[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
               HUMAN RIGHTS AND THE RULE OF LAW IN CHINA 

=======================================================================

                                HEARING

                               before the

              CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 7, 2009

                               __________

 Printed for the use of the Congressional-Executive Commission on China


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              CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

                    LEGISLATIVE BRANCH COMMISSIONERS

Senate                                     House

BYRON DORGAN, North Dakota,          SANDER LEVIN, Michigan, Cochairman
Chairman                             MARCY KAPTUR, Ohio
MAX BAUCUS, Montana                  MICHAEL M. HONDA, California
CARL LEVIN, Michigan                 TIMOTHY J. WALZ, Minnesota
DIANNE FEINSTEIN, California         DAVID WU, Oregon
SHERROD BROWN, Ohio                  CHRISTOPHER H. SMITH, New Jersey
SAM BROWNBACK, Kansas                EDWARD R. ROYCE, California
BOB CORKER, Tennessee                DONALD A. MANZULLO, Illinois
JOHN BARRASSO, Wyoming               JOSEPH R. PITTS, Pennsylvania

                     EXECUTIVE BRANCH COMMISSIONERS

                  Department of State, To Be Appointed
                  Department of Labor, To Be Appointed
                Department of Commerce, To Be Appointed
                       At-Large, To Be Appointed
                       At-Large, To Be Appointed

                 Charlotte Oldham-Moore, Staff Director

             Douglas Grob, Cochairman's Senior Staff Member

                                  (ii)
















                             C O N T E N T S

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                                                                   Page
Opening statement of Hon. Byron Dorgan, a U.S. Senator from North 
  Dakota; Chairman, Congressional-Executive Commission on China..     1
Walz, Hon. Tim, a U.S. Representative from Minnesota; Member, 
  Congressional-Executive Commission on China....................     4
Smith, Hon. Christopher H., a U.S. Representative from New 
  Jersey; Ranking Member, Congressional-Executive Commission on 
  China..........................................................     5
Kamm, John, Founder and Chairman, Dui Hua Foundation.............     6
Economy, Elizabeth C., C.V. Starr Senior Fellow and Director for 
  Asia Studies, Council on Foreign Relations.....................     8
Clarke, Donald C., Professor of Law, George Washington University    10
Bovingdon, Gardner, Assistant Professor, Indiana University, 
  Bloomington....................................................    13
Wu, Hon. David, a U.S. Representative from Oregon; Member, 
  Congressional-Executive Commission on China....................    27

                                APPENDIX
                          Prepared Statements

Kamm, John.......................................................    32
Economy, Elizabeth C.............................................    44
Clarke, Donald C.................................................    48
Bovingdon, Gardner...............................................    57



               HUMAN RIGHTS AND THE RULE OF LAW IN CHINA

                              ----------                              


                       WEDNESDAY, OCTOBER 7, 2009

                            Congressional-Executive
                                       Commission on China,
                                                    Washington, DC.
    The hearing was convened, pursuant to notice, at 2:04 p.m., 
in room 628, Dirksen Senate Office Building, Senator Byron 
Dorgan (Chairman of the Commission) presiding.
    Also present: Senator John Barrasso; Representatives 
Timothy J. Walz; Christopher H. Smith; Michael M. Honda; and 
David Wu.

  OPENING STATEMENT OF HON. BYRON DORGAN, A U.S. SENATOR FROM 
 NORTH DAKOTA; CHAIRMAN, CONGRESSIONAL-EXECUTIVE COMMISSION ON 
                             CHINA

    Chairman Dorgan. We're going to call the hearing to order. 
This is a hearing of the Congressional-Executive Commission on 
China. The U.S. House is currently in the middle of a vote, but 
my colleagues from the House and Senate will join us.
    The Commission voted today on the adoption of its 2009 
report to be released next week. The Commission issues a report 
each year, as many of you know, to the Congress and to the 
President on the subject of human rights conditions and the 
development of the rule of law in China.
    In connection with today's vote, the Commissioners asked a 
distinguished group of witnesses to join us today to assess 
China's 
efforts in the witnesses' areas of expertise, whether it is 
environmental protection, criminal defense, or civil rights. We 
will also hear the perspectives of the witnesses on how the 
United States might best engage and incorporate human rights 
and the rule of law issues into its overall agenda with China.
    In its 2009 Annual Report, the Commission expresses deep 
concern about continued human rights abuses and stalled rule of 
law development. It notes with concern that some Chinese 
Government policies designed to address social unrest and to 
bolster the Party's authority are resulting in a period of 
declining human rights for Chinese citizens.
    Serious abuses result in part from the absence of basic 
protections available to citizens through the legal system.
    A stable China with a robust commitment to the rule of law 
and human rights is in the national interest of the United 
States, and also very much in the interest of the people of 
China.
    In fact, I believe that advancing human rights concerns 
with China is more important now to the national interests of 
the United States than ever before. The reporting of this 
Commission makes that crystal clear. Press censorship in China 
makes it possible for toxic food and public health crises to 
spread globally. Abuse of low-wage labor compromises goods that 
come to the United States, which have harmed American 
consumers, as well as an untold number of Chinese consumers, 
and these abuses are well-documented.
    The harassment of whistleblowers and human rights lawyers 
and the suppression of criticism and dissent remove internal 
checks against environmental damage that not only hurts 
ordinary Chinese citizens, but has a global impact as well. The 
shuttering of law firms that are perceived as challenging the 
government removes important avenues for justice for the poor 
and the most vulnerable.
    To maximize progress on food safety, product quality, even 
clean air, the Chinese Government must engage as allies 
environmental whistleblowers, a watchdog press, the NGOs, and 
human rights lawyers. They cannot continue to repress them as 
enemies of the state.
    I want to briefly mention one human rights lawyer who has 
had the courage and the tenacity to take on politically 
sensitive cases, and then as a result, has been branded an 
``enemy of the state.'' I am talking about Gao Zhisheng, a 
pioneering Chinese human rights lawyer who went missing in 
February 2009. Gao represented some of China's most vulnerable 
people. They included exploited coal miners, underground 
Christians, and Falun Gong members. He believed in the power of 
the law. He sought to use the law to battle corruption, to 
expose police abuses, and to defend religious freedom.
    I have written to the Chinese Government about Gao on a 
number of occasions and have met with his wife earlier this 
year here in Washington, DC. I understand that Mr. Kamm may 
have some information from the Chinese Embassy which it 
yesterday asked him to relay to me, and I look forward to 
hearing what you have to report, Mr. Kamm.
    China has also taken many potentially positive steps in 
recent years that must be noted. The government has enshrined 
in its Constitution the state's responsibility to protect and 
promote human rights. China recently adopted new labor 
protections and relaxed restrictions on foreign journalists 
inside China. This year, the Chinese Government issued a 
national human rights action plan that uses the language of 
human rights to cast an ambitious program for promoting the 
rights of its citizens. The government now needs to translate 
words into action. It is one thing to write something down, 
another thing to represent it as having importance, yet it is 
quite another practice altogether to decide that you are going 
to abide by that which you have presented to the world.
    Let there be no doubt, I have enormous respect for the 
country of China. I respect the progress that China has made by 
lifting many people out of poverty. I admire its rich and 
remarkable culture and its immensely talented people. But I 
firmly believe that its people ought to be able to be free to 
speak their minds and to practice their chosen faiths without 
fear. Too often that is not now the case in China.
    So to help us better understand human rights conditions and 
the development of the rule of law in China, we are going to 
hear from four witnesses. John Kamm is founder and chairman of 
the Dui Hua Foundation. He started his own chemical company 
with offices in Hong Kong and China in 1979. He served as the 
Hong Kong representative of the National Council for U.S.-China 
Trade from 1976 to 1981. He was president of the American 
Chamber of Commerce in Hong Kong in 1990. He serves as a 
director of the National Committee on U.S.-China Relations. In 
1999, he founded the Dua Hua Foundation. He also directs 
ongoing research for the Project in Human Rights Diplomacy at 
Stanford University's Institute for International Studies.
    Mr. Kamm, we appreciate your being here today. You have a 
wealth of experience, and we are anxious to hear from you.
    Elizabeth Economy is a C.V. Starr Senior Fellow and 
Director for Asia Studies at the Council on Foreign Relations. 
She has taught at Columbia University, Johns Hopkins 
University's Paul H. Nitze School of Advanced International 
Studies, and the University of Washington's Jackson School of 
International Studies, and now serves on the board of the 
China-U.S. Center for Sustainable Development. Dr. Economy's 
publications include ``The River Runs Black: The Environmental 
Challenge to China's Future,'' ``China Joins the World: 
Progress and Prospects,'' and ``The Internalization of 
Environmental Protection.''
    Dr. Economy, we are pleased that you are here as well.
    Donald Clarke is a Professor of Law at George Washington 
University Law School. He specializes in modern Chinese law, 
focusing particularly on corporate governance, Chinese legal 
institutions, and the legal issues presented by China's 
economic reforms. He has practiced law at the New York firm of 
Paul, Weiss, Rivken, Wharton & Garrison. He has lived for 
extended periods of time in China.
    He is a member of the Academic Advisory Group to the U.S.-
China Working Group of the U.S. Congress, and has served as a 
consultant to a number of organizations, including the 
Financial Sector Reform and Strengthening Initiative, which is 
called FIRST, the Asian Development Bank, and the Agency for 
International Development.
    Mr. Clarke, we are pleased you are here.
    Finally, Mr. Gardner Bovingdon, Assistant Professor at 
Indiana University in Bloomington. He has taught at Cornell, 
Yale, and Washington University in St. Louis. His research 
interests are politics in contemporary China, the history of 
modern China nationalism, and ethnic conflict. His book will be 
published by Columbia University in the spring of 2010, 
``Strangers In Their Own Land.'' We welcome all of the 
witnesses today.
    Before I call on my colleagues, I want to take one moment 
to recognize another person in this room, and that is Mr. Fang. 
At the Commission's June 4 hearing, Mr. Fang Zheng, who 
recently arrived from China, was confined to a wheelchair. He 
lost both of his legs when he was run over by a tank in 
Tiananmen Square in 1989; an extraordinary, courageous citizen 
of China who, the last time he was with us, did not have legs. 
This evening at the Capitol, he will dance with his wife at a 
party in his honor. This is due to the generosity of a number 
of American good Samaritans who have provided him with a new 
set of legs. We are so pleased you are here. Would you stand 
and be recognized? [Applause].
    Mr. Fang, thank you very much. We use the word ``courage'' 
without always understanding exactly what it means, and the 
loss of your legs in 1989 in Tiananmen Square, exhibiting 
unbelievable courage in standing for the destiny of people 
being able to speak for themselves and act for themselves and 
choose their own destiny, that is courage. We appreciate your 
being here.
    Let me call on my colleagues. Congressman Walz?

 STATEMENT OF HON. TIMOTHY J. WALZ, A U.S. REPRESENTATIVE FROM 
 MINNESOTA; MEMBER, CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

    Representative Walz. Well, thank you, Chairman Dorgan, for 
your leadership.
    Thank you to all of our panelists for being here. We truly 
appreciate this. The importance of getting together and the 
importance of this Commission I do not think can be over-
stressed, and I, too, extend my welcome.
    Fang Zheng, thank you for being here. When you were here in 
June, my only disappointment was that we did not have as many 
people here or as many cameras to tell the story, and to tell 
the story to our young people of what happened.
    As we as a country develop our relationships with China, it 
is critically important that we develop them not just on the 
economic side of things, we develop them on the environmental 
side, on the moral side, the human rights side, and all of 
those together, trying to understand one another in a way that 
betters our societies for everyone.
    Yesterday, I had a unique opportunity to spend a little 
over an hour with His Holiness the Dalai Lama, and spoke 
extensively with him. When I asked the question about this 
Commission and the work that we are doing in here and the 
report that we publish, I said, ``Is this helpful for 
furthering democratic principles and human rights principles? 
'' And he didn't miss a beat and said: ``Very helpful. Keep 
doing your work. Keep doing the work and keep publicizing it.'' 
He said, ``Not just for us, not just for Tibet, but for China, 
for the People's Republic of China, to further their growth to 
bring them into the community of nations fully and for us to 
understand one another.''
    So I am proud of the work we do in here. I think that the 
Chairman has summed it up. The group that met with the Dalai 
Lama is the China Working Group in the House, and their motto 
is, kind of, it is a group of people that aren't panda-huggers 
or dragon-slayers, they're folks that want to get this thing 
right in our relationship. I'm very proud of the work of this 
group of staying consistent with our principles on human 
rights, from trade, to the environment, to everything else.
    So with that, Chairman, I thank you again and I yield back.
    Chairman Dorgan. Thank you.
    Congressman Smith?

 STATEMENT OF HON. CHRISTOPHER H. SMITH, A U.S. REPRESENTATIVE 
   FROM NEW JERSEY; RANKING MEMBER, CONGRESSIONAL-EXECUTIVE 
                      COMMISSION ON CHINA

    Representative Smith. Thank you very much, Mr. Chairman. I 
would ask that my full statement be made a part of the record, 
and I will be very brief.
    Chairman Dorgan. Without objection.
    Representative Smith. Mr. Chairman, I am afraid that what 
we have seen in China is not the emergence of rule of law, but 
rule by law. All of China's developing legal structures, 
regulatory institutions, and bureaucratic agencies do not 
amount to real law, since the Communist Party and the 
government are not subject to them. These structures are tools 
the Party and the government use to more effectively control 
people, people who want to worship freely, found families, live 
as Tibetans or Uyghurs, access the global Internet, bargain 
collectively, or choose their own government.
    Reviewing this Commission's report, I was struck by both of 
these things in respect to one of the Chinese Government's most 
neglected victims, women. With the coercive One-Child Policy, 
the Chinese Government itself intrudes in a deadly fashion into 
the private life of every Chinese woman, not numberless 
millions, but each woman with her own dignity, often distorted 
or destroyed by the government in ways we can hardly imagine.
    Few in the West, I believe, understand what a massive and 
cruel system of social control the One-Child-Per-Couple Policy 
entails, a system marked by mandatory monitoring of women's 
reproductive cycles, mandatory contraceptions, mandatory birth 
permits, coercive fines for failure to comply, and in some 
cases, forced abortion and forced sterilization.
    Women who bear a child without a birth permit can be fined 
up to 10 times their annual income, that is both husband and 
wife, and those who cannot pay the fine can be forcibly aborted 
or their homes smashed in. Group punishments are often used to 
socially ostracize women who manage to bear a child without a 
permit. Their colleagues and neighbors are denied birth permits 
as well. If a pregnant woman goes into hiding, her relatives 
are jailed.
    In every country in the world the male suicide rate is 
higher than the female, except China, where the female suicide 
rate is three times higher than the male. The estimates are 
that there are some 500 women who commit suicide every day in 
the People's Republic of China. This is to say nothing of 
gendercide, sex-selection abortion, to the point that in some 
provinces, for every 100 boys today, only 71 girls are born. 
Here, too, we see the dangerous development of rule by law, the 
development of inflated structures which continually elaborate 
rules and regulations of repression, and even shamelessly 
posting them on the Internet.
    Mr. Chairman, I do ask that the full statement be made a 
part of the record. I asked that already. Again, I want to 
thank you for having this hearing. I think it is very timely 
and important.
    Chairman Dorgan. Thank you very much, Congressman Smith.
    Mr. Kamm, thank you for being with us. You may proceed. 
Your entire statements will be made a part of the permanent 
record.
    [The prepared statement of Representative Smith appears in 
the appendix.]

