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By Elizabeth M. Lynch, June 6, 2012

Have we hit a tipping point?

Last November I attended a fascinating talk by Rebecca MacKinnon, guru on all things censored and author of Consent of the Networked: The Worldwide Struggle For Internet Freedom. At the talk, MacKinnon’s focus was on the Chinese corporations that do China’s censorship bidding. MacKinnon noted that China’s internet regulations are not enforced by the government; rather the companies that manage China’s various and extremely active blogs and microblogs are responsible for enforcing China’s online censorship laws and regulations. Yes such censorship leaves these companies’ customers angry, but its worth it for what they get in exchange: an exclusive monopoly that keeps out more sophisticated players like Facebook and Twitter.

But MacKinnon hypothesized that at some point it won’t be economically worth it for these companies to continue to censor. MacKinnon highlighted the complete internet shutdown that occurred in Xinjiang province in 2009 for the entire year. That shut down harmed the local and regional economy. But even that wasn’t enough to cause these internet companies to push back against the government’s internet censorship and control. Instead, MacKinnon mused about the impact that such efforts would have in a more populous region or city, say like Shanghai.

And on Monday it looked like perhaps China reached that tipping point. Monday, June 4, marked the 23rd anniversary of the 1989 Tiananmen massacre, a sensitive date for China’s Communist Party. On Monday, the Shanghai stock market closed 64.89 points down. But 64.89 is not just any number, it’s the numerical translation of June 4, 1989. As reported in the New York Times, searches for “Shanghai stock,” “Shanghai stock market” and “index” were censored in response to this coincidence.

But can you imagine a country that censors words that are important for commerce? These aren’t searches for “Chen Guangcheng” or other Chinese activists; those searches would pull results that are obviously about human rights. But searches for business terms? To censor that in a market relies on the speed and effectiveness of the internet is not just plain wacky but bad for business.

Obviously the Shanghai stock market censorship is not yet the tipping point as internet censorship is still alive and well. But it makes me wonder, are we getting closer? Is what MacKinnon speculated – that eventually the goals of the Chinese government and of the Chinese internet companies will diverge – inevitable? To the extent that you buy into the hypothesis that the Chinese people have “made a deal” with their government – that in exchange for economic security the Chinese will give up some of their political freedoms – is it inevitable that that deal will be broken? The Shanghai stock market debacle hints that maybe in the end its the Party’s own paranoid censorship that will be its death knell.

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By Elizabeth M. Lynch, June 3, 2012

“For the great majority of young mainland Chinese, the events of the Tiananmen Massacre have never entered their consciousness; they have never seen the photographs and news reports about it, and even fewer have their family or teachers ever explained it to them. They have not forgotten it; they have never known anything about it.”

So ends Chan Koonchung’s The Fat Years, an allegorical novel set in the near-future Beijing, where China is the only prosperous nation left after the great global economic meltdown of 2008. Most of its citizens are happy – unnaturally so – and fully satisfied with the materialism of their new lives.

But there is a small group of misfits- led by Fang Caodi – that is searching for a missing month from 2008 where martial law was imposed so that the government could bring on the fat years. All remnants of that month have been erased from society’s collective memory: newspapers published during that month no longer exist and no one ever speaks of it. It’s as if it never occurred. Fang and his posse go all over the country, trying to find any evidence of that missing month and trying to find more people like them: people who remember. They find almost no one but then hatch a plan to kidnap a high level government official and interrogate him. They find out about a government intent on guaranteeing that the mistakes of its pass are forgotten and only China’s glorious future is remembered.

Make no mistake, Chan is not talking about a missing month in 2008. What Chan is discussing are the seven weeks that led up to the June 4, 1989 Tiananmen massacre, where martial law was imposed, high-level Chinese officials ordered the army to open fire on its own people, and hundreds of unarmed student protestors were estimated to have been killed.

On Monday the world will mark the 23rd anniversary of the Tiananmen massacre. But Mainland China will not. Every year, the anniversary of Tiananmen, known as Liu Si in Chinese, is forgotten on mainland China, unless you count the Chinese government’s stepped up security of Tiananmen Square and random detention of activists as a commemorating event.

Around June 1, 1989, over a million students converge on Beijing's Tiananmen Square

For 23 years, there has been no public mention of the Tiananmen massacre and aside from hushed whispers among older Chinese, in particular the Tiananmen Mothers who bravely try to keep the murder of their children alive, there is little private discussion of the event. The Chinese government’s 23 years of silence concerning Tiananmen isn’t just denial. It’s been a concerted and fairly effective effort to erase Tiananmen, and the government’s bloody actions on the night of June 3, 1989, from China’s collective memory.

Mainland Chinese born after 1989 largely do not know anything about the events surrounding those seven weeks 23 years ago nor the bloody repression on the night of June 3 into the early morning hours of June 4. To the extent that they have heard anything about it – from a professor who might have supported the students in 1989 or from a family member who was there – their recollections are muddied at best.

Chan’s The Fat Years is a warning: that the Chinese must not forget the past; that they must continue to remember. But that warning is mixed with the reality that perhaps some Chinese do want to forget, especially the young. Compared to 1989, times have never been better. Why rock the boat? Why be bothered with your parent’s history?  And that is Chan’s second note of caution to the Chinese: do not be lulled into acceptance by materialism.

