[Joint House and Senate Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
HUMAN RIGHTS IN CHINA IN THE CONTEXT OF THE RULE OF LAW
=======================================================================
HEARING
before the
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 7, 2002
__________
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
Senate
House
MAX BAUCUS, Montana, Chairman DOUG BEREUTER, Nebraska, Co-
CARL LEVIN, Michigan Chairman
DIANNE FEINSTEIN, California JIM LEACH, Iowa
BYRON DORGAN, North Dakota DAVID DREIER, California
EVAN BAYH, Indiana FRANK WOLF, Virginia
CHUCK HAGEL, Nebraska JOE PITTS, Pennsylvania
BOB SMITH, New Hampshire SANDER LEVIN, Michigan
SAM BROWNBACK, Kansas MARCY KAPTUR, Ohio
TIM HUTCHINSON, Arkansas NANCY PELOSI, California
JIM DAVIS, Florida
EXECUTIVE BRANCH COMMISSIONERS
PAULA DOBRIANSKY, Department of State
GRANT ALDONAS, Department of Commerce
D. CAMERON FINDLAY, Department of Labor
LORNE CRANER, Department of State
JAMES KELLY, Department of State
Ira Wolf, Staff Director
John Foarde, Deputy Staff Director
(ii)
C O N T E N T S
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Page
STATEMENTS
Opening statement of Hon. Max Baucus, a U.S. Senator from Montana
and Chairman, Congressional-Executive Commission on China...... 1
Opening statement of Hon. Doug Bereuter, a U.S. Representative
from Nebraska and Co-Chairman, Congressional-Executive
Commission on China............................................ 5
Opening statement of Hon. Carl Levin, a U.S. Senator from
Michigan....................................................... 4
Qiang, Xiao, Executive Director, Human Rights in China........... 8
Jendrzejczyk, Mike, Washington Director, Human Rights Watch/Asia. 10
Feinerman, James V., James M. Morita Professor of Asian Legal
Studies; Associate Dean, International and Graduate Programs;
Director, Asian Law and Policy Studies, Georgetown University
Law Center..................................................... 13
Alford, William P., Henry L. Stimson Professor of Law and
Director of the East Asian Legal Studies Program, Harvard Law
School......................................................... 16
Opening statement of Hon. Sander Levin, a U.S. Representative
from Michigan.................................................. 18
APPENDIX
Prepared Statements
Qiang, Xiao...................................................... 42
Jendrzejczyk, Mike............................................... 45
Feinerman, James V............................................... 56
Alford, William P................................................ 63
Baucus, Hon. Max................................................. 67
Bereuter, Hon. Doug.............................................. 69
Levin, Hon. Carl................................................. 71
Levin, Hon. Sander............................................... 73
Kaptur, Hon. Marcy............................................... 74
Wolf, Hon. Frank R............................................... 75
Pitts, Hon. Joseph R............................................. 76
Feinstein, Hon. Dianne........................................... 77
Smith, Hon. Bob.................................................. 78
Submissions for the Record
Article from the Washington Post, entitled ``Prison Labor: Can
U.S. Point Finger at China? American Inmates Manufacture
Products, but Trade Debate Centers on Beijing's Policies,'' by
Paul Blustein, dated June 3, 1997, submitted by Representative
Frank Wolf..................................................... 80
Prepared statement of Robert M. Hathaway, Director of the Asia
Program at the Woodrow Wilson International Center for Scholars 81
Prepared statement of Stanley Lubman, Visiting Scholar, Center
for Law and Society and Lecturer in Law, School of Law,
University of California (Berkeley)............................ 85
Questions submitted for the record from Senator Bob Smith........ 90
Responses of Mike Jendrzejczyk to questions from Senator Bob
Smith.......................................................... 90
Responses of William P. Alford to questions from Senator Bob
Smith.......................................................... 91
HUMAN RIGHTS IN CHINA IN THE CONTEXT OF THE RULE OF LAW
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THURSDAY, FEBRUARY 7, 2002
Congressional-Executive
Commission on China,
Washington, DC.
The hearing was convened, pursuant to notice, at 2:45 p.m.,
in room SD-215, Dirksen Senate Office Building, Hon. Max Baucus
(chairman of the Commission) presiding. Rep. Doug Bereuter (co-
chairman of the Commission) also presided.
Also present: Senators Levin and Hagel; Representatives
Kaptur, Pelosi, Levin, Davis, Dreier, Pitts, and Wolf; D.
Cameron Findlay, U.S. Department of Labor; and Lorne Craner,
U.S. Department of State.
OPENING STATEMENT OF HON. MAX BAUCUS, A U.S. SENATOR FROM
MONTANA, CHAIRMAN, CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
Chairman Baucus. The hearing will come to order.
I am very honored and very pleased to have our first
hearing today. It is, I think, going to make a difference--our
commission. We are very enthused. We understand the challenges
facing us, and we are anxious to meet these challenges. I thank
all of you who are here participating with us. We are very,
very grateful for your efforts.
I also thank my co-chair, Congressman Doug Bereuter, who
has been working very closely with me and with many of you, and
my fellow commissioners for their presence. I am heartened by
the number who are here today. We have a lot of work ahead of
us as we prepare our first annual report to the President and
to the Congress this June.
Let me just give a few administrative announcements. Our
next hearing will be on April 11 and we will discuss human
rights and legal reform. Then we will hold a hearing on June 6
on commercial rule of law and WTO [World Trade Organization]
implementation.
Later this month, we will begin a series of staff-led
public issues roundtables. The first will be on the topic of
reeducation through labor. The staff will also hold an open
forum where anyone and everyone is welcome to present views on
human rights and the rule of law.
I also want to particularly thank my good friend,
Congressman Sandy Levin. Congressman Levin and others worked
hard, including Congresswomen Pelosi and Kaptur, to put this
Commission together in conjunction with the PNTR [Permanent
Normal Trade Relations] debate.
I think it is going to serve us very well, and particularly
will serve those in China who are suffering various
indignations, incarcerations, and abuse of their human rights.
Let me start by explaining the role of this Commission, and
the role I hope we will play in United States-China relations.
First, we in the United States cannot impose our will on
China or on its 1.3 billion citizens. The decisions about what
happens inside China can only be made by the Chinese people.
Second, China is an emerging regional and international
power. Our national interest requires intensive engagement. We
must look at China through the lens of reality.
China represents a significant challenge to the United
States in many other areas, and it represents a significant
opportunity in many areas. We need to look at the facts,
analyze them objectively and dispassionately, and act in ways
that support our National interest.
Third, there are significant human rights abuses in China.
In some areas, the situation is worse today than in the past.
In other areas, there have been improvements. We will recognize
the latter and be critical of the former.
Fourth, there cannot be sustained protection of human
rights without the rule of law. Many Members of Congress, as
well as recent administrations, have been active in securing
the release or reduction of sentences for individual prisoners
of conscience in China. I expect that to continue, as it
should.
However, this Commission will look at human rights within
the context of the rule of law in China. We may address
individual cases, but only when there is likely to be a
broader, systemic, and structural impact in China.
The witnesses appearing today reflect that orientation:
Human Rights Watch and Human Rights in China have done
excellent work looking at the legal and political context in
China within which human rights can be protected. Professors
Feinerman and Alford have focused much of their work on the
rule of law in legal reform in China.
The United States-China relationship today is different
than a year ago. There has been a change in the bilateral
relationship. Beijing is cooperating with us on the war against
terrorism. China's rhetoric over Taiwan has ameliorated
somewhat. China has joined the WTO.
But serious problems remain between us in a number of
areas: Arms proliferation, human rights, and significant
differences over Taiwan.
This Commission will concentrate on the human rights aspect
of our relationship, with a focus on the rule of law in China.
We will look closely at areas such as religious freedom,
political prisoners, Tibet, ethnic minorities, labor rights,
and the flow of information in China.
We will examine the developing role of NGOs [Non-
governmental organizations] in China. We will look, especially,
at developments in the rule of law. This includes legal reform
in the civil, criminal, and commercial areas, and the way in
which these laws are or are not being implemented.
We will look at how the United States can pursue policies
and programs that will increase the respect for law in China,
and how we can strengthen those in China who are working to
increase the transparency and objectivity of the legal system.
China is not a monolith. There are many inside the Chinese
Government, the Chinese party, and state-owned enterprises who
are working desperately to maintain the status quo. But there
are also many in China who want to see genuine reform, both
economic and political.
They recognize that, for China to become a great nation and
fully join the international community, China will have to
follow international standards in the human rights area.
They must meet the obligations the government has made in
international covenants covering political, economic, social,
cultural, and civil rights. They will have to honor those
provisions in the Chinese constitution and in Chinese law that
claim to protect the individual from abuse by the state.
As I said earlier, decisions about what happens inside
China can only be made by the Chinese themselves. The question
for this Commission, for the Congress, and the administration,
is how can we best assist those who seek reform?
Incorporating China into the WTO is surely one way to begin
down the road of significant commercial law reform. We will not
shrink from pointing out the ways in which the Chinese system
is falling short of meeting those standards.
But the major challenge for the Commission is, how can we
contribute to an improvement in the human rights of Chinese
citizens, and how can we influence the structural change
necessary to improve how those citizens are treated?
In our hearings, we want to hear from groups and
individuals who can add to our knowledge and understanding. We
also want to hear from them about the ways that this Commission
can help promote and support positive, constructive, and
lasting change in China.
Let me address some remarks to the Chinese Government. When
the House approved the PNTR legislation, the Chinese Government
said that it was a wise decision. But their spokesman went on
to say, ``The Chinese side is seriously concerned and
dissatisfied that the bill contains provisions that attempt to
interfere in China's internal affairs, in various names like
human rights, and harm the interest of China. The Chinese side
has announced in explicit terms that it firmly opposes and
cannot accept these provisions.''
I have two comments about that statement. First, this
Commission is an instrument of the U.S. Government. We will
vigorously pursue our mandate to consider the issues of human
rights and the rule of law in China. We do not seek to impose
American standards on China, but there are numerous
international covenants relating to human rights that China has
entered.
The Chinese constitution and Chinese laws include many
written guarantees for the citizens of China. For China to be a
full and responsible member of the international community, and
that includes the global trading system and the rule of law,
that must be honored. This is an issue of concern and interest
to all nations interacting with China.
We will work with China when we can. We will acknowledge
progress when we see it. We will criticize when there is no
progress. I firmly believe that there are many in China who
agree with this approach: Government officials, business
people, and ordinary citizens.
Second, I urge the Chinese authorities to work with this
Commission. I spent a decade fighting against conditions on our
trading relationship with China. Along with others on this
Commission, I fought hard for PNTR. I believed that engagement
and deepening the relationship between our two nations was the
best way to induce change in China and bring them fully into
the community of nations. It is in China's long-term interest
now to work closely with us.
Let me conclude with a few comments about the
administration's human rights policy. President Bush met with
Chinese President Jiang Zemin in Shanghai in October. The
President discussed the importance of religious freedom. He
made a strong statement that the war on terrorism should not be
used to justify a crack- down on minority groups in China.
Under the leadership of Assistant Secretary of State Lorne
Craner, a member of this Commission, the United States has
reengaged China in a bilateral human rights dialogue.
President Bush will visit Beijing February 21-22, and again
meet with senior Chinese leaders. I urge him to ensure that
human rights and the rule of law issue are among his top
priorities in those discussions.
Let me now turn to my co-chairman, Congressman Bereuter,
for his statement as we initiate the work of the Congressional-
Executive Commission on China.
I also very much appreciate the deep involvement of other
members of this Commission. After Congressman Bereuter makes
his statement, I will introduce the witnesses. Frankly, I know
a lot of the members of the Commission would like to make
opening statements, but for us to get down to our work, I think
it is better that we hear from our witnesses. That gives us
more time to engage our panel, looking for a more constructive
and efficient process.
So, Congressman Bereuter.
[The prepared statement of Senator Baucus appears in the
appendix.]
Congressman Bereuter. I yield.
OPENING STATEMENT OF HON. CARL LEVIN, A U.S. SENATOR FROM
MICHIGAN
Senator Levin. I have a statement that I will make a part
of the record, Mr. Chairman. I just wanted to congratulate you
and our vice chairman, and my brother, Sandy Levin,
particularly, if I can single him out, for this very visionary
approach to changing, hopefully, China's human rights record.
I have a statement, though, if it is all right, that can be
made part of the record.
Chairman Baucus. Thank you, Senator, very much. We very
much appreciate having both you and your brother as members.
[The prepared statement of Senator Levin appears in the
appendix.]
OPENING STATEMENT OF HON. DOUG BEREUTER, A U.S. REPRESENTATIVE
FROM NEBRASKA, CO-CHAIRMAN, CONGRESSIONAL-EXECUTIVE COMMISSION
ON CHINA
Representative Bereuter. Chairman Baucus, Senator Hagel,
Congressman Levin, fellow commissioners, distinguished
panelists, ladies and gentlemen, I would like to introduce a
few Executive Branch members who are here today: Cameron
Findlay, the Deputy Secretary of Labor, and Lorne Craner, the
Assistant Secretary of State for Democracy, Human Rights, and
Labor.
I consider it a privilege to join you, Senator Baucus, in
convening this first formal meeting of the Congressional-
Executive Commission on the People's Republic of China.
I am particularly pleased to recognize the presence of my
colleague and fellow commissioner, the distinguished gentleman
from Michigan, Sandy Levin, who deserves great credit for being
a leading intellectual godfather of this Commission who has
worked tirelessly with me, Senator Baucus, and others to see it
come into being.
I look forward to our continuing association as Commission
members, all of us, in fostering the work of the Commission
over the next years.
Senator Baucus has noted that the Commission was created by
the China Relations Act of 2000 to create a forum for
continuing Congressional involvement in monitoring China's
human rights practices and the development of the rule of law.
The Commission's mandate reflects continuing concerns in
both Houses of Congress and among members of both political
parties, not only about the individual instances of human
rights abuses in China, but also about the need for encouraging
systemic changes in China to end such practices.
Undoubtedly, all on the Commission share the goal of
encouraging positive changes in Chinese Government policy and
practice that will help those who have been punished unjustly
for seeking to exercise basic human rights, prevent future
abuses, and bring China's human rights practices into
conformity with international standards.
There are differences in the international community, and
undoubtedly in Congress, as to the best methods for achieving
this goal. But I believe there is a broad consensus in Congress
and America on the importance of the goal itself.
In this context, I think that the Commission should
concentrate primarily on systemic changes to China's human
rights practices and legal regime and neither to concentrate,
primarily at least, nor to duplicate primarily the important
advocacy work on individual cases already being done by
individual Members of Congress, human rights NGOs, and
concerned members of the public.
Of course, the registry of victims of human rights abuses
that our mandate requires will provide an important resource
for such advocacy, so the Commission will have a crucial role
to play in this work.
In my view, the human rights and rule of law parts of this
Commission's mandate are intimately related. Virtually everyone
in China, the United States, and elsewhere who is concerned
with human rights practices in China believes that progress in
legal reform will necessarily result in greater compliance with
the basic human rights enshrined in such international
covenants as the Universal Declaration of Human Rights.
Many also believe that such reforms will improve not only
government transparency, but also the development of the
essential institutions of democratic governance. The
development of an open, transparent, and predictable legal
system throughout China should also be beneficial over time in
other ways, such as providing ordinary Chinese citizens with
the legal means to check the arbitrary exercise of official
power, as well as helping to ensure China's full implementation
of its commitments under the World Trade Organization protocol
of accession.
Before we hear from our outstanding panel, I would like to
offer some thoughts on four aspects of our Commission's work
that I think will be of continuing importance to us.
These aspects are: (1) the Commission as a forum, for a
balanced, constructive focus on human rights issues in China;
(2) the Commission as a catalyst for United States efforts to
support the development of rule of law in China; (3) the
Commission's development of a registry of victims of human
rights abuses; and (4) the Commission as a resource for
Senators, Members of the House, and their respective staffs,
United States-China specialists, and the general public.
With respect to the Commission's mandate on human rights, I
believe it will be vital for us to undertake a comprehensive,
objective look at the current state of Chinese Government
compliance or noncompliance with international human rights
norms.
Following the sensible requirements of our legislative
mandate, Commission staff should receive information and
perspectives from human rights, labor, and religious freedom
NGOs in the United States and elsewhere.
We should also build on the work of relevant United States
Government agencies, including those who are represented by our
five commissioners from the Executive Branch, and from sources
in China, Hong Kong, and elsewhere.
This undertaking is a big job, but one made considerably
easier by the importance of the work of many people in the U.S.
Government, U.S. universities and think tanks, and U.S. and
international human rights NGOs.
With this factual framework in place, we can then assess
whether to recommend specific actions by Congress or the
administration in our annual report. Of course, we cannot wait
for all the facts to be before us. This is not an excuse for
delay.
Second, I believe it is important that the Commission act
as a catalyst for encouraging and supporting United States and
multilateral efforts to build legal institutions in China.
I hope that the Chinese Government will accept and welcome
United States initiatives to help train judges and lawyers,
inculcate a culture of transparency in the legislative and
regulatory processes, and to improve Chinese efforts to extend
legal services to ordinary Chinese people, focusing
particularly on the poor, women, and people in rural areas.
Since the Chinese leadership embarked on the reform and
opening up policy of the 1970's, a number of Americans, among
whom two of our panelists are the most distinguished, have
participated in successful legal exchange and legal cooperation
initiatives with their counterparts in China.
But the U.S. Government has never had its own directly
funded program to complement these private efforts, and I
believe the time has come for us to take a hard look at such a
program.
The Commission should determine in which areas additional
United States public investment in rule of law programs in
China might add value to existing private efforts, or might
permit new initiatives in areas previously untouched by United
States efforts.
The overall goal, I think, should be to produce significant
long-term results on the ground in China without wasteful
duplication of previous or existing initiatives.
An understanding by the Commission, Congress, and our
Government of the rule of law programs that other countries
currently have in China will be an important part of this
effort to avoid duplication and to maximize the effectiveness
of United States rule of law programs.
Although many in the United States are interested in
commercial rule of law programs, particularly as they relate to
building the capacity of the WTO implementation and compliance,
any U.S.-funded rule of law program should focus, I believe,
more broadly on civil, criminal, and administrative law reform.
We should also welcome, encourage, and support initiatives
to improve the transparency of the legislative and regulatory
process in China.
Third, I believe that the establishment and maintenance of
a useful, factually accurate, up-to-date registry of prisoners
of conscience and other victims of human rights abuses will be
a vital part of the Commission's work. Successful achievement
of this task will be a complex and difficult undertaking, no
doubt.
My hope is that, over time, this registry will be a useful
resource for Members of Congress and staff, researchers, the
press, and the general public.
Fortunately, individuals and organizations with experience
in collecting, storing, and using such information have offered
already to cooperate with the Commission. In addition, I think
that recent advances in information technology will help
Commission staff in meeting this important aspect of our
mandate.
Fourth, and finally, as we progress in staffing the
Commission and gathering information on the specific issues in
the mandate, I hope the Commission would earn the confidence of
Members of Congress and their staffs as a resource for timely,
objective information about China, generally. Naturally, our
focus and expertise will be principally with respect to the
specific areas of human rights and the rule of law. But we
expect to staff the Commission with qualified staff possessing
broad experience in China.
I hope that the Commission could assist Members of Congress
and staff who plan to travel to China to prepare for their
visits, particularly to become familiar with human rights and
rule of law issues.
The registry should provide the type of information that
would permit Members of Congress to raise and discuss the cases
of specific individuals during official meetings in China.
Mr. Chairman, we have a distinguished panel this afternoon
to share their views with us. I am honored to be with my
colleagues on the Commission. I would like to express my
appreciation for the appearance of our witnesses today. Each
has dedicated a significant part of his professional life to
one or more of the issues that are directly in our mandate. We
know we will hear lively, informative, and thoughtful
presentations.
Thank you, Mr. Chairman.
[The prepared statement of Representative Bereuter appears
in the appendix.]
Chairman Baucus. Thank you very much, Congressman Bereuter.
Now, let us get to the heart of the matter. We have four
very distinguished people here to get us started. Would you all
four please come up to the table? I will introduce you, then we
will get started.
First, Xiao Qiang, who is Executive Director of Human
Rights in China. He is a physicist. He was working on a Ph.D.
at Notre Dame at the time of Tiananmen. He immediately returned
to China to bring contributions to victims' families, and he
came back to the United States a couple of months later and
began working as a full-time human rights activist. Last year,
he won a MacArthur Foundation Genius Award.
Next, is Mike Jendrzejczyk, Washington Director of Human
Rights Watch/Asia. Mike was a Congressional staffer and worked
for Amnesty International, and joined Human Rights Watch in
1990. He is a very well-respected and responsible person.
Mr. Jendrzejczyk. I was not a member of a Congressional
staff. I have to correct that for the record.
Chairman Baucus. Oh. I am sorry. All right. We will get
that correct.
Professor William Alford of Harvard Law School, Director of
East Asian Legal Studies Program at Harvard. His expertise
includes China, trade, technology transfer, IPR [Intellectual
Property Rights], human rights, legal development, and legal
history.
As well, Professor James Feinerman of Georgetown, who is
Associate Dean and Director of Asian Law and Policy Studies at
the Georgetown University Law Center. He has practiced law, and
studied and taught law in China.
Let us begin with Xiao Qiang.
STATEMENT OF XIAO QIANG, EXECUTIVE DIRECTOR, HUMAN RIGHTS IN
CHINA
Mr. Xiao. Thank you, Chairman Baucus and Congressman
Bereuter, and distinguished members. It is a privilege to speak
here.
Thank you for providing this public forum for independent
Chinese NGOs on human rights issues in China.
I want to say, the Congressional Executive Commission can
play a key role and ensure the human rights concerns on the
table. I firmly believe that the Chinese and American people
share important values and aspirations of human dignity and
freedom. Both nations are facing great challenges and
responsibilities for promoting human rights, ensuring the
domestic and global peace, and encouraging development.
For today's hearing, I would like to make four points about
the human rights situation in China in the context of the rule
of law.
The first point: There is a crucial distinction between
rule of law and the rule by law, which is the Chinese
leadership's slogan called ``Yifa Zhiguo,'' meaning, ruling the
country by law.
However, when there is no real democratic and
representative legislative process and no judiciary independent
from a party and a state, law often becomes a tool that
suppresses, rather than protects, the fundamental rights of the
Chinese people.
The most clear example, is in the Chinese criminal code
there is endangering state security. But, too often, this law
is often used to crack down on peaceful political activism,
Falun Gong practitioners, labor organizers, as well as peaceful
advocates for Tibet and Xinjiang self-determination.
I just want to mention one example. Political activists of
the China Democracy Party have been given heavy sentences under
the state security law, Xu Wenli, Qing Yongmin, and Wang
Youcai, were sentenced to 13, 12, and 11 years, respectively in
1998.
My second point: There is institutionalized discrimination,
a system called hukou system, against the rural residents,
migrants, and ethnic minorities in China. Altogether, those
three overlapping groups are the vast majority of the PRC's
[People's Republic of China] population. There are about 800
million rural residents, somewhere between 40 million and 120
million migrants, and for ethnic minorities, there are about
106 million.
Under the hukou system, a system has been created that
gives urban populations privileged access to education,
housing, economic opportunities, and political participation.
This hukou system does violate the rights of rural residents
and migrants to equal enjoyment of the exercise of their human
rights and fundamental freedoms.
My third point: There is a persistent gap between law on
the books and the law in practice. That is, there is
ineffective implementation and a lack of accountability.
Pardons of rights violations show impunity and lack of
accountability, a principal cause of human rights abuses in
China. Mechanisms to hold officials accountable are deficient
or non-existent. Control of freedom of expression and
association make it very difficult for the Chinese people to
expose those abuses by officials or to achieve accountability.
The two most clear examples are in the criminal procedure
law implementation and on the issue of accountability of the
June 4 massacre in 1989.
On the criminal procedure law situation, Human Rights in
China has published a report to point out the Chinese Communist
Party's control of the judiciary, the pre-trial detention, use
of illegal evidence, discriminatory application of the law,
and, most importantly, those laws have been violated outright,
without authors of violations suffering any consequences. After
the Tiananmen massacre we know that, until now, the victims'
voices are not being heard and the crime is not being
investigated.
In sum, my last point is, there is an arbitrary nature to
the system. What I want to say is, there has been a great deal
of attention, domestically and internationally, to the
professed effort toward legal reform in China.
However, the improvement of the legal system cannot ignore
the conditions in the wide range of punishment institutions
that operate outside of the legal system and in which large
numbers of people are incarcerated.
By this, I particularly mean two systems. One, is custody
and repatriation centers, which annually hold about 1.7 million
people. They are called undesirables of all types, including
women and children, detained without trial, occasionally for
the period as long as a year or more.
Another system, is the reeducation through labor system. It
is an administrative detention system. Public security
personnel can sentence anybody up to 3 years, and there are
about a quarter of a million of the Chinese people in this
system every year.
Given the vast scale of those human rights violations in
the context of rule of law, Human Rights in China would like to
particularly make the following recommendations to the
Commission.
First, is we urge the Commission to put a high priority on
the Chinese political prisoners of conscience and, for
President Bush's upcoming visit to China, to urge the
significant release of those political prisoners.
The second point, is to monitor the protection of freedom
of expression and information in China. We urge the Commission
to pay particular attention to the increasingly restrictive
internet regulations and surveillance by Chinese authorities,
especially as these regulations interface with China's WTO
accession obligations.
Finally, we urge the Commission to monitor and report
benchmarks of human rights compliance and rule of law
developments over the next 7 years leading up to the Beijing
Olympics, 2008.
Thank you, Mr. Chairman.
Chairman Baucus. Thank you very much. I particularly like
your listing your four points. It makes it easier to
understand.
Mr. Jendrzejczyk.
[The prepared statement of Mr. Xiao appears in the
appendix.]
STATEMENT OF MIKE JENDRZEJCZYK, WASHINGTON DIRECTOR, HUMAN
RIGHTS WATCH/ASIA
Mr. Jendrzejczyk. Thank you, Senator Baucus.
I want to thank you all for inviting Human Rights Watch to
testify at this first hearing of this important commission,
exactly 2 weeks before President Bush is due to visit Beijing
on his first official visit to China's capital.
I would like to use my oral remarks to very briefly
summarize some very specific recommendations we would like to
make, both for the work of the Commission and for United States
policy toward China, generally.
I realize that, as the Chair and the co-chair of the
Commission have just explained, that the mandate of the
Commission is extremely wide and very heavily based and rooted
in international standards.
But I do think, to have maximum impact, especially this
first year of the Commission's operation, it is important to
strategically focus the Commission's efforts.
I would suggest three areas to focus on. First, the release
of political and religious prisoners. I think this is crucial
and must be fundamental to the Commission's work.
Second, encouraging greater cooperation by China with the
U.N. human rights mechanisms, that is, the working groups,
rapporteurs, and others.
Finally, to encourage increased access to China by
independent U.N. and other human rights monitors. I do agree
with my colleague Xiao Qiang that there are other issues that
should be on your agenda: For example, free expression on the
internet. I would suggest this be the subject of a hearing, in
fact, sometime this year.
And, yes, definitely, how to use the Olympics in the year
2008 in a creative way to press for constructive human rights
improvements.
I also encourage you to release the report, Mr. Bereuter,
that you mentioned, as soon as possible, even spelling out,
just in a skeletal way, the Commission's main concerns and some
initial policy recommendations. We realize the report was
initially due last October and for various reasons was delayed.
But I think, given all of the issues on the agenda this year,
it is most important to get that report out as quickly as
possible.
Finally, a recommendation that a number of NGOs have made
in previous correspondence with the Commission. I think it is
important to get at least one professional research staff
posted in the American embassy in Beijing. This is something we
have discussed informally with the current ambassador, Clark
Randt. I think it is very important to have someone there on
the ground in China that can assist in the information
gathering and research of the professional staff based here in
Washington.
Returning to President Bush's trip in a couple of weeks'
time, I think this is a very important opportunity, not only to
cement greater improvements in United States-China relations,
but more importantly, to communicate to the Chinese Government
the singular importance of human rights in the United States-
China relationship.
The fact that an important Tibetan prisoner, Ngawang
Choepel, who was serving an 18-year prison sentence for
espionage, was just released recently, I think demonstrates
that China recognizes it is in their interests to make at least
some limited steps for improvements in human rights,
recognizing that Ngawang Choepel's case was not only on the
Bush and Clinton administrations' agenda, but was the subject
of intense lobbying and other kinds of activity by Members of
Congress. This is, I think, an important role for the
Commission, to engage in both public and private diplomacy on
cases such as this.
I would urge some Commission members--and I recognize
travel opportunities are limited, the ability to leave
Washington for a long trip to Asia is limited--to offer to
travel with the President to Beijing. I think this is such an
important opportunity, one, to engage in your own bilateral
discussions with key ministries; two, to explain the work of
the Commission to the Chinese leadership; and three, perhaps to
begin discussions with the National People's Congress [NPC] on
possible exchanges and discussions, especially on rule of law
concerns, between Members of Congress, this Commission, and
members of the NPC.
So, I would urge you strongly to change your calendar,
adjust your schedules if at all possible, but try to get at
least two or three members of this Commission to travel with
the President in a couple of weeks.
In the interim, I think it is important for the Commission
as a whole, or perhaps individual members, to address in
correspondence and in other ways your specific concerns about
human rights, both to the White House and to the Chinese
leadership.
We know--and I mentioned Ngawang Choepel just as one
example--that the active interest of Members of Congress
greatly increases the leverage of the State Department and our
embassy on the ground. I would encourage you to use the
President's trip as an opportunity to do so.
Second, a very important policy discussion, which I have
discussed with Secretary Craner and I know is under discussion
here in Washington, and will be under discussion in the coming
weeks, is what to do about this year's meeting of the U.N.
Human Rights Commission in Geneva. It convenes on March 18.
The United States does not have a seat this year, but that
does not prevent the United States from actively suggesting,
promoting, and lobbying for a resolution on China.
I think it is crucial, in fact, to remain active in
holding China accountable in this highest U.N. body charged
with monitoring the compliance and the human rights record of
all members of the international community.
Again, I would urge the Commission, first, to encourage the
Executive Branch to begin to find such a sponsor on the
Commission this year, and second, if a resolution is
introduced, for individual Members of Congress to become
actively engaged in lobbying other countries to support this
resolution.
My last recommendation has to do with labor rights. This
often, unfortunately, falls to the bottom of the agenda and I
do not think it gets the kind of attention that it merits.
Given China's membership in the WTO, the increasing
economic dislocation that the further closing of state-run
enterprises will inevitably entail, there is growing concern
about unrest in China, rural and urban unrest, which has
already begun to escalate.
The Chinese Labor Minister was here in March 1999, and
offered an invitation to the United States Labor Secretary to
visit China to talk about social safety net programs, pension
schemes, job retraining programs. But such a visit would also
provide an opportunity to address core labor standards,
International Labor Organization [ILO] standards, especially
key standards such as the right of free association.
I would encourage the Commission to become active in this
area by encouraging the current United States Labor Secretary,
Elaine Chao, to try to visit China this year. Believe it or
not, this would be the first visit ever to China by an American
Labor Secretary.
Second, to encourage China to invite the ILO to send a
direct contact mission, as they have offered, to look
specifically at the issues of the rights of free association
and ways of amending Chinese labor law and practices to bring
them into conformity with ILO standards.
Thank you.
[The prepared statement of Mr. Jendrzejczyk appears in the
appendix.]
Chairman Baucus. Thank you very much. That was very
helpful. I particularly urge members of this Commission to look
at the suggestion to join the President on his trip to China.
All of us have been to China many times and in various
capacities. I know that the one time I accompanied President
Clinton, I learned a lot. It was very, very helpful. I
particularly appreciate that, and your other recommendations.
I must leave now. There is a vote. But I will come back.
Chairman Bereuter will continue. However, I have to give my
apology to Mr. Xiao. Unfortunately, your little sign up there
says Mr. Qiang, it does not say Mr. Xiao, and I very much
apologize.
Mr. Xiao. I am used to that.
Chairman Baucus. I am sure you are.
Representative Bereuter [presiding]. Professor Feinerman,
we would like to hear from you. Professor Feinerman is from
Georgetown University Law Center. You may proceed as you wish.
STATEMENT OF JAMES V. FEINERMAN, JAMES M. MORITA PROFESSOR OF
ASIAN LEGAL STUDIES; ASSOCIATE DEAN, INTERNATIONAL AND GRADUATE
PROGRAMS; DIRECTOR, ASIAN LAW AND POLICY STUDIES, GEORGETOWN
UNIVERSITY LAW CENTER
Mr. Feinerman. Thank you, Mr. Chairman. I want to thank you
and members of the Commission for holding these timely hearings
and for providing an opportunity to present our views to you
and share the information that we have gathered in our
respective professional capacities.
I would also like to say that I am summarizing remarks that
I have made in a longer written statement, as have the other
witnesses.
I was asked to particularly address some rule of law-
related issues that deal with China's accession recently to the
WTO. I will try to focus on that.
But, in considering that situation, I want to start by
saying that with respect to the rule of law, at least up to the
point of WTO accession, there are three major points that we
need to keep in mind as we think about how we will proceed in
the future.
First, is that there has been, and continues to be,
considerable legalization of the People's Republic of China
which has been under way now for two decades. It is incomplete,
it is problematic in some respects, but it is worth noting that
this process will go on whether or not the United States
chooses to participate in the future development of the
process. I hope we do, as I will say in a few moments.
Second, the PRC has already experienced some considerable
law reforms which have made important contributions to the
economy. This is important in connection with the WTO
accession. But there are other commitments which have political
ramifications, and they are not necessarily connected to the
WTO or economic matters more generally, and we need to keep
them in mind as we think about comprehensive development of the
legal system in China.
Third, despite this legalization and law reform that has
now extended for over 20 years, there is still, unfortunately,
a great deal that has not changed in China with respect to the
rule of law, civil rights, political liberties, and the
meaningful enjoyment of freedoms that we take for granted in
this country and other developed nations.
But this patchy liberalization that has taken place has at
least brought a modicum of political and legal change, and
economic development, which I think lays an important
groundwork.
I have said in previous testimony to other committees in
Congress in earlier years, that I think it was the case 4 or 5
years ago--and I think it is even more the case now--that more
people in China today enjoy more political and civil rights
than they have at any time in China history.
It is still not enough, and there are important groups that
are not enjoying these overall effects that reach to most
members of Chinese society. But that is an important thing to
know.
We may want to try to push for a faster pace, faster than
the Communist Party leadership in China might enjoy, but
nonetheless we need to see where things stand currently.
I mentioned in my testimony a couple of areas that I think
will demonstrate the partial success and the remaining problems
of China's long, slow march toward the rule of law.
Here, I would just mention them in order and refer you to
my written testimony: In areas like enterprise reform, where
there has been a partial privatization of the Chinese economy,
but many problems, including some that have already been
mentioned this afternoon with regard to issues such as labor
rights, such as the treatment of redundant workers in the
modernization of the Chinese economy.
With regard to national and local leadership, there have
been major reforms in many areas that make institutions that
were previously virtually useless and bypassed usually by
Communist Party authority much more important as we look at the
future development. Especially, here, I would note things in
the State Council, the administrative organs of the Chinese
Government.
