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By Elizabeth M. Lynch, December 28, 2009

The Guardian has reportedthat Akmal Shaikh was executed by leathal injection at 10:30 AM local time on Tuesday, December 29 (9:30 pm Monday EST).

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By Elizabeth M. Lynch, December 28, 2009

The Times Online is reporting that Akmal Shaikh will be executed tomorrow morning, Tuesday, December 29 at 10:30 AM local time (9:30 pm, Monday, EST).  Mr. Shaikh will be executed in Urumqi, the capital of the Xinjiang Autonomous Region.  After being held for more than 2 years without any family contact, Chinese authorities allowed two of Mr. Shaikh’s cousins to visit him in his hospital room.  A group from the British Consulate has also paid a visit to Mr. Shaikh.  High level discussions between the British and Chinese governments are continuing, with the British government requesting clemency or at the very least expert testimony regarding Mr. Shaikh’s mental illness. 

While the Chinese government has maintained that the case was handled according to law, no expert evidence was permitted to be submitted regarding Mr. Shaikh’s mental state.  Instead, the lay opinion of judges was used to determine that Mr. Shaikh suffered from no mental illness. 

If the Chinese government really wants the rest of the world to respect its courts and not view them as mere kangaroo courts, they themselves have to first respect their own laws, something that was absent in Mr. Shaikh’s case and other criminal cases involving mental illness.  The Chinese Criminal Law offers protections to the mentally ill.  But without procedures in place to examine a defendant’s mental state by professionals, these laws are conveniently rendered meaningless. 

Protection of the mentally ill would not just be helpful to Mr. Shaikh, but would also prove beneficial to the multitude of mentally ill Chinese defendants that interact daily with China’s criminal justice system.  While the Chinese press and the Chinese government seems to think that Mr. Shaikh’s execution will be a victory for rule of law in China and a repudiation of the extra-territoriality that existed in China in the late 1800s, in reality it will prove to be a lost opportunity for the Chinese people.

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By Elizabeth M. Lynch, December 22, 2009

British citizen and Chinese death row inmate, Akmal Shaik

The Guardian has just reported that Akmal Shaikh‘s death sentence has been upheld by the Supreme People’s Court, China’s highest court.  An execution date has been set for December 29.  Execution will be by either lethal injection or firing squad.  All of Mr. Shaikh’s legal options have been exhausted and the only remedy left to save this arguably mentally ill man from execution is clemency fromChinese government.

As reported by the Guardian, the British government will be stepping up pressure on the Chinese government to grant clemency.  But given that  in politically sensitive cases  the Chinese legal system merely does the bidding of the Chinese leadership, clemency from a political official is highly unlikely.

While many Chinese officials have claimed that the courts having been following a “rule of law” in deciding this case, they have been using a fairly selective interpretation, only looking to the fact that the importation of drugs into China is a death-eligible offense.  But the issue in Mr. Shaikh’s case is that the Chinese courts have never allowed for a professional determination of Mr. Shaikh’s mental status.  The Chinese criminal law itself protects the mentally ill.  An insanity defense is permitted under Chinese law.  Furthermore, if a defendant’s mental illness does not rise to the level of an insanity defense, the courts are permitted to take into account the defendant’s mental illness during sentencing and are allowed to depart from the statutory requirements.

Although the Chinese law affords these protections, the Chinese courts have consistently refused to adopt procedures that would allow for a defendant to be professionally evaluated.  If Mr. Shaikh is executed, he will be the third  arguably mentally ill individual in the past three years that the Chinese criminal justice system has put to death (and those are the three that the Western media knows of; there are likely more).  What could have been an opportunity for the Chinese criminal justice system to face the fact that there  are no real procedures in place to protect the mentally ill, it has instead squandered.

Mr. Shaikh’s case has made headlines in the U.K.  But in the rest of the world, very little attention has been paid.  Other

Gordon Brown standing alone? Where's the rest of the world?

nations should wake up.  This case, and the world’s reaction to it, will set a precedent.  Every year, China receives more and more foreign visitors, as tourists, business executives or students.  Last month, in his speech at the Shanghai townhall, President Obama announced his goal of sending 100,000 U.S. students to China.  Given these facts, there is increasing likelihood that more foreigners will interact with the Chinese criminal justice system, a system that based on Mr. Shaikh’s case is a far cry China’s own criminal laws let alone actual justice.

