[Joint House and Senate Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
HUMAN RIGHTS AND RULE OF LAW IN CHINA: WHERE ARE WE NOW AND WHERE DO WE
GO FROM HERE?
=======================================================================
ROUNDTABLE
before the
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
DECEMBER 12, 2008
__________
Printed for the use of the Congressional-Executive Commission on China
Available via the World Wide Web: http://www.cecc.gov
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
House
Senate
SANDER LEVIN, Michigan, Chairman
MARCY KAPTUR, Ohio
TOM UDALL, New Mexico
MICHAEL M. HONDA, California
TIMOTHY J. WALZ, Minnesota
CHRISTOPHER H. SMITH, New Jersey
EDWARD R. ROYCE, California
DONALD A. MANZULLO, Illinois
JOSEPH R. PITTS, Pennsylvania
BYRON DORGAN, North Dakota, Co-
Chairman
MAX BAUCUS, Montana
CARL LEVIN, Michigan
DIANNE FEINSTEIN, California
SHERROD BROWN, Ohio
CHUCK HAGEL, Nebraska
SAM BROWNBACK, Kansas
GORDON H. SMITH, Oregon
MEL MARTINEZ, Florida
EXECUTIVE BRANCH COMMISSIONERS
PAULA DOBRIANSKY, Department of State
CHRISTOPHER R. HILL, Department of State
HOWARD M. RADZELY, Department of Labor
CHRISTOPHER PADILLA, Department of Commerce
DAVID KRAMER, Department of State
Douglas Grob, Staff Director
Charlotte Oldham-Moore, Deputy Staff Director
(ii)
C O N T E N T S
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Page
Opening statement of Douglas Grob, Staff Director, Congressional-
Executive Commission on China.................................. 1
Edwards, R. Randle, Walter Gellhorn Professor Emeritus, Columbia
University School of Law....................................... 2
Craner, Lorne, President, International Republican Institute..... 5
Schriver, Randall, Partner, Armitage International and President/
CEO, the Project 2049 Institute................................ 8
Richardson, Sophie, Asia Advocacy Director, Human Rights Watch... 12
Chang, Phyllis, Executive Director, China Law and Development
Consultants, Ltd............................................... 16
HUMAN RIGHTS AND RULE OF LAW IN CHINA: WHERE ARE WE NOW AND WHERE DO WE
GO FROM HERE?
----------
FRIDAY, DECEMBER 12, 2008
Congressional-Executive
Commission on China,
Washington, DC.
The roundtable was convened, pursuant to notice, at 10:31
a.m., in room SD-628, Dirksen Senate Office Building, Charlotte
Oldham-Moore, (Deputy Staff Director) presiding.
Also Present: Douglas Grob, Staff Director.
OPENING STATEMENT OF DOUGLAS GROB, STAFF DIRECTOR,
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
Mr. Grob. Well, thank you all for joining us today. We are
very pleased to have this distinguished panel of experts, and I
will not speak for but half a minute so that we can hear what
they have to say.
But I would just like to ask the panelists, where possible,
to address a few issues that I think will be helpful as members
of our audience take what they learn here today and try to
transform it into an understanding of human rights and rule of
law issues in China going forward.
We have in the last year seen an increased need to pay
attention to the metrics that we use to assess progress in the
development of the rule of law and human rights in China. We
are seeing that China has become better than ever before at
producing legislation, producing it fast in some instances,
particularly at local levels. Much of the new legislation at
first glance looks quite good on paper. And improvement of this
sort in legislative processes used to be a sign of progress. We
have to be careful now, however, not to be too impressed by
legislation that looks good on paper, but that is divorced from
transparent, consistent, and effective implementation. The risk
is that the distinction between the promulgation of law and the
making of propaganda becomes blurred.
Looking at the span of 30 years that brings us from the
normalization of U.S.-China relations to the present, we would
like our panelists to discuss whether we risk contributing to
the blurring of lines if we are too easily impressed by
legislative efforts without, at the same time, asking probing
questions about implementation, and also allowing enough time
to monitor implementation before attempting to assess progress.
Second, we have noticed in the last year that the conflict
of laws in China remains an area of ever-increasing concern. We
reported last year, and continue to see this year, Chinese
authorities' strategic use of conflict between laws; that is,
where you have two laws that are both well-written and well-
drafted, but once you put them next to each other, you find
that key provisions in one may be neutralized by provisions in
the other. We hope our panelists would also comment on whether
they see a need to raise our level of awareness and
understanding of problems such as this before drawing
conclusions about progress in the rule of law and human rights.
I also would ask that our panelists comment on the
terminology we choose to describe human rights and rule of law
issues in China. The Chinese Government and Communist Party
describe citizen activism and public protest using the terms
``social instability'' and ``social unrest.'' They favor these
terms, it seems, in part because these terms implicitly point
to citizens as the root cause of undesirable social conditions.
However, China's increasingly active and engaged citizenry may
be one of China's most important resources for addressing the
public policy problems that China faces today, whether it be
food safety, forced labor, environmental degradation, or
corruption.
In our reporting, we deliberately avoid using the terms
``social instability'' and ``social unrest,'' and refer instead
to ``citizen activism'' and ``public protest.'' It is a subtle
but important practice because it is consistent with the notion
that engaging citizens and not repressing them is the way to
promote the effective implementation of human rights and the
rule of law. Therefore, if our panelists would please comment
on the importance that they have noticed over the years in the
discourse that we choose--the language that we use--to discuss
and talk about human rights and the rule of law in China, and
the impact those choices may have had, that would be quite
helpful.
And now I have the privilege of turning the floor over to
Professor Randy Edwards from Columbia University.
STATEMENT OF R. RANDLE EDWARDS, WALTER GELLHORN PROFESSOR
EMERITUS, COLUMBIA UNIVERSITY SCHOOL OF LAW
Mr. Edwards. Thank you very much. It is an honor to be
here. I was a member of the D.C. Bar, so as a lawyer, I guess I
should be careful to warn you that professors very rarely can
speak for less than 50 minutes, so I am not sure how wise they
were to start with me. But they did put me just opposite the
clock, so I will try to limit my remarks.
I do not know how many of you remember the so-called Maoist
period of the Cultural Revolution, the late 1960s and the early
1970s, when an important form of controlling the masses and
encouraging them to think in the right way was self-criticism.
And I remember when I wanted to go to China, I had been
teaching Chinese law at Columbia Law School from 1973,
pretending to be an expert. I did not worry too much about my
colleagues finding out because none of them could speak
Chinese. They did not know what was going on. And so Chinese
law was pretty much then whatever I said it was, at least at
Columbia, and I could make it up as I went along. And I tried
to base my observations on trends and developments on Chairman
Mao's latest poem. And, of course, a great deal of latitude was
permitted reading that.
It was probably in the late 1970s or early 1980s when I
realized that the taxi drivers were, on the one hand, the best
source of information and insight on the reality of Chinese
law. On the other hand, the taxi drivers were not aware that
there was an enormous corpus of what lawyers would admit was
law--that's administrative law, which was largely internal. And
we Americans were not looking for that law. We were looking for
laws and legal process and due process and rights that
resembled our own reality as well as our definition. And so the
taxi driver did not know that there was a great deal of
regularity, at least in the way administrative power was
exercised, for the purposes of the state and for the leader. Of
course, this has a long historical background, this system of
administrative regulations, wall-to-wall rules, and strict
discipline of officials who failed to comply and carry out the
Emperor's will, and later the party's will. This was all
``neibu,'' internal rules and regulations.
And so I guess one point that I would make here and urge
you to think about this morning and in the future when you
think about what China is, in particular about so-called rule
of law, is China does have a very deep tradition in the state
bureaucracy of rules and regulations. It is very hard to change
that. There have obviously been some changes. Membership in the
World Trade Organization, compliance, this has forced obviously
a lot of paper change and perhaps some genuine changes.
Another perspective on law, of course, is from the bottom
up, from the people's view. And since there has never been a
participa-tory democracy in China that has selected the power
institutions, likewise there has not been a great deal of
popular participation from the bottom up in the definition of
norms and procedures for ruling themselves.
