Streaming of Chinese court trials

Xinhua just  reported that China has launched a website broadcasting court trials. Live streaming of court hearings, despite its obvious restrictions and selectivity, is a good step forward in expanding public awareness of China’s courts and of various legal principles and their application in daily life. This is part of an effort to increase popular respect for the judicial process, which has been widely mistrusted.

This welcome initiative should be understood together with the recent effort to increase the prestige of judges and prosecutors by winnowing out many official legal staff who bear the label of “judge” or “prosecutor” but who do not have the competence or seriousness to carry out the work expected. The idea is to create a judicial elite separate from the regular bureaucracy and to try to reduce the roles of corruption, “guanxi” (relationships), local protectionism and local Party and government influence upon court decisions.

Streaming will not only challenge prosecutors and judges to look and do better in action but also lawyers. It will be interesting, for example, if lawyers in the new spotlight will learn to cross-examine witnesses in court. But that will require changes in the system requiring witnesses to show up in court rather than merely give written testimony that allows them to escape cross-examination, which has often been called the greatest instrument for the discovery of truth in a legal system. 

P.S. I don’t believe the court hearing reported here ("China jails women's rights campaigner after torture in detention") was selected for live streaming!    

Peter Dutton's commentary on the significance of China’s response to the South China Sea arbitration award

Here is a brief comment worth reading on the PRC's response to the recent UNCLOS arbitration award. As Peter makes clear, the significance of China's response goes far beyond the specific dispute and raises the question of the reliability of any PRC international legal commitment including its economic pledges relating to One Belt One Road and Asian Infrastructure Investment Bank.

One hopes that the PRC will begin to recover from its major blunder through the quiet discussions that have begun with the Philippines. Previous PRC leaders have shown the capacity to modify unwise attitudes toward international law. Whether the current leadership is up to the task is probably doubtful but may depend on the extent to which other influential nations seek to demonstrate the undesirable consequences of Beijing's stance.

One important topic that has not received enough attention is where Taiwan fits into the equation. Unlike the PRC, the ROC was eager to take part in the Philippine arbitration proceedings. The UNCLOS tribunal, well aware that its decision on the merits of the many sensitive issues at stake would infuriate Beijing, went out of its way to avoid further offending the PRC in its handling of Taiwan's efforts to be heard. Taiwan could not take part in the proceedings, and the tribunal even refused to allow Taiwan observer status at the hearings, which had been granted to several interested Southeast Asian states. Moreover, the tribunal's opinion referred to Taiwan in a way that would not offend Beijing (but was sure to offend Taiwan). To its credit, and perhaps in order to please Beijing, the tribunal, while not formally accepting the strong "friend of the court" brief submitted by Taiwan's leading NGO - the Chinese (Taiwan) Society of International Law, on whether Taiping island (Itu Aba), the largest of the Spratlys and the only one occupied by Taiwan, is entitled to an Economic Exclusive Zone, did make the brief available to the parties and surely considered it before disagreeing with Taiwan's (and Beijing's) position. Taiwan's new government is now struggling with the dilemmas of how to respond to the tribunal's decision, which offended it not only in substance but also in procedure.

My interview with the Diplomat on legal reform, human rights and judicial independence in China

From the Diplomat, September 1 (Link here)

Foreign NGOs - Wang Daohan, Ford Foundation and the Chinese government’s attitude at the start of Opening and Reform

This year’s events in China – including the passage of a law that emphasizes strict control of foreign NGOs and the show trials two weeks ago of Chinese rights activists whom Beijing accused of working with “hostile foreign forces” – have shown that Chinese leadership is extremely wary of a “color revolution” inspired by the outside world.

In light of current concerns of the international community, it might be useful to recall the very different situation in 1979. China was just opening, and I was in Beijing at the invitation of the city government to help train its economic officials in international business law. I got to know Wang Daohan, then head of the new national Foreign Investment Commission, through his very able assistant, a young economics graduate named Tang Yunbin, whose English skills had proved helpful in efforts to develop an updated Chinese legal vocabulary for terms like “foreign tax credit”.  Wang had just been moved into his new job from an earlier post as Minister of Foreign Economic Relations. More than most PRC leaders, he saw the need for Chinese officials to learn about foreign economic transactions and institutions but felt frustrated by the limited opportunities for them to do so.