But those messages will not be heard in China.  In keeping with their efforts to annihilate Tiananmen from collective memory,the Chinese government has banned The Fat Years. In the introduction to the English translation, Julia Lovell notes that the book has still

A rickshaw driver ferries two dying students on he morning of June 4, 1989

made its way around dissident circles in Beijing. But dissidents in Beijing are a small, insular group; the vast majority of Chinese will remain unaware.  The fact that today’s dissidents and rights activists still remember Tiananmen is one weakness in the Chinese government’s goal and might explain the two-year crackdown on activists.

For the first few years after the Tiananmen massacre, the question was, how long will the Chinese government refuse to investigate the murder of hundreds of Chinese students. Twenty-three years later, now the question is, will the Chinese ever know their own history? As time passes, memories fade, Tiananmen mothers die, and the Chinese Communist Party remains in power, the answer seems to be leaning toward no.

That is why we must never forget June 4, 1989 and continue to memorialize and investigate the events. As censorship increases in China, the western world is ironically becoming the repository of China’s modern history. Eventually, the Chinese people will demand that they be allowed to learn their own history; eventually they will be free to decide for their own what aspects of their history that they want to commemorate and what they want to forget.  Eventually, the West’s repository of knowledge will be accessed by the Chinese.

Chan’s The Fat Years should not be read for its literary style. At many points the narrative really slows down and “near future Beijing” is actually 2013, making it difficult for the current English reader of translation to find it even slightly believable. It also appears to peter out toward the end with the main characters just fading from the page. But for the ideas that the book presents about modern day China and its potential future, it is an important read.  Especially today, on this anniversary of the Tiananmen massacre.

Rating:

The Fat Years: A Novel, by Chan Koonchung (Nan A. Talese, 2012), 336 pages.

A BBC news report from the early morning of June 4, 1989

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By Elizabeth M. Lynch, May 28, 2012

Paul French describes his gripping new book, Midnight in Peking: How the Murder of a Young Englishwoman Haunted the Last Days of Old China, as a belated quest to bring justice to a young woman, brutally murdered 75 years ago in Beijing.  But the story is equally as applicable to the present, highlighting that our criminal justice system — and with the case of Bo Xilai, China’s criminal justice system — can easily fall victim to political agendas, singularly-focused investigations, and prejudices about who can and cannot commit a crime.

Midnight in Peking opens on a dark, cold morning in January 1937, in the dying days of old Beijing.  A young white woman’s mutilated body is found near the haunted fox tower by an old Chinese man who is up early walking his caged bird.  The body turns out to be that of 19 year old Pamela Werner, daughter of E.T.C. Werner, a former high-ranking British diplomat, China scholar, and single father who raised his daughter outside of the gated-off, foreign Legation Quarter of Beijing.

On the eve of the Japanese invasion, it was a murder that distracted Beijing as much as it obsessed it.  And rightfully so.  For the murder, and French’s amazingly detailed account of it, uncovers the debaucheries of some of foreign Beijing’s most elite, a young girl experimenting as a woman, and the official cover up that followed.  On the eve of World War II, there was no way that British officials would allow the Empire and its respectability to lose face, even if it meant short-changing a police investigation and letting a diabolic murderer to go free.

Pamela Werner becoming a woman - taken a few days before her murder.

French’s talent lies in his ability to transport the reader back to 1937 Beijing, back to the Grand Hotel des Wagons Lits, back to the Badlands where seedy expat Beijing lead much of its life but rarely talked about it within the Legation Quarter.  French also makes the characters come alive – with his seven years of painstaking research into the official criminal investigation and Pamela’s father’s own inquiry, French knows what each of the characters were doing, writing and saying at the time.

Midnight in Peking is known as a work of “literary non-fiction,” presenting the facts almost as a novel but unable to take any of the liberties that a work of fiction could permit.  In reality though, the work has more of the drama of a good closing argument – a winning closing argument – presenting the facts,debunking the police’s simplistic conclusions (including that it was a Chinese who did it; who else would kill and mutilate a body), and thoroughly presenting a stronger theory of who did it, a theory that the reader eventually adopts.

Midnight in Peking is a remarkable read, a page turner that kept me in one Friday night just to find out who did it.  But it is not just a story about the past.  Sitting there, reading  about a British murder investigation in China and seeing the prejudices that the police held about certain incidents, particular people and specific facts, made me think of the recent re-examination of the 1979 Etan Patz kidnapping case that is currently transfixing New York City.  In that case, it appears that the police misjudged suspects and had a singular focus on a specific interpretation of the facts, even with little facts to back that up.  Some 50 years after the Pamela Werner murder, police in New York City were making the same mistakes.  Fast forward 33 years to today and most likely these same types of mistakes are still being made.

But more than anything, the book also demonstrates the susceptibility of any criminal justice system to power and politics.  E.T.C. Werner was an outsider to British expat society of 1937, and not just because he chose to live outside of the Legation Quarter.  That pissed people off and when it came time to investigate the murder of his daughter, Werner, as an outsider, became a suspect.  The murderers that French eventually uncover were not just accepted in British society but considered the elites of Beijing.  That acceptance – and the fact that the British diplomats didn’t want a scandal on their hands – allowed them to live their lives as free men.  Ultimately politics – both individual as well as national – proved more important than justice.  Even when Werner conducted his own investigation and uncovered many of the lies of key suspects, British diplomats continued to ignore his pleas for justice for his daughter.

