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By Elizabeth M. Lynch, February 2, 2010

In yesterday’s New York Times, Helene Cooper argued that the Obama Administration’s recent announcement of over $6 billion in arms sales to Taiwan shows a “new toughness” toward Beijing and perhaps even a “fundamentally new direction” in the Administration’s China policy.  But, by focusing on the arms sales, Ms. Cooper overemphasizes the event.  U.S. arms sales to Taiwan are far from novel or tough, and some may argue, periodically required under U.S. law.

Similarly, Beijing’s angry reaction was predictable.  In fact, for each prior Administration’s arms sales to Taiwan, the Chinese government has responded in much the same way: postponement of military-to-military meetings, issue formal protests with U.S. officials, and saber-rattling for the domestic consumption.  However, Beijing’s recent threat of sanctions against U.S. companies involved with the arms sales is new and serious.  But this is more a reflection of China’s growing confidence and less a reflection of a changed or “tough” U.S. policy toward China.

Why Does China Care so Much about Taiwan?  Isn’t it a Separate Country?

Nope, scrap that vision from your mind.  Taiwan is not a separate country, at least not in the eyes of the Chinese, Taiwanese or U.S. governments.   The People’s Republic of China (a.k.a. the mainland) views Taiwan (a.k.a. “The Republic of China”) as a renegade province and any relations between Taiwan and other countries is viewed as interference in the mainland’s domestic affairs.  While Taiwan has largely developed as an independent society, it agrees with the mainland’s assessment that there is only “one China.”  The Taiwanese government has never called for independence and the Kuo Min Tang party (pronounced Gwo min-dang and a.k.a. “the Nationalists” or KMT), which has ruled Taiwan for most of Taiwan’s separate existence, also espouses the view of “one China” and that eventually, the mainland and Taiwan will reunite.  The difference is who rules this reunited China.  For Taiwan, it’s the KMT; for the mainland, the Chinese Communist Party (CCP).

All of this stems from World War II.  After the War ended in 1945, the KMT and the CCP resumed their civil war, a civil war that was put on hold to fight the Japanese invasion from 1937 to 1945.  By 1949, the CCP’s victory was certain and the KMT government fled to the province of Taiwan to continue the Republic of China.

Thus began the baffling existence of two Chinas – the communist People’s Republic of China on the mainland and the KMT’s Republic of China on Taiwan.  Each China claimed that it was the “official” and “rightful” China and the other a mere province; each forced the international community to recognize only one China – either China on the mainland or China on Taiwan – hence the birth of the “one China” policy.

The U.S. continued to ally itself with the KMT and the Republic of China, recognizing Taiwan as the official China and all but denying the existence of the mainland.  But starting in 1972, with President Richard Nixon’s historic visit to the mainland, relations between the U.S. and the PRC began to improve and in 1979, the U.S. switched recognition of China from Taiwan to the mainland.

Obama’s Arms Sales to Taiwan Is Par for the Course in U.S.-China Relations

The Obama Administration’s recent announcement of arms sales to Taiwan follows a long line of arms sales by the U.S.  Almost every president since 1978 has sold arms to Taiwan.  In fact, the U.S., under the 1979 Taiwan Relations Act (TRA), is required to sell defensive arms to Taiwan.  In 1979, after changing recognition to mainland China, the U.S. did not want to leave its former ally completely open to attack or takeover.  As a result, Congress passed the TRA.

The TRA authorizes quasi-diplomatic relations between the U.S. and Taiwan.  For example, instead of having an official embassy on Taiwan, the TRA allows for the “American Institute in Taiwan.”  Additionally, and more importantly, the TRA established the U.S.’ responsibility toward Taiwan if it is threatened.  At issue here is the TRA’s requirement that the U.S. periodically sell defensive arms to Taiwan.

In announcing arms sales to Taiwan, the Obama Administration is merely following its obligations under the TRA.  Additionally, the Obama Administration has not acquiesced to Taiwan’s request for F-16s.  During the George W. Bush Administration, Taiwan repeatedly requested the purchase of F-16s.  Similarly, Taiwan put out feelers with the Obama Administration to see if there was a possibility that they could purchase F-16s.  Again, Taiwan was told not to put in a formal request for F-16s.