I knew that Ford Foundation, which had sponsored Harvard Law School research on the legal systems of China, Japan and Vietnam, was eager to enter China and be helpful but seemed frustrated in efforts to do so. It plainly made sense to try to bridge the gap, so I invited Carl Green, an American lawyer who was then Ford’s representative in Tokyo, to come to Beijing to have lunch with Wang.

Since the PRC for three decades had been denouncing foreign foundations like Ford as running dogs of imperialism, Green was understandably apprehensive that China might spurn Ford’s interest. Lunch was pleasant through the main course, but neither Wang nor Green appeared willing to initiate discussion of the subject that brought us together.

As dessert arrived, feeling a bit anxious about the way things were going, I said to Wang what he obviously already knew - that Ford might be willing to help with the training of Chinese officials in international economic matters. He feigned welcoming surprise and asked Green to what extent Ford might help. Carl, visibly tense, mustered all his gumption and said that Ford might be willing to contribute as much as one million USD to such training.  Wang almost snorted in scornful disbelief. “What”, he said, “do you know how poor China is and how huge its needs are? One million dollars is nothing.”  

At that point Green, instead of being offended, began to relax, for he saw that China was prepared to behave like the governments of many other developing countries and that cooperation would be possible, at a heftier price, to be sure!

What a difference 37 years have made!

More on rights lawyer Wang Yu’s “confession and release” and China’s revival of “brainwashing” practice

There is no doubt whatever that Wang Yu will not be free to resume her practice of human rights law or her previous professional or even personal friendships. Her hope must be to obtain her husband’s release from jail, to be able to see her son and to procure for him the right to study abroad, as was originally planned. The elements of the deal struck will gradually emerge.

To say that her statement was “probably” the product of coercion is silly since she has been held in an immensely coercive environment for over a year. These “confessions” are reminiscent of the “brainwashing” era of the 1950s for which the new China became infamous. Brainwashing was based on long-run confinement in a coercive environment combined with heavy doses of thought reform and the realization that release depended on adopting, at least temporarily, the “new truth”.

The regime obviously altered Wang Yu’s restrictions (it did not “let her go”) because of the enormous international pressures brought to bear. The American Bar Association’s annual meeting at which the award is to be granted is about to be held. Her alleged repudiation of the award, which was a brilliant decision by the ABA to recover its loss of prestige from earlier inadequate criticism of the PRC, is the PRC’s attempt to discourage all foreign legal organizations from further attacks on the PRC’s human rights violations.

Of course, some lawyers and their legal assistants have been released during the past year while other lawyers are still detained and awaiting criminal conviction and prison punishment as well as the loss of their right to practice law, unless they too succumb to the brainwashing and other coercion to which they are being subjected. Even legal assistants such as Zhao Wei have not been spared the “confession and release” farce.

Non-release “release” of human rights activists and their confessions

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

Chinese human rights lawyer Wang Yu has been “released” on bail, as reported in today’s Wall Street Journal. Wang Yu was seen in a video making a confession. “I also wrote inappropriate things online and accepted interviews with foreign media. For this, I feel ashamed and express remorse,” She said. As to the inaugural American Bar Association (ABA) International Human Rights Award given to her, she was quoted as saying she did not “acknowledge, recognize or accept” the award.

It’s obviously too soon to analyze with confidence but it sounds like another of the curious deals that are being struck between PRC oppressors and courageous but hapless human rights victims, deals involving the welfare of spouses, children, parents, lovers etc as well as the target whose captivity and torture are at stake.

This is all so sad, not only for the oppressed, broken victims but also for China and its standing in the world. These pathetic, ludicrous “confessions” and charges are obviously designed for a Chinese audience, but tens of millions of Chinese are not foolish enough to believe these farces.

