Sponsorship of China’s political advertising in the U.S.: The example of Tung Chee-hwa

By Jerome A. Cohen

Here is a report from a few weeks ago, “Chinese Communist Propaganda Group Paying for Vox Posts”, noting that the Vox has received funding support from the China-United States Exchange Foundation, whose chair is Tung Chee-hwa, the first Chief Executive of the Hong Kong Special Administrative Region.

  Photo: a screenshot of the website of the China-United States Exchange Foundation

Photo: a screenshot of the website of the China-United States Exchange Foundation

How should the media in various countries deal with political advertising—and more subtle forms of financial support—for China’s views and actions is an important issue. But we should not neglect the broader aspects of the problem—how should the independent academic and policy organizations on whose China research the media depends deal with their needs for financial support? In what circumstances is it acceptable or even desirable for them to receive the support of China-backed organizations?

No salesman for PRC views could be more attractive and persuasive to Americans than C.H. Tung, who proved more effective in the U.S. than he was in his native Hong Kong during the period he was the SAR’s Chief Executive. On behalf of one organization or another, CH has offered and provided funds to various U.S. think tanks and other research groups.

As long as no strings are attached and there is public disclosure, I am not bothered by such support, and indeed it can be very important in making possible the continuing work of useful research organizations. How long such support will continue if the recipient’s products don’t square with PRC objectives is worth examining. And, of course, CH’s sponsors will not support research organizations that have already demonstrated critical views of PRC policies.

Years ago, when I was urging the Council on Foreign Relations, where I have long worked part-time, to consider opening a branch in Hong Kong, I talked with CH about the possibility of his joining in this effort. He was enthusiastic until I noted that, of course, membership would have to be open to people with all points of view, including the famous democratic veteran Martin Lee!

CH seems to have a long-standing preference for avoiding Martin’s outlook. I recall, when CH was the SAR’s chief, I suggested to him that the Hong Kong Basic Law Committee, which advises the Standing Committee of the National People’s Congress, be developed into a serious forum for fairly considering the proper interpretation of controversial clauses of the Basic Law. This would be somewhat akin to what the role of the Judicial Committee of the Privy Council in the House of Lords had been concerning Hong Kong legal issues in colonial times. His swift reaction was to reject the idea because that would only give “guys like Martin Lee” another opportunity to make trouble!  

Israel’s Ties with China

By Jerome A. Cohen

Here is a very useful update on the complex Israel-China relationship, What’s Behind Israel’s Growing Ties With China?. It makes me recall the period 1979-81 when, long before the establishment of diplomatic relations between them, Israel was already secretly providing arms to China. Many of us who then inhabited the Peking Hotel knew what the lonely Israeli arms merchant, Shaul Eisenberg, who so often ate alone in the hotel restaurant, was up to.

 I was told at the time that Israel had enacted a special law exempting Eisenberg (or his company) from income tax on his China profits. His cooperation with Beijing undoubtedly laid the groundwork for gradually increasing Israeli-PRC contacts that led to the preparation for diplomatic relations. My awareness of this process crystallized when in the early ‘80s Peking University asked me to find it a Hebrew teacher and the money to support the teacher. Most of the small group of first students ended up working for Xinhua in Israel or in other relevant pursuits of the Israeli-PRC normalization (Xinhua is the New China News Agency, often used as a forerunner of formal diplomatic relations).

Perennial problems with corruption cases in China

By Jerome Cohen

There have recently been increasing signs of popular dissatisfaction with judicial handling of corruption cases in China. Of course, corruption cases are politically sensitive in every country and often involve influential defendants as well as accusers. Chinese courts are generally weak and unable to withstand political pressures to go along with what the Party-state demands. How can they overcome the instruction of the Party discipline and inspection teams and now the Party-run government supervisory commissions? It is much harder to vindicate rights in China’s corruption cases than in ordinary criminal cases, even if the case really involves only corruption rather than the continuing, if non-transparent, political struggle, local or national.

Thus far specific legislative improvements do not have much effect in Chinese practice. Moreover, it’s like putting a band-aid on a gaping wound. The new supervisory system does not offer significant protections against the arbitrary and lengthy incommunicado detention and torture that mark the criminal process even now, almost 70 years after the founding of the People’s Republic of China.

The fear that the current corruption investigation system engenders in the business and bureaucratic elites is undoubtedly slowing economic development. Certainly, democratic countries that are the principal hiding places for absconding corrupt elements are very reluctant to return fugitives to a country that plainly will not allow them a fair and independent criminal process.

China should face up to the need for genuine reforms in the administration of justice from the moment of detention through the appeal procedure. China should consider establishing special procedures for the handling of cases of returned suspects that could inspire the confidence of foreign countries and provide a model for reforming the regular criminal process.

Kim Jong Un’s third trip to China!

By Jerome A. Cohen

Today’s Washington Post reports that Kim Jong Un has made a third trip to China for meetings today and tomorrow. He ought to get a commuter ticket and is beginning to look like a Chinese yoyo! John Fairbank must be smiling from the grave at this blatant resurrection of the Sinocentric world.

For Kim Jong Un to do this, without more than talk of a reciprocating visit by Xi Jinping, the stakes and pressures must be very high! For those who debate the importance of personal diplomacy this series must have great interest. Tune in tomorrow! 

Settling law of the sea disputes: international law is better than gunboats!

By Jerome A. Cohen

 Subi Reef, May 2015, by United States Navy [Public domain], via  Wikimedia Commons

Subi Reef, May 2015, by United States Navy [Public domain], via Wikimedia Commons

Here’s a piece from the WSJ on French warships asserting freedom of navigation in international waters in the South China Sea—The French Navy Stands Up to China. It may be helpful to emphasize that the location of the ship, airplane, other object or person in question is indeed a critical fact in these disputes. It’s like the secret of success in the hotel business— “location, location, location.”

