My take on the Taiwan President Tsai Ing-wen's second inaugural speech

By Jerome A. Cohen

President Tsai Ing-wen’s inaugural speech yesterday was a solid, substantive, serious and comprehensive overview, frank without being provocative, and open to improvement in cross-strait relations without appearing undignified or intimidated. What a vivid contrast to Trump’s nauseating flights of self-congratulations.

Although there was a quick reference to common destiny in her speech, it was domestic in focus, and President Tsai refrained from unrealistic dreaming, Xi Jinping-style, even while charting an inspiring, realistic course.

A few points seem worth noting. She never fully explained her statement that “Cross-strait relations have reached a historical turning point.” To me, they always seem to be. And there was the interesting reference to “the leader on the other side of the Strait” rather than the Party General Secretary or the PRC President or Mr. Xi Jinping.

Most worrisome perhaps to Beijing will be the establishment of a constitutional amendment committee in the Legislature, Although the only specific constitutional reform mentioned relates to lowering the voting age and is not controversial, she left the door open to some possible greater assertion of Taiwan’s independent status, thus throwing a tacit bone to the Taiwan independence wing of the DPP.

While recognizing the need for further judicial reform and mentioning the unresolved struggle over what kind of lay judge system should finally be chosen to enlarge popular participation, Ms. Tsai refrained from specific reforms of governmental institutions except with respect to establishment of the long-awaited National Human Rights Commission. Whether keeping it “under the Control Yuan”, the nominally independent branch of government responsible for scrutinizing the other branches, will allow sufficient protection of political and civil rights remains to be seen.

Finally, I did not note any mention of Hong Kong’s monumental, losing struggle for its promised “high degree of autonomy”. That might have been deemed too provocative.

The speech contained no word of thanks to the departing vice president, the distinguished epidemiologist who has garnered such a good press during the Covid-19 crisis, but that reportedly was accomplished in an earlier, less-publicized ceremony.

Taiwan’s meaningful participation in the World Health Organization would implement, not violate, UN principles

—WHO and governments around the world would benefit from this principled reform.—

By Jerome A. Cohen and Yu-Jie Chen

When SARS traumatized Asia in 2003, Taiwan was the world’s third hardest-hit place after China and Hong Kong. Yet China prevented Taiwan from receiving much-needed assistance from the World Health Organization (WHO). Seventeen years later, as the Covid-19 pandemic rages elsewhere, Taiwan has achieved a remarkable success in containing this virus without imposing any lockdown. Yet Beijing still insists upon Taiwan’s exclusion from WHO, barring the world’s health agency from engaging with Taiwan’s best practices.

On May 18, when WHO’s decision-making body, the World Health Assembly (WHA), opens its 73rd session, its 194 member states have another opportunity to correct this injustice. Will they continue to turn a blind eye to Taiwan’s importance, making a mockery of WHO’s mission to promote “health for all”?

Despite its widely-condemned mishandling of the outbreak of Covid-19, China fiercely objects to even renewal of Taiwan’s former status as a mere observer in the WHA. Beijing has again mobilized the support of a large bloc of authoritarian governments and developing countries that depend on its favor. They are likely to outvote the number of countries that the United States and its allies are urging to back Taiwan’s limited participation in the WHO.

To justify the decision to exclude the 23 million people in Taiwan, WHO, as well as many member states, continues to rely on an erroneous legal argument that Beijing has widely propagated. Last week, for example, when asked about Taiwan’s participation, WHO’s principal legal officer Steven Solomon invoked the 1971 U.N. General Assembly resolution 2758 as well as the WHA resolution 25.1, which reiterated the General Assembly resolution. He stated that “Forty-nine years ago the United Nations and WHO decided that there was only one legitimate representative of China within the UN system, and that is the PRC.”

Citing General Assembly resolution 2758 to deny Taiwan’s international participation is misguided. When U.N. member states adopted the resolution in 1971, they only voted on one issue: which government should sit in China’s seat in the United Nations? Should it be the Republic of China (ROC) government on Taiwan or the People’s Republic of China (PRC) government on the mainland? The resolution “recognize[d] that the representatives of the Government of the People’s Republic of China are the only lawful representatives of China to the United Nations.”

