Lawyer-client meeting in “national security” cases in China

My colleague Yu-Jie Chen has just sent around her comments below on the police’s written decision to reject the lawyer-client meeting (“不准予会见犯罪嫌疑人决定书”) in recent cases related to the oppression of lawyers and other human rights advocates since July 9 last year (“709”). With her permission, I’m pasting her comment below, followed by my response.

---

“This kind of decision to reject the lawyer’s request to meet with the criminal suspect seems to have been standardized into a form and used in several cases of the 709 activists and lawyers, including lawyer Wang Yu (here), Li Heping’s 24-year-old assistant Zhao Wei (here), law scholar Liu Sishin (here), and activist Wu Gan (the latest 不准予会见 decision in his case was issued on Feb. 6). All these decisions have been issued by Tianjin City public security authorities (including its Hexi branch), which has been in charge of the 709 crackdown as far as I know. In addition, the case of lawyer Zhang Kai, who has been detained in Wenzhou, also saw such a document issued by the Wenzhou police (here). I’m sure there are many others that I haven’t seen.

The basis invoked by the police is Article 37 (3) of the Criminal Procedure Law, which, in cases involving crimes endangering State security, terrorist activities or significant amount of bribes, asks defense lawyers to obtain the approval of investigating agencies before meeting with their clients.

However, we should note that in the September 2015 regulation issued by the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of State Security and Ministry of Justice to protect lawyer’s rights to practice (“关于依法保障律师执业权利的规定”), the police are required to provide reasons (说明理由) in rejecting the lawyer-client meeting. I don’t think simply producing a form as a formality meets this standard. But in reality, I wonder if there is any remedy for such a violation.” 

Written notice rejecting the request of ZHAO Wei's defense lawyer to meet with Zhao

---

 Written notice in WANG Yu's case

The use of such a form reveals the cavalier manner in which the police violate their nation’s Criminal Procedure Law by arbitrarily denying the right to counsel in their attack on rights lawyers and other human rights advocates whom they have detained. Indeed, the police are doing exactly what Article 9 of the major September 2015 Five-Institution Regulation interpreting the 2012 Criminal Procedure Law explicitly forbids. They are failing to give lawyers requesting a meeting with their detained clients the reasons for rejecting the meeting.

They simply fill in the bare details identifying the case on a printed police form that claims the requested meeting would interfere with their “national security” investigation OR reveal state secrets, without giving any facts or justification of such alternative claims. This flies in the face of Article 9’s stern admonition that investigating agencies may not interpret “as they wish” the “national security” and other exceptional provisions authorizing them to deny counsel their right to meet detained clients in certain circumstances. This admonition, based on decades of experience demonstrating how in practice the police always turn narrow legislative exceptions into broad arbitrary rules, is specifically designed to prevent the police from arbitrarily restricting the right of lawyers to meet their detained clients.

According to the law, lawyers should be able to vindicate their rights by seeking administrative review of the police refusal at the next higher police level and by asking the local procuracy to investigate the arbitrary police refusal. Such efforts are apparently being made but no one is holding his breath in the expectation that this will bring relief. For example, over 15 years later I am still waiting for the office of the Supreme People’s Procuracy in Beijing to send me its promised report reviewing the lawless detention of a Sino-American joint venture’s Chinese CFO by the city of Jining in Shandong Province.

In most cases, initially and repeatedly, police denial of lawyer access to detained clients seems to be orally communicated. Issuance of a written form seems to be done belatedly and reluctantly as part of a customary effort to block or at least delay any review of the decision.

The Hexi District Sub-Bureau of the Tianjin Public Security Bureau seems to have attracted a very large number of detention cases related to the 709 crackdown. I note that the September 18, 2015 Decision denying her lawyer’s access to young Ms. ZHAO Wei is numbered 1,082 for the year!!! That does not mean that the huge number of such cases that preceded it last year were all 709 cases but it seems likely that many of them were such supposed “national security” cases. And we do not yet know how many more such cases occurred last year after September 18. Moreover, there may be some double counting since defense counsel sometimes try a second time later in their client’s detention. The Five-Institution Regulation authorizes the meeting of lawyer with client in alleged “national security” cases once the meeting will no longer prove an obstacle to investigation or the risk of revealing state secrets is gone.  

The Peter Dahlin Case: Shock, Awe and Mystery

Peter Dahlin has been released. To give confident answers about the meaning of his case we need to know much more. First, what triggered Dahlin’s detention? Did he have anything to do with the effort to smuggle Wang Yu’s son out of China, as once rumored, or was this a smear to make the detention look more understandable and not so threatening to foreign and local legal aid and training personnel? Was it the hiring of local lawyers to conduct public interest litigation instead of the mere training of lawyers generally, as many of us do? Was it (the activity of) the particular activist lawyers helped by him?