Yet the damage to China that these torture-inspired fairy tales inflict abroad is incalculable. Does the Chinese leadership not see this? Xi Jinping is holding himself and the country up to increasing worldwide ridicule. This is the Chinese Communist Party’s distinctive contribution to the playbook of international Communist abuse of the legal system and promises to rank in notoriety with Stalin’s infamous purge trials, although so far no Chinese victims have been formally executed!

I’d like to think that if the ABA, in its new vision, could honor every detained human rights lawyer in China, it could guarantee them some minimal concession from their oppressors, but we know that international prizes can only be helpful in a few cases and certainly cannot free even Nobel Prize winners!

I don’t know what this foretells re the ABA’s work in China. Certainly it adds fuel to the fire of the continuing debate over what the appropriate ABA response to the vicious repression of human rights lawyers should be. If this case results in the termination of the ABA’s praiseworthy activities in China, it would be another classic instance of what Beijing propagandists like to call “dropping a rock on your own foot”.

Support silent supporters of the rule of law in China

Human Rights lawyer Teng Biao, Photo credit: May Tse/South China Morning Post

Here is a stimulating op-ed by Chinese law scholar and activist Teng Biao. I hope US funders, public and private, will take it into account. I believe, after giving due regard to Teng Biao’s admonition against funding the oppressors, funders should continue to support those non-Chinese institutions that do not pull their punches in studying and reporting on legal developments in China while also continuing to conduct legal and human rights education of not only Chinese lawyers but also Chinese judges, prosecutors, justice officials and even police.

The point that needs greater recognition here is that hundreds of thousands of legal specialists in China are extremely unhappy with Xi Jinping’s oppressive policies, policies that they feel forced to live with and practice while awaiting a less repressive regime and the renewal of true legal reforms. At a time when they are being ordered to reject universal human rights values, we should not abandon these silent supporters of the rule of law, but should keep up contacts and professional nourishment that will sustain them until a better day dawns.

Years ago, the late Senator Arlen Specter asked me to emphasize this point in a letter to then House Majority Leader Nancy Pelosi, recalling the importance of foreign funded legal education and training given to officials of the Chiang Kaishek dictatorship in Taiwan and the Park Choon-Hee dictatorship in South Korea. Those efforts paid rich dividends when political circumstances permitted legal liberalization. Indeed, they helped fuel legal officials’ opposition to dictatorship, as occurred when Taiwan prosecutors and judges rebelled against their masters and successfully established their independence of political interference.

The U.S. Congress, other countries and private foundations should also fund basic research on the many complex aspects of the evolving Chinese legal system, not only education and training in China but also efforts to enhance foreign understanding of both contemporary events and the country’s political-legal culture.

In addition, there is a great need to fund the support and activities of the increasing number of Chinese refugee lawyers, law professors and human rights activists who, like Professor Teng, are turning up outside China as a result of the terrible situation they confront in China.

Finally, in fairness to the America Bar Association, we should note that, after long internal debate spawned by external criticisms, it has decided to establish an international human rights award and next week at its annual meeting in San Francisco this new award will be bestowed, in absentia, on another of China’s courageous human rights lawyers, Ms. WANG Yu, who, sadly, is jailed in China and awaiting criminal conviction and a long prison sentence. 

Why So Many Journalists Thought the Permanent Court of Arbitration Made the Philippines-China Decision

The South China Sea arbitration ruling was made by an arbitration tribunal set up in accordance with the United Nations Convention on the Law of the Sea (UNCLOS). However, when discussing the arbitration case, many news reports made the mistake of saying that it was the Permanent Court of Arbitration (PCA) that issued the ruling. Indeed, the context of the PCA’s actions and its very name as a ”Court of Arbitration” obviously throw newcomers and journalists off the track. Its Press Release, however, makes it status and role clear to the wary.

On page 3, the section on the PCA’s Background explains its origin long before the UN and its many contemporary functions as a site for and agent of various types of international dispute resolution arrangements. The PCA is a facilitator. It provides a splendid place for hearings and excellent administration that relieves the tribunal of endless burdens that come with every arbitration and that the arbitrators themselves cannot deal with. It even has a public relations office that captures public attention in the same way that its palatial hearing room does. Plainly, the PCA does not minimize its role.

