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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ANNUAL REPORT
2002
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ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
OCTOBER 2, 2002
__________
Printed for the use of the Congressional-Executive Commission on China
Available via the World Wide Web: http://www.cecc.gov
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
Senate
House
MAX BAUCUS, Montana, Chairman DOUG BEREUTER, Nebraska, Co-
CARL LEVIN, Michigan Chairman
DIANNE FEINSTEIN, California JIM LEACH, Iowa
BYRON DORGAN, North Dakota DAVID DREIER, California
EVAN BAYH, Indiana FRANK WOLF, Virginia
CHUCK HAGEL, Nebraska JOE PITTS, Pennsylvania
BOB SMITH, New Hampshire SANDER LEVIN, Michigan
SAM BROWNBACK, Kansas MARCY KAPTUR, Ohio
TIM HUTCHINSON, Arkansas SHERROD BROWN, Ohio
JIM DAVIS, Florida
EXECUTIVE BRANCH COMMISSIONERS
PAULA DOBRIANSKY, Department of State
GRANT ALDONAS, Department of Commerce
D. CAMERON FINDLAY, Department of Labor
LORNE CRANER, Department of State
JAMES KELLY, Department of State
Ira Wolf, Staff Director
John Foarde, Deputy Staff Director
(ii)
C O N T E N T S
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Page
Executive Summary and Priority Recommendations................... 1
1. Role and Purpose of the Commission............................ 8
<bullet> Legislative Mandate................................. 8
<bullet> The Role of the Commission.......................... 8
2. Human Rights in the Context of the Rule of Law................ 9
3. Trends in the Development of Human Rights and Rule of Law..... 11
4. Commission Activities in 2002: Issues and Recommendations..... 16
<bullet> Religious Freedom................................... 16
<bullet> Labor Rights and Working Conditions................. 20
<bullet> Criminal Justice.................................... 26
<bullet> Free Flow of Information............................ 32
<bullet> Village Elections................................... 35
<bullet> Tibet............................................... 37
<bullet> Xinjiang--Uighurs................................... 42
<bullet> Impact of the WTO on Development of the Rule of Law. 46
<bullet> Rule of Law Programs................................ 50
<bullet> General Recommendations............................. 52
5. Commission Activities for the Next Year (Illustrative List)... 53
<bullet> Human Rights and the Beijing 2008 Olympics.......... 53
<bullet> Corporate Social Responsibility..................... 54
<bullet> Women's Rights...................................... 54
<bullet> HIV/AIDS............................................ 55
<bullet> Reform Through Labor (Laogai)....................... 55
<bullet> Rights of Farmers and Rural Migrants................ 56
<bullet> Indigenous Chinese ``NGOs''......................... 56
<bullet> Hong Kong........................................... 57
<bullet> Development of Prisoner Database and Registry....... 58
6. Additional Views of Commission Members........................ 58
7. Appendix...................................................... 64
<bullet> Website Summary..................................... 64
<bullet> Commission Activities in 2002....................... 65
<bullet> China's International Human Rights Commitments...... 67
Endnotes......................................................... 70
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ANNUAL REPORT FOR 2002
Executive Summary
An evaluation of human rights and the rule of law in China
reveals a complex picture of contradictory trends and isolated
improvements, overshadowed by the Chinese government's
persistent violations of fundamental, internationally
recognized human rights. China's leaders have worked to develop
a market-oriented economy while maintaining firm Communist
Party control. Over the past two decades, China has made
important strides toward building the structure of a modern
legal system. Chinese citizens today enjoy greater individual
autonomy and more personal freedom than they could have
imagined during the days of Chairman Mao Zedong. Nevertheless,
China's leaders still do not respect fundamental international
standards on many human rights for the Chinese people.
A wide gap remains between the law on paper and the law in
practice. The Chinese Constitution guarantees freedom of
worship, assembly, speech, and other fundamental liberties, but
provisions elsewhere in the Constitution undermine such
freedoms. Furthermore, the political considerations of central
and local leaders often trump constitutional and other legal
protections. Chinese authorities often ignore legal protections
for suspects and defendants in criminal cases. Although China
has passed numerous laws and regulations on working conditions,
these protections are frequently ignored by factory managers or
go unenforced by local officials. This gap between law and
practice is rooted, in part, in the Communist Party's desire to
maintain unquestioned authority and power, the Chinese
government's deliberate manipulation of the legal system, and a
lack of public awareness of the law. The gap is also the result
of official corruption, decentralization, and the sheer size of
China.
Some believe that long-lasting change in China depends on
the expansion of specific legal mechanisms that empower the
Chinese people to assert their rights and interests. China's
20-year program of legal construction is accelerating as China
implements its World Trade Organization (WTO) commitments
requiring greater transparency in the lawmaking process, more
effective procedures for challenging administrative action, and
greater judicial independence. Although these commitments are
aimed primarily at improving the legal framework for commercial
transactions, they complement other government efforts designed
to provide Chinese citizens with limited remedies for official
misconduct. No one can be certain that these legal reforms will
spur political liberalization and greater respect for human
rights in China. However, they contribute to an essential legal
framework in which human rights may be protected.
