10th anniversary of the disbarment of Chinese human rights lawyers Tang

By Jerome A. Cohen

My colleague Yu-Jie Chen and I wrote about the disbarment of human rights lawyers Tang Jitian and Liu Wei ten years ago. At the 10th anniversary today, Professor Eva Pils and I, in collaboration with Yu-jie Chen, have just published an op-ed in the South China Morning Post to remember this case and the plight of Tang Jitian and his colleagues.

A decade has passed, and the human rights lawyer movement in China has deteriorated with astonishing speed. We asked at the end of the article: Will liberal democracies and the international legal profession, preoccupied with the coronavirus and other major distractions, take note? Tang Jitian and his surviving colleagues in China try to remain hopeful. Are they right?

Tang Jitian

left, Wang Cheng, Tang Jitian, Jiang Tianyong, at the Nongken Procuratorate in Jiansanjiang before their detention on March 21, 2014. Source: Human Rights in China

Human rights lawyer Wang Quanzahgn reunites with family after his “non-release release”. But under what conditions?

By Jerome A. Cohen

It is indeed great news that Wang Quanzhang has finally been allowed to return to Beijing and his family. Many who supported him and his human rights cause for five years will be moved by the video of the family reunion.

The significance of Wang’s release from “non-release release” (伪释放) in Jinan after a week of the Party’s uncertain waffling in the unusual glare of foreign media has yet to be determined, of course. What are the conditions, if any, of his return to Beijing?

Did his dynamic, gallant wife manage to resist the usual pressures to keep the ex-prisoner at home cut off from the world? Was her illness and hospital trip the straw that broke the Party’s back? Will Wang, having already had unusual access to people and media in Jinan, continue to have such access in Beijing? The Party may decide it’s too late to lock the barn door. Will he now actually be freer to tell the full story of the cruelty inflicted upon him so unfairly by the Party’s criminal justice system?

And might this case indicate recognition by the Party that the police should not have unlimited discretion in determining the scope of post-conviction “deprivation of political rights” (DPR)? After all, as the Soviet origins of this largely unrecognized punishment demonstrate, DPR was thought by many merely to deprive an ex-convict of the rights to vote and stand for election, not an enormous deprivation given the realities of Communist politics.

Update on lawyer Wang Quanzhang and “deprivation of political rights”

By Jerome A. Cohen

Here is an update on the weird and fascinating “non-release release” (NRR) of the famous, disbarred human rights lawyer Wang Quanzhang, who is being prevented from returning to his home and family in Beijing and kept in his former residence in Jinan (the police having ousted the tenant who was renting from Wang) but allowed some contacts with his sister, a friend and some non-PRC media.

A local Jinan police station official told his sister that Wang is required to stay there because he is under sentence of “deprivation of political rights” (DPR) for the five years after his “release” from almost five years in prison. This would be a far-fetched interpretation of the criminal punishment of DPR, as I pointed out in my last week’s pre-release op-ed in the SCMP.

Wang’s tenacious and brave wife, Li Wenzu, has openly ridiculed this DPR argument in a tweet that has evoked a large variety of interesting responses. Her evolving and well-publicized challenge to the administration of criminal justice will undoubtedly lead to a clarification of the scope of DPR in the next revision of China’s criminal legislation. The fuss made over Ai Weiwei’s illegal detention in 2011 led to a 2012 revision of criminal legislation relating to “residential surveillance at a designated location” (RSDL), which the police have subsequently abused by their unjustified nullification of the limits on RSDL imposed by the new provisions.

Reunion of Wang Quanzhang and his sister, April 21, 2020, Credit: Wang Quanzhang’s wife Li Wenzu’s twitter @709liwenzu

Glimpse into rights lawyer Wang Quanzhang’s “Non-Release Release”

By Jerome A. Cohen

Rights lawyer Wang Quanzhang has not been free after his April 5 “release”. In the past two days, Mimi Lau of the South China Morning Post and William Yang of Deutsche Welle were able to reach Wang and published valuable interviews that offered unusual glimpses into the plight of this courageous lawyer (SCMP interview; Deutsche Welle).