The U.K. should not stand alone on this issue; other nations should also be commenting on China’s inability to follow its own laws.  In the past, the Chinese courts have executed arguably mentally ill Chinese citizens (see the case of Yang Jia and the case of Qiu Xinghua) and now the courts will execute an allegedly mentally ill British citizen.  Who will be next?

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By Elizabeth M. Lynch, December 17, 2009

Sec. of State Hillary Clinton in Copenhagen

Who would have thought that the U.N. Climate Change Conference could tear the world away from the on-going saga of Tiger Woods?  With protests in the streets of Copenhagen that escalate every day (click here for an insider’s perspective on the protests), a mass walk-out by developing nations from the conference, and constant barbs between the world’s two largest emitters of greenhouse gases (GHG), the U.S. and China, the drama is running high in the closing days of Copenhagen and the world is on edge.  Will there be a deal?

As Marcy Nicks Moody noted, a legally binding treaty will not emerge from Copenhagen. However, going into Copenhagen last week, with both the U.S. and China announcing their respective commitments, a strong political agreement seemed possible.  But with the increasingly antagonistic discussion between the U.S. and China delegations, has the world reached an impasse?  Should everyone pack their bags now and head home?

Not quite yet.  There is still reason to have hope.

First, the very fact that there is heated discussion, disagreement and even anger is a good thing.  If Copenhagen was going to be a rubber stamp, a mere sheet of paper that no one was going to pay attention to, there would not be such dissension in the ranks, especially from the U.S. and China.  But countries like China and the U.S. are strategically considering their interests in anticipation of a strong political agreement that will likely provide the framework for a legally binding one in the future.

Second, we are still in the negotiation stages.  Yes, the exchanges between the U.S. and China over financial assistance,

China's Climate Change Ambassador Yu Qingtai at Copenhagen

transparency, and caps have become more hostile, but that could also be because, now with China on a more equal footing in the world, it is able to negotiate harder and play both offense and defense.

Additionally, the climate change talks have proved to be a growing experience for China and its leadership.  Copenhagen is the first international summit of substance that China is a part of in its new status as an emerging global power, forcing its leadership to confront the reality that such a title comes with both advantages and disadvantages.  China’s increased status in the world gives it the negotiating power to better protect its interests in the final document, surely a distinct advantage.   But its increased status also means that China’s interests are no longer completely aligned with the other developing countries’ interests; while China is still the de facto leader of “the Group of 77 plus China” and holds sway over many of the African nations because of trade alliances, there are times when China’s interests are adverse to the developing world’s.  As China’s power continues to grow, such division between it and the developing world will inevitably increase and China will have to become more comfortable with this fact.  Copenhagen is a reflection of these growing pains.

So how do we move forward?

Tomorrow, the leaders of the world will converge on Copenhagen with the goal of producing a clear and strong roadmap to a legally binding treaty.  The biggest issue that could prevent some form of a deliverable is the U.S. and China relationship.  So how do we move forward?

China has demanded international funding for its climate change commitments.  China argues that the western nations, for the past few hundred years, have been able to grow without any restrictions on their development.  Fossil fuels were used without consideration for the climate and lands were deforested with abandon.  China argues that the West’s irresponsible development vis-à-vis the global environment is the cause of the current climate change crisis.  But by asking that all nations partake in a climate change deal, China maintains that the West is unfairly spreading the costs of its own development on all countries.  As a result, China is demanding that if the West wants it to agree to a climate change bill that would require China to pay for past western growth, the West needs to offer some form of payment.

The logic underlying China’s argument cannot be denied.  However, if a deal at Copenhagen is not reached, China will be the cause of the world’s future climate crisis.  By that time, when the “score” between the West’s development and China’s will be equal, it will be too late to broker a deal.  Additionally, China’s demand for some form of climate reparations comes at a financially difficult time.  Politically for the U.S., it’s difficult to justify a blank check to the U.S.’ largest debt holder.

However, the U.S. should not just walk away from China’s demand since the U.S. could benefit from this as well.  China has already stated that without international funding, it will not allow outside international verification of its Copenhagen commitments.  The U.S. has balked at China’s refusal to allow for outside verification, and rightfully so.  While China has made some progress in improving its statistical measurement ability, it is still worlds away from the West and given some of China’s past practice of using measurements that produce falsely positive results, the West is right to be skeptical.