The Congressional-Executive Commission on China
Congress created the Congressional-Executive Commission on
China to monitor China's compliance with international human
rights standards, encourage the development of the rule of law,
establish and maintain a list of victims of human rights
abuses, and promote bilateral cooperation. With Commissioners
drawn from both the Congress and the Administration, the
Commission has a special role and a unique vantage point in
developing recommendations for policy and action. It seeks to
mobilize members of Congress and encourage the Administration
to act on human rights and rule of law issues, providing a
forum where both branches can work together. The Commission's
website (www.cecc.gov) informs Americans and others about these
issues. The Commission also serves as a scholarly resource on
China for the Congress and the Administration. In its annual
report and at other times during the year, the Commission
recommends legislation and policy and reports on progress in
China. The Commission holds hearings, conducts visits to China,
and meets with key decision-makers both in China and the United
States.
This inaugural report presents the Commission's findings
for its abbreviated first year of operation. It is the product
of a variety of activities undertaken since February 2002,
including three public hearings and twelve staff-led
roundtables involving 63 witnesses, staff research and visits
to China, and ongoing cooperation and exchange with government
agencies and non-governmental organizations (NGOs). Through
these activities, the Commission has focused on many of the
core issues outlined in its statutory mandate, including
religious freedom, labor rights, free flow of information,
criminal justice, the rights of ethnic minorities, and the rule
of law. The Commission will examine these issues and others in
greater depth over the coming year.
This report also includes the Commission's initial set of
recommendations for legislative and executive branch action.
The Commission believes that the United States should continue
to take a dual approach to promote both human rights and rule
of law in China. Dialogue and high-level advocacy on human
rights and cases of specific political prisoners should be
coupled with enhanced financial and technical support for
efforts to build a system based on the rule of law that will
help protect the human rights of China's citizens. The
Commission has highlighted its thirteen priority
recommendations at the conclusion of this Executive Summary.
These and other recommendations (41 in total) are discussed in
greater detail in the body of the report.
The Commission's Executive Branch members have participated
in and supported the work of the Commission, including the
preparation of this report. However, the views and
recommendations expressed in the report do not necessarily
reflect the views of individual Executive Branch members or the
Administration.
Findings of the Commission
China has worked vigorously over the last two decades to
modernize its economy and improve living standards. To provide
a foundation for market reforms and to attract foreign
investment, China has undertaken an unprecedented program of
legal construction. In its effort to rebuild a legal system
left in shambles after the turbulent Cultural Revolution (1966-
1976), China has promulgated hundreds of laws, revamped its
court system, engaged in a nationwide effort to professionalize
and expand its corps of lawyers and judges, and undertaken a
host of other reforms.
These reforms have had a profound effect on Chinese society
and government. Economic and political power has been gradually
shifting from Beijing to provincial and local governments,
making it more difficult for the central government to
implement many legal reforms from the top down. One result is
significant regional variation both in the pace of legal change
and in the protection of human rights. The transition from a
planned to a market economy has triggered the collapse of
inefficient state-owned enterprises, contributing to rising
unemployment and a breakdown in social services. Crime and
corruption have grown at alarming rates. At the same time,
state control over many aspects of daily life has weakened, and
citizens have begun to use the law to protect their own
interests. Nevertheless, farmers, workers, and religious
practitioners are also increasingly taking their
dissatisfaction to the streets, demanding their rights through
protests and demonstrations. The Chinese government has
consistently suppressed these efforts and, at times, arrested
the protest leaders.
Despite deepening economic reforms, China's authoritarian
government has resisted calls for political liberalization and
has made little progress on improving civil and political
rights. Although the Chinese government is seeking to ease
widespread anger over rampant official corruption by requiring
the direct election of village leaders and encouraging official
accountability, the Party has overshadowed such promising steps
by continuing to suppress any threat to its unchallenged grip
on power. The violent suppression of peaceful pro-democracy
protesters in Tiananmen Square in 1989 set in motion a renewed
period of intolerance of political dissent. The current Chinese
leadership appears determined to modernize the economy while
keeping a tight lid on political dissent, continuing firm Party
rule, and maintaining its vision of social stability.
China's leaders are keenly aware of the role that labor
unions played in undermining Communist Party rule in Eastern
Europe and are determined to prevent similar challenges in
China. The Chinese government forbids independent trade unions,
and labor leaders who have tried to organize independent unions
have been detained or imprisoned. All unions are subject to the
supervision of the All-China Federation of Trade Unions
(ACFTU), which is tightly controlled by the Communist Party and
serves the interests of the state and the Party. There is no
right to strike. Regulations on workplace health and safety, as
well as on work hours and overtime pay, are often ignored. The
massive migration from rural to urban areas and the increased
unemployment from shrinking and closing state-owned enterprises
have seriously exacerbated worker unrest.