Wang said he’ll challenge the unfair prosecution against him. Questions remain: How can Wang now do that? Has he yet been given belated copies of the prosecution’s indictment and the court’s judgment, as required by law even in secret trials? Can he now choose independent counsel to assist and meet with him? If his wife and colleagues were unable to access the legal system to defend his rights for almost five years, can he and they now do better? Here is my take in the Diplomat, Wang Quanzhang and China’s ‘Non-Release Release’.

Wang Quanzhang, April 20, Credit: Li Wenzu’s twitter @709liwenzu

The WHO Has a China Problem. Cutting Funding Isn’t the Answer.

By Jerome A. Cohen

My colleague Yu-Jie Chen and I have just published a piece in The Diplomat, Trump Is Right That the WHO Has a China Problem. Cutting Funding Isn’t the Answer.

We point out that Trump has himself to blame for his administration’s bungled response to COVID-19. But one does not have to agree with Trump’s reckless tirades to condemn the WHO. Those who try to defend the WHO must not overlook WHO's remarkable failings as well as the WHO director-general’s biased and unprincipled position when dealing with China. The world community would benefit from insisting on better performance from the world’s health body, rather than normalizing its failings.

But Trump's decision to halt WHO funding is obviously immoral and cruel. We argue that it is also strategically unwise. Washington should reverse the current disengagement and self-isolation policy and seek to develop broad-based, cross-regional alliances in the international system, which is all the more important at a time when U.S. leadership continues to decline and China’s power is perceived to increase. For the WHO, Washington should join its allies in using collective political and financial leverage to reform the organization to improve its transparency, competence, and integrity. Burying the head in the sand while pointing fingers at others isn’t going to cut!  

How to read the 4/18 mass arrests in Hong Kong

By Jerome A. Cohen

Saturday’s mass arrests in Hong Kong, following the bold assertion by Beijing’s Liaison Office of comprehensive power over the PRC’s Special Administrative Region, represent a stunning advance toward the Chinese Government’s demolition of One Country, Two Systems in fact, if not in name. 

The people of Hong Kong are very unlikely to accept this further erosion of “the high degree of autonomy” that they were promised when the PRC and the UK concluded the Joint Declaration on Hong Kong’s future in 1984 and China enacted the Basic Law for Hong Kong in 1990. 

This week’s actions may well be an attempt by Beijing to provoke a broad popular reaction that will then provide an excuse not only to finally bulldoze success passing controversial national security legislation in HK under Basic Law Article 23, but also to call off the crucial September election scheduled for HK’s Legislative Council. Indeed, another Art. 23 campaign is sure to elicit an even stronger reaction than we saw last year in response to PRC efforts to pass legislation authorizing extradition/rendition of alleged criminal suspects for “justice” on the Mainland. Unless, of course, HKG restrictions regarding Covid-19 inhibit people from going into the streets, which is what the PRC is surely counting on. 

Some observers have wisely advised the public to keep cool and remain patient, if possible, and virus restrictions may make this probable, by and large. Whether or not there is street reaction, there should be no letup, of course, in exposing the Chinese Communist Party’s nefarious actions. The Party undoubtedly has other actions up its sleeve in its effort to squelch Hong Kong’s striving for democracy.

With all the pro-HKG talk about the importance of equality before the law in the hope of justifying the mass prosecution of the SAR’s traditional democratic figures, I believe the defense will emphasize the inequality demonstrated in singling out these 15 leaders while not prosecuting the hordes of others who also technically violated the anti-protest regulations in question. The prosecution will have to show that the 15 each not only took part but also led or helped organize last year’s protests and that others not prosecuted do not share that responsibility. These criminal trials will not be short and simple, and one should not underestimate the preparation and competence of the HK Department of Justice professionals, however reluctant some of them may be to pursue these cases. 

Civil war in Hong Kong? The mass arrests of April 18

By Jerome A. Cohen

The PRC is desperate to quell Hong Kong’s opposition and therefore willing to boldly gamble on this astonishing attack. I think today’s attack will reignite civil war in Hong Kong, despite Covid-19 restrictions, enhance opposition to the forthcoming PRC renewed effort to enact Article 23 repressive “national security” legislation in Hong Kong, and lead to the cancellation of the September LegCo election unless the democratic forces see the trap that has been set for them and act in ways that cannot be seen to justify cancellation of the election. A tall order in the face of the current provocation, which is only the most recent of many recent ones.

