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By Elizabeth M. Lynch, December 10, 2023

With Henry Kissinger’s death last month at the age of 100, obituaries around the globe have wrestled with his controversial legacy. Some label him a diplomatic genius, others a war criminal. But regardless, each one credits Kissinger with re-setting U.S.-China relations with his secret trip to China in July 1971 while serving as President Richard Nixon’s National Security Adviser.  Six months later, Nixon would make his historic visit to Beijing, meet Chairman Mao and essentially end the Cold War between China and the U.S. “Engineered the United States’ opening to China,” The New York Times wrote about Kissinger last month; “the orchestrator of Washington’s opening to communist China,” noted The Guardian in its obituary; “a key figure in China-US icebreaking in 1972,” claimed The Global Times the day after his death; and “the impresario of Nixon’s historic opening to China,” stated The Washington Post.

But was he?  Was Kissinger the brains behind changing the U.S.’ China policy from one of isolation to one of engagement?

Two must-read op-eds from last week unequivocally say no. The first, by Prof. Jerome A. Cohen and published in The Diplomat, provides personal anecdotes that show not only did Kissinger not come up with the idea to engage China, but he wasn’t the all-powerful diplomat he pretended to be, cowering when Nixon would call.  The second, by former China journalist and author James Mann and appearing in Politico, uses some of the documents Mann obtained in Freedom of Information Act requests over the years to show that Kissinger thought it insane to even contemplate détente with China.

If it wasn’t Kissinger’s brain child, then whose was it?  Mann, in his piece, gives credit to Nixon as “the driving force behind the decision to reestablish diplomatic relations with Beijing.” Nixon might have been that force, but ultimately it was a group of China academics at Harvard University that didn’t just set the stage for Nixon’s trip but provided a roadmap for a new China policy.

Back in 1967, ten East Asian scholars, Jerome A. Cohen, John King Fairbank. Roy Hofheinz, Jr., Dwight Perkins, Edwin O. Reischauer, Benjamin I. Schwartz, James Thomson, Ezra Vogel, A. Doak Barnett, and Lucian Pye, decided that the U.S. needed a new China policy, to bring China into the international community, to avoid a war with the country, and to help end the Vietnam War (China was seen as increasingly crucial to that effort). For over a year, these scholars met to not only discuss how the U.S. could go about engaging a communist country, but how to handle the fallout of that engagement with China’s surrounding neighbors, in particular Taiwan. The final product would be a letter to whichever presidential candidate would win the November 5, 1968 election.

On November 6, 1968, the day after Nixon’s victory, the scholars sent their letter to the president-elect. That letter, and the policy that Nixon ultimately followed in sending Kissinger to China on a secret trip, was published in the Congressional Record in August 1971 by Congressman John Rousselot who was angry after learning of Kissinger’s China trip a month prior. “I urge my colleagues to carefully study this document,” Rousselot wrote, going on to note:

“The effect it has obviously had on our policy toward Communist China is startling. Dr. Kissinger’s ‘advice’ so closely parallels the position taken in this memorandum that I cannot overemphasize how important it is that each Member realize that as early as November 6, 1968, at a time when we were most deeply committed in Vietnam, the plan which is being followed today to appease Communist Chinese aggressors was being presented to the President.”

The letter – which can be read in the Congressional Record here – starts with the recommendation that Nixon task a trusted advisor to have confidential and “perhaps even deniable” conversations with the Chinese leadership in more informal settings, a.k.a a visit to Beijing. The letter also recommended greater people-to-people ties, something the Nixon Administration followed through in permitting the U.S. ping pong team to visit China in 1971 and encouraging the Philadelphia Orchestra’s visit to Beijing in 1973.