Third, there have been important developments with respect
to corruption. Now, this is a problem that is beginning to be
investigated by the Chinese authorities themselves. They
understand that their political legitimacy depends on a belief
on the part of those that they rule that the government is
generally honest and uncorrupt.
Still, there is a tendency to scapegoat a few high-profile
cases and not address some of the root causes of corruption,
but this is an area where our experience may prove to be
somewhat instructive and helpful.
In the legal profession there has been an important
development, especially in terms of the numbers. My colleague,
Professor Alford, has written extensively and insightfully
about the problematic developments in this realm.
But China went from having fewer than 3,000 lawyers 20
years ago to having over 100,000 lawyers there today. Here in
Washington we may not necessarily see that as a positive
development in every respect, but I think it means that people
who do want to assert legal rights, at least, have someone
available to help them do it.
Finally, appropriately, here in Congress I would mention
that the National People's Congress itself has been undergoing
a process of reform and there are now individuals and organs,
including committees, that are trying to learn from the
experience of developed legislatures around the world how to be
more serious in their legislative work. This is obviously
important.
I just want to mention two points about WTO accession
before I conclude. As part of the protocol of accession to the
WTO, China has made many important commitments to both reform
its laws and to make basic changes in its legal system.
At the first level, these mainly involve things like
passing certain laws that are necessary to comply with specific
WTO requirements. Some of those have already been passed, other
legislative reforms are under way. But that is just the first
step.
On a second, deeper level, they have promised to adopt
basic principles of WTO jurisprudence that most member
countries already have, things like transparency of the
regulatory regime, creation of impartial tribunals to hear WTO-
related complaints and trade disputes. That will, I think,
develop apace.
But on the third, deepest level, there are still some
important choices that have to be made and bridges that the
Chinese leadership, I think, has not yet crossed with respect
to not only the WTO commitments, but the kind of rule of law
that would really make it possible to honor the notion that
would require structural changes that would transform the most
basic features of not only Chinese law and legal culture, but I
think Chinese culture, more generally.
The experience of other, former developing countries in the
Asian region, such as South Korea and Taiwan, shows that this
can happen over a period of time, but it also shows that it may
take time.
It may take several decades, as happened there. The good
news is, it has been under way in China for at least a couple
of decades, so maybe we only have one or two more to go.
The challenges with respect to implementation, though, are
legion. I outlined some of them in my written testimony. The
report of the Working Party on Accession runs to 70 single-
spaced pages of rather dense, legalistic prose. I commend it to
you, but it gives you some sense of the scope of what China has
to do next.
I would just like to close by making a pitch for something.
I was gratified to hear in Congressman Bereuter's remarks
opening the session today that there may be a commitment to
more involvement on the part of the United States with respect
to legal and other kinds of educational and cultural exchanges.
It is actually the case that the State Department and other
Federal agencies that are involved in this today provide less
support for bilateral exchanges with China than they did 10
years ago. That, I think, is a shocking fact.
We devote less than 1/40th of the amount that is targeted
in the United States Federal budget for aid to Central and
Eastern Europe and the former Soviet Union and the newly-
independent states to academic and cultural exchange with
China. That is overall, not just focused on law.
Given the equal strategic importance of China and its
vastly larger population, I think that this is short-sided and
parsimonious on our part. I would note that, in the developed
world, the European Union and Canada, for example, have major
initiatives with respect to rule of law and law reform, not
simply focused on the WTO, but broader.
I think, in conclusion, the development of the rule of law
in the future in China is going to prove to be checkered, as it
has been in the past two decades. China has made enormous
strides since the 1970's, but in many areas it obviously has
quite a long way to go.
I think that China has tried to make a kind of devil's
bargain with respect to modernization. It wants to have a
modern rule of law while it retains what they call ``Chinese
socialist characteristics.'' The situation is likely to
persist, at least for the foreseeable future.
WTO accession, however, provides a unique opportunity to
push the envelope and maybe hasten the pace of incremental
change with respect to China's participation in the
international economy, but in other, more basic legal areas as
well. I think, with our eyes fully open, we should seize the
opportunities that this historic era provides us.
Thank you.
[The prepared statement of Professor Feinerman appears in
the appendix.]
Representative Bereuter. Thank you very much.
Next, we would like to hear from Professor William P.
Alford, the director of the East Asian Legal Studies Program at
Harvard Law School. You may proceed as you wish, Professor.
STATEMENT OF WILLIAM P. ALFORD, HENRY L. STIMSON PROFESSOR OF
LAW AND DIRECTOR OF THE EAST ASIAN LEGAL STUDIES PROGRAM,
HARVARD LAW SCHOOL
Mr. Alford. Thank you very much. It is truly a privilege to
appear before this important commission.
I start from the proposition that the two principal areas
that this Commission is charged with overseeing, human rights
and rule of law, are inextricably interwoven.
China needs to continue to develop legally for its citizens
to have the means to vindicate their rights, but legal
development insufficiently attentive to human rights will not
enjoy credibility with the people of China, or with us.
Over the last quarter century the PRC has engaged in the
most extensive program of legal construction in the history of
the world. Considering that a generation ago there essentially
was no legal system in China, a fair amount has been
accomplished.
Today, as you know, China has an extensive body of
legislation, especially in the economic area, and a nationwide
judiciary and surfeit of lawyers, as Professor Feinerman
mentioned. And, perhaps most importantly, Chinese citizens are
using courts in unprecedented numbers and are vigorously
concerned about legal issues.
But China's legal system continues to fall well short of
meeting any widely accepted definition of the rule of law. As
the State Department's annual report on China shows in its most
recent edition, the legal system has yet to prove itself
adequate to protect the rights of all Chinese citizens.
Arbitrary arrest, torture, and denial of the procedural
protections of Chinese law itself remain serious problems, as
do reeducation through labor, and custody and repatriation.
The judiciary does not enjoy sufficient independence and it
is plagued by corruption, poor training, and local
protectionism.
Now, Americans and others in the democratic world have
tried to assist Chinese legal development in a variety of ways.
In general, this work has been worthwhile.
In the short term, for example, foreign involvement has
made possible programs such as the Women's Rights Center at
Beijing University that are helping some victims of injustice
to realize their rights through law.
In the medium term, Americans are usefully assisting people
working to upgrade procedural protections for criminal
defendants, while also acquainting less open-minded Chinese
officials with just how out-of-step China is with the norms of
countries it wishes to follow economically.
In the longer term, foreign legal assistance is enabling
Chinese who are genuinely committed to changing their society
to deepen their understanding of legal institutions in
democratic states.
To be sure, as we do this work we have to be careful not to
exaggerate its impact and to guard against efforts that some
will make to use the law to legitimate repressive activity.
As you contemplate your mandate, let me provide you with
four suggestions. First, we need to promote legal development
without pulling punches on issues of human rights. That is not
easy, but it is essential.
Without better institutions, without a legal system that
better protects, Chinese citizens simply do not have the means
to vindicate their rights. But the legal system will not be
stable and respected over time if the law does not also apply
to the powerful and if basic rights are flouted.
Second, as we assist legal development we need to hold true
to our ideals, but also to appreciate that there may be
multiple ways to realize those ideals.
We make a stronger case, I believe, for legality and
pluralism, and we better empower the Chinese to make change in
China when we portray the variety of ways through which
different free societies seek to attain their shared goals of
human rights and the rule of law.
Third, some points regarding targets for, and sources of,
U.S. legal assistance. On the former, we cannot realistically
advance the rule of law in China without engaging those who now
oversee and operate the PRC's legal system, notwithstanding the
problems this panel has noted about them.
But we also need to reach out much, much more than has been
done so far to emerging Chinese civil society, particularly
beyond Beijing.
Senator Baucus asked for particular suggestions.Areas that
we might concentrate on would be things like women's rights,
labor rights, legal aid, and working with migrants, rather than
simply being engaged in legislative drafting assistance in
Beijing.
On sources, the fact that most American involvement so far
has emanated from our civil society, as Professor Feinerman
noted, is a strength in many ways. It facilitates diversity and
I think it shows the Chinese, by doing, that our universities
and our bar really are independent of government.
But this task is so massive, that substantially greater
Federal support is essential. As Professor Feinerman noted, the
Europeans and others are at work, but they tend to work more
through official channels. I hope we will work more through
civil society.
Finally, we must remember that the task is massive because
it ultimately involves the way in which China's people think of
themselves and their relationship to authority. This is not
cultural determinism. Ideas of justice ring as true to the
Chinese as they do to all of us.
Instead, it is to urge that if legal development is to be
done well, we must appreciate that it takes time to build
serious institutions, that it will be difficult, and that most
likely the ultimate shape of the success and the credit for
that success will reside principally with the Chinese people
themselves.
I thank you very much for inviting me.
[The prepared statement of Professor Alford appears in the
appendix.]
Representative Bereuter. Thank you very much, Professor.
I am going to recognize Congressman Levin, and Senator
Hagel, when he returns. But then Chairman Baucus has a list of
order for questions, based apparently on time of arrival. I
will try to stick with this, unless he changes his idea.
Thank you, first of all, very much for your testimony. I am
sure that the members have some interesting and important
questions for you.
We will follow the 5-minute rule, but I think there is
opportunity for us to do several rounds, too.
Congressman Levin.
OPENING STATEMENT OF HON. SANDER LEVIN, A U.S. REPRESENTATIVE
FROM MICHIGAN
Representative Levin. If I might just say a few things,
preliminarily. This is really an important moment. This is not
really another hearing, not to diminish the importance of
regular Congressional hearings. But this is something
different.
We have a commission that was set up that is executive and
Congressional, and there are not very many examples of that,
with its own staff. I must say, we have been privileged to
receive resumes from people of immense talent, starting with
Ira Wolf and John Foarde, who have not, I think, been
introduced, but I think you have come to know them. I think
this indicates the seriousness of our intent.
I have an opening statement and I would ask, Mr. Chairman,
that it be entered into the record.
Chairman Baucus [presiding]. Without objection.
[The prepared statement of Representative Levin appears in
the appendix.]
Representative Levin. I just want to say a couple of words
about it.
The reason for this Commission, we face this situation,
China going into the WTO, a country of immense size and of
immense importance. How are we to respond to this?
Are we to rely simply on kind of the natural unfolding of
our relationships, our commercial relationships with China? Are
we going to, in addition to whatever might unfold through those
relationships, try to impact China's course?
That was important, not only in terms of our overall view
of human rights, but also because increasingly China was going
to be part of the overall picture. There needed to be rules of
engagement, and also because China was going to compete with us
and the rest of the world; in a sense, rules of competition.
Built into those rules, needing to be developed over time,
are standards, floors, including human rights, including the
rule of law, including as part of human rights in the
legislation, worker rights. So that is what we are wrestling
with, how we do that.
The feeling was that we needed to combine engagement with
other ways to impact. For commercial reasons it was important
because, without the rule of law, what would the commitments
mean? But also, because we were going to engage and compete,
the rule of law was important as we built a floor for this
competition.
So that is what we are about. I think we are all intending
to meet this challenge. So, we hope this is just the first of
many productive hearings. The Helsinki Commission is perhaps
the only model like this. I think it worked. We have to
remember, though, that we are dealing with a different set of
situations.
In a sense, with Russia, with the Soviet Union, there was
little commercial contact, little contact of any kind. This was
something from the outside almost completely, except when they
would let us in.
In this case, the interaction is going to be much more
vigorous and somewhat different, but no less important. So we
have a commission that is not identical to Helsinki, but has
some of the same earmarks in terms of staff, and in this case a
Congressional executive level. So, I think this is really a
very important moment.
So, let me just ask you if any of the four of you want to
give us further advice. There has been some reference, for
example, to what is going on among workers of China. There was
a recent article in the Washington Post about this. It is just
one example of the fermentation that is going on within China.
The question is, how do we effectively impact, constructively
impact?
So feel free to give us advice at our baptism. Mike, you
are shaking your head.
Mr. Jendrzejczyk. Well, I have lots of suggestions, but I
will just give you two. And Mr. Levin, I want to say I am
especially happy to be here today with you, because I remember
the first discussion I had with you about the possibility of
the Commission. I believe it was in a hotel in Seattle during
the World Trade Organization Summit.
I never would have believed we would have reached this
point at that stage just a few years ago. I remember in that
discussion, you said many of the things you just said now, and
with the same kind of eloquence.
I mean, I think this issue of labor rights is one of the
most difficult, the most complex, but also the most important.
I think in a very practical way, there clearly are areas,
for example, having to do with worker health and safety in the
coal mining industry in China, for example, where there are a
huge number of deaths and casualties, where China would
probably welcome some forms of bilateral assistance and/or
support.
That is relatively easy. That does not hinge on or touch on
the far more sensitive political issues that have to do with,
for example, reforming the labor law to make it possible for
workers to organize their own independent trade unions. That is
now, as you know, illegal.
Having said that, last October the labor law was amended
and there are now provisions that theoretically say that
workers, even when choosing representatives for the All China
Workers Federation, the official trade union, that their
representatives should be chosen by the workers, not the
management or the party cadre, which is the way it is normally
done.
Now, I do not know what this Commission itself can do to
encourage adequate implementation of this relatively new
provision. Certainly, monitoring how it is implemented would be
a step in the right direction.
That brings us back to this fundamental problem that I
think this Commission is going to face, and that is getting
access to good, accurate, solid information on the ground in
terms of what is actually happening, and where there are
opportunities for change.
The labor disputes that reach the western press are just
the tip of the iceberg. You know if you read the official
Chinese media, there are tens of thousands of labor disputes
every year, and they have been increasing in the last few
years.
Many of them are very quickly resolved. The Chinese
government says, pay off the workers, give them their owed
wages, get them off the street. If they continue to stir up
trouble, yes, detain or arrest them, or put them into a
reeducation camp.
This is why I stressed access to China by the ILO, by this
Commission in terms of having someone on the ground based in
the American embassy. I think it is going to be fundamental for
you to come up with a viable strategy to do precisely what you
think you want to do.
Representative Levin. Thank you.
Chairman Baucus. Those are good points. There are many
members of this Commission and little time, so we are going to
have to honor the 5-minute rule. We will work our way through
the procedure, since this is our first meeting.
I might tell my fellow Commission members that, our system
is recognition in order of arrival.
I have a question for Mr. Xiao, and anyone else who wants
to answer. How many senior people in the government in China
share some of the concerns that we are now voicing?
That is, problems with the reeducation through labor
system, and the hukou, and maybe the rule by law rather than
the rule of law.
How many hold these views and how strongly? One, is who
holds these views privately. Another is do they discuss it
among the leadership privately. The third, is if it is voiced
publicly.
So those are three different categories of the degree to
which a significant number of people in the Chinese
administration may agree with, to some degree, the basic points
that we are now discussing.
Mr. Xiao. I think, first off, these issues are well-known
issues among the Chinese leadership. It is not that they do not
know about them. It is their perception or perspective, looking
at these issues, that are different. Basically, from their
position, they see the necessity that they maintain the
political status quo. It is a necessity for stability. They
know this issue, but too bad. That is how China runs.
There are reform-minded, thinking people in the leadership,
and I think more and more people see it is inevitable. In the
long-term, China has no other alternative, that being a modern
a country, they have to follow the democratic government rule
of law and protect human rights. I do not think, in the long
term, people can really argue about that, even if they do not
publicly say it.
What they do not know is, from today's China, the current
status, how to get there, who wants to take the lead. This
current leadership, President Jiang Zemin, Zhu Rongji, and Li
Peng, decided on not taking political reform, period.
But Chinese leadership transition is coming up in the next
2 to 3 years for a new generation of leadership. I think
political reform, including rule of law not just rule by law,
is a fundamental issue and that leadership will look into it.
I think this actually is a way in for the Commission, for
the powerful American Congress and administrative and Executive
Branch to engage in those political visions and values with the
Chinese leadership. I believe what they need is more on how to
get it there. They are already aware of those issues.
Chairman Baucus. What is the proper way to engage the next
generation?
Mr. Xiao. China's politics are not transparent. So whatever
they say in the current political discourse does not really
reflect what they believe is the next step.
But there are certain basics. I think there should be
pressure from both sides, pressure from the outside externally.
Several people have mentioned that, to engage China in playing
by international rules, that includes human rights. If China
wants to be part of the international community, which it does,
increasingly, those basic norms must be respected. That is the
one place where you can engage the Chinese leadership.
The other one I would fully emphasize is how to empower the
Chinese people. When I say the Chinese people, not just those
public advocates for human rights and democracy, but also the
reform-minded officials at every level in Chinese society.
In my view, one focus is to help to promote the freedom of
information and freedom of expression in China, to ensure their
rights, to facilitate that kind of effort. For example, with
the internet. By that, the Chinese people will expose more
corruptions, publicize labor exploitations, and to speak out
more on the monitoring of the government. So freedom of
information, freedom of expression, is a key.
Chairman Baucus. Do any of the rest of you want to respond
to that basic question?
Mr. Alford. If I might. I am in concurrence with what was
said. I think, of course, it is hard to know what is going on
inside the Chinese leadership. But I imagine that there is
pretty widespread recognition of a need to change. The question
is, how to do it and how far to go.
It is interesting that there are statements on occasion by
senior Chinese legal officials acknowledging some of the
problems we have spoken of with regard to torture, arbitrary
arrest, and official abuses.
Perhaps even more interestingly, there is now a broader
spectrum of ideas that academics and others can voice--which
suggests an increasing measure of tolerance. There have been
academics who have spoken out strongly against reeducation
through labor, something that would have been hard to imagine 8
or 10 years ago.
Chairman Baucus. Thank you very much. My time has expired.
Next, is Congresswoman Marcy Kaptur.
Representative Kaptur. Thank you, Mr. Chairman.
Let me just say, this being our first meeting, I want to
publicly acknowledge the yeoman's work that was done by
Congressman Levin in the House in crafting this provision,
along with Congresswoman Pelosi, who has just been a champion
for human rights and has led us as a world, and our dear
colleague Frank Wolf from Virginia, just for helping to make
this day possible.
I want to thank Chairman Baucus and Co-Chairman Bereuter
for leading us all in this extraordinarily important effort. I
am very conscious, though not a senior Member of Congress, that
I am here because the men and women in my district who struggle
every day to earn a living and to have a better way of life
have sent me here.
As a member of this Commission, I do not want to forget
them and the plight that they face in the workplace every day.
As a member of this Commission, I know it is my responsibility
also to never forget the men, women, and children in China who
are struggling to survive another day, often under very brutal
conditions.
As one American, I view the military relationship that we
have with China as probably predominating the policies that we
have followed over the years, followed more recently by our
commercial relationship, which has now resulted in a gigantic
trade deficit with China, where China now remains the largest
holder of our dollar reserves, $30 billion, $40 billion, $50
billion, $60 billion being made in a very lopsided way by
certain interests.
My question really goes to the nature of that commercial
relationship and to what extent we can use the power of the
marketplace to help to promote the legal reforms that you all
have asked to focus on in your testimonies today.
I have listened very carefully to Mr. Xiao and to Mr.
Alford, Mr. Jendrzejczyk, and Mr. Feinerman talk about the
perception versus reality of China.
I have to place this on the record, because I asked myself
this question. These items, the women who made these in China,
were paid 17 cents an hour. If I look at our trade deficit, I
look at the toys of misery that come out of China. I say to
myself, the dollars that are made off of this transaction, who
makes them? How does that profit in any way get turned toward
the development of a better human rights record in China?
In my own region, I wish to place on the record 2,000
workers at Huffy Bicycle in Salina, OH no longer have jobs.
They used to earn $11 to $15 an hour, with benefits.
The workers in China who have replaced them through a
subcontractor through Taiwan are paid 30 cents an hour. The
quality of the bicycle has gone down in terms of the metal used
in production.
Huffy maintains an 85 percent market share here in this
country and the prices have not gone down at K-Mart and Wal-
Mart where you purchase these bicycles. Who is making the
profit off of that change, and how can some of those profits be
turned to the development of a rule of law that really works?
So my question goes to the heart of the commercial
relationship. Would anyone care to comment?
Mr. Jendrzejczyk. Representative Kaptur, I think you have
touched on a very important problem. I do not know of any one
solution, but I do know one suggestion that has made its way
through the Congress as legislation, but has never been
enacted.
That is, a code of conduct for American companies and their
Chinese, Taiwanese, and Korean subcontractors and suppliers
that looks at both their obligations under international and
under Chinese law to protect their Chinese workers and others
from this kind of exploitation.
This code of conduct bill was introduced by Mr. Lantos in
the House in 1995. It earlier had been introduced in the Senate
by Senator Ted Kennedy. It wound its way, in one case, through
both Houses of Congress and got attached to another piece of
legislation, but was never enacted.
My organization, and other groups, advocated strongly last
year for enactment of this bill before China joined the World
Trade Organization, precisely to provide American consumers
with the information they need to know that if a company is not
abiding by this code of conduct and filing regular, yearly
reports with the Secretary of State and the Labor Department on
how they are implementing this code, they should have that
information at their disposal before they make decisions.
I would recommend that this legislation is now more
important than ever, because China is in the World Trade
Organization. I think it is a long way from implementing its
WTO obligations, but I think this kind of legislation would
provide at least more information and some assurance to
American shareholders and consumers that workers in China are
not being exploited and their basic rights are being protected,
especially, as you say, women workers who tend to be exploited
the most.
Representative Kaptur. Yes. As I said, in many locations
trade is not gender-neutral.
I also want to place on the record at our first hearing
that globalization may have a logic, but it does not have an
ethic.
Mr. Xiao, did you wish to make a statement?
Mr. Xiao. Yes. I just wanted to simply say that is such an
excellent question. If you engage in a substantive conversation
with a Chinese official, that is the question to ask. Yes.
Representative Kaptur. I would be very interested in the
area. I will only end, in 10 seconds, by saying to both of our
able chairmen, I hope that, as a part of this Commission's
work, I long for the day to travel through China, through many
of the provinces where this work is being done, and to somehow
be able to talk to the workers. I doubt that we will ever be
allowed an opportunity to see the real thing, but it would be
my hope.
Thank you.
Chairman Baucus. Thank you very much, Congresswoman Kaptur.
Next, Secretary Findlay.
Mr. Findlay. Thank you very much, Mr. Chairman. I am very
pleased and honored to be with the distinguished Members of the
Congress and Senate on this panel.
It was said of the USSR years ago that, if you looked at
the piece of paper that was the Soviet constitution, it was a
spectacular constitution that included a lot of rights. The
problem was that there was not the institutional backing to
enforce the rights: an independent judiciary, independent labor
unions, independent prosecution.
So it seems to me that the key to bringing human rights to
China is not only to get the laws right, but to get the
institutions right. I would just be curious, probably from
Professor Alford first, to talk about how the United States can
influence institutional change in China.
Mr. Alford. Thank you. That is a very perceptive question.
My own sense is that that is exactly right. It is not chiefly a
question today of the promulgation of legislation in China,
although certainly much law, criminal procedural law, criminal
law, labor law, and so forth, could be drafted far better and
refined. It is a question of building institutions that give
those laws vitality.
China is moving, as Jim Feinerman suggested, in that
direction, but it needs a great deal of help. Some of the
problems, as we have described in this panel, are clearly
directly political in terms of the Communist Party's
involvement, but some of them are even larger and deeper, in a
way.
We need, as was suggested, to reach out to the Chinese
populace as a whole to help acquaint it with its rights and
provide it with more institutional vehicles for realizing
those.
To give you a quick illustration, China has something
called an administrative litigation law that enables people to
take local officials to court. It has been over-sold in this
country. It is not quite as spectacular as some of its
proponents would suggest, but it is a beginning. Twenty years
ago, 10 years ago, it was almost inconceivable that somebody
could challenge officials in that way. Now, it is there. The
quality of judges is very uneven, but improving. So I hope we,
as a government, will find means of supporting activity that
makes more of this possible.
Mr. Jendrzejczyk. One other suggestion is to focus on legal
aid. The new Chinese Justice Minister is eager to expand the
nascent legal aid system to every part of China, especially in
rural areas of China, as part of a poverty reduction strategy
to empower women. There seems to be now an eagerness at the
local level, but a lack of resources and training.
We have been talking with the World Bank to try to get the
World Bank involved in this whole area as part of its poverty
reduction strategy.
The bank has not given legal aid assistance to China, as
far as I know, since 1994, when it got its last I.D.A. loan. So
I think this area of legal aid might be one very specific area
to focus on. I agree, otherwise, with all of the rest of the
panelists, this is a very long-term, decades-long proposition,
moving China from having laws on the books to enforcing them.
But having legal aid resources available to local peasants
and workers who now, for the first time, may have the ability
to go to the courts for some redress of grievances, that would
be, I think, a significant contribution.
Mr. Feinerman. I would just like to add that there are some
missing bricks in the structure that also need to be addressed,
and there are programs that we could effectively mount that
might help with them.
The judiciary, for example. If you are going to try and
make these claims and process these rights, you need judges who
understand the law, who can actually make change happen. That
is one of the weakest links in the Chinese legal system as it
has evolved today.
There are also resources that could be devoted, and we have
a lot of experience in the United States with what would be
called popular legal education, that is, making more citizens
more broadly aware of what their existing legal rights are and
creating a groundswell of pressure for pushing for more of
them. That is the kind of thing where American experience and
techniques might be brought to bear with regard to that.
Last, I would just echo a point that I think Professor
Alford was making. That is, sometimes it is easy to mistake
certain kinds of progress for genuine progress, to look--and
the Chinese are often very good at this--at the number of laws
that were passed, the number of lawyers that have been trained,
and just look at statistics without seeing outcomes, without
seeing what has really happened. That is the important thing, I
think, to try to assess. It is something that we need to get
more information about, too, on this end.
Mr. Findlay. I have another question, but I think with the
yellow light on, it would take too long to ask.
Chairman Baucus. Go ahead. Shoehorn it in.
Mr. Findlay. The second question I wanted to ask was about
China's accession to the WTO. It has been said that there is a
demonstration effect that happens when a nation comes into the
community of nations and begins to have to abide by
international norms, that it can lead to abiding by human
rights norms and its own internal laws.
I would like any of you to comment on whether you think
such an effect works.
Mr. Jendrzejczyk. I think it does, perhaps, over time. I
would underline the ``perhaps'' and the ``over time.'' For
example, China ratified a U.N. convention against torture and
ill treatment, I believe, in 1986. Yet, Chinese official
publications and legal authorities admit that torture and ill
treatment is a huge problem.
On the other hand, having this as an international treaty
that China is a party to, that it has to file reports with the
United Nations on compliance and implementation of its treaty
obligations is a contributing factor, but only a contributing
factor.
I think, given the other complex dynamics that others here
have described, everything from the succession struggle under
way this year to the enormous dislocation likely to happen once
WTO reforms are implemented, social and economic dislocations.
Those are factors cutting against any treaty that is signed at
the highest levels of the government.
So I think these long-term institutional reforms will be
enhanced by China's adherence to international standards of all
kinds having to do with trade, non-proliferation, and human
rights.
But, again, I think we are all sounding the same theme
here, that the gap between enforcement and implementation and
signing on the dotted line is enormous. That is precisely the
question: How do you address that?
Chairman Baucus. Thank you very much.
Let me read the list here that I have, in order.
Congressman Dreier, Mr. Craner, Congresswoman Pelosi,
Congressman Davis, Congressman Wolf, Congressman Pitts. I
understand that Senator Hagel is going to return.
Go ahead, Mr. Craner.
Mr. Craner. Thank you very much, Mr. Chairman.
I want to thank you and the other Senators and Congressmen
here, for bringing this Commission together and addressing what
I think is a very, very important aspect of our relationship
that could have great long-term effects. Thank you.
I want to pose a question to Mr. Alford. That is, if you
notice any significant shifts in legal reform, debate, or
directions versus a decade ago. I think one would say that it
was about a decade ago that these reforms began.
Mr. Alford. Yes. Thank you for your question. I also want
to commend the work that you did previously with rural
elections, which I think has proven over time to be very
important.
I think we see signs, to be frank, in both directions, both
positive and not as positive. That is, there are things people
can talk about in terms of legal reform, some of which have
been realized in action, amendments spoken of earlier in the
labor law and efforts to improve the criminal procedure law,
though it is still quite imperfect, to be sure.
But I think also, as we engage further in legal reform,
want to be sure not to see it as a panacea for everything in
China. For instance, corruption is a more staggering problem
today than it was 10 years ago. Sadly, lawyers are a party to
this. Indeed, they have disappointed some of the hopes that
people had that they might be a vanguard for bringing about
change.
That still leads me, in the end, to believe that we must
intensify our efforts at engagement in legal development. But
we do not want to be naive about it being a uniform path.
Mr. Craner. Let me ask a follow-up question. In the area of
legal reform, it seems that there are two directions one can go
in. One has to do with the commercial area, and the other, I
think some of you have outlined different ideas or different
program ideas here today.
How do you see the effect of working on commercial law
reform for human rights as opposed to what one might call more
direct access through some of the programs you have discussed
today?
Mr. Alford. If I could offer a quick comment. I think the
two really are interdependent. I think that the emphasis so far
historically has been more on the commercial side, so I
personally would prefer to see more on the other side. Work on
the other side, the non-commercial side, benefits the
commercial side in the long run because there will not be
respect for contractual rights if there is not respect for very
basic rights.
Mr. Craner. Thank you.
Jim.
Mr. Feinerman. I would just echo that. I think that the
problem that has been perceived so far in the incomplete
process of reform that China has experienced is that
legislating new laws, trying to make strides in the commercial
area, without a contemporaneous development of the more
structural and systematic aspects of the legal system leads to
eventual failure, or at least partial success, because you
cannot make the next breakthroughs unless you have those things
in place.
You can have the most perfect commercial code on the books,
but if you do not have the judges and the lawyers who can make
them effective, then it all comes to naught.
Mr. Xiao. Just look at the legal reform from my particular
perspective. About 12 years ago, we started the first effort in
trying to find a lawyer for political prisoners in China. There
was a lawyer, but he could do very little. But we were excited
there was a lawyer trying to do something.
Twelve years later, it is even more difficult to find a
lawyer to defend any political prisoner, and there are more
political prisoners than there were 12 years ago.
Mr. Craner. I yield back the rest of my time.
Chairman Baucus. All right. Thank you very much.
Next, Congresswoman Pelosi.
Representative Pelosi. Thank you very much, Mr. Chairman.
I, too, want to commend you and Mr. Bereuter for your
leadership here. I think you will present us with a tremendous
opportunity where we can work together to hopefully accomplish
something to promote human rights in China and improve the
conditions of the people there.
So, as the Chairman has said, the decisions about what
happens in China ultimately can only be made by the Chinese
themselves. I completely agree with you, and we want to give
them that opportunity to do that.
I want to commend my colleague, Congressman Levin, for
extraordinary leadership and persistence, and excellence in how
he proceeded on this. I hope that we can, in the end, come
together around something that will make a real difference. I
am pleased to serve with all of you.
I want to commend the witnesses for their very excellent
testimony. I want to congratulate you, Mr. Xiao, on your
MacArthur Award for Excellence. Congratulations. And Mike
Jendrzejczyk, of course, I have worked with over the years, and
we appreciate the very scholarly presentations that we had.
They were very useful.
Mr. Chairman, I think that if we could accomplish something
in the area of rule of law, not rule by law, and rule of law
with respect for human rights, it would be a great thing. I
hope that it would not just focus on the economic side where we
have transparency and opportunities because of the WTO, but it
would be on both sides.
I fear a dual track, where we would do it so that it
pleases the business community doing business there. That would
be a good thing, but it is not the only thing. I do not want
the people of China to be given any more rights than the
business community operating there.
We have been at it for a long time, some of us, on this
issue. At the time of the Tiananmen Square massacre, the
reported trade deficit was $2 billion a year.
We thought we could use that for leverage, conditioning
trade with China to stop the proliferation of weapons of mass
destruction, to stop unfair trade practices, and, most
importantly, to free the prisoners of Tiananmen Square. When I
say most importantly, most timely at that time. It was all-
important.
Here we are, almost 13 years later. The prisoners are still
in prison from Tiananmen Square, many still are. The Chinese
are still proliferating weapons of mass destruction. The $2
billion per year trade deficit is more like $2 billion per
week.
So I do not think it has worked, what is there. Again, none
of us has been successful in freeing those prisoners or
improving the situation in China.
I am interested in what our academic guests--you all are
academic guests, but Mr. Feinerman and Mr. Alford--have to say
because it just reminds me of what we all know: China has
contradictions.
If you shine the bright light of freedom there, you will
see areas of improvement, there is no question. But you will
also see massive areas that we cannot ignore, we simply cannot
ignore. So, I hope that we can come together around something.
I am pleased, and I want to congratulate the Bush
administration. Many of us have worked for many years, many at
this table, for Ngawang Choepel's release. I am so honored that
he joins us here today, after so many years in Tibet, in
prison. I do not know if he is still here, but he was here
earlier. I think we should all welcome him. [Applause].
Mr. Secretary, again, I congratulate the Bush
administration. It happened on your watch. Again, we have all
been pushing for years. But thank you for your leadership in
this area.
Mr. Craner. It is the product of the work of very many
people.
Representative Pelosi. You are very gracious.
What we have heard from two of our witnesses, at least, is
that intercession by Congress and by the outside world for
political prisoners is effective.
So, in friendship, Mr. Chairman, I would just say that I
would hope that the Commission would take up the suggestions
that are offered in terms of the President's visit to China, in
calling to the attention of the regime some of the names of
prisoners that we would hope would also be released.
We know from the prisoners that their conditions in jail
improve when their names are brought up. We also know that
sometimes some of them are freed.
So that is why I do not want to be wedded to the systemic
structural change, which I do not really see in the bill, but I
see that has been presented as a criterion for whether we were
to take a particular action. It is true, releasing a few
prisoners does not solve the problem. But I still think that we
should try to release some of the prisoners.
I just wanted to see if we could get any comment from our
witnesses here on the prospect for us doing something, with
allowing the Chinese people to make the decision, but how we
could have real rule of law with respect for human rights which
applies to people's lives, their human rights.
Not just that, if they are charged with a crime, do they
have rights to defend themselves. But, for example, Xu Wenli,
for example, is in prison because he talked about politics in
another way than the regime would allow.
I see that my time has expired. I will have to defer to the
discretion of the Chairs. Maybe I will just put it out there as
something they can come back with later.
Chairman Baucus. You are good, Nancy. You are good. You are
good. [Laughter.] All right. A very short answer.
Mr. Feinerman. I would just say two things. One, is I think
it is important to keep in mind that this may happen over time,
but there are ways that we can contribute to it.
One of them is the pressure from outside, which is very
important. Another, is using the institutions here over the
long run to provide people who can do this.
Let me give you one example of someone who combines both. A
woman who is a contemporary of Professor Alford's and mine when
we were law students over 20 years ago went back to Taiwan
after getting her LLM, and was promptly put in prison. She was
a political prisoner. In fact, I and many of my classmates
joined Amnesty International to work for her release. She is
now the Vice President of Taiwan.
It is an example of what can happen in another Chinese
society which was a repressive regime for almost four decades,
which existed under martial law, and which, at the time that
she was arrested in 1980, seemed insusceptible to any forward
movement. People had been working on them for years. But the
long pressure that was brought by people from Taiwan who had
studied in the United States and stayed here or went back and
began to build a middle class, who learned while they lived in
other societies abroad what democracy and the rule of law could
really bring to their lives, created a tidal wave that
eventually won her freedom and propelled her and her party into
political power.