Contrary to Beijing’s propaganda, the resolution did not go beyond that. Indeed, so long as the Taiwan government does not claim China’s U.N. seat, the resolution does not prevent Taiwan’s eventual membership as an independent state in the United Nations and any of its affiliated organizations such as WHO. The United Nations is legally free to recognize that Taiwan has all the characteristics of statehood, as it does, and admit it as a new member, even one called the Republic of China on Taiwan. Surely, there is no barrier to WHO’s grant of mere observer status to Taiwan today.

In fact, every year from 2009 to 2016, China allowed WHO’s Director General to issue an invitation to Taiwan to take part in the WHA as an observer. Neither WHO nor the Chinese government then claimed Taiwan’s observer status to be a violation of any U.N. principles or international law. Beijing accepted it because of Beijing’s political rapprochement with the Taiwan government then dominated by the Nationalist Party.

Unfortunately, that observer status was not translated into the “meaningful participation” sought by Taiwan. Taiwan was not allowed to take part in the majority of WHO’s technical meetings, in which important information and solutions were exchanged. The status also proved vulnerable. Since the people in Taiwan in 2016 elected as president Tsai Ing-wen of the Democratic Progressive Party, which Beijing disfavors, Taiwan has not been invited back to the WHA. This is naked politics masquerading as U.N. law.

To be sure, at this stage of international politics, for WHO purposes flexibility is still needed in tweaking Taiwan’s formal name to avoid Beijing’s hyper-sensitivity to any hint that Taiwan may have achieved independence from China. When Taiwan previously served as observer in WHA it was under the name of “Chinese Taipei”, which can be repeated.

There are significant precedents in which major public international organizations outside the U.N. system have included Taiwan because it is too important to be left out of global governance. As early as 1986, for example, after the PRC joined the Asian Development Bank (ADB), Taiwan was able to stay in the organization due to its fast growing economy and strong economic ties with other countries, although it had to accept the change in title designated by the ADB as “Taipei, China.” In 1991, Taiwan became a full member of the Asia-Pacific Economic Cooperation (APEC) under the name of “Chinese Taipei” at the same time China joined the group. Moreover, the World Trade Organization (WTO), which China entered in 2001, admitted Taiwan the following year under the name “Customs Territory of Taiwan, Penghu, Kinmen and Matsu (Chinese Taipei)." The WTO welcomed Taiwan because the world community realized that the WTO would not be effective or legitimate if it excluded one of the world’s important trading countries.

When it comes to the world’s public health, Taiwan’s role is no less important, especially given its proximity to China, which makes it susceptible to infectious diseases originating from the mainland. Taiwan also offers outstanding health expertise, significant resources and best practices. It is now donating medical masks, developing testing kits and vaccines, and partnering with several countries to exchange solutions about Covid-19. Including Taiwan in WHO’s efforts to fight the coronavirus, if only as observer, will add greatly to these efforts. This is plainly in the self-interest of governments hard hit by the pandemic, regardless of their ties to China. Taiwan’s observer status would not violate any U.N. principles or international law. It would instead begin reforms urgently needed to repair WHO’s damaged credibility and efficacy.

Jerome A. Cohen, adjunct senior fellow at the Council on Foreign Relations, is professor of law at New York University and founding director of its US-Asia Law Institute. Yu-Jie Chen, a Taiwan lawyer, is a global academic fellow at Hong Kong University’s Faculty of Law and an affiliated scholar at the US-Asia Law Institute.