Commercial arbitrators have to avail themselves of similar facilities and facilitating agencies, but usually the arrangements are less misleading. Some years ago, for example, I had to preside over a 12-day arbitration hearing in London in an investment dispute between a South Korean company and a Saudi Arabian company that had, per the contract, to take place under the arbitration rules of the International Chamber of Commerce. I asked a UK organization to handle all the host arrangements, which relieved me and the ICC headquarters in Paris of many tasks. But there was never any confusion over whether our tribunal’s decision was that of ICC arbitrators or of the facilitating organization.

Future UNCLOS arbitrations should make sure that such confusion does not arise if they again choose to benefit from the assistance of the PCA, as they undoubtedly will. 

South China Sea Ruling and Defamation

The press conference of the PRC Ministry of Foreign Affairs (MOFA) following the South China Sea arbitration award was surely one of the lowest of many low points in China’s response to the arbitration Tribunal. Here is what’s reported, Foreign Ministry Spokesperson Lu Kang's Regular Press Conference on July 13, 2016:

“Q: Vice Foreign Minister Liu Zhenmin told the press this morning that the then Philippine government gave bribes to judges of the Arbitral Tribunal, but did not go into details. Does the Chinese side believe that the bribes from the Philippines would make the judges rule in favor of them?

A: As we said before, the establishment of the Arbitral Tribunal has no legitimacy. It is illegal, and what it has done over the past couple of years was questionable. What Vice Foreign Minister Liu Zhenmin said this morning was that the Arbitral Tribunal was not an international tribunal and had nothing to do with the UN-affiliated International Court of Justice (ICJ) in the Hague. Judges of the ICJ and the International Tribunal for the Law of the Sea are paid by the UN to ensure their independence and impartiality. As for the five judges in this case, they made money, they were paid by the Philippines. I figure it necessary to make that clear.”

Of course, what constitutes libel or slander in one jurisdiction may not qualify in another (especially in China, where the source of the judges’ compensation guarantees their lack of independence!!). This MOFA reaction is based on so many distortions of the truth that the mind boggles but its implication certainly amounts to defamation in my eyes.

It would be good if the arbitrators, and even the Permanent Court of Arbitration that facilitated administration of the case, would file law suits against the PRC and its spokespersons in China and in some democratic countries where the defamation had effect, preferably including at least one Anglo-American country and one Continental European country in order to perfect this imaginative research experiment in comparative law!  

Tsai Ing-wen’s Response to the South China Sea Arbitration Award on Itu Aba

President Tsai Ing-wen yesterday addresses dignitaries and the crew of the frigate Dyi-huah at Zuoying naval base in Kaohsiung. Photo: ROC Ministry of National Defense

I think Tsai’s immediate response was disappointing. Why send a military vessel to protect Taiwan’s sovereignty over Itu Aba (Taipingdao) when the decision had nothing to do with sovereignty? Such uncharacteristic bluster (so different from Tsai’s response to Japan’s interference with Taiwan fishing within the preposterous Okinotori Exclusive Economic Zone (EEZ) claimed by Japan) may have played well at home but abroad it made Taiwan look like the PRC.

I think she should have announced her disappointment about the unfairness to Taiwan of having been excluded from an adequate hearing before the tribunal made its decision as well as about the decision on the merits (Although I liked the amicus brief submitted by the Chinese (Taiwan) Association of International Law, the tribunal’s arguments were more impressive, as I am about to publish in the Wall Street Journal today Beijing time.)  That would have made a better platform for then going on to say that, of course, Taiwan is prepared to take part in negotiations about how to resolve the problems in light of the new circumstances.

I don’t think the American people noticed Tsai’s actions at all. While the US Government can’t be happy with her initial response, the USG got what it wanted on this issue and surely understands Tsai’s felt need to deal with her public’s opinion.