Finally, the letter wrestled with what to do with Taiwan, and it is here that Nixon – and future administrations – failed to fully adopted all of the policy recommendations. The letter made clear that the China seat on the United Nations’ Security Council should go to the People’s Republic of China (it had been held by the Nationalist Chinese government on the island of Taiwan), which eventually happened in 1971. But the scholars provided more support for Taiwan at the U.N. stating that the U.S. should seek to “preserve a general assembly seat for Taiwan, whether as the Republic of China, an independent nation, or an autonomous region of China.” One wonders if Nixon had followed that advice, if the current China-Taiwan predicament could have been avoided.

In Brownsville Girl, a lesser-known Bob Dylan masterpiece, Dylan sings “if there’s an original thought out there, I could use it right now,” and that’s what Kissinger did here: take this 1968 letter and pretend like it was his original idea to change U.S.-China relations. But it was not. That credit is due to the ten China academics who had the courage to provide an alternative roadmap to policymakers in the hopes of maintaining peace in East Asia.

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By Elizabeth M. Lynch, July 1, 2020

Prof. Jerome A. Cohen

It was my first trip to Taiwan and I was traveling with a celebrity, Jerome A. Cohen.  I had started working for Jerry at NYU Law School’s U.S.-Asia Law Institute only a few weeks prior.  Because it was August, I hadn’t seen much of my new boss who was spending the summer in Cape Cod.  Taiwan would be my first opportunity to get to know Jerry, one of the pre-eminent scholars of Chinese law in the West.

As soon as we arrived in Taiwan, Jerry’s importance in the region was evident.  At the airport, we were picked up in a car befitting a high-level dignitary.  We dined with then-Vice President of Taiwan, Annette Lu, a former student of Jerry’s and who, in 1985, Jerry helped secure an early release from a 12 year prison sentence for her political speech. And wherever we went, people asked Jerry about another of his former students, Ma Ying-jeou, a presidential candidate who would eventually win.  This law professor from New York had the ear of the highest level of Taiwan’s politics.

Jerry’s high-level contacts didn’t stop at politics.  We also met with Justice Lai In-jaw, the recently appointed President of Taiwan’s Judicial Yuan, in other words, the chief justice of Taiwan’s highest court.  He too had been a student of Jerry’s.  For over an hour, Justice Lai and Jerry discussed recent legal changes in Taiwan and Justice Lai expressed his excitement about his new position leading the Court.

At the end of the meeting, when we had already stood up to show ourselves out, Justice Lai stopped us, turned to Jerry, and, after noting that Jerry had clerked for Chief Justice Earl Warren in the 1950s, asked in a hushed, solemn tone “Do you have any advice for me in my new position?”

Jerry paused, looked at Justice Lai and asked  “Have you ever watched The Graduate?” The seriousness on Justice Lai’s face quickly disappeared with his eyes opening wide.  A smile spread across his face and in a voice louder than I expected said “Yes!  Mrs. Robinson!  The Sound of Silence!”

Jerry in Beijing, 1973. Photo courtesy of Joan Lebold Cohen

Evidently Justice Lai was a fan of the flick.  But I wondered, where is Jerry going with this; how could The Graduate, a movie from the 1960s where a mother seduces her daughter’s boyfriend, provide guidance to the future president of Taiwan’s Judicial Yuan.  Jerry continued.  “Do you remember the first scene, the pool party?”  “Yes!” Judge Lai exclaimed.   “Do you remember when Dustin Hoffman asks his dad’s friend, ‘what should I do?’ And the friend says ‘Plastics.  Get into plastics.’”  Judge Lai, still smiling, nodded repeatedly.  Jerry looked at Justice Lai and with a smile said “So Justice Lai, get into plastics!”  On that note, our meeting was over and I thought, what have I gotten myself into?