On the other hand, one point that I deeply believe in,
which I urge you to at least tentatively consider as you weigh
it against this wonderful presentation by the CECC panel today
of the reality and what is happening and what is not happening
in China, is that I believe that the ``lao bai xing,'' the
masses of the Chinese people today and for a thousand years had
a sense of entitlement. We would not call it a sense of due
process of law and of rights, but they have had a sense of what
they owned in property. They have a sense of what is fair
treatment with respect to other citizens and with respect to
the state. And they were willing 300 years ago to walk 5,000
miles all the way to Beijing, pick up a stick and beat on a
brass drum called the ``deng wen gu''--this is the grievance
drum--to wake up the Emperor at 3 o'clock in the morning. The
Emperor then would order a de novo trial down in the
countryside.
So there has been a popular expectation of fairness and
protection, and there have been certain rules and institutions
that the Emperors and the officials have had to adhere to. Just
like rules today, here and there the enforcement of rules is a
different matter than the articulation of rules that embody
what we think are the fundamental principles of human rights.
And China has a long way to go.
I am going to ignore almost entirely my outline here
because my time is just about up. I had an outline of a
presentation that was going to sound almost as if it was
drafted by the state public security bureau. I was going to say
how wonderful things are and how much they have improved and
changed, and I think there has been improvement in China.
When I first arrived in China in May 1978, there were two
law schools open. I visited Peking University Law School
[``Beida''], and I was met by the entire faculty. Four
professors is all they had at that time, and I had the
privilege of having a close relationship with these gentlemen,
and we were able to start an exchange program between Columbia
Law School and ``Beida.'' Then with Ford Foundation assistance,
we were able to establish a national program for helping China
train lawyers and, in particular, law professors. And that, I
think, is something that--not perfect, but it has had perhaps a
very positive effect.
I am not sure it is positive, however, the fact that the
number of law schools has gone from 2 to 500, because what
about standards? And that is a question. But lawyers, as has
already been said by the panel, lawyers now, some of them, have
the guts to fight for justice. That is positive.
Another point, which I will conclude on, is every country
has a problem of inconsistency between their high ideals and
what they actually do. Look at Abu Ghraib, Guantanamo, I do not
have to go into details. We have our problems. And this is not
to say that the Chinese should not be criticized and we should
not help the Chinese citizens to work toward perfection, never
expecting to get there. But if we want to continue to have some
inputs by the Chinese Government, we have to try to avoid
hypocrisy, try to avoid inconsistency, and perhaps approach the
Chinese Government--and perhaps that is what we are doing--as a
friend in a way, not just because they own us--they own 25
percent of our national debt--but because they deserve respect
as a great country.
So I just encourage continued emphasis on open cultural
exchange and education, and I am delighted that Phyllis Chang
is here because she combines two very important things
pertinent to the topic of the panel this morning. She
represented the Ford Foundation in facilitating legal education
in China, and now she is involved in running an NGO in China
that is directly engaged in promoting development toward the
rule of law and protection of human rights.
Thank you.
Mr. Grob. Thank you very much, Professor Edwards. I was so
starstruck by this distinguished panel that in my rush to hear
what they had to say, I neglected to introduce everybody
properly, so I apologize. We will do that now.
Professor Randle Edwards is the Walter Gellhorn Professor
Emeritus of Law at Columbia University School of Law and, as
you have probably been able to tell, is a pioneer in U.S.-China
legal and educational exchange. In addition, he is probably the
foremost scholar in the Western world on administrative law in
the Qing dynasty in China. More importantly, for our purposes
here today, he literally wrote the book on human rights in
China, and we are just thrilled that you could join us today.
Thank you very much.
Ms. Oldham-Moore. A lot of Professor Edwards' students are
in the audience today from Columbia Law School, so it is really
a lovely thing to have them here.
We are very pleased to have Lorne Craner with us. He is the
President of the International Republican Institute [IRI]. His
most recent stint at IRI began in 2004. Prior to that, he was
Assistant Secretary for Democracy, Human Rights, and Labor for
President Bush, where he led President Bush's approach to
democratization in the Middle East, as well as helped to
establish the Millennium Account. He also served as Brent
Scowcroft's National Security Council advisor on Asia. We are
very fortunate to have you here, Mr. Craner.
Mr. Grob. We are very pleased to have to my right Randall
Schriver, Partner with Armitage International, and also
President and CEO of the Project 2049 Institute. From 2003 to
2005, Randy was Deputy Assistant Secretary of State covering
China. So we are very pleased to have you with us today. Thank
you very much.
Ms. Oldham-Moore. We are also fortunate to have on the
panel today Sophie Richardson. Ms. Richardson is the Asia
Advocacy Director for Human Rights Watch and director of their
work on China. Sophie has a ah.D. in political science and a
forthcoming book from Columbia University Press on China's
foreign policy. She has done field work in Yunnan and other
provinces.
Mr. Grob. And, finally, we are also very pleased to have
with us Phyllis Chang, Executive Director of China Law and
Development Consultants, Ltd. Formerly, Phyllis was the
representative of the Ford Foundation in Beijing, and I would
say that there is probably no person who has done work in China
on human rights and rule of law issues in the last decade who
has not crossed paths with Phyllis at some point. Her knowledge
of conditions on the ground and of programming and policy in
this area is really unsurpassed. So thank you very much for
joining us today.
Ms. Oldham-Moore. Okay. Mr. Craner, please.
STATEMENT OF LORNE CRANER, PRESIDENT, INTERNATIONAL REPUBLICAN
INSTITUTE
Mr. Craner. Well, first of all, thanks for the invitation
to be here today. As a former member of the CECC, I have a
great regard for the Commission and its work, especially for
the very talented staff. Thank you.
As I look back on the last few years, especially on human
rights in China, the situation certainly looks very bleak. At
the State Department I was able to work on China quite a bit.
There have been some who have said my successors did not. I
have pointed out to them that they came into a much tougher
environment than I did on human rights in China. I think things
really started to change in about 2003, 2004, for the rougher.
And you can see that in the arrests that have occurred this
week. You can see that in the paucity of prisoner releases that
have occurred, and the very little that has come out, I think,
of the dialogues that we have had, formal or otherwise, with
China.
I do, however, believe there is reason for hope, and let me
outline why.
We are all very familiar with, and I certainly do not need
to tell this room about, the background of the last 25 to 30
years, the unprecedented economic growth resulting from policy
changes in the 1980s. We also all know that those economic
policy changes begat political changes. We are all familiar
with them: village elections, judicial reform, more legislative
and media openness, and the growth of a nongovernmental
organization [NGO] sector.
So as the Professor said, there have been changes, but the
structure in China remains incapable of dealing with a problem,
and that is that these changes have begat expectations. They
have caused rising expectations among the Chinese people, and
no longer just among the intelligentsia. There probably will
not be what we would refer to as democracy in China, but
certainly--and I will borrow here a word from reformers in the
Middle East--what I would call ``justice.'' And you think of
people in the rural and urban areas, and that is essentially
what they would like to see.
So you have these high expectations that are not being met,
and you certainly have, as I said, in rural and urban areas
people demanding more and more rights that they have been told
they should be able to expect.
Randy and I and others came into the administration in 2001
dealing with a particular kind of human rights policy toward
China that I think had been ongoing since the 1970s, through
Democratic and Republican administrations. And that was
essentially that the measurement of improvement in human rights
in China was the release of dissidents. It was how many people
got off the airplane in Detroit every year. And if enough
dissidents were released, then apparently the human rights
situation in China was changing.
I came at this, again, from more of a democracy than a
human rights background, though I will tell you my most
gratifying moments in government were being able to welcome
people who had been released from China. And over the years,
there were quite a number--Rebiya Kadeer, many Tibetans. We all
know who they were. And I always say that those of us who are
in the Human Rights Bureau were kind of pleased with ourselves
until working with John Kamm, which I had done before, we began
to learn that at the rate people were getting out of prison in
China, it would only take six centuries to empty out the
prisons, assuming nobody else ever got arrested.