Until we hear from Dahlin it will be hard to interpret the case’s significance. Will we hear an informative response from him and when? Did his girlfriend accompany him to Sweden? Otherwise she remains a hostage to his freedom to speak. In earlier years she might well have been given “reeducation through labor” even after her foreign lover was allowed to leave.

How to evaluate the case at this point? Dahlin’s treatment undoubtedly reflects his own cooperation while in detention. What if he had refused to go on TV? What if he had remained silent and uncooperative? What if he had lashed out against his detention and captors as his colleague, who is free, did in defense of his conduct and their organization? Any such failure to show contrition and confession would have delayed his release despite the efforts of the Swedish Government. He might even then have subsequently been released after indictment, trial, conviction and a harsh sentence. I have advised in cases where, for instance, because of diplomatic pressure, the defendant was released 48 hours after receiving a ten-year sentence, the ostensible, pre-agreed excuse being the need for foreign medical treatment.

I can see why the PRC released him now. The authorities made their point, spreading intimidation and fear throughout both the domestic and foreign legal and NGO worlds. Now, having been widely condemned internally as well as externally, they ease the criticism by releasing the accused after what appears to be a reasonable, if secret, bargain. This is similar to the release of rights lawyer Pu Zhiqiang after a prosecution that shocked many and occasioned strong protests, yet ended in an apparently less harsh than expected outcome after a complex negotiation. Unfortunately, most PRC rights advocates are not protected by the fame and connections of lawyer Pu or artist-activist Ai Weiwei or by the pressures of a foreign, friendly government. For them, shock, awe and prison remain the order of the era!

Video talk: why lawyers are not dentists!

Here is my talk for a conference in Taipei earlier this month about the plight of Chinese rights lawyers in the current severe climate: "Public Lawyers in Transitional Societies – Why Lawyers Are Not Dentists!"

China’s nuclear power plants

The news about China’s dangerous nuclear power plants built near Hong Kong has somehow slipped from public attention. The article published in the South China Morning Post on Jan. 9, “Hong Kong fallout from China's reckless nuclear ambitions feared,” is surely one of the most important articles published by the company. It deserves our most careful but urgent study. Congratulations to the author, Stuart Heaver, whom I don’t know, and the SCMP for publishing the article, although it is unlikely to get the attention it deserves since it only appeared in the magazine. Surely the article deserves to be translated into Chinese and published in the Mainland either by SCMP or some other prominent source such as Financial Times Chinese.

I have had some passing acquaintance with the issues of nuclear power from a legal perspective. As a young lawyer in Washington, DC in 1957-58 I worked at a law firm that represented Detroit Consolidated Edison in its application for US Government approval of what I believe was to be the nation’s first nuclear power project. I briefly was assigned to the case and became increasingly concerned about the risks that various interest groups had cited in their efforts to block approval. While working late at the office on the project on Christmas night 1957, while my wife was at home in our first house with our new-born first child, I recall saying to the senior partner in charge who was nearby reviewing one of my memoranda: ”Graham, my consolation in being here on Christmas night is that at least I know we are working hard to blow up a better world.” He saw little humor in my remark and said: ”I don’t think you’re meant for private practice.” I agreed and soon left the firm to join the US Attorney’s office!

Guangdong nuclear power plant. (Guangdong, China) Photo Credit: Hong Kong Nuclear Investment Co.

Nevertheless, in 1983, having returned to private practice in order to interact with China, I found myself in the strange, apparently contradictory position of agreeing to represent China Light & Power, Lord Kadoorie’s major HK electric company, in its literally groundbreaking negotiations to establish China’s first nuclear power plant at Daya Bay, mentioned in the Heaver article. At the time it was by far the biggest Chinese-foreign joint venture yet planned, to be built a mere 70 km from HK. My rationalization was that, since the project was virtually sure to be approved (it had the backing of the PRC leadership, with then Vice Minister of Power Li Peng as the main supporter, and South China had little coal), I should try to make sure it would be as safe as possible.

The contract negotiations went on for some 18 months in the Shekou district of Shenzhen. The key issue, at least to our side, was which safety standards were to be adopted – the more confidence-inspiring, stricter French standards that at the time had already proved so valuable to many projects in France or the less precise, more relaxed international standards sought by the PRC side. We had some tense discussions against the daily background of popular concern in HK over the then newly-signed Sino-British Joint Declaration on the future of HK. One day, when the Chinese seemed especially obdurate about the safety standards, I said to their chief negotiator across the table: “Well, if we take your standards, at least that might resolve the problem of Hong Kong’s future!” Mr. Shen, a highly intelligent man with a quick and usually pleasant manner, darkened visibly at my implicit reference to the possibility of anuclear disaster that would obliterate Hong Kong, and said: ”I don’t like your humor.” Fortunately, a few weeks later the Chinese side agreed to accept the French standards.

