Land Reform Movement, Great Leap Forward, the Anti-Rightist Campaign, the Cultural Revolution, or the Tiananmen crackdown, have shaped their lives.

It is particularly poignant in The Yi District Chief’s Wife.  The wife – Zhang Meizhi – and her family did not fare well during the Land Reform Campaign.  As members of the highest caste of the Yi minority, a caste-based ethnic group in southwest China with land being owned primarily by the highest caste, Zhang and her family were major targets of the Land Reform.  After witnessing her husband’s execution and the subsequent cutting of his tongue from his mouth,  Zhang’s struggle was far from over.  Her eldest son became a target, forcing him to live in a hole in a ground for years to avoid the same fate as his father, all the while degenerating into a wild existence.  Today, Zheng has not forgotten; she has forgiven to a degree, but she has not forgotten.  Unfortunately, as she points out, the children of those who want to forget already have.

In The Retired Official, Liao interviews Zheng Dajun, an official who headed a government work team in rural Sichuan during the Great Leap

Rural residents and victims of China's Great Leap Forward

Forward.  Zheng eye-witnessed a country descending into one of the worst famines in modern history and a people spiraling to a state of nature in the rural areas.  Slowly the starving people moved from eating white clay and drinking castor oil to cannibalism.  Although Zheng repeatedly informed higher officials, nothing was done to stop the export of needed grain from the rural areas to the cities.

Perhaps the most moving of all of Liao’s interviews is The Tiananmen Father.  As poor workers in Sichuan province, Wu Dingfu and his wife felt lucky that one of their sons excelled in school; both were ecstatic when their son passed the college entrance exam and attended college in Beijing.  Wu tells the story of his son, a young man who believed in something and then like many college students, got in over his head.  But before he could get out, he was killed by the troops on their way to Tiananmen Square.  In Wu’s interview, you can feel not just the ache of a father bringing not just his son’s body back to Sichuan, but the collapse of a dream that his family could do better.

The Corpse Walker is an important read since the voices of China’s average person are finally heard.  And what’s remarkable is that while their stories are different from ours, the emotions are not: the bitterness of working a menial job; the need to forgive to go on living; the anger of a former government official who tried to do the right thing; the emptiness of a father who has to bury his son.  If just for this reason – for showing the humanity of the average Chinese person – The Corpse Walker is an important read.

But The Corpse Walkeris vital as a depository of China’s history, the history that the people – not the Party – wants to tell.  The Chinese Communist Party is in denial of its past; it does not want to recognize the divisions and violence that has been a result of its rule and it hopes

The author, Liao Yiwu

that China’s economic miracle can serve as bread and circuses for the young, causing them not to even ask about the past.  But as Liao makes clear in some of his more prescient interviews, the past is often the catalyst for the future.  Can it be forgotten or more importantly, should it be?  For Liao, the answer is no, but for the rest of China, the answer is much less clear.

Not all of Liao’s interviews are as remarkable as the ones mentioned here.  Some are boring and at times, Liao can be rather didactic in his questioning of those that he has less sympathy for which detracts from the stories he is trying to tell.  But the interviews mentioned here, especially The Tiananmen Father, must be read.  Because to understand China’s present, we must understand how the victims of China’s past live today.

Rating:

The Corpse Walker, by Liao Yiwu (Anchor 2009), 352 pages.