The Chinese government and the Communist Party also attempt
to maintain strict control over religious groups. All temples,
mosques, churches, and monasteries in China are required to
register with the state and submit to the supervision of
government-controlled religious umbrella organizations. These
organizations approve the selection of religious leaders, vet
religious texts, and oversee religious education. In many
regions, Chinese authorities have engaged in a systematic
campaign to root out underground and unsanctioned religious
groups and branded some as dangerous ``cults.'' Numerous
religious leaders have been detained and imprisoned in this
effort. In other regions, authorities have interfered less in
unsanctioned religious activity.
In enforcing their vision of ``national unity,'' China's
leaders have made ethnic minorities a target of tight control
as well. Although the Chinese Constitution grants nominal
autonomy to many ethnic minorities, they are not able to
exercise this autonomy in practice. A small number of Uighur
separatists has committed acts of terrorism, and one Uighur
group, the East Turkestan Islamic Movement, has recently been
added to a U.S. list of foreign organizations that support
terrorism. However, many Tibetans and Uighurs who have
protested peacefully for greater autonomy or, in some cases,
independence, have been imprisoned and tortured. The Chinese
government has not distinguished clearly between separatism and
legitimate political, cultural, and religious expression. Thus,
its efforts to control ethnic minorities have led to
restrictions on the religious and cultural practices of Tibetan
Buddhists and Uighur Muslims, including a recent ban on Uighur-
language instruction at Xinjiang University and a large public
burning of Uighur-language books. China continues to forbid
open expressions of loyalty to Tibet's exiled spiritual leader,
the Dalai Lama, whom the Chinese government regards as a
separatist.
The Chinese Constitution guarantees freedom of assembly,
but demonstrations must be approved in advance by police and
permission is rarely granted. Authorities often break up
demonstrations, such as the worker protests in Daqing,
Liaoyang, and Fushun earlier this year, using a combination of
detention of demonstration leaders, minor concessions to
demonstrators, and, if necessary, force. After a peaceful
demonstration by more than 10,000 Falun Gong members in 1999
outside the central leadership compound in Beijing, the Chinese
government banned the spiritual movement and launched a
nationwide campaign to eradicate ``heretical cults.'' This
campaign has resulted in the detention of thousands of
practitioners and the torture and death of many Falun Gong
leaders and members. The crackdown has led to intensified
persecution of other groups as well, including underground
Protestant and Catholic ``house churches.''
Information control in China remains strict. In recent
years, authorities have allowed journalists to write about some
cases of official malfeasance as part of a government attempt
to crack down on corruption. Newspapers and magazines have been
quick to capitalize on this opportunity, feeding a public
desire for investigative reporting. However, the government
still prohibits direct criticism of the Communist Party and
limits reporting on topics it deems sensitive, including
workers' protests, rural unrest, Falun Gong, corruption at high
levels, and the 1989 Tiananmen Square crackdown. At the same
time, the limits of reporting are often arbitrary and unclear.
Journalists who cross these undefined lines can face demotion,
job loss, and, in some cases, imprisonment. Chinese authorities
regularly block foreign government radio and television
broadcasts into China.
Chinese leaders have embraced the Internet for its
technological and commercial benefits, and there has been
exponential growth in the on-line community. But they have also
gone to great lengths to control Internet content and access.
Authorities regularly block international news websites and
have imposed strict registration and content requirements on
Internet Service Providers (ISPs). Security networks monitor
Internet traffic. In the past year, the government has
intensified efforts to control the Internet, recently blocking
the AltaVista and Google websites. The government requires
Internet businesses to police their customers, and more than
100 Internet businesses, including Yahoo's China subsidiary,
recently signed a government-sponsored pledge, agreeing to
monitor users and remove ``harmful'' information. Under Chinese
law, any person who posts content that the government has not
approved is subject to potential fines and imprisonment. For
example, it is illegal to post anything that harms social
stability, a vague phrase that authorities use as a pretense to
silence those who use the Internet to criticize the Communist
Party or its policies.
China's criminal justice system provides the machinery for
enforcement of many of the social and political controls
discussed above. Despite revisions to the Criminal Procedure
Law and Criminal Law, the impact of such reforms on the
protection of criminal suspects and defendants has been
minimal. China's criminal justice system remains subject to
manipulation by authorities. Torture is illegal but remains
widespread, and confessions coerced by torture are still
admissible as evidence in criminal cases. Chinese authorities
frequently ignore legal provisions that guarantee criminal
defendants access to lawyers. Criminal defense attorneys who
represent their clients zealously may be subject to
intimidation and, in some cases, detention and criminal
prosecution, particularly in politically sensitive cases.
Undergirding the government's manipulation of the criminal
process is Party control of the judiciary. Inadequate legal
training and the generally low level of education of judges in
China are also problems.
