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By Elizabeth M. Lynch, April 10, 2011

Originally posted on The Huffington Post

Bob Dylan performed in concert in Beijing on April 6 and Shanghai on April 8

Maureen Dowd’s op-ed in Sunday’s New York Times – Blowin’ in the Idiot Wind – lambasts singer-songwriter/protest-singer/civil-rights-activist/voice-of-a-generation/whatever-he-is-to-you Bob Dylan for his recent concert in Beijing, China.  For Dowd, Dylan’s acceptance of the Chinese government’s approval of his set list is anathema to everything he represents.  Dropping his famous protest songs of “Blowin’ in the Wind” and “The Times They Are A’Changin’” from the set list during China’s most severe crackdown on its own citizens since 1989 and ignoring the recent detention of Chinese rights activists shows, for Dowd, that Dylan is nothing more than a sellout, willing to auction his morals to the highest bidder.

But Dowd’s virulent critique of Dylan makes one wonder, where has she been in all of this?  Dowd is an obvious Dylan fan, likely even a disciple, with her skilled use of Dylan quotes and understanding of the man’s extremely tangled and uncomfortable history with fame.  But China’s “harshest crackdown on artists, lawyers, writers and dissidents in a decade” and its “dispatching the secret police to arrest willy-nilly, including Ai Weiwei” as Dowd notes, didn’t just start this weekend and didn’t just start with the detention of Ai Weiwei.

Since the middle of February, the Chinese government has been illegally abducting Chinese rights activists, preventing them from contacting their family let alone a lawyer, and subjecting them to torture and abuse.  This siege on rights activists in China is done as a pre-emptive strike on the nascent civil society that has been developing and is an attempt for the Chinese Communist Party to avoid the fate of Mubarak and Ben Ali and maintain its one-party authoritarian rule, especially as a change of leadership comes in 2012.

Tang Jitian was abducted from his home on February 16, 2011, starting what has proved to be a wide-cast net of illegal abductions and abuse (abuse of both China’s own laws and the individuals that remain in custody).  Since then, Dowd has written 13 columns, not a single one dealing with the issue of the Chinese government’s harsh and violent crackdown on its citizens.  Today’s column barely touches upon the issue and instead focuses on Dylan’s “selling out.”

Let’s face it, Dylan is unable to sell out because he never bought in in the first place.  Dylan never fully engaged the civil rights movement.  While his songs did become a motivating force for many of the great civil rights activists and moments in U.S. history, by 1965, he was done with folk and had plugged in.  And since the 1980s, Dylan has been on a non-stop tour, selling the rights of his iconic protest songs to commercial entities (the rights to Times They Are A Changin’ was first sold to accounting firm Coopers & Lybrand and in 1996 to the Bank of Montreal), appearing in a Victoria’s Secret ad, producing an abysmally bad Christmas album, and almost never including Blowin’ in the Wind and the Times They Are A’Changin’ in any set list anywhere in the world (review his set lists here: http://www.bobdylan.com/tour/calendar/2010).

Dylan’s lack of mentioning China’s recent crackdown on dissent isn’t shocking.  In fact, the old guy likely knows nothing of what is happening in China – why should we rely on him to be our voice and do all the work?  This isn’t his issue; in fact, the man likely has no issues other than himself.

Which brings us back to Maureen Dowd.  Unlike most of the people concerned about human rights abuses in China, Dowd has a powerful platform for her voice – her twice-a-week column in the N.Y. Times.  With a large and influential readership that likely reaches the halls of the White House and Congress, discussion of China’s recent abuse of its own citizens and its subversion of a rule of law in her column could influence important policy makers as well as the world-at-large.

To their credit, some of the world’s major newspapers have been reporting on China’s recent crackdown, but these articles have been cursory at best and do not fully explain why China’s recent assault goes above and beyond what traditionally occurs in an authoritarian regime.  But most individuals knowledgeable on the issue have had extreme difficulty in getting their voice out in the mainstream press (kudos though to The International Herald Tribune and the N.Y. Times for publishing opinion pieces in its print editions and kudos to  The Guardian and the Wall Street Journal for having opinion pieces on the issue in their online papers).