     STATEMENT OF JOHN KAMM, FOUNDER AND CHAIRMAN, DUI HUA 
                           FOUNDATION

    Mr. Kamm. Mr. Chairman and distinguished members of the 
Congressional-Executive Commission on China, it is good to be 
with you again.
    In 2008, more than 1,600 people were arrested for 
endangering state security in China. That is more than double 
the number in 2007. Endangering state security is the most 
serious political crime in China, but it is by no means the 
only crime for which people are detained by China's political 
police. There are probably more people in China imprisoned 
today for political crimes since the protests of 1989, and in 
light of the disturbances that have rocked Xinjiang since July, 
the number of political prisoners is expected to rise again 
this year.
    Despite a relentless search for the names of those 
imprisoned, we know relatively few of them. The Chinese 
Government rarely discloses this information. When they do, or 
when NGOs get a hold of their names through other means, these 
names find their way onto prisoner lists submitted to the 
Chinese Government during the human rights dialogues that the 
Chinese Government holds with foreign governments.
    Prisoners who are on prisoner lists or whose names are 
raised in meetings with Chinese officials tend to be better 
treated and released from prison earlier than those whose names 
are not known and not raised. They must remain at the center of 
our human rights dialogue with China, another round of which is 
due to take place either before the end of the year or early 
next year.
    It is vitally important that the State Department submit a 
detailed, focused list of cases of concern well in advance of 
the next round of the dialogue. We should use cases to 
illustrate systemic issues, like reeducation through labor. 
Interestingly, and for reasons that are not clear, the number 
of people serving sentences in these camps appears to have 
dropped over the last year.
    Over the last 12 months, Dui Hua has obtained information 
from central and local governments on 60 individuals detained 
in political cases. In terms of the quantity and the quality of 
this information, it represents an improvement over previous 
years. Among other findings, Dui Hua estimates that there still 
are around 20 people in prison for what they did on June 4, 
1989. We urge the Chinese Government to release them.
    The effort to win the release of prisoners relies not just 
on the presentation of lists and the raising of names in 
meetings with 
Chinese officials. Over the last two years, Dui Hua has urged 
the Chinese Government to issue special pardons to long-serving 
prisoners--this is called for under China's Constitution--to 
mark either the Olympic Games or the 60th anniversary of the 
People's Republic of China.
    Now, the Standing Committee did not issue a special pardon, 
but over the last few days we have learned of some relatively 
large-scale grants of clemency in the provinces to mark the 
60th anniversary. It is not known at this point whether or not 
any political 
prisoners benefited from this clemency, but we have recently 
learned of several sentence reductions for political prisoners 
in August 2008 that were apparently linked to the Olympic 
Games.
    In my testimony, I discussed the legal experts' dialogue 
between the United States and China. Three sessions of this 
dialogue were held between late 2003 and mid-2005, and they 
focused on sentence reduction and parole for prisoners 
convicted of counterrevolution and endangering state security. 
It appears that these talks have led to a relaxation of the 
strict controls over sentence reduction and parole for these 
prisoners, but they are still discriminated against. The issue 
should be taken up again when the legal experts' dialogue 
resumes.
    Eliminating discrimination against political prisoners 
represents one of the best ways to increase the number of 
releases. Although China removed the crime of counterrevolution 
from the criminal law in 1997, there are still as many as 100 
counterrevolutionaries still in prison. This contradicts 
Article 15 of the International Covenant on Civil and Political 
Rights [ICCPR]. Urging China's ratification of the ICCPR with 
as few reservations as possible should be a high priority of 
our human rights diplomacy with China. We should use our 
membership in the Human Rights Council to pursue this goal.
    There have been a few positive steps in the direction of 
greater transparency. I have already mentioned the willingness 
of local authorities to provide information on prisoners. In 
some provinces, courts have begun releasing verdicts. 
Foreigners can attend trials in China, but rarely are allowed 
to do so.
    The number of executions remains a state secret, but the 
recent admission that executed prisoners are the source of 65 
percent of all organ transplants in China--and there were 
10,000 transplants last year--is the first time that the 
Chinese Government has acknowledged that thousands of people 
are executed every year.
    I am going to move to the end of my oral statement here. I 
would say that reducing the use of the death penalty in China 
should also be an important goal of our human rights policy.
    I end my written statement by informing the Commission of 
recent developments in the area of juvenile justice. Building a 
comprehensive system of juvenile courts and ensuring protection 
of the rights of juveniles by passing a juvenile criminal 
procedure law are top priorities of China's legal reformers. 
Dui Hua hosted a delegation of senior judges to study the U.S. 
system, and we have been invited to send a return delegation to 
China next year. We can learn from each other in certain areas, 
and it is important to find areas where we can cooperate. If we 
do, I suspect talking about those areas where we do not agree 
will be easier.
    I have enjoyed a close working relationship with this 
Commission since its establishment. I am very pleased that you 
invited me to testify again today. Thank you very much, and I 
look forward to your questions and comments.
    Chairman Dorgan. Mr. Kamm, could you just mention once 
again the numbers on organ transplants? You talked about, 65 
percent, or 10,000?
    Mr. Kamm. Yes. On August 26, the Ministry of Health stated 
that prisoners contribute 65 percent of organs transplanted in 
China. There are 10,000 transplants a year. Now, a single 
prisoner, executed prisoner, might--and in fact often does--
have more than one organ that is transplanted, so we cannot 
just use the 10,000 transplants and come up with 6,500 
executions. We estimate that about 5,000 people will be 
executed in China this year. That marks a reduction; it is 
significant, but it is still 5,000.
    Chairman Dorgan. All right. Well, thank you for the 
amplification.
    Let me also say to you that you have been extraordinarily 
helpful to the Commission.
    Elizabeth Economy is--I have already introduced you--the 
top expert in the United States on environmental protection and 
climate change policies in China, so we are really pleased that 
you've joined us. You may proceed.
    [The prepared statement of Mr. Kamm appears in the 
appendix.]

STATEMENT OF ELIZABETH C. ECONOMY, C.V. STARR SENIOR FELLOW AND 
    DIRECTOR FOR ASIA STUDIES, COUNCIL ON FOREIGN RELATIONS

    Ms. Economy. Thank you very much, Senator Dorgan and 
members of the Commission. It is a real pleasure to be here and 
have the opportunity to discuss human rights and the rule of 
law in the context of the environmental situation in China.
    Let me just note the obvious, that China is facing an 
environmental crisis. Levels of air and water pollution, as 
well as land degradation, top world charts. Somewhat less 
obvious are the critical ways in which the environment affects 
human rights, the rule of law, and broader issues of 
governance, and the ways in which human rights and the rule of 
law affect the environment. So let me just tick off three of 
these.
    First, environmental pollution and degradation are having a 
profound impact on the economic and public health well-being of 
the Chinese people. The Minister of Environment, Zhou 
Shengxian, has said that environmental degradation and 
pollution costs the Chinese economy about 10 percent of its GDP 
annually.
    For farmers on the ground, this means that they don't have 
clean water for their crops, or factory workers don't have 
water to run their factories. Estimates are that by 2030 there 
will be between 20 and 30 million environmental refugees within 
the country of China, largely because of land degradation, so 
people are losing their land, their homes, oftentimes because 
of desertification.
    The health of the Chinese people is very much at risk, and 
here the Ministry of Public Health has been very active 
recently in identifying the link between pollution and health. 
The Ministry of Water Resources says 700 million people drink 
contaminated water, water that has been contaminated with 
animal or human fecal matter, on a daily basis, and 190 million 
people drink water that is so polluted, that it is dangerous to 
their health.
    Recently, again, a study was done by the Ministry of Public 
Health that said there has been a rise in cancer in urban areas 
and in rural areas since 2005 of 19 and 23 percent, 
respectively. This, they attribute largely to pollution.
    Why the government cares about these issues is really not 
so much because of the environment or because of the health of 
the Chinese people, but because both of these issues contribute 
to social unrest. In 2006, again, the Ministry of Environment 
said there were 50,000 environmental protests in China in 2005. 
Some of these are relatively small; a protest of 100 farmers 
blocking a road because the water is polluted and spoiling 
their crops; or it could be 30,000 people storming 12 chemical 
factories, as happened in Zhejiang Province, because they 
believed not only that the pollution from the factories was 
spoiling their crops but also a particularly high rate of 
spontaneous miscarriages was occurring among the young women in 
their villages. These protests often turned violent. Recently, 
there has also been a rise in urban environmental protests. I 
am happy to discuss that, if you are interested.
    The one way in which the two are related really is at a 
very personal level for the Chinese people. More broadly, of 
course, poor human rights, rule of law, and governance impede 
effective environmental protection. There is a lack of 
transparency in China. It is very difficult to get accurate 
data.
    We saw in advance of the Olympics that the city of Beijing 
was willing to simply move the air pollution monitoring 
equipment in order to get better readings and have more blue-
sky days. This is a challenge when you're trying to implement 
effective policy; you do not have accurate data, you cannot 
make the right policy decisions. Of course, poor accountability 
and corruption is rampant. About half of the funds that are 
targeted for environmental protection end up in projects and 
other areas that are completely unrelated to the issue.
    Finally, the topic here, rule of law. China's premier 
environmental lawyer, Wang Cangfa, has said about 10 percent of 
China's environmental regulations and laws are effectively 
enforced. As we look ahead toward the issue of global climate 
change, for example, this is a very important fact for us to 
bear in mind in terms of what kind of partner China will be, 
and what we are going to need to do to help China be a more 
responsible partner.
    On the positive side, I think the environment is really at 
the forefront of governance reform. The first NGO in China that 
was formally registered in 1994 was an environmental NGO, 
Friends of Nature. There are now over 3,000 formally registered 
NGOs in China, and groups probably doubling that number operate 
unregistered. They do everything from environmental education 
to protesting dams, mobilizing large-scale Internet campaigns, 
and launching lawsuits against factories on behalf of pollution 
victims. It is a very exciting and dynamic part of China's 
civil society and of the environmental protection effort.
    In addition, over the past two years, China has adopted a 
system of specialized courts for the environment, with trained 
judges and some trained lawyers, to focus solely on 
environmental issues. Currently China has 3 of these 
environmental courts, with hopes to expand to 12 courts. The 
problem these environmental courts face right now is that 
apparently they do not have enough cases to try, which is hard 
to believe, but that is what they are saying.
    Still, it is important to bear in mind that environmental 
activists continue to get harassed and imprisoned. Tan Kai, Wu 
Lihong, Yu Xiaogang, and of course Dai Qing, are all very well-
known activists who have faced house arrest, been imprisoned, 
or been harassed. There continues to be a very fine line, an 
often moving line, over what is acceptable in terms of pushing 
for change in China and what is not. Again, I think the 
environment is very much at the forefront of this reform 
process.
    So, finally, for the United States why does it matter to 
us, in addition to our desire to promote human rights and good 
governance globally? It matters because China is now the 
largest contributor of the greenhouse gas, carbon dioxide; it 
is the largest polluter of the Pacific; the largest importer of 
illegally logged timber in the world; and generally, as its 
multinationals are going abroad into Southeast Asia, Latin 
America, and Africa, they are exporting many of what we would 
consider to be worst environmental practices, thereby having a 
very profound impact on the global environmental landscape.
    What can we do about it? We need to think very 
strategically about how we engage with China on this issue, and 
I think the environment is actually the perfect area to 
continue to promote rule of law and governance. This means 
thinking more broadly. We have many small-scale projects that 
deal with the rule of law and training of lawyers, led by 
groups such as the American Bar Association, the University of 
Vermont.
    I think we need to work together to have an environmental 
summit to bring together all of these groups that are engaged 
in these efforts and figure out what the best practices are, 
what works, and what does not work. It also means taking 
advantage of interests in China. There are model environmental 
cities. There is a Green Companies initiative with some Chinese 
companies that want to do the right thing. We should not be 
banging our heads against those in China that are not 
interested, we should be partnering with those who are. They do 
exist, and I think we need to spend more time identifying the 
most proactive partners.
    The last thing I would say is, I think there is a lot of 
interest in China now in the area of public health and good 
opportunities to work with China in this arena as well.
    Thank you.
    Chairman Dorgan. Thank you very much for your testimony.
    Finally, we will hear from Donald Clarke, and then Gardner 
Bovingdon.
    Mr. Clarke?
    [The prepared statement of Ms. Economy appears in the 
appendix.]

    STATEMENT OF DONALD C. CLARKE, PROFESSOR OF LAW, GEORGE 
                WASHINGTON UNIVERSITY LAW SCHOOL

    Mr. Clarke. Thank you. Mr. Chairman, distinguished 
Commission members, ladies and gentlemen, I am going to talk a 
bit about lawyers and the state in China.
    The relationship between lawyers and the state in China is 
quite complicated, but I think it is possible to reach a few 
big-picture conclusions, which I discuss in my testimony. The 
basic big-picture conclusion is that the environment for 
lawyers who get involved in cases or activities of any 
sensitivity--and it is important to remember this is not a 
large number--has, I think, distinctly worsened over the last 
several months.
    Since spring of 2008--I date my testimony from then because 
there is a good report by Human Rights Watch which deals with 
developments up to that time--the central and local governments 
have taken a number of steps to discourage lawyers from 
challenging the state in any significant way: formal and 
informal measures to prevent lawyers from effectively 
representing parties 
involved in sensitive incidents, and then the de-licensing of 
particularly troublesome lawyers and firms, sometimes through 
active 
disbarment and sometimes simply through failure to renew their 
licenses at an annual renewal process. I have some examples in 
my testimony.
    One well-known example is that of the Yitong law firm, 
headed by activist lawyer Li Jinsong. They represented Hu Jia, 
the HIV/AIDS activist. They represented Cheng Guangcheng, the 
well-known blind ``barefoot'' lawyer. Yitong was also behind a 
move by some lawyers in the Beijing Lawyers Association to try 
to bring more democratic governance into that organization.
    In response to their efforts in that respect, Yitong's 
license was suspended for six months. Originally Li Jinsong, 
the head of the firm, thought that would cause the firm to 
close down, but in fact the six-month period expired last month 
and they seem to have reopened. So what their future is, it is 
hard to tell.
    A very well-known example occurred in July: the closing of 
the Open Constitution Initiative run by Xu Zhiyong. Xu Zhiyong 
was then himself, at the end of July, detained and subsequently 
formally arrested on charges of tax evasion. He has been 
released pending trial. That case is still unfolding and is 
worth watching.
    The Beijing Lawyers Association case is quite interesting, 
and I have appended to my testimony three appendices which show 
in English some of the documents involved in that case. A group 
of lawyers issued a call for direct election of leaders, as 
well as some other reforms that would have the effect, they 
said, of taking power away from a small group of rich lawyers.
    The Beijing Lawyers Association's leadership did not take 
this challenge lying down and issued really a rather nasty 
response, full of all kinds of very threatening language, with 
vocabulary straight from the Cultural Revolution, accusing them 
of ``stirring up rumors,'' of ``rabble-rousing,'' ``inciting 
lawyers,'' the old lines about ``lawyers who don't understand 
the true situation being misled,'' and all that stuff. Lawyers 
were urged to maintain a correct political orientation and to 
resist the blandishments of this minority. The lawyers did not 
back down, but they lost. Again, the leading law firm behind 
this, Yitong, was suspended for six months.
    Several well-known lawyers, again, were denied licensing 
when their annual inspection process came around. This includes 
lawyers such as Li Heping and Teng Biao.
    Then also, several authorities, state and quasi-state 
authorities such as bar associations at the central and local 
level, have issued rules. Again, we see a lot of these just in 
the last couple of years, this year and 2008, essentially 
requiring lawyers to report to local authorities and take 
instructions from them when they are involved in handling 
sensitive cases, sensitive cases being defined often as any 
case involving 10 or more plaintiffs, obviously cases involving 
state security, and sometimes cases involving land takings.
    One thing that is difficult to know is what does all this 
mean and why is the government engaging in this continual 
harassment of lawyers? Does it mean that in fact lawyers can 
serve some valuable purpose for their clients? Does this mean 
that if you get a good lawyer in court, that you might actually 
get off, and therefore this is why the government is standing 
in the way of lawyers?
    I think that is probably not the explanation. I think the 
state's concern is less with what lawyers do in court than what 
they do out of it. A very persistent concern of these 
regulations we see is the concern about publicity and other 
out-of-court ways in which lawyers can promote the interests of 
themselves, their cause, and their clients. So the clamping 
down on lawyers doesn't necessarily mean they were being too 
effective as lawyers in courts, but I think it may mean they 
were being too effective as social activists who happened to be 
lawyers.
    Now, I was also asked, just moving away from lawyers, to 
say a few words about the relationship between economic crime 
and state security, particularly with respect to the Rio Tinto 
case. As Commission members I am sure are aware, there has been 
quite a bit of concern in the international community about the 
detention, and subsequent formal arrest, of Stern Hu, formally 
a PRC citizen, a naturalized Australian citizen, and Rio Tinto 
employee. He was first charged with espionage and theft of 
state secrets. These charges were later downgraded to charges 
of commercial bribery and theft of trade secrets.
    Then the question on everyone's mind is, does this mean it 
is personally unsafe to do business in China? I do not have a 
solid answer to this question, again, and that is partly 
because we do not know the merits of the underlying charges.
    If Rio Tinto was a normal business, certainly it is always 
going to be engaged in trying to find out information related 
to its business. Maybe it did nothing that would be unlawful in 
any country, maybe it did something that would be unlawful in 
any country, and maybe it did something that may not be 
unlawful in most countries, but is unlawful in China. The 
Chinese authorities have not, to my knowledge, made the 
specific factual allegations behind the charges, so we do not 
know yet. Obviously if the case ends as obscurely as it began, 
then there will be good reason for concern.
    But since I can't say much about the substance, I thought I 
might say a few words about the process. My conclusion here is 
that the case does not at this point indicate that conditions 
have deteriorated, although partly this is because there were 
already some problems beforehand.
    There is a long history in post-Mao China of 
criminalization of commercial disputes. The Rio Tinto case is 
certainly not the first. It is not surprising to read reports 
in local newspapers about the Public Security Bureau helping 
out a local company by detaining a business rival. Usually the 
detained person is ethnically Chinese. They may or may not be a 
Chinese citizen.
    I think they are particularly liable when they happen to 
have been former Chinese citizens. Detention of non-ethnic 
Chinese, in a kind of perverse reverse racism, seems to be 
rather rare, although not unheard of. What makes the Rio Tinto 
case unusual then is not that a foreign businessman of Chinese 
ethnicity has been detained, but that the case has been so 
high-profile.
    There are a couple of other rather odd features about the 
case maybe that are worth noting. First of all, bribery 
prosecutions in China tend normally to focus on the recipient 
of the bribe, not upon the alleged bribe-giver. Second, given 
that the target of the allegations is really Rio Tinto--in 
substance, it is being alleged that Rio Tinto, the company, is 
behind this--then why have only individuals been targeted and 
not the company itself?
    I should note that the authorities seem to have been very 
careful to follow legal procedures. I checked the timeline of 
Stern Hu's detention against the consular treaty between the 
People's Republic of China and Australia and they seem to have 
given notification in accordance with the provisions of that 
agreement, although stretching them as long as they could, and 
I am not aware of any other procedural violations that have 
been claimed in matters such as giving notice of charges or 
providing access to counsel.
    One thing we do not know--or at least I do not know, in any 
case--is whether there has been any division within the Chinese 
Government on this case. It is possible that the security 
services need to show that they are indispensable by making 
periodic high-profile arrests, and then of course once the 
action has been taken it is very difficult for the government 
to back down, even if other agencies think it was a bad idea.
    Certainly it will be very difficult at this point for the 
government to say it was all a mistake, sorry about that, and 
drop the charges, but ultimately, unfortunately, not much can 
be said until the government presents its evidence publicly and 
we know the sentence imposed. Again, if we never see the 
evidence, which again may be possible, then it would be 
legitimate to draw unfavorable conclusions.
    Thank you very much.
    Chairman Dorgan. Mr. Clarke, thank you very much.
    Finally, Mr. Gardner Bovingdon.
    Mr. Bovingdon, you may proceed.
    [The prepared statement of Mr. Clarke appears in the 
appendix.]