In many criminal cases, Chinese authorities ignore even the
minimal protections that Chinese law provides. During China's
periodic Strike Hard anti-crime campaigns, local criminal
justice authorities, under pressure from the central government
to produce convictions, often flout basic criminal procedures
(for example, by denying defendants access to lawyers) in order
to obtain quick convictions. Many Chinese are detained for long
periods without trial. The police have the administrative power
to send individuals to ``re-education through labor'' for up to
three years, with a possible one-year extension, for a variety
of offenses that include prostitution, drug possession, and
``disturbing social order.'' Re-education through labor is
frequently used in political cases to circumvent the formal
criminal justice system, a practice of grave concern to the
international community.
United States Action on Human Rights and the Rule of Law
The Chinese people themselves will ultimately determine
China's direction and the degree to which the Chinese
government respects fundamental human rights. The Commission
believes that the United States should work to provide China's
government and citizens with an enhanced understanding of the
law and with a range of legal tools to protect human rights.
The United States can achieve this goal in part by supporting
legal development programs in China. U.S. NGOs have been at the
forefront of these efforts. However, the U.S. government lags
far behind other nations in providing technical and financial
assistance for rule of law programs in China. This gap
represents a missed opportunity by the United States to assist
China's reformers.
Human rights advocacy gives hope to those in China who risk
their personal liberty, and even their lives, by demanding
internationally recognized rights and freedoms. While engaging
China through trade, political dialogue, and legal development
initiatives, the United States must continue to pressure the
Chinese government on both broad human rights and rule of law
issues and individual cases of political prisoners. While the
United States extends the hand of friendship, it will continue
to support those who suffer persecution for asserting their
internationally recognized human rights.
Priority Recommendations
Based on the findings presented in this report and the
Commission's belief that the United States must continue to
pursue a dual policy of high-level advocacy on human rights
issues and support for legal reform efforts, the Congressional
members of the Commission highlight the following 13 priority
recommendations to the Congress and the President:
<bullet> The Commission recommends that the
President, senior Executive Branch officials, and
members of Congress continue to raise human rights
issues, as well as individual cases of victims of human
rights abuses, including those discussed in this
report, whenever they meet with Chinese government
officials. The Commission further recommends that the
Administration include Commission leaders in any future
Presidential visit to China.
<bullet> The Commission recommends that the Congress
and the Administration expand U.S. government efforts
to disseminate human rights, worker rights, and rule of
law-related information in China through radio,
television, and the Internet.
<bullet> The Commission recommends that the
Administration continue to work multilaterally to
encourage China to cooperate fully with the UN Special
Rapporteur on Torture.
<bullet> The Commission recommends that the Congress
appropriate funds to an American university, NGO, or
other organization to train individuals from U.S.
faith-based or other organizations with links to
religious groups in China to assist Chinese religious
leaders in asserting their existing right of freedom to
practice religion under the Chinese Constitution and
international human rights documents.
<bullet> The Commission recommends that the
Administration sponsor programs with key Chinese
officials and policymakers to examine the role of
religion in society and to promote the concept of
religious tolerance.
<bullet> The Commission recommends that the Congress
and the Administration provide assistance to legal
clinics to expand the availability of legal
representation in cases involving worker rights, and
that special assistance be provided to legal aid
centers in communities with large numbers of migrant
workers, and migrant women in particular, to build
expertise and capacity in resolving the issues of
concern to this vulnerable group.
<bullet> The Commission recommends that the
Administration facilitate meetings of U.S., Chinese,
and third-country companies doing business in a
specific locality and industry in China to identify
systemic worker rights abuses, develop recommendations
for appropriate Chinese government entities, and
discuss these recommendations with Chinese officials,
with the goal of developing a long-term collaborative
relationship between government and business to assist
in improving China's implementation of internationally
recognized labor standards.
<bullet> The Commission recommends that the Congress
appropriate funds for suitable U.S. institutions to
conduct programs for Chinese criminal defense lawyers
on the role of the criminal defense bar outside of
China and promote exchanges between Chinese and U.S.
criminal defense lawyers.
<bullet> The Commission recommends that the Congress
authorize the development of programming in popular
legal education for groups in China, such as farmers in
remote areas and migrant workers, who are unaware of
their rights under existing law.
<bullet> The Commission recommends that the Congress
appropriate funds and earmark them for the Commercial
Law Development Program (CLDP) to implement a
commercial rule of law training program in China, as
authorized by the U.S-China Relations Act of 2000.
With respect to specific ethnic problems considered by the
Commission this year,
<bullet> The Commission recommends that the Congress
and the Administration continue to urge Chinese leaders
to engage in substantive dialogue with the Dalai Lama
or his representatives.
<bullet> The Commission recommends that the Congress
appropriate increased funding for NGOs to develop
programs that improve the health, education, and
economic conditions of ethnic Tibetans.