Chairman Baucus. Thank you.
Mr. Jendrzejczyk. May I make one other suggestion?
Chairman Baucus. All right, but quickly. In honor and
respect of others here who have not yet had a chance to ask
questions, I think I am going to have to move on. I very much
appreciate that. I think this hearing has whetted the appetite,
and that is positive.
Congressman Davis.
Representative Davis. Thank you, Mr. Chairman.
The level of repression of what appears to be legitimate
public political discussion and debate that you provided to us
is both breathtaking and artful.
I would like to ask you some questions about the extent to
which unleashing the full force of the internet is part of the
solution here today.
How potent at force is that for the change we are all
talking about today?
Chairman Baucus. Congressman, if I might just interrupt
here. This is a very good session. I very regrettably must
leave. Chairman Bereuter is going to continue here. We are
going to gather together, frankly, after this and figure out
where we go from here, both procedurally and substantively.
But I very much appreciate the interest of everyone. We all
collectively, together, appreciate the interest of everyone. I
pledge my efforts to make this work, to make this Commission
effective. I think we can do it. I feel very good about it.
Our constitution provides for a separation of powers, but
here we are in joint collaboration of the Executive Branch and
the Legislative Branch, together on the same panel, asking
questions together. That is something I think we should pursue
as much as we possible can in the future.
Thank you very much. I very much apologize for
interrupting.
Representative Davis. Thank you, Mr. Chairman.
My question is, to what extent is the power of the internet
a significant force in what we are discussing today? How
effective are these controls that many of you have documented?
What role can we play in further unleashing the power of the
internet to improve upon the quality of public discussion/
debate on political issues?
Mr. Xiao. First, the internet population today is about 33
million, and growing rapidly. They are a relatively young,
educated, urban population. It is also vastly expanding to many
different corners of China.
It is a very special demographic. It is not for the
peasants, not for the workers, not for other people. But it
does reach to the urban-educated business and government
officials in such a way that it has already had a visible
impact on China's freedom of information and freedom of
publication.
In other words, certain news that the government tries very
hard to censor is already being exposed on the internet, and
puts pressure on official newspapers and televisions and they
have to cover it.
The government censorship effort is also very remarkable,
from the internet police section to 60-some internet
regulations and laws, to actually working with some western
tech companies to develop the surveillance, the firewalls, and
the censorship, sophisticated software, trying to keep things
under control.
The key issue here is what the American Government and
civil society can do, and this Commission can do, to facilitate
the further opening up of the internet. I would suggest that
the first step is to look into the Chinese Government's WTO
obligations. Already, what the Chinese Government is doing
domestically, I believe, is violating certain of those rules
already.
Mr. Jendrzejczyk. I would endorse what Mr. Xiao has said. I
would just add, I think the private sector can also play a
role. I think American companies, for example, can be
encouraged to allow Chinese citizens--students, for example,
and others, researchers--to use their internet facilities when
the companies are shut down for the day, but when they are
still on line, where it would be much easier for them to get
around the various firewalls and obstacles to free access to
the internet.
Beyond that, of course, American companies, especially
those that are selling software and trying to expand access to
the growing internet market, should, I think, be very cognizant
of the fact that, under Chinese regulations, they are supposed
to report those who are using the internet to download
potentially subversive information about Taiwan, about Falong
Gong, about Tibet, and so on, or perhaps even getting access to
CNN or the Washington Post.
Companies have a responsibility to find a way to square
their obligations to their online subscribers with their
ostensible obligations under Chinese law while, most of all,
protecting the rights of free expression. I think that would
also be a contribution.
Mr. Feinerman. I would just like to suggest that you may
want to consider other technologies besides the internet. I
have participated in very effective call-in programs on VOA
[Voice of America] radio and television, for example. People
given access to free call-back services in China call in and
ask wide-ranging questions about a range of issues in human
rights and the rule of law.
You could flood Chinese markets with cheap CDs that provide
this information. Many more people have access to a computer
than have a connection to the internet. There are a lot of
other ways to spread the message, although I would also commend
the use of the internet as one of the vehicles.
Mr. Alford. I would echo what has been said. Indeed, as
mundane as it may sound, efforts in which Professor Feinerman
and I have been involved in building law libraries in China
have actually begun to bear some fruit, where people can begin
to use it. When we first went to China many, many years ago,
nobody could get access to those materials. These days, they
are being used. So, I think your question is a good one and we
should work on all of these fronts.
Representative Davis. Thank you.
Thank you, Mr. Chairman.
Representative Bereuter [presiding]. Thank you very much,
Mr. Davis.
The gentleman from Virginia, Mr. Wolf, is recognized.
Representative Wolf. Thank you, Mr. Chairman.
Let me, at the outset, just say I apologize for being late.
I had a speech uptown.
I do not completely agree with what has been said, and I
want to be proven wrong. One, I think the Commission is tilted
too much toward business. I have looked at the resumes. I
believe the business community has a greater impact on this
Commission than those for human rights. If you look at the law
that created this commission, it said, ``Function: Monitor in
compliance with human rights or to reflect compliance or
violation of human rights,'' and to compile a Victims list.
Well, if we do not contact people about the victims, then
having a list will not be any good.
I put some names in with regard to staffing for human
rights and religious freedom. The staff said, no, no, no, no,
no. Finally, I said, hire somebody from my staff. They said, we
only want an expert on China.
I would rather have an expert in labor issues who did not
know anything about China but who cared passionately about
religious freedom, than somebody who has been a professional
China person and does not really care very much about religious
freedom and human rights.
So, second, Mr. Levin, all I can say is, the Helsinki
Commission, which I serve on, is an advocate for human rights.
I will tell you, Mr. Smith and Mr. Hoyer and all of the
Members, have always been advocates for those who have been in
prison.
Mr. Hoyer used to go to Eastern Europe, go to the Soviet
Union and advocate for it. Scharansky will tell you, when his
name was mentioned on those lists when Mr. Hoyer would raise
it, and others, that their life got better. Sometimes they did
not get out, but their life in prison got better.
So this Commission should be an advocate for human rights.
Second, I believe the Commission is too weighted from the
business community and I have not seen anybody on the staff who
has a passion for human rights. There are 11 Catholic bishops,
and Bishop Su Zhimin gave Holy Communion to Rep. Chris Smith,
and he is now in prison. There are evangelical house churches.
There is a new document that a press person called me about
today that is going to break on the persecution of the church.
So I think, if you have got a list, raise it. Second, hire
some people. If you do not want to hire somebody from my staff,
get somebody else. But hire somebody that maybe was not for MFN
[Most-Favored-Nation], somebody who was not for all of these
things.
I lost. My side lost. The business community who advocates
for religious freedom and human rights can do more than those
of us who are opposed. But I see a slant in the staff, and we
should use this Commission for everything that we possibly can.
So, talk to Scharansky. Bring him as a witness and say, if
we had had a list, and we just kind of kept it in the file
cabinet, would that have helped you? He would have said, no.
When you spoke out, and President Carter did--it is bipartisan.
Jackson-Vanik, two Democrats, did a better job than anybody
else. So, that is my second point.
I have got more, but I just wanted to say to the witnesses,
Mr. Feinerman, I went back and looked at what you said in an
article. In 1997, this is what you said. ``Harry Wu and others
have tried to stir up great controversy about how goods made by
forced labor are flooding into our market. It seems to me to be
the height of hypocrisy for us to get on our high horse about
China making its prisoners work, given the fact that we do the
same thing in our prisons.''
Wrong. I have been in Beijing Prison, number one, with
Chris Smith. We picked up the shoes and the socks that they
were making. They were going through living hell in that
prison. To compare Beijing Prison, number one, to our prisons,
is absolutely wrong. Do you still agree with that?
Then you went on to say that ``the Chinese system is
designed to make offenders pay a harsh penalty.'' Some of them
give their organs, some of them give their kidneys, some of
them give their cornea. You go on to say, ``a harsh penalty, on
the theory that it scares people so they will not come back
into prison. You can argue that it works. Who are we to argue?
It is their choice.'' Do you still agree with those statements
that you made in 1997? Have you ever been in a Chinese prison?
Mr. Feinerman. Yes, I have.
Representative Wolf. What prison?
Mr. Feinerman. I have been in both the Beijing Number One
Prison and the Shanghai Prison.
Representative Wolf. And do you think those conditions are
as good as they are in the United States prisons?
Mr. Feinerman. No. But the conditions for life in China
generally are not as good as they are in the United States.
Representative Wolf. The torture and the problems that are
going on. Call their witnesses. We never ask anybody in our
prisons to give their kidneys and their cornea. Have you seen
the picture where they take people out of the prisons and shoot
them?
Mr. Feinerman. You are putting words in my mouth,
Congressman. I do not condone the death penalty at all. I
certainly do not agree with forcing people to donate their
organs.
Representative Wolf. Reclaiming my time, you said, ``Harry
Wu and others have tried to stir up a great controversy about
how goods are made by forced labor and are flooding into our
markets. It seems to me to be the height of hypocrisy,'' for
Harry, who spent 17 years in a slave labor camp, ``for us to
get on our high horse about China making the prisoners work,
given the fact that we do the same thing with our own
prisons.''
Mr. Feinerman. Parsing the English language, Mr.
Congressman, I said it was the height of hypocrisy for us, not
for Harry Wu. I admire his struggle.
Representative Wolf. Harry is an American citizen.
Mr. Feinerman. I know what he has survived. But I am
saying, for other people who have not had those experiences, to
first of all mischaracterize the percentage of goods that come
to the United States that are actually the product of forced
labor----
Representative Wolf. There is a lie. There is a lie. In
their labor practices--we had a gentleman come through the
other day. There are labor practices with regard to making
products that are flooding the market, whereby the people live
in dormitories.
So, Mr. Chairman, I would just say, I think you ought to
hire somebody who has a commitment and a passion to human
rights and religious freedom.
Last, Mr. Bereuter, there is no one that is a better
Congressman than you, and for Mr. Baucus, who I do not know, I
would stipulate the same. But I think the business community,
if they speak out, and this Commission speaks out, will
actually have a greater impact than when I speak out, or
somebody on my side. The Sullivan principles from South Africa
ought to be adopted.
So, I think the Commission ought to be an advocate for
human rights. If we are trading, that's good. But, as we are
trading, we should be speaking out. We can make a difference. I
think this Commission can be--I was surprised that I was
appointed to it--the difference. It can be the difference, but
only if we are not a wall flower. We should be advocates for
human rights. With that, I yield back the balance of my time.
Representative Bereuter. I thank the gentleman from
Virginia.
You might be interested to know--not that I had the
influence--I requested you should be on the Commission, along
with several other members.
Representative Wolf. I appreciate that.
Representative Bereuter. And we all have a passion for
human rights in many ways, or I think we would not have been
appointed.
I will say this with respect to Chairman Baucus, myself,
and Sandy Levin, and Senator Hagel. We anticipate 14
professional staff members, perhaps going beyond that. Only
three, to my knowledge, have been hired. I know I was
specifically requesting that we have one person to focus
exclusively on religious issues. Of course, we had broad
support for someone to focus predominantly, exclusively,
perhaps, on labor rights issues.
So, give us an opportunity to demonstrate the balance on
the Commission. I hope, and think, you will not be
disappointed.
Representative Pelosi. Mr. Chairman.
Representative Bereuter. Yes, gentle lady.
Representative Pelosi. I was going to ask Frank to yield,
but I just want to make one point on the prison labor issue. It
is not a question only of the conditions under which people are
imprisoned in China.
The point is, use of prison labor for products for export
to the United States is against our law. It is not about any
question as to, do we have prisoners making products in our
prisons. We do. But it is not for export to another country.
It is not where you round up people, without trial, without
representation. You recruit your workforce free of charge, no-
cost labor, and subject them to some of what Mr. Wolf said.
But, regardless of the conditions, products made by prison
labor are prohibited from entering our country under our law.
So to charge Mr. Wu with hypocrisy, or us as a country, for
suggesting that we should not prohibit prison labor goods from
coming into our country because prisoners make goods in our
country, is really more the point. I think you are wrong there,
Mr. Chairman.
Representative Bereuter. We will give Mr. Feinerman a
chance to respond. But I would like to complete the first round
here, and that is Mr. Pitts and myself.
So, Mr. Pitts, you are recognized for 5 minutes.
Representative Pitts. Thank you, Mr. Chairman, and thank
Chairman Baucus for holding this important hearing. I thank the
distinguished panel for their testimony.
I have formal remarks that I will submit for the record.
Representative Bereuter. Without objection.
[The prepared statement of Representative Pitts appears in
the appendix.]
Representative Pitts. As we talk about legal reform and
giving assistance to the Chinese Government for civil society
development, I think we must be specific in our assistance,
targeting areas in which a real, practical difference can be
made.
For example, it is vital that, as just rule of law is
developed in China, that the distinction be made that criminal
action be dealt with under established criminal law. Official
PRC Government documents make it clear that the drive to
maintain control over religious believers in China remain
strong.
In one report regarding a meeting of Chinese officials, the
officials were charged,
Quickly gather the essential personnel and find out the
development and activities of this cult in our province.
Carefully gather all the information and try to catch all the
members in one blow.
Pay attention to keep it confidential, and work without
talking. Comrade, the head of the Ministry of Public Security
emphasized specifically that we need to work more and talk
less, and smash the cult quietly.
Not the statement of officials who aim to protect the freedom
of conscience of their people.
I have a couple of questions for our panel. One, how should
the Commission be working with other governments to maximize
influence on China? Can you be specific? What are the most
important, specific questions that the commissioners should be
asking Chinese officials? If you could comment.
Mr. Jendrzejczyk. I would just comment on your first
question about working with other governments. I mean, I think
you are absolutely right, Mr. Pitts, about targeting
assistance.
There have been a lot of discussions in the various
bilateral human rights dialogues with various governments,
including the United States, the European Union, Japan, and
others, and Mary Robinson, the U.N. High Commissioner on Human
Rights, about reeducation through labor.
I think my colleague Xiao Qiang mentioned this. This is an
arbitrary system of punishment used in much the way you
described, that anyone can be administratively sentenced
without charge or trial for up to 3 years in labor camps. This
is used routinely to imprison thousands of Chinese every year.
For the United States to work with the EU, Japan,
Australia, Canada, and the High Commissioner's office to
develop a concerted legal and political strategy that can
intersect with the discussions already going on in Chinese
legal circles about doing away with this huge system of
arbitrary punishment, that, I think, is exactly the approach I
would take.
The other, is to work with other governments to get
observers into trials. The Chinese Government, a couple of
years ago, said they would open up all trials except those
involving subversion and state secrets to Chinese citizens as a
way of building more confidence in the legal and judicial
process. This is where I think this unfortunate dichotomy
between human rights and the rule of law can be bridged.
I think the United States can work with other governments
to get diplomats to try to attend both trials of ordinary
Chinese citizens who are being subject to mistreatment, perhaps
at the hands of a corrupt official, and the state security and
subversion trials that are now ruled out of order, and develop
a strategy with them to get diplomats to show up at the
courtroom and try to get access. This is a way of promoting, I
think, both human rights and the rule of law. They are not
mutually exclusive.
Representative Pitts. Anyone else? Yes.
Mr. Xiao. Yes. Just in addition to what my colleague Mike
said, the High Commissioner of Human Rights at the United
Nations is actually publicly calling the Chinese Government to
abolish reeducation by labor in Beijing in workshops. So, there
is an effort, and I think this Commission should join in that.
I actually want to make a point and respond to your
question, and also respond to, earlier, Nancy Pelosi and Frank
Wolf's comments about individual cases and the systematic and
structural changes, and how to achieve that.
Again, I come back to the issue of the state security law,
under the criminal code of endangering state security. I think
this Commission, the United States Government, should engage in
a fully substantial discussion with the Chinese authorities
about the non-compliance with international human rights
standards on the national security law.
The United States faces its own challenges of national
security and protecting civil rights. The Chinese Government
always uses ``protecting national security'' to detain the
peaceful advocates. I think you should look into it.
One specific example. ``Counter-revolutionary'' used to be
a charge for political crimes a few years ago. Now they have
changed to endangering security. Under the counter-
revolutionary laws there are more than 2,000 people held in
prison without even having their cases reviewed, but the charge
does not exist in Chinese criminal law any more.
I think the Commission should ask the Chinese government to
systematically review all of these cases to see whether they
really endangered Chinese state security, whether that really
complies with international human rights standards.
Representative Pitts. Thank you. Anyone else? Any specific
questions we should be asking the Chinese officials?
Mr. Alford. I think it is important that your views be
voiced to Chinese officials so they understand how deeply
Americans care about these issues. I think it is important that
we continue to work on building institutions.
It has been disappointing, as Xiao Qiang mentioned, that
lawyers in China have not been more forthcoming in helping
people who have been charged in the way you described. The bar
is not sufficiently independent of the state. I think we need
to continue to work to build an independent bar with integrity
in China.
Thank you.
Representative Pitts. Thank you. Thank you, Mr. Chairman.
Representative Bereuter. The gentleman's time has expired.
I feel very strongly, as a member and as, of course, co-
chairman, that witnesses are treated with, of course, courtesy.
Any views, past or current, or statements here, should not be
misconstrued. So, Professor Feinerman, we will come back to you
in a minute, right after my question period, if you wish.
I have noticed, in meeting with Chinese officials for about
14 years sporadically, that when we talk about human rights
their conversation will shortly shift to the collective Chinese
people, that things are improving and, therefore, this is a
part of the important human rights.
Now, we do not look at that in the same fashion at all in
this country. I think that is a very strong consensus, that we
have great focus on the individual human rights.
But I want to ask you your reactions to that. Relatedly,
Professor Alford, you said, I believe, if I have got this
right--I was scratching down quickly here--your four final
recommendations.
But we need to go what we can with total respect for human
rights and rule of law to help them understand that there are a
variety of legitimate ways in free societies for ensuring human
rights and rule of law, or something of that nature. Correct
me, if I am wrong.
Now, we have all run into discussions about the Asian
model, especially a couple of years ago, which was not coming
from Chinese itself, but from elsewhere in Southeast Asia.
I think a great many people in this country, including this
member, had problems with that as an excuse for not proceeding,
really, with a focus on individual human rights.
What would you, or any other panel members, like to say
about this subject? I do think we have to be careful that we do
not say, this is a prescription. This is the American way to do
it and, therefore, try to apply that exclusively.
Mr. Alford. Thank you very much.
When I made my comment, it was about a variety of ways that
free societies strive to attain our shared objectives of
democracy, human rights, rule of law. So, in that sense, I was
not referencing the Asian values/universal norm debate, some of
which I feel has been put to the disservice of Asian values,
which include freedom.
What I meant, was simply to avoid the binary situation that
has characterized some legal assistance projects, where we in
effect say to the Chinese, you have two choices. You can either
be where you are today, or you should be exactly like us.
It strikes me that, if we begin to help portray a broader
panorama of possibilities, how the British do it, how the
French do it, how the Japanese do it, how people in Taiwan do
it, I think we give the Chinese a broader set of choices that
would still improve markedly where China is today.
For example, our mode of administrative law, wonderful
though it may be, is not shared by many Europeans. They can
effectively foster transparency and government responsibility
in a different way. So, my simple point was to give the Chinese
a broader panorama of possibilities from free societies.
Representative Bereuter. And what would any of you say
about the Chinese Government's officials' focus on the
collective versus the individual?
Mr. Xiao. Mr. Chairman, I believe in my testimony I
mentioned quite a few issues, composed of 80 percent of the
Chinese population, or millions of people every year are being
discriminated against. That is collective, their rights being
suppressed.
I am in exile, but I am still a Chinese national--I believe
all my fellow countrymen deserve and demand the same basic
human dignity and rights as the American people, as people in
Taiwan, as people in Africa, and everywhere else. Asia values
versus human dignity or human rights never stands, in my life
experience and instinct, for a minute.
Mr. Jendrzejczyk. I think there is the enormous
generational change in China. From my conversations with both
party bureaucrats and students, it is eroding that distinction,
that very false distinction. I think, over the next two
generations, we are going to see an end to this stress
currently, which of course is party ideology, on the collective
versus the individual.
The two will be seen as mutually enforcing and not one
canceling out or taking priority over the other. But I think
the generational change already under way, and Xiao Qiang is a
great example of this, I think is beginning to do that already.
Representative Bereuter. Thank you.
Mr. Feinerman.
Mr. Feinerman. I would just say that I think that the Asian
values thing is made much of by people who are usually
apologists for repressive regimes. A boot in the face is a boot
in the face, whether you are an Asian or a Caucasian. But I
think a larger point that I think we need to underscore, and I
appreciate Professor Alford's comments about not making this
United States values or Chinese values, but maybe we should
stress more about Chinese values.
China is a signatory, for example, to the international
covenants. They have made certain undertakings as a result of
that. They have ratified one, and will the other. Likewise,
their own law, their own constitution contains extensive
guarantees of rights. Some of them are coupled with problematic
duties, but nonetheless, if China lived up to the promises that
it makes in its own domestic legislation, it would be a human
rights paradise.
Representative Bereuter. I think that is an important focus
for us. Thank you all for your response.
My time has nearly expired. Before we see if any other
members have a question or a concluding comment for today's
hearing, I would like to turn to you, Professor Feinerman, if
there is anything you want to say in light of what I previously
promised you.
Mr. Feinerman. I appreciate the heat that certain comments,
particularly taken out of context, may sometimes generate.
As a Catholic, I know in Catholic theology that there is a
distinction made between what is known as vincible and
invincible ignorance. You can persuade some people of some
things, and other things you just have to walk away from
because deeply-held principles are not going to be swayed.
But I do want to stress that, as a lawyer and a law
professor, I understand the dictates of U.S. law and I support
our policy to exclude prison labor-produced goods from this
country.
Perhaps I was trying to make, in that piece that was quoted
by Congressman Wolf, a subtler point, that law and legality can
sometimes exist side by side with a certain degree of
hypocrisy.
Just as I believe it is hypocritical of people to condemn
China for using the death penalty when their own jurisdiction
may also employ it, I believe it is also hypocritical, in cases
where there are legitimate legal means that may be otherwise
employed to exercise control over our own borders with respect
to imports, that would make it hypocritical at the same time to
say we only want for market in our economies prison goods
produced from certain prisons.
If there is a problem with prison labor, it may be a more
universal problem. Although I do take the point that was made
by both Congressman Wolf and Congresswoman Pelosi, that the
conditions in prisons are different and may have a significant
impact on the choices we make.
Representative Bereuter. Thank you very much.
Since we are down to two additional commissioners, I think
it is about time to adjourn. But I would call on either of my
two colleagues who might have a concluding question or remark.
Representative Levin. This has been a wonderful hearing. I
do think we need to talk more about comparabilities, because I
think there really is not any in this case in terms of prison
labor.
But you have been terrific, Professor Feinerman and the
rest of you. We probably should have ended a few minutes ago,
when Xiao Qiang talked about all of the aspirations of the
people in China and the notion that, when it comes to freedom,
there really is not--and Mr. Bereuter's question sparked this--
Asian freedom, or American freedom, or European freedom. I do
think there are some basic principles here. The purpose of this
Commission is to promote them actively.
Speaking for, I think, the two of us, Mr. Bereuter, we are
determined, with our colleagues in this rare Executive
Congressional Commission, to carry out this charge. We are
determined to do just that.
Representative Bereuter. Sandy, we are, indeed. I want to
very sincerely express our appreciation to the first of many,
hopefully, distinguished panels that we have before the
Commission.
I appreciate the fact that you have devoted your time this
afternoon, and all the experience that you have brought to the
table to help us today. It is a very good start for the
Commission. With that said, the first hearing of the Commission
is hereby adjourned.
[Whereupon, at 4:48 p.m., the hearing was concluded.]
A P P E N D I X
=======================================================================
Prepared Statements
----------
Prepared Statement of Xiao Qiang
Human Rights in the Context of the Rule of Law
february 7, 2002
i. introduction
Founded in March 1989 by Chinese scientists and scholars, HRIC is
an international non-governmental organization dedicated to the
promotion of universally recognized human rights and the advancement of
the institutional protections of these rights in China. Based in New
York, with a Hong Kong office established in 1996, and a EU/UN liaison
based in Paris, HRIC's board and staff include prominent human rights
advocates, China scholars, and Chinese political exiles.
Through its extensive network among human rights activists inside
China, and its education, advocacy, and cutting-edge research programs,
HRIC addresses one of the most significant and complex challenges
facing the international human rights movement today: how to promote
human rights in an emerging economic, military, and political major
power. The geo-political reconfigurations of the world since September
11 make it clear that China is pivotal to the region and the world-and
also emphasize the difficulties in raising human rights concerns
internationally.
The Congressional-Executive Commission can play a key role in
ensuring that human rights concerns remain on the table. Both the
Chinese and American people share important values and aspirations for
human dignity and freedom. Both nations are facing great challenges and
responsibilities for promoting human rights, ensuring domestic and
global peace, and sustaining development.
For today's hearing, ``Human Rights in the Context of the Rule of
Law,'' I would like to make four points about the human rights
situation in China, and conclude by suggesting five recommendations.
ii. key human rights challenges
A. Rule by law is not rule of law: Using law to suppress citizens'
fundamental rights of association, freedom of expression, and
religion
There is a crucial distinction between ``Rule of law'' and ``Rule
by law''. Chinese leadership has repeatedly reiterated its policy of
``Yifa Zhiguo'' ruling the country according to law. However, when
there is no real democratic and representative legislative process and
no judiciary independent from the party and state, law often becomes a
tool that suppresses rather than protects the fundamental rights of
Chinese people, including the rights to association, freedom of
expression, and religion. For example, law is often used to crack down
on peaceful political activism, Falun Gong practitioners, and labor
organizers, as well as peaceful advocates for Tibetan and Xinjiang
self-determination. Too often, those trying to exercise these
fundamental rights are accused of ``endangering State security'', an
ambiguous charge that allows overarching flexibility in silencing
voices of dissent. In addition, recent years have seen the
implementation of extensive regulations to censor and control the
Internet, China's virtual public space. In the limited time today, I
will focus on those people whose fundamental rights have been stripped
by the Chinese government.
Political Dissidents in China: Prisoners of Conscience--
HRIC has closely followed the Chinese government's shift of recent
years toward using ``state security'' as a rationale for the
suppression of dissent. This concept has culminated in the replacement
of the accusation of ``counter-revolution'' with that of ``endangering
State security'' in the newly revised Criminal Code. However, the term
``state security,'' and what constitutes harm to it, is wrought with
ambiguities in the Chinese legal system. Too often, this concept of
State security is used to justify violations of basic rights, including
the peaceful freedom of expression, association and assembly, and
practice of religion. HRIC is concerned that the charge of
``endangering State security'' has broadened the capacity of the State
to curtail the peaceful exercise of fundamental rights. The fact that
over 2,000 ``counter-revolutionary'' prisoners (according to official
statistics) have not had their convictions reviewed after the revision
of the Criminal Code underscores this abuse. Political activists of the
China Democracy Party have been given heavy sentences under the State
Security Law. For example, Xu Wenli, Qing Yongmin, Wang Youcai were
sentenced to 13, 12, and 11 years respectively in 1998.
June Fourth Victims--Mr. Chairman, almost 13 years after
the June 4th Massacre and subsequent repression throughout China, more
than a hundred Chinese citizens remain in prison for participating in
the peaceful protests of 1989. We have names of 158 individuals for the
city of Beijing alone (supporting documentation). Over 50 of these
political prisoners are held in Beijing No. 2 Prison and are serving
sentences of 15 years to life. Their only crime consisted of promoting
democracy and respect for human rights. Yet these people were charged
with criminal offenses and convicted of subversion of the State in
patently unfair trials. Furthermore, for compiling this list of
political prisoners and making it public, Beijing student Li Hal was
found guilty of ``prying into and gathering'' ``state secrets,'' and
sentenced in 1996 to 9 years' imprisonment. Even commemorating those
who participated in the Tiananmen Movement is a crime against the
state. On December 26, 2000, after more than a year and a half in
incommunicado detention, Jiang Qisheng was sentenced to 4 years in
prison for circulating an open letter suggesting citizens engage in
peaceful activities to commemorate the tenth anniversary of the June
Fourth Massacre, such as lighting candles at home.
B. Institutionalized discrimination: Using law to discriminate against
rural residents, migrants, and ethnic minorities
In HRIC's NGO shadow report to the U.N. Committee on the
Elimination of Racial Discrimination (CERD), HRIC pointed out on the
discriminatory effect of PRC laws and policies on three main
overlapping groups: rural residents, that is people with rural
household registration or hukou, comprising 63.91 percent of the
population; internal rural-to-urban migrants, part of a vast ``floating
population'' estimated to range anywhere from 40 million to 120
million; and national minorities, making up 106.43 million persons or
8.41 percent of the population. Together these three groups constitute
the vast majority of the PRC's population. The hukou system has created
a system that gives the urban population privileged access to
education, housing, economic opportunities and political participation.
This hukou system thus violates the rights of rural residents and
migrants to equal enjoyment and exercise of their human rights and
fundamental freedoms. The failure of the PRC government to provide
equal access and treatment in political, economic, social, cultural and
other fields of public life has created an apartheid-like system that
threatens to undermine the security, stability and fairness of the
PRC's modernization and reform efforts.
C. Ineffective implementation and lack of accountability: The
persistent gap between law on the books and law in practice
Two examples stand out in the persistent gap between law on the
books and law in practice: the lack of accountability for the June
Fourth Massacre and the Revision of the Criminal Procedure Law.
Criminal Procedure Law (CPL)--China's National People's
Congress has revised the Criminal Procedure Law (CPL), effective on
January 1, 1997. CPL provisions aimed at safeguarding rights have
either been watered down by interpretative rules issued by law
enforcement agencies, or violated outright without the authors of the
violations suffering any consequences. Loopholes and ambiguities in the
CPL have been exploited to the full by law enforcement authorities. In
certain areas, the new CPL has actually resulted in greater limitations
of key rights, such as regarding defense lawyers' access to prosecution
evidence.
HRIC published a report, ``Empty Promises: Human Rights Protections
and China's Criminal Procedure Law in Practice'' (March 2001). The
report focuses on the Chinese Communist Party (CCP) control of the
judiciary, the role of lawyers, pretrial detention, use of illegal
evidence, discriminatory application of the law and assessment of these
issues in terms of international human rights standards in 2001. The
full 90-page report (in English) is attached for the Commission to our
submission.
Tiananmen Mothers Campaign--Patterns of rights violations
show that impunity and lack of accountability are a principal cause of
human rights abuses in China. Mechanisms to hold officials accountable
are deficient or non-existent. Controls on freedom of expression and
association make it very difficult for people to expose abuses by
officials and to achieve accountability.
For example, the crime committed against unarmed demonstrators in
Beijing on June 4, 1989, remains uninvestigated and unpunished, despite
the brave efforts of the victims' families acting under the banner of
the Tiananmen Mothers. Hundreds of Chinese citizens remain in prison
for participating in that year's peaceful protests. In June 1999, the
victims' families asked China's Supreme People's Procuratorate to
initiate a criminal investigation in order to determine the legal
responsibility of the perpetrators. They submitted evidence consisting
of testimonies from 24 victims' families and three people who were
injured, and a list of the 155 known dead and the 67 known injured. To
date they have received no reply. These families are subjected to
constant harassment, from brief detentions and house arrest to
surveillance and the confiscation of humanitarian funds sent from
abroad.
D. Arbitrary nature of the system: Administrative detention
The improvement of the legal system will do nothing to improve
conditions in the wide range of punishment institutions that operate
outside the legal system, and in which large numbers of people are
incarcerated. These include the system of ``custody and repatriation''
(C&R) under which ``undesirables'' of all types, including women and
children, are detained without trial, occasionally for periods as long
as a year or more, and then shipped back to their home towns and
villages; the system by which individuals can be sentenced by police or
work-unit security personnel to 3-year sentences of ``re-education
through labor'' (RTL) in camps; the system of psychiatric hospitals,
known as the Ankang, run by the Ministry of Public Security; and a host
of other institutions, such as establishments for forced drug addiction
treatment and for rehabilitation of prostitutes and clients, ``welfare
homes'' for the detention of elderly dissident clerics, and unit-level
detention facilities set up entirely outside existing regulatory
structures by local governments, institutions, and companies. The scale
of such administrative detentions is vast.
Custody and repatriation: In 1996, at a Ministry of Civil affairs
conference on C&R, it was announced that across the country more than
one million ``vagrant beggars'' were taken into custody every year, as
well as upwards of 100,000 indigent children, and that over 600,000
persons were ``repatriated'' or ``assisted in returning home''--a total
of 1.7 million detainees in C&R facilities alone in that year.
Reeducation Through Labor: According to China's official figures,
230,000 people are currently held under RTL, as compared with around
150,000 in the early 1990's. RTL applies to people believed to be
responsible of acts ``too minor'' to merit formal prosecution and is
ordered by the public security departments alone, without any judicial
review. RTL detainees do not have the right to counsel, the right to a
hearing or the right to have the lawfulness of their detention reviewed
by a judicial authority. Although its maximum duration is 3 years, it
can be renewed for up to one more year if the detainee is believed to
have performed badly in his or her ``reform.'' It is frequently used to
detain Chinese people who have peacefully exercised their rights to
freedom of thought, religion, expression and association. However, we
believe that this measure is arbitrary under the definition put forward
in the judgment of the U.N. Working Group on Arbitrary Detention, and
thus should not be applied to any detainees, regardless of the reason
for which they are sent to RTL.
iii. recommendations
1. The Commission should urge the Chinese authorities to proceed
with a comprehensive review of the convictions and sentences of all
those imprisoned for alleged ``counterrevolutionary'' crimes,
especially in light of the revisions to the Chinese Criminal Procedure
Law that eliminated this category of crime. The Commission should also
urge the Chinese authorities to unconditionally release all prisoners
of conscience.
2. The upcoming visit of President Bush to China provides an
important opportunity to publicly raise human rights concerns.
Congressional members should urge President Bush to press for the
release of political prisoners in a significant way and to publicly
raise human rights issues such as the crack-down on freedom of
expression, and the discriminatory treatment of China's rural and
ethnic minority populations, and to engage the Chinese leadership in
serious substantive discussions about these issues.
3. In monitoring the protection of freedom of expression and
information in China, we urge the Commission to pay particular
attention to the increasingly restrictive Internet regulation and
surveillance by Chinese authorities, especially as these regulations
interface with China's WTO accession obligations.
4. On multilateral initiatives, we urge the U.S. government to
immediately announce and lobby for a United Nations resolution
expressing concern about the human rights situation in China.
5. We urge the Commission to develop and announce benchmarks for
human rights compliance and rule of law developments over the next 7
years leading up to the Olympics. For example, benchmarks regarding
steps taken toward ending political imprisonment, abolishing
reeducation Through Labor, and the hukou system.