The real challenge for Taiwan is whether to continue to press for an EEZ/Continental shelf for Itu Aba via some imaginative means. Being excluded from the United Nations Convention on the Law of the Sea and the UN, options are limited. Note that Ma offered ten suggestions re how to deal with the Itu Aba problem internally, but not one dealt with trying to reverse the decision or even what to do next externally in any way. 

My Letter to the Editor, NY Times

http://www.nytimes.com/2016/07/14/opinion/the-south-china-sea-dispute.html?ref=topics

To the Editor:

“South China Sea and the Rule of Law” (editorial, July 13), about China and the South China Sea arbitration, lacks only one important point. Surprisingly, you don’t mention that the United States, while urging all Asian states to respect the United Nations Convention on the Law of the Sea dispute-resolution institutions, has itself shamefully failed to ratify Unclos, something China did 20 years ago.

This puts us in the position of “do as we say, not as we do,” insulating us from similar challenges and denying us the opportunity to begin similar challenges.

It’s like a swimming coach who exhorts the swimmers but dares not wet his own feet!

JEROME A. COHEN

New York

The writer is a professor and director of the U.S.-Asia Law Institute, New York University School of Law.

A Few Immediate Implications of the South China Sea Arbitration Ruling

I think this ruling will add significantly to Xi Jinping’s internal problems. It was a disastrous call to thumb China’s nose at United Nations Convention on the Law of the Sea (UNCLOS) even while claiming to respect it, and the outcome gives many dissatisfied members of Beijing’s elite more fuel for the fire they are lighting under him. See my Sept 23, 2015 op-ed in the Wash Post the day he arrived in DC.

As to the dispute itself, I expect the PRC’s current threatening gestures to persist for a while but there will also be quiet attempts to make a face-saving deal with Duterte through economic incentives and even under the table influences. This may stimulate serious negotiations with other neighbors too.

Vietnam must be very happy, Indonesia too and perhaps Malaysia less obviously. I think Vietnam and Indonesia can credibly threaten to launch their own arbitrations unless Beijing gives assurances of better behavior and shows a genuine willingness to compromise. For Vietnam the problem is that China refuses even to have a bilateral negotiation over the Paracels, which matter at least as much as the Spratly group to Hanoi.

The decision may hearten Japan’s enthusiasm for arbitration or International Court of Justice (ICJ) adjudication over the Senkaku, and Tokyo may repeat its November 2012 pre-Abe offer by former Foreign Minister Gemba, who dared China to settle the dispute before the ICJ.

Photograph: Hearing in session, July 2015, Peace Palace, The Hague, Photo Credit: The Permanent Court of Arbitration

The tribunal’s interpretation of Article 121.3 has the healthy effect of reducing the importance of all these islands by denying them exclusive economic zones (EEZs) and continental shelves, which will eventually make it easier to deal with these issues.

I hope the tribunal’s decision will encourage the US Senate finally to consent to UNCLOS ratification. The fuss over this arbitration leaves America with egg on its face!

Perhaps Taiwan is the most interesting place to watch as Tsai Ing-wen struggles to adjust to an uncomfortable situation. Today’s response openly rejecting the decision is a big mistake and different from what even Ma would have done. Tsai will be criticized at home for following Beijing’s lawless line at the same time that Beijing was responsible for excluding Taiwan from participation in the arbitration.

China’s Disregard for the International Rule of Law

Here’s William Nee’s first-rate essay on the insights into criminal “justice” in China offered by the Booksellers’ case.

Photo Credit: Flags of member nations flying at United Nations Headquarters, United Nations Photo, Flickr

I would only add: The Chinese Government can too often hide its disregard for international human rights standards as well as its own national laws. Yet we must continue to expose such violations as much as possible. For example, as John Kamm points out, the UN Working Group on Arbitrary Detention has once again condemned PRC criminal procedure abuses, on this occasion for the first time involving an American citizen.

This Tuesday’s decision by the UN arbitration tribunal in the Philippine maritime dispute with China will highlight another area in which the PRC has shown its contempt for the international rule of law. Unfortunately, in its defense, all too often the PRC is able to cite previous United States violations.