Diplomatic interpreters and direct communication

By Jerome A. Cohen

A few days ago NYT had an obituary for Ji Chaozhu, who by all accounts was always a wonderful interpreter. His efforts in the early 1970s were supplemented by Nancy Tang (Tang Wenshun), who shared a similar Sino-American upbringing. Because I was on leave from teaching at Harvard Law, I think Ji felt a certain connection with me, close enough to call one winter day in Beijing in 1979 to ask whether I could arrange for an interpreter from the PRC’s Ministry of Foreign Affairs to be admitted to the regular three-year American law JD program at Harvard Law School. MOFA, he said, wanted to have its first well-trained expert in American law to promote the recent normalization of diplomatic relations.

In view of China’s then extreme foreign exchange shortage, he also asked me to find the funds to pay any necessary costs! The interpreter-candidate he sent for an interview, a dynamic woman in her late 30s, proved as able as Ji predicted, and she was soon admitted without the usual tests etc. Finding the funds beyond a scholarship proved a bit more challenging. But Alexis Coudert, senior partner of the late lamented Coudert Brothers international law firm, for which I was consulting, gave an imaginative interpretation to the terms of a foundation grant he was administering for the study of Polish law that provided enough support to sustain her til graduation!

I don’t think, however, that Ji or any foreign interpreter should have been permitted by the US Government to serve both sides in formal diplomatic discussions. As I recall, the USG did not make use of Foreign Service Officer Chas Freeman, a superb interpreter (and Harvard Law School JD) whom the State Department had trained for the normalization process, for Nixon’s most important discussions in Beijing in 1972. Since Kissinger did not want Secretary of State Bill Rogers there, how could he have the Secretary’s young assistant?  

Finally, I cannot emphasize enough the importance of direct communication without the intervention of an interpreter. At a recent University of Virginia Zoom conference, US Deputy National Security Advisor Matt Pottniger’s delivery of his speech in Mandarin—which has been widely-watched and discussed by many in China—was a master stroke, one that I hope will encourage US diplomats stationed abroad to speak more often in the local language rather than through an interpreter.

I much admired my Harvard colleague and friend, the late Edwin O. Reischauer, who served five years as US ambassador to Japan 1961-66 and was worshipped by Japanese scholars and the Japanese public for his expertise on the country and its language. Yet he usually called upon Prof. Otis Cary, whom I later knew when visiting at Doshisha University, to interpret for him on formal public occasions while serving as ambassador. He believed that any error he might commit in speaking Japanese in public would diminish his status in the eyes of his audience. As I mentioned to him, I think greater weight should be put on the value of American representatives speaking directly in the local language to the foreign public they are addressing.

Matt Pottinger’s speech on the May 4th Movement: tradition, modernity and contemporary liberal aspirations

By Jerome A. Cohen

I am grateful to Matt Pottinger for making this speech (English; Mandarin), which has been widely-circulated, especially because of the stimulating discussion it has provoked in public as well as among China scholars. I thought it was a brilliant political speech, beautifully crafted for the audiences to which it was directed in the US, the West and China. It was not intended as an academic discourse.

Matt’s speech has provoked the expression once again of different views among China scholars about how to interpret the May 4th Movement. Like preceding chapters of Chinese history, it was capacious enough to permit both scholars and political figures to find in it what they might be looking for.

I am reminded of Stephen Platt’s excellent review, in last Saturday’s weekend Wall Street Journal, of a new book by Timothy Brook entitled Great State: China and the World. Platt’s last paragraph, arguing that “China is no more constrained by its history than any other country”, concludes that “insofar as its leaders prefer to cast their efforts as a culmination of what has gone before, Mr. Brook shows us that there are ready examples to justify nearly any path they choose.”

For example, late Qing dynasty reformers like Kang Youwei and Liang Qichao found support for their proposals in pre-20th century Chinese history. I recall that in the 1970s Ross Terrill edited a volume, The China Difference, for which he asked John Fairbank to consider the extent to which China’s history might provide support for greater freedoms of expression. Ross asked me to look into sources of possible support for ideas of government under law and due process. I don’t think John found too much to build on. Perhaps reflecting the greater optimism of youth, I think I found some traditional theories and practices that might be mobilized on behalf of contemporary liberal aspirations (My article then is here: “Due Process [in China]?” in Ross Terrill (ed.). The China Difference. New York : Harper & Row. 1979.).