 STATEMENT OF GARDNER BOVINGDON, ASSISTANT PROFESSOR, INDIANA 
                    UNIVERSITY, BLOOMINGTON

    Mr. Bovingdon. Mr. Chairman and distinguished members of 
the Congressional-Executive Commission on China, thank you very 
much for the opportunity to come here and speak today and 
participate in this very important event.
    I would like to begin by observing, as I do in my written 
testimony, that Beijing has long challenged the assertion that 
there are universal human rights. The mildest objection has 
been that different cultures define human values and rights 
differently and these differences need to be respected. This 
line was advanced in the 1993 Bangkok Declaration on Human 
Rights, to which Beijing was signatory.
    Some critics have more sharply denounced Americans' 
criticisms of China's human rights record as interference in 
China's internal affairs. Chinese officials have long worried 
that foreign governments, including the U.S. Government, have 
invoked concern for human rights in China as a cloak for 
attempts to bring about peaceful evolution, which is an older 
expression, or the newer color revolution, both euphemisms for 
regime change.
    Similarly, officials have worried, since at least the mid-
1990s, that behind criticisms of human rights abuses in Tibet 
and Xinjiang lie plots to separate these territories from 
China. We do well to acknowledge these concerns, and therefore 
must take pains to avoid even the appearance of raising the 
matter of human rights to serve other strategic aims.
    When we speak of human rights we ought to focus, first and 
last, on ``the conditions of human flourishing, on the dignity 
and the worth of the human person,'' as the visionary Universal 
Declaration of Human Rights puts it, and not on scoring 
political points.
    I begin my remarks with these general points about the 
issue of human rights in China, despite the fact that I intend 
to speak specifically about Xinjiang and the condition of 
Uyghurs, because I have long found it remarkable how closely 
political events--and we might say political problems, 
including human rights problems--in Xinjiang track those in the 
country as a whole.
    To wit, despite the fact that Xinjiang is described 
officially as an autonomous region, its politics, its 
governance, and so forth very closely resemble those at the 
national level, leading one to ask quite seriously what degree 
of autonomy people in Xinjiang enjoy.
    This summer, on July 5, there was a major political event 
in Xinjiang. We unfortunately do not know enough to say for 
certain how the events unfolded, and I say more about this in 
my written remarks. I think it's safe to say at this point, 
though, that they began with a political protest, a peaceful 
protest, connected with the mishandling, or perhaps the 
squelching, of information about an event in Shaoguang in 
Guangdong Province in the previous month when a factory brawl 
resulted in the death of 2 Uyghurs and the injuries of at least 
100 more.
    At some point in the day, regular police and the People's 
Armed Police intervened, and one of the major questions that 
remains is whether violence by protesters led to police 
intervention or whether, rather, police intervention provoked 
peaceful demonstrators into committing violence.
    As one might expect, the Chinese Government has argued that 
the police intervened after the violence to suppress it, and 
much of the Chinese official case about what happened and how 
to handle what happened on that day has rested on that 
contention.
    Outside observers--in particular, Uyghur organizations and 
human rights groups--have argued to the contrary, that the 
peaceful protests turned into a violent riot, or violent riots, 
only because of the police intervention. As I say, we do not 
have enough information about these events to decide one way or 
the other, and unfortunately I do not think we will anytime 
soon.
    I raise this event, despite the fact that there's a whole 
year of events in Xinjiang to be considered, because I think it 
sort of signally indicates some of the problems with human 
rights that we have to be concerned about in this region.
    I would like to point out, first, that there are some small 
reasons to have hope about improvements in the human rights 
situation in the region, one example of which is the release of 
the Uyghur economist and Beijing professor, Ilham Tohti, who 
had been detained once previously in connection with his blog, 
and was detained again after the July 5 events on the 
suspicion, on the contention that he had helped organize the 
event.
    We have been charged with talking about how the United 
States can hopefully engage. Mr. Kamm has already pointed out 
that the United States has helped the plight of political 
prisoners and detainees by making it known that it is 
concerned, and in this case it is widely thought that the Obama 
Administration's expression of concern led to Tohti's release.
    Similarly, within only a few hours after the emergence of 
the events on July 5 this summer, Beijing made the happy 
decision to invite foreign reporters to Xinjiang to observe and 
inquire about what had taken place. I think this stands in 
marked and happy contrast to the media blackout that followed 
the Tibet protests of 2008. It is to be celebrated, and one can 
hope that Beijing will take this step in future episodes, 
should they have them.
    On the other hand, there is plenty of discouraging news 
about the human rights situation in Xinjiang that we can glean 
from these events and their aftermath. First of all, within 
hours of receiving information that there were protests taking 
place in Urumqi, the government in Beijing decided to shut down 
Internet service, to curtail cell phone service, in particular, 
to close down the capacity to make international calls, and to 
close various text-messaging services.
    The expressed reason was that the government was worried 
that various malign perpetrators were using these means to 
circulate information about what was going on and to drum up 
participation. I think we can easily imagine other purposes. 
One reason that I think we are entitled to imagine that other 
purposes include a desire not to have information about these 
events get out from the region to other parts of the country 
and abroad, is that in that service, at least at major news 
sites and government sites, continues to be closed down. I 
checked this morning and confirmed that various sites in 
Xinjiang remain closed, and it's hard to understand why they 
would remain closed all this time later if the principal or 
sole concern was to prevent further violence.
    Next, we would want to observe the wide and rather 
indiscriminate use of detention and arrests in response to 
these political protests. Mr. Kamm has already spoken about 
political prisoners. Unfortunately, as he mentioned, a 
substantial proportion of political prisoners in recent years 
have been Uyghur.
    Let me just hit some bullet points.
    As Professor Clarke was mentioning moments ago, lawyers 
have received pressure when they consider taking on cases with 
human rights implications. This has unfortunately been the case 
in Xinjiang, where lawyers have been instructed to exercise 
extreme caution taking on cases, and to submit to supervision 
from digital organs, the very clear aim being to prevent them 
or to discourage them from engaging cases with human rights 
implications in the aftermath of these events.
    I want to close, finally, by pointing out that there has 
always been a problem with how we understand human rights, a 
problem with policy implications. That is whether we think that 
they inhere in individuals only or whether they also inhere in 
groups, because if they do inhere in groups then there are 
other issues we might want to raise, such as, for instance, 
those of political representation, how well and in what way 
Uyghurs' political aims are represented in government and party 
organs, also the matter of language use, about which I can say 
more in the question period, and then finally the broader issue 
of cultural integrity. Once again, I thank you for the 
opportunity to speak and I welcome your questions.
    [The prepared statement of Mr. Bovingdon appears in the 
appendix.]
    Chairman Dorgan. Mr. Bovingdon, thank you very much for 
your testimony.
    Mr. Kamm, as you know, the Commission maintains a database 
of political prisoners. In fact, I didn't hold it up, but this 
is a printed copy of the Commission's database of political 
prisoners. It's pretty ominous when you think that each of 
these pages contains multiple names of prisoners, with dates. 
It is perhaps the best compilation in the world of this kind of 
information. It is very important to maintain.
    These individuals have been imprisoned for exercising civil 
and political rights under China's Constitution and laws or 
under China's international human rights obligations.
    You have provided information to us and been helpful to us 
with respect to this information. We have previously had 
discussions about Mr. Gao. Do you have any additional 
information about Mr. Gao?
    Mr. Kamm. Yes, Mr. Chairman. Before I convey that 
information to you, I would like to acknowledge and recognize 
the efforts you have made on behalf of Mr. Gao and his family. 
If he survives this ordeal, it will be, in my opinion, no small 
measure due to your relentless efforts on his behalf. So, thank 
you for that.
    You probably know, as other Commissioners know, that for 
almost 20 years now I have been engaged in a long-running 
conversation with the Chinese Government about their prisoners. 
I understand I am one of the few people that they regularly 
talk with about their prisoners and provide information on a 
regular basis. As I just mentioned in the testimony, we have 
received information on 60 different cases over the past year.
    One of the channels for this information--just one of the 
channels--is the Chinese Embassy. Yesterday, at one of my 
regular meetings with the Embassy, I was provided with the 
following information on Gao Zhisheng. I understand this is the 
first time the Chinese Government has provided information on 
his current situation.
    I was told that Mr. Gao was permitted to return to his home 
village in Shaanxi Province at the end of June to pay respects 
to his ancestors. As you may know, it is a traditional Chinese 
custom that, twice a year, you attend to the graves of your 
ancestors. So he was permitted to return to his home village at 
the end of June. The official went on to say that he has not 
been mistreated, he's fine, and that he is not subject to what 
was termed ``compulsory'' legal measures. I am just relaying 
what was said.
    Now, apart from the Chinese Government, we do have one 
other bit of information about Mr. Gao, and it has been 
released by his friend and lawyer Teng Biao on his blog, so 
it's in the public record, although not necessarily easily 
accessible. Mr. Teng has reported on his blog that, in July, 
Mr. Gao was allowed to make a phone call to a relative. So what 
we can, I think, reasonably conclude from this is that, as of 
10 weeks ago, Mr. Gao was alive. That's the good news.
    Unfortunately, we still do not know his whereabouts. There 
is still a great deal of concern for his well-being, obviously. 
Finally, we have no idea on what basis he is being held. We are 
basically being told that he is not being held by legal means, 
which leads one to a conclusion that however he is being held 
is not legal. So that's basically the information. It's the 
first information we've had in many months of trying.
    I would just close very quickly by pointing out--and 
especially with Mr. Smith here I feel compelled to do so--Mr. 
Gao is by no means the only person who has been disappeared in 
China for a long period of time. This is the 12th anniversary 
of the disappearance of Bishop Su Zhimin. He has been 
disappeared for 12 years. He is the leader of the Catholic 
underground church in China. I certainly hope that this is not 
Mr. Gao's fate, and that with your efforts he will be free long 
before that.
    Chairman Dorgan. Mr. Kamm, thank you very much for that 
answer. In some ways it is encouraging, because we don't know 
the whereabouts of Mr. Gao, we don't know what he is charged 
with. We do know that he was abducted from his home after his 
family escaped China. We do know that he has previously been 
incarcerated and tortured in China, and we also know that his 
behavior was the behavior of a lawyer who had a law office, 
doing professional work in support of people who needed the 
help of a lawyer, and for that he apparently has been once 
again incarcerated.
    Our intent obviously is to shine a light into the darkest 
cells in China to provide some hope to those who have been held 
and detained, in many cases for many years, and in some cases 
tortured for believing in basic human rights for all citizens 
of China. So I appreciate your comments.
    I would say to the Chinese Embassy here in the United 
States, the responses I have received from them about Mr. Gao 
are wholly unresponsive and unsatisfactory to me and to this 
Commission. We would hope that the Chinese Embassy and the 
Government of China would take seriously our concerns about Mr. 
Gao, and we hope for some additional information. But we thank 
you very much for providing the information you have provided 
to us today.
    Ms. Economy, we hear a lot these days, especially in the 
context of the debate over climate change in this country, that 
we had better hurry because the Chinese are moving very quickly 
toward a green economy. They will become the leaders of green 
jobs in a green economy, and all the new technology and so on 
if we do not rush very quickly. In fact, it may be too late 
already. You have heard all the dialogue, and so on.
    As I understand your testimony, you are saying China has 
passed over 100 environmental laws, hundreds of regulations, 
but the challenge is implementing them. Then I would also say, 
in the context of your answering me, you know that President 
Hu, in a speech at the U.N. Climate Change Summit, stated that 
China will ``endeavor to cut carbon dioxide emissions per unit 
of GDP by a notable margin by 2020 from the 2005 level.''
    So tell me, you are the expert in our country about these 
issues. Tell me what is happening in China. Are they taking a 
lead? Is this serious? Are they on the level? What is going on?
    Ms. Economy. Thank you very much for that excellent 
question. I think there are two things that are going on when 
we hear and read about China taking the lead in terms of 
transforming their country into a green economy, taking the 
lead globally. On the one hand there are many actors in the 
international community who like to encourage China by 
applauding them before they actually take action as a mechanism 
for encouraging them to then take the action. I think in many 
cases people get ahead of themselves.
    The international reaction to President Hu's speech is the 
perfect example of that because reducing carbon emissions per 
unit of GDP is really nothing more than what they already have 
outlined in their Five-Year Plan. It's nothing new. People 
mistook it also for cutting carbon emissions rather than 
cutting the growth in carbon emissions, two very different 
things. So I think it is important to look very closely at what 
President Hu has promised, and then again at the reality of the 
situation.
    I think the other thing that people often mistake is the 
fact that China is already a leader in manufacturing, for 
example, of photovoltaic cells. About 97 percent of the 
photovoltaic cells China produces is exported. So, yes, they 
are a leader in manufacturing. But they are not a leader in 
actual implementation. Furthermore, when you look at China's 
implementation of environmental technologies writ large, 
putting aside what might be relevant to global climate change, 
there was a great MIT study that just came out last year on the 
implementation of China's regulation in desulfurization 
technology for coal-fired powerplants. This technology limits 
SO2 and acid rain. They found, in the 85 powerplants that they 
surveyed, virtually none of them actually used the scrubbers 
that were there because they lower the efficiency of the 
powerplant making it more expensive to operate.
    Frankly speaking, we ought to be concerned about our 
competitiveness. We ought to be moving very quickly ahead on 
pursuing green technologies for our own economy, for our own 
jobs, for our own manufacturing center here in the United 
States. However, I do not think that we are going to be looking 
at China as a leader on the issue of global climate change 
anytime soon.
    Chairman Dorgan. I had read that the Chinese emit twice the 
amount of CO2 per ton of steel produced than the United States. 
Do you know whether that's the case?
    Ms. Economy. I would guess--I haven't heard that precise 
figure, but in general, Chinese industries use between four and 
seven times more energy than those in the United States and 
Japan, so that seems like a perfectly reasonable assumption to 
make, although that is an area that they are targeting very 
heavily and the Japanese are helping them a lot, with improving 
the energy efficiency in their steel industry.
    Chairman Dorgan. Two other very brief questions and then 
I'm going to call on my colleagues and that will end my 
questioning.
    The increase in arrests last year, 2008. Could at least a 
portion of that be attributed to the Olympics? Can anyone 
answer that?
    Mr. Kamm. Certainly there were detentions and arrests 
around the time of the Olympics, but I really think last year 
the main reason was the disturbances in Tibet. A great many 
people were detained and formally arrested, charged, and tried. 
So you would see those in the 2008 numbers. And in Xinjiang. 
Very interestingly, in November, an official in Xinjiang gave 
some numbers for the number of people arrested in endangering 
state security cases in Xinjiang, and it was a very big number.
    Chairman Dorgan. I thought I had heard that endangering 
state security was some of the general charges of people they 
rounded up during the Olympics because they didn't want them 
around when a bunch of visitors showed up.
    Mr. Kamm. Yes. And petitioners as well. You see, what 
they've done--without going into a lot of detail--they've 
restricted the use of ``endangering state security'' to the 
most serious political crimes, but then you have the whole area 
of ``disturbing the social order.'' So, for instance, Falun 
Gong. Most Falun Gong practitioners are charged with disturbing 
the social order. In the old days before they took 
counterrevolution out of the criminal law, Falun Gong would 
have been considered a counterrevolutionary group.
    Chairman Dorgan. All right.
    And finally, Mr. Clarke, are those who are in law schools, 
do you think, in China and on the road to becoming lawyers, are 
they observant of what is happening to lawyers like Mr. Gao who 
have their law firms shut down and their licenses suspended and 
thrown in prison? Does that have a substantial chilling effect, 
despite what they're being taught in law school about 
guarantees for prisoners and so on? Tell me, what are the 
consequences of that with those that are being trained in the 
law?
    Mr. Clarke. I have to plead a little bit of ignorance on 
that. I don't have a really solid answer to that. My guess 
would be that there is a group of law students who are of 
course quite idealistic, as there are in any country. But I 
think it would be a mistake to think that the vast majority of 
law students are idealistic and are looking at this kind of 
thing, or even particularly worried about it. I think a lot of 
people's ambition is to try to have a good life for themselves 
and to get along.
    If I could just supplement a bit what John just mentioned. 
One of the differences also between locking people up under the 
rubric of endangering state security and doing it under this 
general rubric of disrupting social order is that a completely 
different procedure applies. Endangering state security is a 
criminal charge. If the issue is people such as Falun Gong 
adherents, if you can say it's something like disturbing social 
order, then you get to use the extremely elastic and forgiving 
rules of reeducation through labor, which is an utterly 
different procedure and really has very little realistic chance 
of an appeal.
    Chairman Dorgan. All right.
    Congressman Walz?
    Representative Walz. Thank you, Mr. Chairman. Again, thank 
you all for your continued work. Just a couple of questions.
    Mr. Kamm, we were talking on the prisoner list, and I 
appreciate your work on this. You mentioned in there how to get 
that more refined, focused, and better. Are we doing it right 
or is there something else you'd rather see? How do we make 
this list even better? In addition to trying to capture 
everyone, how do we make it better, in your mind?
    Mr. Kamm. Well, again, I would look at systemic issues and 
then raise cases. Now, Congressman Smith just talked about 
forced abortions and sterilization. Where women are in prison 
or in RTL, reeducation through labor, for violating birth 
control policies we can explore a systemic issue by raising 
cases. There's an expression in Chinese, yi an shuo fa, which 
means speak about the law by referring to cases. I use it all 
the time when I speak to the Chinese. That's one example.
    I just mentioned reeducation through labor. So when we talk 
about the systemic issue of reeducation through labor, we ask 
about a dozen or two dozen examples. So this is a way of tying 
cases to systemic issues. Often I and others are criticized as 
being focused on individual cases and not talking about 
systemic issues. One way to get around that is to use cases to 
illustrate systemic issues.
    Another very good example is the death penalty, but in 
those cases, of course, I'm afraid it's usually too late to 
raise the prisoner's name. But last year there was an unusual 
case that enabled the outside world to actually have a look at 
how capital punishment is carried out in China, and last year 
we had one such case, a man who, for endangering state 
security, was executed.
    He was the father-in-law of an American citizen and the 
daughters were EU citizens. It was quite a case. But because of 
his children's brave actions, we were actually able to track 
that case right through the process of the man's arrest, trial, 
appeal, review, and finally execution itself, and we learned a 
lot. So that is what I would do a little different than we're 
doing now.
    The other thing, if I may, very quickly, more and more, Dua 
Hua's lists are focused on provinces, that is, we take a 
province and we build a list of 15 or 20 names in that 
province. That, too, is a good way to go forward. There is 
considerable differentiation in how prisoners are handled at 
the provincial level in China. The regulations on sentence 
reduction and parole differ from province to province, so 
again, what we've been doing is getting information from 