So far those standards have stood the joint venture parties and Hong Kong in good stead despite the nagging doubts that both sides shared about how those standards would be applied in practice by mostly Chinese employees embarking on a novel and potentially dangerous task. The Heaver article points out all the factors that need to be appreciated in assessing the risks of the current, very different situation. One can only hope that it is taken seriously by China’s leaders and that they will slow the pace and adopt the most careful methods of proceeding with the many new projects that constitute such a challenge as well as maximize the possibilities of alternative, less risky sources of electric power.

My video talks on “The Governance of China”

Here are my video talks for the New York Review of Books conference in Hong Kong on “The Governance of China,” which just took place over the weekend. Congrats to the organizer for a successful conference. 

1. Some Legal Vignettes about China (12 minutes):

How China’s ideology has affected its legal development and the current challenges facing the legal profession

2. Legal and Constitutional Reform (24 minutes):

How the Chinese Communist Party maintains unfettered power and how law reformers hope to restrain it

China charges human rights lawyers with "subversion"

My Jan. 13 BBC interview on China's crackdown on rights lawyers (5 minutes).

Random Thoughts on the reach of China’s law enforcement – lawlessness – across borders

Photo source: inmediahk, flickr

How far is the reach of China's law enforcement or lawlessness? All eyes, particularly those of Hong Kong people, are now on the case of the five missing Hong Kong publishing company managers. Among them, Mr Lee Bo apparently was secretly taken away in Hong Kong and transported to Shenzhen. If indeed the PRC secret police kidnapped this fellow and played similar illegitimate roles in detaining some of his publishing colleagues, one would want to know what caused the police to take such daring and unwise measures. Was this "bookstore" about to come out with a book PRC officials are desperate to prevent?

This incident makes me recall the infamous Jiang Nan murder case (Gangnam murder) when Taipei mobsters, in cahoots with the Republic of China's Ministry of National Defense intelligence chief, rubbed out the Chinese-American journalist Henry Liu on Oct 15, 1984 in San Francisco because he was preparing a book that would have come out with more dirty laundry about the Chiang Kai-shek family. That case added to the pressures for political reform of the Chiang family dictatorship in Taiwan. The current Lee Bo abduction case also has potentially broad implications possibly going beyond its great importance to Hong Kong.

It was reported that Lee Bo sent a handwritten note back to HK claiming that he had voluntarily returned to the mainland and was "assisting" in related investigations If the HK police believe this one, perhaps the famous - now crushed - human rights lawyer Gao Zhisheng should write a letter to his wife telling her that he has been cooperating with an investigation all these years and is really in splendid shape. I have been advisor in a number of PRC criminal cases where the Lee Bo technique has been used not only in an effort to squelch publicity abroad but also to circumvent the PRC criminal procedure protections that are supposed to come into play if someone is formally detained under the criminal law rather than "volunteering" to cooperate. Kidnappers often use a similar technique to communicate with the victim's family.

We should ask why the PRC occasionally succumbs to the temptation to kidnap its citizens from HK or even foreign countries. It is because there are legal procedural barriers to transferring alleged offenders from Hong Kong or foreign jurisdictions to the Mainland. Even thoughHong Kong was returned to the Motherland in 1997, no agreement for "rendition" of wanted suspects between the two jurisdictions has yet been concluded. Hong Kong, like the US and many democratic countries confronted by the PRC's desire for an extradition-type agreement, has not found it politically possible to consent to send people to the Mainland for criminal trial because of the failure of Mainland justice to reach international due process standards. In the absence of an extradition-type formal agreement, sometimes the PRC and other jurisdictions are able to work out mutually acceptable ad hoc arrangements of an informal, but legal, nature. (See the recent ChinaFile discussion of this very current problem between the PRC and the US.) When that proves impossible, the PRC, and not only the PRC (cf. some US CIA "renditions" and kidnappings and remember Israel's pursuit of Eichmann), resorts to cruder techniques of various kinds, as Lee Bo's case demonstrates.

A biographical sketch of Mr Chen Guangcheng

I have written a short biographical sketch of Mr Chen Guangcheng, the blind “barefoot lawyer” who escaped post-prison house detention in China in 2013, sought refuge in the US embassy and eventually set foot in the US. This sketch has just been published in the Berkshire Dictionary of Chinese Biography, Vol. 4.

Those interested in how Beijing and Washington negotiated over Chen Guangcheng’s departure for the US can read Chen’s account in his book, The barefoot lawyer: A blind man’s fight for justice and freedom in China, as well as Hillary Clinton’s differing account in her own, Hard choices. I first offered my own, slightly different view of the Embassy portion of the negotiations in the Washington Post here and the Wall Street Journal here, based on long phone calls that Chen made to me during his stay in the Embassy.