More broadly, we also should not overlook the obvious, yet seldom-mentioned, fact that the disputing nations have peaceful means at their disposition to settle their many conflicting claims to territory, maritime boundaries and United Nations Convention on the Law of the Sea (UNCLOS) interpretations. Negotiation, mediation, arbitration, and adjudication are all set forth in the UN Charter, and UNCLOS and other pieces of international legislation provide details regarding the possibilities. It is not good enough for the U.S., China, France and others to employ gunboats to vaguely raise their claims in a threatening manner.

The Philippines, in its stunning arbitration claims against China, did try to resort to law and a decision by some of the world’s acknowledged independent legal experts in order to defend itself against a much stronger power. The durability and significance of the UNCLOS tribunal’s monumental arbitration award against China is now being tested, especially by a Chinese Government that is seeking to undermine the award in multiple ways.

The U.S. should ratify UNCLOS and subject itself to the UNCLOS compulsory dispute resolution procedures, as other states have. It would be good if Vietnam, Malaysia and other claimants were to challenge China to settle their disputes over who owns the Spratlys before the International Court of Justice. It would be good if Japan, whose Foreign Minister did challenge China to settle their Senkaku/Diaoyu dispute in the East China Sea before the ICJ in 2012, would also challenge some of China’s law of the sea actions and interpretations via the UNCLOS dispute resolution procedures, in the South China Sea as well as the East China Sea. And Vietnam, Malaysia, Indonesia and others should also resort to those procedures to settle their various maritime claims. France should also explore its legal possibilities for contributing to peaceful settlement.

Since the U.S. has shamefully not ratified UNCLOS, that treaty’s procedural options are denied to Washington, which can only coach from the sidelines. In the long run Asian states may want to develop their own regional institutions for handling these problems, but they can do a lot even now. Gunboats are not the only weapons. We can and should make better use of the “weapons” of international law to help settle increasingly dangerous disputes.

Trump-Kim summit: possibility of North Korea’s developing a credible legal system?

By Jerome A. Cohen

With all the speculation about what positive outcomes might emerge from the Trump-Kim Singapore Summit, we might include the possibility that steps might well be taken to establish a more credible legal system in the DPRK, if only to enhance its economic development and its felt need to establish business cooperation with other countries that have until now understandably shunned the North.

There is no doubt that there has long been DPRK interest in developing a credible legal system, at least for the purpose of attracting foreign business. Both from 1998 to 2001 at Beijing University and in 2013-14 at Hong Kong University, with the collaboration of the Asia Foundation, my NYU colleague Dr. Myung-Soo Lee and  I organized, on behalf of our US-Asia Law Institute, a series of occasional small training programs for North Korean business officials eager to learn how to attract foreign trade and investment to their country. Also, in 1998 I twice took foreign investors that had successfully done business in China to Pyongyang for preliminary business discussions.

While North Korean economic officials had considerable experience with ordinary export/import transactions, they seemed totally unprepared for the complexities of Foreign Direct Investment projects. When at the start of our 2013 sessions I asked the group what they wanted to learn, their initial response was “Why doesn’t Coca Cola want to invest in Korea?” I replied, my head in my hands, by saying “Where to begin?”

Although the North was generally super-cautious about not letting us know the fruits of our labors, I know that our 1998 effort did produce an international commercial arbitration law, and I believe the DPRK did subsequently establish a law firm in Pyongyang to advise on foreign-related business after we spent a couple of days visiting Chinese and foreign law offices in Beijing.

Business law inevitably introduces the notion of government under law. Although the North Korean officials were incredulous about the glamourous offices of one of China’s leading international law firms, they were really stunned when a less prosperous government-owned law firm told them that one of their functions in representing Chinese people was to sue the government for arbitrary violations of administrative law. The chief Korean delegate’s reaction was: ”We don’t have that concept in our country.” Yet we know from infrequent recent reports that some Pyongyang residents have protested against arbitrary actions by the secret police and that their government has tried to improve the situation..

It will be interesting and significant to see whether, in legal aspects as in others, the DPRK will finally follow the paths of China and Vietnam. 

Taiwan’s peaceful use of Taiping Island highlights China’s militarization in South China Sea

By Jerome A. Cohen

Here is a very good essay by Steven Myers of the NYTimes on “Island or Rock? Taiwan Defends Its Claim in South China Sea.” The draftsmen of the United Nations Convention on the Law of the Sea (UNCLOS) could have spared the world a lot of confusion had they done a better job. Obviously Taiping Island is an island not only by the definition agreed on in UNCLOS but also in our common vernacular. But Article 121 of UNCLOS should have made it clearer that it deals with two types of islands—those entitled to a 200 nautical mile Exclusive Economic Zone (EEZ) and those that are not. By calling the latter mere “rocks” the draftsmen set the stage for misunderstanding by the general public concerning the decision of the arbitral tribunal in the Philippines-China dispute since any observer can see that Taiping Island is an island in the commonly understood sense. As the tribunal concluded, however, Taiping Island is not an island entitled to an EEZ in accordance with the criteria stated in Article 121. If every small island were allowed an EEZ, it would produce chaos and conflicts in maritime affairs.

The best part about the Myers story is its emphasis on the peaceful uses to which Taiwan is putting its occupation of the island, in contrast to the militarization by China of features that it has occupied, some of which are not even properly subject to identification as islands at all because, in their natural state, they are not above water at high tide as Taiping Island is.

As Beijing began its artificial constructions on and militarization of these always submerged or low tide reefs and tiny islands – much tinier than Taiping Island, it had tried to assure the world that it was taking these actions largely for non-military purposes, thereby inspiring some of us to suggest that it demonstrate its peaceful intentions by allowing other states to share the use of these features and thereby avoid the crisis that Chinese military bases would inevitably induce. I also suggested that Taiwan open Taiping Island to a variety of international activities. Sadly, at this point, the multilateral option—always unlikely—now seems to be definitively off the charts, leaving the U.S. and China to search for other possible ways to resolve their emerging clash of interests.

What is happening in Xinjiang?