Thank you, Mr. Chairman.
human rights in china: supporting documentation and materials
1. HRIC List of Urgent Cases of Political Prisoners (February 6, 2002)
2. Announcement of the Tiananmen Mother's Campaign (July 27, 2000)
3. HRIC Report: ``Empty Promises: Human Rights Protections and China's
Criminal Procedure Law in Practice'' (March 2001)
4. HRIC Report: ``Reeducation Through Labor (RTL): A Summary of
Regulatory Issues and Concerns'' (February 2001)
5. HRIC Report: ``Not Welcome at the Party: Behind the ``Clean-Up'' of
China's Cities--a Report on Administrative Detention Under
Custody and Repatriation Centers'' (September 1999)
6. ``Promoting Human Rights in China: Report of the China Human Rights
Strategy Group'' sponsored by the Open Society Institute and
Human Rights in China (November 2001)
7. ``Implementation of the international Convention on the Elimination
of all Forms of Racial Discrimination in the People's Republic
of China: A Report by Human Rights in China'' (July 2001)
______
Prepared Statement of Mike Jendrzejczyk
february 7, 2002
Thank you, Senator Baucus and Representative Bereuter, for inviting
us to testify at the first public hearing of the Congressional-
Executive Commission on China. The timing of today's hearing makes it
particularly important and useful--exactly 2 weeks before President
Bush's first official visit to Beijing on February 21-22.
I would like to begin by offering some specific recommendations to
the Commission, and then I will outline major human rights and rule of
law concerns in China, based on Human Rights Watch's documentation of
abuses in China and Tibet over the past year.
I realize that the Commission's mandate, under the PNTR (Permanent
Normal Trade Relations) bill establishing the body, is quite broad. The
Commission is charged with monitoring China's compliance with the
rights contained in the International Covenant on Civil and Political
Rights (ICCPR) and the Universal Declaration of Human Rights, as well
as the development of the rule of law in China.
But to be effective, I believe the Commission should focus its
work--especially this first year of its active involvement--in some
strategic areas. These should include, for example, the release of
political and religious prisoners; greater cooperation with U.N. human
rights mechanisms and adherence to U.N. human rights treaties; and
increased access by human rights monitors. Over the longer term, other
issues should also be considered, such as freedom of expression and
restrictions on the Internet (see below for details), and ways to
creatively use the 2008 Olympics in Beijing as a catalyst for human
rights improvements. These could be topics for future Commission
hearings.
I hope the Commission's initial report to the President and the
Congress, originally due last October, will be issued early this spring
and, at a minimum, will highlight some of the Commission's key concerns
and make some policy recommendations for both the Executive and
Congressional branches.
I would also urge the Commission to seek to post one of its
professional staff members at the U.S. embassy in Beijing, in order to
facilitate and expand upon the research activities of the Washington-
based staffed. This suggestion was contained in a letter sent to the
Commission last September by several NGO's, including Human Rights
Watch; we also discussed it with the U.S. Ambassador to China, Clark
Randt, during one of his recent visits to the U.S.
recommendations for u.s. policy
(1) President Bush's China visit
The significance and symbolic value of the president's visit to
Beijing--exactly thirty years after President Nixon's historic visit,
and shortly after China has joined the World Trade Organization--
provides some real leverage. It should be used to press for significant
steps to improve human rights.
We welcomed the release last month of Ngawang Choepel, a Tibetan
musicologist and former Fulbright scholar who was serving an 18-year
prison sentence on espionage charges. Whether or not his release on
medical grounds was in any way related to the forthcoming Presidential
visit, it seems to indicate that even at a time of political transition
in Beijing, China's leaders are anxious to maintain good relations with
the U.S. Ngawang Choepel's case received sustained, high level
attention from both the Clinton and Bush administrations and, perhaps
most significantly, from many Members of Congress. Active concern by
Congress was clearly a major factor in bringing about his release. I
think his release also illustrates that pressure can work. And it is
precisely this kind of pressure--generated through both private and
public diplomacy--that the Commission should seek to exert, in the lead
up to the president's visit and in the weeks and months to come.
I certainly hope that there will be many more releases of political
dissidents, religious activists, Tibetans activists and others. Further
releases may even be announced before the president's trip.
However, the administration and Congress should also press for more
far-reaching steps. This is one area where the Commission and its
individual members can be particularly helpful. First, I would urge
some members of the Commission to offer to travel to Beijing with the
president, in order to hold bilateral discussions with senior officials
in key ministries, such as the Bureau of Religious Affairs, Ministry of
Foreign Affairs, the Labor Ministry, and others; to introduce the
Commission and its mandate to the Chinese leadership; and perhaps to
explore establishing a framework for talks with members of the National
People's Congress (NPC) on human rights and rule of law concerns.
Secondly, I hope the Commission will write to China's leaders in
advance of Bush's visit, then follow up with private contacts with
Chinese officials by individual Congressional members. Such a letter
might, for example, urge China not only to release large numbers of
political prisoners but also to submit the ICCPR to the NPC for
ratification as soon as possible; to invite the U.N. Special Rapporteur
on Religious Freedom to conduct a return visit to China and Tibet this
year to assess any progress made in implementing the recommendations
resulting from his November 1994 visit; to agree to the terms of the
new U.N. Special Rapporteur on Torture and Ill-Treatment for a visit;
and to open up Xinjiang, the far northwestern province of China, to
regular, unrestricted access by U.N. and private human rights monitors.
The situation in Xinjiang deserves special attention in light of
the widespread and systematic human rights violations against ethnic
Uighurs, including many involved in non-violent political, religious
and cultural activities. China has tried to justify its broad denial of
basic freedoms in Xinjiang on counter-terrorism grounds; but Chinese
authorities have failed to discriminate between peaceful and violent
dissent in their fight against ``separatism'' and ``religious
extremism.'' (More details on the situation in Xinjiang follow in the
next section of my testimony.)
(2) U.N. Commission on Human Rights
The annual session of the U.N. Commission on Human Rights will
begin in Geneva on March 16. Although the U.S. does not have a seat on
the Commission this year, it can propose and promote resolutions. The
administration, to my knowledge, has yet to formally decide whether to
pursue a China resolution and to identify a possible sponsor, although
the State Department has begun informal consultations with the European
Union and others about the agenda for Geneva.
I urge the Commission to use its influence with the executive
branch to reiterate the strong concerns of Members of Congress in both
houses that China should be held accountable for its international
human rights obligations in the highest U.N. body charged with
monitoring compliance. Whether or not a resolution is ultimately
passed, the multilateral pressure exerted by a serious Geneva campaign
gives China's leaders an incentive to make progress on human rights,
and to cooperate with U.N. human rights mechanisms, in order to avoid
the loss of face that U.N. censure would entail.
The State Department's annual human rights country report is due to
be delivered to Congress on February 25, soon after President Bush's
Beijing visit. I expect the report will make it apparent that based on
the overall record of China's human rights performance, action in
Geneva is warranted.
If a China resolution is introduced, I hope that the Congressional-
Executive Commission and its members will work with the State
Department to urge other governments to support a resolution and to
oppose any ``no action'' motion by China to prevent it from coming up
for debate and vote in April.
(3) Labor Rights
Protection of internationally recognized worker rights is an
explicit part of this Commission's agenda, referred to in the PNTR
bill, and yet the issue has not received adequate attention in U.S.-
China relations.
With China's entry into the WTO, increasing unrest among laid off
and unemployed workers is expected. Despite some changes in the Chinese
labor law adopted last October, there has been little progress toward
allowing rights of free association for Chinese workers as recommended
by the International Labor Organization (ILO). All attempts to organize
independent trade unions are considered illegal, and free trade union
organizers are often detained and arrested.
The ILO has offered to send a mission to Beijing to discuss China's
obligations, as an ILO member, to respect workers' right of free
association. The Commission should consider developing a strategy to
encourage China's cooperation with the ILO on this core international
standard. Last May, the ILO signed an agreement in Beijing to cooperate
on the creation of social safety net programs, job retraining and other
issues. But freedom of association was not addressed in the agreement.
The Commission could also help by scheduling a hearing to examine
the human rights implications of China's WTO membership, especially
with regard to workers' and migrants' rights. It should also recommend
that Elaine Chao, the U.S. Secretary of Labor, arrange to go to China
later this year to begin a high-level dialog on core ILO standards, as
well as to offer U.S. assistance with social safety net and worker
health and safety programs. Her predecessor was formally invited to
visit China by the Chinese labor minister when he came to Washington in
March 1999.
As the administration develops programs to enhance rule of law,
human rights and democracy in China with the funds provided by Congress
this fiscal year--approximately $10 million all together--the Labor and
State Department and Congressional members of this Commission should
meet to discuss ways of constructively addressing reform of China's
labor laws.
human rights developments in 2001
The Chinese leadership's preoccupation with stability in the face
of continued economic and social upheaval fueled an increase in human
rights violations in 2001. China's increasingly prominent international
profile, symbolized by its entry into the World Trade Organization
(WTO) and by Beijing's successful bid to host the 2008 Olympics, was
accompanied by tightened controls on fundamental freedoms. The
leadership turned to trusted tools, limiting free expression by
arresting academics, closing newspapers and magazines, and strictly
controlling Internet content. It utilized a refurbished ``Strike Hard''
anti-crime campaign to circumvent legal safeguards for criminal
suspects and alleged separatists, terrorists, and so-called religious
extremists. In its campaign to eradicate Falun Gong, Chinese officials
imprisoned thousands of practitioners and used torture and
psychological pressure to force recantations. Today, we are releasing a
major new report, ``Dangerous Meditation: China's Campaign Against
Falun Gong,'' documenting the crackdown. (Copies are available for
Commission members.)
Freedom of Expression
Starting in late 2000, authorities began tightening existing
restrictions on the circulation of information, limiting the space
available to academics, journalists, writers and Internet users.
Attacks on academic researchers may have been partly a response to the
January 2001 publication of the Tiananmen Papers, a collection of
government documents spirited out of China which described in detail
the role played by Chinese leaders at the time of the historic June
1989 crackdown.
In December 2000, Guangdong's publicity bureau told newspapers and
journals not to publish articles by 11 prominent scholars. In June
2001, one of those named, economist He Qinglian, fled China after
Chinese security agents seized documents, letters, her cell phone, and
photos of America friends. Although her 1998 book, China's Pitfalls,
had been widely praised by the Communist leadership for its expose of
corruption, she later angered authorities when she publicized the
widening income gap in the country. Before she fled, the propaganda
department of the Chinese Communist Party banned publication of her
works; she lost her reporting job at the Shenzhen Legal Daily; and was
subject to round-the-clock-surveillance. In May, after the Yancheng
Evening News published an interview with Ms. He, Chinese authorities
ordered top staff to submit self-criticisms.
Between February and September, four Chinese academics who were
either naturalized U.S. citizens or permanent U.S. residents were
arrested and tried on charges of spying for Taiwan. Dr. Gao Zhan, a
scholar at American University in Washington, sentenced to 10 years'
imprisonment, was permitted to return to the U.S. within days after the
conclusion of her trial; Qin Guangguang, a former editor and scholar,
was granted medical parole and returned to the U.S. immediately after
being sentenced to a 10-year term; journalist and writer Wu Jianmin was
expelled following his trial in September; and Dr. Li Shaomin, a
naturalized U.S. citizen teaching in Hong Kong, was deported in July
after a 4-hour trial. Sichuan native Xu Zerong, a Hong Kong resident
since 1987, detained in June 2000, was put on trial on charges of
illegally supplying State secrets and sentenced to 13 years in prison
in late January 2002, according to his family.
Scholars were also affected when the Chinese Academy of Social
Sciences rescinded invitations to foreign and Taiwan scholars to
participate in an August 2001 conference on income disparities. In
November 2000, authorities canceled an officially sponsored poets'
meeting in Guangxi province after it became known that dissident poets,
some of whom helped underground colleagues publish, were expected to
attend. Three organizers were detained. In May, police in Hunan
province raided a political reading club that had attracted teachers
and intellectuals, and detained several participants including the
founder.
Restrictions on information flows also affected HIV-AIDS research
and reporting. In May, Beijing prohibited Dr. Gao Yaojie, who had
helped publicize the role of unsanitary blood collection stations in
the spread of the disease, from traveling to the U.S. to receive an
award. Earlier, Henan health officials had accused her of being used by
``anti-Chinese forces;'' local officials, who often profited from the
sale of blood, had warned her not to speak out. In July, village cadres
refused to allow her to enter their AIDS-ridden villages.
Media regulations were also tightened. In November, the Communist
Party's top publicity official signaled a new policy when he told a
meeting of journalists that ``the broad masses of journalists must be
in strict agreement with the central committee with President Jiang
Zemin at its core,'' a warning repeated in January by Jiang himself.
The same month, a Party Central Propaganda Department internal circular
warned that any newspaper, television channel, or radio station would
be closed if it acted independently to publish stories on sensitive or
taboo topics such as domestic politics, national unity, or social
stability. The regulations instituted a new warning system; after three
citations, a media outlet was subject to closure.
By June, the Party had instituted a stricter regime. A decree
expanded taboo content to include speculation on leadership changes,
calls for political reforms, criticism of Party policies including
those related to ethnic minorities or religion, and rejection of the
guiding role of Marxism-Leninism and Mao-Deng theories, among many
other categories. The decree forbade independent reporting on major
corruption scandals, major criminal cases, and human and natural
disasters and threatened immediate shutdown for violators. The
government also ordered a nationwide campaign to educate journalists in
``Marxist news ideology.''
In the immediate aftermath of the September 11 attacks in New York
and Washington, the Chinese Communist Party's Central Committee
Propaganda Department ordered news media to refrain from playing up the
incident, relaying foreign news photos or reports, holding forums,
publishing news commentaries without permission, or taking sides.
Chinese youth had welcomed the attacks on Internet postings and
officials said the restrictions were needed to prevent damage to U.S.-
China relations.
Authorities routinely prohibited the domestic press from reporting
on incidents it considered damaging to China's image, but permitted
exposes when it suited the government's purposes. On September 8, 2001,
former Xinhua reporter Gao Xinrong, sentenced to a thirteen-year term
in 1998 for exposing corruption associated with an irrigation project
in Shanxi province, wrote U.N. High Commissioner for Human Rights Mary
Robinson asking that she intercede on his behalf after appeals in China
were unsuccessful. Similarly, Jiang Weiping, a Dalian, Liaoning
province journalist, who also exposed corruption, was arrested in
December 2000 and tried in September 2001 on charges of ``leaking State
secrets.'' He received a 9-year sentence. After a military truck blew
up in Xinjiang in November 2000, three journalists at two newspapers
were punished for ``violat[ing] news discipline and reveal[ing] a lot
of detailed information'' before Xinhua, the official news agency,
printed the official line on the incident. News media in China are
required to use Xinhua reports on any stories that local or central
propaganda authorities deem sensitive. In June, Yao Xiaohong, head of
news for Dushi Consumer Daily in Jiangxi province, was dismissed after
reporting an illegal kidney transplant from an executed prisoner. In
October, under pressure from central government publicity authorities,
he was fired from his new job at the Yangcheng Evening News in
Guangdong province.
Chinese authorities, however, did not always succeed in silencing
the press. In March, after Chinese authorities insisted that a mentally
ill man had caused an elementary school blast that killed over forty
youngsters and teachers in Jiangxi province, the domestic press and
Internet sites stopped reporting that the children had been involved in
the manufacture of firecrackers. After parents used the press and the
Internet to establish the truth of what really happened, Premier Zhu
Rongji, who had initially denied local accounts, was forced to renege.
Chinese authorities moved against publications as well as
individual journalists. In May, a magazine called Today's Celebrities
was peremptorily closed for printing articles about corruption and the
Cultural Revolution (1966-76). Employees had to stop the post office
from delivering copies of the offending issue. In June, in a move to
change its character, authorities replaced the acting editor and other
editorial staff at Southern Weekend (Nanfang Zhoumuo), China's most
outspoken news publication. The magazine had published a series of
articles blaming the government for problems in rural areas, reported
on the school explosion, and featured an in-depth discussion of
President Jiang Zemin's ``three represents'' thesis. The latter has
been promulgated as Jiang's important contribution to the theoretical
underpinnings of communism in China. Officials also closed the Guangxi
Business Daily, which had operated for 2 years as an independent,
privately owned paper, when it refused to merge with the Guanxi Daily.
In Jiangsu province, officials ordered the immediate suspension of the
Business Morning Daily after it suggested that President Jiang's
policies had advanced Shanghai's development at the expense of other
cities.
At the other extreme, when Beijing's interests coincided with
independent press accounts, the government encouraged the reporting.
Such was the case in July, when owners of the Nandan tin mine and local
officials hindered accurate reporting of a flooding disaster at the
site. They had been denying that the accident, which claimed close to
100 lives, had occurred. Beijing has been trying to close down illegal
mines and improve safety standards in others. In the Nandan case, local
officials had ignored the violations because the mine contributed
heavily to the county's coffers.
The foreign press was also muzzled. In early March, after Time ran
a story on Falun Gong, Beijing banned future newsstand sales of the
magazine. In June, five security officers beat an Agence France-Presse
reporter after he photographed a protestor outside a ``Three Tenors''
concert held to support Beijing's Olympic bid. In July, government
officials in Beijing prohibited the U.S. CBS television network from
transmitting video footage for a story about Falun Gong. Chinese
authorities banned the October 29 issue of Newsweek when it ran a cover
story on corruption. China International Television Corporation, which
administers satellite broadcasting, informed foreign TV channels that
as of January 1, 2002, they must transmit through a government
``rebroadcast platform,'' a move making censorship of incoming
broadcasts easier. China Central Television also reneged on a July
agreement to air in full U.S. Secretary of State Colin Powell's Beijing
interview. It cut one-fifth of his remarks, including those defending
U.S. criticism of Beijing's human rights record.
Restrictions on the Internet
Stringent regulations on rapidly growing Internet use came into
effect in November 2000. New regulations required general portal sites
to get their news solely from state-controlled media unless they had
received special permission to post news from foreign media or from
their own sources, required that bulletin board services and chatrooms
limit postings to approved topics, and made monitoring of postings
routine. A month later, Chinese authorities increased the number of
Internet police to more than 300,000. In January 2001, a new regulation
made it a capital crime to send ``secret'' or ``reactionary''
information over the Internet. In February, software called Internet
Police 100, capable of ``capturing'' computer screens and ``casting''
them onto screens at local public security bureaus, was released in
versions that could be installed in homes, cafes, and schools. The
product was designed in part to keep ``unhealthy'' information such as
cults, sex, and violence, off the Net. But even with some sixty sets of
regulations in force, President Jiang in July decried the spread of
``pernicious information'' over the Web and called the existing legal
framework inadequate.
By January 2002, the Ministry of Information and Technology had
ordered service providers in ``sensitive and strategic areas'' to keep
detailed records of who uses their services and at what times.
Providers were also required to install software capable of screening
and copying private e-mails with ``sensitive material,'' to end
transmissions of such material immediately, and to report offenders to
public and State security bureaus.
Chinese regulations limited news postings on the websites of U.S.-
based companies operating in China. The English chatroom of SOHU.com,
partly owned by Dow Jones, posted a list of issues prohibited on the
Internet by Chinese law, including criticism of the Chinese
constitution, topics which damage China's reputation, discussion that
undermines China's religious policy, and ``any discussion and promotion
of content which PRC laws prohibit.'' The posting continues: ``If you
are a Chinese national and willingly choose to break these laws,
SOHU.com is legally obligated to report you to the Public Security
Bureau.'' An internal AOL memo recommended that if AOL were asked what
it would do if the Chinese government demanded records relating to
political dissidents, AOL staff should respond ``It is our policy to
abide by the laws of the country in which we offer services.''
In an attempt to control the proliferation of Internet cafes,
Chinese officials stopped issuing new licenses while a clean-up
operation to uncover evidence of banned sites or posting of subversive
messages was underway. Beginning in April, public security departments
checked more than 55,000 sites. Also in April, four State ministries
and departments, including the Ministry of Information Industry,
promulgated ``The Procedure for Managing Internet Service Business
Sites.'' It bars cafes along a major Beijing thoroughfare and within
200 meters of key central party, political, and military organs, and
middle and elementary schools, and within residential buildings. In
October, officials announced that more than 17,000 cafes had been
closed.
Internet bulletin boards, chat rooms, and online magazines,
including university-based sites and those catering to journalists,
were also closed. In June, Southern Weekend Forum, which allowed
postings criticizing the firings at the Southern Weekend, was closed;
Democracy and Human Rights Forum, produced by the website Xici Hutong
was suspended for complaints about lack of press freedom. In August,
two sites that criticized Jiang Zemin's stand on allowing private
entrepreneurs to join the Party, the electronic magazine China Bulletin
and the Tianya Zongheng forum were closed. Even People's Daily, the
Party newspaper, was forced to remove a collection of articles by a
Party member opposed to Jiang's initiative. In September, the State
Council ordered the closure of Baiyun Huanghe, a bulletin board with
30,000 registered users at the Huazhong University of Science and
Technology in Wuhan, after students posted articles about events in
Tiananmen Square in 1989. Once the bulletin board reopens, the
university's Party committee will manage it. In mid-October, the
Telecommunications Administration and Office of Information closed
Zhejiang Media Forum, a bulletin board for journalists, and demoted the
webmaster for leaking secrets, slandering leaders, and attacking
government bodies.
At least 16 people were arrested or sentenced in 2001 for using the
Internet to send information or to express views that the leadership
disliked. In March, a court in Sichuan province sentenced Jiang Shihua,
a middle-school teacher, to a 2-year term for ``inciting the subversion
of State political power.'' In April, Wang Sen, was detained for having
exposed local trafficking in medicines; a Hebei province court
sentenced Guo Qinghai, a bank employee, to a 4-year term for subversion
for posting pro-democracy articles on a U.S. web site; and veteran
activist Chi Shouzhu, who had printed out pro-democracy writings from a
web site, was detained. In May, public security officers detained Hu
Dalin for helping his father maintain websites featuring the latter's
leftist writings, and Wang Jinbo for libeling the police (he received a
4-year sentence in December on subversion charges.)
Four intellectuals, Yang Zili, Xu Wei, Zhang Honghai, and Jin
Haike, detained in March, were tried at the end of September on charges
of subversion for organizing the Association for New Chinese Youth and
publishing articles about political reform. To date, they have not been
sentenced. Huang Qi, detained in June 2000 and tried in secret in
August 2001 on subversion charges for featuring articles about
democracy on his website, had not been sentenced as of January 2002.
Political activists
Political dissidents continued to be persecuted. Two members of the
banned China Democracy Party, Wang Zechen and Wang Wenjiang, were
sentenced to six and 4-year terms respectively in December 2000.
Dissident Jiang Qisheng, held since May 1999 and tried in November
1999, was finally sentenced to a 4-year term at the end of December
2000 for circulating a political essay calling for a candlelight
commemoration and public mourning of those who died in the massacre in
Beijing on June 3-4, 1989. Authorities also let it be known that
interference with Beijing's Olympic bid would not be tolerated,
sentencing activist Shan Chenfeng, who urged the International Olympic
Committee to pressure China to release dissidents, to a 2-year
administrative sentence in February. Shen Hongqi, a lawyer, received a
3-year sentence for an article advocating reform of China's political
system. Police in Inner Mongolia detained activists associated with the
Southern Mongolian Democratic Alliance, which seeks to promote
Mongolian traditions and cultural values, but which the government
accuses of splittist activities. In May, Dalai, also known as Bai
Xiaojun, was detained for promoting the coming celebration of the
birthday of Genghis Khan; in June, police detained Altanbulag, a young
musician, for distributing materials relating to human rights and
ethnic problems in Inner Mongolia. Authorities also banned works by two
young Mongolian poets and in October detained one, Unag, for several
weeks.
Criminal Justice
On April 3, 2001, President Jiang initiated a 3-month ``Strike
Hard'' (yan da) anti-crime campaign. Stressing the need to safeguard
social stability and the reform process, he asked that improvements in
fighting crime be made with ``two tough hands.'' The following day,
Xiao Yang, president of the Supreme People's Court, announced that
China's court would abide strictly by the law during intensified
efforts to punish criminal elements. The pledge has been honored more
in the breach, as the campaign has featured hastily processed cases,
denial of due process rights, summary trials, harsh sentences, mass
sentencing rallies, and an upsurge in executions. In Shanghai, for
example, judges were ordered to take less time to review evidence in
the pre-trial phase. A Supreme Court circular on April 12 stipulated
that courts should mete out severe punishments to offenders, stressed
the need for courts to act rapidly, and noted that capital cases should
be made irreversible through ironclad evidence. Although the
prohibition against the use of torture was reinforced by Luo Gan, the
Chinese Communist Party's chief law and order official, forced
confessions under duress were officially acknowledged. The practice is
illegal, but evidence obtained through torture is admissible in court.
Li Kuisheng, a prominent lawyer in Zhengzhou, Henan, was finally
cleared of all charges and released in January 2001. He had been
arrested in November 1998 after defending a client fighting corruption
charges, and under torture had ``confessed'' to fabricating evidence.
Provinces and municipalities reported regularly on their compliance
with the campaign. Their accounts included totals of those apprehended,
sentenced, and executed, and information on the kinds of crimes
committed. Capital sentences were imposed for some sixty offenses
including, in addition to violent acts, economic crimes, drug
trafficking, smuggling, arms dealing, racketeering, counterfeiting,
poaching, pimping, robbery, and theft. During the first month of Strike
Hard, some 10,000 people were arrested and at least five hundred
executed. By the end of October, at least 1,800 people had been
executed, at least double that number had received death sentences, and
officials had announced they would continue the campaign at least
through June 2002 with increased ``intensity.'' By September, China's
deputy procurator general called for a ``strike always'' campaign. The
elimination of prostitution and gambling, a crackdown on superstitious
activities, and better management of migrants joined the list of
targets. In July, the Public Security Ministry distributed cash awards
amounting to 1.15 million renminbi (over U.S.$140,000) to departments
in five provinces in recognition of their Strike Hard efforts. In
January 2002, The Minister of Public Security warned the police not to
relax their efforts but rather to step up the campaign.
Despite the Strike Hard campaign, officials in some areas
implicitly acknowledged unfairness in the criminal justice system. In
October, Beijing courts began implementation of new rules on the
presentation of evidence requiring that both sides present evidence in
open court rather than to judges privately. In November 2000, Liaoning
officials announced that prosecutions in some cities would be based on
proof rather than confessions, thus guaranteeing suspects' right to
remain silent during criminal interrogation. However, the following
month, a senior National People's Congress member admitted that in many
places forced confessions, extended detentions, and restrictions on the
activities of attorneys for the defense were still problems. In
January, the vice-president of the Supreme People's Court admitted to
corruption within the legal system, including intentional errors of
judgment, forged court papers, and bribe taking. In June, the Supreme
People's Procuratorate issued six new regulations to prevent violations
in the handling of cases and acknowledged Communist Party interference
in sensitive cases. However, in August, in Luoyang, Henan province,
judges who heard the cases of twenty-three defendants charged in a fire
that killed 309 people said they would not release their findings until
they had talked to provincial leaders.
China's commitment to a rule of law is being severely tested in two
cases involving businessmen, Fong Fuming, a U.S. citizen, and Liu
Yaping, a permanent resident. Mr. Fong, an engineer and power industry
consultant accused of bribery and obtaining State secrets, was held
without trial from February 28, 2000 to October 22, 2001. Fong's
indictment was dated September 24, 2001, but the defense did not learn
of it until 2 weeks before trial. Although the U.S. Embassy was
informed the trial would be open, Mr. Fong's son was turned away when
he arrived at court. As of late January 2002, no verdict had been
issued.
Liu Yaping, held in Hohhot, Inner Mongolia, on charges of fraud and
tax evasion since March 2001, has been denied proper medical treatment
despite a life-threatening brain aneurysm. On August 7, he was
``released pending trial,'' but instead of being free to move about the
city as was expected, he was transferred to a hospital and kept under
twenty-four hour guard until mid-January 2002 when he was released and
informed he could go to Beijing for medical treatment. However, as of
late January, he still had not received the documents, including his
passport, that would make travel possible. During his months in
custody, Mr. Liu has had only very limited to family members and to
legal counsel. He has never been indicted.
Freedom of Religion and Belief
China continued to crack down on groups it labeled cults and on
religious expression practiced outside the aegis of official churches.
Falun Gong continued to experience the harshest repression, with
thousands of practitioners assigned to ``reeducation through labor''
camps and more than 350 imprisoned, many for nothing more than printing
leaflets or recruiting followers for protests. Throughout the year,
recalcitrant practitioners were subjected to stepped up physical abuse
and psychological coercion. Unconfirmed but credible reports of
practitioners dying in custody mounted. On June 11, the Supreme
People's Court and the Supreme People's Procuratorate issued a new
interpretation of cult provisions in the Criminal Law to make it easier
to punish practitioners on a wide variety of charges. The
interpretation made incitement to injure oneself a capital offense, and
it increased punishments for self-immolation, leaking State secrets,
subversion, separatist activities, small-scale ``assemblies,'' and
small-scale publishing and distribution. There were reports in mid-
August of forty-five followers tried and at least five sentenced to
terms of up to 13 years for offenses such as organizing the printing of
leaflets and banners and recruiting followers for protests. In December
2001, the Beijing police arrested 11 members of a ``criminal gang'' for
spreading Falun Gong propaganda. Ten members were administratively
sentenced to reeducation through labor; the eleventh is in custody.
Authorities also targeted other so-called cults, among them
Zhonggong, Xiang Gong, Guanyin Famin, Kuangmin Zhaimen, the Holy Spirit
Reconstruction Church, Mentuhui, Nanfang Jiaohui, and the Local Church
(also known as the Shouters), sentencing members and leaders, closing
their offices, and seizing their publications. On January 28, 2002, a
court in Fuqing, Fujian province, sentenced Lai Kwong-keung (Li
Guangqiang in Mandarin), a Hong Kong resident, to 2 years' imprisonment
for ``smuggling'' some 33,000 bibles to Local Church groups. The
smuggled version was not one approved by Chinese religious officials.
Yu Zhudi and Lin Xifu, from the mainland, received 3-year terms. After
U.S. protests, the original charge, ``using an evil cult to damage a
law-based society,'' was downgraded to running an ``illegal business
operation,'' but each man was fined the equivalent of U.S.$18,000. A
Local Church follower who organized songs and prayers in front of the
courthouse also was detained until the trial concluded. Two other Local
Church members from Anhui province have also been indicted on cult
charges for proselytizing. After news broke in December that a Hubei
province court had sentenced Gong Shengliang, leader of the Nanfang
Jiaohui, to death on charges of ``premeditated assault,'' rape,
hooliganism, and using an evil cult to damage society, sufficient
international pressure succeeded in reducing the charges to death with
a 2-year reprieve. Four other members also received death with
reprieve. Such sentences are generally commuted to life imprisonment.
It has been charged that several alleged rape victims were coerced into
giving false testimony. A total of sixty-three members of the church
have been charged. A court in Xiamen sentenced three mainland members
of the Taiwan-based Holy Spirit Reconstruction Church to 7-year prison
terms in January.
A few weeks before Christmas 2000, hundreds of ``illegal''
Protestant and Catholic churches and Buddhist and Taoist temples and
shrines in Wenzhou were demolished. In March and April, several dozen
house church leaders in Hubei province were detained; in May, 12 others
were administratively sentenced in Inner Mongolia and twenty-three
others released after they paid fines amounting to approximately
U.S.$25 each. The Chinese government also instituted a special study
group to bring Christianity ``into line with socialism'' through
reinterpretation of basic beliefs. As part of the movement, the study
group is looking into local church publications considered incompatible
with the new interpretations.
The continuing government-ordered merger of Catholic dioceses, a
move that went unrecognized by Rome, also signaled Beijing's
determination to run the church in accord with its own needs. As a
result of a student-teacher boycott of Chinese-controlled ordinations
in early 2000, fewer seminarians were enrolled in the Chinese Catholic
Theological and Philosophical seminary in Beijing. After political
education sessions, some seminarians were dismissed or ordered to
return to their dioceses. In October, after Pope John Paul expressed
regrets for Catholic Church errors committed during the ``colonial
period'' and expressed hope of normalized relations, Chinese religious
officials responded by demanding that the Vatican first sever its ties
with Taiwan, refrain from ``using the pretext of religious issues to
meddle in Chinese internal affairs,'' and apologize for last year's
canonization of ``foreign missionaries and their followers who
committed notorious crimes in China.'' Detentions in 2001 included
those of several elderly influential bishops and priests including
Bishop Pei of Inner Mongolia, Bishop Li Hongye of Henan province,
Father Feng Yunxiang in Fujian province, Father Liao Haiqing in Jiangxi
province, and Bishop Shi Enxiang, Father Li Jianbo, and Father Lu
Genjun from Hebei province.
Labor Rights
Reports of clashes between police and workers and farmers
protesting layoffs, unpaid wages and benefits, corruption, and
relocation problems continued throughout the year. Details as to the
course of the incidents and the outcomes differed markedly. In December
2000, there were conflicting accounts of whether workers from a
construction company in Heilongjiang were detained after some 2,000 of
them blocked a railway line. One report of a dispute at the Guiyang
Cotton Textile Factory in January 2001 said ten workers were
hospitalized with injuries; local officials said the protests ended
peacefully. In Changchun in September, either police or members of a
private security force reportedly beat some one hundred distillery
workers protesting the privatization of their company and lack of
adequate compensation. Local authorities denied the allegations. In
April police in Yuntang village, Jiangxi province arrested five
villagers who had been leading a 3-year protest against new taxes, then
stormed the village killing two unarmed protestors and injuring some
thirty-eight others. In October, in Qingdao, Shandong province, one
hundred police officers detained protestors demonstrating against the
city's failure to honor its commitment to provide appropriate housing
for residents forced to relocate to make way for a real estate project.
Labor activists continued to be targeted. Hu Mingjun, Deng
Yongliang, and Wang Shen were detained in May after helping steel
workers in Sichuan province organize a protest to demand back wages. In
one prominent case, Li Wangyang, imprisoned from 1989 to 2000 for his
1989 participation in the Shaoyang Workers Autonomous Federation, was
sentenced for subversion in September to a new 10-year term after
petitioning for compensation for mistreatment suffered in prison. Li's
sister, Li Wangling, received a 3-year administrative sentence on June
7 for publicizing her brother's case.
In October 2001, the Standing Committee of the National People's
Congress Workers passed a revised Trade Union Law requiring enterprises
with more than twenty-five workers to establish a union and prohibiting
management personnel from holding important union positions. But only
government-affiliated unions were mentioned in the law, and the right
to strike was not guaranteed. In November 2000, a month after workers
tried to form an independent union in a silk factory in Jiangsu
province, Chinese authorities committed Cao Maobing, the union
organizer, to a mental hospital. It took 210 days for him to be
released.
Tibet
China revised its overall Tibetan policy in June 2001, the fourth
such change since it took command of the region in 1950. Goals for
2001-2006 included accelerated economic development and tightened
control over alleged ``secessionist'' activities. A semantic shift from
``general stability'' to ``permanent rule and lasting peace'' (chang
zhi jiu an) at the June forum may also have signaled Beijing's
determination to strengthen direct control over Tibetan affairs. During
a July visit, Vice-President Hu Jintao stated that it was ``essential
to fight unequivocally against separatist activities by the Dalai
clique and anti-China forces in the world.''