Not surprisingly, when reading French’s book, the Bo Xilai case – where Bo’s wife is accused of murdering a British national – was not far from

An old ETC Werner, around the time of his daughter's murder

my mind.  Given the politics involved in that case and the fact that perhaps Bo became an outsider to the Party system, it makes one wonder about the accuracy of the story that the Chinese government is currently presenting to the press.  If it could happen in British Peking in 1937, it can certainly happen in Chinese Beijing in 2012.  Likely, no criminal justice system is immune to political pressure.  It would be foolish – and dangerous – to think that any system is impervious.

Midnight in Peking is a remarkable story, wonderfully written and with characters that just come to life – some you love, some you hate and some you just despise.  For those who want to be transported to the past, Midnight in Peking is your ticket there; but for those who want to understand the present, more precisely the mistakes inherent in any criminal justice system, Midnight in Peking will take you there.  Whichever trip you decide to make, French will take you on a fun ride.

Rating:

Midnight in Peking: How the Murder of a Young Englishwoman Haunted the Last Days of Old China, by Paul French (Penguin Books, 2012), 272 pages.

French also has a great website about the book, including his own explanation as to what propelled him to write the book and a walking tour of Pamela’s Beijing (with downloadable podcasts). For anyone who does the walking tour, I would be interested in you take of it. Please comment below!

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By Elizabeth M. Lynch, May 4, 2012

U.S. DEPARTMENT OF STATE

For Immediate Release                                                                                       May 4, 2012

2012/707

STATEMENT BY VICTORIA NULAND, SPOKESPRSON

Chen Guangcheng

The Chinese Government stated today that Mr. Chen Guangcheng has the same right to travel abroad as any other citizen of China. Mr. Chen has been offered a fellowship from an American university, where he can be accompanied by his wife and two children.

The Chinese Government has indicated that it will accept Mr. Chen’s applications for appropriate travel documents.  The United States Government expects that the Chinese Government will expeditiously process his applications for these documents and make accommodations for his current medical condition.  The United States Government would then give visa requests for him and his immediate family priority attention.

This matter has been handled in the spirit of a cooperative U.S.-China partnership.

# # #

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By Elizabeth M. Lynch, April 27, 2012

From the NY Times on Friday, April 27, 2012.

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By Elizabeth M. Lynch, April 11, 2012

China’s rise raises a lot of questions for the rest of the world.  How will it flex its increasing military might?  What impact will its insatiable demand for resources have on the rest of the world?  Will its economy overtake the US’ in the near future?

Another question that is being raised with more frequency is: as China becomes a more equal player on the world stage, how will its views of human rights impact the development of international human rights laws and the role of the United Nations.

On Friday, April 13, RightsLink, a human rights law research organization based out of Columbia Law School, will host a forum examining exactly the issue of China’s influence on international human rights discourse.  It is likely inevitable that China will begin to have a louder voice on the human rights world stage, but is that destined to be a bad thing?  Find out on Friday at what will likely prove to be a thought-provoking discussion.

Rightslink Henkin Forum: Rise of China and Its Influence on Human Rights

Friday, April 13^th, 2012
1:30 – 4:30 (2 Panel Discussions – see below)
Columbia Law School
Room 103, Jerome Greene Hall
435 W 116th Street
Box Lunches will be Served

Schedule
1:30 – 2:45 pm   China, the UN, and  Influence on International Human Rights

  Moderator: Professor Ben Liebman – Robert L. Lieff Professor of Law and Director of the Center for Chinese Legal Studies, Columbia Law School
Panelists:
  Thomas Kellogg – Program Director, Open Society Institute; Adjunct Professor, Fordham Law School
  Steven Hill – Counselor for Legal Affairs, United States Mission to the United Nations
  Eva Pils – Associate Professor, Faculty of Law, Chinese University of Hong Kong
 
3:00 – 4:30 pm China’s Relationship with Africa and its Impact on Human Rights 
  Moderator: TBA
Panelists:
  Matt Wells – Researcher, Africa Division, Human Rights Watch
Sarah Cook – Senior Research Analyst, East Asia, Freedom House

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By Elizabeth M. Lynch, March 22, 2012

I Pledge Allegiance....

In its ongoing efforts to tie the Chinese legal profession as tight as possible to the Chinese Communist Party (CCP), China’s Ministry of Justice (MOJ), the government agency that oversees the legal profession, announced its new initiative on Wednesday: every new lawyer in China must pledge allegiance to the CCP.

Lawyers’ oaths are not unique to China: almost every state in the United States requires newly-admitted attorneys to recite an oath to uphold the Constitution and the laws of the state.  And this is not the first time that a lawyers’ oath has been required in China.  In 2000, the All China Lawyer’s Association (ACLA), the national bar association that all lawyers must be members of, first instituted an oath of office for all lawyers.  But in a Wednesday Legal Daily interview with an unnamed MOJ official, the MOJ determined that the ACLA oath was too general and ineffective.  As a result, the MOJ issued a new oath that must be sworn to in a formal ceremony (translation courtesy of Siweiluozi Blog):

“I volunteer to become a practicing lawyer of the People’s Republic of China and promise to faithfully perform the sacred duties of a socialist-with-Chinese-characteristics legal worker (中国特色社会主义法律工作者); to be faithful to the motherland and the people; to uphold the leadership of the Chinese Communist Party and the socialist system; to safeguard the dignity of the constitution and the law; to practice on behalf of the people; to be diligent, professional honest, and corruption-free; to protect the legitimate rights and interests of clients, the correct implementation of the law, and social fairness and justice; and diligently strive for the cause of socialism with Chinese characteristics!”