provinces. Over the last year, I think we received information 
from seven different provinces.
    Representative Walz. Well, I appreciate it.
    Let me segue a little bit to you, Mr. Bovingdon, as a 
teacher and someone who did some work in genocide studies, your 
excellent preparatory set on human rights and this issue of 
group rights and teaching of the universal declaration, as 
we're required to do.
    My question is just an observation from you of what you've 
seen. Being in Tibet and in Urumqi in the 1990s--I was in 
Urumqi six, seven years ago--how different is it today, in your 
opinion? What I saw was not just modernization. I saw the 
cultural shift, or the culturacide, if you may, in both places. 
Would you say that that's coming to a peak? Is that the 
realization of what's happening amongst Uyghurs and amongst the 
folks in Urumqi?
    Mr. Bovingdon. It's an excellent question. It's also hard 
for me to answer, and I'll explain why. First of all, I wasn't 
there when you were in the 1990s. I first went to Urumqi in 
1994. I have never been to Tibet, although I have many 
colleagues who have.
    I can certainly say that in the time that I was able to 
visit that region, I observed dramatic change. The most 
obvious, if one came in on a helicopter, for instance, would be 
the architectural change of the city. Enormous districts with 
old-style Uyghur buildings were simply razed to the ground and 
replaced with highrises and modern apartments, much more 
expensive than their predecessors. Old, small shops were 
replaced with large, modern-style shopping malls. I think the 
economic and cultural implications of these architectural 
changes are clear.
    Another thing that many observers have pointed out is that 
the demographics of Xinjiang have changed dramatically. In 
1949, about three-quarters of the population was people we now 
know as Uyghur, and today, officially they number about 43 
percent, although the figure is probably lower than that. There 
are some reliable demographers who suggest that the Han 
population in Xinjiang is now over 50 percent. It is 
unambiguous, the Han population in Urumqi and other large 
cities is very substantial. Urumqi is over 75 percent Han at 
this point.
    Representative Walz. Yes.
    Mr. Bovingdon. So these are two of the most conspicuous 
changes one can see.
    Representative Walz. That pattern is very similar to what 
happened in Lhasa. Very similar. Okay.
    A couple of questions, Dr. Economy. I appreciate your work 
on this, this issue of environmentalism and trying to bring 
China in, as I said, as we all try and work together. We have 
all seen the nightmares. I've been to the electronic dump sites 
in Guangdong Province. But we are culpable in that. Our 
culpability is very high in that, this issue of this 
interconnectedness as we deal with climate change, as we deal 
with ecosystem degradation.
    I had the chance last night--I was speaking--it was Klaus 
Schwab and his folks from the World Economic Forum. Is that the 
right forum to get this done? Is that the right way to carrot 
and stick at the same time, as they're starting to bring in 
their 85 or so different issues, much of it focusing on climate 
as it comes together with economic development? Do you think 
that is a way to go to get this, other than you won't dump 
computers even though they're our computers and we don't want 
to dump them here, type of thing?
    Ms. Economy. Just to clarify, your question is whether the 
World Economic Forum and their effort----
    Representative Walz. Yes. Do you think that is the right 
forum to effect positive change, in your mind as you see this?
    Ms. Economy. Since I'm part of the China Council for the 
World Economic Forum.
    Representative Walz. Which I did not know, so it wasn't 
planned.
    Ms. Economy. So there you go. I would like to say yes, yes, 
indeed.
    Representative Walz. Okay.
    Ms. Economy. I think it's a good way to move forward. I 
think the challenge for the World Economic Forum, and in 
general, again, is in moving from what are really good 
discussions with really smart people to actually getting things 
done. The advantage of the World Economic Forum is that you not 
only have thinkers but you also have many companies involved, 
many great corporations.
    Representative Walz. Is it your experience the Chinese are 
less resistant when it comes from that forum?
    Ms. Economy. Certainly, because they are lauded at every 
turn. I was just in Dalian for the meeting of the World 
Economic Forum and it was really a grand celebration of China. 
So I think they are very warm and welcoming for the World 
Economic Forum and the way that the World Economic Forum 
couches its messages. Yes.
    Representative Walz. Well, I appreciate that.
    I yield back, Mr. Chairman. Thank you.
    Chairman Dorgan. Thank you very much.
    Congressman Smith?
    Representative Smith. Thank you, Mr. Chairman.
    Let me, first of all, Mr. Kamm, thank you for your 
tremendous, extraordinary work on behalf of prisoners. I think 
your answer to Mr. Walz was a very fine way of setting up how 
we ought to be talking about prisoners, and doing it 
thematically. You talked about a thousand prisoners, and you've 
gotten responses for about half of those, over half. That is a 
remarkable record. Congressman Wolf and I, actually right 
before the Olympics, brought the Commission's list of prisoners 
with us to China. We haven't gotten word back on a single 
prisoner and it is not for trying.
    You mentioned Bishop Su of Hebei Province. I actually met 
with him in the early 1990s and he celebrated mass in a very 
small apartment, only to be recaptured, reincarcerated, re-, we 
think, tortured, because there were some sightings of him with 
puffed up cheeks and very significant harm having been done to 
him.
    I raise Bishop Su's case every time I have a meeting with 
any Chinese leader and they either ignore it or say they'll get 
back and they never get back. So we don't know if he's dead or 
alive. But it's emblematic, I think, and symbolic, if you will, 
of just how much they have tried--they being the Beijing 
dictatorship--to crush religious belief outside of the patriot 
church, outside of the officially recognized churches.
    This man was perhaps the kindest, gentlest man I have ever 
met. His eyes were crystal clear. He had no animosity 
whatsoever toward the Chinese. He had already spent decades in 
the prison camps, and he told me how he prayed for those who 
were following the dictates of the Scriptures, for those who 
maltreated him, and prayed for his people. It was moving. Yet, 
they severely mistreat this man. So, thank you for raising his 
name again at this hearing, and for the tremendous work you do 
on political prisoners.
    You mentioned the signing of the International Covenant for 
Civil and Political Rights. It seems every time a Chinese 
leader makes his way to Washington, there's a new buzz about 
how, when they signed it, or they were going to sign it, then 
they signed it, and no ratification. We'll probably hear about 
a potential ratification next time somebody comes to the United 
States. They seem to be gaming us, and we keep taking the bait.
    I am worried--and if any of you would want to touch on 
this--has our super-reliance on the Chinese buying our debt 
either silenced or muted our voice on human rights? It seems to 
me that when Mrs. Clinton--and I say this with all due respect 
to the Secretary of State--en route to China, said we will not 
allow human rights to ``interfere with global climate change,'' 
which I am very concerned about, and other issues, the debt 
being another one, it is as if it was put, not in the back of 
the bus, but off of the bus. They take their cues, I think, 
from how we regard it. So, our reliance on debt, what is that 
doing to our dialogue in human rights?
    Second, and Mr. Clarke, you might want to speak to this as 
well, or any of our distinguished panelists, I remember when 
Rebiya Kadeer first came out, and she, like Wei Jingsheng and 
others, couldn't be more emphatic that forced abortion is one 
of the cruelest crimes against women imaginable, and both of 
those individuals were shocked that we never talked about it 
here, except in a very limited set of circumstances. It wasn't 
like it was a mainstream human rights abuse. They thought that 
we all knew about it and were very well-versed in it, and so 
many Members of Congress, frankly, are not.
    If a woman in China gets pregnant without having secured 
permission from the state and is ordered to abort her child 
against her will, does she have any legal remedies available to 
her, and have any of our U.S. lawyers or the dialogues, the 
programs we participate in, explored ways of legally assisting 
a woman who is in that situation, to say we're here to be your 
advocate? The United Nations has dropped the ball.
    All of the expert bodies have yet to take up, including the 
Human Rights Council, these crimes against women and against 
children. It seems to me that in our dialoguing with lawyers, 
we know about Chen Guangcheng and the price he's paid, but it 
seems to me it would be a great place, an entry for saying, 
let's take up these cases. If a woman is willing to stand up 
and say I want this child not to be killed, we should stand 
with her.
    Then finally, on the whole issue of the prisoners you 
mentioned, Mr. Kamm, who were executed to get their organs, 65 
percent of the organ transplants being derived from there, I 
had a hearing in May 1997 on the very issue. Harry Wu actually 
brought in a man who had documentation that was very 
significant that showed that prisoners were being shot, but not 
killed. Ambulances were waiting--and he had pictures of all of 
this and it seemed very credible--in order to take their 
organs.
    The Chinese Government said it was a lie, it was 
misinformation. Now they're willing to say at least 65 percent 
of those organ transplants are derived from prisoners. Why the 
change? Do they feel that the atmosphere has so changed and 
nobody cares? What would be your reason? I mean, that hearing 
to me--the man who gave the testimony, we did it behind a 
screen so there wouldn't be retaliation. I mean, it was very 
cloak-and-daggerish, if you will, to protect his identity. 
Harry Wu, again, was the one who helped get him out. The 
Chinese Government said no way, and now they're admitting it. 
If you could give any thoughts on that. Did you want to touch 
on that?
    Representative Walz. If I may, this is an interesting 
point. When I was living in China in 1989, I had a friend who 
was a physician and was trying to secure permission. He asked 
if I would like to go to one of these executions. I'm not quite 
sure why he assumed that I would participate in that. But it 
was absolutely no secret whatsoever. At that time it was 
happening he was doing kidney transplants, and he thought 
nothing of it. This was a good man, but the system was so 
prevalent, as my colleague is saying, that it was common 
knowledge. So I'm very interested in this, too. What's changed 
in, now, something that all of us knew was there, and now 
they're willing to say, yes, it's happening?
    Mr. Kamm. It's a fascinating development, and I wish I knew 
why. But it's quite a striking admission after years and years 
of denying it was going on. As I say, the number of executions 
is a closely guarded state secret, on a level with the number 
of nuclear warheads. It's a very serious top secret.
    So when you make this kind of a statement, you are all but 
admitting that thousands of people are being executed every 
year, which is what the human rights groups have been saying 
for a long time. Why make this admission? I wish I could tell 
you. Why do they tell me about prisoners? I'm always asked 
about that. Why yesterday, finally, after eight months, do they 
reveal something of importance and interest? I really don't 
know. It's just, I guess, something I've been doing for so 
long, that that's what I do and they interact with me in that 
way.
    If we can be hopeful, the greater the transparency, the 
faster that human rights reform will come. The Chinese 
philosopher Confucius, over 2,000 years ago, spoke about the 
need for transparency in government. It's a longstanding 
traditional Chinese virtue in the area of governance.
    I hope we're going to see bigger steps in the direction of 
greater transparency. And if there is one thing we can do in 
our work with China, whether it's the human rights dialogue or 
the legal experts' dialogue, or any other dialogue, the number-
one priority should be to promote transparency, because when 
the Chinese people themselves see things, they themselves will 
be tempted to move in the direction of reform. So, 
transparency, number one.
    Chairman Dorgan. I want to allow Mr. Honda to ask a 
question as soon as you are done, Mr. Smith.
    Representative Smith. If you could, on the training up of 
lawyers to help women who would like to fight to preserve the 
life of the child within them.
    Mr. Clarke. Sure. I can say a few words about that. Forced 
abortions, technically under Chinese law, are not permitted. I 
mean, if it were forced, it would count as an assault under the 
Criminal Law of the People's Republic of China.
    However, as a practical matter, there aren't really any 
legal remedies. So a court could not step in, a court would not 
step in in these cases, I think. This is precisely the sort of 
thing that got Cheng Guangcheng into trouble. Part of the 
reason is that local officials are graded very strictly on the 
number of extra-quota births in their district. Nobody wants to 
know why there were extra-quota births. The point is, if there 
are any, that implicates what is called the ``one-vote veto.'' 
No matter what else they might have done in their district, if 
they have out-of-quota births, I believe that that prevents 
them from advancing further. But perhaps any of the other panel 
members who know the system for grading Chinese officials a 
little more intimately than I do can speak to that.
    I do want to address your first question, even though I'm 
not an expert on international finance. For that question, do 
we in fact rely on China to buy our debt, I think you really 
need expert testimony. But here's what I think an expert on 
international finance would say, since I've done some reading 
on this.
    That is, of course you have to be nice to your banker, but 
only if two conditions apply, which are: (A) your banker has 
many choices about to whom to lend; and (B) you have no choices 
about from whom to borrow. I don't think either of those 
conditions actually hold. China really doesn't have a choice 
except to lend us this money. They will be able to choose not 
to buy U.S. debt at the same time they choose not to run a 
large bilateral trade surplus with the United States. So China 
really doesn't have any choice. There's no other place for 
those dollars to go.
    Second, with the U.S. savings rate rising as it is, the 
deficit does not need to be funded by the Chinese, it can be 
funded domestically. So those are my very brief, inexpert 
answers. But I do not think that we in any sense need to be 
nice to China because otherwise they will stop buying our debt, 
because I don't think they're in a position to choose simply to 
say, we're going to stop buying American debt.
    Representative Smith. Thank you.
    Chairman Dorgan. Congressman Honda?
    Representative Honda. Thank you, Mr. Chairman. I appreciate 
the experts here.
    Mr. Chairman, if I just may ask my questions. I have to go 
and defend my bill in five minutes. Then I'll get my answer 
through the transcripts and I'll chat with my colleagues also.
    But a couple of questions, and they're related. Yesterday I 
had an opportunity to chat with the Dalai Lama. I think in 
prior CECC meetings we spoke of Tibet, the Dalai Lama, and the 
PRC Government, and the friction that exists between the 
government and the movement that the Dalai Lama is the head of.
    It seems to me that when I met with the embassy folks from 
the PRC, the final conclusion I came to was that they're more 
afraid of the Dalai Lama's area of religious influence that he 
has, which appears to be about a fifth of China's land mass 
rather than just Tibet itself. I was wondering how one can be 
effective in promoting some access or some process of 
confidence building and trust building between the two parties. 
That's my first question.
    The other is, we've had pretty important recent 
opportunities to partner with the PRC on renewable energy 
technology where Commerce Secretary Locke and Energy Secretary 
Chu went to China and came back with a potential agreement, 
being able to establish a Memorandum of Understanding in 
developing technologies together, solving some of the thorny 
problems of global warming, but solving in a way where we will 
be working together with them, developing technologies and 
sharing the intellectual property rather than protecting and 
fighting with each other.
    Do you see this process as a model where we can start to 
look at developing not only trust, but a better working 
relationship? Because I suspect that they also do not trust us 
in terms of some of the things that we criticize them for. We 
were the first to be polluters, and now they're catching up, 
for the very same reason: the thirst for energy. We have green 
technology. They need it, and we need to share that. The 
dynamics aren't simple, but I suspect that we're capable of 
solving it if we put our minds to it.
    So I was hoping that maybe you might be able to comment on 
some ideas or thoughts that you may have had relative to this, 
building this mechanism with trust that will permeate in other 
areas of both societies. I'll read my answers in the 
transcripts. Thank you.
    Mr. Bovingdon. Representative Honda, thank you very much 
for those interesting questions. I will attempt to address the 
first one about Tibet. I'm afraid it's hard to be very 
optimistic that the United States might somehow encourage China 
to engage with the Dalai Lama and the Tibetan government-in-
exile in a more extensive and positive way, for the following 
reason: though the Dalai Lama announced in Strasbourg in 1988 
that he no longer advocated independence for Tibet, and he has 
for years called merely for full autonomy or a substantial 
degree of autonomy, Chinese Government officials, including, if 
I'm not mistaken, Li Zhaoxing, a few years ago, have continued 
to accuse him of being a separatist. In fact, they've said that 
there has never been a day when he hasn't been working to split 
Tibet from China.
    Furthermore, while the Dalai Lama or his agents have met 
with various officials in the Chinese Government, neither the 
government nor any particular Chinese official has ever 
acknowledged that they were meeting with him as a 
representative of the government. They've always said that they 
were meeting with him as an individual or with his 
representatives, the very clear point being to prevent anyone 
from drawing the conclusion that Beijing recognizes him or the 
Tibetan government-in-exile as a legitimate political 
organization, as a legitimate interlocutor in a discourse that 
might take place about events inside Tibet.
    I don't, to be honest, see any way of getting Beijing 
either to credit the Dalai Lama with walking back a great 
distance from his original political formulations before 1988, 
or getting Beijing to recognize that there is a legitimate 
conversation partner outside China to be speaking about events 
in Tibet.
    One further point that I would make. Representative Honda, 
I think, accurately suggested that the Dalai Lama has very wide 
political influence. One thing that was conspicuous last year 
was that the March 2008 events were not confined to Tibet. They 
began there, but they spread to regions that a specialist on 
Tibet described as ethnographic Tibet, including parts of 
Sichuan and Hunan Provinces and Xinghai County.
    This was, in fact, surprising to me and other observers who 
have long focused on the politics of non-Han areas, areas where 
non-Hans predominate, because it suggested on the one hand a 
level of political bravery in the face of almost certain 
retaliation, and on the other hand, a wider catchment of 
political influence and concern about the fate of Tibetans than 
we might have anticipated before.
    So to make one final point about the Dalai Lama, when he, 
as he often does, argues that he attempts to speak or he 
attempts to represent not only Tibetans in Tibet, but Tibetans 
in all of ethnographic Tibet, I think he makes an important 
point that should be recognized. Unfortunately, I think there 
is very little percentage, for reasons I've already mentioned, 
in trying to get Beijing to recognize that ethnographic Tibet 
is a meaningful political area as a whole. I'll stop my 
comments there.
    Ms. Economy. Very briefly, to Representative Honda's point 
about the potential for cooperation on renewable energies 
between the United States and China, and indeed not only the 
most recent venture with Secretary Locke and Secretary Chu 
establishing a $15 million joint energy research center, but 
also the work that was done by Secretary Paulson previously 
within the Strategic Economic Dialogue to develop joint 
projects, such as electric cars.
    They're all very important, and I hope that some of them 
actually move forward to fruition. I think there's a great 
challenge in establishing these joint projects and then 
actually seeing them come to be. I think it would be worthwhile 
to look already at what we have set in motion and see how it's 
progressing. I would make one further point; that $15 million 
in an area that is going to need billions of dollars of 
technology investment is really a drop in the bucket. But, of 
course, any step forward is a step forward.
    Just one small point on Representative Smith's point about 
the debt. I think Don is absolutely right in the technicalities 
of how the debt works and the Chinese don't have any other sort 
of option right now. That doesn't mean that the Chinese don't 
perceive it as a source of leverage.
    In virtually every discussion that I have with Chinese 
officials these days, the first thing out of their mouth is, 
that ``We are your banker, in essence, and the Chinese people 
are depending on you to secure our investment,'' and so on. So 
I think that there is something to it.
    I would hazard a guess that it's not that the 
administration is trading the debt issue, per se, for human 
rights, but rather that they perceive a very broad range of 
issues on which we need to cooperate with China, from trade and 
IPR [intellectual property rights], to proliferation, North 
Korea, et cetera, and that human rights is one among these 
issues and that they don't want to grant it super status. But 
maybe the point is being missed that in many respects these 
issues of rule of law and human rights and good governance are 
fundamental to almost any of those issues and to our successful 
cooperation.
    Chairman Dorgan. Mr. Wu, you are recognized for your 
questions.