One of the things we were looking at was something that is
really a bipartisan policy, and it had been looked at at the
end of the Clinton Administration. Paul Gewirtz and others had
begun to look at the possibilities of supporting structural
change inside of China, and we were able to make those hopes
come about. We had a congressional authorization, an earmark
that continues today, originally for a few million, now between
$15 and $20 million a year, to support those processes that I
had talked about before--village elections, media openness,
rule of law, labor groups, Tibetans, and others.
Now, I will tell you that we have all learned that you
cannot implant democracy around the world. And those of us who
read Jonathan Spence's book, know the wrong thinking if you are
under any illusions that you can change China. There has been a
long history of people from the West who have tried to do so.
In the end, the Chinese people will change China. But what we
are seeing, I think, is that clearly the Chinese people want
change.
Now, to tie all this together, the current situation in
China, the Chinese people are looking at a future. They have
had Hong Kong come back. They have had a man in space. They
have even had the Olympics. And I know a lot of them are
saying, ``Now what? '' And I think if you look at some of the
stories just from yesterday's New York Times, many of us may
not look at the Business Section, but there is an interesting
article on China's economic outlook, and one of the paragraphs
says this: ``Even at a time of increasingly dour economic news,
the Chinese trade numbers''--and it said the Chinese exports
had fallen 2.2 percent in one month year-to-year--``stunned
many economists. They struck an ominous note for China where
labor unrest has increased markedly as the economy has slowed
in the last month.''
You also had a story of their marking Human Rights Day by
arresting dissidents who had turned up to protest at the
Foreign Ministry.
I think in the present economic climate things are going to
get very tough in the short run for dissidents in China. I
think that is because the government there is much more brittle
than we realize, but they understand that. So I think that they
will clamp down.
There was an article in the L.A. Times today where Susan
Shirk was saying, ``I think they can get through this. They can
do what they did in Tiananmen and throw some people in jail and
just hold together.'' But I would argue that because of these
increased expectations, you are not just talking about
intelligentsia in China; you are not talking about college
students anymore who expect something better. And in the medium
run, I think increased economic and political expectations will
necessitate reform by the Chinese Government.
We all know that the party as presently configured is
unable to deliver on these widespread demands for justice. You
can come to Beijing and you can bang the drum, and if the
leaders hear of a particular case, they can solve a particular
case. But there are only so many letters that they can read in
one day and only so many cases that they can solve in one day.
And they are simply not capable of meeting these rising demands
for justice, and I think this is where this terminology about
social instability comes from. It is an unstable system if you
cannot address demands for justice. Inherently it is unstable.
I would argue that the United States could rely solely on
traditional methods to help reform diplomacy. Congressional and
United Nations resolutions, all of that should continue as, by
the way, should our focus on bringing individuals out of jail.
All the reform that we talk about is carried out by
individuals. If you are an individual--and I have seen this
around the world--and you think you could go to prison and be
locked up for 20 or 30 years because you are arguing for reform
in your country, it is a very daunting task to take on if you
think, ``I may go to prison, but maybe I will only be in for a
year, and somebody will be taking care of my family in the
meantime.'' It makes you a lot more willing to do what needs to
be done.
And, again, I would also remind everybody here we need to
keep in mind that we are not really capable of changing China.
But I would argue that the United States has begun to act at
the margins with the Chinese people who will change China. The
programming that is going on at the State Department enables us
to reach past what traditional methods on these issues do. If
you are doing diplomacy, if you are doing resolutions at the
Congress or the United Nations, the top tier, the government
officials in China, may hear about that. Ordinary people do
not. If you are able to work with ordinary people, they
understand that there is some interest in the outside in the
kind of work they are doing.
Finally, I would argue that such work ensures that China's
change will not be a crash landing. I do not think any of us
want to see a crash landing in China with huge economic and
social dislocation, as has occurred in some countries. But what
it does is ensure that as change, as reform comes to China, the
people there will understand the rudiments of democracy; that
they will understand voting and elections; that they will
understand when you vote for somebody, you are supposed to get
something in return; that they will understand how civil
society is supposed to be able to influence a government; that
they will see a rule of law as an alternative to party rule;
and they will see a media as a watchdog. At the moment all
these developments are being tolerated if retarded, but at some
point they will begin to come to the fore.
So let me just conclude as we look forward and think about
what to do to think about the congressional earmark, the money
that has been given, and the efforts the State Department has
been able to make as a result as one method to be able to help
reform in China.
Thank you.
Ms. Oldham-Moore. Thank you, Lorne. That was really very
helpful.
Randy Schriver, please begin.
STATEMENT OF RANDALL SCHRIVER, PARTNER, ARMITAGE INTERNATIONAL
AND PRESIDENT/CEO, PROJECT 2049 INSTITUTE
Mr. Schriver. Well, thank you very much. I also want to
thank you for the invitation. You have certainly enhanced my
reputation by seating me here with such a distinguished panel.
I hope I am not hurting any of yours. And I also want to
congratulate the Commission on almost a decade of outstanding
work. Your work has always been very helpful to inform
policymakers, as I found myself, but I find even now as a
private business person--I am a consultant, so I am in the
profession of separating people from their wallets--I
oftentimes hand your reports to CEOs and other business people
who are trying to understand the environment in which they are
operating themselves. So the work you are doing is reaching a
very broad audience, and I think it is incredibly valuable.
I was asked also to speak a little bit about the
experiences of the Bush Administration as well as looking
forward to the incoming Obama Administration, speak a little
bit about what I think worked well, maybe did not work so well,
and some advice for our successors. And I think I want to get
into a little bit of the inside baseball, because I think we
often conceive--when we think about the challenge, how does
government promote the right kinds of change and try to promote
improvements in human rights in China, we mostly think about
the substance. What is it that we are trying to achieve? What
is it that we are asking? And we think less about how we are
organized to do it, what are the tactics that we use, how do we
interact with our Chinese interlocutors and so forth.
So I want to take a moment to first talk about organization
and tactics and then talk about substance as well, and I should
also as a prefacing remark say that I would associate myself
with everything my colleagues have already said on this panel,
particularly Lorne Craner, who I enjoyed so much working with
in government and have such a great deal of respect for.
Let me talk a little bit about organization and tactics. I
think the first point I want to make is that you have to
organize within the lead agency for these issues in such a way
that these issues are going to receive sufficient attention,
have the right kind of profile, and have the right kind of
prioritization. And that can be accomplished a number of ways.
I think probably the easiest is when you have leadership at the
Cabinet level and even beyond that prioritizes these issues.
But I think there is a structural issue as well, and I
personally believe that the experts--people who understand
democracy promotion, human rights--need to be in charge of this
policy rather than the regionalists. And, of course, you need
to work hand in glove, but our colleagues who deal with this
for a profession and understand all the intricacies and
delicacies and effective tactics need to really be in the
driver's seat. And I felt as though--perhaps a sense self-
serving, I felt as though that Lorne and I had that
relationship. There are others, Susan O'Sullivan, and I saw
Kelly Curry back there, whether it was human rights in general
or Tibet, I felt as though our Asia Bureau tried to do
everything we could to facilitate our counterparts' abilities
to move that agenda forward.
But that has not always been the case, and oftentimes there
is a tension between regionalists who see human rights as an
issue they need to manage, or sometimes even a bureaucracy to
manage, and counterparts that they need to handle rather than
work hand in glove. And I would urge the next administration to
make the issues a priority, but also think about the structural
factors that would ensure that and promote that kind of
outcome.
I think another organizational question is the role of the
interagency. I think oftentimes the U.S. State Department and
our Embassy and our representatives in-country are primarily
responsible, yes, but almost exclusively empowered to deal with
these issues. I think this should be interagency-wide. And I
look at a forum like the Strategic Economic Dialogue [SED]
where we send 7 Cabinet Secretaries to China and we receive
almost 20 Ministers from China when we hold the SED here in
Washington, and I think this is a flagship dialogue. I know our
Chinese counterparts look at it as the most important dialogue.
Human rights should be injected into that in a very creative
and sophisticated way.