By Jerome A. Cohen

Here's a campaign launched by the Lantos Foundation and Uyghur NGOs. Bravo for their efforts to highlight the stunning, outrageous detention of hundreds of thousands of innocent Uyghurs in Xinjiang. But why is the international academic community largely silent about the current atrocities??? I hope that journalists are silently working to confirm the few reports that are published about what has to be the worst current abuses being committed in China, which says a lot! 

Who are the targets of the round-up? What are conditions in the concentration camps like? How long are people being held? What is the content of their “re-education”? What happens to those who are released? How many are transferred to the formal criminal process, either to “residential surveillance at a designated location” or to the regular detention, arrest, indictment, prosecution and punishment after “trials”??? What should be done to alert the world and to mobilize vigorous responses?  What are foreign governments doing in public and behind the scenes? I am proud of the U.S. Government’s very recent condemnation of Beijing’s shameful measures. Do the Turkic/Muslim countries feel no special obligation to speak out and act?

China sends Uyghurs to re-education camps as a “preventive measure”

By Jerome Cohen

Here is a Radio Free Asia report on the hundreds of thousands of Uyghurs who have been detained in “re-education” camps. The number detained may have reached one million, according to the estimate. This is far beyond the number of those who were retained for “re-education through labor” (RETL) at any given time in what were supposedly the last years of that notorious punishment. As I recall, there were usually said to be about 300,000 detained for RETL at that time.

We need to know much more about who has been recently detained in Xinjiang, for what reasons, by what procedures, for how long, for what type of “education” etc. Is it really true that people under 40 are being preventively detained without any basis for suspicion other than the fact that, because of their relative youth, they might be susceptible to evil thoughts and actions? This is a horrendous situation that makes a mockery of the Party’s claim that it is pursuing the “rule of law”. It invites comparisons with the early years of Hitler’s attack on the Jews.

It also makes me think of Lee Kuan-yew’s Singapore. Until the early ‘80s, when he changed his views, Lee prohibited Singaporeans under 40 or 45 (I forget which) who had been educated in the PRC from returning to Singapore, regarding them as security risks. Lee also resorted to preventive detention, but on a very limited scale and with respect to people who had at least demonstrated what he regarded as “left wing” sympathies. I hope those of us who observe developments in China will not look away from this ugly, worsening phenomenon in the Central Realm.

Xi Jinping’s aspirations

We are witnessing an important modification of the Deng Xiaoping era, personalistic one-man rule enhanced by efficient Party controls of all aspects of life.

By Jerome Cohen

On Sunday, China’s National People’s Congress passed the comprehensive constitutional amendment proposed by the Communist Party under Xi Jinping’s leadership. The vote, which had the support of 2,957 delegates (with only two “no” votes and three abstentions), is what I anticipated. The leadership had to show a few dissenting voices among the almost 3,000 delegates in order to give the appearance of freedom on the part of the delegates. But it wanted, at the same time, to have a show of overwhelming support for the constitutional changes, unlike on some occasions where as many as 100 delegates have either voted against or abstained from voting with respect to certain reports on the legal system. 

The leadership had to work hard in recent weeks first to press the Communist Party Central Committee to go along with its proposal and then the National People’s Congress delegates. Without the advance approval of the leadership it would have taken a brave, indeed foolhardy, person to express dissatisfaction in the current circumstances where the Xi Jinping machine had gone all out, using fear, intimidation and incentives, to achieve its goal. 

We are witnessing an important modification of the Deng Xiaoping era, personalistic one-man rule enhanced by efficient Party controls of all aspects of life, increasing intolerance of dissent, more direct government controls of business and ever greater repression through the new supervisory commissions.

Ironically, this Constitutional amendment changed the wording in the Preamble from ”健全社会主义法制” to “健全社会主义法治.” I have always understood the newly-inserted last character in the phrase to symbolize the aspiration for China to achieve government under law (法治) rather than merely rule by law (法制). I think its insertion in the current circumstances is an attempt by the Xi Jinping crowd to hijack the term in accordance with his clear preference to rule the country by law rather than continue the reality of lawlessness in some crucial respects, as in shuanggui (双规), the party punishment that lacks any legal basis.

That is why we are getting the supervisory commissions fig-leaf of officiality and that is why, in order to feel comfortably free to plan on indefinite tenure as “president”, Xi insisted on amending the Constitution so everything can be done “according to law”.

Of course, there is no intent to place his actions under the law, and it is disappointing that the amendment does not come to grips with the Constitution’s Article 37 in an attempt to reconcile the National Supervisory Commission’s (NSC) “liuzhi” (留置) detention with Article 37’s restrictions on detention and arrest. (Perhaps that is being left to forthcoming relevant legislation—the NSC Law and a possible Organic Law of the NSC system to match the organic laws of the other institutions that purportedly fall under the National People’s Congress. Or it can be done later via a National People’s Congress Standing Committee interpretation or perhaps even a Supreme People’s Court’s interpretation if necessary.)

Everyone talks about Xi Jinping wanting to be another Mao Zedong. Some observers compare Xi’s ascent to the story of Putin. I have been saying for a long time that Xi’s goal is to out-do Stalin, without all the killing, and he may well succeed. He really is following the Stalin centralization of power, suppression of dissent, model that emphasized “the stability of law” even as Stalin used it as an instrument to promote the slaughter of millions.

My interview with the Diplomat: Xi and CCP Aim for Unchallenged Power

This is my interview of last week with the Diplomat on the continuing discussion of Xi Jinping's ending the President's term limits.

https://thediplomat.com/2018/03/jerome-cohen-xi-and-ccp-aim-for-unchallenged-power/ 

Jerome Cohen: Xi and CCP Aim for Unchallenged Power

To whom much is given, much will be required.

By Maurits Elen

March 07, 2018

The Chinese Communist Party (CCP) has contributed much to the success of the modern Chinese nation — a gradual liberalization strategy of the economy has produced widespread growth and raised the standard of living for millions of people. If China continues its current trajectory, it will be crowned the world’s largest economy not long from now.