STATEMENT OF HON. DAVID WU, A U.S. REPRESENTATIVE FROM OREGON; 
      MEMBER, CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

    Representative Wu. Thank you very much, Mr. Chairman.
    I want to apologize to the panel. I am supposed to be in a 
markup, and theoretically I'm there right now. But Members of 
Congress being who they are, I think the chatting will continue 
for a while. I just want to make a couple of remarks, and 
perhaps to the extent necessary or appropriate, perhaps the 
panel wants to comment.
    I want to recognize Mr. Kamm's longstanding good work with 
which I was familiar before I came to Congress. Professor 
Clarke has been helpful to my office in some of the work we've 
been trying to do to recognize the century mark for some of the 
law schools in China, which, over the long haul, hopefully will 
be very helpful to the development of the rule of law in a very 
large country. That is actually an idea which I carried away 
from the last Commission hearing.
    But, first, one comment from decades ago. In the early 
1980s, I went to China. I was with some relatives. One of them 
said, ``I bet you had an easy time at the border this go-
round.'' I said, ``Well, what makes you say that? Because I did 
have a relatively light and easy time at the border.'' He said, 
``Well, the official situation between our governments is a 
little bit testy right now, so what our government does is it 
tells the border guards to be nice at a time when the official 
situation is a little bit tougher.'' I don't know if it's that 
formal, but at least that is the domestic Chinese perception 
of, if you will, the Ying and the Yang of this relationship.
    Since, among other things, our head of state chose not to 
meet with the Dalai Lama this time, and perceives multiple 
interests on the plate. I think that the work of this 
Commission and the testimony from the panelists is especially 
important at a time like this to make sure that we reinforce 
that what I view as universal human values have a constancy of 
concern and are the bedrock of a stable relationship in the 
long term so that those issues never fall off the table.
    As a second item that I just want to mention, I think I was 
the first person who handed a letter of condolence to the PRC 
Ambassador here in Washington about the Sichuan earthquakes. It 
was the morning that we heard about the earthquakes. I had a 
prior scheduled meeting with the Ambassador and I knew that it 
was a bad situation and I wanted to express my concern and 
condolences right away.
    I am sincerely concerned about natural disasters that occur 
anywhere in the world, but there are some places where we feel 
a special connection. I was concerned then, and I'm concerned 
now. I am especially concerned that some of the folks who have 
asked for answers as to why school buildings seemed to have 
collapsed at a much higher rate than other public buildings, 
that some of these folks have been harassed and a couple of 
have been arrested and tried.
    I am in the process of preparing a House resolution asking 
for a careful review of the cases of Mr. Huang Qi and Mr. Tan 
Zuoren to accord them the rights that they have under the 
applicable sections of the Chinese Constitution, because it 
appears that by advocating for the parents of kids who were 
killed in the earthquake, they have somehow been caught up in 
their government's web of concern about state secrets and 
subversion. At least to this observer, that seems to be a 
stretch and it seems to be not necessarily consistent with the 
Constitution and statutes of the People's Republic of China. I 
would prefer not to put that kind of resolution in, but 
depending on what the PRC Government does between now and then, 
we will see.
    I just wanted to make that brief statement because, quite 
frankly, I don't have enough of the context of this hearing to 
ask a sensible question. So I will turn it over to the panel 
and then come back to you, Mr. Chairman.
    Representative Walz [presiding]. Well, Mr. Smith, please go 
ahead if you have a followup.
    Representative Smith. Thank you very much, Mr. Chairman.
    Let me just say, Dr. Economy, in response to your comment 
about the cluster of issues, and that human rights would be 
part of that cluster, I would just respectfully suggest, with 
one big, red flag, human rights then becomes an asterisk, maybe 
on page 8 of the dialogue, or whatever it might be. Our 
argument about linking human rights with MFN [most-favored-
nation] and then PNTR [permanent normal trade relations] was 
that, where were the Chinese going to find a market to dump so 
many of their finished goods, except on U.S. soil? Otherwise, 
it's just not there. So we had real leverage and we just threw 
it away, right off, squandered it. And who got hurt--the 
dissidents and those striving for human rights.
    I remember, Frank Wolf and I had a meeting with Li Peng in 
the early 1990s. We brought up human rights. We had prisoner 
lists, we raised all of the issues. We were surprised we got to 
see him, quite frankly. He was incensed that we brought up 
human rights, and we did it very respectfully and very 
diplomatically. He wouldn't even touch the list of prisoners, 
Mr. Kamm. Wouldn't even touch it. It's like, he moved away from 
it, and then he hearkened back to the Shanghai communique and 
said there's nothing about human rights in our relationship.
    So my fear is that with Mrs. Clinton's statement earlier in 
the year--I mean, we had Chinese officials here the better part 
of a week, meeting with Tim Geithner. I'm sure human rights was 
nowhere to be found in that dialogue. President Obama will make 
his way to Beijing. He'll say ``I agree to disagree,'' or ``we 
agree to disagree,'' which means that, to every dissident, 
you're finished, you're toast. I'm very concerned.
    Wei Jingsheng once said at a hearing that I chaired, when 
you are tough, predictable, and transparent--which is pretty 
much what he said, not verbatim--they beat us less in the 
prisons. When you kowtow, when you're groveling, they beat us 
more and they cause us to lose hope. I'm very fearful about 
where we are in terms of this dialogue. I would respectfully 
suggest that human rights be at the top. Contract law will 
follow. If you get that right you get transparency, you get 
everything else, but if you don't, you get a terrible 
distortion by a government and a lot of broken people.
    So I hope we don't make this a cluster, because if it's 
part of that group of issues, the human rights activists lose 
and the people of China lose. The Uyghurs, the Tibetans, they 
all lose.
    Representative Walz. Well, thanks, Mr. Smith.
    First of all, thank you all, to our panelists, for being 
here, for your scholarship, for your advocacy, and for helping 
us understand this issue. I would like to point out and say a 
special thank-you to the staff of the Congressional-Executive 
Commission on China for the incredible scholarship, their 
integrity, in compiling the 2009 Annual Report. It will be up 
on the Internet next Tuesday, the 13th of October. We are very 
appreciative to all of them. They do incredible work. And to my 
fellow Commissioners, for showing a passion for getting this 
right, for showing a passion on human rights that all of us 
need to keep in mind, and I'm very appreciative of that.
    So, thank you all for being here today. With that, this 
meeting is adjourned.
    [Whereupon, at 3:45 p.m. the hearing was concluded.]

















                            A P P E N D I X

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                          Prepared Statements

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[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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                Prepared Statement of Elizabeth Economy

                            october 7, 2009
    Mr. Chairman and distinguished Members of the Commission, it is my 
pleasure to have the opportunity to discuss China's efforts in the 
realm of human rights, the rule of law and the environment and the 
prospects for U.S.-China cooperation on this critical issue.
                              introduction
    Over the past five to seven years, China's leaders have become 
increasingly concerned about the impact of the environment on the 
country's future. Twenty of the world's 30 most polluted cities are in 
China; over half of the country's population drinks contaminated water 
on a daily basis; and more than 25 percent of the land is severely 
degraded or desertified. As China's Minister of Environmental 
Protection Zhou Shengxian acknowledged in 2007, ``Pollution problems 
have threatened public health and social stability and have become a 
bottleneck for sound socio-economic development.'' \1\
---------------------------------------------------------------------------
    \1\ Jiangtao Shi, ``Beijing gets flak for pollution of waterways,'' 
South China Morning Post (September 17, 2007).
---------------------------------------------------------------------------
    Much of China's environmental challenge stems from the very rapid 
and unfettered growth of the past 30 years. The ``growth at all costs'' 
model of development has exerted a profoundly negative impact on the 
country's air, water and land quality and further transformed China 
into a major global polluter. The country now ranks as the world's 
chief contributor to global climate change, ozone depletion, the 
illegal timber trade, and pollution in the Pacific.
    Yet the inability of China's leaders to turn this devastating 
environmental situation around--and the environment is frequently 
mentioned as a ``top'' priority by President Hu Jintao and Premier Wen 
Jiabao--has as much to do with failings in governance as with economic 
interests. China has passed well over 100 environmental laws and 
hundreds of regulations. The challenge rests in effectively 
implementing these laws and regulations, a process that is seriously 
impeded by a lack of transparency, rule of law and official 
accountability.
    Whether China's leaders are able to incorporate better governance 
practices into their system matters enormously not only for the health 
and welfare of the Chinese people but also for the rest of the world. 
If China cannot enforce its current environmental laws and regulations, 
there is little reason to believe that it will be able to respond 
effectively to a challenge such as global climate change.
                      the nature of the challenge
    China's leaders are concerned about the country's environment above 
all because it is limiting opportunities for future economic growth, 
harming the health of the Chinese people, and has become one of the 
leading sources of social unrest throughout the country.
    The economic challenges are most direct. Over the past several 
years, the Chinese media have reported on a number of environment-
induced annual economic losses: desertification costs the Chinese 
economy about $8 billion, in addition to water pollution costs of $35.8 
billion, air pollution costs of $27 billion and weather disaster and 
acid rain costs of $26.5 and $13.3 billion respectively.\2\ All told, 
the Ministry of Environmental Protection estimates that environmental 
pollution and degradation cost the Chinese economy the equivalent of 10 
percent of GDP annually. Regionally, the impact is even more 
devastating. The prawn catch in the Bohai Sea, for example, has dropped 
by 90 percent over the past decade and a half as a result of pollution 
and overfishing. In Qinghai, over 2,000 lakes and rivers have simply 
dried up over the past two decades, contributing to significant lost 
opportunities for industrial growth.
---------------------------------------------------------------------------
    \2\ ``Cost of Pollution in China: Economic Estimates of Physical 
Damages,'' The World Bank and China State Environmental Protection 
Administration (February 2007).
---------------------------------------------------------------------------
    These economic costs are compounded by a set of mounting public 
health problems. In a survey of 30 cities and 78 counties released in 
spring 2007, the Ministry of Health blamed worsening air and water 
pollution for dramatic increases in the incidence of cancer throughout 
the country: a 19 percent rise in urban areas and a 23 percent rise in 
rural areas since 2005.\3\ About 700 million people in China drink 
water that is contaminated with human or animal waste,\4\ and according 
to the Ministry of Water Resources, 190 million drink water that is so 
contaminated that it is dangerous to their health.
---------------------------------------------------------------------------
    \3\ ``Health Expert Blames Pollution for China's Cancer Rise,'' 
Reuters (May 16, 2007).
    \4\ ``Toxic Rivers and Thirsty Cities,'' China Environment Forum, 
Woodrow Wilson International Center for Scholars (May 2007): 
www.wilsoncenter.org/index.cfm?. fuseaction=topics.item&news--
id=224022&topic--id=1421.
---------------------------------------------------------------------------
    Taken together, these economic and health problems are at the root 
of the rapidly rising public discontent and unrest over the state of 
the environment. According to Minister Zhou, in 2005, the number of 
environmental protests topped 50,000.\5\ While some pollution-related 
protests are relatively small and peaceful, others become violent, even 
deadly, when demands for change are repeatedly ignored.
---------------------------------------------------------------------------
    \5\ ``Wen sets out strategy to tackle environmental protection,'' 
Xinhua News Agency (April 23, 2006).
---------------------------------------------------------------------------
    In August 2009, for example, several thousand villagers in Shaanxi 
Province stormed a lead and zinc smelting plant after hundreds of 
children living near the plant tested positive for excessive levels of 
lead in their blood.\6\ Of these, 154 were so sick that they had to be 
admitted to the hospital.\7\ The villagers had been complaining for 
three years about the plant, and although the local government has 
promised to relocate the affected families, villagers in the relocation 
sites have noted that their children are similarly afflicted with lead 
poisoning.\8\
---------------------------------------------------------------------------
    \6\ ``Hundreds storm smelter over lead poisoning,'' Reuters (August 
17, 2009).
    \7\ Kelly Chan, ``Lead-poisoned villagers in Shaanxi fear new 
location unsafe,'' South China Morning Post (August 17, 2009). Lead 
poisoning can damage the nervous and reproductive systems. It also can 
cause anemia, affect a child's learning ability, and in the worst 
cases, lead to coma and death.
    \8\ Shi Jiangtao, ``Order Restored after Factory Protest,'' South 
China Morning Post (August 18, 2009).
---------------------------------------------------------------------------
    Environmental protest has also been spurred by the Internet. In May 
2009, in Shandong Province, a group of residents posted an online 
petition calling for an investigation of four cyclohexanone chemical 
plants. The petitioners believed that the factories, which had been in 
operation since a year earlier, were polluting the air and water and 
contributing to an unusually high number of thyroid cancer cases. The 
county government initially ignored the petition, arguing that the 
factories were not allowed to drain wastewater until they met 
provincial standards and had passed official water quality tests. Over 
the next month, the petition circulated on web portals such as Baidu 
and Tianya, collecting an estimated 1,400 signatures. In an open letter 
published on Internet forums, one resident even called for a broader 
``uprising'' that might not be successful but would ``mark the start of 
a revolution against a crude regime'' and even called for the killing 
of the Communist Party chief and county director. The author later 
claimed that more than 5,000 people had signed up for the protest. On 
June 29, 2009, Premier Wen Jiabao ordered the Shandong officials to 
investigate the claims and respond to the public.\9\
---------------------------------------------------------------------------
    \9\ Al Guo, ``Internet petition catches the eye of Premier Wen; 
Pollution investigation fast-tracked,'' South China Morning Post (June 
29, 2009).
---------------------------------------------------------------------------
    In addition, the Internet and other forms of telecommunication such 
as texting have facilitated mobilized protest in urban areas, a 
phenomenon of only the past two years. There have been significant 
protests--with up to 10,000 people--in major cities such as Xiamen, 
Zhangzhou and Chengdu over the planned siting of various large-scale 
chemical and petrochemical plants. Here, too, violence has occurred in 
some cases. Notably, in a few of these instances of urban protest, 
public opposition has been strong enough to lead to a reversal in a 
government decision. The significance of the urban, middle class 
protest is that it erupts not ``after the fact'' in response to a 
devastating environment-induced economic or public health crisis, but 
rather in advance of something likely to cause significant public 
health damage. In a small, but potentially significant, way, therefore, 
urban protesters have influenced Chinese government policy.
                   reform in environmental governance
    There are a number of reasons for China's worsening environmental 
situation and the related proliferating social and economic challenges: 
a continued priority on economic growth, the pricing of resources that 
doesn't support conservation or efficiency, a dearth of political and 
economic incentives to do the right thing and, most critically, a lack 
of transparency, official accountability and the rule of law. There is 
no reliable mechanism for uncovering and dealing with environmental 
wrongdoing.
    To begin with, accurate environmental data are often difficult to 
obtain. Sometimes it is a matter of capacity. Local environmental 
officials may simply not have the manpower, transportation or funds to 
monitor pollution levels at all the sites for which they are 
responsible. In addition, local officials are often reluctant to 
provide information that reflects poorly on their leadership, and there 
is no institutionalized check on the statistics that are provided. One 
significant central government campaign to evaluate local officials on 
their environmental performance--the Green GDP campaign--failed in 
large measure because the Ministry of Environmental Protection could 
not access the necessary environmental data from a number of 
recalcitrant provincial leaders. In a few places, such as Jiangsu 
Province, there are experiments underway with international partners to 
scorecard factories and make the information available publicly. 
However, ensuring the transparency element of the process has 
apparently been quite difficult.
    Corruption is also a serious problem. Many local officials often 
ignore serious pollution problems out of self-interest. Sometimes they 
have a direct financial stake in factories or personal relationships 
with factory managers. In recent years, the media have uncovered cases 
in which local officials have put pressure on the courts, the press, or 
even hospitals to prevent pollution problems and disasters from coming 
to light. Moreover, local officials often divert environmental 
protection funds to other endeavors. A recent Ministry of Environmental 
Protection-supported study, for example, found that fully half of the 
environmental funds distributed from Beijing to local officials for 
environmental protection made its way to projects unrelated to the 
environment.
    Recognizing the potential of local officials to subvert or ignore 
environmental laws and regulations, Beijing has opened the door to the 
media and non-governmental organizations (NGOs) to act as unofficial 
environmental watchdogs. China's first environmental NGO, Friends of 
Nature, was established in 1994, and it was devoted to environmental 
education and biodiversity protection. Fifteen years later, China has 
over 3,000 environmental NGOs that play a role in virtually every 
aspect of environmental protection. Above all, they help bring 
transparency to the environmental situation on the ground. These groups 
help expose polluting factories to the central government, launch 
Internet campaigns to protest the proliferation of large-scale 
hydropower projects, sue for the rights of villagers poisoned by 
contaminated water or air, provide seed money to smaller, newer NGOS 
throughout the country, and go undercover to expose multinationals that 
ignore international environmental standards. The media are an 
important ally in this fight: educating the public, shaming polluters, 
uncovering environmental abuse and highlighting environmental 
protection successes.
    Environmental NGOs are also at the forefront of advancing the still 
nascent rule of law in China's political system. In 1998, Wang Canfa, a 
professor of law at the China University of Politics and Law, 
established the Center for Legal Assistance to Pollution Victims 
(CLAPV). The center trains lawyers to engage in enforcing environmental 
laws, educates judges on environmental issues, provides free legal 
advice to pollution victims through a telephone hotline, and litigates 
cases involving environmental law. Between 2001 and 2007, the center 
trained 262 lawyers, 189 judges and 21 environmental enforcement 
officials in environmental law.\10\
---------------------------------------------------------------------------
    \10\ Lindon Ellis, ``Giving the Courts Green Teeth,'' China 
Environment Forum, Woodrow Wilson International Center for Scholars 
(October 22, 2008): http://www.wilsoncenter.org/index.cfm?topic--
id=1421&fuseaction=topics.event--summary&event--id=477342.
---------------------------------------------------------------------------
    In addition, Wang has been advising the Chinese government on the 
establishment of a system of specialized environmental courts. 
Beginning in late 2007, the Supreme People's Court established a 
network of courts that are responsible only for cases regarding 
environmental protection and the enforcement of environmental 
regulations. These environmental protection courts seek to address the 
weak capacity of judges to solve environmental disputes due to lack of 
expertise and experience, eliminate the challenge faced by plaintiffs 
in bringing environmental lawsuits, and strengthen the enforcement of 
judgments against defendants who are influential in local economic 
matters. Thus far, these courts have been established in three 
provinces: Guizhou, Jiangsu and Yunnan. The courts have already heard a 
number of cases: the Kunming Court in Yunnan Province heard 12 
environmental law violation cases during the first half of 2009, while 
the Guiyang court in Guizhou accepted 45 environmental cases (and ruled 
on 37 of them) in its first six months.\11\ These environmental courts 
also have the authority to enforce the judgments they issue. More 
environmental courts are expected to open throughout China as the 
success of established courts becomes determined. The biggest problem 
currently confronting the courts is that they do not have enough cases 
to consider.
---------------------------------------------------------------------------
    \11\ Gao Jie, ``Environmental Protection Courts: Incubator of 
Environmental Public Interest Litigation or Just A Decoration?'' 
GreenLaw (October 5, 2008): http://www.greenlaw.org.cn/enblog/?p=4.
---------------------------------------------------------------------------
    Despite the important role that environmental NGOs and the media 
have come to play in China's environmental protection effort, many 
Chinese leaders remain wary of the intentions of these non-governmental 
actors. Above all, China's leaders fear the potential that the 
environment might become a lightning rod for a broader push for 
political reform. They thus have put in place a Byzantine set of 
financial and political requirements to confine NGO activities within 
certain boundaries and to enable their close monitoring by authorities. 
Misjudging these boundaries can bring severe penalties. Wu Lihong 
worked for 16 years to address the pollution in Tai Lake, gathering 
evidence that forced almost 200 factories to close. In 2005, Beijing 
honored Wu as one of the country's top environmentalists, but in 2006, 
one of the local governments Wu had criticized, arrested and jailed him 
on dubious charges of blackmail and fraud. Yu Xiaogang, the 2006 winner 
of the Goldman Environmental Prize and 2009 winner of the Ramon 
Magsaysay Award, both for grassroots environmental activism, has been 
forbidden to travel abroad in retaliation for educating villagers about 
the potential downsides of a proposed dam relocation in Yunnan 
Province. A third environmental activist, Tan Kai, has been in jail 
since 2006. In 2005, Tan established the NGO Green Watch in his home 
province, Zhejiang, to monitor local officials' compliance with orders 
to shut down several polluting factories that had been the sites of 
serious protests.
                   implications for the united states
    For the United States, the capacity of China to meet its 
environmental challenges is only becoming more pressing. If China does 
not have transparency, accountability or the rule of law within its 
domestic environmental system, it cannot be relied upon to be a 
responsible partner to meet the challenge of a global issue such as 
climate change. It will not possess the capacity to enforce the 
regulations that will arise from domestic climate legislation nor the 
transparency to ensure accurate measurement of emissions and emissions 
reductions. Nor will China be able to devise and implement a system 
that will ensure that officials who attempt to subvert the legislation 
will be held accountable. This does not mean that the United States 
should not move forward to assist China in setting and meeting targets 
to reduce their greenhouse gas emissions. It does suggest, however, 
that building capacity within China's system of environmental 
governance should be a top priority for bilateral cooperation.
    There are small-scale efforts already underway within the United 
States to help China develop such capacity. Over the past two years, 
the U.S. government has provided $5-$10 million in Development 
Assistance for programs and activities in the PRC related to democracy, 
rule of law and the environment.\12\ With support from the U.S. 
government, for example, the American Bar Association has supported 
both Wang Canfa's Center for Legal Assistance to Pollution Victims as 
well as various universities to train public interest lawyers to 
specialize on the environment and provide expertise to the new 
environmental courts. Vermont Law School similarly engages partners 
such as SunYat-sen University to help improve China's environmental 
policies, systems and laws. Climate change is also garnering growing 
interest as an area of cooperation. The state of California is already 
pushing forward on several fronts, including enhancing transparency in 
energy use in Jiangsu Province and fostering interagency cooperation at 
the local level to address climate change.\13\ Still, the majority of 
interest and attention in the United States and China is focused on the 
opportunity for technology cooperation and transfer. This technology 
will only be effective, however, if China has the appropriate political 
environment to support its use. To tackle an issue of the magnitude of 
climate change, will require far more of a concerted and coordinated 
international effort by the United States and its partners to bolster 
the rule of law, transparency and accountability within China.
---------------------------------------------------------------------------
    \12\ Thomas Lum, ``U.S.-Funded Assistance Programs in China,'' 
Congressional Research Service (January 28, 2008).
    \13\ ``Local-to-Local Energy Linkages: California and Alberta in 
China,'' Event Summary, China Environment Forum, Woodrow Wilson 
International Center for Scholars (May 20, 2008).
---------------------------------------------------------------------------
                                 ______
                                 