The F-16s are a big issue since they are not “defensive” arms; Beijing would very much view a sale of F-16s to Taiwan as going a bit too far.  But Obama’s package to Taiwan merely includes the usual: Patriot missiles, Black Hawk helicopters, mine-hunting ships and information technology.

If the Obama Administration wanted to use the Taiwan arms sales requirement to “toughen” its stance to Beijing as the New York Times claims it has, the Administration would have acquiesced to Taiwan’s request for F-16s.  Instead, it merely sold similar arms to Taiwan that President George W. Bush sold in 2008.

This is not to say that the Obama Administration does not have a strong China policy.  Secretary of State Hillary Clinton’s recent policy speech on internet freedom was a robust critique of countries like China that censor their internet and partake in cyberhacking.  This follows President Obama’s strong and public criticism of internet censorship while in China this past November.  The New York Times would have done better to focus its argument on the Administration’s novel and forceful rhetoric on internet freedom vis-à-vis China.

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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, November 11, 2009

More than a McDonald's for China's public interest lawyers

Originally Posted on the Huffington Post

Beijing, China – You would never expect a group of professional attorneys to hold a serious meeting in a McDonald’s, but for Chinese public interest lawyers, it is one of the few remaining safe places to meet.  With constant surveillance and random harassment by Chinese police, a public place like McDonald’s decreases the very real risk that the police will arbitrarily drag these public interest lawyers, known in Chinese as weiquan lawyers (pronounced way choo-ann and translated as “rights defending” lawyers), into custody.  So that is where I found myself last Friday when I met with three public interest attorneys in Beijing, all recently disbarred, to discuss their expectations for President Barack Obama’s inaugural visit to China next week.

“The government took away our ability to work…to help the people achieve their rights” Beijing lawyer surnamed Xie* (pronounced Syeah) said as he explained the recent disbarment of over 20 weiquan lawyers from practicing law in China.  While acknowledging that the Chinese Ministry of Justice (MOJ), which controls all bar associations in China, has the right to initiate procedures to discipline poorly-behaved attorneys, Xie countered “here, they didn’t even follow their own procedures….Because we did nothing wrong, they [the government] couldn’t use the procedures…instead, they used pressure on our law firms and other secretive means to punish us weiquan lawyers.  This is becoming more common.”

To say that public interest law in China is a small, burgeoning field is an understatement.  Only a handful of lawyers take on the cases of the most weak and vulnerable of Chinese society, and in a country of close to 1.4 billion people, there are a lot of these cases.  These are the cases on behalf of parents who lost their only child in the Sichuan earthquake and who want justice from the local government for shoddy school construction; or cases that seek to protect the rights of

Weiquan Activist, Hu Jia

members of Falun Gong to practice their religion, a right guaranteed under the Chinese Constitution; and cases as simple as protecting individuals infected with HIV or AIDS from discrimination.  While these lawsuits can all legally be brought under Chinese law, politically they are dangerous.  And the weiquan lawyers who bring these cases, cases that the Chinese government sees as upsetting their narrative of a “harmonious society,” subject themselves to harassment, disbarment, and, in the case of Hu Jia (pronounced Who Gee-ah), prison time.

These weiquan lawyers want President Obama, a fellow public interest attorney and Noble Peace Prize recipient, to acknowledge the importance of their struggle when he comes to Beijing.  “I don’t have great hope [for the visit]” attorney Liu* (pronounced Leo) admitted “but it is important for him [President Obama] to say something.”

“When Clinton and Pelosi came to China, they spoke little of human rights” Beijing lawyer Tang*, who was detained by police for a few days this past June, noted.  “But I want Obama to speak more about these issues.”

“President Obama and the U.S. government shouldn’t just look at today’s China, but where China will be in the future” Xie said “they need to look at the Chinese people’s hopes and their changing state of mind.”