Compare this with the New York State oath taken by newly-admitted lawyers:

“I do solemnly swear that I will support the Constitution of the United States, and the New York Constitution, and that I will faithfully discharge the duties of the office of attorney and counselor at law of the Supreme Court of the state of New York according to the best of my ability.”

There are aspects of the Chinese oath that are laudable: to be professionally honest, to be corruption-free, to serve the people, and to properly implement the law.  All of these requirements are ostensibly value-neutral and are good for the profession.  But what is decidedly different between the New York oath and the China one is that allegiance to the CCP is required.  According to the MOJ official, this was intentional.  One of the major reasons that the MOJ issued the new oath was to increase the quality of lawyers’ political thought as well as their professionalism.

That alone would not necessarily be problematic in a country where the Party is the State and let’s face it, people take oaths all the time and rarely listen to or abide by their words.  But this new oath comes in the midst of a major crackdown on China’s public interest lawyers and presumably will be used as a warning signal to this portion of the profession.

The CCP’s Increased Use of Socialist Rhetoric to Police Lawyers

Last fall, I published a law review article discussing the use of increased socialist rhetoric to step up the CCP’s control of China’s growing public

The Three Supremes

interest lawyers (China’s Rule of Law Mirage: The Regression of the Legal Profession Since the Adoption of the 2007 Lawyers Law).  The beefed-up socialist rhetoric began quietly with a speech given by President Hu Jintao at a Chinese Communist Party conference in December 2007.  In his speech, Hu announced the doctrine of “the Three Supremes:” “always regard as supreme the Party’s cause, the people’s interest, and the Constitution and laws.”

Although initially unclear if the Three Supremes were listed in hierarchical order and if the doctrine was even applicable to lawyers, Justice Minister Wu Aiying addressed the issue in August 2009.  Calling upon lawyers to “above all obey the Communist Party and help foster a harmonious society”(emphasis added),Wu stressed the need for lawyers to “pay attention to politics, take into consideration the big picture, and observe proper discipline.” Absent is any mention of “law” or the need to develop the institutions—such as an independent judiciary or a competent legal profession—integral to a rule of law society.

Further confirmation of this shift in rhetoric is found in the October 2008 MOJ pronouncement opening the new government-sponsored campaign of lawyers as “Chinese-style socialist legal professionals.”  In 2010, the MOJ went further with its rhetoric by directly stating the need for greater Party leadership of the legal profession.  In an interview with an unnamed MOJ official, the Legal Daily reported the forthcoming pronouncement of MOJ “Opinion Regarding the Further Strengthening and Improvement of Lawyers’ Work.” Like prior pronouncements, the 2010 MOJ Opinion contains flowery language detailing the need for lawyers to “always hold high the banner of socialism” and to “strengthen [their] political thought.”  But unlike previous statements, the 2010 MOJ Opinion candidly states the role that the Party will play in leading the legal profession.

Through the Party and the MOJ, the 2010 MOJ Opinion states the need for daily supervision and management of the profession, the need for standardization in how cases are handled, and the need to consider “political quality,” “professional quality,” and “ethical quality” in the yearly license renewal procedures

The CCP Re-institutes Party Cells

Party Cells in Law Firms....How Retro!

Finally, the CCP – as reported in a Legal Daily article – has successfully infiltrated most law firms, instituting Party cells in a throwback to the Cultural Revolution days when loyal party members set up “cells” within each work unit to guarantee the proper political ideology of the workers and to report any infractions in thought to the local Party.  While the 1980s saw a decline in Party cells, a 1995 Party Opinion called for the creation of more Party organizations within law firms.   In 2002, President Hu Jintao stressed that the legal profession could only become strong through Party leadership.  But in general, such efforts were met with strong resistance from the profession and law firms largely ignored the directives. However, all of that changed in 2008.

In March 2008, the CCP’s Organization Department and the MOJ’s corresponding Party organization issued a joint opinion announcing the need to improve and strengthen the Party apparatus in the legal profession. As if to indicate to the legal profession that this time the Party was serious about a greater Party presence in law firm life, Justice Minister Wu Aiying declared in July 2008 that more Party cells needed to be created within law firms as a way to better indoctrinate the profession.  This effort has largely succeeded.  Between April 2008 and April 2009, the number of Party cells found in law firms more than doubled.  Today, over 90 percent of all law firms in China maintain a Party cell.(all information can be found in the Legal Daily article).

The Oath Fits the Pattern of Greater CCP Control Over the Legal Profession

In 2007, China amended its Law on Lawyers, ostensibly to give greater independence to the profession.  As my article China’s Rule of Law Mirage points out, on paper, the amendments did in fact give the profession greater control and reduced the supervision of the MOJ.  However, as the article goes on to demonstrate, as public interest lawyers have had more success in their cases, the CCP has exerted greater control of the profession, undermining whatever promises of greater professional independence that is found in the 2007 Law on Lawyers.