Chinese Communist Party’s Persecution of Churches: China Change’s Interviews with “Pastor L”

By Jerome A. Cohen

Photo from ChinaChange: "Believers and SWAT clashed when the cross of this church in Wenzhou was removed on July 21, 2014. TIME Magazine has a video report here"

China Change has just released a remarkable interview with “Pastor L.” The interview not only updates us about the plight of Christianity in an important area of China but also offers a persuasive analysis of what underlies the Chinese Communist Party’s persecution of religions generally. Indeed, it demonstrates the similarities between the CCP’s persecution of religions and its systematic attacks on all freedoms of expression, media, teaching, research and publication, and the legal profession to which victims of suppression vainly turn for protection against an arbitrary and repressive state. This interview deserves widespread dissemination. One need not be a religious person – and I am not – to appreciate its significance.

The interview does prompt a few immediate thoughts. It consistently refers to “Christianity” without distinguishing among the varieties of organized believers who have earned that designation. Readers who are interested in how many of the affected church groups are “Protestants” of one kind or other and how many are “Catholic” can find more information in the first interview China Change released here.

The interview’s account of how local business people, a formidably successful group, have helped to spread the faith during their business trips throughout China evokes thoughts of Max Weber and the connections between capitalism and religions.

It also offers the pathetic story of how Beijing lawyer Zhang Kai, one of several counsel seeking to defend the churches but secretly detained like many of his clients, has been coerced, like them, to issue a jailhouse statement claiming that he no longer wants the help of defense lawyers. This is a vivid illustration of the “rule of law” in practice, as distinguished from the speeches of Xi Jinping, the preaching of the Party plenums and the reformist norms of the National People’s Congress and the Supreme People’s Court. Church believers could render further service by doing empirical studies of the many cases involving interaction of the legal system with their daily lives.

I look forward to further reports from the estimable “Pastor L” and China Change. 

Foreign China Specialists and Self-Censorship

By Jerome A. Cohen

Here is an interesting essay by  Jeffrey Wasserstrom – “Why aren’t you banned yet,” a fine example of the complexities most of us puzzle through in trying to remain honest critics. Given my age, reluctance to travel and principal research agenda (my memoirs), I am, as lawyers like to say, an “a fortiori” case of the foreign China specialist who expresses unfettered opinions on the assumption that “it’s now or never”!

I am reminded, however, of the day in Wuhan, about a dozen years ago while taking part in a conference, when that very good Law School’s Party secretary unexpectedly asked me to do an additional speech to the school plus a large group of local lawyers. I said I would if I could choose the topic. The secretary – a dynamic, middle aged woman professor of criminal law whom I did not know well – readily assented, and I chose abolition of “reeducation through labor” (RETL), which I thought was a bold choice that would test my host. Out of deference to the host, whom I did not want to get into trouble, I called for systematic but gradual elimination of RETL rather than its immediate abolition. To my surprise and embarrassment, comments from both the lawyers and students in the audience made it clear that they thought I was being too conservative and that RETL had to go immediately! Of course, although RETL was finally abolished a couple of years ago – at least in name, today’s political climate in Xi Jinping’s China could not be so openly receptive to limiting the arbitrary power of the police to detain, which unfortunately persists.

Wasn’t it TS Eliot who wrote: ”Teach us to care and not to care”? I always wondered what he meant.

Alibaba, Joseph Tsai and the Future of South China Morning Post: Will the New Management Make Things Better or Worse?

by Jerome Cohen

In response to various queries about the background of Alibaba’s Joseph Tsai, I have a few tidbits of possible interest. Joe is a very able, dynamic lawyer turned businessman. I have only met him a few times very superficially when he was a young lawyer fresh out of Yale Law and working for a major American international law firm, Sullivan & Cromwell. His father, Paul, was my contemporary at Yale Law and a friend who returned to Taiwan from New Haven to work in government and then practice law with the family law firm in Taipei, the well-known firm of Tsar&Tsai founded by Paul’s father after he moved to Taiwan from Shanghai following Chiang Kaishek’s defeat on the mainland. Joe’s grandparents gave a dinner for me and my wife Joan during our first visit to Taipei in 1961. Although they had never yet visited the U.S. at that time, they spoke excellent English, probably as a result of missionary schooling in Shanghai before “Liberation”, and were charming people. Paul, Joe’s father, was always rather impatient with my interest in studying the PRC’s legal system and urged me to focus on Taiwan instead, something that I only began to do in the late ‘70s. My ties to Paul withered after I became active in supporting normalization of relations with Beijing. Joe obviously had a different attitude from his father’s, turning to business involving the Mainland not long after Deng’s Southern Tour in early ’92, and made Hong Kong his base. He also acquired Canadian nationality.