No one would disagree, however, that China has also become an increasingly oppressive society, with an ever more authoritarian government suppressing the freedoms of its 1.4 billion citizens in order to meet policy objectives. The trend does not seem likely to be reversed anytime soon. In this interview, Jerome Cohen, a Professor of Law at New York University and lifelong friend of China, shares his views on the National People’s Congress’ upcoming decision to remove the presidential term limit from the Chinese Constitution.

Maurits Elen: Are peaceful power transitions in China, as seen since Deng Xiaoping, now less likely to occur without clear succession mechanisms in place?

Jerome Cohen: As many observers agree, ending the term limit is a recipe for increasing political instability and weakening, and perhaps even ultimately dividing the Party. With no designated successor, serious illness or death of the leader could lead to chaos long before the end of the second term, not to mention beyond that.

There are Western leaders who have served a prolonged time in office, sometimes more than a decade. How does this compare to Xi?

Long leadership in a democratic country places the leader and his party in an entirely different position. As the British public demonstrated after World War II when it repudiated the great Churchill after he led the country to victory, even the greatest leader can be replaced in a democracy. And remember the British decided to bring Winston back after they got a dose of Clement Attlee. It was all very orderly, even despite the fact that the U.K. was in a bad domestic shape and was losing its international power at the time.

[Click here to continue reading this interview.]

Xi Jinping Amends China's Constitution

This is my take on the controversial issue of China’s recent move to amend the Constitution. It is just out on the Lawfare blog

Xi Jinping Amends China's Constitution

By Jerome A. Cohen

 Wednesday, March 7, 2018, 12:21 PM

The instantaneous reaction to the momentous news that Xi Jinping will be eligible to serve a third term and beyond as chairman of China’s government is the most recent demonstration that we live in a connected world. Domestically, Xi’s bold move to amend his country’s Constitution, although undoubtedly popular with the masses, has clearly generated significant elite opposition. This has been visible even in non-transparent China, despite Xi’s stifling of information and free expression. Indeed, adoption of what could be life tenure for Xi apparently inspired considerable opposition even within the secret confines of the Communist Party Central Committee, which reportedly had to be dragooned into supporting his political coup.

The elimination of term limits for what are usually translated into English as China’s presidency and vice-presidency is only one of three crucial constitutional amendments about to be adopted. The other two are the enshrinement of “Xi Jinping Thought” and the formalization of government “supervisory commissions” that will strengthen what should be called the Inquisition with Chinese characteristics. Together they will expand Xi’s already fearsome powers over his countrymen and potentially extend his dictatorship into the indefinite future.

The outside world, until now, has shown insufficient interest in the Xi regime’s shocking violations of the human rights supposedly guaranteed by both Beijing’s Constitution and the more than twenty international legal documents to which the People’s Republic of China (PRC) has surprisingly adhered. Sunday’s announcement, however, has awakened deeper concern about Xi’s steadily increasing repression. Foreign observers, for example, have finally begun to focus on the fact that hundreds of thousands of Muslim Chinese citizens are today detained in “political education” camps designed to destroy their religion and customs—camps suspiciously similar to the “re-education through labor” sites that were ostensibly abolished several years ago.

To be sure, Xi Jinping’s constitutional coup has given the world other more prominent concerns—foremost among them its implications for international security. This electrifying elimination of the formal barrier to Xi’s life tenure as chief of China’s government crystallizes developments over the past five years that have resurrected foreign worries about a “China threat.” It coincides with, and further fuels, the intense criticisms by many American policy makers and foreign affairs experts who now question the premises of Washington’s China policy of the past half century.

Only months ago this attack seemed the monopoly of right-wing critics, egged on by the likes of Steve Bannon, who were preparing to mobilize the nation against the perceived growing power of the Beijing regime. Now the attack—and the resistance it has begun to inspire—have moved to center stage.

I am one of those who, in the late 1960s, urged the Johnson and Nixon administrations to abandon U.S. hostility toward the PRC, even though it was in the throes of Mao’s Cultural Revolution. Looking back, I do not think our policy was wrong. Surely continuation of the policy of containment and isolation would have been worse. Of course, different supporters of the then-new policy of luring the PRC into the world community had different primary motivations. Many of us who specialized in Chinese studies were not only interested in the realpolitik of using Beijing to balance Moscow and to extract the U.S. from its mistaken foray into Vietnam. We also believed that ending China’s isolation and promoting its active participation in the world community would be a boon to peace and to the well-being of the long-suffering Chinese people.

That belief has been vindicated by the impressive progress that has been made both in international relations and China’s domestic life since the PRC’s entry into the United Nations in 1971 and the establishment of diplomatic relations between Washington and Beijing in 1979. Now, however, we are confronted by the consequences of success and at a bad time because the helm of the Chinese Communist Party has been seized—perhaps only temporarily—from more moderate leaders. Xi Jinping is a dynamic, able, ruthless and nationalist leader embarked on a mission to restore the greatness of the “central realm” after two centuries of felt inferiority and grievous struggle.

Xi is a risk-taker with a vision backed by a coherent, long-run strategy and tactics to match. His endless speech to the 19th Party Congress last October is a document worthy of serious attention. It showed no interest in either human rights or international law but is destined to have a huge impact both at home and abroad. At the time, Steve Bannon—by then no longer an adviser to the president but still a prominent voice on the right—called it "the single most important speech of the twenty-first century."

The sudden prospect of Xi’s indefinite rule may have a stunning effect on the American public comparable to the Soviet Union’s successful launching of Sputnik. In China its impact on the educated classes may approach that of the Party’s June 4, 1989 military slaughter of students, workers and intellectuals near Tiananmen Square. There has already been a spike in Chinese interest in emigration, and many of the hundreds of thousands of Chinese students in North America, Europe, Australia and other countries appear to have been jolted into reconsidering their plans to soon return home. To the extent we are allowed to know, Xi, a master of propaganda, remains broadly popular with the less-educated population despite growing dissatisfaction with the income inequality, rural-urban divide, labor conditions, real estate bubble, horrendous pollution, male-female imbalance and other problems that trigger the sense of injustice and an extraordinary number of “mass incidents.”