Ironically, and as if to give the new oath requirement some sort of semblance of legality, the unnamed MOJ official in Wednesday’s Legal Daily interview attempts to argue that the new oath requirement is in-line with the edicts of the 2007’s amended Law on Lawyers.

Nothing could be further from the truth.  Compared to recent CCP pronouncements, the 2007 Law on Layers is largely devoid of Party allegiance.  Article 1 does require a commitment to a “building of a socialist legal system” but that is sort of like requiring U.S. lawyers to assist in building a democratic legal system.  Additionally, the new structure of law firms and the establishment of solo practitioners were both perceived as an effort of MOJ to relinquish some of its supervisory role in exchange for greater supervision by the bar associations (see China’s Rule of Law Mirage for a more detailed explanation of these provisions).

But MOJ’s new oath, which overrides ACLA’s oath, reflects its effort to maintain control of the profession.  And its requirement that lawyers pledge allegiance to the CCP is eerily reminiscent of Nazi Germany where lawyers took a similar Party allegiance oath: “I swear to remain loyal to the Fuehrer of the German Reich and people, Adolf Hitler, and to fulfill conscientiously the duties of a German attorney, so help me God” (See Matthew Lippman, Law, Lawyers, and Legality in the Third Reich: The Perversion of Principle and Professionalism, 11 Temp. Int’l & Comp. L.J. 199, 218 n. 185 (1997)).

Ultimately, the oath won’t impact the daily work of most of China’s lawyers.  In fact, it is only applicable to new lawyers or those who are re-applying for their licenses (首次取 得或者重新申请取得律师执业证书的人员); MOJ’s announcement makes no mention of its applicability to current lawyers at their yearly re-registration (年度注册); presumably current lawyers will not be subject to the oath.  But in a society where rhetoric has served as important signaling device as to what behavior is politically acceptable, the new oath could potentially have a chilling effect on current public interest lawyer’s work and could discourage new lawyers from representing individuals and issues that are perceived as politically dangerous.  It’s this chilling effect of the new oath that is the greatest threat to a rule of law in China.

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By Elizabeth M. Lynch, March 7, 2012

Light refreshments will be served at the China Chat!

Hopkins Nanjing Center and Asia Catalyst are sponsoring an informal “China Chat” about legal services organizations in China.  Lawyers from the All China Environment Federation and from the Beijing Migrant Worker Legal Aid Station will speak about their work, cases they have brought and obstacles they have faced.  We read about the work of many of these lawyers in the New York Times and the South China Morning Post, but rarely is there an opportunity to hear directly for the lawyers doing the work themselves.

RSVP is required to this exciting event: skrumm@asiactalyst.org

March 12, 2012
6:30 pm – 8 pm
Ethan Cohen Fine Arts Gallery (ECFA)
14 Jay Street
Tribeca, New York, NY

Directions:  Take the #1 subway to Franklin Street, walk one block west to Hudson and two blocks south to Jay Street, make a right. ECFA is on the left-hand side going toward Greenwich.

Light Refreshments will be served!

Please RSVP to skrumm@asiacatalyst.org

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By Elizabeth M. Lynch, February 29, 2012

Human rigfhts activist and lawyer, Chen Guangcheng

One would think that a poor, illiterate, blind man, who eventually learned to read in his early 20s, taught himself the law, and used those legal skills to protect the rights of society’s most vulnerable, would be celebrated.

Unfortunately, that is not the case for Chen Guangcheng.  Chen, a blind, self-taught lawyer in rural China who blazed the way for China’s nascent disability rights law is currently under unlawful house arrest with his wife and two small children, guarded 24 hours a day by local thugs, denied access to medical care as well as to all visitors and at times subject to physical abuse.

While this has been the status quo for Chen and his family since September 2010, the situation has just become more dire.  Chinese Human Rights Defenders (CHRD), a well-respected China human rights group, reported last week that a sympathetic guard informed CHRD that Chen has grown increasingly ill, collapsing after walking only a few steps in his yard.  Chen suffers from severe gastroenteritis, a condition left untreated while he served an unjust four-year-and three-month prison term and that still remains untreated even though he is “free.”

It is time that the United States’ government publicly expresses its concern for Chen’s health, question the legal basis of Chen’s current house imprisonment, highlight China’s violations of international law treatment in its treatment of Chen, and demand that China follow through with its invitation to the UN High Commissioner of Human Rights to visit its country. Recent developments reflect that international pressure may change the Chinese government’s behavior.

How Did Chen Guangcheng Go from Good Guy to Enemy of the Chinese State?

Chen’s short legal career centered on fighting for the rights of China’s most vulnerable: those with disabilities.  After winning a series of cases, including one requiring the Beijing subway system to waive fares for the disabled, Chen turned his attention to a new injustice that was occurring in his own hometown in Linyi county in Shandong Province.

In early 2005, Chen’s neighbors began to tell him stories of forced abortions, forced sterilizations, and even abduction and physical abuse of relatives by government officials so that the Linyi government could meet a significantly lower birth rate quota imposed by Linyi’s new mayor, Li Qun.