Chinese Think Tanks: Confidential Messengers and Idea Sources as Well as Spear Carriers for Their Government

Here is a noteworthy report by Isaac Stone Fish in Foreign Policy, Beijing Establishes a D.C. Think Tank, and No One Notices.

I would only add to this useful analysis the following: In their publications and public speeches, those who work at Chinese think tanks do indeed tend to be spear carriers for their government, with varying degrees of subtlety and effectiveness. Two opposing extremes were on view, for example, at the annual meeting of the American Society of International Law in Washington on April 2, where the South China Sea was discussed. Dr. (Ms.) HONG Nong made a gentle, respectable argument designed to elicit the attention, if not agreement, of the mostly American legal specialists present. The other Chinese speaker, injected into the panel as a result of pressure from the PRC government, proved a disaster who infuriated the crowd by his blatantly unfair efforts to attack the legitimacy of the United Nations Convention on the Law of the Sea dispute resolution process. He reminded me of Molotov, the Hammer, in the good old days of Stalin.

What the thoughtful Foreign Policy article does not discuss is the valuable roles that Chinese think tanks play in conveying foreign information and ideas to PRC decision-makers and in quietly suggesting their own ideas for consideration. In the current Chinese political climate, the latter sometimes requires courage!

China's 709 Crackdown on Human Rights Lawyers: One Year On

It is encouraging that petitions, protests, reports, documentaries, editorials, op eds and blogs seek to alert the world to the first anniversary on July 9 of the Party’s most recent and intense crackdown on human rights lawyers, collaborating activists and their loyal families. It is discouraging to realize how little impact all these efforts will have on Xi Jinping and his spear carriers or even on the Chinese people, most of whom are deprived of their right under China’s Constitution to know about such efforts. The scholarly work of Eva Pils, Terry Halliday, Liu Sida and others helps us to understand the motivations of these martyrs to the cause of political and civil rights. Yet how long can we expect even the bravest and most dedicated human rights advocates to endure in the cruelly punishing conditions that Xi Jinping has imposed upon them?

Although signs of internal friction and power struggles increasingly emerge from Xi’s non-transparent polity, the odds still favor his continuing to rule for another five years after the 2017 Party Congress, and some insiders doubt that he will voluntarily surrender the throne in accordance with Party rules in 2022. This recalls the examples set by Marcos in the Philippines and Park Choon-Hee in South Korea. Yet those East Asian precedents for illegally extending dictatorship, like the unspeakable abuses of Mao Zedong, in each case led to a public reaction that produced a more civilized, lawful regime. In China, unfortunately, the post-Mao reaction proved to be halting and incomplete, and Xi Jinping’s four years have featured repression more than progress. Comparisons are stimulating between the Xi regime and Russia under Putin, who successfully reversed his country’s post-Soviet democratic tide of the early 1990s. Will Xi, who admires Putin, seek some similarly imaginative formula for legitimizing the extension of his rule? How long will China’s human rights heroes have to suffer and sustain their faith?

Abduction of Hong Kongers by the Party

By Jerome A. Cohen

I don’t know how Lam Wing-kee was persuaded to tell the truth and finally demolish the “bedtime story” that the PRC government has been using to ridicule itself and insult the world’s intelligence. Bravo to Albert Ho and his colleagues and to the SCMP for bringing reality to our attention. This case offers classic instruction about the arbitrary power of the Chinese police to detain and torture any of us within China and to reach beyond China’s borders to silently kidnap and force to China even foreign nationals!

This story reveals on many levels the nature of the PRC legal system. We have long heard about “two Chinas” in the international realm, but there have always been two Chinas in the realm of criminal justice– the China of written law including the Constitution – and the China of real life Communist party and police practice, which often ignores, defies or distorts the published rules.

This case is especially interesting for the light Mr. Lam now sheds on the special investigating group that operates as a secret instrument of the central Party authorities. He also confirms that the case is not the product of some out-of-control local officials in southern China but emanates from the Party center.

The attempt to discredit Lam through untested statements made by people who remain under PRC control and whose fate will be determined by their responsiveness to the demands of their captors is pathetic – for them and for the reputation of the PRC. 

What might be the end game of the South China Sea arbitration?