Dowd has the opportunity to expose what is happening in China and call for the freeing of, or at the very least the end of the abuse of, not just Ai Weiwei, but also rights-defending lawyers Tang Jitian, Jiang Tianyong, Teng Biao, Liu Shihui, Tang Jingling, Li Tiantian, and Gao Zhisheng.  The whereabouts of these lawyers, unlawfully abducted by Chinese authorities (even under Chinese law), remain unknown.  Their only offense: asking the Chinese government to uphold its promise of a rule of law and using the legal system to protect society’s most vulnerable.

Dowd’s disappointment in Dylan’s snub of China’s crackdown on dissent leads me to believe that this is an issue Dowd is concerned about.  But instead of asking Dylan to be the spokesperson for the issue, Dowd should practice what she herself appears to preach.  My challenge to Dowd is to use her sharp-witted pen and find a way to raise the plights of China’s rights-defenders in the American consciousness instead of relegating it to two sentences in a column that is otherwise a critique of Dylan.  If Dowd doesn’t, then I am left to think “you could have done better but I don’t mind, you just kinda wasted my precious time….”

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By Elizabeth M. Lynch, February 16, 2011

Human Rights Lawyer, Mo Shaoping

Last July, Caijing Magazine – an independent, hard-hitting financial news outlet in Beijing – convened its first ever conference on the status of lawyers in Chinese society.  Titled “China’s Lawyers at a Crossroads” (summary of the conference can be found here – in Chinese), the conference featured notable criminal defense and human rights lawyers and professors such as Professors Jiang Ping and Chen Guangzhong of the prestigious China University of Politics and Law.

Through a series of speeches (conference website here – in Chinese), the panelists seemed to agree that the road China’s lawyers have been forced to walk in recent years has been rough and full of pot holes.  Rights-defending lawyer (or in Chinese weiquan lawyer), Mo Shaoping, known more recently for representing Nobel Peace Prize winner Liu Xiaobo, provided a clear analysis of the regression of the legal profession these past few years.  Below is an English translation of his fascinating, if not depressing, speech.  The Chinese original can be found here.

Ultimately, Mo provides some hope for China’s lawyers – a far-off, distant hope, but hope none the less, echoing some of the sentiment found in Bob Dylan’s “Paths of Victory” (trails of trouble/roads of battle/paths of victory/we shall walk).  In all, his speech provides an interesting insight into how one of China’s most prominent lawyers views the development of the profession.

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By Elizabeth M. Lynch, December 27, 2010

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

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

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

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

Human Rights lawyer, Teng Biao

By Teng Biao*

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

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

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

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

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

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

***Click here to Read More***

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

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By Elizabeth M. Lynch, 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, May 17, 2010

After a two year hiatus, the U.S. and China resumed their human rights dialogue last Thursday and Friday in Washington, D.C.  Don’t be alarmed if this is the first you heard of the Dialogue; the U.S. mainstream press barely covered it.

The U.S-China Human Rights Dialogue is subject to criticism and much of it viable.  China doesn’t send anyone with much power to negotiate (for last week’s Dialogue the highest official was Chen Xu, Director General of the Department of International Organization of the Ministry of Foreign Affairs); the Dialogue itself is conducted largely behind closed doors and it is unclear what is accomplished; and there are never benchmarks set to determine if these dialogues actually produce any results.

But last week’s U.S.-China Human Rights Dialogue, even with the little that is

Assistant Secretary, DRL, Michael Posner

known about it, is newsworthy; it reflects a changing interpretation of human rights in the U.S.-China relationship.  From what can be gleaned from Department of State press conference, the new emphasis in human rights appears to be almost exclusively rule of law.  While Mike Posner, Assistant Secretary of State for the Bureau of Democracy, Human Rights and Labor, highlighted five different topics which were discussed at the dialogue (religious freedom, labor rights, freedom of expression, rule of law, and racial discrimination), the focus of the Chinese delegation’s field trip on Friday was largely legal.  On Friday, the Chinese delegation made the following visits: a meeting with Justice Sandra Day O’Connor to discuss rule of law and an independent judiciary; a talk with Cardinal McCarrisk at Catholic Charities’ Anchor Mental Health Center to discuss the relationship between the religious community and government as it pertains to human and social services; discussions with the Federal Mediation and Conciliation Services concerning labor rights and collective bargaining; and a talk with Thomas Crothers at the Carnegie Endowment for International Peace regarding the interplay among law, human rights and food safety.