Efforts to engage the Chinese leadership in a dialog with
representatives of the Dalai Lama were unsuccessful in 2001. Following
the Dalai Lama's criticism of Chinese policy during a speech to the
European Parliament general assembly on October 24, the Foreign Affairs
Committee of the National People's Congress reiterated the position
that talks could take place only if the Dalai Lama renounced his
``separatist stand,'' and openly acknowledged that Tibet was an
inalienable part of China, Taiwan merely a province, and ``the
government of the People's Republic of China the sole legitimate
government representing the whole of China.''
At the same time as Chinese officials refuted the Dalai Lama's
accusations of cultural and religious extinction, they continued to
suppress free expression, limit the growth of religious practice, and
ensure that worship was consistent with socialism and patriotism. In
February 2001, at the beginning of the Tibetan New Year, government
workers, cadres, and school children were banned from attending prayer
festivals at monasteries or from contributing to temples and
monasteries. During Monlam Chemo, once a festival of great religious
significance, monks at Lhasa's major monasteries were not permitted to
leave their respective complexes, and government authorities banned
certain rites. In June, in Lhasa, officials distributed circulars
entitled ``Strengthening Abolition of the Illegal Activities of
Trunglha Yarsol (the Dalai Lama's Birthday) and Protection of Social
Stability.'' Police in the region then detained hundreds of Tibetans
who burned incense, said prayers, or threw tsampa (roasted barley) into
the air in defiance of the order.
Larung Gar, a Tibetan monastic encampment near Serthar in Sichuan
province, had come under virtual siege by Chinese authorities by mid-
2001. Central authorities had ordered the expulsion of all but 400 nuns
and 1,000 monks out of an estimated population of 8,800 over concerns
about the institution's alleged impact on social stability, and
officials were determined to complete the downsizing quickly. As monks
and nuns were forced out, many with no place to go, their meditation
huts, most built at individual expense, were destroyed, as were shops,
restaurants, and other structures. All teaching was suspended at Larung
Gar, once a leading Buddhist studies center, and its leader, Khenpo
Jigme, was moved to Chengdu, Sichuan's capital.
Authorities continued to deny access to the Panchen Lama, the
second most important figure in Tibetan Buddhism. The latest request,
in October by Australia's deputy foreign minister, was denied on the
grounds that Gendun Choekyi Nyima's parents want his and their privacy
protected. The boy, now 12 years old, disappeared from public view in
1995 after Beijing chose another child as the reincarnation. Chadrel
Rinpoche, the senior lama who led the search, was still in prison. He
was last seen in mid-May 1995 shortly before he was sentenced to a 6-
year prison term.
In a further effort to ensure that the next generation of lamas
would be beholden to Chinese authorities rather than to the Dalai Lama,
in July, an 8-year old recognized as an incarnate lama by the
Seventeenth Karmapa was forced take off his monastic robes, forego
religious training, and attend a normal primary school. He is closely
guarded at all times. The Karmapa, recognized by both Chinese
authorities and the Dalai Lama, escaped to India in 2000.
The Strike Hard campaign in Tibet had a decidedly political focus.
At a May meeting in Lhasa, capital of the Tibet Autonomous Region
(TAR), courts were ordered to forcefully carry out the campaign against
``those whose crimes endanger State security,'' and ``those who guide
people illegally across borders,'' in other words, against those who
help Tibetans reach Nepal or Dharamsala, India, the Dalai Lama's home
in exile. During the first month of the campaign, 254 people were
caught trying to leave or reenter the TAR, many allegedly carrying
``reactionary propaganda materials.'' Many were severely beaten after
capture.
``Splittist'' activities accounted for numerous political arrests
and trials in 2001. In January, a Lhasa court sentenced Cengdan Gyaco
to an 8-year term for agitating separatism and spying for the Dalai
Lama. That same month, an officer patrolling Sera monastery caught
Jampel Gyatso listening to an audio tape of the Dalai Lama's teachings.
As of late January 2002, he was detained in the Gutsa Detention Center
in Lhasa. Two months later, a second Sera monk, Tendar, was detained
for involvement in political activities. In February, police arrested
Migmar and four friends caught watching a video of the Dalai Lama. The
friends were released after payment of 5,000 yuan (approximately
U.S.$600) apiece. A Lhasa court sentenced Migmar to a 6-year term in
May. In March, in Qinghai province, after police raided Tibetan
households to confiscate photographs of the Dalai Lama, three local men
took it upon themselves to collect and hide the villagers' photos.
Police who caught the men confiscated the pictures and levied fines of
5,000 yuan. In July, the Nagchu court tried six people, Sey Khedup,
Tenzin Choewang, Tenzin Lhagon, Yeshi Tenzin, Traku Yeshi, and Gyurmey,
for colluding with the Dalai clique and endangering State security.
Four of the six were monks. Terms ranged from 7 years to life
imprisonment.
Xinjiang
Even before September 18, when the Chinese government publicly
equated Uighur calls for autonomy or independence with global
terrorism, Beijing had instituted strict measures to crush
``separatism'' and ``religious extremism'' in Xinjiang. In April, at
the beginning of the nationwide Strike Hard campaign, Ablat Abdureshit,
chairman of the region, was explicit as to targets in Xinjiang:
``national splittists,'' ``violent terrorists,'' and ``religious
extremists.'' At the same time, the leadership reiterated its
determination to develop the region economically. Both campaigns were
entrusted to patriotic Party cadres working at the grassroots, kept in
check by a local law passed in May threatening punishment should they
sympathize with Uighur aims or refuse to give up their religious
beliefs. In April, China's defense minister emphasized the role of the
People's Liberation Army in stabilizing the region so as to ensure the
success of China's Western Development project. In June, Vice-President
Hu Jintao, reiterated the call to root out Islamic activists.
In June and again in January 2002 when their foreign ministers met,
the Shanghai Cooperation Organization (formerly the Shanghai Five),
composed of China, Russia and four republics in Central Asia,
reiterated its pledge of cooperation to combat ``terrorism, separatism
and extremists'' and to establish ``a regular anti-terrorist structure.
According to a Chinese official, the campaign would be aimed at alleged
terrorists groups in Xinjiang, Chechyna, and Uzbekistan.
Although there were credible reports of violence by Uighur
separatists in Xinjiang, strict Chinese controls on information coming
from the region often made it impossible to know whether particular
individuals had indeed committed criminal acts or whether they were
being punished for exercising their rights to free political
expression, association, or assembly. Typical charges included
``splittism,'' subverting State power, setting up an organization to
establish Islamic rule, stockpiling weapons, endangering social order,
and printing anti-government literature. There were also new reports of
torture, forced confessions, unfair trial procedures, and collective
punishment. In November 2000, Abdulelil Abdumejit died while serving a
sentence for the anti-Chinese riots in Yining in 1997. Supporters
claimed he died from beatings and torture; the State claimed he died
from his refusal to follow an appropriate medical regime.
The Strike Hard campaign exacerbated the rate of arrests and
sentencing. Within 3 months of the campaign's start in April, Xinjiang
police reported solving 8,000 cases, arresting 9,605 suspects,
destroying six separatists and terrorist organizations, and in
conjunction with the procuracy holding more than 100 sentencing rallies
involving 300,000 spectators to parade ``criminals'' and announce
sentences before a public expected to signify approval.
In April, police in Kashgar arrested twenty-five people for buying
ten guns, allegedly to further an independence movement; in Urumqi,
Abdulaimit Mehmet, convicted of murder and separatism, received a death
sentence; six Uighurs were executed in Korla on charges of separatism
and subverting State power; and Osman Yimit, a trader from Kucha,
received a 7-year sentence on charges of endangering the social order
and engaging in separatist activities for failing to register an aid
fund for poor families.
In June, Wusiman Yimiti and Maimaiti Reheman were executed for
``forming a criminal gang with the aim of splitting the country.''
Erkhin Talip was executed in September for crimes linked to separatism.
In October in Yining, five Uyghurs, including Abdulmejid and
Abdulahmad, received death sentences on charges of anti-state
terrorism; two others were sentenced to life imprisonment. And in
November at a combined Aksu and Uchturpan county mass rally, death
sentences and long prison terms were handed out to twenty-eight Uighurs
for separatist and terrorist activities. Abdehelil Zunun, who had
translated the Universal Declaration of Human Rights into Uighur, drew
a twenty-year sentence.
Efforts to bring religious practices under the aegis of the State
included the April formation of a China Islamic Affairs Steering
Committee under the administration of the Islamic Association of China.
The members, 16 senior China-based experts on Islam, interpreted
religious doctrines in accordance with Chinese law and Islamic
doctrine, drafted sermon pamphlets, and worked to bring Islam into
conformity with Chinese political ideology. An imam ``patriotic
reeducation'' campaign, begun in March, assigned some 8,000 religious
leaders to twenty-day sessions stressing patriotism, loving socialism,
upholding Party leadership, combating separatism, and the like. In a
number of cases, mosques were leveled, clerics arrested, and
``illegal'' books and audio cassettes confiscated. Before and during
the holy month of Ramadan, there was considerable pressure, including
threats of expulsion, against students who fasted or observed other
religious rules such as the use of head scarves or performance of daily
prayers. In December, nine Muslims were arrested for preaching
illegally more than 20 times in Bayingolin Mongol Prefecture and for
translating the Koran into local languages. In January 2002, it was
reported that Ibrahim received a 4-year prison term for running a
school where English, Arabic, and other languages were taught and for
talking about Uighur troubles. The school was forced to close around
the time of his arrest in May 2000. He was also part of a group which
advocated Islamic law.
In January 2001, Chinese officials took aim at Xinjiang's
publications market, calling for stricter policing and punishment of
those spreading religious fanaticism and ethnic ``splittism.'' Access
to Radio Free Asia's Uighur language programs is limited by severe
jamming.
In January 2002, pressure to follow the official ideological line
was explicitly extended to include artists, writers, performers, and
historians, among others, when Abulahat Abdurixit, the region's
chairman, made clear that ``all who openly advocate separatism using
the name of art'' would be purged. The announcement followed recitation
of a poem by a homeless man at the end of a concert at Xinjiang
People's Hall on January 1. That same month, Yili prefecture ordered a
campaign against folk customs such as wedding, funeral, and house-
moving rituals. Uighur cadres must have permission before attending
such events and must report back to their superiors. A Party official
said the aim of the order was to curb extravagance and eradicate
superstition.
In violation of its once-a-month prison visit policy, Rebiya
Kadeer, sentenced in March 2000 to an 8-year term for sending Xinjiang
newspapers to her husband in the U.S., was limited to one family visit
every 3 months. Glass separated her family members during the thirty-
to fifty-minute visits, at least one guard recorded everything that was
said, and topics for discussion were limited. Ms. Kadeer was required
to wear a black tag signaling that her crime was serious and her
behavior bad, in part because she was unable to complete her
assignments in the prison cardigan factory. However, she was denied the
glasses she needed to work efficiently. Ms. Kadeer's family was subject
to surveillance and harassment. A fourth son, Ablikim Reyim, was
released in February, some 6 months before his 2-year reeducation
through labor term expired.
______
Prepared Statement of James V. Feinerman
The Accession to the World Trade Organization of the People's Republic
of China (PRC) and Related Rule-of-Law Issues
february 7, 2002
Members of the Commission:
Thank you for holding these hearings and for providing an
opportunity to present my views and to share information gathered from
my study of Chinese law, visits to the People's Republic of China (PRC)
and ongoing work in the field of academic exchanges between the United
States and the PRC. Given China's population and size, strategic
position, and growing economic importance, it remains necessary to
focus upon a number of other significant considerations in formulating
United States policy toward the PRC. In addition to recent problems
relating to United States actions and responses to the international
behavior of the PRC, recurrent questions surround the development of a
law and the legal system in the PRC which remain difficult to answer.
This statement is an attempt to address at least a few of them in the
context of China's recent accession to the World Trade Organization
(WTO) and attendant legal concerns.
In considering the current situation with respect to the Rule of
Law in China at the time of PRC accession to the World Trade
Organization, there are three major points, further developed below,
that I would like to make today. First, there has been and continues to
be a considerable legalization of the PRC which began in the late
1970's. This process will go on whether or not the United States
participates in the future developments. Second, the PRC has already
experienced law reforms which have made important contributions to the
economy and polity of the PRC and continue apace partly, but not
solely, due to commitments the PRC has made with regard to WTO
accession. Third, despite this legalization and law reform now
extending for more than two decades, there is still unfortunately a
great deal that has not changed in China with respect to the Rule of
Law, civil rights and political liberties and the meaningful enjoyment
freedoms taken for granted in most developed nations.
Legal Development in China Since 1979--Background. When China
opened the door a crack to private entrepreneurship in the late 1970's,
individuals long under the thumb of China's Communist nomenklatura at
long last began to have some ability to control their own fates. Today,
China's dramatic economic growth is the result of the efforts of
millions of privately owned enterprises and reforming, semi-privatized
State and collective enterprises. The economic changes in China over
the past two decades have enabled a significant part of the Chinese
populace to achieve more than a modicum of economic liberty and
resulting personal freedom. They can throw off the shackles of their
state-assigned jobs, their controlling danweis (all-powerful work
``units'') and the petty martinets who previously ordered their lives.
This, in turn, opens the door to greater political liberty and even
activism. Indeed, the public display of anti-government sentiment in
Beijing and elsewhere in China in the spring of 1989 was largely
funded--and often initiated--by such individuals.
Similarly, the police-issued residence permit (hukou) no longer
serves as an indispensable passport to everything from food rations to
job placement, housing or employment. Market-oriented reforms have so
undermined the hukou system that the Chinese government is unable to
exercise the demographic, political and economic control it enjoyed
from 1949 until the late 1980's. In a dynamic economy, the leadership
has little choice but to allow a freer flow of workers to stoke China's
booming economy. This increase in labor market mobility comes at the
expense of social control, as migrant laborers swarm into China's
coastal cities and provincial centers. Evidence of the system's
breakdown was already visible over a decade ago, when scores of ``most-
wanted'' student activists and dissidents managed to slip through the
yawning gaps of the hukou net to escape from China in the aftermath of
the 1989 massacre. Former paramount leader Deng Xiaoping's 1992 trip to
the south of China and contemporaneous call for unleashing economic
growth proved merely the final nail in the coffin lid of a crumbling
system. An army of anywhere from 100 million to 200 million migrant
laborers now provides the lifeblood of China's economic boom.
The death of China's paramount leader, Deng Xiaoping, led to much
reflection about the many changes wrought in China during Mr. Deng's
leadership over almost two decades; however, curiously little attention
was paid to Deng's efforts to bring law to the lawless China he
inherited from Mao Zedong at the end of the so-called ``Great
Proletarian Cultural Revolution.'' Nevertheless, all of the economic
reforms and opening to the outside world for which Deng Xiaoping was
rightfully acclaimed would have been difficult--if not impossible--
without the simultaneous embrace of a rudimentary legal order that has
become increasingly embedded in Chinese society with each passing year.
At the same time, it remains necessary to exercise caution in assessing
post-Mao China's legalization; the extent and depth of law's
penetration of Chinese society today is both problematic and erratic.
Parallel to China's economic modernization without corresponding
political reform, there has been a considerable amount of lawmaking
activity since the late 1970's without the nationwide entrenchment of
fundamental concepts of civil liberties and restraints upon Party and
State leaders.
The reasons for these developments in the legal field are not
difficult to understand. The contradiction, to borrow now-discarded
Marxist terminology, arises from the desire to enjoy the benefits of
predictability and regularity provided by law to economic transactions
while at the same time eschewing the contentious pluralism in political
life that might arise from the protection of individual rights under a
more Western-style legal order. In the view of most of China's leaders,
including the late Mr. Deng, the striking economic growth of China over
most of the past two decades vindicates their predilection for economic
reform without political liberalization, particularly when contrasted
with the rather different path taken by their once fellow socialists in
the former Soviet Union. In the Chinese view, political liberalization
too far ahead of economic development seems to have produced the worst
of both worlds: deadlocked reforms leaving inefficient economies mired
in backwardness and explosive political resentment of the failed
promises of the new order to produce prosperity. Despite tight
political and legal controls, China's leaders feel that they can take
pride in having ``delivered the goods,'' with year-to-year double-digit
growth rates and visible symbols of economic success in the rapidly
changing skylines of major Chinese cities.
Yet the patchy legalization which has occurred in China since the
late 1970's, along with other sporadic political reforms, illustrates
both the inseparability of at least a modicum of political and legal
change from accompanying economic development along capitalist market
lines and the intractable difficulty of partial political reform which
creates popular expectations of more change, at a faster pace than most
cautiously reforming regimes--particularly one as hidebound as China's
Communist Party--are willing to provide. The particular areas
considered below demonstrate just a few of the partial successes and
remaining problems in China's long, slow march toward the rule of law.
Legalization in Action. A few areas where legalization has led to
significant social change will illustrate the new importance law has
assumed in Chinese society over the past two decades:
Enterprise Reform. Since the start of China's market-
oriented reforms, China's state-owned enterprises (SOEs) have faced
increasing difficulties and economic decline; by contrast, collectively
and privately owned enterprises have expanded rapidly. In the late
1990's, China had more than 2 million collectively owned enterprises,
employing over 30 million people. In the mid-1990's, there were already
25 million self-employed business units and 600,000 privately owned
enterprises; these enterprises employed 56 million people. Non-state-
owned enterprises produce over 50 percent of China's GDP, and the
output value of non-state-owned industrial enterprises now accounts for
the lion's share of gross industrial output value. All of this has
depended upon new legal rules for enterprise, company law, bankruptcy
reorganization and even constitutional reforms that guaranteed the
protections for private enterprise.
National and Local Leadership. Roles and responsibilities
for China's national and local politicians are changing radically. By
2010, the Chinese Communist Party (CCP) will be pre-occupied with
managing the state's (and the CCP's) relationship to an emergent
``civil society.'' This trend has several implications for the future:
national and local leadership will have to be both educated technocrats
and skilled political operatives; the CCP will have to adapt to new
roles in order to maintain its leadership; technocratic imperatives
will marginalize traditional CCP political leadership; and the CCP will
likely, as a result, become less politicized and more educated, at both
national and local levels, reflecting its membership. Much depends upon
the ability of the CCP to institutionalize its new roles and to
incorporate new members and leaders who depart from the traditional
mold, making use of new legislation to regularize these practices. For
example, fixed terms for senior and lower-level leaders are now being
observed, and retirement at increasingly younger upper age limits is
becoming common. Although indications are that the CCP will adapt and
maintain its control over the State and political institutions in
China, resisting attempts to pluralize Chinese politics and suppressing
dissident forces, its ability to influence all policies (especially in
the economic realm) will recede as its membership and leadership come
more to resemble the business, education and other technocratic elites
in Chinese society.
Corruption. Notwithstanding the considerable attention
paid to law reform in other areas, a separate and long running debate
has been underway in China for the past several years with respect to
the extensive and seemingly ineradicable problem of corruption. While
the Chinese economy enjoyed tremendous growth under Deng Xiaoping's
policies, embezzlement, bribery, extortion, favoritism, nepotism and
even smuggling have not only increased in extent and variety; moreover,
there is virtually no area of China free from these influences. Even
Chinese Communist Party leaders view corruption as a threat to social
and political stability. It weakens the legitimacy of the Chinese
state, the capacity of those in power to govern and the attempts to
create a more extensive rule of law in Chinese society. Partly to
address these concerns, the leadership has since 1989 initiated various
anti-corruption campaigns of limited duration and geographic scope. A
few cases have been widely publicized, particularly where economic
malfeasance has resulted in severe penalties, including the death
penalty.
Local protectionism. Local protectionism is another;
related difficulty with respect to the elimination not so much of
corruption but of distorting favoritism which skews markets and cuts
against economic efficiency. An unfortunate concomitant of China's
market economic reforms, local protectionism has resulted from the
obvious economic incentives created the reforms to favor local
enterprises and industries and to eliminate, by fair means or foul,
outside competition. Reportedly, in certain provinces this has even led
to attempts to impose illegal ``duties'' and other disadvantageous
charges on goods and services originating outside of that particular
province. The ability of local governments under the new economic order
to retain more of the revenue produced in that locality, along with a
diminished authority on the part of a central government which no
longer provides either central guidance or wealth-transferring
subsidies, has exacerbated these trends. The central government's
apparent powerlessness in the face of these developments only further
erodes local willingness to abide by central government directives,
including those ordering an end to local protectionism. The PRC's WTO
accession commitments to national treatment create a great dilemma in
this arena.
The Legal Profession. Once the decision was made, as part
of China's Four Modernizations program begun under Deng Xiaoping in
late 1978, to resuscitate the legal profession and to educate much
larger numbers of lawyers in Chinese universities, a remarkable growth
of this long-neglected sector took place. In 1980, when China
promulgated its Provisional Regulations on Lawyers, only a few thousand
lawyers could be identified in the entire PRC, many of them trained
either before 1949 or during the brief period of ``socialist legality''
along Soviet lines during the post-liberation honeymoon between China
and the Soviet Union before 1958. During the early 1980's, dozens of
new law faculties were added to the small handful which had previously
existed (and all of which were re-established and strengthened).
Changes in both the Chinese economic system and in the realities of
legal practice over a decade and a half required a total reworking of
China's laws regulating the legal profession, which finally occurred in
May, 1996 (effective January 1, 1997). The new Chinese ``Lawyers' Law''
introduced certain far-reaching and long-overdue reforms, reflecting
not only certain developments which had already taken place but also
describing a course of future reforms desired by many in the practicing
bar and at least grudgingly conceded by the senior leadership. The
liberalization permitted under this new legislation, including the
ability of lawyers to form firms as partnerships, responded more to the
needs of China's continuing economic modernization than to the calls of
lawyers for greater autonomy in their practice. Nevertheless, the law
recognizes that the former requires the latter; moreover, the expansion
and extension of China's economic reforms are now understood to depend
upon governing the country by law, particularly in its market economic
sectors.
NPC Reform. Under the leadership of Qiao Shi and its
current head, Li Peng, China's National People's Congress (NPC) has
begun to emerge from its longtime status as a ``rubber-stamp''
parliament. To be sure, it remains far from an independent, multiparty
legislative institution enjoying actual powers of parliamentary
supremacy described in great detail in the 1982 Chinese Constitution.
It is probably fair to say, however, that the new, higher status of the
NPC stems from a leadership determination to exercise ``rule by law''
rather than ``rule of law.'' In the formulation ``rule by law,'' law
exists not so much as a limit on State power (a feature of the ``rule
of law'' in the usual Western understanding) but rather serves as a
mechanism for the exercise of State power--which can still also be
exercised by other available means, such a Party discipline or
leadership fiat. Thus, a more powerful NPC does not necessarily
diminish the other organs of power in the PRC; in fact, their
predominance--particularly in the case of the Communist Party of
China--is very little challenged by enhancement of the NPC's strength.
A number of foreign scholars have begun to credit the NPC with greater
independence and initiative. Under Qiao Shi, who served as a Vice
Premier and head of China's security apparatus, new stress was given to
the NPC's role in both originating and passing legislation as well as
providing oversight of the nation's legal work in the judicial,
prosecutorial and administrative spheres, as well as in legislation.
During the past several legislative sessions under the leadership of Li
Peng, former Premier, there has been considerable controversy--as well
as a sizable number of negative votes--in connection with various
legislative initiatives; such open dissension would have been
unthinkable even a decade ago.
Law Reform Activities. Over the past 20 years, various
organizations in the United States have provided assistance and support
for law reform in the PRC. The programs they created, in conjunction
with a huge domestic law reform project undertaken by the Chinese
themselves and parallel programs supported by other foreign governments
and organizations, benefited the construction of new legal institutions
and the development of a legal infrastructure which are still being
perfected.
In the early phases, a few pioneers played a major role in working
with Chinese counterparts to get things off the ground. Among them were
the Ford Foundation, the United States Information Agency (as it was
then named), the Henry R. Luce Foundation and the National Endowment
for Democracy and its party grantees, particularly the International
Republican Institute. More recently, new entrants arrived on the scene
to continue and to expand the work, such as The Asia Foundation, the
Lawyers' Committee for Human Rights, the Freedom Forum, and even the
State Department. Two summits between Presidents Clinton and Jiang in
the late 1990's promised even greater United States assistance in the
following areas:
--Judicial and lawyer training--new avenues for law schools from both
countries to collaborate, legal cooperation between the
American Bar Association and Chinese counterparts, United
States Information Agency support for preparation and
translation of legal teaching materials;
--Legal protection of human rights--The US and China held a symposium
on this topic;
--Administrative law--A broad-ranging exchange involving decisionmakers
and academic experts on comparative administrative law was
planned;
--Legal aid for the poor--At least one symposium in Beijing has been
held to consider ways to expand programs already initiated by
the Chinese side;
--Commercial Law and Arbitration--Exchanges on securities law,
electronic commerce and judicial handling of commercial
disputes were planned, along with a program of cooperative
training for arbitrators. The Chinese government also promised
steps to ensure prompt enforcement of arbitral awards in local
Chinese courts.
In most cases, the promises of those heady days of ``constructive
engagement'' and ``strategic partnership'' went unfulfilled, in part
due to the fallout of the accidental bombing of China's Belgrade
embassy, the change in Presidential administrations and the downing of
the EP-3 in China last spring.
Committee on Legal Education Exchange with China (CLEEC). No
treatment of the law reform era in China over the last two decades, or
any consideration of future US-government supported activities in legal
assistance to China, should ignore the experience of CLEEC, created and
generously supported for a decade and a half by the Ford Foundation.
Over the past two decades, the volume of international legal
exchange between the People's Republic of China (PRC) and the United
States has grown remarkably. Much of the contact between Chinese and
American legal circles has occurred in the academy, and no organization
has been more instrumental in encouraging this development than the
Ford Foundation-sponsored CLEEC. For 15 years (1982-1997), CLEEC was
directly involved in the education of over 250 young Chinese legal
academics--in the PRC and in the U.S.--and in the promotion of many
other forms of scholarly exchange between lawyers, law professors and
government legal specialists. During that time, in no small part due to
CLEEC's efforts, the underdeveloped legal education profession in the
PRC grew tremendously, both in size and expertise; law faculties
expanded and became much more international in their outlook; and
academic research by Chinese specialists developed greater
sophistication.
From its inception, CLEEC endeavored in several ways to promote
both Sino-U.S. understanding, at least as it related to law, and the
development of Chinese university law faculties. First, CLEEC provided
training at U.S. law schools--including degree programs--for a wide
range of Chinese legal educators. Chinese participants were given
placements at the best American law schools, with supervision (for
visiting scholars) or instruction (for degree candidates) by eminent
faculty; such placements were arranged carefully to match the needs and
backgrounds of Chinese scholars to the schools best able to meet those
needs. In certain cases, these placements have resulted in longstanding
exchange relationships, often beyond CLEEC's auspices. American host
law schools generally shared part of the costs of the program.
Virtually all the other costs of this activity were supported by a
series of grants from the Ford Foundation, totaling over $4 million.
Among China's leading law faculties today, at least half a dozen are
headed by alumni of CLEEC.
Second, CLEEC, beginning in the mid-1980's, offered an in-country
short course in American law for candidates selected to visit American
law schools as well as other individuals. This program brought some of
the finest legal academics from the U.S. to China to teach law faculty,
students and government lawyers and officials the rudiments of the U.S.
legal system and, after 1990, specialized legal topics as well. The
U.S. law teachers served as unsalaried instructors in a challenging
three-to-four-week course that involved a great deal of contact beyond
lectures in the classroom and proved both stimulating and inspiring to
every cohort of Chinese students that has experienced the program. The
largest number of direct beneficiaries of CLEEC are alumni of this
program. This activity was generously funded by what was at the time
known as the United States Information Agency (USIA), now part of the
State Department.
A third major activity, organized by a subcommittee of CLEEC
comprising law librarians and supported largely by separate funding
from the Henry R. Luce Foundation, was involved in the provision of
legal information in print and electronic forms to the leading law
faculties of the PRC, the Institute of Law of the Chinese Academy of
Social Sciences and other institutions in China. Originally charged
with making ``stock'' law libraries of U.S. legal materials for Chinese
law faculties, this subcommittee kept abreast of technological
developments during the period of CLEEC's existence to move from print
materials--largely law school textbooks and treatises--toward more
modern media, including CD-ROMs, on-line legal data bases and the
Internet and World Wide Web. Although technological limitations on the
Chinese side during the period of CLEEC's operation limited the ability
of the subcommittee to do as much as it had hoped, important inroads
were made.
Finally, CLEEC and its individual members proved a valuable conduit
for other types of scholarly exchange in law between China and the U.S.
Aside from the direct funding of a handful of American researchers to
carry out projects in China, CLEEC also helped to arrange bilateral
conferences, to provide attendees for international meetings in China
and to offer information and other assistance to any person or
institution seeking to establish links with the legal academic
community in the PRC. Many of CLEEC's members were themselves leading
academic specialists and experts on China's modern legal system. At the
same time, no attempt was made to funnel Chinese participants to those
U.S. law schools which had Chinese law specialists; to the contrary,
every effort was made to place each Chinese student and scholar at the
American law faculty with the best resources for his or her individual
program. In the end, over 40 U.S. law schools hosted CLEEC visitors.
Today, it remains the case that no single school or group of
institutions can hope to satisfy, by itself, the multifarious needs of
China's evolving legal order or even its legal education system.
CLEEC's successes demonstrate that a broad-based program that harnesses
all the available talent in the United States is vastly to be
preferred. In the light of the far more generous support that has
recently been promised by the European Union, Canada and other foreign
governments and foundations, it is high time for the United States
officially to step up to the plate, make good on the promises of
several years' standing and build upon the broad and strong foundation
of earlier efforts.
WTO Accession. As part of its protocol of accession to the WTO,
China has made many commitments to reform its laws and legal system. At
the first level, these commitments mainly involve undertaking to pass
certain new legislation and to revise some existing legislation to make
China's foreign trade regime and related institutions compatible with
the requirements of the WTO. On a second, deeper level, the PRC has
also promised to adopt basic practices of WTO jurisprudence, such as
transparency in its regulatory regime and the creation of impartial
tribunals for the adjudication of trade-related disputes. Yet, at a
third, deepest level, the commitments that the PRC has made in joining
the WTO presage structural changes which promise to transform the most
basic features of Chinese law and legal culture. Indeed, the experience
of other former developing countries in the Asian region, such as South
Korea and Taiwan, is that the adoption of modern legal mechanisms and
their subsequent practice over a long term inevitably creates pressures
for reform across the board, including political liberalization in line
with economic modernization and development.
Among the reasons the PRC has been seeking membership in the WTO,
enjoyment of unconditional Most Favored Nation (MFN) status pursuant to
WTO rules is clearly the most significant. Under the WTO, trade among
member nations is subject only to minimal tariff restraints and
requires that all Contracting Parties treat each other ``equally.''
Once the PRC becomes a WTO member nation, China would be able to
eliminate its need for bilateral trade arrangements ; although these
provide benefits, including MFN, similar to those promised by the GATT,
such arrangements must be periodically renegotiated and may be
unilaterally terminated.
Membership in WTO would promise other benefits for the PRC's
international trade in addition to MFN. The WTO provides an important
forum for coordination of international economic policy and resolution
of trade disputes. Useful, detailed information about the economies of
member nations, as well as economic policies and activities, is
compiled by its Secretariat; such material will assist China's
formulation of its foreign economic and trade policy. Moreover, from
the perspective of China's leadership and economic reformers, the WTO's
requirements and market orientation are conducive to continuing reform
in China's domestic economy, including price reform, tariff reduction
and elimination of economically inefficient subsidies and other market
distortions.
Notwithstanding these commitments and the substantial benefits to
China of WTO accession, as the Report of the Working Party on the
Accession of China documents, there are a number of challenges in
effective implementation of China's WTO commitments. Some of these
relate to China's basic economic policies and the framework for making
and enforcing them; others relate to specific policy areas--trade in
goods, intellectual property, trade in services, etc. The report itself
runs to over 70 pages of dense prose, single-spaced in tiny type.
Although less than four of those pages are devoted to framework issues
related to economic policies, that brief section deals with such
important and intractable issues as the authority of sub-national
governments (often the source of local protectionism); the uniform
administration of the trade regime (threatened by both local variation
in enforcement and the lack of understanding of China's WTO commitments
at the lower levels of government in China); and judicial review of
administrative actions relating to WTO requirements as implemented in
Chinese law (which may be hampered by lack of infrastructure and
training, corruption and local protectionism).
A careful examination and historical overview of China's WTO
accession process would reveal the WTO's impact on China. Necessary
legislative and statutory changes in Chinese legislation are being made
pursuant to WTO accession. The need for compliance with WTO rules
imposes new constraints on Chinese policies and the uneconomic
operations of state-owned enterprises. The role of China in WTO
diplomacy, decisionmaking, and the dispute settlement system as a
result of the Chinese accession(e.g. role of civil society, amicus
curiae briefs, etc.) should also provide impetus for developments in
the legal realm. Despite consideration given to special WTO rules
designed for China and China's weight in the WTO diplomatic/decision
process, China will still have to interact with other WTO member
nations in this important international legal arena.
Processes and problems for China in implementing WTO rules include
questions about whether the PRC maintains the political will to
implement the WTO obligations and the challenges the PRC leadership
faces in maintaining Chinese commitments over time. At the same time,
there will be considerable economic impact of Chinese WTO membership on
world trade and vice versa, in particular the tensions resulting from
increased competition in Chinese main export markets, such as textiles,
microchips, etc.
The rise and development of procedural rules in the WTO is part of
a larger movement in the general WTO jurisprudence and structures. This
movement is sometimes criticized as a move toward excessive legalism in
the regulation of the global economy, an unfortunate move from
diplomacy to a rule-based trade regulatory framework, characterized as
a process of ``judicialization.'' Yet, efforts to develop procedural
review at the WTO level were taken mainly as a response to the concerns
over misuse and abuse of domestic legal systems for protectionist
purpose. The particular sensitivity of issues such as antidumping and
political legitimacy concerns about national legal systems provided
both an internal dynamic and discipline for the WTO dispute settlement.
China's accession will require that WTO panels dealing with challenges
to Chinese practices must demonstrate that often too rare combination
of willingness to enter into the arena of conflict on the one hand, and
the wisdom to know when to intervene on the other.
The Practical Implications for China. Procedural review and
transparency in WTO jurisprudence is a recent phenomenon in the area of
international regulation of world economy. Some have characterized the
WTO rules and adjudication as a code of international administrative
law; compared with earlier eras of ``international administration'' it
is intrusive to an unprecedented degree. Yet, at the same time, PRC
accession to the WTO offers some legal safeguards for China's rights
and legitimate interests. Moreover, China can take advantage of the
procedural review in Geneva, for example, to curb abuse of antidumping
actions by its trading partners.
Bureaucratic culture and legal procedures in China will have to
change, however, for the PRC to take full advantage of WTO accession.
While there have been considerable efforts to improve administrative
procedure in China in recent years, judicial supervision in China in
general tends to be weak, at least by common law standards. Chinese
authorities will probably face a much more searching review in Geneva
than in their domestic courts. Given the need to provide a domestic
forum in China before proceeding to WTO review in Geneva, it will take
time and effort for the individual officials in Chinese investigating
authorities to become familiar with WTO procedures, to improve their
own procedures, and to follow those procedures.
What Is To Be Done? The needs that China obviously has in so many
areas also present opportunities not only for United States assistance
but also, in the process of providing such support, to inculcate
American institutional preferences and legal cultural values. More to
the point, the assistance that is being offered (and generously
underwritten) by others insures that their institutions and values will
displace those which we might prefer if the United States does not
provide similar sorts of Rule of Law assistance in connection with WTO
accession.
