North Korea policy: how about some imaginative variant thinking?

Here’s a piece by Gordon Chang last week on North Korea, To Disarm North Korea, Wage Trade War On China, advocating waging a trade war with China to make it stop from supporting North Korea.

What about trying a different policy toward North Korea, going to the other extreme from Gordon Chang’s proposal? I refer to a systematic effort to bring the North Korean regime fully into the world community and meet its security needs.  US policies toward Vietnam, China, Burma, Cuba and even Iran have changed remarkably and favorably, with varying degrees of success. North Korea would be the ultimate challenge, and implementation would require enormous patience, imagination, flexibility, public education and expenditure of considerable political capital at home and abroad, especially in Northeast Asia. But no other course seems promising. On and off, I have had a number of contacts with the North since 1971, enough to make me think that such an unlikely suggestion may well be worth considering. 

Human rights lawyer Jiang Tianyong has disappeared for nine days after visiting 709 family in Changsha

Photo: China Human Rights Lawyers Concern Group

Photo: China Human Rights Lawyers Concern Group

Jiang Tianyong, a prominent Chinese human rights lawyer, was apparently abducted on November 21 after visiting the family of another human rights lawyer who has fallen victim to China’s crackdown starting from July 9 last year (709 crackdown). Jiang’s wife as well as family members of the rights lawyers who have been detained since the crackdown and fellow lawyers have issued a statement demanding the Chinese government to launch an investigation and reveal Jiang’s whereabouts.

Let us hope that Jiang will soon be released. He is a hardy veteran of such intimidations but this time he may be held for much longer than before. The police may have secretly detained him in the guise of “residential surveillance”, which would give them the power to hold him incommunicado for six months if they claim that he falls into one of the three categories of supposedly exceptional circumstances that allow detention apart from the conventional criminal process. Or he may be detained in the guise of the regular criminal process, according to which the police, again because of their very broad interpretation of another narrow legislative exception, allow themselves 30 days to hold a suspect before being required to charge the suspect before the prosecutor’s office or release him. Or, as often happens, the police or their hired thugs may have simply detained Jiang with no legal authority, in effect kidnapping him as they have so many others including one of his early clients, the blind “barefoot lawyer” Chen Guangcheng.

I first met the courageous Jiang in Beijing in 2005 when he and his law partner Li Heping, who has long since been confined as a result of criminal prosecution, were representing Chen, and we all lunched together. Jiang told me at that time how, as a young public school teacher, he had decided to become a lawyer in order to try to improve China’s human rights situation.  Shortly after lunch, Chen was abducted by Shandong police who had come to Beijing without seeking permission of their local counterparts.

For more than a decade since that meeting Jiang himself has had to play “cat and mouse” games with the security police in an effort to avoid the long-term detention that would stop his human rights work. For example, a few weeks after Chen’s abduction I telephoned Jiang to tell him that Chen, in a quick, furtive call to me, had asked that Jiang take the night train from Beijing to Shandong to try to visit Chen. Jiang agreed to try, despite the serious risk that he would be beaten by police thugs who were guarding Chen’s village. An hour later, however, Jiang called me back to report that he had received a call from the local judicial bureau ordering him not to travel to Shandong. The judicial bureau had evidently been contacted by whoever had been listening to my first call with Jiang. As a result, he did not make the trip but did manage to send an assistant, who was indeed abused by the local Shandong thugs.

Similarly, some years later, shortly after arriving in Beijing, I called Jiang to invite him to dinner that night. He said he would have to call me back in half an hour because he needed to ask for permission from the police “minder” stationed outside his law office. When he did call me back, he declined my invitation because the “minder”, whom Jiang evidently knew quite well, said that if Jiang wanted to return to the office the next day he had better not see me that night. Jiang, however, told me that his assistant would be permitted to join me for dinner, as he did, undoubtedly under surveillance.

Yet, despite such commendable caution, police have on some occasions detained and abused Jiang, but not for the long term that he might now confront.