If the election is held, the opposition should win.

My new article (& brief memoir): “Was Helping China Build Its Post-1978 Legal System a Mistake?”

By Jerome A. Cohen

Here’s  a draft of a new article that in a way is my Apologia Pro Vita Sua. There have been some debates about whether those of us who tried to help China build its legal system in the decade beginning in 1979 committed a mistake. I offer my thoughts in the article from a frank, close-up, first-hand perspective. I hope they will be useful for people thinking about our China policy and for anyone interested in recent Chinese history.

The article’s abstract is below. It can be downloaded at my SSRN page and here. After editing and some revisions, it will appear in the Virginia Journal of International Law Online later this spring. An earlier version was presented at a stimulating conference convened by the University of Michigan last fall. I’m also including two interesting photos from 1979 below.

At the invitation of the Beijing city government, I moved to China with my wife in 1979 and began to train Beijiing officials in international commercial law and dispute resolution. 1979, Beijing.

At the invitation of the Ministry of Finance, I set up a program between Harvard Law School and the PRC's National Tax Bureau to teach tax law to Chinese officials. 1979, Dalian, China.

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WAS HELPING CHINA BUILD ITS POST-1978 LEGAL SYSTEM A MISTAKE? (forthcoming Virginia Journal of International Law Online, June 2020)

 Abstract

Some thoughtful observers argue that the American policy of cooperation with post-Mao China in developing its legal system has proved a failure. They claim that our engagement set out to produce a democratic, rule of law China that would become, in the eyes of the United States and other democracies, a protector of human rights at home and a responsible member of the world community. Instead, they argue, engagement has enabled a Communist dictatorship to become increasingly repressive at home and a threat to world peace and the values we cherish. Implicit in this view is the belief that those of us who sought to assist in the early efforts of Deng Xiaoping’s “Open Policy” to improve the legal system of the People’s Republic of China (PRC) and its practice of both domestic and international law were not merely wasting our efforts but actually helping to create a nightmarish political Frankenstein. From this perspective, we failed in the effort to export liberal-democratic legal values to China.

At the same time, America’s post-1978 legal cooperation with China has come under attack on a somewhat different ground. The argument here is not that cooperation was a mistake in principle but that we carried it out in the wrong way – that, consciously or unconsciously, our legal efforts in China reflected not the earnest desire to learn from contemporary China in the true spirit of comparative law displayed by America’s Founding Fathers but a growing and misguided faith in the export of American law. Our post-’78 China efforts, it is said, should be seen as part of the post-World War II Law and Development movement that was predicated on the belief that the introduction of an American-type legal system in many developing countries would strengthen their governments and economies, lead them to political democracy, promote their positive participation in international relations and warrant the gratitude of their people. According to this view, the Law and Development movement was an erroneous, even dangerously arrogant, missionary-style attempt to export American law that ultimately proved futile. Indeed, post-’78 American efforts in China have been deemed Exhibit A in the indictment of the modern Law and Development movement. They have been branded the heir to earlier American efforts to “civilize” pre-Communist China by bringing it to Christianity and the rule of law, especially during the first half of the 20th century.

This article evaluates these claims and rejects both of them in qualified fashion. Given the international situation at the time and the chaotic, lawless and impoverished Cultural Revolution from which the PRC was seeking to emerge, post-’78 American legal cooperation with China was wise politically and economically. It helped to produce a coherent national legal system that improved the lives of the Chinese people and their country’s relations with the world.

To be sure, it did not lead to a democratic Western-type rule of law that protects political and civil liberties. Yet those of us who actively participated in this law reform effort were not naïve enough to believe that a rule of law regime might directly result from our efforts. We did, however, hope that respect for due process values and the role of an independent legal profession might develop as a byproduct. We were plainly not versed in the “Law and Economic Development” movement, although we assumed that, by responding to the PRC’s requests for legal assistance, we would promote domestic economic progress and foreign business cooperation, as indeed we did.