<bullet> The Commission recommends that the Congress
and the Administration continue to emphasize that the
war against terrorism is not an excuse for suppression
and violations of human rights of ethnic Uighurs in
Xinjiang, and recommends that the Congress and the
Administration provide funding for NGOs to develop
programs that focus on preserving the Uighur culture
and language.
The Commission's Executive Branch members have participated
in and supported the work of the Commission, including the
preparation of this report. However, the views and
recommendations expressed in the report do not necessarily
reflect the views of individual Executive Branch members or the
Administration.
This report was approved by a vote of 18 to 5.\1\
1. Role and Purpose of the Commission
Legislative Mandate
The United States-China Relations Act of 2000\2\ created
the Congressional-Executive Commission on China (``the
Commission''), established its mandate, and set rules for its
operation. (See the Commission's website at www.cecc.gov for
the full text of Title III of the statute.) Section 302
describes the functions of the Commission, which may be
summarized as follows:
<bullet> Monitoring the acts of the government of
China to assess its compliance with or violation of
international human rights standards, in particular,
the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights;
<bullet> Monitoring the development of the rule of
law in China, with special focus on progress toward
development of democratic institutions; reforming legal
procedures and processes; improving the transparency of
the legal system; treating individuals equally before
the law without regard to their citizenship;
establishing an independent judiciary with appellate
review; and examining the extent to which Chinese laws
are drafted and administered in consonance with the
requirements of the International Covenant on Civil and
Political Rights and other international standards;
<bullet> Monitoring and encouraging bilateral
cooperation between the U.S. and Chinese governments
and private sector organizations in both countries. The
focus should be on programs that improve the ability of
Chinese citizens to exercise the human rights
guaranteed to them in the Chinese Constitution and
under international norms of human rights, as well as
programs that support the development of the rule of
law in China;
<bullet> Establishing and maintaining contacts with
relevant non-governmental organizations (NGOs) and
cooperating with the Special Coordinator for Tibetan
Issues at the Department of State;
<bullet> Reporting to the President and the Congress
each year on the issues in the legislative mandate, and
making recommendations for executive or legislative
action when necessary; and
<bullet> Compiling and maintaining lists of persons
who have suffered from Chinese government abuses as a
result of seeking to exercise rights guaranteed to them
by the Chinese Constitution and existing laws, as well
as internationally recognized human rights.
For a complete list of the Commissioners and links to their
home pages, please see the Commission's website (www.cecc.gov).
The Role of the Commission
The Congressional-Executive Commission on China focuses on
human rights and rule of law issues throughout the year. Unlike
most other government entities, the Commission's members come
from both the legislative and executive branches, providing it
with a special role and a unique vantage point on China. The
Commission seeks bipartisan Congressional action and encourages
Administration activities whenever it can be effective on
specific China human rights and rule of law issues.
The Commission recommends legislative and policy action
whenever appropriate. Its recommendations normally appear in
the annual report to the Congress and the President, laying out
an action plan for U.S. policy toward China on issues related
to human rights and the rule of law. The Commission works
throughout the subsequent year to promote the implementation of
these recommendations.
The Commission also serves as a permanent forum for debate,
information, and education on key issues in U.S.-China
relations. Through its public hearings, issue roundtables,
interaction with senior Chinese officials, NGOs, business
groups, and academics in both countries, multilateral contacts,
and staff research papers, the Commission provides the
Congress, the Administration, and the public with current,
accurate, and detailed information on human rights and rule of
law issues in China. Through its website, the Commission
informs not only Americans but also Chinese about human rights
and rule of law issues in China.
A full-time staff monitoring and analyzing human rights and
rule of law issues serves as a resource for both the Congress
and the Administration. The staff includes experts in the areas
of human rights, religious freedom, legal reform, worker
rights, Tibet, minority affairs, the Internet, media freedom,
and commercial law and the WTO. They are available for
briefings for members of Congress, their staff, and
Administration officials, and can field inquiries on issues
related to human rights and legal reform in China.
The Commission will design and maintain a registry of
prisoners of conscience in China with a view toward assisting
members of Congress, other government officials, and NGOs in
the goal of obtaining the release of these prisoners.
Commissioners plan to visit China regularly to exchange
views with Chinese officials, legislators, academics, and
business leaders and to make firsthand assessments of human
rights and rule of law developments in China's rapidly changing
political, social, and economic environment. Staff visits
designed to build relationships, gather information, and
understand the actual situation in China take place on a
regular basis.
Through all these activities, the Commission examines the
complex forces at work in contemporary China that both favor
and resist change, assesses the impact of specific U.S.
policies and programs on the reform process in China, and
recommends actions that assist in improving human rights and
the rule of law in China.
2. Human Rights in the Context of the Rule of Law
It is essential, if man is not to be compelled to have
recourse, as a last resort, to rebellion against
tyranny and oppression, that human rights should be
protected by the rule of law.