Just, by the way, as our Chinese counterparts are very
skilled at doing, if there is--I have my own list of things I
admire about their bureaucracy, and one thing they are quite
good at is consistency of message across ministries and a real
studiousness about sticking with important agenda items. But I
think this could happen in our interagency. I do not think it
was very effective or even tried in our administration, and I
would encourage the next administration to look at that.
I think also--I suppose this would be a popular statement
with this crowd, but I think congressional and executive
cooperation is also important. I think this worked well in some
cases during our tenure. I think the case of Rebiya Kadeer is a
good example. There was a congressional angle, of course, to
her original imprisonment. So each branch had made that a
priority, and I think we worked very effectively, kept one
another informed. We understood what was being conveyed from
Congressional staff and Members. We shared what we were doing,
and I think that is a good case study. I am not so sure that it
is always employed across the board in the broader human rights
agenda that we are trying to pursue, and I think it could be
more effective.
Let me talk a little bit about tactics and approach, and I
think number one, we need to do a better job of understanding
Chinese tactics and their approach to these issues. Clearly we
are often engaged in trying to promote outcomes that help the
Chinese people but the Chinese authorities and governing
officials are not that enthusiastic about, or let's just say
their enthusiasm is well contained. So oftentimes they engage
in what I would call very clever tactics. They often trade
process for policy. We fall into the trap of claiming we have
made great progress because a dialogue has been resumed or a
dialogue has been elevated to a new level. But, in fact, we are
still just talking about process, right? We are not talking
about fundamental change or reform. And so whether you want to
call that slow rolling, whether you want to understand they are
trying to deal in a currency where they think they can get
credit rather than doing the difficult work of reform, we need
to understand their approach to these issues and take into
account as we formulate our own tactics.
Based on understanding Chinese tactics, we also need to
understand their prioritizations, the kinds of things that they
value. One of the things I have always been frustrated about
and I would put our own administration on report for is this:
We do not always understand where our leverage lies, where our
leverage is. China is changing, but they still place a very
high priority on symbolism, on so-called face, the kind of
respect that their leaders and visitors receive. I have always
been stunned that we oftentimes sacrifice our highest cards,
our highest chits at the very beginning of a trip planning
session. You know, the 21-gun salute on the White House lawn,
whether or not our leader will go to Tiananmen for the opening
ceremony, you know, those are the things that we should reserve
as the most valuable chits, and we should employ those for
things that we care about. It is sort of a value-based
reciprocity where I think they do probably place a higher
priority on the protocol aspects and the symbolism.
I have been involved in enough negotiations where we talked
about the number of cars in a motorcade to understand where
some of this is important. And it should be traded upon. We
should deal in currencies that give us the opportunity for the
best kind of outcomes. And I do not think we always understand
our leverage. At times we do, but not always.
Another tactic I think--and I would give our administration
and Lorne credit here--we need to continue is the work of
working with international partners. The voice of the United
States is a very powerful and important voice. Oftentimes, we
are the only ones willing to speak. But for some of the reasons
that were stated earlier, the perceptions of hypocrisy or maybe
the suspicions of our motives because of the view that there
may be burgeoning strategic competition, it is extremely
helpful when you have the European Union, when you have other
Asian countries also involved--and sometimes that is the
hardest nut to crack, getting countries in the region to speak
up on these matters. But I think Lorne and his team certainly
deserve credit for trying to do that, and that should continue.
We do need to be consistent in our message and the kinds of
things we are trying to achieve, even in the face of difficult
obstacles.
And, finally, I did want to address this question of
respect. I could not agree more. You need to approach these
issues from a position of respecting the Chinese people,
respecting many of the accomplishments that China has achieved.
But this should not be confused with an unwillingness to raise
difficult issues, an unwillingness to be both public and
private. You know, we are often told by Chinese counterparts,
``Well, yes, we can talk about this, but this must be very
private. If you bring this public and it becomes an
embarrassing situation, it will hurt our chances for
progress.''
I am of the view that you can be respectful, you can
associate yourself with the right kind of reforms and the right
kind of aspirations for modernization, and make these issues a
priority both publicly and privately. So those are a few items
on organization and tactics. I think the substance part of this
has been well covered, so I will just underscore a couple
points.
I certainly agree with Lorne that systemic reform rather
than the individual prisoner releases should be the central
focus of the next administration, as it was under Lorne's
tenure. I think even things you do not get across the finish
line, working in that direction, does carry the potential for
the greatest dividends. Lorne did a lot of work and his team
did a lot of work on Chinese legal reform when they did away
with counterrevolutionary crimes, and we did some work on
looking at who was in prison for crimes that were no longer on
the books and what could be done to release them. And I think
that was the absolute right approach. But he is right, you
cannot ignore the individual cases, nor would I in any way
understate how significant that is for the relationship and how
personally significant. I agree that some of my best days in
Government service, welcoming Rebiya Kadeer, Ngawang Sangdrol,
a Tibetan nun, I mean those things you just never forget. So
that has to continue.
I think we need to be very comprehensive. I mentioned as a
tactic interagency work. But we need to have a comprehensive
view of human rights promotion and realize that in a
comprehensive agenda. So things like rule of law need to be
included, but also environmental matters, press matters where
there are opportunities.
As I said, we need to understand Chinese tactics. We need
to understand Chinese objectives. There are instances where
they have genuine aspirations for reform, but in some cases,
they do not have the experience, the knowledge, the capacity.
Trying to find those areas and exploit them is, I think, an
opportunity that should not be missed.
And then, finally, I would just endorse the comment about
programs. There should be no issue that is too small, programs
that get into local communities, local-level reforms. You know,
if you look at the pace of Chinese modernization and
improvement in human rights, it is certainly not this national
trend line that moves in one direction or the other. It is very
uneven. And there are creative people in China that are trying
to do interesting and creative things, and we need to be very
active in seeking out those people and embracing their agendas
in ways that we can actually help them.
So thanks again for the opportunity to participate in this
panel.
Ms. Oldham-Moore. Thank you, Randy Schriver.
Sophie Richardson, please.
STATEMENT OF SOPHIE RICHARDSON, ASIA ADVOCACY DIRECTOR, HUMAN
RIGHTS WATCH
Ms. Richardson. Thanks. I am a little uncertain what to do
since I think Randy and Lorne have said almost everything that
I was going to say, so hopefully this will not be dull or
repetitive.
First of all, thanks very much to the CECC. I will get
fired for saying this out loud, but if you are going to read
one thing about China in the next couple months, do not read
our stuff. Go read the CECC's annual report. [Laughter.]
Don't report that part. It is a great document. It was well
worth the wait, and there are some really smart, thoughtful,
practical recommendations in there.
I was asked to speak this morning more about steps that the
Obama Administration can take to better promote rights in
China. It is logical to start, though, by reflecting on the
Bush Administration's approach. On some issues like prisoner
releases, on religious freedom, on pushing the Chinese to talk
directly to the Dalai Lama, the Bush Administration was a
pretty good ally; but on many issues, and in many instances,
and particularly during the second administration, rights
issues were subordinated particularly to concerns about the war
on terror, trade issues, the Six Party Talks. It is also
important to remember in discussions like this how much the
U.S. relationship with China continues to be governed by issues
related to Taiwan, which, of course, are quite separate from
human rights concerns, but it matters in terms of the
priorities that people in the administration are dealing with
on a daily basis.
Particularly with respect to the Olympics, certainly the
President had a lot more to say than most of his colleagues
from other governments. But the fact of the matter is that his
comments were still sorely lacking. They were late. They were
not connected to any meaningful consequences for failing to
improve. And worst of all, they were virtually inaudible to a
Chinese audience. Virtually none of the Chinese people to whom
I have spoken since August--all of whom were in positions that
allow them access to this kind of news--were aware of them.
At the same time, I think the reality is that the dynamics
that drove some of the Bush Administration's decisions are not
materially different from the ones that have mattered in past
administrations. There are certain constraints that I think
nobody does a great job of surmounting. If the Obama
Administration fails, it won't be because Democrats or
Republicans are better or worse on China and human rights. It
is that pressing the Chinese Government on human rights is
incredibly tough, but with some creativity, commitment, and
coordination, the Obama team may do better than some of its
predecessors.