We were, of course, eager to learn what three decades of Communist experience had contributed to China’s legal system, only to find that our hosts, who were focused on absorbing international commercial law and practice from us, had little good to say about their own system’s accomplishments and no interest in and little knowledge of the pre-1949 Chinese legal systems that Chairman Mao had ostentatiously rejected. What we did learn about early PRC law from our post-‘78 involvement largely related to criminal law and confirmed the accuracy of those Western indictments of Chinese Communist injustice that had marked the previous long Maoist era, both during the period of Soviet influence in the 1950s and during the following two decades until the chairman’s death. Sadly, our generally successful response to PRC requests for legal cooperation has not even today diminished the abiding and prominent Chinese Communist preference to pursue regime goals via arbitrary detention rather than due process. True comparatists must acknowledge this fact.

Keywords: US-China relations, law and development, rule of law, democracy, human rights

China's continuing repression of human rights lawyers amidst—and under the pretext of—Covid 19

By Jerome A. Cohen

Here's my op-ed in today's SCMP, China should not use the coronavirus as an excuse to silence human rights activists like Wang Quanzhang. "Covid-19 has outlived its use as an excuse for repression. This time the world is watching, so the party faces a challenge to its ingenuity, or at least its brazenness."

Chinese Lawyer Disciplined for Exposing Covid-19 and Deaths in Wuhan

By Jerome A. Cohen

The excellent Radio Free Asia report, Chinese Lawyer Withdraws Appeal Against Disciplinary Sanction, gives valuable insight into how the Chinese Communist Party’s suppression of speech hinders the fight against Covid-19. The woman lawyer suppressed in this instance was not a conventional human rights lawyer but  an idealistic general lawyer trying to expose the government’s mishandling of the health crisis. She would surely have been disbarred from practice, as another local lawyer was, had she been more energetic in seeking and revealing virus-related information or more resistant to the professional institutions that sought to stifle her.

The CHRD report cited by RFA is very important since it gives details about how thousands of people have been persecuted by the Ministry of Public Security for allegedly disseminating “false and harmful information”. CHRD itself has documented roughly 900 cases of persons recently sanctioned by the public security forces for “spreading misinformation” or ”disturbing public order” regarding the epidemic. Almost 20% were sent to police detention for up to 15 days, a process that, under the “Public Order Administration Punishment Act”, requires no participation by defense lawyers or any court. Conditions in police detention cells are often appallingly overcrowded, coercive and unsanitary.

The RFA report also gives keen insight into the plight of Chinese lawyers who try to speak out. Their law firm is pressed by the Lawyers Association and the official Judicial Bureau to stop them or fire them. If the firm fails to take sufficient action to suppress its lawyer, it will be closed down by the Bureau, and the lawyer will be disbarred and even jailed. It is notable that the courageous lawyer involved in this case, Ms. Liu Yingying, was coerced into abandoning her appeal against the reprimand she had received from the Lawyers Association for posting “inappropriate comments” and had to admit her mistake, delete her post and reflect sincerely on her error. That was why the Lawyers Association, which is supposed to protect the rights of lawyers, said it would treat her leniently!

Covid-19, WHO and the politics of Chinese Traditional Medicine

By Jerome A. Cohen

I’m delighted to see expert John Fitzgerald’s just-released, learned, objective analysis of the pernicious and dangerous ways in which WHO has helped the PRC to try to convince the world of the virtues of Traditional Chinese Medicine (TCM) for curing Covid-19 and other illnesses and the health benefits to be derived from the killing of endangered species like pangolins. WHO has been siding with the Chinese Government increasingly and for a long time, not only recently since Covid-19. WHO should limit its recommendations to evidence-based scientific methods, not Chinese TCM propaganda. Lives are at stake, not Xi Jinping’s quest for “soft power”.

John, who used to head Ford Foundation’s China office and knows the country well, cogently shows the triple threat of the PRC’s TCM propaganda. It may deceive people in need to place too much faith in the healing powers of TCM. It may encourage worldwide slaughter and consumption of endangered species like pangolin that TCM suggests may have curative potential. And it gives the PRC an unjustified leg-up in its quest for “soft power.” For more discussion, see also this essay on China Policy, Covid-19 and TCM.