                 Prepared Statement of Donald C. Clarke

                            october 7, 2009

          Lawyers and the State in China: Recent Developments

                            i. introduction
    The relationship between lawyers and the state in post-Mao China 
has been both fluid and complex.\1\ No longer are lawyers considered to 
be simply ``state legal workers'' with quasi-official status. At the 
same time, the state considers them to be more than simply commercial 
suppliers of a service. It exercises tight control over lawyers' 
associations, and imposes special duties on lawyers to promote the 
state's interest even when it might be at the expense of their clients. 
As for lawyers themselves, some are not only content with the status 
quo but actively work to promote it and suppress challenges. Others 
engage in controversial or sensitive activity but stay carefully within 
the bounds of what is actually permitted; still others push the 
boundaries a bit further to what is formally permitted but may not be 
regularly permitted in practice. And a very few consciously go beyond 
even that limit and openly challenge the state.
---------------------------------------------------------------------------
    \1\ For excellent English-language scholarship in this area, see, 
inter alia, the work of Prof. William P. Alford (publications list at 
http://tinyurl.com/ybg6824); Prof. Hualing Fu (several publications 
posted at http://www.ssrn.com; Prof. Sida Liu (publications list at 
http://tinyurl.com/y959lkf); and Prof. Ethan Michelson (publications 
list at http://tinyurl.com/ydycrqw).
---------------------------------------------------------------------------
    The response of the state to perceived challenges from lawyers has 
also varied across time and space. Central and local government actions 
are not always coordinated and may indeed be contradictory, as may 
actions from different agencies within the same level of government. 
Policy may at one time be relatively relaxed and another time quite 
tight.
    Despite this complexity, it is possible to reach certain big-
picture conclusions, and one of them is that the environment for 
lawyers who get involved in cases or activities of any sensitivity\2\ 
has worsened in the last several months. In April 2008, Human Rights 
Watch issued a report on the status of lawyers in China;\3\ this 
testimony aims largely to provide an update on developments since that 
time.
---------------------------------------------------------------------------
    \2\ By ``sensitive'' I mean two things. First, I mean cases or 
activities relating to subjects that are well known to be matters of 
government concern--for example, Falun Gong, Tibet, unapproved 
political parties, land takings, and environmental protests. But I also 
use ``sensitive'' to indicate cases that might be quite ordinary in 
their subject matter but have been made sensitive by the involvement 
for any reason of influential people--for example, an ordinary-looking 
commercial dispute where one side is a company that is owned by a 
relative of a top leader or is a major contributor to the local 
economy.
    \3\ Human Rights Watch, ``Walking on Thin Ice'': Control, 
Intimidation and Harassment of Lawyers in China (April 2008), available 
at http://www.hrw.org/reports/2008/china0408/.
---------------------------------------------------------------------------
                        ii. recent developments
    Since spring 2008, the central and local governments have taken a 
number of steps to discourage lawyers from challenging the state in any 
significant way.\4\ Most prominent among these steps have been (1) 
formal and informal measures to prevent lawyers from effectively 
representing parties involved in sensitive incidents such as mass 
unrest or mass torts, and (2) the delicensing of particularly 
troublesome lawyers and firms, sometimes through an active delicensing 
process and sometimes through failure to allow the lawyers to pass the 
annual re-licensing process. I discuss some particular examples below.
---------------------------------------------------------------------------
    \4\ It is important to note that the number of such lawyers is 
small, both in absolute terms and relative to the size of the 
profession. The political activism of lawyers as a profession in China 
is utterly different from that of lawyers in, say, Pakistan.
---------------------------------------------------------------------------
A. Suspension of the Yitong Law Firm
    Yitong is a Beijing law firm headed by activist lawyer Li Jinsong. 
It has been at the center of several high-profile cases, representing 
Hu Jia, the HIV/AIDS activist, and Chen Guangcheng, the blind 
``barefoot lawyer'' \5\ who exposed forced abortions in his native 
Shandong province. Several Yitong lawyers were behind an unsanctioned 
challenge to the leadership of the Beijing Lawyers Association 
(discussed below).
---------------------------------------------------------------------------
    \5\ ``Barefoot lawyers'' are persons--typically in the 
countryside--not licensed as lawyers who have developed a certain 
expertise in legal matters and assist their neighbors and others in 
asserting legal claims. See Melinda Liu & Lijia MacLeod, Barefoot 
Lawyers, Newsweek, Mar. 4, 2002, available at http://www.newsweek.com/
id/75076.
---------------------------------------------------------------------------
    On March 17, 2009, the Haidian District Judicial Bureau in Beijing 
issued a final decision ordering the closing of Yitong for six months 
on what were widely considered to be weak charges.\6\ Despite 
predictions by Li Jinsong that the firm might not survive, it reopened 
on September 14, 2009.\7\ Although the firm has re-opened, it lost a 
large number of its lawyers and its ability to function has certainly 
been greatly impaired. Moreover, the lesson that troublemaking will be 
punished cannot have been lost on other activist (or would-be activist) 
lawyers. While some will 
undoubtedly continue to do what they have always done, there are others 
at the margin for whom the punishment of Yitong would be (as intended) 
of decisive discouraging effect.
---------------------------------------------------------------------------
    \6\ See Peter Ford, China Cracks Down on Human Rights Lawyers, 
Christian Science Monitor, February 25, 2009, available at http://
tinyurl.com/ca7pkz; ``Killing One to Warn 100": The Shutdown of the 
Yitong Law Firm, China Rights Forum, No. 1, 2009, at 22, available at 
http://tinyurl.com/yan85an.
    \7\ See Li Jinsong, Zong you yizhong liliang qushi women gushou 
``zhengyi, aixin, liangzhi, fazhi''!--Yitong lushi shiwusuo huifu zhiye 
zhi ri zhi haineiwai pengyou (There Is Always a Force Pushing Us to 
Maintain ``Justice, Love, Conscience, and Rule of Law''!--To Domestic 
and Foreign Friends on the Occasion of the Yitong Law Firm's Resumption 
of Business), September 14, 2009, http://tinyurl.com/y9nnz9t.
---------------------------------------------------------------------------
B. Closing of the Open Constitution Initiative
    The Open Constitution Initiative (``OCI'') was an organization 
headed by Xu Zhiyong, a legal scholar who teaches at Beijing Posts and 
Telecommunications University and is an elected delegate to the Haidian 
People's Congress. The OCI had been prominent in many issues related to 
the rule of law in China, from issuing a report criticizing government 
policy in Tibet to providing assistance to the families of babies 
poisoned in the melamine-tainted milk scandal. In July 2009, OCI was 
charged with tax evasion and ordered to pay 1.43 million yuan, a huge 
amount relative to the scale of the charged offense.\8\ The 
organization's offices were raided by officials of the Beijing Bureau 
of Civil Affairs, who confiscated substantial amounts of property. OCI 
was then declared ``illegal'' and its web site shut down.\9\
---------------------------------------------------------------------------
    \8\ OCI was charged with owing 187,424 yuan (approx. $27,500) in 
back taxes--an amount disputed by OCI--and fined 1,242,100 yuan 
(approx. $182,200), the highest possible amount. See Jiang Xueqing, 
Baby Milk Powder Victims Lose Legal Proxy, Global Times (China), August 
11, 2009, available at http://tinyurl.com/ye6s9pt.
    \9\ See Edward Wong, China Shuts Down Office of Volunteer Lawyers, 
New York Times, July 17, 2009, available at http://tinyurl.com/y97leo4.
---------------------------------------------------------------------------
    On July 29, 2009, Xu Zhiyong himself was detained and subsequently 
arrested\10\ on charges of tax evasion.\11\ He was released pending 
trial on August 23;\12\ the case is still unfolding.
---------------------------------------------------------------------------
    \10\ ``Arrest'' (daibu) is a formal stage in Chinese criminal 
procedure; it means more than simply subject to coercive detention by 
the authorities.
    \11\ See Michael Wines, Chinese Public Interest Lawyer Charged Amid 
Crackdown, New York Times, August 18, 2009, available at http://
tinyurl.com/yavwff8.
    \12\ See Michael Wines, Without Explanation, China Releases 3 
Activists, New York Times, August 23, 2009, available at http://
tinyurl.com/yacl6ff.
---------------------------------------------------------------------------
C. Raiding of Yirenping
    On July 29, 2009, the Beijing offices of the Yirenping Center, an 
NGO specializing in public health education, aid to patients, and the 
elimination of discrimination, were raided by officials from the 
Beijing Public Security Bureau and state publishing authorities on the 
grounds that Yirenping was engaging in unauthorized publishing 
activities by having a newsletter. Yirenping's head, Lu Jun, was 
ordered to present himself for further investigation.\13\
---------------------------------------------------------------------------
    \13\ Human Rights in China, Raid of Public Interest Group Reveals 
Degree of Information Control, July 29, 2009, http://tinyurl.com/
y8an8n7 (press release); Kathrin Hille, Chinese Authorities Detain 
Civil Rights Activist, Financial Times, July 30, 2009, available at 
http://tinyurl.com/y93jz6o.
---------------------------------------------------------------------------
D. Tempest in the Beijing Lawyers Association
    Lawyers associations in China are typical Leninist ``mass 
organizations'': vehicles more for top-down control than for bottom-up 
articulation and representation of interests. In this way, they 
resemble labor unions, the Women's Federation at various levels, and 
the official churches. In September 2008, some lawyers in Beijing 
issued a call for the direct election of leaders of the Beijing Lawyers 
Association (``BLA'') as well as other reforms that would have the 
effect, they said, of taking power from the small group of rich lawyers 
currently in control.\14\
---------------------------------------------------------------------------
    \14\  The text of their open letter is attached as Appendix 1.
---------------------------------------------------------------------------
    The BLA leadership did not take this challenge lying down. It 
issued a rather nasty response\15\ full of the kind of politically 
threatening language one rarely sees any more: it speaks of ``linking 
up'' (a pejorative word evocative of Red Guards running rampant), 
working ``under the signboard'' of democracy, ``stirring up rumors'' 
and ``rabble-rousing,'' ``inciting'' lawyers ``who don't understand the 
true situation,'' etc. The response warns darkly that using text 
messages and e-mail to engage in this kind of activity is illegal, 
although the laws being violated are not mentioned. Lawyers are urged 
to maintain a correct political orientation and to resist the 
blandishments of this ``minority.''
---------------------------------------------------------------------------
    \15\ The text of the response is attached as Appendix 2.
---------------------------------------------------------------------------
    The lawyers who issued the statement did not back down, and issued 
a firm response of their own,\16\ maintaining their right to a say in 
the running the BLA. In the end, however, their defiance proved 
fruitless. The law firm most prominently associated with the challenge, 
Yitong Law Firm, was closed for six months by the authorities, and 
several of the lawyers involved lost their licenses to practice law 
(see below).
---------------------------------------------------------------------------
    \16\ The text of the response is attached as Appendix 3.
---------------------------------------------------------------------------
E. Denial of Re-Licensing to Lawyers
    China's lawyers are subject to an annual re-licensing procedure. 
Instead of taking active steps to de-license a lawyer deemed 
troublesome, the authorities can simply refuse to re-license when the 
time comes. On July 9, the Beijing Judicial Bureau, the body in charge 
of licensing lawyers in Beijing, announced on its web site that it had 
canceled the licenses of 53 lawyers, including prominent lawyer Jiang 
Tianyong, for failing to register as members of the Beijing Lawyers 
Association.\17\ Another group of lawyers not on the list were simply 
refused a renewal of their licenses on the grounds that they had 
``failed their assessments''; these lawyers included well-known lawyers 
such as Li Heping.\18\ Another activist lawyer, Teng Biao, was refused 
a license renewal when his employer, the China University of Politics 
and Law, refused to support his application.\19\ The pretextual nature 
of the grounds for de-licensing is evident from the fact that previous 
years have not, to my knowledge, seen such large-scale de-licensings.
---------------------------------------------------------------------------
    \17\ See Beijing Judicial Bureau, Beijing shi sifa ju guanyu 
zhuxiao Zhang Qingtai deng 53-ming lushi de lushi zhiye zhengshu de 
jueding (Decision of the Beijing Judicial Bureau on the Cancellation of 
the License to Practice of Zhang Qingtai and 52 Other Lawyers), July 9, 
2009, http://tinyurl.com/yc7nxx5.
    \18\ See Amnesty International, Human Rights Lawyers Disbarred in 
China, July 15, 2009, http://tinyurl.com/yaq3o97 (press release).
    \19\ Chinese lawyers must generally work through an employing body 
such as a law firm or, in the case of academics working as part-time 
lawyers, their university. The support of the employer is therefore 
required.
---------------------------------------------------------------------------
F. Interference With Attorney-Client Relations
    On several occasions, state and quasi-state authorities (for 
example, bar associations) have issued rules or engaged in practices 
that have the intention and effect of preventing lawyers from offering 
effective representation to clients. One of the most well-known of 
these was issued to lawyers charged with defending those involved in 
the 1989 protests. It instructed them to ``do a good job of ideological 
work on the defendant and his family members, encouraging them to admit 
the crime and submit to the law.'' \20\ Another document issued at 
about the same time made clear the state's view of the role of lawyers:
---------------------------------------------------------------------------
    \20\ All-China Lawyers Association, Circular on ``The Defense Work 
of Lawyers in the Current Trials of Cases Related to the Turmoil and 
Counterrevolutionary Rebellion,'' November 25, 1989, reprinted and 
translated in Human Rights in China, Going Through the Motions: The 
Role of Defense Counsel in the Trials of the 1989 Protestors 7, 8 
(March 1993).