Of course, many Western observers hope that America’s response to this week’s news will stimulate not only abandonment of President Trump’s pathetic and costly attempts at foreign policy but also a resurgence of bipartisan support for strengthening the cooperation of democratic nations and the further development of international institutions and practices capable of meeting Beijing’s political, military, economic, diplomatic and human rights challenges in firm but fair and reasonable ways.

Those challenges may not turn out to be as fearsome as widely anticipated. China’s liabilities are increasing more rapidly, although less obviously, than its assets. This is surely one of the major factors that has led Xi Jinping to play the role of the merciless dictator vigorously suppressing and unfairly punishing mere domestic criticism as well as overt dissent.

Yet it has proved impossible for him to completely hide the difficulties that his bid to end term limits has encountered, even within the Party’s loyal Central Committee. China watchers will now focus on the size of the vote by which the upcoming National People’s Congress (NPC) approves the Party’s proposal to amend the Constitution. Will there be only a handful of token dissenters, just enough to give the appearance of a credible free vote and overwhelming support for Xi’s bid for unrestricted power? Or will there be one hundred or more negative votes or abstentions, as there sometimes have been for the annual reports to the NPC of the Supreme People’s Procuracy and the Supreme People’s Court in protest against blatant failures to honor the rule of law? If a significant minority of the NPC’s roughly 3,000 delegates should muster the courage to register their open disagreement, will their vote be revealed in accordance with customary practice? Or will the published result be doctored to save Xi Jinping’s face?

Experience suggests that the Chinese equivalent of intense lobbying must be under way as the NPC session unfolds, in order to assure the Party leadership’s desired outcome. Skilled Party minions have many tools for enforcing the leadership line through combinations of intimidation and persuasion. Yet, as the process of enacting a number of controversial statutes has demonstrated in recent decades, it is no longer entirely accurate to dismiss the NPC as “China’s rubber-stamp legislature.”

Whatever the vote, it is already clear that Xi Jinping is paying a high price at home as well as abroad for his understandable wish to avoid becoming a final-term lame duck.  Although the anticipated constitutional amendment will add to his power in the short run, it is likely, as many predict, to produce greater political instability before long. If the supreme leader fails to cope with the problems that he will inevitably confront in the next few years, his constituents will know whom to blame, and rivals will be all too eager to seize the advantage.

There is especially high risk of an important mistake in international affairs. Xi, for example, may overplay his current efforts to increase pressures on Taiwan to rejoin the Motherland before the 100th anniversary of the Communist Party’s 1921 founding. A shootout with the U.S. in the South China Sea could also have embarrassing reverberations, as could chaos or war on the Korean Peninsula. We should not assume that the new possibility that Xi can continue to lead the government after 2023 means that he is necessarily destined to do so. As Matthew Arnold wrote long ago, “Only the event will teach us in its hour.”

China is likely to enter another long period of severe dictatorship

By Jerome A. Cohen

Term limits for the leadership are not usually found in dictatorships. The Chinese Communist Party’s proposed abolition of China’s presidential term limit means that it has forgotten one of the main lessons of Mao’s long despotism. The two-term limit was inserted into the People’s Republic of China Constitution after the Cultural Revolution ended and reflected a widespread desire to prevent the return of one-man dictatorship. Its abolition signals the likelihood of another long period of severe repression. This should prompt us to think of Chiang Kaishek as well as Mao and Yuan Shikai and, in a comparative Asian vein, of Marcos and Park among others. Of course, some recognize that Putin’s example may also have significantly influenced Xi Jinping.

Xi’s move will have a profound effect on world order. It will enable him to move more boldly and increases the risk of his acting arbitrarily and perhaps mistakenly in international relations. It will surely hinder China’s efforts to be respected for “soft power” as well as military and economic prowess.

Xi decided to strike while the iron is hot rather than wait for later in his new term when increasing problems might have made the change more difficult. His brash step has undoubtedly aroused profound concern among the elite. Many high Party personnel, bureaucrats, judicial officials, lawyers, intellectuals, academics and business people, mindful of the past Maoist dictatorship and the increasingly repressive and arbitrary government under Xi, have seen this coming and now, in social media and other informal ways, are showing their anxieties and opposition.

But not many public signs of protest can be expected, since he has stifled free expression in the past few years. There must be great grumbling and concern among the country’s elite and educated, especially since the same Party “proposals” that have eliminated term limits have also confirmed the establishment of the National Supervisory Commission that will make the regime more repressive and more free of legal restraints than ever, imposing what amounts to “the Inquisition with Chinese characteristics.”

There is big risk for Xi at home since, as it becomes more obvious that China’s problems are catching up with its achievements, the government will look less impressive and the masses will begin to lose their enthusiasm and hold the great leader responsible. The elite will be less surprised but less forgiving.

The external risk is more immediate. Xi’s bold consolidation of power will enhance fear of “the China threat”, and his ever greater repression will make people think of Stalin’s decades-long centralization of power, even though, one hopes, Xi will not engage in mass executions. He already is engaging in mass detentions in Xinjiang even though “re-education through labor” was abolished in name a few years ago.

These “proposals” are at least a 1-2 punch against the Constitution when we consider the simultaneous establishment of the National Supervisory Commission. People often wonder—even now—how in 1937 Stalin could have said: “We need the stability of the law more than ever.” while at the very same time displaying the infamous “purge trials” to the world and lawlessly executing huge numbers of people. Xi claims to be strengthening the “rule of law” while making certain that it will never get off the ground. Tell it to all the tens of thousands in Xinjiang who are locked up in Xi’s successor camps to the supposedly abolished “re-education through labor”.

An excellent ChinaFile Conversation: Is American Policy toward China Due for a ‘Reckoning’?

