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!

The Peter Dahlin Case: Shock, Awe and Mystery

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

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

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

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

The ABA's statement about the crackdown on lawyers in China

The recent crackdown by the Chinese government on human rights lawyers has raised the question of what is an appropriate response by foreign organizations working on the rule of law in China. The statement released by the President of the American Bar Association on August 4 has further prompted such discussion as well as frustration of those who want to see a stronger statement of the ABA in support of China’s beleaguered lawyers, as in this op-ed by Robert Precht in the Washington Post.

Below are some thoughts of Professor Jerome Cohen about the ABA statement and the broader question of what considerations foreign organizations, including bar associations, universities and NGOs, have when they think about how to respond to the recent challenge.

Jerome A. Cohen

August 4, 2015

First of all, I am impressed by how little interest has been expressed in the ABA statement. Perhaps it’s the mid-summer doldrums and holiday schedules, perhaps many people feel what the ABA says is of little significance in influencing the PRC to cease its attack on human rights lawyers, and perhaps there is little appreciation of the importance of human rights lawyers and the Party’s attack on them.

The ABA statement does not meet my standard for what would have been appropriate. I had helped draft a stronger statement, yet one that also emphasized the ABA’s hard work over the past 17 years and the importance of continuing, indeed expanding this effort with the support of some of the other lawyers’ organizations that condemned the PRC purge. Some of the language of our draft is in the compromise final draft decided upon by the ABA president.   I think the final statement is adequate since it shows the ABA is not happy with what the PRC is doing, which is a lot more than the original draft produced by the staff of its Rule of Law Initiative did. So I think the statement is helpful, since it adds to the protest the voice – however timid – of one of the world’s greatest bar organizations. Of course, even the outpouring of protest is not likely to be helpful in the sense of persuading XJP to call off the hounds, but it surely is helpful in supporting the victims and their colleagues and families and the hundreds of thousands of Chinese legal officials, judges, prosecutors, lawyers, legislators, law professors, journalists and activists who have been coerced into suffering this abomination in guilty silence. It is also helpful in letting the American legal profession and general public know more about reality in China today.

ABA's logo on its website: americanbar.org

It would be painting too quickly and with too broad a brush to say the mild ABA response is a result of meretricious, mercenary motives on the part of law firms, universities, or NGOs.  Individual American law firms with offices in China or otherwise engaged in China practice have never shown the slightest interest in human rights problems. That surely is for business reasons. Yet bar associations have often been active regarding PRC transgressions as well as those taking place in many other countries. I am glad to say the NY City Bar has in this case, as in many others, made its condemnation loud and clear, n Chinese as well as English.  The Hong Kong Bar Association, whose opinions really carry some weight in China, is terrific in this respect.

The situation with universities has its own characteristics. Universities and their centers and institutes seldom go on record as institutions condemning Chinese human rights violations, but many individual faculty members and research scholars do express themselves even while many keep silent for their own good reasons. I do not think that the failure of universities and centers to speak out can generally be attributed to concerns over loss of money, although some might suffer financial consequences from doing so. I think there are other explanations readily available, some reflecting worthy considerations and some not (does visa denial constitute primarily a monetary concern?).

NGOS also need careful analysis. Human rights NGOs that cannot set up shop in China have no hostages to fortune. Those like the ABA that have labored long and hard in China, with some staff devoting their lives to this kind of work, have a lot to lose if their protests lead to their ouster and the closing of their office. That was the principal articulated consideration motivating those within the ABA who preferred no statement or one that would have been ludicrous in the eyes of the world. Of course, one can say that their view too is based on money since their jobs and funding could be cut off by a hostile PRC reaction, but I think that a genuine zeal for law reform and a belief that their efforts have already produced tangible progress and will in the long run bear greater fruit was their primary motivation. Concern was also expressed that a strong statement might lead the PRC to impose sanctions against the persons of their American and especially Chinese staff in Beijing, an idea that seemed to carry weight with some within the ABA who know little about China.

So ABA leaders were called on to balance conflicting considerations, essentially to balance the speculative consequences of a strong statement against the less speculative consequences of failing to meet the challenge, including the ongoing but impossible to stop attack on China’s human rights lawyers and the damage to ABA’s reputation. Hence the compromise. Many ABA lawyers were undoubtedly unhappy with the outcome, judging by their words and votes during various group discussions. I know nothing about ABA practices and procedures but what I witnessed from afar (I did my pro bono consulting by phone, skype and email from the soothing beaches of Cape Cod!) made me think a bit of law reform is overdue within the organization!

A SEPTEMBER 7 POST-SCRIPT: The ABA’s dilemma has surely not ended. Public criticism has begun to rise at summer’s end. Some within the organization are properly calling for further consideration in a special meeting. There is already an effort under way to persuade the ABA to seek to add to the agenda of its long-scheduled November conference with Communist Party-controlled Chinese lawyers a discussion of the current repression of human rights, public interest and criminal defense lawyers.