Joe apparently will take major responsibility for running the SCMP, at least initially. What he will do with it is unclear. A few sentences in his recent extensive public statements are worrisome, of course, to those who fear that he may make the SCMP merely a more influential version of the China Daily. For years even before Alibaba’s purchase, the SCMP’s reporting has been under ever greater Beijing influence. Some reporting, however, has continued to be quite feisty. The editorials have also often been punchy, and, until recently at least, the regular op ed writers have seemed diverse and quite free to express their opinions. For the past seven plus years, I have been writing controversial op eds for SCMP once or twice a month on an ad hoc basis and have never met any attempt to censor my views or deflect me from my choice of a sensitive subject.

Will the new management make things better or worse? Some current staff members who have been unhappy with their editors’ efforts to go easy on the PRC may finally give up the ghost and leave, as many predecessors have. Since the current news editors have already been leaning towards Beijing, the new owner need not replace them and can comfortably pledge not to interfere with editorial policy, at least as far as reporting goes. But reporters who have sought to resist editorial restrictions may now find less support than ever for their cause, and some are surely discouraged.

Yet Joe Tsai may surprise people. Although inexperienced in the news game, he might seize what is plainly an historic opportunity to create a world-class enterprise that will earn the praise of even liberal critics of the media and become prestigious enough to resist most pressures from the PRC. He surely has the ability to do this. One question concerns the future influence of Shanghai-based financier Eric X. Li, reported by David Barboza of the NY Times to have played an influential role in the acquisition. Li has been a strong and articulate supporter of PRC policies in the media and in political circles.

Having just seen two excellent films this week about the struggles of American media – “Spotlight” and “Truth”, I wonder whether there will someday be a comparable movie about the SCMP and Alibaba! 

A false choice between acceding to China’s excessive claims in the South China Sea and gunboat diplomacy: a third way is obvious!

By Jerome Cohen

Chinese leader Xi Jinping’s remarks on the South China Sea (SCS) on Saturday morning in Singapore have been under-analyzed. The rest of his day, spent with Taiwan’s President Ma Ying-jeou, has distracted people from the more immediate challenge of the SCS.

Simon Winchester’s op-ed in New York Times helps us to regain focus. But what I find so infuriating is his assumption that the US is faced with a choice of either acceding to China’s “stealthy seizure of scores of barely visible islets and atolls “ or challenging its “admirable cunning” and “purloining” through risky gunboat diplomacy. No mention at all of the obvious option of challenging China’s actions and its vague but broad claims before the international legal tribunals of impartial experts established to settle disputed claims in a peaceful, civilized manner.

The Arbitral Tribunal in Philippines v. China, photo released by the Permanent Court of Arbitration

Bravo for the Philippines, whose arbitration against China, which the PRC fears and rejects, is gradually approaching a climax that will shake up the current scene. As Manila has made clear, international legal institutions are the last resort of the weak against the strong.

Why can’t the great powers and their policymakers and commentators appreciate that international tribunals can prove very useful in resolving or at least shrinking many potentially dangerous disputes? Modi’s surprisingly wise acceptance of the arbitration decision largely favoring Bangladesh over India in their Bay of Bengal dispute is another illustration worth study. That is the way to keep the peace in hotly-contested areas.

“He said, Xi said”: the press conferences after the Xi-Ma meeting

Photo by the Office of the President of Taiwan

by Jerome Cohen

The much-anticipated meeting between China’s President Xi Jinping and Taiwan’s President Ma Ying-jeou took place today. Here are the statements from Xi Jinping and Ma Ying-jeou and the subsequent remarks of Tsai Ing-wen, Taiwan’s political opposition party’s leader and presidential candidate.

We will see more analysis by political commentators, especially those on Taiwan from the opposing KMT and the DPP camps. But one thing we can all agree upon is that the press conference of Zhang Zhijun, the head of China’s Taiwan Affairs Office, gave the world a new example of “He said, Xi said.”

Seriously, I think Ma’s decision to do his own press conference rather than leave it to the very able Andrew Hsia, the head of Taiwan’s Mainland Affairs Office, which would have comported with Taiwan’s other efforts to demonstrate equality with the PRC, was a wise one, demonstrating how democratic leaders expose their conduct to the public. Xi’s consistent reluctance to face questions and the pathetic three questions staged for Zhang, together with the shielding of the Chinese people from Ma’s initial speech and then his press conference, undoubtedly left a vivid impression on many Chinese.

Taiwan’s position on the South China Sea disputes: an emerging subtle policy

At least while President Ma remains in office, Taiwan is not remaining passive either politically or diplomatically re the South China Sea (SCS). Nor should we assume that its choice – during Ma or afterward – is limited to the two extreme options of either endorsing Beijing’s questionable and vague claims or surrendering Taiwan’s claims to the SCS under the mantle of the Republic of China (ROC).