In addition to the focus of an effective legal system as a part of human rights, here are some other interesting takeaways:

Why discuss with delegates from an atheist country the role of religious organizations?

This is perhaps the most interesting and most puzzling aspect of the talks.  China, run by the Communist Party, is a self-declared atheist country.  In fact, all of the Chinese delegates from last week are admitted atheists.  To be a Chinese official, Communist Party membership is a prerequisite; to be a member of the Chinese Communist Party renunciation of religion (Buddhist, Islam, Christianity, etc) is necessary.   So given this fact, the State Department trip to Catholic Charities offers an interesting insight into the U.S.’ policy toward religion, human rights, and China, particularly in regards to Christianity.

While ostensibly atheist, China is one of the fastest growing Christian nations.  Even based on the Chinese government’s official numbers –which are likely low-balled—from 1997 to 2006, China saw a 50% rise in the number of Christians.  The number, including those that attend the government-run churches as well as the underground, unofficial churches, is around 70 million.  Although this seems like a large number, population wise, it is only around 5%.  So for many Western Christian missionaries, the name of the game is China.  Western Catholics and Protestants both know this and are in China, albeit undercover, in large numbers.

While China has a growing Christian population, the Chinese government remains ambivalent about its development – sometimes seeing it as buttressing its authority and sometimes seeing it as a threat.  Although religious groups and charities have been important in the U.S.’ civil society development, China is a long way from having any sort of religious charities that could support human rights or rule of law.

So why the trip to Catholic Charities?   Perhaps the Chinese officials requested this because they are sincerely interested in learning more about the role religious groups can play in society.  Or perhaps U.S. policymakers’ idea of human rights, at least in China, is becoming less secular and more religious-based, particularly Christian.  Unfortunately, Assistant Secretary Posner did not explain why the Human Rights Dialogue with atheist China focused on the role of religious organizations in supporting human rights and we are left merely to speculate.

U.S. Raises Issue of Liu Xiaobo’s Imprisonment, the Disappearance of Gao Zhisheng, and likely the Disbarment of Tang Jitian and Liu Wei

Assistant Secretary Posner informed the press that U.S. officials discussed many specific Chinese dissents’ cases during the Dialogue.  However, the only two cases he named were those of Liu Xiaobo and the very odd case of Gao Zhisheng.

Liu Xiaobo has a long history of human rights activism in China.  In 1989, he

Activist Liu Xiaobo

participated in the Tiananmen protests and has repeatedly criticized the Chinese government.  His activism has received many accolades from the West, including Reporters Without Borders’ Foundation de France Prize.  In December 2008, Liu Xiaobo was one of the organizers of the Charter ’08 movement, a movement calling for more democracy, less corruption and greater accountability of the Chinese government.  For these activities, Liu was arrested and sentenced to a very harsh 11-year prison term for inciting subversion of state power.  Even for China, the sentence is particularly long.