But Copenhagen could serve as an opportunity to help China develop its capacity to measure and verify data as well as implement its commitments on the local level.  And this would not just help with climate change.  China has a horrible record of statistical reporting in every sector – environmental, criminal justice, trade disputes, and economic development.  However, with the assistance from the West, China will not just learn to better measure its own development but will become more comfortable with public reporting.  This could create a more reliable and transparent government, something that both the Chinese people and the outside world could benefit from.

Thus, hopefully in these last few days, the U.S. and China can reach a targeted agreement whereby the U.S. and the West will provide financial assistance to China’s attempts to better measure its data as long as China opens this process to U.S. and Western observation.

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By Elizabeth M. Lynch, December 15, 2009

Followers of China Law & Policy will remember the October story of Akmal Shaikh, a mentally ill British man convicted of drug smuggling and sentenced to death in China.  His case, which has garnered a lot of attention in his home country of Great Britain but little else where, demonstrates the difficulties that most criminal justice systems face when dealing with the mentally ill.  However, in China, because procedures have yet to be put in place to protect the mentally ill, the situation is particularly distressing.

Mr. Shaikh’s case is still in the hands of China’s Supreme People’s Court (SPC), China’s highest court.  As of today, the SPC still has not issued a decision.  In our piece from October, we called on the SPC to use this case as an opportunity to flesh out procedures to protect the mentally ill, protections that are normatively found in China’s current criminal law.

On Friday, the Global Time’s English edition published an interesting article stating that British Prime Minister Gordon Brown contacted Premier Wen Jiabao requesting that “mental health considerations” be properly considered in dealing with Mr. Shaikh’s case.  The Global Times did not have to publish this two-paragraph story.  Does the fact that it did mean that it will permit Mr. Shaikh to finally undergo a psychological exam and give its courts a face-saving way to repeal Mr. Shaikh’s death sentence?  Time will tell.  We will keep you informed if any new information about Mr. Shaikh’s case becomes public.

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By Elizabeth M. Lynch, December 13, 2009

China’s response to reports that the U.S. will sell arms to Taiwan has been swift, with an official response

Chinese Foreign Ministry Spokeswoman Jiang Yu

coming within 24 hours of the first U.S. news articles.  As reported in the English language edition of the state-run Global Times, Chinese Foreign Ministry spokeswoman Jiang Yu (pronounced Geeang You) not surprisingly reiterated China’s strong opposition to arm sales to Taiwan and called on the U.S. to stop its intended actions.  China’s response offers an interesting glimpse into how the government and the Party often use the media to respond to crises. 

The English language editions of China’s newspapers never tell the full story and usually are written with China’s foreign audience in mind, presenting a peaceful, soft and conciliatory China.  But if the English language editions are politically correct vis-à-vis the Western world, the Chinese language editions of the same newspapers answer to the political correctness of the Chinese market, presenting an image of China that is often bolder, stronger and less forgiving, but at the same time the victim of Western (usually U.S.) aggression.

In reporting on the proposed U.S. arm sales to Taiwan, the Global Times continued with this Jekyll and Hyde approach, providing more detail in their Chinese language edition.  Below we translate one of two (and the more interesting) articles that appeared in Friday’s Global Times.

The Global Times, an uber-nationalist newspaper, has very strong connections to the Chinese government and the Chinese Communist Party and at times, the CCP uses the Global Times to inform the public on the subtleties of some of their policies (see Susan Shirk, China: Fragile Superpower, p. 86-87).  Thus, the Global Times is not objective journalism; in reporting on international issues, it is communicating the views of the Party.  Because it is the mouthpiece of the Party, the article translated below shows the Chinese government’s likely response to U.S. arm sales to Taiwan, and it does not look particularly good for the U.S. if it should go forward with its plan.

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By Elizabeth M. Lynch, December 7, 2009

Our last posting about the upcoming global climate change negotiations was not very positive; in fact very few analysts have been positive.  But the past week has proved interesting, with both the United States and China issuing carbon reduction plans, forcing us to reconsider our previous notion that Copenhagen will produce little results.

The U.S. and China Issue their Respective Climate Control Plans

Right before Thanksgiving, President Barack Obama announced that the U.S. will be attending Copenhagen with a promise to cut emissions of greenhouse gases (GHG) by 17% from 2005 levels by 2020.  While it is a step forward that the U.S. will be attending the climate change talks with specific targets, those targets are still very much provisional.  Any targets coming out of the climate change talks will require Congressional approval post-Copenhagen.   While the 17% cuts proposed by the White House are identical to the GHG emission targets found in the House of Representative’s climate change bill passed in June, that bill has been languishing in the Senate, and will likely face an uphill battle once the Senate turns its attention from health care to climate change.   So whether the 17% cuts become a reality remains to be seen.