--Preamble to the Universal Declaration of Human Rights
Human rights cannot be enjoyed without legal structures
through which to protect such rights. In theory, the Chinese
Constitution provides for a number of the fundamental human
rights that are set forth in international human rights
documents, such as the right to peaceful assembly.\3\ Other
provisions of the Chinese Constitution undermine such rights,
however, and in practice Chinese citizens do not enjoy many of
these fundamental rights in their daily lives.\4\ Chinese
citizens need legal institutions and mechanisms through which
they can enforce their constitutionally prescribed rights and
other rights and protections established under law.
As indicated in Sections 302(a) and 302(c) of the
Commission's statutory mandate, a rule of law system includes
both substantive and structural elements. The substantive
elements consist of fundamental human rights and freedoms, such
as those listed in Section 302 of the Commission's mandate,
including:
<bullet> freedom of the press;
<bullet> freedom of religion;
<bullet> freedom of assembly;
<bullet> the right to due process and assistance of
counsel in crimi- nal trials;
<bullet> the right to participate in systems of
democratic govern-
ance; and
<bullet> internationally recognized worker rights.
The principal structural elements include:
<bullet> meaningful limits on the arbitrary exercise
of power by
state actors supported by processes and
institutions
through which citizens can challenge state action;
<bullet> predictability (i.e., consistent and fair
application and en- forcement of the law);
<bullet> transparency (i.e., laws and lawmaking
processes that are
clear, public, and accessible);
<bullet> equal application of the law to all
individuals; and
<bullet> an independent judiciary.
The Commission views the development of structural rule of
law elements as an essential foundation for the protection of
fundamental human rights in China. No one can ensure that the
development of the structural elements will lead to greater
respect for human rights in China. Authoritarian governments
have created legal systems that enforce contract and property
rights but still allow flagrant violations of individual
rights. However, the development of the structural rule of law
elements has contributed to the expansion of substantive rights
and freedoms in some political transitions, such as those
experienced in South Korea and Taiwan. More important, human
rights cannot be effectively protected if the structural
elements are not in place.
Given this interplay between protection of human rights and
the rule of law, the United States must pursue a dual approach
as it seeks to improve human rights conditions in China. As it
pressures the Chinese government to protect fundamental human
rights in practice, the United States must assist China in
strengthening the independence of its judiciary, improving
transparency in lawmaking, and enhancing processes for
challenging state action so that China develops a legal
framework in which human rights are recognized and protected.
3. Trends in the Development of Human Rights and
Rule of Law in China
The Chinese Communist Party's insistence on maintaining its
monopoly on power has bled much of the meaning from post-Mao
constitutional promises to govern according to law\5\ and to
recognize certain fundamental human rights.\6\
Since the Revolution of 1911, various Chinese governments
have moved in the direction of adopting elements of a system
based on the rule of law. The Republic of China introduced a
rules-oriented legal system based on European civil codes in
the 1920s, but civil war and the Japanese occupation prevented
implementation of the codes in much of the country. In 1948,
the Republic of China voted in the UN General Assembly to adopt
the Universal Declaration of Human Rights, which expresses a
global consensus on the need for states to recognize minimum
standards of human rights in the treatment of their citizens.
After 1949, the People's Republic under Mao Zedong
abolished existing law and established a Stalinist legal
structure emphasizing communist ideology over human rights and
the rule of law. During the turbulent years of the Cultural
Revolution (1966-1976), respect for the idea of individual
human rights, never strong in socialist states, reached a new
low. Radical Marxist rhetoric during that decade articulated
``bourgeois rights'' as a key target, attacking the very idea
of law as a tool to restrain the righteous indignation of the
masses. Big character posters and slogans urged the people to
``smash the Public Security Bureau, the Prosecutors, and the
Courts'' and proclaimed ``the more chaos, the better.'' \7\
Origins of Reform
The staggering human and social costs of the Cultural
Revolution ultimately resulted in a moderate faction of the
Party, led by Deng Xiaoping, coming to power in 1978. Deng
introduced an era of social liberalization, economic
pragmatism, and legal reform. The atmosphere of change in that
moment encouraged some in China, including Deng himself, to
consider reform within the political sphere as well. In a 1980
speech, Deng said democracy was needed to allow the people to
``supervise political power at the basic level.'' \8\ The
Central Committee of the Party stated, ``There has to be
sufficient democracy before correct centralization can be
conducted.'' \9\ The Party's understanding of the term
``democracy,'' however, did not include the notion of political
criticism or opposition, as demonstrated by the arrest of
democracy advocate Wei Jingsheng for his critique of Deng's
leadership\10\ and the subsequent harsh crackdown on the
``Democracy Wall Movement'' in 1979. It became clear that those
in control of the government and the Party did not intend to
abandon the Party's monopoly on power.
