The ABA's statement about the crackdown on lawyers in China

The recent crackdown by the Chinese government on human rights lawyers has raised the question of what is an appropriate response by foreign organizations working on the rule of law in China. The statement released by the President of the American Bar Association on August 4 has further prompted such discussion as well as frustration of those who want to see a stronger statement of the ABA in support of China’s beleaguered lawyers, as in this op-ed by Robert Precht in the Washington Post.

Below are some thoughts of Professor Jerome Cohen about the ABA statement and the broader question of what considerations foreign organizations, including bar associations, universities and NGOs, have when they think about how to respond to the recent challenge.

Jerome A. Cohen

August 4, 2015

First of all, I am impressed by how little interest has been expressed in the ABA statement. Perhaps it’s the mid-summer doldrums and holiday schedules, perhaps many people feel what the ABA says is of little significance in influencing the PRC to cease its attack on human rights lawyers, and perhaps there is little appreciation of the importance of human rights lawyers and the Party’s attack on them.

The ABA statement does not meet my standard for what would have been appropriate. I had helped draft a stronger statement, yet one that also emphasized the ABA’s hard work over the past 17 years and the importance of continuing, indeed expanding this effort with the support of some of the other lawyers’ organizations that condemned the PRC purge. Some of the language of our draft is in the compromise final draft decided upon by the ABA president.   I think the final statement is adequate since it shows the ABA is not happy with what the PRC is doing, which is a lot more than the original draft produced by the staff of its Rule of Law Initiative did. So I think the statement is helpful, since it adds to the protest the voice – however timid – of one of the world’s greatest bar organizations. Of course, even the outpouring of protest is not likely to be helpful in the sense of persuading XJP to call off the hounds, but it surely is helpful in supporting the victims and their colleagues and families and the hundreds of thousands of Chinese legal officials, judges, prosecutors, lawyers, legislators, law professors, journalists and activists who have been coerced into suffering this abomination in guilty silence. It is also helpful in letting the American legal profession and general public know more about reality in China today.

 ABA's logo on its website: americanbar.org

ABA's logo on its website: americanbar.org

It would be painting too quickly and with too broad a brush to say the mild ABA response is a result of meretricious, mercenary motives on the part of law firms, universities, or NGOs.  Individual American law firms with offices in China or otherwise engaged in China practice have never shown the slightest interest in human rights problems. That surely is for business reasons. Yet bar associations have often been active regarding PRC transgressions as well as those taking place in many other countries. I am glad to say the NY City Bar has in this case, as in many others, made its condemnation loud and clear, n Chinese as well as English.  The Hong Kong Bar Association, whose opinions really carry some weight in China, is terrific in this respect.

The situation with universities has its own characteristics. Universities and their centers and institutes seldom go on record as institutions condemning Chinese human rights violations, but many individual faculty members and research scholars do express themselves even while many keep silent for their own good reasons. I do not think that the failure of universities and centers to speak out can generally be attributed to concerns over loss of money, although some might suffer financial consequences from doing so. I think there are other explanations readily available, some reflecting worthy considerations and some not (does visa denial constitute primarily a monetary concern?).

NGOS also need careful analysis. Human rights NGOs that cannot set up shop in China have no hostages to fortune. Those like the ABA that have labored long and hard in China, with some staff devoting their lives to this kind of work, have a lot to lose if their protests lead to their ouster and the closing of their office. That was the principal articulated consideration motivating those within the ABA who preferred no statement or one that would have been ludicrous in the eyes of the world. Of course, one can say that their view too is based on money since their jobs and funding could be cut off by a hostile PRC reaction, but I think that a genuine zeal for law reform and a belief that their efforts have already produced tangible progress and will in the long run bear greater fruit was their primary motivation. Concern was also expressed that a strong statement might lead the PRC to impose sanctions against the persons of their American and especially Chinese staff in Beijing, an idea that seemed to carry weight with some within the ABA who know little about China.

So ABA leaders were called on to balance conflicting considerations, essentially to balance the speculative consequences of a strong statement against the less speculative consequences of failing to meet the challenge, including the ongoing but impossible to stop attack on China’s human rights lawyers and the damage to ABA’s reputation. Hence the compromise. Many ABA lawyers were undoubtedly unhappy with the outcome, judging by their words and votes during various group discussions. I know nothing about ABA practices and procedures but what I witnessed from afar (I did my pro bono consulting by phone, skype and email from the soothing beaches of Cape Cod!) made me think a bit of law reform is overdue within the organization!

A SEPTEMBER 7 POST-SCRIPT: The ABA’s dilemma has surely not ended. Public criticism has begun to rise at summer’s end. Some within the organization are properly calling for further consideration in a special meeting. There is already an effort under way to persuade the ABA to seek to add to the agenda of its long-scheduled November conference with Communist Party-controlled Chinese lawyers a discussion of the current repression of human rights, public interest and criminal defense lawyers.