By Jerome A. Cohen

ChinaFile is usually very good value but this week’s Conversation on American policy toward China is of an especially high quality, and what topic is more important and timely, given the current state?

Perhaps enough ink has already been spilt in response to the brilliantly provocative essay by Kurt M. Campbell and Ely Ratner, and I found myself in agreement with all the commentators in the Conversation. Of course, I enthusiastically endorse what Liz Economy and Andy Nathan have written and also particularly benefited from the wise counsel of Lindsey Ford and Robert Daly, whose views I had not heard before. Yet a few additional remarks may be helpful in adding perspective to our dilemma. Therefore, I have chimed in with a comment (attached below with a number of links that might be useful as background).

Best wishes to my blog readers for the Year of the Dog. Hope Springs Eternal!

--------My comment in the ChinaFile Conversation--------

The problem of exaggerated expectations is not a new one for China policy. We only need to recall Franklin Roosevelt’s insistence that the Republic of China (R.O.C.) be accorded permanent membership in the U.N. Security Council. I wonder how much more complicated People’s Republic of China (P.R.C.) participation in the U.N. might have become if it had not been able to step into the R.O.C.’s Security Council shoes.

I think the hopes that motivated the U.S. effort to initiate a new China policy in the late ’60s and ’70s were more varied and complex than often recognized. There was realpolitik as well as wishful thinking. Have we given enough weight, for example, to the importance of obtaining P.R.C. support to counter the Soviet Union and to ease us out of Vietnam? Many China watchers had broader considerations than those in mind when advocating change, but I don’t recall many of my own colleagues saying that we would create China in our own image. I think, for example, of the memorandum that our Harvard-MIT group submitted to Nixon and Kissinger under the awning of the Kennedy Institute of Politics in November 1968 after many discussions. I also want to excavate my 1971 and 1976 Foreign Affairs articles to see the extent to which convergence was a stated goal. We plainly thought that rapprochement would improve international relations as well as the lives of the Chinese people.

We should not underestimate the extent to which the new policy did effect positive change, certainly in the lives of the Chinese people. Anyone who worked in China in the ’70s and even the ’80s can attest to the enormous progress in social and economic conditions that gradually resulted from the Open Policy. And, after a hiatus of several years following June 4, the renewed and wider engagement proved to be successful in many respects, including education and communication, and many Chinese elites today reflect the enormous progress that has been made, which is why Xi Jinping has to fight so hard against “Western values” and to repress and punish free expression.

We should keep in mind that Xi will eventually pass from the scene, at which time we can expect a reaction against his harsh rule. Many in China today are very unhappy about both the domestic oppression and many aspects of Xi’s foreign policy. The P.R.C.’s response to the Philippine arbitration was extremely controversial within expert circles, just as is the imminent enactment of the new “Supervisory Commission” system of arbitrary detention that will confirm what I call “The Inquisition with Chinese characteristics.”

I favor the measures suggested by so many of the commentators in this discussion to reinvigorate American policy in diplomatic, economic, and military terms and to revive our society. But in doing so we should not foster the misimpression that the P.R.C. will remain frozen in the Xi Jinping mold. I still like Joseph Nye’s admonition to “keep open the possibility of more benign outcomes.” Indeed, we need to do more to stimulate such possibilities by enhancing our competitiveness without, as the phrase goes, being confrontational. Given the situation in the South China Sea and in the Taiwan Strait, this will not be easy.

The Belt and Road Initiative (BRI) courts? China’s attitude towards dispute resolution

By Jerome A. Cohen

Here is a good article looking into China’s plan to develop dispute mechanisms in relation to its Belt and Road Initiative (BRI), Dispute settlement on China's terms: Beijing's new Belt and Road courts. In short, the People’s Republic of China is now setting up various mechanisms to deal with BRI contract disputes between Chinese investors (including Chinese state-owned enterprises) and foreign companies.

There are many unanswered questions about how this new option will develop. Will PRC negotiators try to insist that local host partners agree to PRC court or arbitration jurisdiction? Will host nations insist that disputes arising from BRI projects in their countries be dealt with in their own courts or arbitration tribunals?

When Western foreign direct investment (FDI) began in earnest in China in 1979, there was a period of jousting as foreign companies sought to assure arbitration outside of China. No one dreamed of submitting to PRC court jurisdiction but some investors were agreeable to working out arbitration in China under mutually acceptable rules. In that brief period PRC negotiators were usually under orders to try until the last moment to persuade the foreigners to accept PRC arbitration but not to lose the deal because of their efforts.

In a few years, however, the PRC insisted that, if a project was to take place in China, any relevant disputes had to be arbitrated in China under PRC procedures, institutions and governing law, and such was the appeal of investing in China that the PRC usually had the bargaining power to obtain FDI on its dispute resolution terms. Some potential investors, however, refused to sign up, at least until subsequent years demonstrated a basis for relying on PRC arbitration.

Soon the China Council for the Promotion of International Trade (CCPIT)/ China International Economic and Trade Arbitration Commission’s (CIETAC) monopoly on arbitration of FDI disputes in China was broken by some 200 Chinese cities, each of which, under local Party control, sought to get a piece of the foreign-related arbitration action. Wise foreigners sought to avoid most of these, although the Beijing Arbitration Commission gradually inspired foreign confidence, in some cases more than CIETAC did. Then, of course, civil or uncivil war developed within CIETAC itself as Shanghai, Shenzhen and other CIETAC branches challenged the Beijing Headquarters.

I think most BRI contracts, at least at the start, may favor Singapore arbitration, the Hong Kong International Arbitration Center or some other neutral, prestigious institution located in a place with a credible judicial system for enforcement of awards and interpretation of relevant law. Or the International Chamber of Commerce (ICC) or some other well-known organization may be authorized by the parties to conduct arbitration in a place of mutual convenience under its rules as modified by the parties to suit their needs in matters relating to procedure, language and substantive law. I doubt whether national courts, in China or elsewhere, will play much of a role, at least in BRI’s early years. 