The day after the U.S. announcement, China issued a “carbon intensity target” reduction of 40-45% by 2020 to bring to Copenhagen.  While this looks huge on paper, in reality, it would allow GHG emissions to increase while China’s economy continues to grow, albeit GHG would grow at a lower rate.  Carbon intensity measures carbon emissions per unit of gross domestic product (GDP), so if your GDP skyrockets ever year, like China’s does at a rate of 8% a year, you can actually increase your absolute greenhouse gas emissions, and still show a 40-45% reduction by 2020.  Julian Wong on the Green Leap Forward also gives a good description of the math behind this.  China expects its GHG emissions to peak around 2035, a time that many experts believe is too late.

Although both the U.S.’ and China’s plans are far from perfect, at this stage, something is better than nothing from the world’s two largest greenhouse gas emitters.  And China has made concerted and sincere efforts thus far to increase its energy efficiency and reduce its greenhouse gas emission rate.

Now that China has set Some Targets Will it Be Able to Measure Them?

China is not known for reliable government statistics and while there has been notable improvements, its ability to

Copenhagen remains a game of Chinese chess

accurately measure and report its greenhouse gas emissions, and thus be held accountable to international commitments, has remained an issue leading up to Copenhagen.  Currently, China lacks the capacity – both technical and institutional – to provide such reliable data.

However, China has recently agreed to some cooperation with international and U.S. bodies to assist with developing its capacity to accurately measure its GHG emissions.  The U.S.’ Environmental Protection Agency (EPA) and its Chinese counterpart, the National Development Reform Commission (NDRC), signed a memorandum of cooperation (which is a step up from a memorandum of understanding) to work on China’s capacity issues concerning its ability to measure its emissions output.

But as Charlie McElwee over on the China Environmental Law blog [website no longer available], the EPA-NDRC memorandum currently lacks particulars and will likely go nowhere without being fully fleshed out.  At Copenhagen, the U.S. and the E.U. need to pressure China to work more closely with foreign bodies in developing its capacity.  It is important that Copenhagen does not conclude without a detailed plan to develop China’s capacity.  Additionally, this capacity development, especially in terms of institutional development and the ability of China to enforce its environmental regulations at the local level, could potentially influence the enforcement of regulations in all fields of law, providing for greater rule of law in China.

China though will not make this access easy; China has already begun to use this as a bargaining chip for greater financial assistance from developed countries for its climate change policies.  China’s climate change ambassador, Yu Qingtai, announced recently that China will only allow foreign verification of its GHG emissions if it receives outside financial assistance: “Actions would be measurable, reportable and verifiable if (international) support is measurable, reportable and verifiable.”  China’s stance on this should not be surprising.  It has repeatedly asked for international financial support for its efforts to curb its GHG emissions since the current climate crisis has largely been a result of the developed world’s past actions and not because of China’s development (it’s the future environmental crisis that China will largely play a role in if things remain as is).  China’s argument is understandable and rings true.

Fortunately, the Obama administration remains open to discussing a financial commitment.  China appears ready to bargain – if the U.S. wants the access to assist China with developing its technical and institutional capacity, which is necessary for any agreement out of Copenhagen to truly succeed, it must be ready to bargain as well and provide some financial assistance.

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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 19, 2009

THE WHITE HOUSE

Office of the Press Secretary

_____________________________________________________________________________________________

FOR IMMEDIATE RELEASE

November 17, 2009

U.S.-China Joint Statement

November 17, 2009

Beijing, China

At the invitation of President Hu Jintao of the People’s Republic of China, President Barack Obama of the United States of America is paying a state visit to China from November 15–18, 2009.  The Presidents held in-depth, productive and candid discussions on U.S.-China relations and other issues of mutual interest.  They highlighted the substantial progress in U.S.-China relations over the past 30 years since the establishment of diplomatic ties, and they reached agreement to advance U.S.-China relations in the new era.  President Obama will have separate meetings with Wu Bangguo, Chairman of the Standing Committee of the National People’s Congress and Premier Wen Jiabao. President Obama also spoke with and answered questions from Chinese youth.

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