        Defense is not a matter of victory or defeat, and the legal 
        advisor is not competing with the procuratorial and court 
        personnel to see who comes out on top; it is a propaganda 
        effort, directed at the citizens, to condemn vice and praise 
        justice.\21\
---------------------------------------------------------------------------
    \21\ Shanghai Municipal Lawyers Association Research Department, 
Shanghai Concentrates on Doing a Good Job of Criminal Defense Work in 
``Turmoil-Related Cases'' (Outline of Report), n.d., reprinted and 
translated in Human Rights in China, supra note 20, at 16, 19.

    This view has not significantly changed over time. The state 
continues to engage in intensive efforts to stay informed of and direct 
the work of lawyers in cases it deems sensitive, and to simply block 
the efforts of lawyers to represent clients even when it is unwilling 
to issue formal rules to that effect. I provide an incomplete list of 
such efforts below, with some historical background but a focus on more 
---------------------------------------------------------------------------
recent efforts.

         In 1999, the Beijing Judicial Bureau issued a document 
        establishing a ``leading group'' within the Bureau to deal with 
        ``major and important cases.'' Certain cases were to be 
        reported to the leading group by lawyers--for example, all 
        instances of collective litigation or litigation involving 
        state organs or leaders above the prefectural level. And 
        certain cases not only were to be reported, but required 
        approval from the leading group before lawyers could accept 
        them--for example, all cases involving state security or 
        foreigners.\22\ The document specifically stated that ``[t]he 
        lawyer handling the case should prepare his tactics according 
        to the decision made by the leading group after the 
        discussion.''
---------------------------------------------------------------------------
    \22\ Beijing Judicial Bureau, Guanyu Beijing Shi lushi shiwusuo 
chengban zhongda falu shiwu qingshi baogao de zhidu (On the System of 
Asking for Instructions and Reporting When Law Firms Handle Major Legal 
Matters), issued Jan. 14, 1999.
---------------------------------------------------------------------------
         In 2004, the Nantong Municipal Judicial Bureau issued 
        a document intended to ``strengthen the work of guidance over 
        lawyers handling important cases. This document required 
        lawyers to report to the government when handling cases of 
        various kinds, including any lawsuits involving ten or more 
        plaintiffs and any proposed not-guilty plea in criminal 
        proceedings.\23\
---------------------------------------------------------------------------
    \23\ Nantong Judicial Bureau, Guanyu jinyibu jiaqiang dui lushi 
banli zhongda anjian zhidao gongzuo de yijian (Opinion on Further 
Strengthening the Work of Guidance over Lawyers in Their Handling of 
Major Cases), February 18, 2004, available at http://www.ntda.gov.cn/
wjzxqw/W2580001035.htm (Chinese; URL does not function as of October 5, 
2009); http://www.cecc.gov/pages/virtualAcad/
index.phpd?showsingle=50420 (English translation).
---------------------------------------------------------------------------
         In 2006, the Henan provincial authorities issued a 
        document imposing more supervisory controls on lawyers handling 
        ``important, sensitive, and mass cases.'' \24\
---------------------------------------------------------------------------
    \24\ Henan Judicial Department, Guanyu jiaqiang dui lushi banli 
zhongda, min'gan, quntixing anjian zhidao jiandu de yijian (Opinion on 
Strengthening Guidance and Supervision over Lawyers in Their Handling 
of Major, Sensitive, or Mass Cases), Mar. 28, 2006, available at http:/
/tinyurl.com/ycba85y.
---------------------------------------------------------------------------
         In 2006, the Shenyang municipal authorities issued a 
        regulation requiring lawyers to report to, and seek 
        instructions from, the relevant municipal authorities before 
        undertaking ``important,'' ``difficult,'' or ``sensitive'' 
        cases.\25\
---------------------------------------------------------------------------
    \25\ See Shenyang Shi lushi chengban zhongda yinan min'gan anjian 
qingshi baogao de ruogan yijian (Several Opinions on Reporting and 
Requesting Instructions When Shenyang Lawyers Handle Important, 
Difficult, or Sensitive Cases), April 2006, cited in Shenyang lushi 
chengban min'gan anjian xu qingshi (Shenyang Lawyers Must Seek 
Instructions When Handling Sensitive Cases), http://
www.legalinfo.gov.cn/moj/lsgzgzzds/2006-04/20/content--303794.htm 
(Chinese Ministry of Justice official web site).
---------------------------------------------------------------------------
         In 2006, a similar regulation with nationwide effect 
        and specifically covering multiparty litigation (cases with 10 
        or more plaintiffs) was issued by the All-China Lawyers 
        Association (``ACLA''), a government-controlled body that, 
        together with the national Ministry of Justice and its local-
        government counterparts, is in charge of lawyers in China. The 
        regulation, entitled ``Guidance Opinion on the Undertaking by 
        Lawyers of Mass Cases,'' requires lawyers to report to local 
        authorities and ``accept supervision and guidance.'' \26\
---------------------------------------------------------------------------
    \26\ See generally Human Rights Watch,``A Great Danger for 
Lawyers'':New Regulatory Curbs on Lawyers Representing Protestors 
(December 2006). This report contains a translation of the ACLA 
document.
---------------------------------------------------------------------------
         In 2006, lawyers were specifically forbidden to 
        represent clients seeking compensation for injuries in a 
        chemical plant explosion.\27\
---------------------------------------------------------------------------
    \27\ See Zheng Yi, ``Lushi bu de jieru'' dui shei you li (To Whose 
Benefit Is It that ``Lawyers May Not Get Involved''?), sina.com.cn, 
http://news.sina.com.cn/o/2006-08-24/02269830142s.shtml (reprinted from 
Jiangnan Shibao (Jiangnan Times)). I have not seen the original 
document containing this prohibition, if one exists.
---------------------------------------------------------------------------
         In 2008, several dozen lawyers volunteered to 
        represent plaintiffs in the Sanlu scandal, in which four babies 
        died and some 53,000 suffered kidney damage as a result of 
        melamine-tainted milk.\28\ It is reported, however, that 
        lawyers were warned by the central government not to take such 
        cases.\29\
---------------------------------------------------------------------------
    \28\ See Xu Kai, Zhiyuan lushi tuan wei ``shenjieshi ying'er'' 
suopei ``zhizhao'' (Volunteer Lawyers Group Offers Services in Seeking 
Compensation for ``Kidney Stone Babies''), Caijing (Finance and 
Economy), September 13, 2009, available at http://tinyurl.com/yawfrm5; 
China Human Rights Lawyers Concern Group, Support Chinese Lawyers to 
Provide Voluntary Legal Aid to Victims of Contaminated Milk Powder, 
September 25, 2008, http://www.chrlcg-hk.org/?p=322.
    \29\ See Dunai suopei falu yuanzhu shouzu (Legal Aid in Poisoned 
Milk Compensation Cases Encounters Obstacles), Da Gong Bao (Hong Kong), 
October 5, 2008, available at http://tinyurl.com/yejem46. It should be 
noted that the Da Gong Bao is normally extremely supportive of the 
Chinese government.
---------------------------------------------------------------------------
         In 2009, attorney Li Dunyong was forbidden by court 
        officials in Qinghai province from representing Tibetan 
        filmmaker Dhondup Wangchen, and attorney Li Fangping was 
        prevented from representing two Tibetan monks in Gansu 
        province.\30\
---------------------------------------------------------------------------
    \30\ See Radio Free Asia, Beijing Blocks Tibet Lawyers, July 20, 
2009, http://tinyurl.com/y8hy8dw.
---------------------------------------------------------------------------
         In 2009, several lawyers were threatened with 
        disbarment for offering to represent Tibetan defendants in 
        Lhasa riot cases, and those who persisted were simply refused 
        permission by the authorities on the grounds that the 
        defendants ``already had lawyers.'' \31\
---------------------------------------------------------------------------
    \31\ See Nirmala Carvalho, ``Mei yong'' lushi bei gan; lama bei pan 
wuqi tuxing (``Useless'' Lawyers Driven Away; Lamas Sentenced to Life 
Imprisonment), Asianews.it, July 21, 2009, http://tinyurl.com/yce2757; 
see also Kanbujian de Xizang (Woeser's Blog) (Invisible Tibet), June 8, 
2009, http://tinyurl.com/yay6tan.
---------------------------------------------------------------------------
         In 2008 and 2009, several local governments have 
        issued regulations requiring lawyers to notify authorities and 
        accept guidance when handling certain types of cases deemed 
        sensitive or otherwise important. I have found regulations from 
        the cities of Yulin\32\ and Taizhou\33\ and from the county of 
        Zhenning.\34\
---------------------------------------------------------------------------
    \32\ Yulin City Judicial Bureau, Yulin Shi sifa ju guanyu lushi zai 
banli min'gan anjian he quntixing anjian zhong tuixing shiyong 
chengnuoshu de tongzhi (Notice of the Yulin City Judicial Bureau on 
Promoting the Use of Written Undertakings When Lawyers Handle Sensitive 
and Mass Cases), July 7, 2009, available at http://www.yulin.gov.cn/
info/94599 (requiring lawyers to obtain written promises from clients 
not to engage in petitioning to higher authorities, and stating that 
``interfering with the normal work of state organs'' shall mean the 
automatic dissolution of the lawyer-client relationship).
    \33\ Taizhou City Judicial Bureau, Guanyu guanche sheng ting 
``Guanyu jiaqiang dui lushi banli min'ganxing, quntixing anjian zhidao 
jiandu gongzuo de tongzhi'' de yijian (Opinion on Implementation of the 
Provincial [Judicial] Department's ``Notice on Strengthening the Work 
of Guidance and Supervision Over Lawyers in Their Handling of Sensitive 
and Mass Cases''), issued August 25, 2008, available at http://
tinyurl.com/y9khndt. This document implements a regulation applicable 
to all of Jiangsu Province.
    \34\ Zhenning County Judicial Bureau, Shenhua Zhongguo tese 
shehuizhuyi falu gongzuozhe renshi, qianghua min'gan anjian he 
quntixing anjian bianhu daili zhidao guanli (Deepen the Consciousness 
of Socialist Legal Workers with Chinese Characteristics, Strengthen 
Guidance and Administration Over Defense and Representation in 
Sensitive and Mass Cases), August 17, 2009, available at http://
sfj.anshun.gov.cn/xq--znx/gzdt/display.asp?id=104 (requiring lawyers to 
``keep the big picture in mind'' and to ``guarantee stability.'')
---------------------------------------------------------------------------
G. Continued Disappearance of Gao Zhisheng
    Finally, the continued disappearance of attorney Gao Zhisheng 
deserves a paragraph of its own. Gao was taken into custody in February 
2009, presumably by state security agents.\35\ There has been no 
acknowledgment since that time by any Chinese governmental authorities 
that he is in custody, despite various requirements in Chinese law that 
notice be given to family members and charges brought within a 
specified time.\36\ The length of time of this unacknowledged detention 
is extremely unusual--to the best of my knowledge, virtually 
unprecedented. I know of no way in which it can be justified even under 
the elastic and forgiving provisions of Chinese law regarding police 
detention powers.
---------------------------------------------------------------------------
    \35\ Because Gao was under constant surveillance by state security, 
it is not plausible to suppose that his disappearance occurred without 
their knowledge and cooperation. See Evan Osnos, Letter from China: 
What Happened to Gao Zhisheng?, The New Yorker, April 3, 2009, 
available at http://tinyurl.com/dmoeuq.
    \36\ For a summary of various coercive measures available to 
government authorities and the timelines applicable to each, see Donald 
Clarke, Legal Analysis of Liu Xiaobo's Detention, Chinese Law Prof 
Blog, December 13, 2008, http://tinyurl.com/54w82.
---------------------------------------------------------------------------
                            iii. conclusions
    It might be thought that the continuing harassment of lawyers, and 
particularly the efforts to prevent lawyers from representing certain 
disfavored clients, is actually encouraging evidence that they can be 
effective in court. Why bother stopping lawyers from doing their job if 
the system already prevents them from doing it effectively? There is a 
certain degree of truth in this perspective. Although it is 
inconceivable that courts could make judgments contrary to those 
desired by political 
authorities in any case the latter deemed important, a skilled and 
zealous lawyer can nevertheless make the job much more difficult, and 
what the state finds difficult to do, it may do less of in the future.
    On the other hand, the state's main concern is perhaps less with 
what activist lawyers do in court than with what they do out of it. A 
persistent theme of the various regulations on the reporting of 
sensitive cases discussed above is a concern about publicity and other 
out-of-court ways in which lawyers may promote the interests of their 
clients or their own causes. This concern dovetails perfectly with what 
activist lawyers themselves say about their approach: that the key is 
not winning in court, but in using the court action, regardless of 
outcome, to bring about broader social changes.
    Thus, clamping down on lawyers does not necessarily mean that they 
were being too effective as lawyers in courts, which would imply that 
courts had some substantial degree of independence; it may mean simply 
that they are being too troublesome, relative to what the state is 
willing to permit at the time of the clampdown, as social activists who 
happen to be lawyers. And indeed, the clampdown on lawyers has been 
accompanied by a clampdown on activist NGOs and individuals more 
generally.
    Some observers have suggested that the clampdown was related to the 
60th-anniversary celebrations on October 1, and that once they were 
past, the government would relax. I believe that the restrictive 
measures I have listed here have a history that is impossible to 
explain solely by reference to the 60th-anniversary celebrations, and 
that they are part of a more general tightening of political control 
over courts and all those involved with them. Now that October 1 is 
behind us, time will tell which interpretation is correct.
    Finally, let us not forget that it is possible, and perhaps even 
likely, that in this as in other matters there are divisions within the 
leadership. There is clearly a good argument to be made that allowing 
more space to lawyers representing the disadvantaged enhances social 
stability instead of endangering it by bringing grievances into the 
system. With the benefit of hindsight, Zhao Ziyang in his memoirs 
recognized the social value of groups and individuals truly independent 
of the state.\37\ Perhaps other leaders during their terms of office 
will be forced to the same conclusion.
---------------------------------------------------------------------------
    \37\ See Zhao Ziyang, Prisoner of the State 258 (2009).
---------------------------------------------------------------------------
                               appendix 1

Accord With the Tide of History, Directly Elect Beijing Bar Association 
Directors--An Appeal to All Beijing Lawyers, Beijing's Justice Bureau, 
                  and the Beijing Bar Association\38\

    According to the constitution, attorney law, and regulations 
governing the registration and management of social organizations, 
lawyers have the right to free association and therefore Beijing's Bar 
Association should be composed of the capital's lawyers ``voluntarily 
organizing and carrying out the common wishes of its members through 
this non-profit social organization.'' But it is evident that in the 30 
years the Beijing Bar Association has been in existence, it has not 
accorded with these legal guidelines in its establishment or its 
activities, especially in safeguarding lawyers legal rights and 
protecting lawyers rights and interests. The majority of lawyers 
complain about this state of affairs, but feel powerless to change it 
because the bar association did not come into being via the voting of 
its members. This situation must be changed.
---------------------------------------------------------------------------
    \38\ Source:http://www.chinafreepress.org/publish/case/Accord--
With--the--Tide--of--History-- Directly--Elect--Beijing--Bar--
Association--Directors.shtml. As of October 5, 2009, the URLs for the 
English translations of the documents in Appendices 1, 2, and 3 do not 
function.
---------------------------------------------------------------------------
    1. The qualifications of the present directors of the Beijing Bar 
Association is below that required by law and the Beijing Bar 
Association has no legal regulations and procedures for electing 
directors.
    Regulations are the constitution of social organizations. According 
to the laws and regulations governing social organizations, the Beijing 
Bar Association's rules and election procedures should be determined by 
member voting, with either a 2/3 majority of more then 1/2 required for 
a motion to pass. But according to the web site, the present Bar 
Association accords with regulations promulgated in 1982 and formalized 
in 1990, but they have never been voted on by the Bar's members, never 
mind passed by a majority vote, and have never been publicized. For 
these reasons these rules and regulations should have no legal effect.
    The president, director, and supervisory board of the Beijing Bar 
Association have not been popularly elected by the Bar's members, and 
therefore should not have legal standing. According to an 
investigation, more than 90 percent of Beijing lawyers have never 
participated in any election activity of the Bar Association, and have 
never been informed of any voting activities. At present the president, 
director, and supervisory board are chosen among partners of major law 
firms with large incomes. It can be said that the present Beijing Bar 
Association is a kind of ``Rich Man's Club,'' helping these fat cats 
expand their influence and attract new clients.
    We earnestly appeal that when the new session of the Beijing Bar 
Association convenes, a truly democratic election of directors should 
take place. The chief principles should be: 1. All the members of the 
Bar should elect by a majority vote the president, directors, and 
supervisory board of the Bar; 2. The Bar's rules and regulations should 
be passed by a 2/3 majority vote of its members; 3. Elect a leadership 
that truly represents the interests of the members of the Bar; 4. 
Annual fees should be agreed on by a 2/3 majority vote (and the current 
fees should be reduced by more than 50 percent).
    In order to promote the democratic administration of the Beijing 
Bar Association, we as a group of Beijing lawyers have organized 
ourselves and over the course of two months of efforts have drafted the 
``Beijing Bar Association Election Procedures (Draft Proposal).''
    Democracy is not a far off ideal. Please submit your suggestions 
for amending this draft proposal and then vote on it and this sacred 
ideal can be realized!
    Contact person: Cheng Hai 13601062745 ([email protected])
    August 26, 2008.
                               appendix 2

The Beijing Bar Association's Response to a Small Number of Lawyers and 
    Their So-Called ``Call For Direct Elections to the Beijing Bar 
                           Association'' \39\