To me the remarkable thing about our desirable efforts to scrutinize the May 4th process is how relatively little attention has been focused on its significance for the growth of a modern legal system. Yet Democracy, Science and the freedoms of expression on which they rest are unlikely to flourish in the absence of the rule of law, however its many variant meanings are conventionally understood. I doubt that I will undertake such a study. Perhaps colleagues can tell us that some good ones exist already, in Chinese if not in English, if we return to works published in the era between the two great wars that I am unfamiliar with. In any event I hope that the present ferment will reach the legal system as well as other crucial topics caught up in the wake of May 4th.

90th birthday of Prof. CHEN Guangzhong, "Godfather" of China's post-Cultural Revolution criminal procedure reforms

By Jerome A. Cohen

Professor Chen Guangzhong (陈光中), emeritus professor at the Chinese University of Politics and Law (CUPL), is the “grand old man” of China’s criminal justice legislation. He played a prominent role in the drafting of the 1979 Criminal Procedure Law (CPL), the first in the PRC’s history.

In the mid-1950s, under deStalinized Soviet influence, drafts had been formulated but, because of the 1957-58 Anti-Rightist Campaign, the Sino-Soviet split, the Cultural Revolution and other political factors, the draft legislation was not enacted. After Mao’s death the drafting process was renewed, still influenced largely but not nominally by Soviet law, and legal scholars like Prof. Chen, who had been sidelined for two decades, began to play an important role.

(Prof. CHEN Guangzhong (2000); photo source)

By the time of the major 1996 CPL revisions, Prof. Chen was the leading figure shaping the revisions in a quiet struggle with Party, police and other officials who opposed many Western-style due process reforms. Chen, who briefly served as the President of CUPL and was the Inaugural President of the China CPL Society, trained most of the PRC’s many experts on criminal justice who have valiantly served with distinction as well as frustration not only in academe but also in government, the judiciary and the legal profession. He edited an important book in the late ‘90s about the problems confronting PRC adherence to and compliance with the UN International Covenant on Civil and Political Rights(ICCPR), which the PRC signed over two decades ago but has still not ratified. Although retired, Prof. Chen retains considerable prestige in academic and legal circles that have fallen on hard times. He amply warrants our admiration and congratulations!

The graduating class in the first one-year training program in law that any foreigners have ever offered in the PRC

By Jerome A. Cohen

I’m now in the process of collecting old photos for the purpose of my memoirs as well as a Chinese-language festschrift that my colleagues have been working on for my 90th birthday on July 1!

Here is a photo of the graduating class in the first one-year training program in law that any foreigners have ever offered in the PRC. Steve Orlins, Owen Nee and I ran it — in the Chinese language — as guests of the Beijing Economic Development Corporation (BEDC, the alter ego of the Beijing Economic Commission) whose leader, the marvelous XIAO Yang (肖秧), later became Party Secretary of Chongqing and then Governor of Sichuan Province.

The 30 or so city business officials who took part had never studied law before, needed legal education in their daily work and were released from their law-related jobs fulltime in order to give their all to our course. A few went on to study law in the US at Harvard, Berkeley and other places and later worked in Chinese and American law firms. Xiao, who became my best PRC friend, later made me formal advisor to Sichuan for purposes of attracting foreign investment. 

China’s regular law schools were just reopening and did not yet welcome foreigners. We gave this nine hour per week course again for BEDC the following year, since our efforts were highly appreciated.

You will also see some unauthorized foreign auditors in the photo including my wife Joan and our three hirsute sons!

Invisible punishment of countless people in China

By Jerome A. Cohen

Human Rights Watch’s Sophie Richardson just wrote an article, Chinese Authorities Torment Activist’s Dying Mother. It’s a representative example of the kinds of informal but harsh punishments to which countless people are invisibly subjected in China, without a shred of legal pretense. One can only speculate about the numbers of victims of this lawlessness, usually inflicted by the secret police or their thugs.