Although Liu’s sentence was harsh, the outcome was not surprising from

An emaciated Gao Zhisheng in March 2010 after a year in police custody

China.  Gao Zhisheng’s case however is just downright bizarre and Kafkaesque.  Gao is a self-taught lawyer and received much praise by the Chinese government for his work in public interest law.  But that was back in 2001.  By 2006, Gao had fallen out of favor and his work, particularly the representation of the repressed religious organization Falun Gong, was seen as a threat to the Chinese government.  In 2006, Gao was detained, arrested and eventually found guilty of subversion.  His three year prison sentence was converted to five year probation and he was allowed to remain at home.  After harassment, physical abuse and threats to his life, in February 2009, one month after his wife and child fled China for the United States, Gao was mysteriously abducted by Chinese police.  His whereabouts remained unknown.  The Chinese government remained largely silent in regards to Gao’s whereabouts until January of this year when in response to questions regarding Gao’s disappearance, Foreign Ministry spokesman Ma Zhaoxu retorted that Gao was “where he should be.” Although ominous, Gao eventually reemerged in March 2010 at Wutai Mountain, hundreds of miles from his home.  Announcing that he was giving up rights activism for the opportunity to be reunited with his family, Gao went to Xinjiang Autonomous Region at the beginning of April to visit his in-laws.  After one night there, Gao was abducted a second time and to this day, his whereabouts are unknown.

In addition to Liu and Gao, Posner also mentioned that the cases if recently disbarred public interest lawyers were also raised.  This likely means Tang Jitian and Liu Wei, two public interest lawyers who were recently stripped of the right to practice law.  Both Tang and Liu merely represented

China’s increasingly hard-line stance against rights activists and public interest lawyers reflects a country that may not be interested in establishing the rule of law, at least at it pertains to non-economic spheres.  Raising these issues is important not just for the people being detained or harassed, but also to see how China moves forward in response to the issues.  For example, President Obama, in his trip to China last November, reportedly raised the issue of Liu Xiaobo’s detention.  However, the Chinese government did not lighten Liu’s sentence in response.  Instead, the Chinese government sentenced Liu to the overly harsh term of 11 years in December, a month after President Obama’s visit.  It will be interesting to see what happens to Liu Xiaobo, Gao, Tang and Liu Wei after the Human Rights Dialogue.  Does China care anymore about the U.S.’ criticism?

Even the Chinese know what the real purpose of Arizona’s new law

To create a feeling of mutual respect, the U.S. usually voluntarily discusses its own human rights issues during these dialogues.  In last week’s Dialogue, Assistant Secretary Posner volunteered Arizona’s new law against illegal immigrants as an example of a potential human rights violation in the United States.  However, according to Posner, the Chinese were not concerned about the law as it may apply to their citizens visiting the U.S.  Even the Chinese know that the law’s likely racial profiling will be for Mexicans, not Chinese.

How to Move Forward

Last week’s Human Rights Dialogue was only the second since 2002, after China suspended the talks.  Actually having the Dialogue itself is a major accomplishment.  Additionally, at the end both sides agreed to have another session in 2011, making the Dialogue an annual event.  For purposes of a continuing conversation, this is a good sign.  But the criticism that China merely plays lip service to the Dialogue is apt.  That is why it is important that during this month’s Strategic & Economic Dialogue (S&ED), to be held in China May 24 and 25, that high level officials, including the Secretary of State, raise human rights.  China places more emphasis on the S&ED compared to the Human Rights Dialogue.  But if the U.S. really wants China to move forward in human rights and rule of law, the topic must also be raised at the S&ED.

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By Elizabeth M. Lynch, April 20, 2010

On Monday, I posted my take on the Rio Tinto trial which elicited significant response from China law scholars.  I was lucky to have a very thoughtful response from Prof. Vivienne Bath of the University of Sydney and Director of the Centre for Asian and Pacific Law at the University of Sydney.

Prof. Bath has a different perspective on the Rio Tinto trial and you can find her comments below.  She also points out two mistakes that I made in the original article.  In the original article, I state that foreign press was permitted into the bribery portion of the trial.  This is incorrect.  They were only permitted access to the verdict and sentencing portion.  A second mistake is that I state that there was live witness testimony; there was not.  There was only the presentation of written testimony; not actually live witness testimony.  I have made these corrections to the original article and my apologies to the readers.

I thank Prof. Bath for her response to my article and for giving me permission to post it to China Law & Policy to offer a different perspective.