Jerome A. Cohen

As the result of the arbitration case filed by the Philippines government against China on South China Sea questions is imminent, people are wondering how Beijing will react and what might happen next. I have offered the beginning of an answer in the speech I gave to the April 14 Soochow University comprehensive conference in Taipei on the issues involved (video below; link here).

My hope, of course, is that at some point after the decision is announced, the parties will resume negotiations on the basis of the tribunal’s decision concerning the fifteen or so issues before it. To save China’s face, there would be no need for explicit reference to the arbitration in any agreement that might emerge. There may be a fairly long period before the PRC decides to negotiate on the basis of the arbitration decision.

In the interim other claimants may bring their own arbitrations against China on similar or related issues. Each arbitration tribunal can render its own independent decision on the jurisdiction and the merits.

Can people imagine how things might look to China and the world, for example, if Vietnam, Malaysia and Indonesia each brought separate suits against China seeking to confirm the Philippine tribunal’s invalidation of the “9-dash line” and if in each case the five experts, who might be totally different from the arbitrators in each of the other proceedings, arrived at the same decision as the Philippine tribunal? The same thing might happen regarding the issue of whether any of the islands in question is entitled to an Exclusive Economic  Zone and continental shelf.

I like the Chinese phrase “xuyao yige guocheng” 需要一个过程 (everything requires a process, i.e., Rome wasn’t built in a day). During this period the other claimants might seek to use their arbitrations to obtain orders against China to cease their questionable “reclamations” pending the outcome of each case.

Of course, since my April 14 speech the Philippines has elected a new president, whose attitude and policy toward China are as yet unclear. It is rumored that, if no arbitration decision has been rendered before he takes office July 1, President Duterte might seek to negotiate a settlement with China and then withdraw the request for arbitration before the decision is announced, saving China’s face.

This video was filmed for a panel discussion in the International Conference on the South China Sea Disputes and International Law hosted by Taiwan's Soochow University School of Law in Taipei on April 14, 2016. For the program of the Conference, see http://163.14.2.167/law/conference/5116/18.

More Questions on the American Bar Association Story: Who in Washington Ordered the ABA’s Book Publishing Unit to Rescind the Offer to Teng Biao?

By Jerome A. Cohen

The report by Isaac Stone Fish in Foreign Policy, “Leaked Email: ABA Cancels Book for Fear of ‘Upsetting the Chinese Government’,” which I wrote about earlier this week here, has finally stimulated the beginnings of an ABA response.

An email from Jen Leung, the Country Director of the American Bar Association Rule of Law Initiative China Program, on the China Law Listserv makes it clear that the Beijing office of the ABA’s Rule of Law Initiative (ROLI) had no knowledge that some people in Washington headquarters, where ROLI’s central office is located, reportedly influenced the ABA’s book arm to rescind its offer to Teng Biao. The email implies that ROLI’s central office in Washington, which directs its Beijing office and has fought vigorously and successfully to maintain the valuable work its Beijing staff is doing, also was unaware of the ABA’s book offer to Teng.

Presumably this will be confirmed by either the ABA’s internal investigation or further journalistic efforts. Whatever the outcome of that specific inquiry, however, it is clear that, despite the ABA’s belated and pathetic attempt to deny the reason its employee originally gave for its embarrassing change of mind, there is nothing fictional about the Foreign Policy story. What we don’t yet know is who in Washington ordered the book publishing unit to rescind the offer.

To its credit, another wing of the ABA, the ABA Journal, has published three articles reporting on the Chinese Government’s current repression of lawyers, and, under the leadership of the highly respected sociologist of law Terry Halliday, the American Bar Foundation has done important research on the plight of those Chinese lawyers courageous enough to try to defend human rights. So perhaps there are advantages as well as disadvantages to the ABA’s lack of efficiency regarding its China policy!

It will be interesting to see whether this important fuss leads to a debate during the annual meeting of the ABA House of Delegates this summer. Surely some outstanding ABA members would like to take part.