Construction contracts are hideously complicated to draft, apply and arbitrate. For example, a decade or so ago I presided for 12 days over an ICC hearing of a dispute between a South Korean investor and a Saudi Arabian company involving a joint venture factory investment in Saudi Arabia that went awry. I loved asking questions every day but then ruined the rest of my summer by having to draft a long award that would have benefited from greater knowledge of engineering than I or my two fellow arbitrators possessed. Things sometimes became even more complicated if, as called for in some international construction contracts in China and Taiwan, the hearing had to be conducted in Chinese and the award written in Chinese!

Carl Minzner’s new book: End of an Era: How China's Authoritarian Revival is Undermining Its Rise (Oxford 2018)

By Jerome A. Cohen

Fordham Law School’s prestigious Leitner Center for Human Rights gave Professor Carl Minzner’s book—End of an Era: How China's Authoritarian Revival is Undermining Its Rise—a splendid launch in an all-day program on Monday that focused on its implications for the future of  “rights lawyers”.  At lunch Carl gave an eloquent overview of the book, which is learned, analytical and stimulating while maintaining a highly readable style throughout. It is plainly directed at a broad and influential audience and likely to have a significant impact on the current reevaluation of the PRC’s power. Teng Biao and I made subsequent comments.

Teng emphasized the totalitarian aspects of the Xi Jinping era and maintained that the U.S. has a special duty to promote democracy in China and that the political costs of transition to democracy have been exaggerated. Among a number of other points he also urged Western nations to defend against PRC efforts to undermine their own democracies.

I focused on the implications for rights lawyers, urging them to recognize that the current era of extreme repression will pass, just as the Cultural Revolution did, and that they should in the interim try to avoid martyrdom by pursuing their craft within the unfair restrictions imposed by the regime in order to survive and recruit others to prepare for the better days to come. Too many brave and able lawyers have already been eliminated as functioning professionals as a result of torture and other punishments including “medication” designed to destroy their mind as well as their will, with corresponding harm to their families. 

My final point branded Xi Jinping’s efforts to justify his repression by invoking China’s authoritarian “Confucian” past as ineffective and hollow, as demonstrated by today’s Taiwan and South Korea in addition to Japan and by the prominent roles that rights lawyers are playing in those societies. China’s present leader seeks “soft power” as well as military and economic power but does not seem to realize that his repression of rights lawyers is increasingly earning the world’s ridicule and scorn.

Teng Biao made the proper point that it is very difficult for even cautious rights lawyers to always know where the regime is drawing the line at any given time, and thus some have become unwilling martyrs to the rule of law.

Chinese police's recent re-detention of Swedish Citizen Gui Minhai: What’s the story?

By Jerome A. Cohen

Gui Minhai. Photo: Hong Kong Free Press, screenshot/CCTV.

The recent Chinese police re-detention of Mr. GUI Minhai, a Swedish citizen, when he was on the train with Swedish diplomats escorting him to Beijing, deserves more public attention than it has received. China’s action must be questioned and protested by the international community, as argued by last week’s Washington Post editorial, China’s violation of rights grows ever more brazen.   

The People’s Republic of China leaves itself open to condemnation by failing to give a public explanation of its dramatic and unusual deprivation of Gui’s freedom. This is probably because there has been some disagreement or lack of coordination in the PRC government’s control of Gui. What may have happened is that the local security police in Ningbo may have approved Gui’s trip to Beijing for medical reasons, as apparently it had approved his Shanghai trips to the Swedish Consulate there. But the central authorities, when they learned of the plan, may have panicked at the possibility that Gui might seek embassy asylum, as the blind barefoot lawyer CHEN Guangcheng did in 2012, and decided to detain Gui again to prevent that possibility. There may also have been, and still might be, a struggle between the Ministry of State Security and the Ministry of Public Security concerning jurisdiction over Gui.

I suspect we will soon see the following explanation from the PRC: Gui was living in Ningbo under “qubao houshen” (取保候审), a Chinese type of bail requiring the “released” suspect to remain in the city where he has been released and requiring him to obtain special permission for any outside trips. Although Gui has apparently completed his sentence for his earlier traffic offense, his bail must relate to the unfinished current charges for which he apparently has not yet been tried.

It is possible, of course, that the Swedish Embassy may have decided to follow the U.S. example in the Chen case and make positive efforts to spirit Gui to the embassy’s custody, but, given the Swedish Government’s quiet, conventional efforts to aid Gui to date, and to aid Peter Dahlin after his detention, that seems unlikely.

Yet, given the escort of two Swedish diplomats accorded Gui, one has to give Sweden credit at least for seeking to assure Gui better medical treatment in Beijing and for anticipating possible obstruction.

Reportedly the PRC and Sweden have differed on the degree of consular access to be permitted to Gui at various times, and these issues probably have a history going back to the original detention of Gui in Thailand, which was a brazen kidnapping. It should be noted that Sweden and China apparently do not have a bilateral consular agreement, which is odd, but both adhere to the multilateral Vienna Convention on consular relations.

These incidents involve so many as yet unanswered questions. The PRC should not remain silent even if its agencies have not yet coordinated. The Ministry of Foreign Affairs, as so often in these cases, was publicly embarrassed when its spokesperson implicitly admitted that it really did not know what was going on.

Certainly, the Swedish Government should reveal the full story behind its frustrations in this case and in others involving China, and Swedish public opinion should demand that the Government tell the truth now. 

National supervision commission and China’s silenced legal elites

By Jerome A. Cohen

The second plenum of China’s 19th Party Congress was concluded last week. It paved the way for amending the Constitution to establish a National Supervision Commission. But this proposed “reform” has encountered fierce misgivings, especially among three expert groups: members of the Procuracy, i.e., the national and local prosecutors; influential scholarly specialists in constitutional law and criminal justice; and human rights and criminal defense lawyers.