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By Elizabeth M. Lynch, April 19, 2010

Originally Posted on Foreign Policy Digest

Developments

Last summer, the billion dollar steel industry watched in rapt attention as China cracked down on one of its own.  On July 5, 2009, Chinese authorities in Shanghai detained four employees of the Australian mining company Rio Tinto, then later sentenced them to prison terms ranging from seven to fourteen years.  Many China watchers and industry insiders considered the sentencing and charges of bribery and commercial espionage to be retaliation for the recent tough iron ore pricing negotiations, and Western media were quick to portray the Rio Tinto incident as a reflection of China’s irreverence toward rule of law and its politicization of the legal system for corporate advantage.   However, in examining the Rio Tinto case, the Chinese prosecutors followed legal procedure more precisely than they do in most ordinary criminal trials in China.  While there may have been some misuse of criminal process for corporate gain, it appears that the Australian government and Rio Tinto itself may have acted as passive accomplices in its politicization.

Background

Rio Tinto is keenly aware of China’s importance in its operations.  In 2009, China’s imports accounted for $10.56 billion, or close to a quarter of Rio Tinto’s overall profits.  With China as one of the few countries still growing during the global finical crisis, it is no wonder that Rio Tinto’s 2009 Annual Report listed “strengthen [its] relationship with China” as a key strategic goal for 2010.

In China, it is neither unusual nor unlawful for suspects to be detained without being officially arrested or charged with a crime.  Article 69 of the Chinese Criminal Procedure Law (CPL) permits authorities to detain a suspect

Stern Hu

without arrest for up to 30 days in certain instances—one of which is in cases with multiple suspects.  When the four employees were detained by Chinese State Security officials on July 5, 2009, Stern Hu—an Australian citizen—Wang Yong, Ge Mingqiang, and Liu Caikui appeared likely to be charged with stealing state secrets, a grave offense under the Articles 111 and 113 of the Chinese Criminal Law (“CL”) that can carry a life or, even death, sentence if convicted.  State secret trials are particularly nontransparent; the trial is completely closed, with even the defendant’s lawyer excluded.  However, upon their official arrest on August 12, the four Rio Tinto employees were not charged with stealing state secrets; instead all four were charged with the lesser crimes of stealing corporate secrets and commercial bribery, which carry prison terms of three to seven years and five years, respectively.  There is a thin line between stealing state secrets and stealing corporate secrets when the entity involved is a state-owned company, as are most Chinese steel companies.  But, given Stern Hu’s Australian nationality, it was crucial to Sino-Australian relations that China make such a distinction in this case.  On February 10, 2010, a three-judge panel in the Shanghai Number One Intermediate Court agreed to accept the case, and the four employees were officially indicted.

While in custody, the four employees received support from both Rio Tinto and the Australian government.  Sam Walsh, chief executive of Rio Tinto’s iron ore operations, remained confident in his employees’ innocence and repeatedly expressed his concern over the charges.  Australian officials who paid consular visits to Hu, as mandated by the China-Australia Agreement on Consular Relations (the “Consular Agreement”), continued to discuss the case with the press, and the Western media remained actively interested in the case, wondering how the Chinese government was going to execute what was perceived as trumped up charges against Rio Tinto employees.

Australian Consul-General Tom Connor (centre) makes a statement to the media outside the Shanghai No. 1 Intermediate People's Court in Shanghai, on March 22, following the first day in the trial of four Rio Tinto employees.

In a surprising turn of events, on March 22, 2010—the opening day of the long-awaited trial–all four Rio Tinto employees pled guilty to accepting bribes totaling $13 million.  In accordance with the Consular Agreement, an Australian consular official was allowed to attend the bribery portion of the trial.   Domestic press was given access to the trial, but with only guilty pleas, there was little to report.  Foreign press was excluded.* After the guilty plea, Rio Tinto and the Australian government, the only two Western entities that have seen the actual evidence that caused the four to plead guilty, stated that there was enough evidence to support the bribery charge.  But this allegedly “clear evidence” has not been made public, making it impossible to evaluate its credibility.