China and the American Bar Association – Another Sad Story

By Jerome A, Cohen

Human Rights lawyer Teng Biao, Photo credit: May Tse/South China Morning Post

The report by Isaac Stone Fish in Foreign Policy, “Leaked Email: ABA Cancels Book for Fear of ‘Upsetting the Chinese Government’,” stirred up a lot of discussion over the weekend. The American Bar Association’s 2015 reversal of its initial decision to publish a book by the famous Chinese rights scholar/activist Teng Biao was allegedly market-driven, the ABA belatedly claimed, and not based on fear of China as originally explained by the ABA employee in charge of book negotiations.

Did the ABA tell the truth in seeking to explain its reversal of the original decision to publish? The fable from the ABA reminds me of the stories the PRC has recently put out to try to explain China’s kidnappings of certain Hong Kong publishers. Reasonable people could argue about the ABA’s discouragingly timid statement last August about the oppression of China’s human rights lawyers, which I wrote about here, but what can one say about the Teng Biao incident other than that it is a pathetic chapter in the history of the world’s leading bar association?

Commissioning a book by ex-professor and lawyer Teng – a genuine hero of the legal profession now unable to return to China, accepting his outline for the book’s publication and then changing its mind out of fear of offending Beijing was surely bad enough. But then to belatedly seek to retract an apparently truthful explanation of its bad judgment by spinning a yarn that is an insult to our intelligence is contrary to the ethics and integrity for which the ABA purports to stand. Heads should roll over this incident, but not the head of the whistle-blower! 

As to the real reason – fear that China might terminate the ABA’s valuable law reform work in Beijing, we heard it given last August in defense of the initial insistence of ABA’s Rule of Law Initiative (ROLI) that there be no protest whatever and, under fire, that any protest be a timid one. This was months after the reversal over Teng’s book. I don’t think any of us who opposed ROLI’s view last August knew about the book reversal and the ABA did not disclose it. If it had done so, this would have added significant fuel to the fire against its position.

Within the ABA, ROLI impressed me as a tough, no-holds-barred bureaucratic infighter against other ABA units that challenged its view, such as the Human Rights committee. For example, I was told that, when, as the internal debate within ABA over whether to make a statement raged, ROLI scheduled a meeting with the State Department on behalf of the ABA, it did not notify the ABA human rights people, thereby precluding them from being included in the ABA delegation to the meeting.

The ABA is a huge, unwieldy organization that desperately needs – at a minimum – better coordination regarding China so that its various entities know what each other is up to and can develop a coherent, respected policy toward a major country that will continue to present many challenges. We have not heard the last of this story and perhaps the ABA head office will issue a clarification in the next few days. Surely the incoming president should give this matter a high priority.

Since we have been discussing disclosure, I should mention what many know – that Teng, since last summer, is no longer at Harvard but has been a Visiting Scholar at our NYU US-Asia Law Institute.  I suppose I should also disclose that in 1966, I think it was, I published a letter in the NY Times, taking the ABA House of Delegates to task for uncritically endorsing American military actions in Vietnam as consistent with international law.

China’s miraculous recent efforts to reform people into “socialist new men”!

Photo: Voice of America, January 2016

Lee Bo, one of the Hong Kong Publishing Five whose disappearances last year have been widely reported, now says he will never publish banned books again.

Let’s try to look at the possible bright side to the PRC’s recent successful attempts to insult our intelligence and challenge our credulity. One of the more idealistic aspects of the Bolshevik Revolution was the honest aspiration of Lenin’s first Minister of Justice to create a new, truly revolutionary system of punishment that would transform criminals into “new socialist men”. Chairman Mao’s first decade in national power prominently featured a similar goal, one that gradually, almost imperceptibly, yielded to the reality that it is easier for governments to kill people than transform them.

But is it now possible that Xi Jinping has outdone his much-admired Helmsman by miraculously transforming, in jig time, the Hong Kong Publishing Five and other alleged offenders who have recently confessed their sins in public, even without being prosecuted, not to mention convicted? By the time we mark the 100th anniversary of the Bolshevik Revolution next year, will there be further evidence that it has belatedly achieved one of its most ambitious goals?