President Obama and many who are traveling with him to China, including Secretary of State Hillary Clinton, know all too well the importance of public interest lawyers in guaranteeing that the laws on the books are a reality for society’s most vulnerable.  Upon law school graduation President Obama returned to Chicago to help the poor and least represented achieve their legally-entitled rights.  As first lady of Arkansas, Secretary Clinton co-founded the Arkansas Advocates for Children & Families and was the chair of the Legal Services Corporation.

In many ways, the difficulties that President Obama and Secretary Clinton surely faced as public interest lawyers are not unlike those of the weiquan attorneys in China – financially powerful adversaries, clients with little to no voice in society, and never-ending work with limited resources.  But there is one additional factor that neither President Obama nor Secretary Clinton had to contend with as public interest attorneys in the U.S. – their government shutting down public interest organizations in order to squelch their missions as well as the entire public interest movement itself.

Because of this and because they are colleagues of these weiquan lawyers, during next week’s visit, President Obama or Secretary Clinton needs to publicly acknowledge the increasingly difficult challenges faced by China’s weiquan lawyers and stress the benefits a flourishing public interest law movement can bring to China.

The importance of U.S. opinion to these weiquan lawyers cannot be overstated.  “America still serves as a model for human rights….it’s their duty to say something” Tang implored.  Like many Americans, I have often read about the beacon of hope that the U.S. provides to rights activists abroad.  But it wasn’t until last Friday, in talking to people ostracized by their own government for doing what they believe in, that I began to understand the significance of U.S. moral authority and the tangible dependence of activists abroad on it.

The U.S. is currently experiencing a great deal of self-doubt – our economy is tattered, we are in the midst of what appears to be two never-ending wars, our political parties can’t seem to cooperate to get anything done, and to get out of some of these problems we appear dependent on China.  But Tang is right – we should not shrink from the responsibilities of our ideals.  If President Obama, who likely best understands the importance of rhetoric in defining a movement, does not say something on behalf of these weiquan lawyers, then who will?

Our relationship with China is between two nations, between two peoples, not just between two governments.  The weiquan lawyers, and the poor and vulnerable people that they represent, are an indelible part of the Chinese people.  Certainly the Chinese government, and maybe even many of the Chinese people, would prefer that President Obama not acknowledge this, but there are many in China that hope he does.  I don’t pretend to know exactly how President Obama should walk the fine line between encouraging these weiquan lawyers and not outright offending the Chinese government and other sections of the Chinese public.  The weiquan lawyers I met with would like him or someone in the Administration to meet with one of the lawyers.  Others have called on the President to request the release of weiquan activists like Hu Jia.  I think at the very least President Obama should acknowledge these weiquan lawyers in a public statement to the Chinese people and encourage the continued growth of China’s public interest law movement in order to make the ideals of China’s law a reality for 1.4 billion people.

* The lawyers requested that only their last names be used in order to protect their identities.

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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 7, 2009

The U.N. Climate Change Conference in Copenhagen is exactly two months away but has China and the U.S. made any headway in coming to terms with their differences on the climate change front?  In a new article published in the Tsinghua China Law Review,  senior attorney at the U.S. Environmental Protection Agency (EPA) Steve Wolfson offers a positive outlook on negotiations with recommendations on how the U.S. and China can move forward to reach a meaningful climate change agreement.

In “Gathering Momentum for U.S.-China Cooperation on Climate Change”  Wolfson reviews the issues that have plagued climate change negotiations between the U.S. and China and the progress that has been made:

• A Developed Country or a Developing Country? – China puts itself squarely in the developing nation category.  Developing nations were exempt from greenhouse gas emission targets for the Kyoto Protocol and will likely be again for the Copenhagen agreement.  But is China a developing country in the way that Cambodia or Ghana is?  Arguably no and given the fact that China surpassed the U.S. in 2007 for greenhouse gas emissions, the U.S. and other developed countries should push China forward in agreeing to some type of targets.
• Historic Responsibilities of the Western World – China rightfully claims that the planet’s current climate change crisis is a result of the centuries of development in the Western world.  China’s current development over the past 20 years has not caused the current crisis.  But the Western countries argue that, unless it limits its greenhouse gas emissions and works on its energy efficiency, China’s future development is what will make the present crisis into a death sentence for the world.  However, as Wolfson points out, there has been some movement by the U.S.  When Secretary of State Hillary Clinton visited China in February, she acknowledged the special responsibility of the U.S. due to its role as the largest historic emitter of greenhouse gases.  In his speech before the U.N. two weeks ago, President Obama also admitted to the historic differences between the U.S. and China in terms of greenhouse gas emissions.
• China’s Positive Progress on Controlling Carbon Emissions – Wolfson analyzes the various laws that China has passed to curb its greenhouse gas emissions and increase its energy efficiency.  He also takes note of China’s various initiatives to restructure its economy to improve its efficiency and reduce its emissions.

While Wolfson’s article offers much hope for U.S.-China progress on the eve of Copenhagen, he concludes on a slightly somber note, remarking on China’s inability to implement many of its national laws on the local level.  This is a problem that permeates all of Chinese society: the the Sanlu milk powder scandal last year, the recent and wide-spread lead poisoning  of children in villages that boarder factories, the importation of toys laced with lead from China; school buildings that do not withstand an earthquake; these are all examples of a regulatory system that fails on the local level.

China is sincere in its desire to be a leader in clean technology and to clean up its environment.  But its problem now is implementing any agreement that comes out of Copenhagen, and this is not because China does not want to; it is because China does not know how.

We at China Law & Policy have recommended in past posts and continue to recommend that U.S. policy makers seize the opportunity that Copenhagen offers to assist China with its legal development in the regulatory field.  Copenhagen should not just be about agreeing to targets; an agreement from Copenhagen should also include the U.S.’ commitment to provide resources on implementation and governance, knowledge exchanges between U.S. environmental regulators and Chinese environmental regulators, and an open-mindedness that it is going to take China some time to establish an effective regulatory scheme.  By assisting China with its regulatory development, the U.S. will not only make headways in establishing a greater sense of rule of law but could potentially benefit the lives of 1.3 billion people in a very real and tangible way.  Wolfson’s article reminds us of this.

Click here to Read Steve Wolfson’s Gathering Momentum for U.S.-China Cooperation on Climate Change.

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By Elizabeth M. Lynch, July 31, 2009

This past Monday and Tuesday marked the sixth Strategic and Economic Dialogue (S&ED) between the U.S. and China.  Formerly just the “Strategic Economic Dialogue” and before under the sole supervision of the U.S. Treasury

Secretary Hillary Clinton & State Councilor Dai Bingguo with the Strategic Track delegation, July 28, 2009 (White House Photo/Public Domain)

Department, the inclusion of  the conjunction “and” to the title brings non-economic issues to the table as well as Secretary of State Hillary Clinton.

On day one of the two-day conference, President Obama spoke to the delegation, stressing the need for the U.S. and China to continue cooperation to guarantee a lasting economic recovery, to lessen the impact of climate change and promote “a clean, secure and prosperous energy future,” and to stop the spread of nuclear weapons in places like North Korea and Iran (these three issues were also the main thrust of an op-ed written by Secretary Clinton and Secretary of the Treasury Timothy Geithner  in Monday’s Wall Street Journal) .

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Was the S&ED successful?  Did it produce more than just mere rhetoric?  At first glance, no.  But in the relationship between the U.S. and China, sometimes even rhetoric is a step forward.  See below for a review of the issues in greater detail.