The anticipated Constitutional and legislative changes represent a huge setback for almost four decades of official, scholarly and professional efforts to establish a rule of law that will protect the rights of individuals in their dealings with the government and the Communist Party. The Procuracy has major institutional reasons for opposing the new situation, since many of its personnel will be reassigned to investigative work in the supervisory commissions that will in effect be largely lawless in terms of meaningful procedural protections for suspects. Moreover, the powers of those prosecutors who remain in the Procuracy will certainly be limited in their handling of cases sent to them by the supervisory commissions. Also, procurators, scholars and lawyers are plainly opposed to the changes for many other good reasons including the length of incommunicado detentions possible without any other check or restraint, the absence of access to counsel, the very broad scope of the conduct that can be punished, even going beyond the criminal law’s prohibitions to include alleged violations of Party discipline and public morality, and the very large numbers of people—far beyond only Party members—who will be subject to repression and fear.

These changes will create a nightmarish scenario that will counteract many of the genuine reforms to the criminal justice system that are being developed and currently discussed. Yet, after a courageous academic protest meeting drew harsh official reaction, no one has dared to speak out in a public way despite great hostility to the changes continuing to be expressed on a confidential basis.

Xi Jinping regards formal authorization of these changes, which have already taken place in practice in many places, as positive because it will give an official fig-leaf to a terrifying investigatory/punishment process that until recently has been largely practiced by the Party against Party members and that has been widely condemned as lawless by many critics at home and abroad. But this new attempt at official veneer is plainly not authentically legal, even in terms of the government’s existing legal system. The anticipated constitutional amendments cannot remedy the situation and will make major alterations in the governmental system that the People’s Republic imported from the former Soviet Union..

What is at stake here is the legitimacy of the country’s legal system in the eyes of the educated, articulate but currently silenced, influential elites. Political leaders, bureaucrats, business figures and their employees, prosecutors, judges, legislators, professors and especially lawyers have good reason to fear that they may be the next victims of a plainly arbitrary system. This is the Inquisition with Chinese characteristics!

"Just Fifteen Books" on China? A historic reading list!

By Jerome A. Cohen

I just discovered an essay that I much enjoyed writing done at the request of Harvard Magazine in 1974—Just Fifteen Books on China?. Apart from an inexplicable blooper over the name of author Hsu–not Kai, I can live with almost every word even today. The list, while compiled over forty years ago, would still be of interest to those who have made new year resolutions to read more books on China. Of course, now there are many more good books, which is a testament to how much this field has grown and the world changed. Belated Happy New Year!

Just Fifteen Books on China?

"It would be a delightful summer diversion. What China-watcher wouldn’t relish an assignment to select fifteen good books to introduce general readers to contemporary China? It promised to be easy. After all, I had recently reviewed the state of the art while my wife and I were working on our last book, China Today (Harvard Magazine, February 1975, Page 31). And the assignment would be worthwhile, spurring me to catch up on a flurry of new books. I had visions of days spent reading in the hammock or on the beach, and the evenings devoted to the new parlor game of challenging fellow Sinologues to name their fifteen favorites…"

Click here to read the rest of the article.

(In)justice with Chinese characteristics: the twinned stories of two human rights activists, Wu Gan and Xie Yang

By Jerome A. Cohen

 Wu Gan; source:  China Change .

Wu Gan; source: China Change.

 Xie Yang; source:  Changsha Intermediate Court .

Xie Yang; source: Changsha Intermediate Court.

The two Christmas cases of Wu Gan and Xie Yang—victims of China’s 709 Crackdown on human rights activists and lawyers in 2015—demonstrate the continuing importance and benefits of pleading guilty. “Leniency for those who confess, Severity for those who resist.” (坦白从宽,抗拒从严) has been the fundamental maxim of criminal justice in the People’s Republic of China. The Chinese Communist Party (CCP) erected into high public principle what has long quietly been the practice of many legal systems. The insistence on confession characterized Chinese justice centuries before the rise of the CCP and for many reasons.

Confession admits the correctness of the government’s charge and helps to relieve those who administer the system of doubts or feelings of guilt they might harbor. Confession reinforces prevailing ideology. It also avoids the embarrassment and risks to administrators that appeals can cause and the delay and administrative costs involved. In China refusal to confess and insistence on appeal are seen to constitute an attack on the prosecution and the government. Confession encourages others to follow suit, and it is viewed as the first step toward the reform of the accused.

Yet how persuasive can any of these factors be when torture is so often the stimulus for confession and everyone knows this? Moreover, at least in non-political cases, the CCP is increasingly concerned about the frequency of wrongful convictions caused by coerced confessions.

The Christmas timing of the two cases is worth noting. There is no doubt the PRC government wants to be thought well of abroad as well as at home, which is why it spends so much on a worldwide system of propaganda and seeks to control the UN and other organizations regarding the PRC’s suppression of human rights. Of course, it prefers not to reveal many abominable acts, which is often possible because of its domination of the media and even social media.

The timing of its repressive human rights acts depends on many factors. Certainly, when it’s possible to manipulate the timing of acts of repression that are likely to be condemned by the world, the PRC is eager to do so in order to reduce publicity and minimize harm to its quest for soft power. The dates of trial hearings and sentencings are one example among many others.

The twinned stories of Wu Gan and Xie Yang may be destined to continue and provide more grist for the mills of those who study the PRC’s expansive and imaginative detention policies. It will be important to see, of course, how long Wu Gan can remain alive and resistant in captivity. It will also be important to see to what extent Xie Yang, having reversed his previous stand under torture, “confessed” on demand and thereby won exemption from further formal imprisonment, will be allowed to resume his former human rights advocacy or, like most of his comrades, remain in what I call “non-release ‘release’”.

The misleading term “house arrest” no longer does justice to the varieties of informal, unauthorized, suffocating restrictions on their freedom that most “released” human rights advocates are suffering. Indeed, many human rights activists suffer such restrictions even before they are formally detained! The PRC has blurred the line between “detention” and “freedom”, giving new meaning to these words.