I think that despite the incredible predictability with
which the Chinese Government will reject, resist, and object to
bilateral or international criticism, I think we know that
sustained public criticism works. To this end, I would point to
two recent developments. One, the extension of some of the
temporary regulations for foreign journalists inside China. I
do not think that would have happened if every embassy in
Beijing and every government across Europe and in the United
States had not weighed in. I think also the small improvements
that we have seen in Hu Jia, a very prominent dissident, in his
condition, that he has been moved to a prison closer to
Beijing, would not have happened, again, without sustained
international criticism.
To put it another way, the Chinese Government depends on
the United States and others buying into the idea that quiet
diplomacy is the only tool available. I would encourage people
to question that.
We need to get better fast at finding ways of speaking
directly to the Chinese people instead of speaking through the
government or allowing the government to be the sole
interlocutor. I point to the comment I made a minute ago about
who in China hears what. We have means at our disposal. I
cannot stress strongly enough how important international
broadcasters like Voice of America and Radio Free Asia are to
doing this. But the technology makes things possible that were
not several years ago. There is no reason that senior U.S.
officials cannot do things like engage in live Web chats with
the Chinese people. We have seen more people make an effort to
make public speeches when they are visiting Beijing or other
cities. Every U.S. official should be making more of an effort
to do that.
We should dramatically increase the funding available for
Chinese human rights organizations. They are extraordinary
people. They do great work. They need assistance. And it is not
necessarily always the kind of capacity-building experience
that maybe we are used to in some other parts of the world, but
they need the funding and they need a little bit of political
cover. Distributing rights-friendly material in Chinese is also
helpful.
Much will depend for the Obama Administration on doing a
better job than all of its predecessors, not just the Bush
Administration but certainly also the Clinton Administration,
in better coordinating policies, actions, and messages across
the government. I think a failure to do so makes it incredibly
easy for the Chinese Government to exploit inconsistencies or,
worse still, the silences.
I think there is no better example of this than the
consequences of the disproportionate emphasis that the Bush
Administration put on the Six Party Talks, which are obviously
of tremendous significance. But the reality is that a lot of
human rights issues were almost completely subordinated to this
one particular agenda. We have great admiration for Chris Hill,
and I thought the photograph in the New York Times this morning
was a little bit heartbreaking--it was a snapshot of him
leaving Beijing, alongside a story saying that the talks had
really fallen apart. It isn't just that those talks haven't
succeeded--it's also about all of the other issues that did not
get raised in the hopes that the Chinese would be more
cooperative on that issue.
To give a slightly more positive example of having people
from across different parts of the government speak up about
rights: until the financial crisis, I probably could not have
picked Henry Paulson out of a line-up except for the fact that
completely out of the blue, about a year ago on a visit to
Beijing, he all of a sudden started talking about human rights
issues. The Chinese did not see it coming, and, as a result,
his comments really registered. I think it is incredibly
important that particularly people at the Cabinet level go to
Beijing equipped with some knowledge relevant to their own
portfolios so that if they are given the opportunity or they
find themselves in the circumstances where they can make these
kinds of points, they should do so. There is no reason the head
of the Department of Health and Human Services could not speak
up about discrimination of people who have hepatitis B or
forced evictions. The Secretary of Education could easily be
talking about things like work-study programs in Chinese
schools where children are effectively being forced into
income-generating activities so that their schools stay open. I
think taking that message across different parts of the
government can be an incredibly effective way to promote
rights.
It is profoundly frustrating to see U.S. Government
officials talk at cross purposes and effectively undermine each
other. Our views of President Bush's criticisms around the time
of the Olympics are pretty clear. It is all that much worse
when you realize that two days after he made those comments,
Secretary of Labor Chao showed up in Beijing and gave a speech
which basically dignified the Chinese Government's idea of
``harmonious society,'' which we all know is a term that is
often used to crush dissent. It should be a little bit easier
to get it together with respect to messages like these, and I
think it is probably no surprise to everybody in this room
which of those messages got reported in the Chinese press.
There are two crucial issues on which the United States'
muted position has to change quickly, or else previous efforts
are undermined. It was just a little over a year ago that the
Congress and the President awarded the Dalai Lama the
Congressional Medal of Honor. Since the protests in Tibet in
March and as the dialogue between Beijing and the Dalai Lama
has faltered over the last couple of months, this
administration has been virtually silent. That is unforgivable,
particularly for an administration that wants to claim the
Sino-Tibetan dialogue as part of its successful legacy. If they
do not speak now before they leave this office, it really
creates problems for moving things forward.
The next issue really is about a story this week, this
incredible group of about 300 Chinese scholars, activists,
mechanics--it is an incredibly diverse group--have put out a
document called ``Charter 08,'' which is modeled on ``Charter
77.'' This is an incredibly courageous thing to do,
particularly heading into the year in which we will be
observing the 20th anniversary of Tiananmen.
I have to compliment the State Department here for managing
to get a statement out. That is a step very much in the right
direction, but the reality is that Ambassador Randt needs to go
out and say this in public in Beijing now.
Liu Xiaobo, who is a very well-known dissident, has not
been heard from in several days. He was arrested in connection
with the publication of the charter. This is a man who has been
welcomed at the U.S. Embassy in Beijing. You cannot have him be
your friend when it suits you to do so and then fail to defend
him when the going gets tough. That is not acceptable, and we
will be watching the Obama Administration very carefully to see
that it does a better job, particularly with respect to
individuals like this.
Last, but not least, it is important to take on the Chinese
Government in the venues that matter the most to them. At the
top of this list is the Strategic and Economic Dialogue [SED].
This is the dialogue they like as opposed to the human rights
dialogue, which they hate and filibuster and really have not
accomplished a great deal. There is no reason that trade
discussions cannot talk about things like product safety, which
at the end of the day is as much about a free press in China as
it is about anything else. There is no reason that security
debates should not look at the role of U.S. companies, U.S.
technology companies selling surveillance gear that gets used
by the Public Security Bureau in China to keep people from
criticizing the government.
Lest people think that there is no connection between human
rights and security issues, I just wanted to quote a little bit
of--not nearly as good as it ought to have been, the statement
from the President-elect's office on the occasion of Human
Rights Day, which, nevertheless, at least makes a very explicit
connection between these things. He said, ``By promoting human
rights, the United States will strengthen our security and
well-being.'' That alone ought to be enough for the SED to take
on these issues.
Another venue that the Chinese care a lot about and
virtually nobody in Washington is really paying much attention
to is the upcoming Universal Periodic Review [UPR] of China.
This takes place on February 9 in Geneva. It is two weeks after
the inauguration. This is the new mechanism at the Human Rights
Council where all member states are going to get reviewed. But
for China, it really is different. This is a venue where they
never wanted to be reviewed, where they resisted mightily, and,
in fact, their resistance contributed a great deal to the old
Commission collapsing. And so I think the United States
engaging to make sure that China's review is vigorous, the
United States has to show up with good questions, with good
recommendations, and not just let it slide, because if the
Chinese Government just gets to have its allies filibuster
through that process and it cannot be made a rigorous review,
it really calls into question whether UPR is going to work for
anyone at all.
I think last, but not least, I have to put in a pitch for
the United States visibly demonstrating more support for human
rights issues in China by increasing the number of people at
the embassy and consulates who work on human rights issues. The
number of those people relative to the number of people who
work on sort of purely political or trade issues, it is a
pathetic imbalance. It is pathetic, and that really has to be
rectified.
China is obviously one of the most difficult governments
for the United States or for any other government to deal with
on rights issues. But I think the consequences of failing to do
better in the future are not pretty ones. It leaves us with
more product safety debacles. It leaves us with more frustrated
attempts at multilateral diplomacy. And worst of all, it leaves
us with more people who are in circumstances like Liu Xiaobo is
right now, people who have gone out, done what we want them to
do, been courageous, and we do not know what has happened to
them. We cannot keep letting that happen.
So I will stop there. Thanks.