While China maintains a one-child policy, forced abortions and sterilizations are illegal under Chinese law.  Unfortunately, as an investigation by Chen and supportive lawyers from Bejing uncovered, because local officials’ promotions are tied with keeping birthrates low, the law criminalizing forced abortions and sterilizations is sometimes ignored, especially in rural areas.  By the summer of 2005, Chen filed multiple lawsuits in Linyi on behalf of many of the victims.

But as Chen was to find out, China’s legal reform only goes so far: fighting for the rights of the disabled are acceptable; but cases challenging China’s sacrosanct and politically sensitive one-child policy are decidedly not.  Even a well-respected, blind rights lawyer puts his safety on the line if he seeks to challenge the administration of the one-child policy.

In what amounted to kangaroo justice, in September 2005, Chen was placed under strict house arrest by the Linyi government, eventually charged with “gathering crowds to undermine traffic order,” found guilty in a trial where his lawyers were not allowed to attend, and in 2006, sentenced to four years-and-three-months in prison.

Chen Guangcheng’s Life Since September 2010 – An Absurd Version of Freedom

In September 2010, Chen completed his four-plus-year jail term only to learn that his home would become his prison.  Lacking any legal basis under Chinese law and in contravention to multiple international treaties, since his “release,” Chen and his wife have not been able to leave their home.  Chen’s six-year old daughter, Kesi, was initially denied access to school.  But, after much domestic and international pressure, Kesi is now permitted to go to school, walked to and from school by the thugs who surround her home, unable to play with any of her classmates.

Freedom House reportsthat Chen and his family are completely surrounded by thugs hired by the Linyi government to keep all visitors out and keep Chen in.  It is estimated that the

Christian Bale, accosted by Linyi "security guards" in his attempt to visit Chen Guangcheng in December 2011

local government has hired almost 100 men to maintain 24-7 surveillance of Chen and his family.  These thugs resort to force to keep all visitors out, physically attacking Chen’s friends, reporters, foreign government officials, and even Batman star Christian Bale who attempted to visit Chen last December.  Freedom House also reports that surveillance checkpoints points have been set up on various roads into the village, six cameras positioned throughout the village to record all activity and two cell phone jammers make it impossible for Chen and his family to communicate with the outside world.

In February 2011, a sympathetic government source smuggled to ChinaAid, a U.S.-based China human rights group,   a video recording that Chen made of his new life.  Soon after ChinaAid posted the video to its website, the Linyi thugs entered Chen’s home and beat him and his wife for close to two hours.  After the severe beating, Chen and his wife were denied medical treatment.

The continued denial of all medical treatment and Chen’s worsening gastroenteritis has appeared to raise Chen’s medical condition to emergency status, distressing his friends and supporters. Chen’s longstanding friend lawyer Jiang Tianyong, himself the victim of ‘forced disappearance,’ retweeted a recent comment from another that ‘everybody’s now just waiting for the news that Chen Guangcheng has died; so we can erect a memorial for him….’ Jiang’s immediate and emotional reaction to any thought that his friend could die: ‘you’re really sick.’

Prof. Jerome A. Cohen, a Chinese legal scholar with over 60 years of experience in China likely thought that China’s worst was behind it.  But the current situation with his friend Chen Guangcheng visibly alarms the old China hand.  “This cruel, slow killing seems to be the only way the Party can think of to rid itself of a courageous critic without having him appear to die in its custody” Cohen told China Law & Policy.

Will International Pressure Change the Chinese Government’s Treatment of Chen?

On one level, the internationally community doesn’t have a choice if it wants Chen Guangcheng to live.  But on another level, pressure in this case would be a smart strategic move.  Although the Chinese central government is fully aware of the abuse of Chen and his family, it isn’t directly perpetuating it.  The torture of Chen and his family is largely the result of Linyi’s officials’ vengeance.  In statements to foreign officials, Chinese officials have allegedly explained that “house arrest does not exist under Chinese law” and that Chen is free and leading a “normal life.”

If foreign and domestic pressure remains strong, the Chinese central government will have less of an incentive to acquiesce to the Linyi’s government blatant violations of Chinese law.  Other signs seem to indicate that not everyone in the Chinese government is on board with Linyi officials’ behavior.  Although Chen and his family are being held completely incommunicado, information is still able to get out.  ChinaAid receives information, including the smuggled video and letters from Chen’s wife, from a “reliable government source;” CHRD learned of Chen’s worsening medical condition from a sympathetic guard.

Chen & family

In October 2011, the Global Times, a state-run newspaper that is considered the voice of the Chinese Communist Party’s hardliners, published an editorial attempting to distance the central government from Linyi government’s actions.   As CHRD reported in “Let There Be Light, Let There Be Sincerity: Citizens Campaign to Free Chen Guangcheng,” there is a growing citizen campaign to free Chen, even with the censorship of most news regarding Chen.  In December 2011, several of Chen’s collegues and friends made a film about Chen – “Who is Chen Guangcheng” – publicly calling for his release (film is in Mandarin with no subtitles).

Foreign governments should hold the Chinese government to its statement that Chen is leading a “normal life” and specifically request that Chinese government officials accompany foreign officials to visit Chen Guangcheng.  Given his worsening condition, foreign governments should make this a priority.  Vice President Xi Jinping’s visit to Washington, DC offered the perfect opportunity to publicly raise the U.S. government’s concern for Chen’s health; unfortunately it didn’t.