Within the constraints imposed by the authoritarian one-
party system, the process of bringing regularity and
predictability to government operations in China has
accelerated since 1978. In describing this legal reform
process, Professor William Alford of Harvard Law School told
the Commission at its first hearing, ``Over the past quarter
century, the PRC has been engaged in the most concerted program
of legal construction in world history.'' \11\
The first steps in establishing the new ``socialist
legality'' included the passage in 1979 of key ``organic
laws,'' formalizing the institutions of the people's courts,
the people's procuratorate (China's prosecutorial authority),
local people's congresses, and local people's governments.\12\
The same year saw the resurrection of the Ministry of Justice,
abolished in 1959, and legal studies departments and programs
at the university level. Many outside observers may not realize
that these institutions--the basic requirements of a system
based on laws--are so recent. New national legislation also
included two important economic laws to facilitate the
transition to a ``socialist market economy,'' the Chinese-
Foreign Equity Joint Venture Law, designed to attract foreign
investment without losing Chinese control over business
decisions and profits, and the Economic Contract Law, aimed at
eliminating some of the inefficiencies of central planning by
allowing state-owned enterprises to assume responsibility over
their mutual business relationships.\13\
In the area of the rights of criminal defendants, this
early reform legislation included China's first formal Criminal
Law and Criminal Procedure Law. Although the Criminal Law
defined and assigned punishment to a list of specific crimes,
the Law failed to fulfill the basic notice requirement of a
rule of law system in that it included the notorious Article
79, a catch-all provision for punishing unspecified acts as
``crimes'' by analogy to the most nearly applicable crime
defined elsewhere in the Law. In addition, the first chapter of
the 1979 Criminal Law focused on the vague political category
of ``counter-revolutionary'' crimes, defined as ``all acts
endangering the People's Republic of China committed with the
goal of overthrowing the political power of the dictatorship of
the proletariat and the socialist system.'' \14\ The 1979
Criminal Procedure Law limited the role of the trial court to
confirmation of the procuratorate's pre-trial determination of
guilt, turning trials into propaganda displays centered on the
drama of the defendant's confession and repentance rather than
an arena for fact-finding and justice. Defense counsel's most
important role under the 1979 Criminal Procedure Law was the
presentation of mitigating factors relevant to the sentence.
Despite these severe limitations, and considering the low
starting point, the two laws moved in the direction of
recognizing the rights of criminal defendants as listed in
Article 14 of the International Covenant on Civil and Political
Rights and in Section 302 of the Commission's mandate. Another
important development in the Constitution (Article 33) and the
Criminal Law (Article 4) was the declaration that all citizens
were to be equal before the law--a basic requirement of the
rule of law expressed in Article 7 of the Universal Declaration
of Human Rights. These changes were a relief to those who
remembered how criminal liability under Mao depended less on
whether a crime had been committed than on whether the
defendant fell on the correct side of the shifting boundary
defining ``class enemies.'' \15\
Treatment of Dissidents
Trials of dissidents and others jailed or exiled by the
Party in subsequent years continue to demonstrate that formal
enunciation of civil and political rights in the Chinese
Constitution and laws mean little when the government considers
the defendant to be a political threat. Early examples include
those who spoke out for democracy together with Wei Jingsheng,
in the late 1970s. Xu Wenli was jailed for 12 years and then
released, only to be tried and sentenced to 13 more years in
1998 for his participation in founding the China Democracy
Party. Others persecuted for speaking out against government
abuses include the renowned investigative reporter Liu Binyan,
a Communist Party loyalist who was purged from the Party three
times: in 1957 for being a ``rightist''; during the Cultural
Revolution for being a ``counter-revolutionary;'' and finally
in 1987, for ``bourgeois liberalism.'' The famous scientist
Fang Lizhi, vice president of the Anhui University of Science
and Technology, was fired and expelled from the Party for
publicly arguing that democracy was the prerequisite for the
full development of science in China.
The split in Party leadership between reform-oriented
liberals like Hu Yaobang and Zhao Ziyang and hard-line
conservatives was resolved by the hard-liners' decision to
unleash the People's Liberation Army on student pro-democracy
demonstrations, which were centered in Tiananmen Square in
1989. Many leaders and supporters of the student movement, like
Wei, Liu, and Fang, now live in exile. Others, like Chen
Ziming, who currently lives under house arrest in Beijing, were
tried and jailed in China. Among those treated most harshly in
the aftermath of the killings in and around Tiananmen Square
were the ordinary citizens and workers who had dared to join
the demonstrations in support of the students. Of these, Han
Dongfang, who tried to set up an independent workers'
federation in Tiananmen Square during the demonstrations,
barely survived two years of imprisonment and was finally
released because of severe tuberculosis, which was ultimately
treated in the United States. When he attempted to return home,
he was barred at the border from re-entering China. Now he
publishes the China Labour Bulletin in Hong Kong and hosts a
talk show on Radio Free Asia, receiving calls from people in
China about the practical problems faced by workers in the
emerging ``socialist market economy.''