Moreover, the challenge now facing the U.S. is to emphasize China's
obligations under all those international agreement it has signed (such
as the Convention against Torture, International Human Rights Covenants
and the Convention on the Elimination of All Forms of Discrimination
against Women). Furthermore, China's domestic laws--beginning with
China's 1982 Constitution--express in domestic Chinese legislation
those universal values which are elsewhere enshrined in both in
international treaties and other nation's domestic laws. We need to
increase the level and frequency--at the same time lowering the
volume--of dialog with China, bilaterally and multilaterally, over a
range of legal issues, not only WTO-related but extending to civil and
political rights. Expanding current exchange relationships focused on
economic law can provide both an avenue for such dialog and a base on
which to build relationships with sympathetic audiences in China.
The evolution of democracy in China will be a long, painful
process. It depends primarily on economic growth, including greatly
increased domestic investments in infrastructure, education and science
and technology. The rise of a middle class in China--as in Hong Kong,
Singapore, Taiwan and South Korea previously--along with exposure to
the outside world and moral support from the West will inevitably press
for a more open political system.
Most significantly, China's dissidents--within China and abroad--
are virtually unanimous in their support of China's accession to the
WTO. They understand the crucial linkages between China's enjoyment of
MFN status, along with access to U.S. export markets, and the increase
in personal liberty that results from concomitant economic growth. With
virtually one voice, these individuals--many of whom have suffered
grievously at the hands of the Chinese State and the Communist Party--
urge a more nuanced policy, building on existing relationships,
promising true ``comprehensive engagement.''
The economic and trade relationship between the U.S. and China
reaches many more lives on both sides of the Pacific than does any
other aspect of our bilateral relationship. Yet I would be remiss in
representing my organization and my own experiences as a scholar
researching Chinese law and the former director of a national U.S.-
China educational exchange organization if I did not also describe for
you the remarkable opening of China to educational exchange and the
greatly increased access for foreign researchers. More than two
decades' hard work on the U.S. side has, particularly in the last
several years, yielded new opportunities for study and research in
China. For Chinese host institutions, the prospect of economic gain--
and the promise that those gains can be enjoyed and controlled by the
people most responsible for their realization--has resulted in a
previously unimaginable opening. While there are still some problems to
be resolved, especially in the light of recent arrests and show trials
of Chinese-American scholars and researchers on trumped-up charges,
remarkable progress since 1990 has led to unprecedented access to
libraries, laboratories, archives and educational institutions.
Yet, despite these gains, the State Department and other Federal
Government agencies now provide less than half the support for
bilateral exchanges between the U.S. and China that they gave in 1988!
Shockingly, we devote 1/40 of the amount targeted in the U.S. Federal
budget for such aid to Central and Eastern Europe and the former Soviet
Union to academic and cultural exchange with China. Given the at least
equal strategic importance of China and its vastly larger population,
such parsimony is inexplicably short-sighted.
Conclusion. The future development of the rule of law in the PRC is
likely to prove as checkered as has the process of the past almost two
decades. Since the late 1970's, China has made enormous strides in
passing laws, rebuilding shattered institutions such as the bench, bar
and legal education, and in using law and legal mechanisms to lend some
greater predictability to the overall conduct of Chinese society and--
in particular--the economy. Nonetheless, significant gaps remain with
respect to enforcement of enacted laws, serious attacks on official
corruption and elimination (or at least the gradual reduction) of the
number of highly placed individuals who remain outside of the reach of
the law, usually due to their status at Communist Party leaders.
Although it is certainly no longer fair nor accurate to describe the
PRC as a Nation without law, it would also be difficult to characterize
it as a Nation where the rule of law enjoys quite the same prominence
as it does in most developed Western nations or even Japan. As the
Chinese like to say in describing their hybrid market economy, which
possesses certain elements of the free market along with some remnants
of the Communist planned economy, China's legal system is an attempt to
create a more modern rule of law while still retaining ``Chinese
socialist characteristics.'' This situation is likely to persist for
the foreseeable future. WTO accession provides a unique opportunity,
however, to hasten the pace of incremental change at a time when the
very structure of China's participation in the international economy is
being perhaps permanently transformed. With our eyes fully open, we
should seize the opportunities such historic changes may provide.
______
Prepared Statement of William P. Alford
february 7, 2002
To the Chairmen and Members of the Commission:
I am honored to have been invited to testify at this, the first
public hearing of the Congressional-Executive Commission on the
People's Republic of China, given your charge to monitor compliance
with human rights and the development of the rule of law in the PRC at
this critical time in our bilateral relationship.
My fields of specialization are Chinese law and legal history,
international trade (including the World Trade Organization), and the
legal profession. I have been involved with legal development in the
PRC from the early 1980's onward when, together with Professors Randle
Edwards of Columbia University and Dr. Stanley Lubman, among others, I
established the first regular program of instruction in American law in
the PRC and the first sustained program bringing Chinese legal
professionals to this country for advanced training. In addition, I
have taught in China; provided advice to our government, non-
governmental organizations, foundations, and others about Chinese
affairs; and had extensive occasion to observe Chinese legal
development.
In this statement I first offer a brief overview of my
understanding of Chinese legal development--which I see as necessary
for the realization in China of internationally recognized standards of
human rights, but not a substitute for that vital end. I then turn my
attention to American and other foreign efforts to assist legal
development before concluding by suggesting directions in which
attention might be focused. As time and space are short, this statement
is perforce a summary for which elaboration may be found in the
materials cited in my endnotes.
THE CHINESE LEGAL SYSTEM
To assess the Chinese legal system today, we need to appreciate
just how far legal development has come and how far it has yet to go
before it meets any widely accepted definition of the rule of law.
Over the past quarter century, the PRC has been engaged in the most
concerted program of legal construction in world history.\1\ At the end
of the Cultural Revolution (1966-1976), the PRC's modest legal
infrastructure lay in near ruin--with but a skeletal body of
legislation, a thinly staffed judicial system, and a populace having
scant awareness of law. Today, the PRC has an extensive body of
national and sub-national legislation and other legal enactment,
concentrated on, but not limited to, economic matters, and has joined
major international agreements covering trade, the environment, human
rights, intellectual property and a host of other issues. Moreover, as
Dr. Lubman and Professor James Feinerman of Georgetown elaborate in
their statements for this hearing, in acceding to the WTO, the PRC has
agreed to bring both its pertinent substantive laws and their
administration into compliance with international norms. The Chinese
judicial system now has a nation-wide presence, with specialized
chambers to address criminal, civil, economic, administrative and, in
some instances, intellectual property law questions. Whereas a
generation ago, China had fewer than 3,000 lawyers and approximately a
dozen law schools, today there are over 125,000 lawyers and hundreds of
law schools, with law a very popular subject for university study and
well over 150,000 candidates yearly taking the bar exam. Chinese
citizens now avail themselves of the formal legal system in an
unprecedented manner, with, for example, some 5.5 million new
litigations annually, and widespread public interest in at least some
legal issues, as was demonstrated, for instance, by the extensive and
vigorous national debate surrounding proposals that led in 2001 to the
revision of the marriage law.\2\
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\1\ The most comprehensive overview of this phenomenon in English
is Stanley B. Lubman, Bird in a Cage: Legal Reform in China After Mao
(Stanford University Press, 1999). My own views are elaborated in,
inter alia, William P. Alford, ``A Second Great Wall? China's Post-
Cultural Revolution Project of Legal Construction,'' Cultural Dynamics,
vol. 11, p. 193 (1999).
\2\ These debates included considerable and heated discussion about
appropriate roles about the interplay between the interests of the
State and individual autonomy. I discuss these debates in a forthcoming
paper entitled ``Have You Eaten? Have You Divorced? Debating the
Meaning of Freedom in Marriage in China.''
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These and other accomplishments need to be taken seriously, but so
do the many respects in which the legal system continues to fall well
short of meeting any widely accepted definition of the rule of law. As
the United States Department of State's latest annual country report
shows in detail, the legal system has yet to prove itself adequate to
protect the rights of all Chinese citizens.\3\ Accounts, for example,
of arbitrary arrests, torture and mistreatment while in official
custody, and denial of the basic procedural protections that Chinese
law is intended to provide abound--as has to a degree been acknowledged
by senior PRC legal personnel.\4\ The re-education through labor
system, whereby the police may sentence detainees for periods of up to
3 years in labor camps, continues--notwithstanding the objections of
some PRC legal scholars and the international human rights community,
including Dr. Mary Robinson, the United Nations Commissioner for Human
Rights.\5\ And it is no secret that there are serious problems when it
comes to efforts by citizens to avail themselves of such basic
internationally recognized freedoms as those of association, assembly,
and religious expression.
---------------------------------------------------------------------------
\3\ The United States Department of State, Country Reports on Human
Rights Practices--2000, China (February 23, 2001).
\4\ See, ``China: Procurator General Calls for Crackdown on
Exploiters of Position,'' Xinhua [New China] News Agency, available in
English via BBC Monitoring Asia Pacific--Political, December 27, 2000.
\5\ See, for example, Chen Guangzhong & Zhang Jianwei, ``The United
Nations International Covenant on Civil and Political Rights and
China's Criminal Process,'' China Jurisprudence, No. 86, p. 98
(December 1998).
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Turning our attention inward, the legal system itself is in need of
substantial improvement. Efforts have been made, with foreign
assistance playing a part, to nurture professionalism through
intensified training, the promulgation of higher standards for legal
personnel, and attempts to root out official mal and misfeasance, but
much more remains to be done. The judiciary clearly does not enjoy the
degree of independence from political authority that we associate with
the rule of law. Judges typically are chosen from among Party members
at the same time that actions of the Party itself are not reviewable in
a court of law.\6\ Corruption plagues the legal system as it does
Chinese society more generally--indeed, this is so pervasive a problem
that one influential PRC economist, Professor Hu Angang of Qinghua
University, estimates that it may have consumed as much as 15 percent
of GDP in recent years.\7\ The educational level of legal personnel
remains far lower than it should be, with some observers estimating
that even today only roughly one out of every ten judges has a 4-year
university degree in law.\8\ The legislative and rulemaking processes
are expanding to hear from a broader spectrum of interests, \9\ but
they remain heavily top-down, typically lacking regular opportunities
for in-put by ordinary citizens. And enforcement of the law can be
problematic, as demonstrated last autumn when the Supreme People's
Court temporarily put a hold on lower level courts accepting
shareholder suits for damages \10\ and as is manifested by what Chinese
authorities themselves describe as ``local protectionism,'' meaning
undue favoritism shown by the courts at local levels to the ``home
team.''
---------------------------------------------------------------------------
\6\ Professor Jerome Cohen of New York University Law School
estimates that ``over 90 percent of the country's approximately 180,000
judges are Party members.'' Opening Statement of Jerome A. Cohen before
the first public hearing of the U.S.-China Security Review Commission,
Washington, D.C. (June 14, 2001).
\7\ Hu Angang, Zhongguo: Tiaozhan Fubai [China: Fighting Against
Corruption] (Zhejiang People's Publishing House, 2001).
\8\ Statement of Donald C. Clarke Before the U.S.-China Security
Review Commission, Washington, D.C. (January 17, 2002).
\9\ The opening up of legislative drafting to a broader range of
interests is discussed in William P. Alford and Benjamin L. Liebman,
``Clean Air, Clear Processes? The Struggle over Air Pollution Law in
the People's Republic of China,'' Hastings Law Journal, vol. 52, p. 703
(2001).
\10\ See Supreme People's Court, ``Guanyu she Zhengquan Minshi
Peichang Anjian zan bu Shouli de Tongzhi'' [Notice on Temporarily Not
Accepting Securities Cases Involving Civil Actions for Compensation],
September 21, 2001. This and other issues of law enforcement in the PRC
are treated in the Statement of Professor Clarke of the University of
Washington, supra note 8.
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THE ROLE OF FOREIGN LEGAL ASSISTANCE
The past two decades have witnessed a range of efforts from
throughout the democratic world to assist Chinese legal development,
although it remains modest in view of the enormity of the challenge
(particularly if we wish to engage ordinary citizens as well as
governing elites). In the case of the United States, the bulk of
assistance for legal development until the late 1990's came from
foundations, universities, non-governmental organizations, business,
the bar, and private citizens, although our government did play a part
through programs such as the Fulbright and the Committee on Scholarly
Communication.\11\ Over the past 5 years, the US government has begun
to take more of a role in legal development, first through the Clinton
administration's rule of law initiative and more recently through both
the Bush administration's choice of a lawyer with expertise on China as
Ambassador to Beijing and through the administration's recent request
for and Congress's allocation of funds for Chinese legal development.
Outside of the United States, support for Chinese legal development has
tended to come more substantially from governmental sources rather than
civil society, as evidenced by official developmental assistance
provided by the governments of the United Kingdom, Germany, Canada, and
the Scandinavian countries, among others.\12\ Additionally,
multilateral organizations such as the World Bank, the Asian
Development Bank and the United Nations Development Programme have also
provided support.
---------------------------------------------------------------------------
\11\ See, for example, the writing of Professor Jacque deLisle of
the University of Pennsylvania. Jacques deLisle, ``Lex Americana?:
United States Legal Assistance, American Legal Models, and Legal Change
in the Post-Communist World and Beyond,'' University of Pennsylvania
Journal of International Economic Law, vol. 20, p. 179 (1999). See also
Allen Choate, ``Legal Aid in China,'' (The Asia Foundation, 2000) and
Aubrey McCutcheon, ``Contributing to Legal Reform in China,'' in Many
Roads to Justice: The Law Related Work of Ford Foundation Grantees
Around the World (Ford Foundation, 2000).
\12\ A recent appropriation of more than 5 million pounds for a
single project intended to beef up the Chinese legal profession is
described at Frances Gibb, ``Lord Woolf Goes to China,'' The Times of
London, July 24, 2001.
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As might be expected given their varied genesis, American programs
have not been uniform in their approach and objectives. Some have
accentuated linkages with the Supreme People's Court (which oversees
the judiciary administratively) that have resulted in new training
opportunities for Chinese judges. Others have counseled Chinese
legislative drafters and writers of regulations (typically on an
informal basis) and helped them establish data banks of Chinese and
other laws. Yet others have focused on assisting Chinese law schools by
providing otherwise unavailable materials about American and
international law, enabling future leaders of Chinese law to study in
this country, and arranging for a range of Americans to lecture on law
(including constitutional law and human rights) in China. And still
others have concentrated on civil society, offering guidance about
legal aid, training advocates for the disadvantaged, and supporting
centers concerned with matters such as women's rights and environmental
justice. Although also diverse, non-US origin programs have tended to
provide more support to official actors and, especially in the case of
multilateral organizations, to concentrate on issues pertaining to
economic law.
Given that there is no way scientifically to isolate the variable
of foreign assistance from all the other factors influencing Chinese
legal development, any assessment of it must in some measure be
subjective. My own sense is that in general such assistance is of
value. It is, for example, enabling relatively open-minded Chinese in
and beyond legal circles to deepen their understanding of legal
institutions in democratic societies and so to have a broader array of
choices from which to think about change in their own society. It is
acquainting their less open-minded colleagues with just how out of step
China is with the norms of nations they may wish to emulate
economically (if not politically). And it is providing financial, moral
and even political support for China's emerging civil society
(including entities that might otherwise have a hard time surviving).
In taking account of such accomplishments, it is important,
however, not to overstate what we can expect from such assistance in
the absence of meaningful political reform in China. Moreover, candor
requires that we acknowledge problems that have cropped up with respect
to such programs. Most notably, these include attempts by Chinese
authorities at times to legitimate repressive activity by cloaking it
in a veil of legality, and the wastage of funds used to support ill-
conceived or ill-managed programs.
DIRECTIONS
I strongly believe that we in the United States should increase our
involvement in legal development in the PRC. In saying this, I
appreciate that there are serious limits to what any kind of foreign
legal assistance can accomplish and that there is a need to be
staunchly vigilant against the possibility of such assistance being
misused. Nonetheless, such involvement is worthwhile for many reasons.
It has been and can be used to help some who suffer unfairly today, as
borne out by the work done via the center for women's rights at Beijing
University or the center for environmental justice at the China
University of Politics and Law. It can buttress Chinese who are serious
about building a better legal foundation for securing fundamental human
rights, such as those bold individuals who have criticized the Party's
role in the judiciary or others who have sought for years to have the
law of criminal procedure redrafted so as to afford substantially
greater protection to defendants. And it can aid in implanting ideas
that may over time bear fruit, for whatever the nature and pace of
political change in China, the Chinese people will need to draw far
more than they now do on law and legal institutions if they are to
achieve a more just and freer society.
As we think about further involvement in Chinese legal development,
I would urge that we be mindful of the following:
1. Legal development is necessary for the realization of
internationally recognized standards of human rights in China, but it
is not a substitute for that vital end. Some here and in China may find
it tempting to accentuate the former rather than the latter on the
grounds that it less likely to come across as confrontational. That
would be a mistake. As I demonstrate in my scholarly work, the two are
so interwoven that an insufficient commitment to fundamental rights
risks undermining the integrity of legal development more
generally.\13\ Indeed, the analogous point might be made about the ways
in which economic, legal and political development are related. China's
engagement with the world economy clearly has fostered overall
prosperity and a greater appetite for economic and other freedoms, but
it also is yielding enormous inequality and unleashing widespread
social problems that without better legal and political institutions
through which ordinary citizens can express legitimate grievances pose
serious challenges to social stability and to that very prosperity.
---------------------------------------------------------------------------
\13\ William P. Alford, To Steal a Book is an Elegant Offense:
Intellectual Property Law in Chinese Civilization (Stanford University
Press, 1995).
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2. As we seek to promote legal development, we need to hold true to
our ideals, but not necessarily the particular forms through which we
may seek to realize those ideals at any given moment in our own nation.
All too often well-intentioned Americans present what we do today (or
what we like to think we do) as the only alternative to China's current
circumstances. I think that we make a stronger case for legality and
pluralism, and better empower change in China when we are help the
Chinese to appreciate the different choices that different free
societies make in their efforts to attain the ideals of rule of law and
of democracy that all such societies share. We need, for instance, to
be mindful that approaches we may advocate in our country, given our
ready access to lawyers, may not accomplish the same ends given the
relative inaccessibility of China's rural populace to professional
legal assistance and given the greater role that administrative
solutions are likely to play there for some time to come. In this vein,
I might also add that candor about our own shortcomings, as well as
pride in our accomplishments, is helpful in countering the objections
of Chinese authorities that we are too ready to take their Nation to
task. The Enron debacle, for instance, has not gone unnoticed in China
and, in fact, has become an issue in debates between the China
Securities Regulatory Commission and the Ministry of Finance over the
former's efforts to require use of foreign accounting firms.\14\
---------------------------------------------------------------------------
\14\ Richard McGregor, ``Creative Chinese Accounting Works for
Andersen: Scandals Involving Local Firms are Boosting the Big Five,''
Financial Times, January 28, 2002.
---------------------------------------------------------------------------
3. We need to think further about both the targets for and sources
of our legal assistance. With regard to targets, it not realistic to
think that we can advance the rule of law in China without engaging
those who oversee and operate the legal system even as we stress the
importance of legal institutions attaining far greater independence.
Thoughtful and honest foreign assistance can be of value to Chinese
legal personnel searching for ways in which to address the endemic
problems discussed above. At the same time, however, it is absolutely
essential that those providing foreign legal assistance break out of
what has been an excessively top-down focus on a small number of
Beijing-based entities and endeavor to reach out far more than it has
to China's emerging civil society--so that our actions match our words
about law being an instrument for citizen empowerment. With regard to
sources, the fact that most American involvement has been a product of
our civil society has, in my view, been a strength--making possible a
genuine diversity of approaches and demonstrating that in our country
universities and the bar are not agents of the government. Nonetheless,
given the importance of this undertaking and the difficulty of securing
greater private support, substantially greater Federal support would be
very helpful.
4. Finally, we need to appreciate just how massive an undertaking
this is--for China will not attain a rule of law without a further
change in the way in which Chinese citizens think of themselves and
their relationship to authority. To note this is not to subscribe to
cultural determinism--I think that ideas of justice and fairness ring
as true to Chinese as to Americans. Instead, it is to urge that we
understand that this is not an area amenable to quick fixes and to
commit ourselves to work that will prove difficult and in which the
ultimate shape of success and the credit for it will principally reside
with the people of China.
I thank you for inviting me to offer this statement and stand ready
to answer any questions you may have regarding it.
______
Opening Statement of Hon. Max Baucus, Chairman, Congressional-Executive
Commission on China
february 7, 2002
I am pleased to call to order this first hearing of the
Congressional-Executive Commission on China, and to be joined by my
distinguished Co-Chair, Congressman Doug Bereuter, and other Commission
members from the Congress and the executive branch.
This Commission represents a unique endeavor, and a unique
challenge, in bringing the resources of the Congress and the
Administration together to help improve human rights and the rule of
law in China.
I want to start by recognizing and thanking my Co-Chair,
Congressman Bereuter, and my good friend Congressman Sandy Levin, for
their work during the PNTR debate in creating this Commission as a way
for Congress to maintain a strong and continuing interest in human
rights and the rule of law in China. Myriad circumstances delayed the
start of the Commission, but today we begin a vigorous set of
activities.
Let me start by explaining the role this Commission will play in
US/China relations.
First, we in the United States cannot impose our will on China and
its 1.3 billion citizens. The decisions about what happens inside China
can only be made by the Chinese people.
Second, China is an emerging regional and international power, and
our national interest requires intensive engagement. We must look at
China--not through rose-colored glasses, and not through dark glasses
that see only evil and danger--but through the lens of reality. China
represents a significant challenge to the United States in many areas,
and it represents a significant opportunity in many other areas. We
need to look at the facts, analyze them objectively and
dispassionately, and then act in ways that support our national
interest.
Third, there are significant human rights abuses in China. In some
areas, the situation is worse today than in the past. In other areas,
there have been improvements. We will recognize the latter, and be
critical of the former.
Fourth, in no country can there be sustained protection of human
rights without the rule of law. Members of Congress, including many on
this Commission, as well as every recent Administration, have been
active in securing the release, or reduction of sentences, for
individual prisoners of conscience in China. I expect that to continue,
as it should. However, this Commission will look at human rights within
the context of the rule of law in China. As a Commission, we may
address individual cases, but only when there is likely to be a broader
systemic and structural impact in China.
The witnesses appearing today reflect that orientation. Human
Rights Watch and Human Rights in China have done excellent work looking
at the legal and political context in China within which human rights
can be protected. And Professors Feinerman and Alford have focused much
of their work on the rule of law and legal reform in China.
The US-China relationship today is different than a year ago.
Following the resolution of the downing of our reconnaissance plane on
Hainan Island in April, and the horrible events of September 11, there
has been a change in the bilateral relationship. Beijing is cooperating
with us on the war against terrorism. China's rhetoric over Taiwan has
ameliorated somewhat. China has joined the WTO. But serious problems
remain between us in a number of areas--arms proliferation, human
rights, and significant differences over Taiwan.
This Commission will concentrate on the human rights aspects of our
relationship, with a focus on the rule of law in China. We will look
closely at areas such as religious freedom, political prisoners, Tibet
and minority areas, labor rights, and the flow of information in China.
We will examine the developing role of NGO's in China. We will look
especially at developments in the rule of law, including legal reform
in the civil, criminal, and commercial areas, and the way in which
these laws are, or are not, being implemented. We will look at how the
United States--and that means our government, the business community,
and the NGO sector--can pursue policies and programs that will increase
the respect for law in China, and strengthen those in China who are
working to increase the transparency and objectivity of the legal
system.
China is not a monolith. There are many inside the Chinese
government, the Communist Party, and State-Owned Enterprises who are
working desperately to maintain the status quo. But there are also many
in China who want to see genuine reform, both economic and political
reform. They recognize that for China to become a great Nation and
fully join the international community, China will have to follow
international standards in the human rights area, meet the obligations
the government has made in international covenants covering political,
economic, social, cultural, and civil rights, and honor those
provisions in the Chinese constitution and in Chinese law that claim to
protect the individual from abuse by the state.
As I said earlier, decisions about what happens inside China can,
ultimately, only be made by the Chinese themselves. The question for
this Commission, and for the Congress and the Administration, is: How
can we best assist those who seek reform? Incorporating China into the
WTO is, surely, one way to begin down the road of significant
commercial law reform.
We will not shrink from pointing out the ways in which the Chinese
system is falling short of meeting those standards. But, the major
challenge for this Commission is: How can we contribute to an
improvement in the human rights of Chinese citizens? And how can we
influence the structural change necessary to improve how those citizens
are treated?
In our hearings, we want to hear from groups and individuals who
can add to our knowledge and understanding of the reality inside China.
But we also want to hear from them about the ways that this Commission,
with its Congressional and executive branch membership, can help
promote and support positive, constructive, and lasting change in
China.
Let me address some remarks to the Chinese government. When the
House of Representatives approved the PNTR legislation in May of 2000,
the Chinese government said that it was a wise decision. But their
spokesperson went on to say, ``The Chinese side is seriously concerned
and dissatisfied that the bill contains provisions that attempt to
interfere in China's internal affairs in various names like human
rights and harm the interests of China. The Chinese side has . . .
announced in explicit terms that it firmly opposes and cannot accept
these provisions.'' I have two comments about that statement.
First, this Commission is an instrument of the United States
government and will vigorously pursue the issues of human rights and
the rule of law in China. We do not seek to impose American standards
on China. But, there are numerous international covenants relating to
human rights that China has entered. The Chinese Constitution and
Chinese laws include many written guarantees for the citizens of China.
For China to be a full and responsible member of the international
community, and that includes the global trading system, the rule of law
must be honored. This is an issue of concern and interest to all
nations interacting with China.
We will work with China when we can. We will acknowledge progress.
We will criticize when there is no progress. I firmly believe that
there are many in China--government officials, business people, and
ordinary citizens--who agree with this approach.
Second, I urge the Chinese authorities to work with this
Commission. I spent a decade fighting against putting conditions on our
trading relationship with China. Along with others on this Commission,
I fought hard for PNTR because I believe that engagement and deepening
the relations between our two nations is the best way to induce change
in China and bring them fully into the community of nations. It is in
China's long-term interest to work closely with us.
Let me conclude with a few comments about the Administration's
human rights policy. In his meeting with Chinese President Jiang Zemin
in Shanghai in October, President Bush discussed the importance of
religious freedom and made a strong statement that the war on terrorism
should not be used to justify a crackdown on minority groups in China.
Under the leadership of Assistant Secretary of State Lorne Craner, a
member of this Commission, the United States has re-engaged China in a
bilateral human rights dialog. President Bush will visit Beijing
February 21 to 22 and meet again with senior Chinese leaders. I urge
him to ensure that human rights and rule of law issues are among his
top priorities in those discussions.
Let me turn to my Co-Chairman, Congressman Bereuter, for his
statement as we initiate the work of the Congressional-Executive
Commission on China. I invite the other members of the Commission to
submit their opening statement for the record. After Congressman
Bereuter's remarks, we will turn right to our panel of experts.
______
Opening Statement of Hon. Doug Bereuter, Co-Chairman, Congressional-
Executive Commission on China
february 7, 2002
Chairman Baucus, Senator Hagel, Congressman Levin, Under Secretary
Aldonas, fellow Commissioners, distinguished panelists, ladies and
gentlemen:
I consider it a privilege to join Senator Baucus in convening this
first formal hearing of the Congressional-Executive Commission on the
People's Republic of China. I am particularly pleased to recognize the
presence of my colleague and fellow Commissioner, the distinguished
gentleman from Michigan, Sandy Levin, who deserves great credit for
being the leading intellectual godfather of this Commission and who has
worked tirelessly with me and others to see it come into being. I look
forward to our continued association in guiding the work of the
Commission over the coming years.
As Senator Baucus has noted, this Commission was created by the
China Relations Act of 2000 to create a forum for continuing
congressional involvement in monitoring China's human rights practices
and the development of the rule of law there. The Commission's mandate
reflects continuing concerns, in both Houses of Congress and among
Members of both political parties, not only about individual instances
of human rights abuses in China but also about the need for encouraging
systemic changes in China to end such practices. Undoubtedly all on the
Commission share the goal of encouraging positive changes in Chinese
Government policy and practice that will help those who have been
punished unjustly for seeking to exercise basic human rights, prevent
future abuses, or bring China's human rights practices into conformity
with international standards. There are differences in the
international community, and undoubtedly in Congress, as to the best
methods for achieving this goal, but I believe there is broad consensus
in Congress and America on the importance of the goal itself.
In this context, I think that the Commission should concentrate
primarily on systemic changes to China's human rights practices and
legal regime, and not attempt to duplicate the important advocacy work
on individual cases already being done by individual Members of
Congress, human rights NGO's, and concerned members of the public. Of
course, the registry of victims of human rights abuses that our mandate
requires will provide an important resource for such advocacy, so the
Commission will have a crucial role in this work.
In my view, the human rights and rule of law parts of this
Commission's mandate are intimately related. Virtually everyone in
China, the United States, and elsewhere, who is concerned with human
rights practices in China believes that progress in legal reform will
necessarily result in greater compliance with the basic human rights
enshrined in such international covenants as the Universal Declaration
of Human Rights. Many also believe that such reforms will improve not
only government transparency, but also the development of the essential
institutions of democratic governance. The development of an open,
transparent, and predictable legal system throughout China should also
be beneficial over time in other ways, such as providing ordinary
Chinese citizens with the legal means to check the arbitrary exercise
of official power, as well as helping to ensure China's full
implementation of its commitments under the World Trade Organization
protocol of accession.
Before we hear from our outstanding panel, I would offer some
thoughts on four aspects of our Commission's work that I think will be
of continuing importance to us. These aspects are:
1. The Commission as a forum for a balanced, constructive
focus on human rights issues in China;
2. The Commission as a catalyst for US efforts to support the
development of the Rule of Law in China;
3. The Commission's development of a registry of victims of
human rights abuses; and
4. The Commission as a resource for Senators, Members of the
House and their respective staffs, U.S. China specialists, and
the general public.
With respect to the Commission's mandate on human rights, I believe
it will be vital for us to undertake a comprehensive, objective look at
the current State of Chinese Government compliance or non-compliance
with international human rights norms. Following the sensible
requirements of our legislative mandate, Commission staff should
receive information and perspectives from human rights, labor, and
religious freedom NGO's in the United States and elsewhere. We should
also build on the work of relevant U.S. Government agencies (including
those who are represented by our five Commissioners from executive
branch), and from sources in China, Hong Kong, and elsewhere. This
undertaking is a big job, but one made considerably easier by the
important work of many people in the U.S. Government, U.S. universities
and think tanks, and U.S. and international human rights NGO's. With
this factual framework in place, we can then assess whether to
recommend specific action by Congress or the Administration in our
annual report.
Second, I believe it is important that the Commission act as a
catalyst for encouraging and supporting U.S. and multinational programs
to build legal institutions in China. I hope that the Chinese
Government will accept and welcome U.S. initiatives to help train
judges and lawyers, inculcate a culture of transparency in the
legislative and regulatory process, and to improve Chinese efforts to
extend legal services to ordinary Chinese people, focusing particularly
on the poor, women, and people in rural areas.
Since the Chinese leadership embarked on the ``reform and opening
up'' policy in the late 1970's, a number of Americans -among whom two
of our panelists are the most distinguished- have participated in
successful legal exchange and legal cooperation initiatives with
counterparts in China. But the U.S. Government has never had its own
directly funded program to complement these private efforts, and I
believe the time has come for us to take a hard look at such a program.
The Commission should determine in which areas additional U.S. public
investment in rule of law programs in China might add value to existing
private efforts or might permit new initiatives in areas previously
untouched by U.S. efforts. The overall goal should be to produce
significant long-term results on the ground in China without wastefully
duplicating previous or existing initiatives. An understanding by the
Commission, Congress, and our Government of the rule of law programs
that other countries currently have with China will be an important
part of this effort to avoid duplication and maximize the effectiveness
of any U.S. rule of law program.
Although many in the United States are interested in commercial
rule of law programs, particularly as they relate to building capacity
for WTO implementation and compliance, any U.S.-funded rule of law
program should focus more broadly on civil, criminal, and
administrative law reform. We should also welcome, encourage, and
support initiatives to improve the transparency of the legislative and
regulatory processes in China.
Third, I believe that the establishment and maintenance of a
useful, factually accurate, up-to-date registry of prisoners of
conscience and other victims of human rights abuses will be a vital
part of the Commission's work. Successful achievement of this task will
be a complex and difficult undertaking, but my hope is that over time
this registry will be a useful resource for Members of Congress and
staff, researchers, the press, and the general public. Fortunately,
individuals and organizations with experience in collecting, storing,
and using such information have offered to cooperate with the
Commission. In addition, I think that recent advances in information
technology will help Commission staff in meeting this important aspect
of our mandate.
Fourth and finally, as we progress in staffing the Commission and
gathering information on the specific issues in the mandate, I hope
that the Commission would earn the confidence of Members of Congress
and their staffs as a resource for timely, objective information about
China generally. Naturally, our focus and expertise will be principally
with respect to the specific areas of human rights and the rule of law,
but we expect to staff the Commission with qualified staff possessing
broad experience in China. I hope that the Commission could assist
Members of Congress and staff who plan to travel to China to prepare
for their visits, particularly in becoming familiar with human rights
and rule of law issues. The registry should provide the type of
information that would permit Members of Congress to raise and discuss
the cases of specific individuals during official meetings in China.
Mr. Chairman, we have a distinguished panel this afternoon to share
their views with us, and I would like to express my appreciation for
their appearance and testimony. Each has dedicated a significant part
of his professional life to one or more of the issues in our mandate,
and I know we will hear lively, informative, and thoughtful
presentations. Thank you, Mr. Chairman.
______
Prepared Statement of Hon. Carl Levin, a U.S. Senator From Michigan
february 7, 2002
Mr. Chairman, Thank you for convening the first hearing of the
Congressional-Executive Commission on China. The members of this
commission have an important and difficult task ahead of us. Our
challenge is to find a way to prod China to comply with internationally
accepted human rights standards, respect for labor rights, religious
freedom and the development of rule of law, when prior efforts met with
little success.
I, like many of my colleagues, voted to grant China permanent
normal trade relations in part because the legislation included a
specific mechanism to monitor and report on China's human rights
practices. That mechanism is this Commission which my brother,
Congressman Sander Levin, put forward as a way to keep some public,
visible and ongoing pressure to replace the annual congressional vote
on China's MFN on China to reform in the areas of human rights, labor
rights and the development of the rule of law. The Commission offers
the promise of an effective tool for both monitoring and changing the
human rights conditions in China. Clearly the mechanisms of the past
were largely ineffective in impacting the human rights climate in
China.
The Commission must be bold and innovative in carving out new and
effective ways to influence China. China's human rights record is
abysmal and is getting worse. And China has shown little willingness to
change this record. The Commission has its work cut out for it.