Ms. Oldham-Moore. Thank you, Sophie.
Phyllis Chang. And right after Phyllis, we will go right to
Q&A.
STATEMENT OF PHYLLIS CHANG, EXECUTIVE DIRECTOR, CHINA LAW AND
DEVELOPMENT CONSULTANTS, LTD.
Ms. Chang. Good morning, and excuse my 85-degree angle to
the audience. That is probably how I sit in China anyhow, so it
is apt. Thank you very much to the Commission for inviting me.
I am an interloper. I live and work in Beijing--the other
capital--and just happened to be in Washington for some
meetings this week when this opportunity to join you at this
discussion arose. Professor Randle Edwards has very generously
offered to donate a few of his minutes. But considering that
his assignment is to review 30 years of Chinese legal reform in
10 minutes, I feel very bad about taking his time. So if you
will permit me perhaps at the most 10 minutes, I would like to
share with you some scattered thoughts--because of the time
limit and the scope of today's discussion, I am going to
deliberately jump around a bit.
Doug, when you introduced me, I was afraid that rather than
saying many of you have ``crossed paths with Phyllis,'' you
were going to say that many of you have ``tripped across me''
somewhere in Beijing. I have been in China for many years. I am
a Chinese-American. I am a lawyer who has been working on law
reform, rights, governance, and women's issues in China for
more than 14 years, and so perhaps a number of you have tripped
across me. I often feel like I am the tortoise plodding
forward, sometimes sideways, in China. That is not an
inappropriate metaphor for the construction of the rule of law
and progress toward human rights in China. But I do not mean it
in a negative way.
From the perspective of many foreigners, including many of
those in the room, perhaps the situation with regard to human
rights and the development of the rule of law in China has been
far from ideal: very slow, even halting. But from the
perspective of many Chinese, including many of those who are
engaged at the very forefront of efforts to push for more
rights and justice and legal system development, while the pace
of reform and change, particularly
recently, has not been nearly as fast, nor the conditions as
encouraging as perhaps 4 or 5 years ago, with the exception of
the Chinese who are most critical of their society--and I am
talking about those who are engaged in legal reform and
governance reform--almost all Chinese citizens will say to you
that compared to 15, 20 years ago, even 10 years ago, that
there has been tremendous progress. And most of them are
cautiously optimistic.
Because of the time limit, I am not going to say much more
about this. My point is that in thinking about--whether we are
thinking about diplomacy, or how at the programming level to
engage with Chinese, and how to help Chinese who are reform-
minded--and by Chinese, I mean officials as well as ordinary
citizens, organizations, businesses, and NGOs--we should always
try to keep in mind what the view is from the Chinese
perspective at these various levels. When I say Chinese
perspective, we should not conflate all of China or different
strata of Chinese society into one. But I think it would be
very helpful for foreign parties to think about and ask, ``What
is the Chinese perspective? How do Chinese feel about human
rights in China? '' ``What do they think about the human rights
situation? What do Chinese who seek change themselves think
would be most productive to do? '' And then to consider, ``How
can we help them do those things? ''
And that is how my small firm tries to help Chinese. We
support Chinese efforts by providing advice on how to design
and conduct non-profit projects, by building capacity, by
introducing resources such as leading foreign experts and
programs, and by providing technical assistance--ranging from
finding relevant foreign materials to assisting with project
and financial management. And by helping Chinese projects raise
funding from various private and government sources. This is an
approach that I would like to suggest can be among the most
productive over the long term.
Also, if we follow such an approach, we will be able to tap
into and reinforce existing reform impulses in China--to
harness what we have to offer to the changes that are already
happening within the country. Lorne discussed the growing call
for justice among Chinese citizens, and I think we all agree on
that. I would add that there are not only growing expectations
for justice at the individual level, that is, justice in the
case of an individual complaint or grievance, but also, for
social justice. Very notably, what we have seen emerging is
attention to social justice, that is, fairness, between and
among different sectors of Chinese society, or different types
of groups, even calls for a redistribution of--I know that
sometimes here in Washington is the wrong word--but a
redistribution of resources or fair allocation or at least a
voice in the allocation of governmental and societal resources.
And I think that this is very striking and very important
because Chinese who are situated in different points in Chinese
society are showing empathy for and real concern about Chinese
who are in other positions and circumstances.
And a second very important development that is taking
place in China is that more and more Chinese feel empowered--
another overused term, but one that I really think is apt--
empowered to try to make some effort, whether to help others
redress a grievance or to improve their own situation or to
influence policy or to bring to light problems in Chinese
society or in the Chinese Government. They may not use the term
``empowered'' themselves, but they believe that they can take
some action that can have some effect. Maybe it is simply
organizing a small meeting of their apartment complex's
homeowners' association--apartment owners--to discuss how to
put pressure on a property developer that they feel has reneged
on its promise. Or maybe it is compiling some statistics about
pollution in a local river and trying to find a sympathetic
reporter to release those statistics. But that is very
different from 10 years ago in China, the sense now that
citizen and individual efforts, beginning at grassroots levels,
can make a difference, and the realization that there are many
different paths now to try to bring about change in China.
I think many of you are very knowledgeable about these
kinds of changes and dynamics in China. This is just a reminder
that we should continue to think creatively, to be attuned to
those forces, and to try to feed into them thus reinforcing the
Chinese efforts that are already taking place.
In the remaining minutes, I would like to speak at a more
general level about the kind of approaches and issues that
would be, I think, productive to continue as well as new ones
to renew or try. My comments address both governmental efforts,
not just U.S. governmental ones, but also those of the European
Union, Australia, and other countries, including Japan, but
also, private efforts--private efforts primarily, of course, of
foundations, but also other types of NGOs and even businesses.
First of all, in the United States the approach from the
government side has been, in effect, largely decentralized.
Time does not allow me to delve into this in detail, and this
is not the venue for such a discussion, but the idea has been
to make funding and other resources for cooperative projects
with Chinese available on a competitive basis. I personally
think that this is extremely effective and very powerful.
One of the strengths of the United States is significant
knowledge, relatively speaking, of China. A large number of
Americans from all spheres of life, not just lawyers, and law-
trained people, speak Chinese, have spent time in China, have
many Chinese friends, have a real passion for China, and have
Chinese colleagues and counterparts who respect and have worked
with them. And many American organizations have spent
significant time learning about China--not just a visit or
two--and have leadership and staff who are knowledgable about
China. I think that is a tremendous asset. A decentralized
approach that gives resources, including funding, but not just
funding, to these kinds of organizations and individuals in the
United States takes advantage of this asset.
At the same time, it may also be worth putting more effort
now, with a new administration coming in, to ramp up bilateral,
government-to-government, cooperation and programs, without
diminishing--by this I mean reducing--the decentralized
approach. The interaction between the two, a decentralized
approach and a bilateral, more centralized approach, is quite
delicate, actually. So I will not discuss this today, but I do
think that there is room and need to increase bilateral
cooperation between the United States and China in the rule of
law and human rights area.
I am about to run out of time so let me finish with a very
simple last idea, which is also rather an obvious one. Let's
help to get more Chinese to the United States, to spend time
here--the longer the better. Because although the United States
has many serious problems--as do almost all societies--it also
has many strengths. I think that many of the values and
approaches in the United States are deeply appreciated by a
great number of Chinese. They need to come here and be able to
experience them first-hand as students, visiting scholars,
visiting officials; even through a brief study tour. Moreover,
they need to stay in the United States for an extended period
of time under different types of programs and exchanges, so
that they can go see how a legislative hearing in Ashburn--
excuse me, an administrative hearing--in Ashburn, Virginia, is
held about a zoning regulation; or attend a homeowners'
association and hear people forcibly but politely debating
which property management company they should hire, and then
respecting the decision of the majority even though they are
not really happy with it; or see how legal education is taught
in the United States and experience this themselves. These
kinds of interactions and experiences are critical.
And although it is obvious, and time does not permit me to
go into the various methods, we have a whole array of
possibilities for making this possible for Chinese, from
fellowships for NGO leaders to specially designed training
programs for officials to internships for journalists.