On the second day of the trial, the Court tried all four defendants in a closed-door trial on the charge of stealing commercial secrets.  Even Australian consular officials, who are permitted to attend all trials under the Consular Agreement, were denied entry.  After concluding the trial on March 24, the Court reached its verdict on the following Monday, March 29, 2010.  With Stern Hu’s wife in the courtroom–the first time she had seen her husband since the day he was taken away by authorities–the Court found all four defendants guilty of stealing commercial secrets.  In accordance with Chinese practice, sentences were immediately handed out: Stern Hu received a total of 10 years in prison, and Wang Yong, Ge Mingqiang and Liu Caikou received fourteen, eight and seven years, respectively.  All of the sentences were within the timeframe allowed by the Criminal Law.

Analysis

The Rio Tinto case makes clear that the Chinese criminal justice system could use improvement, particularly in regards to the public’s access to evaluate the evidence in non-closed trials.  But it is not the grave travesty the Western media portrays it to be.  In many ways, the Rio Tinto employees were given more protection of the criminal law than must ordinary Chinese defendants.  The Rio Tinto employees were all given access to defense counsel; Stern Hu met with his attorneys on ten different occasions before trial. In China, most defendants are unrepresented and the few who retain an attorney usually have no access to that attorney prior to trial.  Additionally, the Rio Tinto commercial secrets trial lasted two days, one day longer than most trials in China, with examination of evidence, including statements from witnesses.  In China, most criminal cases rely solely on a defendant’s confession with little to no other evidence.*

But the Western media has been particularly focused on the closed commercial secrets portion, with some arguing that the closed trial violates Chinese domestic law (see here and here).  Indeed, Article 152 of the CPL states that criminal trials, except for those involving state secrets or personal private matters, are open to the public.  However, the CPL is not the only instructive document.  The Supreme People’s Court (SPC), China’s highest court, issues binding interpretations to clarify the law.  Article 121 of the SPC’s “Interpretation of the CPL” maintains that in cases involving “business secrets,” the court may close the trial if a party requests it.  The Interpretation does not say that “party” is limited to either prosecutor or one of the defendants in the case; presumably any party with an interest in the secret may request the closure.  In this case, Rio Tinto, the Chinese steel companies involved, or the Chinese government, all of whom likely have reasons to keep the public out of the seedy affairs of iron ore pricing, likely requested a closed trial.

However, it is problematic that an Australian consular officer was excluded from the corporate secrets portion of the trial, and equally disturbing that the Australian Foreign Minister would neglect to discuss or criticize the Consular Agreement violations after the verdict.  The Consular Agreement is clear that an Australian consular official is permitted to attend all trials involving Australian citizens in China.  China’s claim that “judicial sovereignty” necessitated the closing of the commercial secrets portion of the trial is specious at best and leaves China open to the Western media’s assertion that the Rio Tinto case was purely political.

Yet, there is also reason to question the roles of Rio Tinto and the Australian government in the politicization of this case.  From the beginning, when the charges were changed from state secrets to commercial secrets, both the Australian government and Rio Tinto likely exerted pressure on the Chinese government, taking advantage of the political nature of the Chinese legal system which the Western media has criticized China for.

Sam Walsh, Rio Tinto's Iron Ore Chief

After the four employees were found guilty, Rio Tinto was quick to report that while “clear evidence” showed beyond a doubt that the four employees had accepted bribes, all bribe-taking was conducted outside of Rio Tinto.  It seems difficult to believe that a $13 million bribery scheme, presumably resulting in cheaper prices for iron ore for Chinese steel makers or more iron ore sold to a preferred Chinese steel maker, would leave not a single trace of evidence on Rio Tinto’s systems – not a single email or a price discrepancy or any evidence that more iron ore was being sold to one steel company, nothing. Also, as others have pointed out, with regard to the charge of stealing commercial secrets, one must wonder, who was the ultimate beneficiary of the theft?   Although evidence in the commercial secrets theft is not public, during sentencing the Court stated that the Rio Tinto employees obtained secret information about the China Iron and Steel Association’s “next price for upcoming iron ore negotiations.”  In other words, the limit one can charge the Chinese steel industry for iron ore.  This is information that Rio Tinto the company would want but would be less valuable to individual employees such as Stern Hu.