What I got myself into was the start of a relationship that would change my life and shape the way I see China, the world and the pursuit of justice.  When I started working with Jerry back in 2007, he was in the thick of supporting China’s human rights (weiquan) lawyers.  But unlike other academics, he didn’t just study these lawyers.  He met with them. He supported them.  He advocated for them before high-level Chinese officials.  Jerry took on the cause of these human rights lawyers, recognizing that they were as much change agents as those in power.  Often it was through Jerry that their stories of persecution were kept alive in the West. Jerry’s unwavering belief that rights lawyers are necessary to rectify societal injustices rubbed off on me.  When, two and half years later, I was offered the opportunity to take a job with a legal services organization in New York City, I spoke with Jerry before making a decision.  I was torn.  Should I abandon the study of Chinese law for a public interest law job in the U.S.?  Jerry didn’t hesitate.  “Yes” he told me.  But that’s Jerry, always encouraging you to take a risk and sometimes knowing you better than you know yourself.

The last time I saw Jerry before New York City went into COVID lockdown was at a talk he was moderating about academic freedom in China.  During the question and answer period, a middle-age professor from China raised his card to speak.  When it was the professor’s turn, he began with an opinion that was contrarian and, as he continued to talk, the groans from other audience members were audible. Even I bristled at what seemed like the party line. The Chinese professor began to slow down, likely unsure if he should continue with all the eye rolls from the audience. But Jerry, looking directly at the Chinese professor, asked him to continue, telling the professor that he wanted to hear the professor’s on-the-ground experience. The professor resumed, a little more confident with Jerry’s encouragement. Jerry engaged the professor, asking pointed questions that developed what turned out to be an important and insightful perspective.

That moment is etched in my mind because it is so different from what we see in today’s society, where we are quick to stake a position and dismiss or objectify those whose opinions differ.  But Jerry is not afraid to be challenged by a different opinion and he has the grace to engage those with different perspectives, making them comfortable to share their life experiences.  We need to be more challenged.  We need to be more respectful of each other. We need to be more like Jerry.

Jerry with his wife, Joan Lebold Cohen

I also often think back to our meeting with Justice Lai where I first got to see Jerry’s mischievous side and learned that none of us should take ourselves too seriously; regardless of our age or where we are in life, we should continue to have fun.

So to Jerome A. Cohen, on this July 1, 2020, happy 90^th birthday! May you continue to be the teacher we need now more than ever and may you have many more years of fun!

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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, August 18, 2010

Prof. Jerome A. Cohen

To celebrate Jerry Cohen’s 80^th birthday,  NYU’s U.S.-Asia Law Institute will be dedicating its annual Gelatt Dialogue on Tuesday, Sept. 7 to Jerry and the impact that his 50 years of study has had on the study of Chinese law.

A cross-generational event, the evening will feature those who were with Jerry when the field was first born in the early 1960s (Prof. Randle Edwards), those who helped Jerry open law firms in China in the late 1970s, early 1980s (Stephen Orlins, Owen Nee), and those who work with Jerry on his current rule of law projects in China (Daniel Yu, Hyeon-Ju Rho, Alex Wang, Margaret Lewis, Cynthia Estlund).

“Let a Hundred Flowers Bloom: A Roundtable Discussion on China’s Legal System” will analyze China’s progress these past 50 years and look at what the future may potentially hold.  The event is free and open to the public although RSVP is requested.  Details are below or can be found at the US-Asia Law Institute website (http://www.usasialaw.org/?p=3969).  Given the wide experience of the panelists, the event should be interesting and, given that all of the panelists were students of Jerry’s, should be a wonderful homage to his work

Gelatt Dialogue on “Let a Hundred Flowers Bloom: A Roundtable Discussion on China’s Legal System”

Celebrating Prof. Jerome Cohen’s 80^th Birthday
Tuesday, Sept. 7
4 pm – 6:30 pm
Reception to Follow
Greenberg Lounge, Vanderbilt Hall
NYU Law School, 40 Washington Square South
RSVP req’d to Jeremy.Daum@nyu.edu (Subject Line: “Gelatt”)

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By Elizabeth M. Lynch, October 19, 2009

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

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

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

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

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

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