The United Nations should bring public attention to China’s clear violations of the of Universal Declaration of Human Rights (Article 25, the right to adequate health) as well as violations of treaties it has voluntarily ratified including: the International Covenant on Economic, Social and Cultural Rights (Article 12 for denial of medical care); the Convention on Rights of Persons with Disabilities, and the Convention on Rights of the Child (for denying Kesi the freedom of association (Article 15), for the mental anguish caused by her imprisonment (Article 19), for denying her the right to play (Article 31)).   In addition, the Human Rights Council should look to issue a new opinion concerning Chen’s arbitrary detention to update its 2006 opinion when Chen was first held under unlawful house arrest.

Finally, the international community should demand that China follow through with its invitation to the UN High Commissioner of Human Rights to visit its country.  In 2009, the Chinese government invited the High Commissioner to visit China and see first-hand China’s human rights situation, both good and bad.  That was two years ago and China still hasn’t allowed the current High Commissioner to visit.  But if China waits only a few more months, it won’t have to worry: the current High Commissioner’s term expires this fall.

The fact that China verbally commits to human rights reviews and ratifies certain conventions demonstrates that international status means something to it; not necessarily enough to always abide by human rights laws, but enough for international pressure in the case of Chen to make a difference.

What About the Forced Abortions, the Issue that Caused all of this?

In September 2005, soon after Chen was placed under his first house arrest, China’s National Population and Family Planning Commission, the government agency that oversees China’s one-child policy, conducted its own investigation and announced that government-enforced abortions and sterilizations occurred in Linyi in contravention of China’s law.  Although many officials were arrested and penalized for their behavior, Li Qun, the mayor who initialized Linyi’s campaign of forced abortions, was eventually promoted and today serves as Party Secretary of the major metropolis Qingdao.

Li’s promotion demonstrates the importance of people like Chen Guangcheng, those willing to put their lives on the line to protect citizens’ rights and dignity; rule of law might not be what local governments want but it is what the Chinese people are desperate for.

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Below are sources that can provide more information on Chen Guangcheng, his legal career and his current struggle:

• Philip Pan, Out of Mao’s Shadow: The Struggle for the Soul of a New China, Chapter 7 – Blind Justice, (Simon & Schuster 2009) (describing Chen’s legal career, Linyi’s harsh one-child policy, and the 2006 arrest and trial of Chen);
• Jerome A. Cohen has written and spoken extensively on Chen’s persecution since his release from prison.  Articles calling for change can be found here and here;
• Peter Foster, Beijing correspondent for The Telegraph has a good piece here on the effectiveness of Chinese citizens’ “Free Chen Guangcheng” campaign and their efforts to enter his village.
• Congressional-Executive Commission on China has brief background on Chen as well as a list of those who have attempted to visit him here (current through Dec. 11, 2011).

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By Elizabeth M. Lynch, February 20, 2012

While Apple’s alleged labor abuses at its factories in China have been the talk of the press – both in the U.S. and in China – ignored has been China’s labor abuses in Africa.  But two weeks ago, Seton Hall School of Law, which is quickly establishing its China law credentials in the tri-state area, hosted a timely and informative discussion on labor abuses at Chinese state-owned copper mines in Zambia.  Like western consumers – and increasingly China’s middle class – hungry to get their hands on the newest Apple product, China, with its rapid growth, is desperate for natural and mineral resources.  Seton Hall‘s event, “Labor Abuses in Zambia’s Chinese State-owned Copper Mines,” examined the issues that arise when a country uses another to feed its insatiable hunger and raised questions about what is the legal and moral responsibility of China in its Zambian mines, the responsibility of the Zambian government to its own people, and the role of the international community, which itself hasn’t shied away from exploiting African nations in a similar manner for their own gain.  Below, James J. Baber, a first-year law student at Seton Hall, reports on the February discussion. 

To listen to the audio of the entire discussion, please click here. 
Length: 1 hour 51 minutes

China's relations with Zambia is largely about copper

Phelim Kine on Chinese Abuses of Workers’ Rights in Zambia

By James J. Baber*

On February 6, 2012, Phelim Kine, a Senior Asia Researcher for Human Rights Watch, spoke at Seton Hall Law about his experiences investigating the business practices of Chinese corporations investing in Zambia’s copper mines.  Mr. Kine presented the official Human Rights Watch (“HRW”) report “You’ll Be Fired If You Refuse”: Labor Abuses in Zambia’s Chinese State-owned Copper Mines“.  The event was hosted by Seton Hall Law Professor Margaret K. Lewis, a Public Intellectuals Program Fellow with the National Committee on US-China Relations.  Mr. Tom Kellogg, Program Director and Advisor to the President of Open Society Institute, also took part, offering commentary on the report.

The Human Rights Watch report details the persistent abuses in Chinese-run mines, including poor health and safety conditions, regular 12-hour and even 18-hour shifts involving arduous labor and anti-union activities, all in violation of Zambia’s national laws or international labor standards. The four Chinese-run copper mining companies in Zambia are subsidiaries of China Non-Ferrous Metals Mining Corporation, a state-owned enterprise under the authority of China’s highest executive body. Copper mining is the lifeblood of the Zambian economy, contributing nearly 75 percent of the country’s exports and two-thirds of the central government revenue.