Ever since reading last month the China Daily’s big push, under Xi Jinping’s leadership, promoting the virtues of TCM for treating the virus and other ailments, I was genuinely curious about the lack of Western response. When I asked doctors in my family, who are actively engaging the virus daily in New York hospitals, about the extent to which TCM is used or could be useful in the struggle, I only received blank stares. I wondered whether American medical schools teach TCM and whether American physicians are negligent in failing to make use of it. Also it seemed that Western China specialists were oddly not responding to China’s claims for TCM at a time when we are desperately trying to cope with the virus. These essays help to fill a perceived gap in our deliberations.

P.S. My first acquaintance with pangolin came in 1986, when my wife and I, as guests of the Guangdong government, toured Hainan and were treated to this rare delicacy at a small dinner that the island’s Communist Party secretary gave in our honor. I said we were flattered but asked whether eating pangolin was not banned. The host replied with an impishly sly wink!

Why the world should care about Taiwan’s exclusion from the WHO

By Jerome A. Cohen

My colleague Yu-Jie Chen and I have just published a piece in the Council on Foreign Relations’ IN BRIEF on “Why Does the WHO Exclude Taiwan?”. We discuss how Taiwan has done so well in dealing with the pandemic, why the world’s health body continues to exclude Taiwan, what the US government’s position is on Taiwan's WHO participation and why Taiwan’s exclusion is a problem for the world.

This is not a minor issue, nor is it limited to Taiwan. It involves a broader, important conversation about China’s improper influence over the international system and the accountability of international organizations such as WHO. It deserves our greater attention and vigilance as the fight against the pandemic continues.

Growing international protest against China’s "Non-Release Release" of rights lawyer Wang Quanzhang

This may be a rare opportunity to press the PRC to make a humane human rights decision. Will the world seize it?

By Jerome A. Cohen

While striving mightily to overcome the blow that its handling of the Coronavirus has dealt its aspirations for “soft power”, the Chinese party-state is now confronted by a new dilemma — the rising tide of international protests against the continuing confinement of famous human rights lawyer Wang Quanzhang following his formal release from almost five years in prison on Sunday.

The PRC’s now customary modus operandi is to ostensibly release Chinese human rights lawyers after completion of their long terms of wrongfully-imposed criminal punishment, but then immediately deprive them of their freedom forever via the application of comprehensive secret police measures, including total disappearance, that assure their enduring silence. This is what I have long called the “Non-Release Release”, what has until recently been a low visibility, low political cost, extralegal procedure that has done less damage to the PRC’s public image than a formal criminal sentence to life in prison or the death penalty might occasion.

But the current Wang case presents a challenge to this horrendous practice. The PRC’s too clever resort to the excuse of needing to shelter Wang for a post-release 14-day Coronavirus testing period has begun to focus international attention on what his gallant wife Li Wenzu has rightly condemned as its shameful NRR practices. This has given world opinion a rare chance to influence a PRC human rights decision.

What will the PRC do with Wang at the end of 14 days? Announce that he needs yet another 7 days of further surveillance? He had already tested negatively five times for the virus before his departure from prison! And how will it justify the continuing prohibitions on his electronic as well as personal contacts after that period? Will it claim that his sentence to a five-year deprivation of his political rights following prison release requires his total exclusion from all society? Given the gradual mobilization of public opinion, both inside and outside China, against disgraceful persecution of a courageous lawyer and human rights, what will be the calculation of PRC propagandists and leaders?

Wang Quanzhang (left) and his wife Li Wenzu with their son in 2015. Photo: AP

Li Wenzu shaved her head in 2018 in protest at the jailing of her husband Wang Quanzhang AFP

Open letter: Saving Lives in America, China, and Around the World

By Jerome A. Cohen

In light of the ongoing global crisis, I’ve joined an important letter initiated by Kurt Campbell, Steve Hadley, Susan Shirk, and Orville Schell: Saving Lives in America, China, and Around the World.