When the PRC National People’s Congress meets in a few weeks, in their annual reports the President of the Supreme People’s Court and the Procurator General will each rattle off endless statistics about the millions of cases their respective institutions have formally processed. Yet no one will report on the millions of people who suffer daily humiliating, unregulated restrictions on their personal freedoms. The Ministry of Public Security should certainly report on this important aspect of its massive activity, but it also does nor report on its monitoring and inhibition of even the Party elite, not to mention ordinary citizens. At least this massive task provides jobs for many university graduates who might otherwise face employment problems!

My interview with ThinkTech Hawaii

This was an informal interview done at the request of Hawaii Public Radio, which wanted to discuss the extent to which I agree with those who now claim that our engagement policy with the People’s Republic of China was a terrible mistake (interview youtube link).

I think the interviewer, the knowledgeable observer Jay Fidell who had interviewed me years ago, had read my recent memoir essay, “Was Helping China Build Its Post-1978 Legal System a Mistake?”. The program was meant to be on Zoom but technical difficulties turned it into a telephone talk.

My take on The Harvard Crimson’s “The End of the Harvard Century” and The Yale Daily News’s “No Lux or Veritas”

By Jerome A. Cohen

People have been talking about this Harvard Crimson piece, “The End of the Harvard Century”. It is indeed interesting and offers many stimulating insights into a much bigger story. The reporter is impressive for an undergraduate. 

Unfortunately, he fails to mentions the long and mutually beneficial involvement of Harvard Law School with the PRC going back to late 1978 when the PRC State Tax Bureau, after 25 years of deliberation, suddenly decided that it wanted to send young officials to Harvard’s International Tax Program. Professor Bill Alford, who was criticized in the Crimson article, has done a superb job of promoting HLS legal cooperation with China for the past thirty years.

The irony in the Crimson story’s misleading reference to Bill’s role is that Teng Biao would never have had the opportunity for a year at Harvard if Bill had not immediately welcomed him upon learning that Teng wanted to spend the year at the Law School! That’s why Teng didn’t want to mention Bill’s name to the Crimson reporter. The pressure to cancel the meeting obviously came from higher Harvard authorities who have occasionally had difficulty applying the admonition of Chairman Mao to “walk on two legs”, fostering necessary and desirable cooperation with the PRC, despite or because of its Communist oppression, while at the same time allowing full campus freedom to protest that oppression and even supporting such protests in appropriate circumstances, as President Bacow did in Beijing. Not an easy challenge for any of us in the China field who seek cooperation and exchange with a great people who constitute over 20% of the world’s population.

An earlier Yale Daily News story about Yale’s complex relations with the PRC is also worth reading side by side with the Harvard Crimson story. Again, this is a very impressive piece of undergraduate journalism that gives us much to ponder. And again, there is much more to this important story yet to be told, including a fuller version of the fascinating tale of the father and son, Paul and Joseph Tsai, and their connections to Yale and to China/Taiwan. Paul Tsai, a Yale Law contemporary of mine and a very bright Taiwan lawyer from a leading Shanghai legal family, was a bitter ant-Communist who tried to discourage me from studying the Mainland in the 1960s. Joseph, an equally bright graduate of both Yale College and Law School, decided not to join the family law practice in Taipei but to cooperate with Jack Ma in building Alibaba and thus became phenomenally wealthy, a great Yale benefactor and a strong supporter of the PRC. 

I wish the author of the Yale Daily News report, having ably pointed out the credit that Yale’s then President Levin had given himself for bringing Yale as an institution (as distinguished from its many individual and departmental efforts) into cooperation with the PRC, had thrown this back at his successor President Salovey’s administration’s attempts to defend itself against its failure to criticize the PRC’s human rights atrocities by claiming that Yale as an institution always remains neutral. In comparison, Harvard’s President Bacow did better when visiting China. As a colleague pointed out, back in the old days, Yale University “was quick to condemn the country's apartheid regime”—“Neutrality” does not appear to be a justifiable defense, given that precedent as well as moral principles.

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!