The State Department's most recent Human Rights Report on China
(year 2000) concludes that the Chinese government's poor human rights
record has worsened, and China continued to commit numerous serious
abuses. It comes as no surprise that the State Department found China
in violation of many of the basic human rights contained in the
International Covenant on Civil and Political Rights and in the
Universal Declaration of Human Rights. These include the right to
engage in free expression; the right to peaceful assembly, religious
freedom, protection of internationally recognized worker rights,
freedom from incarceration as punishment for political opposition to
the government or for exercising or advocating human rights.
Examples of human rights abuses by the Chinese Government are
extensive and disturbing. For example, the State Department reported
that China intensified its harsh treatment of political dissent,
crackdowns on religion and, in Tibet, and generally, suppressed any
person or group perceived to threaten the Government. The State
Department reports abuses including instances of extrajudicial
killings, the use of torture, forced confessions, arbitrary arrests and
detention, the mistreatment of prisoners, lengthy incommunicado
detention, and denial of due process.
Over the past few years, China has cracked down harshly on the
Falun Gong movement and imprisoned hundreds of its leaders and placed
thousands of its followers in detention, reeducation-through-labor
camps or in mental institutions. Hundreds of Falun Gong members died in
police custody and many were tortured.
U.S.-China relations were seriously strained when China detained a
number of U.S. citizen or U.S. permanent resident academics of Chinese
dissent, including detaining the 5 year old son of a U.S. permanent
resident, a U.S. citizen, for 26 days without notification to U.S.
officials.
China executes more people in 1 year than all other countries put
together, and this is often after unfair and secret trials. There is
also the horrendous issue of organ harvesting which is directly linked
to the execution of prisoners.
I am also concerned about the use of prison labor in China,
especially when the products made by forced prison labor are exported
to the United States. The State Department reports that forced labor in
prison facilities is still a serious problem and confirms that some
Chinese prisons contract directly with regular industries to supply
prison labor or operate their own factories.
More U.S. Customs Service enforcement actions involving prison or
forced labor facilities have been issued for China--20 of 23
outstanding orders to detain merchandise suspected of containing
content made with prison labor B than for any other country.
However, the State Department has been denied access to Chinese
prisons suspected of producing products for export made with prison
labor. This is despite a 1992 Memorandum of Understanding (MOU) with
China prohibiting the export of prison made products and a 1994
Statement of Cooperation (SOC) allowing us to inspect Chinese plants
suspected of using prison labor to make goods for export. China's
compliance with the MOU and SOC is poor. China continues to deny almost
all of our repeated requests to visit suspected prison factories. The
few visits that were permitted in the late 1990's were only the result
of significant high level diplomatic pressure.
There are 8 pending requests to visit Chinese factories suspected
of producing goods for export with prison labor, dating back as far as
1992. This is in addition to 11 outstanding requests for the PRC to
investigate prison labor allegations pertaining to exports to the
United States to which the Ministry of Justice has not responded.
The State Department report specifically mentions a 1998 report
that soccer balls were being made for export by prisons near Shanghai.
The Chinese Government failed to respond to an October 1998 request to
investigate these allocations. Unfortunately, one negative side effect
of China's inaction is that people may be less willing to take the risk
of reporting prison labor violations when they know nothing will be
done about it.
I am also concerned about the lack of respect in China for labor
rights. The five core International Labor Organization (ILO) labor
standards are: (1) the right of association; (2) the right to organize
and bargain collectively; (3) a ban on child labor; (4) a ban on
compulsory labor; and (5) a ban on discrimination in employment. China
has had a poor track record to date in recognizing and protecting these
internationally recognized rights. For one thing, China only recognizes
approved registered unions. So, while Chinese workers may have had the
right to be in a union, it had to be the State sanctioned union. China
has cracked down on efforts to organize other unions by detaining or
arresting labor activists involved in Aillegal@ union activity.
Recently there are signs that China may be changing regarding labor
rights. Last year a new law was passed that would allow for union
organizing and bargaining from the bottom up, although the new unions
would still have to be affiliated in some way with the State sanctioned
unions.
It remains to be seen if these new labor rights will be meaningful.
Much depends on the extent to which these new rights are real. The
Commission should monitor whether the new law is implemented vigorously
and if the new rights are protected by the central government.
In summary, the human rights situation in China is offensive,
intolerable and in violation of internationally accepted norms.
Improvements in China's human rights record is an essential requirement
for improving the U.S.- China relationship. The American people will
have little tolerance to trade with a Nation that has no respect for
the rights of its own people. Trade and human rights are therefore
inextricable linked. The hope is that through the establishment of the
rule of law in China, respect for and protection of human rights will
increase.
Now that China has been granted PNTR and joined 142 other nations
in the World Trade Organization, we should use this membership as a way
to open China's markets to our goods the way our market has been open
to China's goods. We should also use it to exert meaningful pressure on
China to join that community of nations that respects basic human
rights so that 1 day the people of that country can enjoy their
fundamental human rights. I hope the Commission can make an important
contribution to achieving that goal.
______
Prepared Statement of Hon. Sander M. Levin, a U.S. Representative From
Michigan
february 7, 2002
I am very glad to be here today as a member of this Commission and
I am pleased that the Commission is becoming operational. It is vital
that this Commission fulfills the function that Congress intended for
it when we created it.
Two years ago, in deliberating Permanent Normal Trade Relations for
China, we spelled out clear goals for the Commission as a critical part
of the effort to both engage and confront China:
``The Congressional-Executive Commission will be an effective
tool for pressing China to improve its record in the vital
areas of human rights, adherence to core labor standards, rule
of law and democracy building. Comprised of Members of Congress
and senior Administration officials, the Commission will have
unparalleled profile and credibility to call attention to its
analysis and recommendations.
``The Commission will place an ongoing, focused spotlight on
human rights and other government practices in China. . . .
``The Commission will be a vast improvement over the annual
review. That process concentrates congressional attention on
China for only a few weeks each year. The Commission, by
contrast, would have permanent, expert staff and resources
devoted to monitoring China on a systematic, year-round basis.
``The Commission will perform a unique role in the U.S. effort
to press for reform in China.
``The Commission will for the first time provide a mechanism
focused solely on human rights, labor rights and religious
freedom issues in the U.S. relationship with China. . . .
``Finally, by bringing together senior executive branch
officials with Members of Congress on a bipartisan basis, the
Commission will have a profile and level of credibility that
existing congressional committees or executive branch agencies
simply cannot match.''
The events since the House vote have only confirmed the need for
this Commission to play each of these vital roles. The State Department
reports that China's human rights record has grown worse in the last 2
years. China continues to prevent its citizens from the free exercise
of their religion and has continued and stepped up its campaign against
members of the Falun Gong movement. China's repression of Tibet
continues, as well as its repression of ethnic minorities such as the
uighurs. China has detained a number of scholars and American citizens,
as it continues to try to thwart free speech and freedom of ideas. An
article in the January 21 edition of the Washington Post, detailing the
use of police and the military to quell a strike in the Shuangfeng
Textile Factory, illustrates the serious labor rights violations
continuing in China.
At the same time, China's efforts to move away from a state-
dominated to a free market economy have accelerated and the Chinese
legal system is inching toward the rule of law. In both cases, however,
there are still miles to go, validating the need for policies and
programs that reinforce any positive impacts arising from the movement
toward a market economy. China has formally become a member of the WTO,
but it still has very far to go in implementing all of its commitments.
Just in the past 2 weeks, businesses and the USTR have raised serious
concerns about China's WTO implementation.
I am pleased that this inaugural hearing is focused on human rights
issues. The Commission must help keep Congress informed and focused on
human rights and political prisoners issues in China. It will not be an
easy task, but this job is crucial to the Commission's success.
The Commission also has a key role to play in monitoring labor
rights in China. Democratic staff from the Ways and Means Committee
were recently in Cambodia examining the operation of the U.S.-Cambodia
textiles and apparel agreement. This agreement addressed the labor
rights issue in an innovative way--encouraging Cambodia to improve its
labor rights through positive market access incentives. One of the
issues that became clear on that trip was that China enjoyed an
advantage because of its failure to respect labor rights: As one
factory owner comparing his labor practices in his factory in Cambodia
with his practices in his factory in China stated, ``I can do whatever
I want in China.'' As China's accession to the WTO takes hold, other
countries, particularly neighbors of China, will find it difficult to
compete with China in attracting labor-intensive industries if China
continues to allow investors there to ignore labor rights. There will
truly be pressure for a race to the bottom.
Separately, respect for labor rights will help further develop a
middle class in China. Although some claim that more trade in and of
itself will automatically lead to a middle class, I do not believe that
is the case. When workers have the right to organize and bargain
collectively, they can enjoy a larger share of the profits that they
help create.
The Commission will provide a key tool to Congress and the
Administration to help improve labor rights in China. It will provide a
source of information and monitoring that both the Administration and
Congress can trust. I hope the Commission will also make useful
recommendations on ways to work with China to improve the respect for
worker rights.
Finally, the rule of law is both a human rights issue and a
commercial issue. China made a host of important commitments as part of
its WTO accession. In order for the United States to obtain the full
benefits of those commitments, China must implement them in its law and
properly enforce the law. I think the Commission can play a ground-
breaking role in helping the rule of law to flourish in China.
The Commission must pursue each of its roles aggressively. I would
hope that by this time next year, the Commission will be seen as a
fixture, having earned the respect of the human rights community, the
business and labor community, Members of Congress, the Administration,
as well as the Government of China.
Former President Clinton said in his January 27, 2000 State of the
Union address: ``[W]e need to know that we did everything we possibly
could to maximize the chance that China will choose the right future.''
China is a dynamic, complex, and evolving country. The U.S.
relationship with China reflects these facts and is itself dynamic,
complex, and evolving. This Commission has important potential to shape
the development of U.S. policy toward China, and even to impact
constructively the evolution of China.
______
Prepared Statement of Hon. Marcy Kaptur, a U.S. Representative From
Ohio
february 7, 2002
Mr. Chairmen, I am pleased that the Congressional-Executive
Commission on China finally is meeting. This hearing has been a long
time coming.
First, I would like to thank the witnesses for appearing before our
Commission. Your unique perspectives on the grave human rights
situation in China draw attention not only to the oppressed on the
mainland, but to all struggling people who face of cruelty and
brutality at the hands of repressive regimes. Your cause is noble.
While some Members of Congress opposed the unconditional granting
of most favored Nation status to China, no one could object to a body
investigating the disregard for human rights in that nation. For those
nominated to serve on this Commission, we face many challenges--the
first being the maintenance of Congress' commitment to this vital
matter. Already, we have seen almost 2 years since the passage of H.R.
4444. That is an unacceptable waste of time. During this period, the
rate of persecutions in China among those struggling for human,
religious, and labor rights has arguably increased at an alarming pace.
Our hearings should be regular, open and timely.
Since 2000, organizations like Human Rights Watch and The National
Labor Committee (NLC) have done yeomen's work in highlighting the
ongoing abuse of people in China. ``Toys of Misery,'' a recent report
by NLC, documents the shocking and flagrant exploitation of
internationally recognized human and worker rights. I urge Members of
the Commission to examine closely the groundbreaking report on toy
manufacturers at www.nlcnet.org. Included are first-hand accounts of
16-hour workdays at starvation wages of 17 cents per hour. Many
employees work in factories with little or no ventilation, safety
protections, or sanitary break areas. Workdays often consist of 100-
plus degree heat while handling toxic glues, paints and solvents. The
end product--toys--end up in McDonald's Happy Meals, on the shelves at
the local Wal-Mart, and, eventually, in our families' homes.
Unfortunately, all too often, reports like this are lost in the
churning media cycle. Our responsibility is to never forget the women,
men, and children struggling to survive another day in these brutal
conditions. Globalization may have logic, but it has no ethic.
As I have stated many times, trade does not bring freedom nor
economic security for the rank and file. Only a nation's patient
commitment to legal and social justice that dignifies the individual
will uplift living conditions. I encourage President Bush to place
human worker rights among his top discussion points during his upcoming
trip to the People's Republic of China. Better yet, why not include
Members of the Commission as part of his delegation? If the President's
sincere commitment to freedom is to be shared throughout the world, he
must be diligent in all international dialogs. The best way to stem the
flow of violence and terrorism is through a free people.
Rights of association, freedom of the press, and, surely, freedom
of religion should never be abridged. Both chambers and the
Administration have acknowledged the positive role faith can play in
the development of a healthy and productive society. Those brave few
who push for these rights in China and Tibet find an almost impossible
feat ahead. In its 2001 Annual Report, the United States Commission on
International Religious Freedom (USCIRF) released the following
summary:
In the last year, the government of the People's Republic of
China (PRC or China) has expanded its crackdown on unregistered
religious communities and tightened its control on official
religious organizations. The government has intensified its
campaign against the Falun Gong movement and its followers. It
apparently has also been involved in the confiscation and
destruction of up to 3,000 unregistered religious buildings and
sites in southeastern China. Government control over the
official Protestant and Catholic churches has increased. It
continues to interfere in the training and selection of
religious leaders and clergy. At the same time, the government
continues to maintain tight control over Uighur Muslims and
Tibetan Buddhists. Finally, cases of torture by government
officials reportedly are on the rise.
According to reports from the State Department and USCIRF, some
members of the officially sanctioned Chinese Catholic church do not
recognize the legitimacy of bishops appointed by the Vatican. America's
trade and foreign policy should stand to reaffirm our support for
religious freedom at home and abroad.
The success of this Commission rests solely on our shoulders. The
hopes of billions of people pivot on the world's voices for freedom.
______
Prepared Statement of Hon. Joseph R. Pitts, a U.S. Representative from
Pennsylvania
february 7, 2002
Mr. Chairman, thank you for holding this important hearing on
China's Accession to the World Trade Organization of the People's
Republic of China and Related Rule-of-Law Issues. Also, I would like to
thank Mr. Mike Jendrzejczyk, Mr. Xiao Qiang, Professor James V.
Feinerman, and Professor William P. Alford for sharing their expertise
and insight with us today.
Addressing rule of law issues in China, as reported by many
scholars and human rights experts, is vital to establishing
international human rights standards in China. Unfortunately, as noted
in the testimonies this morning, recent incidents, particularly related
to freedom of speech and freedom of conscience, reflect the intense
battle within Chinese society between those who wish to live in freedom
and those who wish to exert extreme control over the society and
individuals, their actions, speech, and even their thoughts.
As our government gives assistance to the Chinese government for
civil society development, we must be specific in our assistance
targeting areas in which a real, practical difference can be made. For
example, it is vital that as just rule of law is developed in China. It
is also vital that the distinction be made that criminal action be
dealt with under established criminal law, but that no new laws are
needed to limit freedom of religion. Official PRC Government documents
make it clear that the drive to maintain control over religious
believers in China remains strong. In one report regarding a meeting of
Chinese officials, the officials were charged to ``Quickly gather the
essential personnel and find out the development and activities of this
cult in our province. Carefully gather all the information and try to
catch all the members in one blow. Pay attention to keep it
confidential and work without talking.'' Comrade, the head of the
Ministry of Public Security, emphasized specifically that ``we need to
work more and talk less and smash the cult quietly.'' This is not the
statement of officials who aim to protect the freedom of conscience of
their people.
In one case from December 2001, reports suggest that Mr. Gong
Shengliang was accused of ``crying out to his followers to `fight a
bloody battle with the devil (referring to the government) till the
end, so that the Satan's (referring to the Communist Party) authority
will be destroyed and the kingdom of the ever-lasting God will be
established.' '' The Communist Party's accusations against Mr. Gong
Shengliang are reminiscent of those against Pastor Xu Yongze, also a
Protestant church leader, accused of instigating his followers to fight
against the devils and demons in power. According to various reports,
neither of these men were attempting to engage their fellow religious
believers in a physical battle against anyone. The Communist Party,
however, has their own interpretation.
Mr. Chairman, these brief examples, along with the others reported
today, underscore the importance of continuing to address these issues
in deliberate, practical ways.
______
Prepared Statement of Hon. Frank R. Wolf, a U.S. Representative From
Virginia
february 7, 2002
I want to thank Chairman Baucus and Chairman Bereuter for holding
this hearing today.
I have strong concerns at the direction that this commission
appears to be heading.
The legislation that created this commission is very clear about
its functions. By law, this commission is to:
(a) ``monitor the acts of the People's Republic of China which reflect
compliance with or violation of human rights. . . . ''
(b) ``compile and maintain lists of persons believed to be imprisoned,
detained, or placed under house arrest, tortured, or otherwise
persecuted by the Government of the People's Republic of China.
. . ''
(c) ``monitor the development of the rule of law.''
It was said by some Members who helped form this commission that
they wanted it to be modeled on the highly effective Helsinki
Commission. The Helsinki Commission played an important role in
confronting, monitoring, and promoting human rights in the former
Soviet Union. I believe the Helsinki Commission had a significant role
in helping tear down the Iron Curtain. The Helsinki Commission was and
is a strong advocate for human rights and religious freedom. Helsinki
Commission Members traveled to the former Soviet Union and Eastern Bloc
countries and confronted the political leadership about human rights
and religious freedom issues. The Helsinki Commission sent letters to
the former Soviet Union and spoke out publicly, advocating for specific
individuals, for religious freedom, for the development of democracy
and for the rule of law.
If the Congressional-Executive Commission on China wants to be
successful; if the Congressional-Executive Commission on China wants to
emulate the Helsinki Commission; if the Congressional-Executive
Commission on China truly wants to promote human rights and the rule of
law in China, it has to be a strong and outspoken advocate for human
rights and religious freedom in China. I am concerned that this
commission may not be willing to be such an advocate. I believe that
the future of this commission depends on whether or not it will step up
to the plate and confront the Chinese leadership on behalf of human
rights, religious freedom and the rule of law.
I also am very concerned with the selection of commission staff
members. Staff members appear to lack the experience in promoting human
rights and religious freedom in China. With the commission's function
to monitor human rights, religious freedom and the rule of law, the
commission staff should be comprised of people who have a proven track
record of promoting human rights, religious freedom and the rule of law
in China.
Lastly, I am concerned with a statement made by James Feinerman who
is testifying today. While I am sure Mr. Feinerman is a fine scholar
and I respect his work, Mr. Feinerman stated in a 1997 Washington Post
article that people in the United States who criticize China for its
practice of forced prison labor are hypocrites. I enclose this article
for the record. Mr. Feinerman is quoted as saying,
Harry Wu and others have tried to stir up a great controversy
about how goods made by forced labor are flooding into our
market. . . . But in fact, it's only a tiny fraction of all
Chinese goods. And it seems to me the height of hypocrisy for
us to get on our high horse about China making its prisoners
work, given the fact that we do the same thing with our
prisoners . . . [the Chinese prison system is designed] to
make offenders pay a harsh penalty, on the theory that it
scares people so they won't come back into the prison system.
You can argue that it works. They have very low rates of
recidivism. Who are we to argue with their choices?
Given that the Chinese government has imprisoned thousands of
people--Roman Catholics, Protestants, Buddhists and Muslims--simply
because of their faith; given that the Chinese government has
imprisoned thousands of people for promoting democracy, if accurate,
Mr. Feinerman's statement is very troubling.
I question the wisdom of selecting a person to testify about the
rule of law in China who says of the Chinese system and its critics:
``You can argue that it works. . . . Who are we to argue with their
choices?''
This commission is full of promise and faces great opportunity to
make a difference. Like the Helsinki Committee, the Congressional-
Executive Commission on China will only be effective if it speaks out
and becomes an advocate for human rights and the rule of law in China.
______
Prepared Statement of Hon. Dianne Feinstein, a U.S. Senator From
California
february 7, 2002
Mr. Chairman, I would like to thank the panel of witnesses for
joining us for this inaugural session of the Congressional-Executive
Commission on China. And I would also like to thank the Chairman and
Vice-Chairman for all their hard work over the past few months in
organizing both this hearing and the Commission itself.
This Commission has been created with a mandate both to monitor
China's compliance with human rights agreements and its development of
rule of law, and to encourage programs and activities that will assist
in that development.
I say this as one who believes it is neither possible nor desirable
to isolate or contain China, and that empty rhetoric will not be
sufficient to improve China's human rights record. Rather, the national
interests of the United States are best served by the evolution of a
China that is peaceful, stable, and a leader in Asia with whom we can
work to solve serious problems whether they be retarding aggression by
North Korea or solving the Kashmiri crisis now polarizing India and
Pakistan.
A first glance at the complexities of the U.S.-China relationship
reveals many points of apparent conflict: our contrasting forms of
government, our dissimilar cultures and historical background, and our
varying perspectives. Yet in spite of these differences, we share an
agenda of common goals.
China has existed for 5,000 years, and over its history has
experienced some of the most brutal tyrannies earth has witnessed, as
well as revolutionary change. And, for 5,000 years the Chinese people
have not enjoyed democracy or rule of law in the way that, for 225
years, has allowed the United States to experience unprecedented
freedom and ``government of the people, by the people, for the
people.''
Since the United States and China normalized relations almost three
decades ago, China has undergone extensive change, ushering in an era
of massive social reform and economic advancement. Economic growth and
dynamism, privatization of state-owned enterprises, communication and
exchange of ideas with the west, and the positive impact of the Hong
Kong model have brought increased living standards and quality of life
to many in China.
And although it is clear China still has a long way to go where
human rights and the rule of law are concerned, few objective observers
would argue that there have not been significant benefits and advances
that have come from interaction with the west during this time. The
post-Deng China of Jiang Zemin and Zhu Rongji is simply not the China
of Mao or the Gang of Four.
Some western analysts look at China's policy in Tibet, or its
treatment of the Muslim Uygur people or the crack-down on the Falun
Gong and argue that China's behavior in these cases reveals the true
nature of the Chinese government. Others point to the success of the
Hong Kong model, and China's booming south, where however imperfectly,
greater personal freedoms, village and local elections, respect for
private property, and a budding infrastructure of commercial law point
toward a future where political pluralism, human rights, and rule of
law can be imagined.
The next few years will witness if China's leadership will
demonstrate that they understand that the right course for their Nation
includes an increased respect for human rights and rule of law.
Following this path will continue to improve relations with the west
and help make China a more responsible and fully integrated member of
the of the international community.
The establishment of this Commission represents, in this context,
an important new opportunity to extend U.S.-China dialog on human
rights, and I strongly believe that the Commission must, where
possible, find ways in which the U.S. and China can work together to
attain commonly desired goals in areas such as the rule of law.
In order to do so, we will need to work closely with non-
governmental organizations, such as those represented here today on the
panel. Your experiences and insights provided to us through reports,
updates and testimony will enable us to carry out our responsibilities.
I look forward to hearing your views: what the key issues are and how
we as a commission might best address those issues.
I intend to work energetically as a member of the Commission to
ensure China's compliance with its human rights covenants and its
progress on rule of law, and I will also urge as an equally important
part of the Commission's work the encouragement of those programs and
activities of both the U.S. Government and private organizations that
will improve bilateral relations and increase the interchange of people
and ideas between the United States and China.
I am pleased to have the opportunity to serve on the Congressional-
Executive Commission on China.
______
Prepared Statement of Hon. Bob Smith, a U.S. Senator From New Hampshire
february 7, 2002
I am pleased at the leadership exhibited by the China Commission
Co-Chairmen, Senator Baucus and Congressman Bereuter, as they have
organized this commission through turbulent times in the last several
months. Furthermore, it is also an honor and a distinct privilege for
myself to be a part of the China Commission and I look forward to my
work on this commission.
As we meet this afternoon to hear testimony from the experts before
us on the issue of human rights in the context of the rule of law, I
would like to take this opportunity to express my vision and desires
for this commission. I did not support the China PNTR legislation which
granted China the privilege of trading with the United States on
preferential terms. I feel now as I did in October of 2000, that
enriching a communist regime and furthering it's ability to repress its
people and threaten the citizens of the this Nation as well as the
democratic island of Taiwan was not in the best interests of America or
the Chinese people.
However, I did support the creation of this commission to monitor
China's transition and adoption of the principles of rule of law and
human rights in that nation. It is my hope that this commission will
diligently work toward advancing these universally sacred principles.
It is also my hope that the China Commission will not act in the
expediency of promoting corporate business interests nor give
unbalanced reports that will allow us or the American people a false
sense China's movement toward and commitment of conducting itself along
recognized international norms.
I strongly feel that it is imperative the China Commission use its
leverage to keep China accountable for the ideals which proponents of
PNTR have stated trade will nurture in China. Moreover, I am hopeful
that the China Commission will actively pursue and document reports of
religious persecution, forced abortion, slave labor and other egregious
human rights violations which are still sanctioned by the Chinese
Government.
I am disheartened to read reports by the press and human and
religious rights groups who find no lack of documentation of China's
repression of Christians, Muslims, Falun Gong practitioners and other
religions. I believe this commission could have great impact on human
rights in China. Given the fact that the United States no longer has a
seat on the U.N. Human Rights Commission, the China Commission could
release its report to influence the U.N. Human Rights Commission's
findings on that nation.
The China Commission's other task, to monitor the rule of law--both
civil and trade law, is also of grave importance. As more and more U.S.
companies decide to try to grow their business and commit substantial
investment in China, I am concerned at the lack of transparency,
corruption and the general murky environment of Chinese business
practices which U.S. companies must navigate. I believe this commission
must diligently examine the impact of China's difficulties or
unwillingness in adhering to WTO rules and regulations and bring these
issues to light.
It is imperative that we not continue to blur the line between
national security and trade. In the past, the United States has had to
transfer high-tech know-how to Chinese companies in order to facilitate
the completion of business transactions. I am alarmed about this not
only because of my national security concerns, but because we are
giving up advantages in lucrative niche markets, such as aerospace.
Furthermore, I have strong concerns for U.S. companies whose
intellectual property rights are being stolen, an area in which the
U.S. has tried to work with the Chinese for years to no avail. This is
an area I would like to address later.
Clearly, this Commission will encounter the fundamental challenges
facing relations between the United States and China now and into the
foreseeable future. I believe this commission can be used as a tool to
help shape that relationship, and will I work to ensure it is balanced
in its approach and reporting on China, as laid out in the legislation
which formed it.
Before I close, I would like to take this opportunity to quote
remarks made by William Hawkins, a Senior Fellow for National Security
Studies at the U.S. Business and Industry Council, which addresses
major concerns of mine, and I hope members of this commission. In an
article written recently by Mr. Hawkins, he illustrated examples of new
industrial/economic powers emerging to global powers, such as Great
Britain, Japan and the United States. Mr. Hawkins accurately notes that
their emergence in economic and political power had enormous
consequences to the global balance of power--England established an
empire on which the sun never set, Japan used its economic power to
drive the British and other powers out of Asia, while the United States
used its economic power to win WWII and to end Soviet communism and
oppression during the cold war. After noting these observations, Mr.
Hawkins then posed the following question, ``What will China do with
its expanding economic capabilities? Beijing's ambition to become the
dominant power in Asia is well known. If the United States continues to
think only in terms of `rules-based trading system' when it looks at
the Chinese economy and the behavior of private corporations, it will
`suddenly' find itself facing a power with the means to back its
bellicose rhetoric-and the change will not be `positive' in any way.''
Submissions for the Record
----------
[The following article was submitted for the record by
Representative Frank Wolf.]
[From the Washington Post, June 3, 1997]
Prison Labor: Can U.S. Point Finger at China? American Inmates
Manufacture Products, But Trade Debate Centers on Beijing's Policies
(By Paul Blustein)
Horror stories are surfacing anew about the Chinese prison labor
system and the sale of its products in the United States. But consider
what is happening to the 64,000 U.S. convicts in the Florida prison
system:
Prisoners are required to work--or face punishment. Most inmates,
even ones digging ditches on chain gangs, are paid nothing. Moreover,
some of the products they make, such as boots and license plates, are
exported to foreign countries.
Therein lies a question: Because inmates in many U.S. prisons are
obliged to work, do Americans have the right to condemn China's prison
labor practices?
The question arises because China's ``reform through labor'' penal
system, known in Chinese as laogai, is becoming a hot issue in Congress
and the media amid the mounting debate over whether Beijing should be
allowed to retain its trading privileges.
Senate and House committees held hearings May 21 and 22 on
allegations that goods made in Chinese prisons are being imported into
the United States in violation of U.S. law and a U.S.-China agreement.
Among those offering testimony about how easy it is to buy convict-made
goods was Harry Wu, a former inmate laborer who has gained worldwide
fame for returning to China to document the nation's ``prison
economy.'' An ABC ``Nightline'' program broadcast the night after the
hearing featured videotape from another witness indicating that binder
clips were being made in a Chinese women's prison for a U.S. office-
supplies company.
All of this is generating potent ammunition for critics of U.S.
trade with China, who contend that Beijing is profiting from the toil
of people railroaded into working cruelly long hours under appalling
conditions. TV ads being readied by the Family Research Council, a
group seeking to overturn China's most-favored-nation trade status,
accuse Beijing of employing ``slave labor.''
But some academic experts call this argument a classic example of
hyping an issue to advance a political agenda.
``Harry Wu and others have tried to stir up a great controversy
about how goods made by forced labor are flooding into our market,''
said James Feinerman, a professor of Asian Legal Studies at Georgetown
University. ``But in fact, it's only a tiny fraction of all Chinese
goods. And it seems to me to be the height of hypocrisy for us to get
on our high horse about China making its prisoners work, given the fact
that we do the same thing with our prisoners.''
The importation of goods made in Chinese prisons, while against
U.S. law, should be a ``non-issue because the amounts are so small,''
agreed James Seymour, a senior research scholar at Columbia University
whose book on Chinese prisons is scheduled to be published shortly.
Although the precise amount is impossible to determine, Seymour's book
cites Chinese economic data indicating that the output of Chinese
prisons constitutes less than one-fifth of 1 percent of total Chinese
production.
The U.S. Federal prison system, and many State prison systems,
require all able-bodied inmates to work, often in tasks that are
designed to save taxpayers money, such as cleaning up highways,
painting public buildings or making office furniture. Those who refuse
typically are deprived of privileges or sent to higher-security
institutions.
Pay is far below minimum wage--12 cents to $ 1.15 an hour for
Federal inmates, and less than that in many State systems. So their
products usually are barred from sale except to government agencies.
But ironically, while the law prohibits importing prison-made goods and
restricts their sale across State lines, there is no law barring their
export.
Thus, boots made by Florida prisoners have been shipped to
Trinidad, license plates have been sent to Nicaragua and cedar-lined
boxes have been exported to the Dominican Republic, according to Pamela
Jo Davis, president of Pride Enterprises, an organization that pays
about 4,300 Florida inmates 20 cents to 50 cents an hour for their
labor and provides job training as well.
``Being in Florida, we're targeting Latin America and South
America,'' Davis said. ``Those are clearly our trading partners.''
Florida's prisoners are not the only ones making goods for export;
blue jeans bearing the brand name ``Prison Blues,'' made by Oregon
inmates, have become big sellers in Asia.
Critics of China's penal system argue that it shouldn't be viewed
as even remotely similar to the one in the United States.
``Are you willing to compare the American system with the gulag [in
the Soviet Union under Joseph Stalin] or the Nazi [labor camp]
system?'' said Wu, who directs the Laogai Research Foundation in
Milpitas, Calif.
Added Jeffrey L. Fiedler, president of the AFL-CIO's Food and
Allied Service Trades Department, who investigates violations of U.S.
prison labor laws: ``The whole system is different. There is no law or
due process in China.''
In China, Fiedler noted, a person accused of petty thievery or
other misdemeanors can be sentenced to up to 3 years in a labor camp,
with a possibility of an extended sentence, based simply on an
administrative decision by local law enforcement authorities, with no
formal trial. And while serious offenders usually are tried, judges
often are Communist Party loyalists who dispense justice arbitrarily,
according to experts on the Chinese system.
Moreover, some of China's inmates are imprisoned for political
activism--or ``counterrevolutionary offenses,'' as the Chinese put it.
But by virtually all accounts, the number of such people--about 2,700,
according to the U.S. government--is dwarfed by the numbers of others
convicted of crimes such as murder, rape and robbery. (Wu estimates
that 6 million to 8 million people are laboring in the various branches
of the penal system.)
``Most of the people in the laogai are of course ordinary
criminals, not political,'' said Chen Pokong, a 33-year-old visiting
economics scholar at Columbia who spent 5 years as an inmate.
Chen's case illustrates what many experts find most troubling about
the Chinese penal system--the extensively documented evidence that
prisoners often are treated brutally. Chen, who said he was sentenced
in 1989 for helping to lead a student democracy movement in the
southern province of Guangdong, said he spent 2 years in one facility
where prisoners were forced to carry heavy stones for 8 hours to load
on ships. ``Then, until midnight, we made artificial flowers; sometimes
we had to work through the night,'' he said. ``If you collapsed before
you finished the quota, you were heavily beaten.''
Columbia's Seymour said some of the prisons he researched for his
book were ``totally inhumane,'' while in others, ``conditions were much
better.'' Prisoners generally received some paltry wage, he said.
But repugnant as conditions in Chinese prisons might seem to many
Americans, Georgetown's Feinerman said, they are based on a decision by
the Chinese authorities ``to make offenders pay a harsh penalty, on the
theory that it scares people so they won't come back into the prison
system. You can argue that it works. They have very low rates of
recidivism. Who are we to argue with their choices?''
______
Prepared Statement of Robert M. Hathaway, Director of the Asia Program
at the Woodrow Wilson International Center for Scholars
Human Rights in China: What Can We Do? What Should We Expect?
february 7, 2002
President Bush departs for Beijing later this month for discussions
with Chinese leader Jiang Zemin. Heading the president's agenda will be
the war against international terrorism. Looking beyond our current
preoccupation with terrorism, however, President Bush will also seek to
solidify the recent progress that has brought a new stability to U.S.-
China relations, after a rocky period in the early months of his
presidency.
The Bush administration has been notably silent since September 11
on China's human rights behavior, and the White House has given no
indication that human rights issues will figure prominently in Bush's
Beijing talking points. But it would be a grave mistake for the
president to allow the Chinese to conclude that human rights have
slipped off the U.S. agenda. At the same time, Bush must also keep in
mind that there is an important difference between publicly haranguing
China on human rights, which will play well in many American circles,
and acting as an effective advocate for better human rights practices
in China.
Beijing's sorry human rights record continues to offend us. Last
year's State Department human rights report concluded that in some
respects, human rights conditions in China are getting worse, not
better. Just last week a Chinese court sentenced a Hong Kong citizen to
2 years in prison for bringing annotated Bibles into China for use by a
banned evangelical Christian group, even though the Bible is legally
available in China. Remarkably, the jailed man's friends expressed
relief that the sentence was not even harsher.
Reports about a renewed crackdown on Christians and other religious
minorities in China follow a long string of Chinese activities that
most Americans deem deplorable. Those Chinese courageous enough to
challenge the official line do so only at great personal risk. National
minorities in Buddhist Tibet and Moslem Xinjiang face persecution,
imprisonment, and even death. Political as well as criminal
considerations appear behind the extraordinarily high number of
executions carried out in China each year. The rule of law has yet to
supplant the cynical use of rule by law, under which Chinese
authorities exploit the power of the State to crush those who challenge
the right of the Chinese Communist Party to exercise a monopoly on
political power.
Few Americans would deny that China's human rights behavior leaves
much to be desired. Few would challenge the proposition that the United
States and the rest of the international community have the right and
the responsibility to inquire into China's human rights practices and
Beijing's commitment to the rule of law. China's recent accession to
the World Trade Organization is likely to bring these issues even more
to the forefront.