    To: All Beijing Lawyers, All Beijing Law Offices
---------------------------------------------------------------------------
    \39\ Source: http://www.bmla.org.cn/bjlawyers2/news/show--
content.jsp?infoID=IC02000024280 (Chinese); http://
www.chinafreepress.org/publish/case/The--Beijing--Bar--Association--s--
Response--to-- a--Small--Number--of--Lawyers--and--Their--So-Called--
Call--For--Direct--Elections--to--the--Beijing--Bar-- Association.shtml 
(English).
---------------------------------------------------------------------------
    Recently a small number of lawyers jointly issued a petition and 
posted it on the Internet entitled ``Accord With the Tide of History, 
Directly Elect the Beijing Bar Association--Announcement To All Beijing 
Lawyers, Beijing Justice Bureau, and the Beijing Bar Association.'' The 
announcement purported to promote the cause of democracy, and 
questioned the legality of the standing of the Beijing Bar Association. 
Soon after, some Beijing lawyers began receiving text messages from 
these lawyers, baiting them by calling for reduced Bar Association 
membership fees, a restructuring of the tax system, and stirring up 
lawyers with calls for so-called ``Direct Elections to the Beijing Bar 
Association.''
    The Beijing Bar Association hereby seriously states: We are a 
legally constituted social organization, an autonomous professional 
organization representing the interests of all Beijing lawyers, and 
manages in compliance with the ``Lawyer's Law'' and ``Regulations 
Regarding the All-China Bar Association.'' The Beijing Bar Association 
through its president and secretariat letterbox, director reception 
day, representative draft resolution system etc. solicits the opinions 
and suggestions of its members and accords with the rules of its 
profession in democratic decisionmaking, democratic management and 
democratic supervision. Any individual who uses text messages, the web 
or other media to privately promote and disseminate the concept of 
direct elections, express controversial opinions, thereby spreading 
rumors within the Beijing Bar Association, confuse and poison people's 
minds, and convince people of circumstances that do not exist regarding 
the so-called ``Call For Direct Elections For the Beijing Bar 
Association'' is illegal. They are using the opportunity of the end of 
the tenure of the present Bar Association administration to manipulate 
the enthusiasm of some lawyers to participate in the management 
process, using the banner of ``Democratic Bar Association Management,'' 
is a vain attempt to evade the supervision of the Justice Bureau and 
the Bar Association's professional management.
    Beijing's lawyers must maintain calm heads and see the real nature 
of this effort on the part of a small number of lawyers to ``Promote 
Direct Elections to the Beijing Bar Association'' and support the 
Beijing Bar Association's correct political stance and social efforts 
and resist the improper expression of this small number of lawyers and 
not be deceived by them.
    This year the Beijing Bar Association is changing leaders, to 
ensure the smooth transition, the election work has already been 
prepared. The Beijing Bar Association is doing everything in its power 
solicit the opinions of the majority of lawyers and ceaselessly perfect 
its work and promote the healthy development of the Beijing legal 
profession.
                               appendix 3

  Our Response to the Beijing Bar Association's ``Serious Statement'' 
                                  \40\

    On Friday September 5, the Beijing Bar Association on its official 
web site published ``The Beijing Bar Association's Serious Statement in 
Response to a Small Number of Lawyers' Call for So-Called `Direct 
Elections to the Beijing Bar Association.' '' The statement said: 
``Recently a small number of lawyers jointly issued a 
petition and posted it on the Internet entitled ``Accord With the Tide 
of History, Directly Elect the Beijing Bar Association--Announcement To 
All Beijing Lawyers, Beijing Justice Bureau, and the Beijing Bar 
Association.'' The announcement purported to promote the cause of 
democracy, and questioned the legality of the standing of the Beijing 
Bar Association. Soon after, some Beijing lawyers began receiving text 
messages from these lawyers, baiting them by calling for reduced Bar 
Association membership fees, a restructuring of the tax system, and 
stirring up lawyers with calls for so-called ``Direct Elections to the 
Beijing Bar Association.'' Any individual who uses text messages, the 
web or other media to privately promote and disseminate the concept of 
direct elections, express controversial opinions, thereby spreading 
rumors within the Beijing Bar Association, confuse and poison people's 
minds, and convince people of circumstances that do not exist regarding 
the so-called ``Call For Direct Elections For the Beijing Bar 
Association'' is illegal. They are using the opportunity of the end of 
the tenure of the present Bar Association administration to manipulate 
the enthusiasm of some lawyers to participate in the management 
process, using the banner of ``Democratic Bar Association Management,'' 
is a vain attempt to evade the supervision of the Justice Bureau and 
the Bar Association's professional management.''
---------------------------------------------------------------------------
    \40\ Source: http://www.gongmeng.cn/sub--r.php?zyj--id=1920 
(Chinese); http://www.chinafreepress.org/publish/case/Our--Response--
to--the--Beijing--Bar--Association--s--Serious--Statement.shtml 
(Chinese).
---------------------------------------------------------------------------
    We are the lawyers who jointly issued the statement: ``Accord With 
the Tide of History, Directly Elect the Beijing Bar Association--
Announcement To All Beijing Lawyers, Beijing Justice Bureau, and the 
Beijing Bar Association.'' In addition to issuing this statement, we 
used text messages, posted letters and other means to call on all 
Beijing lawyers to demand their rights and actively participate in the 
upcoming election for representatives to the Beijing Bar Association. 
Our objective is clear, to mobilize the mass of Beijing lawyers to 
assert their legal rights, and prevent the Beijing Bar Association from 
being controlled and turning into a special interest clique. We want to 
elect representatives who will defend the real interests and legal 
rights of the majority of Beijing's lawyers. The Lawyer's Law clearly 
states that the Bar Association is an autonomous social organization 
and its representatives are chosen by election and of course it must 
submit to the supervision of its members. The Bar Association 
represents all lawyers. As members we feel an obligation to concern 
ourselves with the outcome of this leadership transition and actively 
participate in the election. All of our actions and speech have been 
aimed at promoting the Bar Association's democratic election and 
democratic supervision. We are doing what members of the Bar 
Association should do. Our actions are both legal and proper.
    But we greatly regret that the Beijing Bar Association considers 
itself an entity independent of its lawyer constituency and has 
completely inverted the master and servant relationship. It not only 
did not support the active participation of some of its lawyer members 
in its election process, but on the contrary wrote such a threatening 
and alarming statement in response to this effort. It characterized our 
completely reasonable call for a reduction of membership fees as 
``incitement speech.'' It called our appeal for all lawyer members to 
participate in the direct election of the Bar Association board and 
presidency as ``the pretense of promoting democratic elections.'' It 
described our networking via cell phones, the Internet and other legal 
media to generate support and seek candidates as ``illicit 
coordinating.'' It describes the participating, supporting, and 
appealing actions of more and more lawyers as ``not understanding the 
true circumstances'' and being ``misled.'' And it says that lawyers 
taking the initiative as constituents and legally exercising their 
right to free speech and criticizing their insufficient supervision in 
the past and calling for democratic elections as ``illegal.'' And it 
portrays a group of lawyers actively promoting the democratic self-
government activity of citizens as ``comprehensively violating the 
present Bar Association management system, the justice system, and the 
political system.'' We are deeply sorry and regretful that at this time 
in the 21st century that our country is trying to carry out the 
socialist democratic rule of law, the Beijing Bar Association would 
issue such a strong Cultural Revolution-like statement.
    Orderly participation by citizens in promoting progress of the 
democratic rule of law, pursuing people being the master of their own 
affairs, is our country's people and the ruling party's objective of 
struggle. As lawyers actively promoting the democratic election of the 
representatives of our professional organization, its democratic 
policymaking and democratic supervision completely accords with the 
tide of history, and contrary to opposing the political system as the 
Beijing Bar Association alleges, it actively accords with and puts into 
practice the political system. This autumn the Beijing Bar Association 
will have its regularly scheduled leadership change. We call on all 
Beijing lawyers to exercise their legal rights and demand to 
participate in the democratic election of new Bar Association 
representatives. We also hope that the Beijing Bar Association, as an 
autonomous organization of lawyers, accords with the law and carries 
out our called-for direct election of its representatives, reduces the 
membership fee and reflects on its work and welcomes the participation, 
democratic election, policymaking, and supervision of its lawyer 
constituents.
    Finally, in view of the Bar Association's ``Serious Statement'' 
slandering our legal action, we urgently call on the Bar Association to 
publicize who participated in the drafting and disseminating of this 
``Serious Statement'' and that they issue a public apology. We will 
also continue to look into the legal liability of those who 
participated in this tortuous action.
    As Beijing Bar Association members, we have the right to reiterate:

    1. The forthcoming leadership transition of the Beijing Bar 
Association should be the result of a direct democratic election. This 
process should be guided, supervised and carried out according to law 
by the municipal justice bureau and all lawyer members of the Beijing 
Bar Association should participate.
    2. The direct election of the Beijing Bar Association's president 
and board of directors should begin from this leadership transition.
    3. To ensure the protection of the legal rights of Beijing's 
lawyers to select the Bar Association's representatives, and to promote 
effective supervision of the Bar Association's work, our draft copy of 
the ``Beijing Bar Association's Election Regulations'' (name can be 
changed) should be put to a vote and passed if 1/2 the Bar Association 
membership approves.
    4. Draft the Beijing Bar Association's written regulations and 
submit it to the membership's review and evaluation.
    5. Bar Association membership fees should be reasonably readjusted, 
with at minimum a 50 percent decrease implemented.
    6. Immediately audit and publicize the Bar Association's past 
years' revenue and expenditures, and publicize the decisionmaking 
process and revenue and expenditures of the Bar Association's office 
building.
    7. Immediately remove the discriminatory ``W'' (``waidi'') mark on 
the professional work cards of lawyers from outside Beijing, and issue 
an apology to these lawyers. Beijing lawyers participating in the 
``Accord With the Tide of History, Directly Elect the Beijing Bar 
Association--Announcement To All Beijing Lawyers, Beijing Justice 
Bureau, and the Beijing Bar Association'' campaign.
    Saturday September 6, 2008.
                                 ______
                                 

                Prepared Statement of Gardner Bovingdon

                            october 7, 2009
                         human rights and china
    The Universal Declaration of Human Rights (UDHR), adopted by the UN 
General Assembly in 1948, is widely cited as an articulation of human 
rights acknowledged around the world, since so many governments were 
signatory. It identifies among those rights freedom of speech, 
assembly, and association, as well as freedom of religious belief and 
practice. It also articulates a right to ``seek, receive, and impart 
information and ideas through any media and regardless of frontiers.'' 
http://www.un.org/en/documents/udhr/#atop 
    Beijing has long challenged the assertion that there are universal 
human rights. The mildest objection has been that different cultures 
define human values, and rights, differently, and that these 
differences must be respected. This line was advanced in the 1993 
Bangkok Declaration on human rights, to which Beijing was signatory. 
Some critics have more sharply denounced Americans' criticisms of 
China's human rights record as interference in China's ``internal 
affairs.'' Chinese officials have long worried that foreign 
governments, including the United States Government, have invoked 
concern for human rights in China as a cloak for attempts to bring 
about ``peaceful evolution'' or, more recently, a ``Color Revolution,'' 
both euphemisms for regime change. Similarly, officials have worried 
since at least the mid-1990s that behind criticisms of human rights 
abuses in Tibet and Xinjiang lie plots to separate those territories 
from China.
    We do well to acknowledge these concerns, and therefore must take 
pains to avoid even the appearance of raising the matter of human 
rights to serve other, strategic aims. When we speak of human rights we 
ought to focus, first and last, on the conditions of human 
flourishing--on the ``dignity and worth of the human person,'' as the 
visionary UDHR puts it--and not on scoring political points.
    That said, the argument that the human rights identified in the 
UDHR do not apply to China or require modification because they are 
incompatible with Chinese culture is unpersuasive, for at least two 
reasons. First, the PRC Constitution announces in Article 35 that 
Chinese citizens ``enjoy freedom of speech, of the press, of assembly, 
of association, of procession, and of demonstration.'' Article 36 adds 
that citizens have ``freedom of religious belief,'' and Article 41 
recognizes the right to ``criticize and make suggestions to any state 
organ or functionary.'' Second, hundreds of thousands of Chinese 
citizens, if not many times that number, have sought to exercise the 
very freedoms codified in the Constitution in 1982. They have published 
wall posters, handwritten manifestoes, journals, and books; they have 
spoken out in public; they have joined political and religious 
organizations; and they have demonstrated and marched peacefully, to 
express political or religious views. Put simply, Chinese citizens have 
shown that they consider these to be rights by exercising them.
               what happened in urumchi on july 5, 2009?
    Did the events of July 5 begin with an attempt by Uyghurs to 
exercise such rights peacefully? It would appear so, but our 
information about the course of events on that day is still meager. 
There is evidence that the day began with a peaceful protest against 
the government's handling of a factory brawl in Shaoguan, Guangdong, 
the night of June 25 and 26, in which two Uyghurs were killed and more 
than one hundred injured. There is also abundant evidence of violence 
against property and people on that day. A number of questions remain:

         Who organized the protest? Chinese authorities blame 
        Rabiya Qadir (Rebiya Kadeer) and others abroad. She denies the 
        charge. It has been reported that students in Urumchi 
        circulated comments on the Internet about the handling of the 
        Shaoguan incident and proposing a demonstration. It also 
        appears that the government, knowing of these comments, 
        detained students on the morning of July 5 to prevent them from 
        participating in the demonstration. Whether or not figures 
        outside Xinjiang played some role in organizing the protest, 
        there is strong evidence that locals inside Xinjiang did have a 
        role. Moreover, the large number of participants in the protest 
        suggests that we must look locally for its sources. In plain 
        terms, no amount of orchestration from outside Xinjiang could 
        have produced a protest or riot of this scale in the absence of 
        large numbers of people willing to participate.
         Did police respond to violence, or did police action 
        incite demonstrators to violence? There is insufficient 
        information to answer this question now. Chinese sources argue 
        the former, Uyghur organizations abroad the latter. The heavy 
        politicization of the events and their aftermath make it 
        unlikely that reliable, unbiased information will emerge soon.
         What were the sources, and aims, of the protest? 
        Again, it is impossible to answer this question definitively. 
        The Shaoguan incident was clearly a spark, but Uyghurs have 
        raised many other grievance in prior years, and there is 
        considerable evidence of widespread Uyghur dissatisfaction with 
        Xinjiang's governance.\1\ In blaming the July 5 events on 
        outside instigators and local manipulators, and in claiming 
        that most participants were ``members of the masses who did not 
        understand the real situation''--a standard rhetorical figure--
        the Chinese government has sought to direct attention away from 
        Uyghur grievances and the question of how they might 
        legitimately be expressed. The 
        government has justified its very strong police and judicial 
        response by characterizing the July 5 events as ``terrorist'' 
        and an episode of ``beating, smashing, and looting.'' It is 
        safe to say, however, that the police response, the official 
        characterization of the episode, and the judicial handling of 
        accused participants are likely to have a chilling effect on 
        those considering protest or public dissent in the future.
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    \1\ Bovingdon, Gardner. 2002. ``The Not-So-Silent Majority: Uyghur 
Resistance to Han Rule in Xinjiang.'' Modern China 28 (1):39-78. 
Bovingdon, Gardner. 2004. ``Autonomy in Xinjiang: Han Nationalist 
Imperatives and Uyghur Discontent.'' Policy Studies (11):1-64. 
Bovingdon, Gardner. Forthcoming 2010. The Uyghurs: Strangers in Their 
Own Land. New York: Columbia University Press.
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                        human rights in xinjiang
    The evidence on human rights in Xinjiang over the last year is 
mixed, and there is some justification for cautious optimism. On the 
whole, however, the human rights situation in Xinjiang in 2008-9 
appears no better than, and indeed in some regards worse than, in years 
prior.
    One bright spot was government decisions to free individuals 
detained for questioning on what appear to have been political grounds. 
The most prominent example was the outspoken Uyghur economist Ilham 
Tohti, arrested several times in connection with his blog ``Uighur 
Online,'' and arrested once again after the July 5 riots. He was 
released August 23.
    Another bright spot was the decision to invite a group of foreign 
reporters to Urumchi to inspect the aftermath of the July 5 riots 
firsthand. This was a marked departure from the media blackout Beijing 
imposed in the wake of the March 2008 protests in Tibet.
    On the other hand, various aspects of the official response to the 
July 5 events are worrying. Within a day the government had shut down 
Internet service, cut off various text messaging services, and 
curtailed cell phone service. Officials announced soon after the July 5 
events that they had shut down the Internet to ``to quench the riot 
quickly and prevent violence from spreading to other places.'' A check 
of major government and news web sites in Xinjiang this morning 
confirmed that they are still inaccessible more than 3 months later. It 
should be noted that whatever the intention, shutting down modes of 
electronic communication abrogates the stipulation in the UDHR that all 
have a right to ``seek, receive, and impart information and ideas 
through any media and regardless of frontiers.''
    Second, there is evidence that officials used a very free hand in 
detaining individuals in connection with the events. Human rights 
organizations have argued that the Chinese government ``criminalizes'' 
the public expression of political dissent in Xinjiang, and the 
handling of the July 5 protesters unfortunately confirms that 
suspicion--as did, unhappily, the detention of large numbers of Uyghurs 
in the runup to the 2008 Summer Olympics.\2\
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    \2\ Becquelin, Nicolas. 2004. ``Criminalizing Ethnicity: Political 
Repression in Xinjiang.'' China Rights Forum (1):39-46.
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    Third, the government has sought to discourage lawyers and law 
firms from handling the cases of individuals accused of participating 
in the July 5 events. It has also announced the intention to select and 
prepare the lawyers who will try the cases, with the worrying 
implication that the lawyers chosen will lack experience with criminal 
cases and will have received prior instructions on how cases ought to 
be decided.\3\ Furthermore, in very publicly characterizing the July 5 
events as a ``riot,'' and in attributing its organization and aims to 
``separatists'' and ``terrorists,'' the government has dramatically 
compromised the likelihood that the accused will enjoy a presumption of 
innocence and receive fair trails.
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    \3\ http://www.cecc.gov/pages/virtualAcad/
index.phpd?showsingle=128444. While it may seem an odd choice to cite 
CECC materials in testimony before the CECC, I have done so only after 
confirming the sources they cite and determining to my satisfaction 
that the summaries and arguments are sound and comprehensive.
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    Over the last year, officials have also placed further restrictions 
on Uyghur religious belief and practice, more closely regulating--and 
possibly purging the ranks of--female clerics and further discouraging 
religiosity among minors.\4\
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    \4\ http://www.cecc.gov/pages/virtualAcad/
index.phpd?showsingle=125102 and http://www.cecc.gov/pages/virtualAcad/
index.phpd?showsingle=125058. Please see the previous footnote for a 
justification of these citations.
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