A more subtle policy may be emerging, one that retains China’s territorial claims and the maritime boundaries that attach to them under the United Nations Convention on the Law of the Sea (UNCLOS) while veering away from the 9-dash line and its controversial ambiguities that the Philippine UNCLOS arbitration tribunal may soon sweep away.

It is worth studying the statement issued October 31 by the ROC’s MOFA. The ROC seems to be clarifying its position, including some important differences with the Mainland. Although it rejects the Philippine UNCLOS arbitration tribunal’s jurisdiction as not binding upon it (after all, it has been excluded from the proceedings since it is excluded from UNCLOS), it repeatedly emphasizes that its claims are “based on UNCLOS”. It claims all the islands in dispute “as well as their surrounding waters”. It seems to be emphasizing “surrounding waters” as generally understood in international law (i.e., under UNCLOS) without invoking the 9-dash line’s most expansive view of what “surrounding waters” might mean if history were invoked to override UNCLOS. Moreover, it pointedly endorses freedom of navigation and overflight and implicitly fails to support the actions of the People’s Republic of China (PRC) in converting mere reefs into islands by the manner in which it demonstrates that the feature that it has long occupied and developed, Itu Aba (unlike other contested features including Subi reef), is a real island that can be claimed as “territory” and has a 200-mile EEZ as well as a 12-mile territorial sea. Taiwan is trying to steer between Scylla and Charybdis.

One of Xi Jinping’s motives in meeting Ma may well be the desire to shore up virtually the only support the PRC thus far has elicited from other jurisdictions for its SCS claims. ROC defection from the 9-dash line, especially before the UNCLOS tribunal’s final decision, would leave the PRC without any respectable support for its Gargantuan appetite.   

What states should do to resolve the current “High Noon” scenario in the South China Sea: “bombard the headquarters” in Beijing with international law claims

by Jerome Cohen

Spratly Islands, South China Sea, by Storm Crypt.

The US began on October 27th its first freedom of navigation operation (FONOP) near China’s man-made islands in the South China Sea. This whole exciting story would be seen for the comic farce it is were the situation not so dangerous.

The US and China have put forth some legal claims with regard to their rights in the South China Sea. But neither major contender takes the obvious step to have the claims determined by the world’s greatest impartial experts in the subject. Although the US, by failing to ratify the United Nations Convention on the Law of Sea (UNCLOS), has deprived itself of the possibility of bringing an UNCLOS arbitration against China, as the Philippines has brilliantly done, it could offer to take the dispute to the International Court of Justice, where both Washington and Beijing have able judges, or to an ad hoc arbitration tribunal agreed to by both parties.

China has got itself out on a long and shaky limb. Its claim to “sovereignty” over these low-tide elevations is preposterous. Even if it had a plausible claim to these features as its “territory” and thus to a territorial sea around them, under UNCLOS (not China’s unilateral domestic law) it would still not be allowed to bar even warships from “innocent passage”, i.e., passage that is consistent with the detailed UNCLOS rules.

To be sure, the US makes no territorial claim for itself regarding sovereignty over the reefs in question, but it does apparently reject China’s claim and any claim by others that low-tide elevations can become the “territory” of any state. The US, as I have often said, should accompany its current bold gesture of using the fleet to protest China’s provocative over-reaching by also resorting to more conventional peaceful means of settling disputes through arbitration or adjudication.

We should also be persuading other states, including Japan, to “bombard the headquarters” of the CCP in Beijing, not with missiles but with missives daring the PRC to test its international law claims before tribunals of the world’s leading impartial experts.

Timing is everything in life, and my minimal hope is that the current “High Noon” scenario in the South China Sea will build slowly enough to be overtaken in a few months by the UNCLOS arbitration decision in the case brought by the Philippines against the PRC two and one-half years ago (see the October 29 UNCLOS Tribunal ruling to proceed to the merits of some claims and reserves the question of jurisdiction for others). Whatever the tribunal decides should shake up the current situation.

Who gets punished?: Sons and daughters of rights lawyers - Collective punishment in China

by Jerome Cohen

Wang Yu and her son Bao Zhuoxuan, Photo courtesy of Bao Zhuoxuan

Wang Yu, a leading rights lawyer detained in July during a large-scale crackdown on lawyers, must be under greater pressures than ever. Not only is she detained, but also her teenage son Bao Zhuoxuan has been prevented from leaving China to study abroad. When the boy tried to escape China days ago, he was caught in Myanmar and brought back to the country. Chinese media now claim that this is “a plot by external forces, who forcibly drew a minor into the vortex of politics and used the case to vilify China's rule of law.” Wang Yu, detained for more than three months now, appeared on state TV to condemn the supposed smuggling of her son (See Verna Yu’s report here). Meanwhile a son of another prominent rights lawyer, Liu Xiaoyuan, has also been denied permission to leave China to pursue an overseas education.