And I must add one other comment, even though I am running
out of--have run out of time. More work should be done on
women's issues, including women's rights. Susan O'Sullivan, who
is here today, was among those who helped to pioneer this and
to develop programs with Chinese women leaders and activists.
Recently there has not been much work in the area of women's
issues, and not much funding for projects to support women's
rights, at least from the United States, but women's issues are
a tremendous way into human rights. It is obviously part of
human rights----
Ms. Oldham-Moore. Phyllis, could I interrupt you for one
second? Would it be possible for you to stay after the briefing
to speak with those who want to dig into the details further?
Because I think the issues you are raising are extremely
important.
Ms. Chang. Thank you. That is a very good reminder. I have
run way over my time.
Ms. Oldham-Moore. No, but is that an option for you, to
stay at 12 o'clock here?
Ms. Chang. I am happy to do that.
Ms. Oldham-Moore. Afterward at 12 o'clock, if you want to
drill more deeply into methodologies for rule of law programs
in China, please come to this table. Phyllis Chang will be
here.
Ms. Chang. For a while, at least.
Ms. Oldham-Moore. For a while. Thank you very much.
Okay, great. So now we are going to go quickly to our
question and answer session.
[Inaudible question off microphone.]
Ms. Oldham-Moore. Okay, thank you.
Randy or Sophie, please.
Mr. Schriver. Thank you for the question. I think it is
extremely difficult but it is very worthy and deserving work. I
think, you know, nobody wants to stick their head up first, and
it requires, I think, selecting the right kind of issues and
the right kind of assurances that all will stand together or
you hang alone, because the Chinese are quite good at picking
off the sort of weak link and then really applying severe
pressure and consequences.
But I think, again, understanding in a sophisticated way
the internal dynamics in China, selecting the right kinds of
issues, and then going in, in a way that is forceful,
persuasive, but also respectful, I think you can bring other
countries along.
I think maybe in some of the global health and
environmental areas where there are second-order effects into
the human rights realm might be a way that our colleagues from
the countries you mentioned would be more comfortable with
initially. But nothing breeds success like success. I mean, if
you start with those issues, you could certainly move on to
others.
Ms. Richardson. Yes, it is incredibly tough to do, for all
of the reasons that Randy has just listed.
We would like to see even just the establishment, for
example, of slightly more visible working groups among the
embassies in Beijing or even the embassies here. But it is
absolutely true that even if you have a common concern it's
tough to get common action, even though in the long run that's
more effective. We have had this experience before--person X
gets arrested, and every single one of those embassies has
individually demarched the Chinese Government, it is very
difficult to get them to do so collectively, let alone to get
them to do it collectively and publicly. But it packs quite a
punch when it actually does happen.
We have had a little bit more success in some of these
instances when we have enlisted former members of parliament or
government who are not necessarily themselves currently in
power, but at least it conveys a sense that there are groups or
constituencies inside those countries who recognize that people
in other countries have the same concerns.
Ms. Oldham-Moore. Thank you.
Lorne, you wanted to make a brief remark?
Mr. Craner. Yes. I actually do not think it is that hard
because we, at least on the human rights dialogue level,
started doing it. One of the reasons we were able to bring--I
think it was 14 or 15 countries that had human rights dialogues
with China in the ``Berne process.'' There was high-level
interest in the U.S. Government, President Bush and Secretary,
at the time, Colin Powell had an interest in this. So I was
able to pursue it with other countries.
Obviously, when you are working with other countries, you
have to have respect for what they want to talk about. When I
was talking to the Europeans, for example, the United States
raising the death penalty probably does not make a whole lot of
sense. The Europeans raising religious freedom gets them into
some hot water. But if you focus on the overlap that you have,
it can easily be done.
You know, again, in the first term, we were able to do it
at that level, at my level, on the human rights dialogues. But
it was very effective when a number of countries or the United
States and the European Union were asking for the very same
thing, and we used to coordinate on what we were asking for.
The Chinese did not like it, so they started threatening some
of the members. In fact, I think it is no longer allowed to be
in Berne, this meeting. I think it has moved to elsewhere. But
it does continue and, yes, it is very--it can be very
effective.
Would it be better if it was raised to higher levels?
Absolutely. And that is something I think the Obama
Administration would probably be good at.
If I can just take one second, I mentioned before the
support that I had. Some of my predecessors did not have that
support, and you can argue, you know, about my successors. But
in China, it was very good for me to be the third person in the
room talking about these issues after the President and after
the Secretary of State. If I was the first person in the room
talking about these issues, I was an Assistant Secretary, they
could just blow me off. But being the third person in the room,
we were getting down to brass tacks, not arguments about
whether it mattered or not. They knew it mattered because the
President had raised it and then the Secretary of State, and if
he was not there, Mr. Armitage had raised it already with them.
And I got a great deal of help from them. That was extremely
important.
Ms. Oldham-Moore. Okay, Sophie.
Ms. Richardson. Very quickly, I just want to--a point that
Lorne just made about this grouping of countries that does not
even meet in Berne anymore. It is true that this group does
still get together, but the meetings do not even get announced.
We do not know when they are taking place. It is very hard to
have any input or get any feedback from them. And I realize
that it is partly because the issues are complicated and partly
because the countries are, to some extent, trying to protect
the individual countries that get threatened.
But, half the point of having those discussions is that the
Chinese Government knows they are taking place--right?--and
that there is a sense of solidarity. So that the extent to
which they sort of sunk lower and lower below the radar screen
in our view essentially takes some of the utility out of them.
Ms. Oldham-Moore. Okay. Please, you, sir.
Mr. Davis. My name is Joe Davis, and I have a question
about your report and one of your recommendations. To some
extent this is a question for the Commission, but other people
certainly have expertise in this area. This is on page 9 under
the Worker Rights section. It says ``fund multi-year pilot
projects and showcase the experience of collective bargaining
in action for both Chinese workers and the All-China Federation
of Trade Unions [ACFTU] officials.''
Now, in the United States we think about collective
bargaining as a negotiation, but both parties have reasonably
equal power. I do not think that characterizes the relationship
between the ACFTU and businesses or governments in China. And I
would like to get some clarification on your perception of
really what collective bargaining is in this context. And if I
am incorrect about the ACFTU, being really an agency of the
Communist Party, if it is, then you cannot use the term
``collective bargaining.'' ``Consultation'' or something maybe,
but not collective bargaining. And funding this is building the
capacity of the ACFTU, which seems to me counterproductive when
we know that a democracy needs independent trade unions, and
for workers to have a real voice, they have to be able to
strike or take some action against their employer without being
sent to prison. That is my question.
Ms. Oldham-Moore. Great question. Doug Grob wants to take
that one.
Mr. Grob. Okay. Well, thanks very much for that. In
response to your point about what is exactly the nature of
collective bargaining, I will say that it is not something that
you will find today in China. Before I get to your observation
concerning page 9 of our Annual Report, I would note that we
report on page 42 that ``some prominent labor advocates suggest
that, with the new Labor Contract Law now in effect, China's
new legislative framework `is more than sufficient for the
development of collective bargaining in China.' The biggest
obstacle, they claim, is `not the lack of legislation but the
inability of the official trade union to act as a proper
representative trade union.' '' And then the Report goes on to
say, ``The law entrenches the role of the All-China Federation
of Trade Unions in contract negotiations. But the Labor
Contract Law does not include provisions to guarantee equal
bargaining power between workers and employers. The ACFTU is
China's only legal trade union, and it is required by the Trade
Union Law to `uphold the leadership of the Communist Party.'
The vast majority of `trade unions' in enterprises effectively
remain under the de facto control of management.''
Our banner conclusion is right at the top of page 41, that
``Workers in China still are not guaranteed either in law or in
practice full worker rights in accordance with international
standards. China's laws, regulations, and governing practices
continue to deny workers fundamental rights, including, but not
limited to, the right to organize into independent unions.''