The discussion focused on HRW’s concerns regarding Chinese business practices overseas. A central question is whether the Chinese government or Chinese state-owned firms are effectively “exporting” the kinds of abuses – of labor rights and rights of freedom of expression and association that occur all-too-frequently in China – to foreign countries which are targets of Chinese investment.

Mr. Kine began by speaking about labor practices in the Chinese-run copper mines in Zambia.  China has had for some time a massive presence in Africa, and the copper mines in

Zambian copper miners

Zambia are an extension of this long-term investment.  The driving force behind this modern day scramble for Africa is a desire of the Chinese government to both secure new markets and to maintain a stable flow of resources for its rapidly expanding economy.  According to Mr. Kine, despite the badly needed foreign investment and job opportunities that the Chinese investment brings to Zambia, the relationship leaves something to be desired from the Zambian workers’ perspective.  Mr. Kine stated that the conditions in some mines were found to be a “flagrant violation of both Zambian law and international law.”  HRW interviewed numerous workers to obtain first-hand information about the miners’ working conditions.  The HRW investigators uncovered various abuses of workers’ rights, ranging from the firing of workers who refused to work in hazardous areas to the manifest reluctance of the Chinese firms to provide their workers with proper safety and protective equipment.  Despite the issues and clear dangers involved, however, few of the miners quit these jobs because of the high double-digit unemployment in Zambia.  [See CIA Handbook for a review of Zambia’s economy]

In total, the HRW researchers interviewed 170 people and found three main problems: abuses of the miners’ legal rights to health and safety, violations of overtime pay requirements, and what Mr. Kine called a “pronounced anti-union sentiment” in the Chinese mines.  The miners were routinely denied access to, or left unsupplied with, personal safety equipment like protective clothing and respirators.  Mr. Kine stated that workers at the Chinese mines were also paid “one third to one sixth less than their international competitors.”  In addition, the Zambian miners were severely discouraged from associating with one of the two national unions, thereby depriving the miners of the right to associate.

After Mr. Kine concluded his initial presentation, Tom Kellogg raised additional questions and offered comments. Mr. Kellogg spoke about the common perception of the local Africans that the Zambian government encouraged the influx of Chinese investment and thus the Zambian government gave only lax scrutiny to the mines’ labor practices.

Despite the Chinese government’s history of bluntly refuting international criticism, Mr. Kellogg noted that the Chinese government is beginning to present a more evolved response to international criticism.  He specifically mentioned the detailed response of Chinese authorities with regard to the letter from HRW detailing reported issues within the mines.  Mr. Kellogg speculated on whether or not such a response would have happened five years ago.

The microphone was then returned to Mr. Kine for response.  He responded to Mr. Kellogg’s suggestion of Beijing’s possible new openness to international criticism as opposed to the traditional stonewalling.  He noted that HRW had in fact been able to speak directly with the China Nonferrous Mining Corporation in order to address alleged violations of the Zambian workers’ rights.  Mr. Kine also highlighted that all of the Zambian workers with whom HRW spoke stated that they were happy to have jobs despite complaints about the working conditions.  Zambia suffers from both high unemployment and an AIDs epidemic.  And the jobs and infrastructure provided by the Chinese companies are significant assets to the African nation.

Professor Lewis then commented that the Zambian laws regarding mining were quite good on paper but, as noted by one of the interviewees in the report, seemed to be disconnected from the reality on the ground.  Other questions revolved around whether the miners were aware of international labor laws and whether foreign consumers might play a more pronounced role in demanding better labor practices in copper mines.

Professor Lewis also commented on Beijing’s soft power push to present a new image by spreading Chinese culture through the Confucius institutes and classrooms.  The Chinese government is being more responsive to international human rights concerns, but Professor Lewis noted that the current crisis in Syria shows that Beijing is still very concerned about not being seen as promoting popular uprisings or infringing on a state’s sovereignty.

Mr. Kine then noted that the Zambian government has very limited resources at its disposal to combat the issues arising out of the Chinese-owned-and operated mine facilities.  A lack of

Workers strike at Chinese mine in Zambia

money and manpower coupled with the apparent lack of importance that the Chinese government places on human rights in its overseas endeavors is creating a very difficult situation for the Zambian miners.  However, Mr. Kine did find cause to express some hope for the future.  Recently, a Zambian government official had threatened to shut down a mine (albeit a privately invested mine, not a Chinese state-invested one) that did not conform to safety codes.  Mr. Kine thought that this action might indicate that the Zambian government will in the future be better able to provide for the safety of Zambian citizens who work in the copper mines.  Mr. Kine, in fact, called the Zambian threat to close the mine, “a shot across the bow” that may help convince the Chinese government to start toeing the line with more vigor.

The presentation concluded with a lengthy question and answer segment, in which the three experts tackled various questions both about China in general and the discussion at hand.  One questioner asked whether the Chinese companies could in fact be forced out of their mines for rampant safety violations.  Mr. Kine stated that this approach was “worth testing” because the Zambian government needs to use its leverage more directly, instead of engaging in mere fiery rhetoric. He then again referenced the renewed push by the Zambian government to assert its authority by threatening to close one of the mines.  The discussion ended on a high note, with the three presenters presenting their “wish lists” for the future of change in China.

* The author is a first-year Juris Doctor student at Seton Hall University School of Law, and received his BA in Philosophy from the University of San Francisco. Mr. Baber is a member of Seton Hall’s International Law Society.