(1) Climate Change

There was definitely paper success here.  The U.S. and China signed a Memorandum of Understanding  to Enhance Cooperation on Climate Change, Energy and the Environment (MOU), but the MOU just puts on paper existing relationships and does little to further climate change cooperation.  Both governments promise to continue with the Ten Year Cooperation Framework on Energy and Environment signed just last year and both promise to promote cooperation on a variety of vague steps, including capacity building and cooperation “between cities, universities, provinces and states of the two countries.”  Perhaps this shows a greater understanding on the part of U.S. policy makers that “capacity” is something that China sincerely needs assistance with (see The U.S. in Copenhagen: Preventing Another Toothless Tiger).  Also, in a nod to the Chinese delegation’s claim of differing responsibilities between developed and developing countries, the MOU states “Consistent with equity and their common but differentiated responsibilities, and respective capabilities, the United States and China recognize they have a very important role in combating climate change” (emphasis added)  Only time will tell if any of this rhetoric becomes a reality and whether the U.S. and China can reach an agreement in time for Copenhagen, an increasingly less likely proposition.

(2) Economic Recovery

Discussion regarding economic recovery was perhaps the most public, and most interesting, of all the talks.  Showing the changing dynamic of the U.S.-China relations, Xie Xuren, the Chinese finance minister, called the U.S. to task and requested that it reduce its budget deficit.  Holding an estimated $1.5 trillion in U.S. Treasuries, the Chinese government is concerned that an increased deficit could weaken the dollar, lowering the value of their Treasuries.  At the same time, for the U.S. to decrease deficit it would need to buy less goods, further decreasing demand on China’s manufacturing sector (an unfortunate Catch-22 here for China).  While Secretary Geithner promised the Chinese delegation that the U.S. would lower its deficit once recovery has begun, he also called upon the Chinese to increase

Who's got the ball? Vice Premier Wang Qishan with Pres. Obama at the Oval Office, July 28, 2009 (White House Photo/Public Domain)

domestic demand and lower the astronomically high savings rate of its people (estimated at 50%) in an attempt to rebalance the U.S.’ trade deficit with China.

(3) Currency

Always a thorny issue, the U.S.’ repeated request that China allow its currency to strengthen was most likely discussed during the S&ED.  However, nothing about currency was mentioned publically.

(4) North Korea

China has taken a much more foreceful approach to North Korea.  In May, when North Korea first began its saber-rattling, China spoke a hard-line against its neighbor, agreeing to abide by U.N. Security Council sanctions.  Less clear is what actions China actually undertook to promote these sanctions.  And although North Korea was a main point in President Obama’s speech before the S&ED, publically, neither the U.S. nor China made any statements on how they will cooperate to contain the country.   Such silence is par for the course since North Korea is a very sensitive issue for China but at the same time, their assistance in dealing with the North Koreans is essential.

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By Elizabeth M. Lynch, July 19, 2009

Last week, U.S. Secretary of Energy Steven Chu and U.S. Secretary of Commerce Gary Locke visited Beijing.  Much of their discussion with Chinese officials, as well as the focus of Secretary Chu’s speech at Tsinghua University, revolved around climate change and preparation for the U.N. Climate Change Conference in Copenhagen this December.  Both the NY Times and the Associated Press

Secretaries Steven Chu and Gary Locke in Beijing

reported on Chu and Locke’s visit.  During their visit, the U.S. and China agreed to jointly fund the Clean Energy Joint Research Center, with $15 million provided up front.

While the Clean Energy Joint Research Center is certainly a step in the right direction, especially in light of the technical capacity issues that China currently faces in curbing greenhouse gas emissions, talks between China and the U.S. on a potential agreement on climate change have still not progressed forward.  Copenhagen is less than five months away and it appears that the U.S. and China, the world’s two largest emitters of greenhouse gases, have made little progress in coming to any agreement.  China still continues to maintain trade barriers to U.S. clean energy companies, shielding their own nascent clean energy industry from global competition, and potentially hindering its own technological capacity.  However, with the new tariff provision in the House’s Clean Energy Bill, the U.S. has less standing to argue against China’s protectionist policies.

In similarly frustrating turn of events, Indian officials, in an unexpected statement to U.S. Secretary of State Hillary Clinton during her visit to India, announced today that they remain opposed to any binding requirements on developing nations to reduce their carbon dioxide emissions.

Have climate change talks stalled?