Onto the specific recommendation that you pointed to,
``prioritize programs that demonstrate the ability to conduct
collective bargaining pilot projects even in factories that do
not have an official union presence.'' There have been, within
the last few months,
collective bargaining pilot projects, meaning projects aimed at
someday producing an outcome that we may legitimately say is
approaching true collective bargaining. I appreciate the
comment and thank you for it because obviously we did not make
the following point clearly enough: these are projects that
have true collective bargaining as an aspiration and a goal,
but that do not assume it to be something that currently exists
in China. There is a fair glimmer of hope, among a select small
number of NGOs operating on the ground there. We put at the end
of that sentence that the priority should be on programs that
are located in ``even factories that do not have an official
union presence.'' The logic there is that those factories are
where there would be the greatest potential to produce and
foster the development of the idea that there can be labor
organizing and trade unions independent of the ACFTU. So to
focus on the locations where the ACFTU presence does not pre-
exist, is basically a way to stay ahead of the pack. That is
the idea there.
I hope that answers your question. I appreciate it.
Ms. Oldham-Moore. Thank you.
Any other questions? Yes, please, you in the purple dress.
Thanks.
Ms. Kempton. My name is Nicole Kempton. I am the Director
of the newly opened Laogai Museum. We are just down the street
so everyone I think would enjoy a visit, and I encourage you to
come around and have a conversation with us.
I want to ask a big-picture question. During the mid-1990s,
around the time of the debate over MFN status for China, we
hear the start of the phrase, or I should say mantra, that
economic growth will improve human rights in China. You know,
it has been over a decade now since that mantra kind of came
into existence, and I just wanted to sort of ask a general
question to the panelists. You know, in light of the fact that
that phrase has kind of been bankrupted, particularly over the
last couple of days with the arrest of Liu Xiaobo and
[inaudible] Charter 08, how can we in this time of Presidential
transition move beyond that mantra into something more
meaningful, more useful, and something which encourages a
dialogue on human rights between our two countries?
Ms. Oldham-Moore. Okay. Thank you. Who would like to take
that? Anybody? Phyllis, please.
Ms. Chang. I will just say two sentences. I am sorry, but I
strongly disagree with your conclusion that economic growth has
not propelled the development of the rule of law in China. I
would say that economic growth has propelled the emergence of
stronger rights in China and the development of the rule of
law. I will be here after 12 o'clock, when this discussion
ends. We can talk more then. But please try to believe what I
am saying. Economic growth does not mean a delivery of
democracy or the kind of rights that we or European citizens or
others in other societies may enjoy. But there has been
tremendous change in China, and not just social and economic,
as a result of economic development--it has opened up
resources, not just space but resources. You need facilities,
you need money, you need communications, you need media to
influence other people, other Chinese, from officials to other
peers. And that all is made possible through economic growth,
too.
Ms. Oldham-Moore. Great. One last question? Yes, please.
Ms. Tucker. Hi, my name is Anna Tucker. I am from the China
Office of the U.S. Chamber of Commerce. I just wanted to enter
the term ``stability'' back into the discussion [inaudible].
The Chinese Government [inaudible] social stability
[inaudible]. I wonder what would be involved in that and how
the United States should handle that [inaudible].
Mr. Craner. The link between social stability and human
rights?
Ms. Tucker. Yes.
Ms. Oldham-Moore. Do you understand the question?
Mr. Craner. Not really.
Ms. Oldham-Moore. Can you flesh that out?
Mr. Craner. Tell me a little more.
Ms. Tucker. Well, the Chinese Government [inaudible].
Ms. Oldham-Moore. Okay. We got it, we got it.
Mr. Craner. Yes. You know, unlike--and this kind of goes to
your question. Unlike some other countries in the world that
have undertaken economic liberalization, say Vietnam or--we
will leave it at Vietnam--the Chinese Government has also made
along the way certain decisions about what did the economic
liberalization mean, what corollaries were necessary. And they
have been very gently over the years, and in a very incremental
fashion, been providing some of those. And, you know, we all
know the list, from rule of law to village elections, et
cetera.
I think the question, especially at this point, is what
expectations about more freedoms has that created among the
Chinese people and, again, the sense of justice that I was
talking about, and Phyllis was talking about the sense of
social justice, and is the system capable of delivering--in
other words, the Chinese people have been provided with certain
incremental changes from the top down. Now from the bottom up
they are asking for more, and the question is: Is the system
capable of delivering on that as presently configured?
But I think we are kind of moving into a different stage
from things being provided to things being asked for, and it is
going to be interesting to watch the next few years how that
turns out.
Does that mean that economic liberalization caused
democratization? Obviously not yet in China, and we do not know
the end of the story. I never liked this theory, you know, get
a middle class--or get an economy, get a middle class, get a
democracy. I always called it the 50-year, 60-year plan.
I think the question for the United States is in this case
what can we do to catalyze that. And I think we are going to
see a lot of opportunities the next few years.
Ms. Oldham-Moore. Thank you.
Randy Schriver, and then Sophie, and then we will stop for
today.
Mr. Schriver. I think actually the last two questions
together kind of raises a question about what narrative are you
buying into. There is a Chinese narrative--largely Chinese, but
embraced by some in the United States--of look at where we have
come from. The progress has actually been extremely rapid and
the change has been so dramatic when you consider the end of
the Cultural Revolution in the mid-1970s and the reforms only
starting in 1978, so we are only looking at a 30-year period.
There is another narrative of incremental change, the so-
called iceberg; you know, if you sustain your gaze on the
iceberg, you cannot see it move; but if you look away for some
period of time and look back, you will notice that it moved,
and that is kind of the incremental change.
And then there is a narrative of do not be deceived, you
know, this is much worse than it suggests, but--I do not know
why I am going into this detail, but my narrative has always
been it is sort of the performer with the spinning plates. And
every once in a while a plate gets wobbly, and they have either
got to--they have a decision of letting it fall and break or
try to somehow keep the plate spinning. And I have never really
seen the Chinese as fundamentally against reform or against the
improvement of certain human rights or the quality of life. And
I think they are being presented right now with some very
interesting choices, and your question, human rights or
freedoms being introduced as a negative influence on social and
political stability.
Well, look at the situation with the media right now. What
they are finding in the era of advanced technology is that a
controlled state media is actually working to their detriment
when it comes to rumor control and gossip because nobody trusts
the official media. So you get the most outrageous rumors
starting, you know, sometimes involving Western companies,
sometimes--and, you know, people are going to believe their
text message and their blog before they believe the state
press. So is this an opportunity to push for more press
freedoms? Because I think it is.
I mean, that is how I conceive of these things, and it is
not so clear either/or, and I do not think the Chinese look at
it that way either.
Ms. Richardson. Just two quick points. One, on the term
``stability,'' it is one that we will certainly be working hard
to make sure that nobody in the Obama Administration dignifies,
because, frankly, it is such an elastic term that it really
could be meant to mean anything. I am sure somebody is telling
Liu Xiaobo right now that he has posed a threat to stability
and, therefore, he has to be sentenced for at least three and a
half years.
But, also, I did want to respond a little bit on the point
about economic development and the rule of law, because I think
the reality is that had it not been for reform and opening up,
you would not have seen the initial steps toward modernizing
and improving the legal system that in turn created the space
for essentially what we think of as one of the most promising
developments for China in the future, and that is the group
referred to as the ``wei quan lawyers,'' people who are trying
to work essentially within the constitutional framework to
improve access to justice, which is probably the most sort of
rampant human rights problem across the country.
I urge everyone to read Professor Jerry Cohen's piece in
the new issue of the Far Eastern Economic Review. He makes a
great point that Chinese courts are infinitely better equipped
and willing to hear huge numbers of cases at sort of a garden
variety level, but that until much more controversial cases can
be heard on an equal basis, there is still quite a long way to
go.
Ms. Oldham-Moore. Thank you, Sophie, and I want to thank
everybody on this panel. It has been an illuminating and
interesting discussion.
I want to make three quick announcements. Please pick up a
copy of our report. Go to our Web site where there are daily
updates. We are going to try to expedite the production of this
transcript of this proceeding. If you are on our list, you will
be notified when it is released. [Applause.]
[Whereupon, at 12:01 p.m., the roundtable was adjourned.]