Like similar statements this letter is inevitably the product of compromises amid time pressures, but I hope it is widely read given its significance and urgency. It should also make interesting material, especially in comparison with yesterday’s statement by 100 Chinese scholars, for what the French call an explication de texte.

The Many Faces of “Non-Release Release” in China

On April 5, Chinese rights lawyer Wang Quanzhang, the last lawyer of the group convicted during China’s 2015 infamous “709” crackdown, will be released from prison since his detention in July 2015. He is unlikely to be a free man, however.

I’ve used “Non-Release Release” (NRR) to describe the phenomenon of individual rights activists and lawyers in China often being released from prison into other, nominally “free” forms of what amounts to detention, such as de facto house arrest or enforced return and restriction to their native village. But NRR can also be used for large numbers of ordinary people, such as Muslims in the Xinjiang region. Many Uyghurs and other minorities there have reportedly been released from “re-education center” prisons, only to be forced to work in factories in various places.

NRR is nothing new in China. It came into use as a system at least as early as the Communist Party’s infamous “anti-rightist campaign” of 1957-58 when the government promulgated regulations that formally authorized the notorious, supposedly non-criminal, punishment of “reeducation through labor” (RETL). In providing for eventual release from RETL’s forced labor camps, the regulations permitted the police to keep on the labor camp premises, after their formal release, those prisoners who had no fixed abode, job or family awaiting them.

I knew, for example, an Indonesian Chinese who had studied law in China in the mid-1950s, served briefly as one of the new Soviet-style lawyers that Beijing had introduced during a brief liberalizing experiment, and was then rounded up for RETL in remote Xinjiang in 1958. He was “released’ in 1961 at the end of his three-year sentence but forcibly kept for another two decades at the same isolated work camp where he had been confined, ostensibly because he had no family in China to which to return. Although he was paid slightly more than when detained under RETL, he was actually forced to provide the regime with cheap labor in a part of China where most people did not want to work. Obviously, this arrangement was also a type of stability maintenance, political control.

The  NRR system has evolved continuously, of course, over the years despite the formal termination of RETL in 2013. By then the police had acquired a lot of experience keeping under continuing control people who had been formally released after completing criminal sentences or even after being detained by the criminal process without ever being convicted or after having been “merely” detained under RETL or similar supposedly “non-criminal” sanctions. One could even say that former Party chief and Premier Zhao Ziyang became a victim of NRR, since, after being toppled just before the massacre of June 4, 1989, he was informally but effectively confined outside of prison — in the Party leadership’s comfortable living quarters — for the last 16 years of his life!

In the past decade NRR has been customized to suit the Party’s needs for effectively suppressing human rights lawyers on a more individualized basis than a formal system might allow, and also for a longer time than formal criminal or administrative sanctions might seem suitable. To the public, NRR looks better than sentencing a lawyer to life in prison, but it can nevertheless amount to a more discreet form of stifling someone forever. For example, whatever became of the great, courageous lawyer Gao Zhisheng? While repeatedly subjected to the formal criminal punishment system, his resistance generated periodic bad publicity for the Party and government. Since his last “release”, however, which forced him back to his native village, he has disappeared. Do people still remember him? Many wrongly assume he has happily been “reformed”.

Think blind “barefoot lawyer” Chen Guangcheng, who, after four years in prison, was “released” to his rural farmhouse with a couple of hundred thugs guarding him around the clock until his miraculous 2012  escape to the American embassy.

What will Wang Quanzhang’s “release” on April 5 amount to? It might have been more appropriate to release him on April Fool’s Day!

Suing China for Internationally Wrongful Acts?

By Jerome A. Cohen

Here is an interesting, imaginative piece by Professor James Kraska, China is legally responsible for COVID-19 Damage and claims could be in the trillions. Prof. Kraska is an able and somewhat nationalistic scholar of international law and politics. He not only articulates a basis for potentially holding the PRC internationally liable for damages related to China’s cover-ups of the virus but also deals with the broader problem of how to mobilize realpolitik measures to oppose and perhaps terminate other PRC violations of international law, a challenge that keeps popping up re Xinjiang, suppression of human rights lawyers and their clients, kidnappings and other more conventional arbitrary detentions, and other misbehavior. Of course, the PRC can play at this game and seek to mobilize world pressures and sanctions against the US for its invasion of Iraq, its abuse of would-be immigrants and other mischief that might be characterized as international law violations.