There is no doubt that in fact, not in formal law, the Chinese Government has been resorting to collective punishment of the family members of those it regards as political offenders. Indeed, the People’s Republic has been doing this for a long time in order to punish people it deems to be dissidents and to force them to “confess” to alleged crimes they have not committed.

Such formal collective punishment was abolished over a century ago in China as part of reformers’ efforts to bring Qing dynasty justice up to the standards of the Western imperial powers and end the incubus of “extraterritorial” foreign jurisdiction. Yet it persisted in practice under China’s post-imperial, pre-Communist regimes. Chiang Kai-shek’s government continued to secretly mete out collective family punishment on Taiwan. Many still recall how Kuomintang (Nationalist Party) police even killed the children and mother of a distinguished Taiwan independence advocate while he was in prison.

Is collective punishment happening more often in the PRC today than in the past? It’s impossible for outside observers to know. Surely the Internet and social media keep us better informed than in the past.

The authorities evidently think it is an effective tool, since it can transform even the most courageous dissident into the Communist Party’s compliant victim.

This vicious practice may soon backfire, however, since knowledge of its use is increasingly widespread and leaves in tatters any further attempt by the Xi Jinping regime to resort to “soft power”. I am glad Xi’s daughter had the opportunity for a Harvard education. It is a disgrace that he so often denies this opportunity to the children of so many worthy citizens.

When are Donations to Universities Unacceptable?

by Jerome Cohen

(Matthews Hall, Harvard Yard, Photopin)

Harvard has announced that it’s going to set up a new research institute in Shanghai. The institute is being funded by a donation from Wang Jianlin, the chairman of the Wanda Group, which according to this New York Times report, has financial ties with members of the most powerful families in China. This has raised the issues of whether Harvard should accept the donation and more broadly what sources of funding should be acceptable to universities and under what conditions.

These problems frequently arise at the elite schools, Harvard prominent among them. Some donations seem simply wrong and others are plainly angelic "no brainers". The rightness of many others turns on various specifics - eg, the donors, the purposes, the conditions if any, etc.

Having taken part in some fundraising, I know these are often not simple matters, and respectable arguments can frequently be made on both sides. At Harvard I raised money from many sources. Eg, the US Government Arms Control & Disarmament Agency. Should that grant to study Chinese policy and international law have been rejected because of the abominable misconduct of the US Government in any number of places including Vietnam, Chile, Iran etc? Should a grant from Mac Bundy at the Ford Foundation to study Vietnam's legal history have been rejected because Bundy had moved there following his White House years helping to mastermind the destruction of Vietnam? (And Henry Ford, the progenitor, was, of course, an anti-Semite.) Should a professorship of Japanese law to be established by the Mitsubishi Group at Harvard Law School have been rejected because periodically some member of the group is charged in some country with violation of antitrust, trade or even criminal laws?

In those three cases I thought the circumstances warranted acceptance, although I told Mitsubishi that we could not use their name for the professorship and they agreed. Later, after I left Harvard, somehow the name came into use regarding the chair.

A more interesting problem arose when I was invited to go to Japan by the Sasakawa Peace Foundation to give a public lecture in January 1975, probably because I had been openly critical of the Tanaka Government on the grounds of corruption and human rights in its actions at home and in relation to South Korea. I got to know my host during the few days he spent with my wife and me traveling around Japan, and it became clear that he would be willing to make a huge donation to Harvard Law School to support our East Asian research program. Mr. Sasakawa, who made a fortune as the king of motorboat racing, was in the midst of a sustained effort to do good deeds that might overcome his earlier reputation as a war criminal. When I returned to Harvard, I consulted my wise senior colleagues Fairbank and Reischauer as well as the young law professors from Japan who were either visiting scholars or grad students at Harvard Law School. Neither Fairbank nor Reischauer opposed the idea and they seemed to implicitly endorse it. Fairbank, a great supporter of research in East Asian law, said with a smile: "Harvard sanitizes money by accepting it". The Japanese law scholars, on the other hand, were adamantly opposed because of Sasakawa's record as a war criminal. One whom I respected greatly said: "No one from Japan will want to study here if you take his money." With considerable reluctance, I turned the opportunity away. Not long after, Sasakawa gave about US$10 million, real money in those halcyon days, to the UN Population Fund at the request of Robin Duke, one of the world's most charming women, who, with her husband, Angier Biddle Duke, had been courting Sasakawa at the same time we were there and who gave me the idea of trying to hit our host for a major gift. Was I right?