Scott Savitt’s new book, Crashing the Party: An American Reporter in China

Last night I had the privilege of interrogating Scott Savitt about his new book, Crashing the Party: An American Reporter in China, in a 90-minute program at the China Institute’s new residence in New York.

The book is a highly informative, great read about China in the period 1983-2000 when Scott succeeded in immersing himself in Chinese life in various ways starting as a student and ending as a newspaper publisher.

The book begins and ends with a vivid, still relevant description of what it’s like to be detained by the secret police for 30 days in the year 2000, so perhaps I am biased in its favor because of concern for “the rule of law”, but there’s much else in it of interest to a broad audience, and it’s painfully honest.  Scott, whom I had only met occasionally over the years until last night, proved to be a lively and stimulating witness before a good-sized crowd. It’s a shame he has been on China’s black list for so many years but, even without the opportunity to return to China, I’m sure he can write a sequel to this just-published book detailing China’s progress and his many China-related activities since 2000.

For those who will be in the NY area sometime between now and late March, I urge you to make the trek to the China Institute’s new downtown Manhattan location in order to see the really spectacular and quite large exhibition of celadon masterpieces from the Six Dynasties period. This could never have been shown in the Institute’s previous, much smaller space on 65th St. 

Eric Li’s flawed arguments in a recent NYT Op Ed, “How Trump Is Good for China”

Eric Li, who made his name in the US with a TED talk in which he praised China’s political system, published an Op Ed in the New York Times on Monday, “How Trump Is Good for China.”

I do not object, as some have, to the Times publishing his one-sided piece because its Op Ed Page has favored strong “attack” columns since its inception under Harrison Salisbury in the early 1970s, and it’s good to know what a significant body of people in China are said to be thinking.

I liked Li’s idea of trying to find a “silver lining” by turning the vice of Trump’s election into the virtue of improved Sino-American relations, but his arguments are deeply flawed, as many have pointed out. Two aspects especially struck me.

One is his forceful summary of the ailments of American society and politics while totally ignoring the very serious challenges confronting a China that is gradually weakening, not only economically but also politically and socially.

The second aspect is related to the first. He completely ignores Xi Jinping’s increasingly severe suppression of internationally–recognized civil and political rights. Instead, Li seeks to convey the impression that those inside and outside China who protest Xi’s oppression are tools of aggressive American cultural imperialism rather than reflecting widely-shared universal, civilized values. Even the Times op ed editors, despite their preference for controversy, might have questioned these glaring defects.

GlaxoSmithKline’s corruption in China

Here is an interesting and thoughtful piece by David Barboza in today’s New York Times about GlaxoSmithKline’s bribery scandals in China. The piece raises the question of why Glaxo, as a multinational company, had been so incredibly slow to investigate corruption of its own employees abroad.

I can add a few words based on my own experience as a lawyer advising foreign companies seeking to do business in China from 1979 to 2001. Multinationals, in dealing with China, often reflect their national corporate cultures as well as their own distinctive ones. Among the key factors are, at headquarters, the position enjoyed by the legal department in relation to the company’s overall management and, in the field, the extent to which the headquarters legal department seeks to keep informed about and influence what the company’s representatives in China are up to.

Some American-headquartered companies’ general counsel play very prominent roles both at home and in China and nip in the bud any evidence that the company’s staff in China might be engaging in illegal conduct, whether initiated by the staff or in response to the blandishments of local officials. Attitudes among European companies vary, of course, but there has been, and perhaps even today is, a tradition of somewhat greater tolerance for bribery when competing in a foreign business environment, despite legal regulations that ban it. Japanese companies, although notorious for the methods often used in some Asian countries, seem to demonstrate considerable ambivalence in China, frequently smoothing their way with the usual array of gifts and other “friendly” gestures but showing sometimes exaggerated sensitivity at headquarters about avoiding actions that could be interpreted as corrupting in a major way. Japan’s wartime history in China still makes them more sensitive than most other foreign competitors. 

This is a great and important subject worthy of scholarly and journalistic research. Unfortunately, my own experience with multinationals is relatively limited and long out of date.

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.