Kraska quickly dismisses attempts to sue the PRC in the International Court of Justice for the simple reason that the PRC has not accepted and would not accept ICJ jurisdiction in such a case. Nevertheless a very highly-publicized effort to initiate such a case may be useful in promoting public awareness, for example regarding Xinjiang atrocities. The current suit against Myanmar because of its mistreatment of its Muslim minorities is an example. The case is far from over but the opening phase put Myanmar in the dock including its vaunted Nobel Peace Prize winner.

Removal of local Chinese assistants from American news bureaus: what does it mean for China?

By Jerome A. Cohen

It is not clear to me how broad the swath is here. What about the Chinese assistants to non-American journalists still working for American newspapers in Beijing? What about the situation in Shanghai? To what extent is there still American reporting based in other places in Mainland China such as Guangdong Province and Tianjin?

As Jane Perlez has noted, this latest measure heavily strikes at the ability of foreign journalists to learn about Chinese developments. It hinders them from gathering news and views that are often favorable to China and the Chinese Government as well as unfavorable, and it denies those Chinese contacted by foreign media of an opportunity to make their lives and opinions known abroad.

There is another cost to the PRC in imposing this sanction. Service Bureau personnel may be reporting to the Party everything they observe while assisting the foreigners. Their absence not only reduces what foreigners can accomplish but also reduces what the Party can learn about the activities of those foreign journalists remaining in China. Non-American journalists who are fluent in Chinese and working for American papers will undoubtedly have to work harder if they too are denied Chinese assistants but they may also be a bit freer in their efforts. When I operated a foreign law office in Beijing many years ago, our Service Bureau assistant was always annoyed by having to spend every Saturday afternoon reporting to the Party on our activities of each week!

Why Has China Claimed the Detained Bookseller Gui Minhai Restored his Chinese Nationality? An International Law Innovation???

By Jerome A. Cohen

A few colleagues and I have had some discussion on Gui Minhai’s case, in particular why the Chinese government forced Gui to regain Chinese nationality in 2018. In fact, as a colleague pointed out, Gui’s is not the first case of this kind. His fellow bookseller Lee Bo, who was disappeared from Hong Kong and reappeared in Mainland custody in December 2015, also supposedly renounced his British citizenship while in detention.

As China does not allow dual nationality, the Chinese government claims that Gui gave up his Swedish citizenship when regaining Chinese nationality. But this tactic is abusive and also contrary to international law (Read also Tom Kellogg’s excellent article on “News of a Kidnapping: The Gui Minhai Case and China's Approach to International Law“ here). Below is my colleague Yu-Jie Chen’s take, with my own response following.

Regarding Gui's citizenship, Sweden's Ministry of Foreign Affairs has said that “Swedish citizenship can only be renounced after an examination and a decision by the Swedish Migration Agency,” so it seems that from the Swedish point of view, Gui is still a citizen despite China's claim otherwise.

China's tactic of coercing Gui into restoring Chinese nationality is apparently to deflect international criticism and to also bypass its obligations towards Sweden under the Vienna Convention on Consular Relations (consular visits & the arrangement of legal representation etc). I think the Swedish government should argue that China has violated international law and Sweden's sovereign rights in this case. Given Beijing's expansive notions of sovereignty, it'd be interesting to see its response, but I wouldn't hold my breath.  

There's also a bigger issue for the international system — if China could keep doing this, the Vienna Convention on Consular Relations will be undermined. Obviously, what's the use of having China's commitment to facilitating consular protection if there's a cunning way to exclude its application in the first place?

Yu-jie has identified the general implications of the PRC actions against Gui and Sweden for implementation of the Vienna Convention on Consular Relations. Let’s think for a moment. The PRC’s innovative rationale and practice purporting to erase the foreign nationality of a former PRC national, if acquiesced to by the world community, are easily capable of extension to all foreign nationals, whatever their backgrounds. If, for example, I should be permitted to return to China again, the PRC might detain me and then announce that I have applied for PRC nationality while in custody and that my application has been accepted, with the consequence, according to PRC law, that I have surrendered my American nationality!