There are other legal tools to use to find out this information, but it appears that the Australian government has chosen not to use them.  Under Australian law, bribery of foreign officials by an Australian company and its employees is illegal and can be prosecuted in an Australian court, even if the bribery happened abroad.  Here, the Rio Tinto employees were convicted of stealing commercial secrets.  While one could steal commercial secrets by burglarizing someone’s office or hacking into their computer, it is most likely that the Rio Tinto employees obtained the secrets from someone on the inside of China’s state-owned steel industry.  It is most likely the Rio Tinto employees paid for this type of information, which is not easily attainable or free.  Such an act would be in violation of Australia’s criminal law prohibiting bribery of foreign officials and could subject Rio Tinto to large monetary penalties.  But the Australian government has made no overtures of either investigation or prosecution of other Rio Tinto employees or Rio Tinto itself.

China’s legal system is far from perfect; greater transparency could result in a more reliable legal system, less vulnerable to censure.  In this case, allowing the public to see the evidence relating to the bribery charges and giving some sort of an explanation for closing the commercial secrets portion of the trial could have been useful.  But, ultimately, the Rio Tinto case is not the poster child for China’s retreat from rule of law or for the danger of foreign companies doing business in China.  Instead, this case makes clear that the oft quoted adage by lawyers that “bad facts make bad law” is equally as apt to the press: “bad facts make bad journalism.”

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* Corrections were made to the original article to better reflect the facts (see here).  The author still stands behind the views expressed in this article.

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By Elizabeth M. Lynch, March 9, 2010

Prof. Jerome A. Cohen - Photo by George Washington Law School

On February 19, 2010, George Washington School of Law and Georgetown University Law Center hosted an academic conference in honor of noted Chinese legal scholar Prof. Jerome A. Cohen.  Consisting of four separate panel discussions on current legal issues in China, the afternoon conference, and it’s participants (all of whom were students of Prof. Cohen’s) was a testament to the continued importance of Prof. Cohen’s work in the field.

Panel 1 – Google & Freedom of Online Information
(7:20 start) Rebecca MacKinnon, Visiting Fellow, Center for Information Tech. Policy, Princeton
(19:35 start) Lawrence Liu, Senior Counsel, Congressional-Executive Commission on China
(28:49 start) Sharon Hom, Executive Director, Human Rights in China
Click here for video of this panel.

Panel 2 – Business Law
(1:43 start)Donald Clarke, Professor of Law, George Washington University Law School
(10:25 start) Nicholas C. Howson, Assistant Professor of Law, University of Michigan Law School
(19:22start) James Feinerman, Co-Director/Prof. of Law, Law-Asia Leadership, Georgetown Law
Click here for video of this panel.

Panel 3 – Human Rights, Civil Society & Criminal Law
(1:07 start) Xiaorong Li, Research Scholar, School of Public Policy, University of Maryland
(9:18 start)Karla Simon, Professor of Law, Columbus School of Law, Catholic University of America
(21:25 start)Eva Pils, Associate Professor, Faculty of Law, The Chinese University of Hong Kong
(33:38 start) Scot Tanner, China Security Analyst, The CNA Corporation
Click here for video of this panel.

Panel 4 – International Law
(1:32 start) Julia Qin, Associate Professor of Law, Wayne State University Law School
(10:35 start) Michael Schlesinger, Of Counsel, Greenberg Traurig, LLP
(20:00 start) Timothy Stratford, Former Assistant U.S. Trade Rep. for China Affairs, USTR
(28:15 start) Alex Wang, Senior Attorney & Director, China Environmental Law Project, NRDC
Click here for video of this panel.

CLOSING REMARKS BY PROF. JEROME COHEN – Click Here

Thank you to Prof. Don Clarke of George Washington School of Law for making the videos of the conference available.

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By Elizabeth M. Lynch, December 28, 2009

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

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

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

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

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By Elizabeth M. Lynch, November 23, 2009

Originally Posted on the Huffington Post.

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

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

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

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

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

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

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

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

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

2.  Both Public and Private Discussion of Human Rights

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

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

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

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

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

3.  Clean Energy and Climate Change

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

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

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