A few years after the Sasakawa incident, many in Cambridge were outraged when the Fletcher School accepted a chair from the Marcos Government in the Philippines. I took part in the protest and think I wrote a letter to the Boston Globe asking whether it would be called "The Ferdinand Marcos Chair in Human Rights". In any event, Fletcher soon decided to return the gift.

Why China chose the German instead of English legal system: the role of Japan

Here is an interesting op ed that paints with a very broad but interesting brush on "Why China chose the German instead of English legal system".

Photo by Photopin

It omits any reference to the intermediate role of Meiji Japan, which chose Germany as a model over France and England in large part because of the allure of the Bismarck model. Many Chinese reformers were influenced by Japan at the end of the Qing, As the greatest law reformer of the era, Shen Jiaben, put it: “When we use Japan as a mirror and look correctly, then there can exist no doubt or hesitation”. Shen held manyimportant positionsbefore the Qing fell and became Yuan Shikai’s Minister of Justice in 1911, but did not continue in office after establishment of the Republic and died soon after. Japanese law teachers and other legal experts played an important role in China both immediately before and after the Revolution. Japan was admired because it was seen to have built its impressive power on the strength of its modern legal system, which was given a good deal of credit for enabling it to defeat not only imperial China in 1895 but also a perceived “Western” nation, imperial Russia, a decade later.

The struggle of Chinese public interest lawyers to have their voice heard by their lawyers associations

by Jerome Cohen

According to this report, some public interest lawyers in China are now calling for abolition of the national lawyers professional group, the All China Lawyers Association, which is organized and controlled by the Ministry of Justice and has rarely lent support to lawyers attacked by the government.

In fact, there were efforts in the past to try to reform the lawyers associations in China, such as calls by some public interest lawyers in 2008 for the Beijing Lawyers Association to hold direct elections, in the hope of making the group more autonomous (see Jerome Cohen, "The Struggle for Autonomy of Beijing’s Public Interest Lawyers," April 2009). Obviously, the struggle is still ongoing today, especially given the current severe crackdown in which the local and national lawyers associations have not only remained silent but also continued to aid the government, for example, by not renewing the license to practice law of some lawyers unwelcome by the authorities. 

South China Sea Disputes: Lawfare instead of Warfare!

by Jerome Cohen

Spratly Islands, South China Sea, by Storm Crypt.

The US Navy is preparing to send a ship inside the 12-mile territorial sea China (the PRC) reportedly claims for its controversial man-made island chain in the South China Sea, according to this report. 

To defuse the rising tension in this area, the US and other countries should resort to international legal institutions, rather than warfare.

The US Senate should seize the opportunity presented by the heightened public interest in the Law of the Sea to finally ratify US adherence to The United Nations Convention on the Law of the Sea (UNCLOS). It would give us greater credibility by subjecting our country to the same dispute resolution constraints that all state-parties to UNCLOS, including the PRC, are legally bound to accept, and it would offer us what we are now denied – the opportunity to challenge PRC maritime claims before an impartial arbitration tribunal, as the Philippines has done.

The value of this opportunity should not be underestimated even if the PRC continues to formally thumb its nose at Manila’s challenge (while seeking to answer it outside the tribunal’s jurisdiction). I do not think most observers appreciate the momentous nature of the Philippine case, which seems to be coming to a head more quickly than previously anticipated. The tribunal’s decisions on jurisdiction and perhaps at least some of the substantive issues have the potential to be a game changer in an increasingly dangerous and uncertain situation. 

All the countries concerned with PRC maritime assertiveness need to respond to the South China Sea crisis with greater collaboration. But, in addition to focusing on political/military gestures, they should be “bombarding the headquarters” in Beijing with international arbitration and International Court of Justice (ICJ) claims that will test the PRC’s actions before respected international legal institutions.

Any hopes Beijing may have for “soft power”, already blocked by its domestic legal misconduct, will be obliterated if the world community condemns it for rejecting itsUNCLOS obligations re maritime issues and the ICJ or ad hoc tribunals for deciding territorial disputes. Only active collaboration by the various countries involved can bring these peaceful ways of settling disputes to the attention of Xi Jinping himself and stimulate reconsideration of the PRC’s current course.

Unfortunately, until now, although there is strong potential support in each of the relevant countries on China’s eastern and southern periphery for lawfare instead of warfare, each finds political reasons for passivity and avoiding Beijing’s wrath in the hope that the Philippines will be successful.  In the meantime, the PRC has been quietly using every means possible to terminate the Philippine effort before the tribunal reaches what may be a damaging decision for Beijing. Time is a factor here since there will be a new Manila administration by mid-2016, and the PRC’s blandishments and pressures might prove more effective with the new Manila power-holders than with the current government, which has already felt and thus far resisted their force.