This novel technique would render meaningless not only the PRC’s obligations — and other countries’ rights — under the Vienna Convention but also the respective obligations and rights under all of the PRC’s many bilateral treaties concerning consular matters! Foreigners who enter China would then have no protection against arbitrary detention and their governments would be deprived of one of their basic sovereign rights. This should hurt the feelings of all foreign people! Caveat traveler!! And this heinous practice could be further extended to apply to anyone whom the PRC kidnaps from outside China, like Gui, and secretly transports to the PRC!

Chinese Government’s Injustice against Hong Kong Book Seller Gui Minhai

By Jerome A. Cohen 

Hong Kong book seller Gui Minhai has just been sentenced to ten years in prison. China’s official press release concerning Gui’s harsh sentence claimed that Gui “applied to restore PRC nationality in 2018.” This alleged application to regain PRC nationality while in grievously coercive PRC incommunicado detention cannot possibly be deemed legitimate in international law. The PRC press release’s implication, of course, is that his PRC nationality has been restored and that this automatically cancelled his Swedish nationality, at least in PRC eyes. But Sweden’s Ministry of Foreign Affairs confirmed that Gui is still a Swedish citizen because “Swedish citizenship can only be renounced after an examination and a decision by the Swedish Migration Agency.”

We do not have access to a complete record of PRC police/judicial/diplomatic practice, of course, but I am confident that similar types of abuse have taken place in the case of other foreign nationals who had previously abandoned PRC nationality. However, although my memory may dim, I do not recall the PRC so brazenly and briefly alluding to the issue in a public statement.

Of course, if the PRC would publish the abominable court decisions that purport to justify criminal convictions such as Gui’s, we might learn a bit more. Unfortunately, although the PRC now publishes millions of other court judgments, it still — understandably — often refuses to reveal court decisions in “sensitive” matters where universally respected norms of justice have been violated.

Gui’s continuing mistreatment should be deemed to violate both PRC domestic and international law. The Swedish Government, other nations and the world community should not allow this matter to rest, and it should be of especial interest to the many ethnic Chinese who enjoy non-PRC nationalities, particularly those who formerly were PRC nationals.

"The Real Sick Man of Asia" conundrum

By Jerome A. Cohen

The February 3 Wall Street Journal opinion piece entitled “China Is the Real Sick Man of Asia” and the PRC’s consequent ouster of three WSJ China correspondents, calling the Journal “racist” have surely stimulated one of the more interesting debates encountered lately by those concerned with China. The topic is full of issues and ironies. Did the WSJ op-ed headline editor go too far in invoking an imperialist phrase from the distant past and giving it a catchy new meaning in the contemporary setting? Might the impact have been reduced had the title been recast as a question? Might the title have been less subject to attack if the underlying essay had discussed the coronavirus crisis now emanating from China rather than the fragility of the nation’s economy? How great would be the outcry over the perceived offense if the PRC had not chosen to mobilize its media at home and abroad to focus on this question rather than the immediately preceding United States government action requiring PRC  reporters to register as foreign government functionaries or the rising criticisms of PRC handling of the virus crisis or the world’s growing worries over PRC political, economic and military influences? Is the PRC’s angry reaction an effort to divert national and international attention away from such substantive problems? To what extent was the PRC waiting to pounce on the WSJ, as well as other American media,  for previous prohibited exposures of the financial dealings of the families of PRC leaders? How can the PRC and its supporters credibly invoke “racism” as the underlying motive for the offending headline? Can the WSJ’s support for the people of Hong Kong, Taiwan, Xinjiang and Tibet against PRC oppression be said to reflect “racism”? Are the heinous PRC efforts to “transform” many millions of Xinjiang Muslims “racist”? Are Han Chinese a “race”? Are they as “racist” as white Americans? Would it have been unwise self-censorship for the WSJ to refrain from a clever headline out of deference to a PRC that is increasingly seeking to repress freedoms of expression in other countries? Such questions deserve further discussion.