Of special concern at the moment is the danger that China will try
to hijack our new interest in working with Beijing in the global war
against terrorism to promote its own internal security agenda. We must
be on our guard lest China manipulate us into supporting, under the
guise of counterterrorism, repressive measures against the 7.2 million
Moslem Uighurs in China's western province of Xinjiang, who seek
greater autonomy from Beijing, and whom China has tried to link with
Osama bin Laden and his al Qaeda zealots. The overwhelming majority of
Uighurs have no connection whatsoever with bin Laden's murderous
intrigues--indeed, Chinese scholars estimate that the number of Uighurs
linked to al Qaeda is no more than a few dozen. We must take care that
in our understandable desire to destroy bin Laden and his organization,
we not inadvertently provide support or political legitimacy for
repression in Xinjiang.
The U.S.-China relationship is likely to be our most difficult
bilateral relationship for the foreseeable future. It will not be a
close or cordial relationship, for we have too many differences on
issues of fundamental importance, including human rights. But neither
are we destined or preordained to being adversaries, let alone enemies.
To the contrary, both countries share an interest in finding ways to
surmount our very substantial disagreements. The task for the
leadership of the two nations is to devise methods of working together
when our interests and values permit, while containing the very real
and serious differences that will inevitably arise between us so that
they do not sour the entire relationship.
As the U.S. Congress, the Bush administration, and the American
people seek to manage what will surely be a trying relationship for
many years to come, it may be useful to keep a few general propositions
in mind.
First, Americans should employ a strategic vision as they
look at U.S.-China relations. This relationship is a complex,
multifaceted, and in many ways contradictory relationship. All too many
of us make little effort to view it in a comprehensive way, to consider
the totality of our relations with Beijing.
Many Americans tend to think about this relationship in terms of a
single issue. For some it is human rights, for others trade or Taiwan,
for still others abortion or Tibet or religious freedom. These are all
important issues. They deserve to be part of the overall equation. But
not any one of them is so important that it should be permitted to
dominate or drive the entire bilateral relationship. Should we succumb
to this temptation, not only will we jeopardize our ability to achieve
other crucial American objectives, but we will also decrease the
likelihood of succeeding even in the area of most concern to us.
Rather than allow single-issue politics to determine the future of
this relationship, we must instead ask what is the range of American
interests at stake here, and how can we best advance the totality of
those interests.
Second, exercising strategic vision also means
establishing priorities. At the moment the Bush administration sees
China through the lens of the war against terrorism, and other
important issues, including human rights, have been relegated to the
back burner. At other times, nonproliferation or trade or Taiwan-
related concerns have governed U.S. management of Sino-American
relations.
In truth, we have numerous items on our China agenda, and efforts
to achieve our objectives in one area may impede our ability to realize
other goals. So we need to ask--to give one example--how a decision to
sell arms to Taiwan could affect our efforts to block North Korea's
nuclear weapons program, or our ability to promote better human rights
conditions in China. Strategic vision, in other words, requires us to
balance competing policy objectives in such a manner as to maximize the
prospects of promoting our most vital interests.
Third, we need a much more historical perspective as we
think about relations with China. Much of the current debate about
China in Washington and across the United States is strikingly
ahistorical. It reflects little sense of change over time, little
recognition of how far--in some respects--China has traveled in recent
decades. It rarely attempts to measure China by anything other than
American standards.
Take the bombing of the Chinese embassy in Belgrade a few years
ago. Most Americans instinctively assumed this was the unfortunate
result of official error or incompetence. Most of us found ludicrous
the idea that the bombing of the embassy might have been deliberate.
The Chinese, on the other hand, view this incident in the context
of 150 years of foreign bullying, and of what they see as a stubborn
Western refusal to grant China the respect its achievements have earned
it. Moreover, they place the attack on the embassy in a spectrum of
U.S. actions in recent years that seem to them manifestations of
American arrogance and hostility--including the current war in
Afghanistan, the use of American airpower against Iraq and Serbia,
Washington's lack of interest in certain international agreements and
multinational institutions, the Bush administration's pursuit of
ballistic missile defenses, and U.S. military alliances in East Asia.
Or take the case of Taiwan. Here again the historical experiences
of our two countries lead to very different judgments about current
U.S. policy. To most Americans Taiwan offers a stirring example of a
people sloughing off an autocratic government to create a vibrant
democracy and prosperous economy. Their very different historical
memories encourage the majority of Chinese, however, to see Taiwan in
terms of Chinese territorial integrity, national sovereignty, and
national pride, and of a history of being denied China's legitimate
rights and its rightful place in the world.
So it is with the issue of human rights. Whereas most Americans
believe that there is a universal standard of rights and
responsibilities that should govern the conduct of individuals and
their governments, this is a peculiarly Western, if not American,
notion. And even when there is general agreement on the appropriateness
of a human rights focus, we will not always agree on how to define that
concept. Many peoples, and not just the Chinese, tend to place a higher
premium on the right to food, clothing, and shelter, even if in doing
so they subordinate the political and legal rights most Americans tend
to emphasize when they talk about human rights.
This is not to suggest that a greater understanding of the Chinese
perspective will lead us to agree with Beijing, or to abandon our
commitment to act as a human rights champion. But without such an
understanding, we have little hope of fashioning policies toward China
that offer much chance of success in advancing our human rights agenda.
Fourth, we must pay more attention than we customarily do
to the constraining influence of China's domestic politics.
Americans talk in considerable detail of differences between the
Pentagon and the State Department, or Congress and the White House, and
accept these differences as both routine and inevitable. Less well
understood is the fact that the Chinese government is similarly
divided, with a variety of viewpoints, bureaucratic interests, threat
perceptions, and policy preferences.
True, China is an authoritarian State where one party controls
virtually all the formal levers of power. But Chinese president Jiang
Zemin does not wield the unchallenged power exercised in an earlier day
by Mao Zedong or Deng Xiaoping. Bargaining and negotiation among
powerful individuals, interests, and bureaucracies, not dictation, is
the norm. If China's domestic politics are not as transparent as ours,
they are every bit as lively.
American policy is unlikely to succeed without domestic political
support and popular backing. Might not a version of this political fact
of life apply for China as well, even conceding the very different
nature of the two political systems?
China, moreover, is heading into an extended period of political
flux, as the current leadership prepares to make way for a new
generation. While it appears that Jiang's successor has already been
designated, Beijing is likely to experience considerable behind-the-
scenes jockeying over the next several years as various contenders for
other senior positions jostle for power and influence.
What does this suggest about China's probable policies over the
next year or two? We are likely to see a cautious rather than an
adventurous China--a China adverse to risk-taking or bold initiatives,
which may impede resolution of long-standing disputes with the United
States over Taiwan, proliferation, and yes, human rights.
We are likely to encounter a prickly, nationalistic China that will
take offense at perceived slights or signs of foreign, especially
American, dictation or bullying. Nationalism is on the rise in China
today--in part because the regime, having lost its ideological
moorings, has deliberately beat the nationalism drum in order to
sustain popular support. Feelings of a fierce nationalism will place
constraints on even an autocratic government. Officials well-disposed
toward the United States will find reason to be firm in the face of
perceived U.S. pressure.
And last, we are likely to see a China unenthusiastic about pushing
political reform, permitting public discussion of sensitive issues,
lifting government controls over the activities of dissidents, or
taking other steps that could threaten political turmoil or social
instability.
What does this mean for American policy? In the first place, we
should keep in mind how little we know about China's internal political
line-up. We don't even have a good read on what policies Hu Jintao,
Jiang's probable successor, is likely to follow, even though Hu has
been the heir apparent for the better part of a decade. Lacking a
sophisticated understanding of what political currents lie beneath the
surface, we should be modest in our expectations about influencing
those currents.
Second, we should be careful not to provoke the very behavior we
seek to discourage by appearing overbearing or insensitive to Chinese
pride and historical sensibilities. Certainly we should push China on
human rights issues, but we should do so in a way that avoids setting
off a nationalistic backlash.
Third, in thinking about China, Americans must learn patience. This
is foreign to the American character; we want to see everything done
yesterday. But that is not the way things work in the real world.
Certainly it is not the way things happen in China--or in the United
States, for that matter.
If one views human rights conditions in China today as a snapshot,
a static picture, things look bleak indeed. None of us would willingly
trade places with the Chinese people. But in truth, things are far
better, in almost every area of daily life, for the overwhelming
majority of Chinese than they were twenty-five years ago. There have
been massive changes, and for the better, since Mao's death and the end
of the Cultural Revolution. Human rights in China have a long way to
go, but for those Chinese old enough to remember Mao, the improvements
have been dramatic.
Finally, we must ensure that the Chinese understand that for
Americans, human rights are not simply a convenient club with which to
beat China. Rather, U.S. advocacy of human rights reflects the deeply
held values of the American people. China makes a serious mistake if it
discounts American complaints about its human rights practices, or if
it concludes it can build a satisfactory relationship with the United
States without taking American human rights concerns into account.
President Bush faces a formidable task as he journeys to Beijing
later this month. He must impress upon his Chinese hosts the centrality
of the human rights issue for the successful management of U.S.-China
relations, while simultaneously not allowing our fundamental
differences with China on human rights to impede progress on other
important political, security, and economic issues.
In seeking to reconcile these competing goals, consistency,
patience, and a trace of humility regarding our own shortcomings and
failures might ultimately have a better chance of edging China toward
responsible human rights behavior than a more in-your-face approach.
We must never hesitate to stand up for American values. But we
should be realistic as to what we can reasonably expect from Beijing--
and what China's political system will bear.
Robert M. Hathaway is director of the Asia Program at the Woodrow
Wilson International Center for Scholars. He previously covered Asia
for 12 years as a member of the staff of the House International
Relations Committee. The opinions expressed here are the author's
alone, and do not represent views or policies of the Wilson Center.
______
Prepared Statement of Stanley Lubman, Visiting Scholar, Center for
Lawand Society and Lecturer of Law, School of Law, University of
California (Berkeley)
february 7, 2002
I welcome the opportunity to submit this statement to the
Commission. I have been specializing on Chinese law and related matters
since 1963 as a scholar of Chinese law teaching at universities in the
United States (Stanford, Columbia and Harvard, in addition to Berkeley)
and Europe (the Universities of London and Heidelberg) and
simultaneously, since 1972, as a practicing lawyer representing foreign
clients in China. For twenty years I headed the China practice at two
American law firms (1977-1993) and an English firm of solicitors (1993-
1997). A third and growing dimension of my involvement with Chinese law
has been work on projects related to law reform. During the 1980's I
participated in the activities of the Committee on Legal Educational
Exchange with China, funded by the Ford and Luce Foundations and USIA,
which brought Chinese law teachers to the United States for study and
research; since 1998 I have participated in law reform projects in
China under the auspices of the Asia Foundation, where I am advisor on
China legal projects.
summary
Twenty years of reforms have led to remarkable transformations in
China's society and economy, and have also driven an extensive program
of legal reform. The Chinese leadership, desiring to accelerate
economic reform, has recently agreed to strengthen legal institutions
in order to comply with obligations that China has assumed upon
accession to the WTO. Sustained effort over a period of years will be
needed for China to be able to meet its WTO commitments regarding
trade-related laws.
Wider legal reform, extending beyond trade-related matters, is also
contemplated, but faces considerable difficulties. Efforts must be made
from the top down, although official policy and many officials have
less than a firm commitment to the rule of law; efforts are required
from the bottom up, although Chinese civil society is weak and
undeveloped. For protection of human rights to expand, the leadership
must energetically support legal development, and legal culture among
officials and the general populace must change. Broadened political
participation, too, could deepen the extent to which legal institutions
can protect human rights in China.
The policy of the United States should simultaneously aim at a
number of goals:
The U.S. should energetically promote legal reform, including the
establishment and strengthening of institutions that will buttress the
protection of rights by Chinese. Congress should advance beyond the
small commitment it has hitherto made to funding U.S. assistance to
Chinese law reform, and support well-planned efforts by foundations,
NGO's and universities. At the same time, Americans should not assume
that Chinese institutions must be judged by the extent to which they
resemble our own.
The U.S. should condemn human rights abuses by bilateral diplomatic
means and in international forums. At the same time, American criticism
and insistence on change in Chinese institutions should be tempered by
recognition of the limits on U.S. ability to change internal Chinese
conditions.
American perspectives on China should not focus on single issues or
clusters of issues. Balance is necessary among human rights and other
issues in Sino-American relations that are significant to U.S. national
security. Critics of human rights abuses should avoid demonizing China
and thereby complicating the shaping of policy on other questions.
chinese legal reform since 1979
Accomplishments
Reform has brought a fundamental new orientation toward governing
China, in which formal legislation has become the major framework for
the organization and operation of the Chinese government. To implement
economic reforms, since 1979 China has generated an extraordinary
volume of legislation. Illustratively, legislation has been used to
frame commercial activity; to express policies of State macroeconomic
control and their implementation; to give legal recognition to new
rights and interests; and to create a framework for direct foreign
investment.
China has acceded to an extensive range of treaties and
international agreements that signal its participation in a global
economic community; legislation has been used for a host of purposes
related to building the necessary infrastructure for a marketizing
economy, as in regulating basic industries, setting standards for
environmental protection, and sanctioning violations of intellectual
property rights. Institutions intended to curb administrative
arbitrariness have been created, and codes of criminal law and
procedure have been promulgated and revised.
The courts have been reconstructed. Formerly scorned as
``rightist'' institutions at the end of the 1950's and as ``bourgeois''
during the Cultural Revolution, they have been rebuilt in a four-level
hierarchy.
Courts are increasingly being used as the forums in which rights
created by legislation are asserted by citizens against each other and,
to some extent, against State agencies. The bar, too, has been
established; there are probably now over 150,000 lawyers. Although most
of the 8,000 law firms are state-run, the number of ``cooperative''
firms is growing.
Obstacles
Ambivalence in leadership policies on the rule of law
Chinese policy toward the rule of law reflects an ambivalence that
is sharply illustrated by President Jiang Zemins statement in February,
1996, when he stated Let China be ruled by law, a phrase that was given
extensive publicity throughout China. Unfortunately, that was not the
entire sentence: In the next phrase, Jiang exhorted all to maintain the
long-term stability of the nation, that is, preserve the leading role
of the Chinese Communist Party (CCP) over Chinese society.
Just as symbolically, in 1999 China's National Peoples Congress
amended the Chinese Constitution to insert the rule of law into that
document as a leading principle for the first time. It co-exists there,
however, with Marxism-Leninism, Mao Zedong Thought and Deng Xiaoping
Theory, all doctrines that insist on CCP dominance.
The persistence of pre-reform institutions of the Party-
state; ineffective implementation
In some areas, the authoritarianism of the Party-state continues.
Chinese criminal law and criminal procedure remain heavily
dominated by the police and by Party influence over individual cases;
recurrent campaigns to punish crime distort the operation of the
criminal process. Police still have the power to send alleged offenders
against certain laws to labor reeducation camps for as long as 3 years.
Both within and outside the criminal area, much legislation has
only been hesitantly and incompletely implemented.
Deficiencies in the judicial system
The operation of the courts is seriously deficient. The judiciary
is inadequately professionalized: Only some 10 percent of all judges
have a complete 4-year legal education; many judges have previously
served in the army or in other jobs that did not qualify them for their
current tasks. Corruption is widespread. Moreover, the extensive
decentralization of power that has taken place since 1979 has led to
the phenomenon that Chinese call local protectionism. Because local
judges are appointed and the courts are financed by local governments,
when deciding disputes the courts often favor local enterprises on
which the local governments depend for their revenues. In addition, the
courts are frequently criticized for their unwillingness to enforce
judgments rendered by courts elsewhere in China against local
defendants.
The difficulty of enforcing judgments has surfaced not only in
disputes among Chinese parties, but in attempts by foreign parties that
have obtained awards from foreign arbitration tribunals or from the
China International Economic and Trade Arbitration Commission (CIETAC).
In one case of which I have extensive personal knowledge, the Zidell
Valve Corporation of Houston, Texas obtained CIETAC awards against two
separate Chinese defendants that were found to have sold millions of
dollars of flanges to Zidell that did not meet contract specifications.
When the Chinese parties refused to pay the amounts awarded, Zidell
brought timely suit in the appropriate courts in Beijing and Taiyuan.
The courts violated Chinese law by raising issues that had been
definitively disposed of by the arbitral tribunals; by failing to
report the cases to the Supreme Peoples Court; and by misapplying
Chinese law to decide in the defendants favor a spurious claim that the
proper legal representative of the plaintiff had not authorized the
suit. The courts, including the Supreme Peoples Court, to whose
attention this case has been called, remain unresponsive to protests
against the blatant obstruction to the plaintiffs attempt to exercise
its rights to enforce Chinese arbitral awards. This case is not unique,
and the courts plain violations of law and procedure suggest the
persistence of ongoing problems in the functioning of the courts.
Although central government leaders have endorsed proposals to
reform the courts in order to remove or lessen the impact of local
protectionism on their work, judicial reform has not yet been
decisively advanced. It may be desirable for the central government to
finance the judicial system, but there is considerable question whether
it has the necessary financial resources.
recent chinese commitments to deepen the rule of law
China's accession to the WTO has brought China's leaders to realize
the need to deepen of law reform with regard to trade-related and
certain other laws. They seem willing, too, to engage in wider legal
reform, but some obstacles will impede the further strengthening of
institutions.
Uniformity of compliance with WTO obligations
Chinese commitments in the Protocol of Accession include an
undertaking to ensure that local government regulations would conform
to China's WTO obligations. Some impetus will be given to uniform
administration by implementation of the Chinese undertaking to
establish a mechanism under which individuals and enterprises can bring
to the attention of the national authorities cases of non-uniform
application of the trade regime, (Protocol of Accession, Art. 2 (A) 4)
but it may be difficult to bring about effective national action to
modify or annul local deviations from WTO standards. Nationwide
uniformity may be a distant goal, and
Transparency
The Chinese government has undertaken not to enforce unpublished
laws, formerly common. It has also promised that China shall make
available . . . upon request, all laws, regulations and other
measures pertaining to or affecting trade . . . before such measures
are implemented or enforced. (Protocol of Accession 2 (C)1) Compliance
with this provision will require legislatures and administrative
agencies to make public, before they become effective, a much wider
range of rules and regulations than they have before. The term rules
and regulations is used here generically to cover both laws promulgated
by central and local governments and various forms of rules issued by
administrative agencies; in practice, the terminology is more complex
and the relationship of various norms to each other is very disorderly.
Attempts are under way to put greater order into the system, and
the formulation of legislation is being transformed from the passive
translation of policy into a specialized professional activity.
Compliance with the undertaking quoted above also would import a
high degree of transparency into law-making and rulemaking processes
that have been impenetrable to outside gaze for decades. China has
never required a consultation phase in these processes, and is just
beginning to experiment in this area. The Legislation Law adopted in
1999 provides generally for legislative bodies and administrative
agencies that are drafting legislation or rules to engage in
consultations with concerned citizens or organizations. Similarly, the
State Council has recently adopted regulations on the drafting process
of its rules that provide for in-depth, on-the-spot investigations and
studies of the main issues in the draft regulations; when the vital
interests of citizens, corporations, or other organizations are
involved, hearings may be held. A similar provision is included in
regulations on the drafting of rules by State Council agencies.
These provisions reflect the Chinese leaderships willingness to
begin to consider ways of channeling inputs from Chinese society.
Preliminary reports suggest, however, that some experimental
hearings have involved only carefully chosen participants. Considerable
time will have to elapse for experimentation with these new procedures
to unfold--and for officials to change their mentalities so that that
they will accept comment on proposed rules from outside the drafting
bodies.
Judicial review of administrative acts
One of China's most ambitious undertakings upon accession to the
WTO is its commitment to institute judicial review of administrative
actions:
China shall establish or designate and maintain tribunals contact
points and procedures for the prompt review of all disputes relating to
the implementation of laws, regulations judicial decisions and
administrative rulings of general application . . . Such tribunals
shall be impartial and independent of the agencies entrusted with
administrative enforcement (Protocol of Accession 2(D)1).
It is unclear whether the main tasks of scrutiny of administrative
decisionmaking will be performed by courts. If so, apart from the
weaknesses that have been mentioned above--low professionalization,
local protectionism and corruption--there are others as well, because
the powers of the courts are limited.
The Administrative Litigation Law that became effective in 1990
permits affected parties to sue administrative agencies in the courts
for alleged illegal application of an administrative rule, and some
litigation has ensued. A more recent administrative punishment law
places limits on which organs have power to create different types of
punishments; specifies mandatory procedures for imposing different
types of punishment; requires that decisions to impose punishments must
state the reasons therefor and requires agencies to comply with
procedures set out in law.
Courts may only review the legality, not the reasonableness of the
acts complained of. However, Chinese regulations are intentionally
drafted in vague language to give maximum discretionary authority to
agencies, and as a result it may be difficult to establish that a
regulation was actually violated. As long as an administrative action
is technically consistent with the rule it applies, the act may not be
challenged in the courts. The courts are at the same level in each
locality as other administrative agencies; in the past, in interpreting
administrative regulations, the courts have usually deferred to the
agencies own interpretations of their rules. If a court finds a rule to
be inconsistent with a higher-level regulation it may not invalidate
it; although it may refuse to apply it, such non-application hardly
ever occurs.
The courts also lack the power to decide on the inherent validity
of administrative rules, regulations, decisions or orders of universal
application. Under the Chinese Constitution and legislation doctrine,
legislatures are superior to the courts in power; only they may
invalidate legislation and administrative rules, while courts may not.
The Legislation Law of 1999 provides for only limited challenge to
national or local legislation or administrative rules, by written
request to the Standing Committee of the National Peoples Congress.
Governmental organizations--but not citizens--may challenge State
Council regulations by written statement to the State Council itself;
anyone may address challenges of department rules to the State Council;
and anyone may the administrative enactments of large cities.
Administrative law reform is under way. For example, the State
Council is drafting a law on licensing intended to address the need to
define--and limit--the powers of local governments and agencies to
issue rules for granting, suspending or modifying licenses, including
procedures to give affected parties ample opportunity to present their
views, in some cases in the context of a public hearing. Work is
actively going forward on drafting a statute that is intended by the
Legislative Affairs Commission of the NPC to be an administrative
procedure act for China. A crucial unresolved issue is whether the
powers of the courts can be increased to bear the burden that such a
law would place on them.
The requirement of uniform, impartial and reasonable administration of
law
China's commitment to standards in the GATT derived from the rule
of law is further stated in its acceptance of a key provision in the
Protocol of Accession (Art. 2 (A) 3):
China shall administer in a uniform, impartial and reasonable
manner all its laws, regulations, rules, decrees, directives,
administrative guidance, policies and other measurespertaining to or
affecting trade in goods, services, trade-related aspects of
intellectual property rights or the control of foreign exchange.
The major obstacles that lie in the path of implementation of this
provision should be clear: The links between the courts and
administrative agencies and the defects in the courts that have already
been noted here, as well as local protectionism and corruption, all
seriously dilute the State capacity of PRC institutions to meet this
general standard.
HUMAN RIGHTS
The foregoing review of some salient characteristics of Chinese
legal institutions provides a context for considering the system from
the perspective of human rights. A sober review of accomplishments to
date suggests that the a legal system in China is still a work in the
making, and that realization of even trade-related legal reforms will
require considerable time and effort. This is all the more true with
regard to human rights.
I believe that the protection of human rights can expand as certain
legal institutions are strengthened. Expansion of the nascent legal aid
scheme, judicial reform and reform of administrative law and procedure
would all bring obvious benefit. Progress will depend, among other
things, on the pace of economic reform and the stability of the current
regime or whatever post-Communist regime might succeed it. Moreover, it
is wise to be cautious about the extent to which economic development
can generate legal and political reform. It is a necessary condition
for such reform, but it hardly makes such reform inevitable. Critical,
too, will be the extent to which institutions of Chinese civil society
can grow and seek to improve protections for human rights.
Americans should also keep in mind that whatever form legal
institutions and rights-based protections might take in the future,
they are likely to vary from our institutions and from the ideals that
we often project onto China. The legal traditions of the two nations
are very different, and transition away from totalitarianism is rife
with uncertainties.
I emphasize here the importance of legal culture, by which I mean
nothing more than the attitudes toward law of both officials and the
general populace. The Chinese legal tradition did not know any doctrine
of individual rights, and ill-fated Republican rule did little to plant
the seeds of rights-based doctrine. After the PRC was established in
1949, it did not advance any notions of individual rights. The
protection of legal rights, much less human rights, is a new transplant
brought to inhospitable Chinese soil. Regardless of any foreign
assistance or pressure, much work must be done by even the most willing
government to nourish that frail transplant in China. This is not to
say that conceptions of human rights cannot grow in China. Quite the
opposite; after almost thirty years of traveling and working there, I
am sure that many Chinese understand very well that the rule of law is
a desirable alternative to governmental arbitrariness and lack of
protection for individual rights.
The task of strengthening rights-based doctrine is all the more
difficult because of a crisis in values that is likely to continue for
years. Economic reforms have weakened traditional ideas of morality,
already bruised by Communist rule, and faith in socialism and in the
rule of the CCP. No system of values have taken their place. Social
cohesion is threatened by social inequalities that have been created
and aggravated by economic reforms; moreover, foreign access to Chinese
markets will increase economic distress further in some sectors of the
economy and foster the social instability that the Chinese leadership
seeks to avoid.
In the face of the enormous social flux in the worlds most populous
nation, Americans, policymakers and otherwise, have no choice but to be
modest about what the United States can do to influence internal
conditions in China. Such restraint should be complemented by
emphasizing Chinese conduct that affects U.S. national security, and
which should therefore assume first priority in diplomacy.
Nonproliferation, the status of Taiwan, the future of the Korean
peninsula, Chinese participation in the war against terrorism, Chinese
diplomacy in South Asia and missile defense are only the most obvious
issues.
Those Members of Congress most concerned about human rights abuses
might reconsider the approach that has allied them with other members
who regard China as a future enemy and who disdain engagement.
Demonizing China will not contribute to enhancing institutions that can
protect human rights, while engagement in legal reform projects could
possibly have constructive effects that would be welcomed by many
Chinese and by foreign observers.
AMERICAN SUPPORT FOR LAW REFORM IN CHINA
Congress should seriously consider funding meaningful and well-
planned projects for the building of Chinese legal institutions. For
all the vocal insistence from Congress on improving Chinese legality,
Congress has been reluctant to appropriate funds to support such
institution-building. Presidents Clinton and Jiang agreed on a program
of legal cooperation in October 1997, but Congress provided no
financial support for it. Since then, fortunately, Congressional has
expressed willingness to support rule of law programs.
NGO's and academic institutions can contribute to law reform
efforts.
Recent experience of the Asia Foundation is an example. The
Foundation decided in 1998 to promote administrative law reform, and
obtained support from the Smith Richardson Foundation for a 3-year
program of Sino-American consultation. As director of the project, I
formed a committee of leading American experts on administrative law
and on Chinese law. Our Chinese counterparts are members of the
administrative law drafting group of the Legislative Affairs Commission
of the National Peoples Congress. Our committee reviewed and commented
on a draft law on licensing (1999); sent specialists to lecture on
administrative law (2000); and organized a conference on the impact of
the WTO on Chinese administrative law (2001). We now hope to help the
same group in its work of drafting an administrative procedure law.
With China's accession to the WTO, Chinese interest in foreign
training and consultation on important areas of law has grown. The Asia
Foundation is now financing a program for training officials of the
Legislative Affairs Office (LAO) of the State Council on the
requirements that WTO accession now imposes on China. The local offices
of the LAO will be responsible for reviewing proposed local laws and
regulations for compliance with WTO standards. In March, 2002 a group
of American WTO experts will lecture in Beijing; thereafter, Chinese
officials will visit the U.S. to learn about U.S. administrative law;
in a third stage, after returning home, Chinese officials will meet
U.S. counterparts to discuss practical problems of making new Chinese
laws and administrative rules consistent with WTO requirements. The
Asia Foundation experience summarized here illustrates the contribution
to incremental progress that can be made by NGO's, foundations and
universities.
Congress ought to support other programs that combine expertise on
specific areas of the law with familiarity with Chinese circumstances;
that promise to have significant effects; that involve sustained
interaction between Chinese and American personnel; and that emphasize
repeated contacts with the same counterparts over time rather than one-
time trips or delegations in either direction.
CONCLUSION
I have presented a mixed view of Chinese legal reform during the
last two decades, and have outlined current uncertainties without
predicting a likely outcome. It seems clear, though, that U.S. refusal
to assist legal development will contribute nothing positive to the
prospects for the growth of the rule of law in China or, even more
remotely, to the further dilution of authoritarianism. Although the
eventual outcome is in doubt, China's accession to the WTO may mark a
new stage in its legal development. The United States ought now bring
its influence and assistance to bear on furthering that legal
development.
______
Questions for the Record Submitted by Senator Bob Smith
Last month, Assistant U.S. Trade Representative Joseph Papovich
stated that China is not doing enough to curb intellectual property
rights. Furthermore, Papovich hinted at the unlikelihood of using the
WTO dispute resolution system to remedy these unacceptable and illegal
acts. The United States has been trying to work with China on the
enforcement of this issue for several years to no avail. Now, China has
ascended to the WTO. Professor Feinerman, can you give me your
assessment of China's ability to fulfill their obligations under WTO
regulations, pertaining to violations of U.S. intellectual property
thefts?
I have been one of the Senate's most outspoken critics of China's
deplorable human rights abuses, especially concerning the repression of
Christians and other religious groups who do not choose to worship in
the ``official'' PRC State churches. In December of 2000, I was deeply
disturbed at the PRC sanctioned razing of churches and other places of
worship along the eastern coast. In fact, I wrote a rather forthright
letter to former Secretary of State Albright concerning this issue, to
which I never received a reply from the Clinton State Department. I
would like all the witnesses to give me their opinions on where do they
see religious rights in the PRC moving in the future, given the fact
that PNTR and membership to the WTO in theory was to curb Beijing's
crackdown and even loosen restrictions and allow for more religious
freedom.
In your opinion, is it plausible for China to remain a stridently
ideologically communist driven state, keeping with its brutal
repression and policies, while still being able to reap economic
profits and higher living standards for the Chinese people? I would
request all witnesses to respond.
______
Responses of Mike Jendrzejczyk to Questions From Senator Bob Smith
Question 2. I have been one of the Senate's most outspoken critics
of China's deplorable human rights abuses, especially concerning the
repression of Christians and other religious groups who do not choose
to worship in the ``official'' PRC state churches. In December of 2000,
I was deeply disturbed at the PRC sanctioned razing of churches and
other places of worship along the eastern coast. In fact, I wrote a
rather forthright letter to former Secretary of State Albright
concerning this issue, to which I never received a reply from the
Clinton State Department. I would like all the witnesses to give me
their opinions on where do they see religious rights in the PRC moving
in the future, given the fact that PNTR and membership to the WTO in
theory was to curb Beijing's crackdown and even loosen restrictions and
allow for more religious freedom.
Answer 2. The State Department's annual human rights country
report, just issued for 2001, mentions the razing of churches in
December 2000. It also notes that unofficial religious groups in China
last year suffered ``official interference, harassment and
repression.'' This analysis tracks closely with that of Human Rights
Watch, as we described in some detail in our written testimony to the
Commission on February 7. I expect that future Chinese government
policy on religious activities will be much the same, i.e. in some
areas there is a level of toleration, and in others, strict
implementation of PRC laws and regulations aimed at managing and
controlling religious expression. Official policy on religion does not
seem to be affected, one way or another, by China's entry into the
World Trade Organization or its PNTR trading status with the US.
Question 3. In your opinion, is it plausible for China to remain a
stridently ideologically communist driven state, keeping with its
brutal repression and policies, while still being able to reap economic
profits and higher living standards for the Chinese people? I would
request all witnesses to respond.
Answer 3. Clearly, the Chinese Communist Party hopes to derive some
measure of domestic legitimacy, if not popular support, by providing
economic benefits to many of the Chinese people. However, it's not
clear whether the government can indefinitely maintain its economic
reform program--and even accelerate the reforms--without at some point
having to tackle the more difficult question of political reform and
the monopoly of the Party on State power. Pressure is growing
internally for a less corrupt, and more open and accountable system.
I think that pressure is likely to grow over time.
______
Responses of William P. Alford to Questions Submitted by Senator Bob
Smith
Question 1. Last month, Assistant U.S. Trade Representative Joseph
Papovich stated that China is not doing enough to curb intellectual
property rights. Furthermore, Papovich hinted at the unlikelihood of
using the WTO dispute resolution system to remedy these unacceptable
and illegal acts. The United States has been trying to work with China
on the enforcement of this issue for several years to no avail. Now,
China has ascended to the WTO. Professor Feinerman, can you give me
your assessment of China's ability to fulfill their obligations under
WTO regulations, pertaining to violations of U.S. intellectual property
thefts?
Answer 1. At the risk of undue self-promotion, I would like to
direct the Senator's attention to my book on this subject which is
entitled ``To Steal a Book is an Elegant Offense: Intellectual Property
Law in Chinese Civilization'' (Stanford University Press). Although the
book was published in 1995, I think that its basic argument about the
factors impeding the development of greater respect for intellectual
property rights still holds. The Senator may find my discussion of the
links between enhanced respect for fundamental rights and for
intellectual property rights of particular interest.
Question 2. I have been one of the Senate's most outspoken critics
of China's deplorable human rights abuses, especially concerning the
repression of Christians and other religious groups who do not choose
to worship in the ``official'' PRC State churches. In December of 2000,
I was deeply disturbed at the PRC sanctioned razing of churches and
other places of worship along the eastern coast. In fact, I wrote a
rather forthright letter to former Secretary of State Albright
concerning this issue, to which I never received a reply from the
Clinton State Department. I would like all the witnesses to give me
their opinions on where do they see religious rights in the PRC moving
in the future, given the fact that PNTR and membership to the WTO in
theory was to curb Beijing's crackdown and even loosen restrictions and
allow for more religious freedom.
Answer 2. I would certainly agree that the promotion of greater
respect for religious freedom is a paramount concern. My own sense is
that the forces drawing Chinese citizens in rapidly increasing numbers
to religion--in particular, the quest for meaning at a time of major
social dislocation--are so powerful that they can not be vanquished,
even by the state. I think that for us the question is how to be most
effective in lending support for this fundamental freedom. I think that
it is incumbent on the American government and American citizens to
continue to speak out on this issue and to make it known to Chinese
authorities, publicly and privately, that the practices your question
describes are unacceptable in this day and age.
Question 3. In your opinion, is it plausible for China to remain a
stridently ideologically communist driven state, keeping with its
brutal repression and policies, while still being able to reap economic
profits and higher living standards for the Chinese people? I would
request all witnesses to respond.
Answer 3. I would like to respond by suggesting modifications, if I
might, to two key assumptions in the Senator's question. First, while
it is certainly the case that the Communist Party remains immensely
powerful, I think it is no longer as ideologically committed as the
Senator's question implies, as we can see from the extent to which
corruption has entered its ranks. Second, while the overall standard of
living in China certainly has improved quite significantly over the
past two decades, I think we need both to take statistics about
economic growth with a healthy grain of salt and to recognize that the
gap between rich and poor in China has grown at a very rapid rate in
recent years. In short, the model the Senator is questioning is already
encountering serious problems, even on its own terms.