Along with Xu Wenli and Chen Ziming, individuals currently
imprisoned for political expression include China Democracy
Party founders Qin Yongmin and Wang Youcai, both sentenced with
Xu to long prison terms in December 1998. The same month, labor
activist Zhang Shanguang was sentenced to 10 years for
describing farmers' protests to Radio Free Asia. Most recently,
Li Dawei, called by some the ``cyber dissident,'' was sentenced
on June 24, 2002, to 11 years in prison for ``subverting state
power'' by downloading pro-democracy texts from the Internet
and contacting ``reactionary'' organizations abroad. Finally,
in an ominous development for the rule of law in China, the
prominent criminal defense lawyer Zhang Jianzhong has been
arrested for allegedly making a ``false statement'' in a
commercial case. Detained since May 3, 2002, Zhang has been
allowed only minimal contact with his family and has met only
once with the lawyer he hired. The lawyer his family hired on
his behalf has not been permitted to meet with Zhang.
This tale of harsh injustice meted out to political
defendants reflects two fundamental flaws in Chinese law--the
absence of an independent judiciary willing and able to
withstand pressure from the Party, and the lack of an
independent bar to defend those targeted by the Party. Abuses
by China's law enforcement and security apparatus present a
particularly severe obstacle to the implementation of the
internationally recognized human rights of criminal defendants.
Police and security agencies, for example, routinely disregard
legal limits on the detention and interrogation of criminal
suspects and commonly resort to torture and other forms of
physical and psychological abuse.
The Growth of Individual Autonomy: Long-term Perspectives
In comparison with the political domain, a more positive
picture emerges when one contrasts the economic and social
opportunities enjoyed by ordinary individuals in the China of
today with the bleak decades before Mao's death. A distinct
shift toward greater individual autonomy is apparent. Social
controls exercised through China's state work units or danwei,
which once held enormous power over the lives of individual
workers, have relaxed as economic reform stimulates growth in
the private sector and the state shifts some of the
responsibility for social services to local governments. With
the decline of the work assignment system, citizens now
exercise more choice in employment, although this freedom may
seem less attractive now that guarantees once inherent in the
socialist ``iron rice bowl'' are being swept away by massive
lay-offs.
The once-restrictive hukou system preventing citizens from
moving away from their place of registration of permanent
residence is weakening. Many city-dwellers now own their
residences. In the countryside, farmers have greater say in
land use and management, areas previously micromanaged by the
communes. For the time being, the intrusive role of
neighborhood committees and local party branches has
diminished, and citizens are willing to speak more openly about
some topics long avoided as too risky, such as local corruption
and exorbitant taxes and fees. Unfortunately, the persistent
absence of clear definition of the boundaries of politically
and legally acceptable speech, particularly under the Law on
Protecting State Secrets\16\ and the State Security Law,\17\
continues to chill the development of true free speech in
China.
Many in China and elsewhere believe that the best hope for
long-lasting change lies in the expansion of specific legal
mechanisms through which the Chinese people are empowered to
assert their rights and interests. The state has encouraged
this development to a limited extent, if only to rein in its
unwieldy and often corrupt bureaucracy. China's 1989
Administrative Litigation Law, which establishes a procedure
for challenging certain administrative actions, and the 1994
State Compensation Law, under which citizens may seek
compensation for a range of illegal official acts, though
flawed in some respects, provide basic legal mechanisms through
which state action may be challenged.\18\ As rapid economic
change exposes Chinese consumers to a wide array of new
products, public anger at the proliferation of flawed or
dangerous goods has led to the creation of the Chinese
Consumers' Association and the enactment of frequently-used
consumer protection laws.\19\
Statistics on the numbers of different kinds of cases filed
show that growing numbers of individuals are using the law to
protect their personal and property interests. From 1986 to
2000, the number of civil and economic suits handled annually
in Chinese courts increased from around 1.3 million to nearly 5
million.\20\ Such numbers suggest a trend toward legal
empowerment in China, at least in areas not considered a threat
to state or party power. While the legal aid system is still in
its infancy, Article 42 of the 1996 Lawyers Law imposes an
affirmative duty on lawyers to furnish legal aid to the
indigent.\21\ The Ministry of Justice, many law schools and
universities, and a number of foreign and domestic NGOs have
set up networks of legal aid centers to meet some of these
demands.
New Social Tensions and the State's Desire to Maintain Stability
Economic reforms have given rise to new social tensions and
have undermined the legitimacy of the Party. A fiscal system
that permits provincial governments to fund their operations
through ``off-budget'' revenues has tempted many local
officials to divert unregulated monies into their own pockets.
As local revenues grow, local governments attain a measure of
fiscal independence, making it difficult for Beijing to
implement fully legal reforms and compromising the national
uniformity of legal development.
Crime and corruption have grown at alarming rates, leading
to local lawlessness and increasingly angry citizen demands for
redress against malfeasance and extortionate levies by
officials. The central leadership has responded to public
perceptions of a crime wave with national campaigns that
encourage the police to disregard protections provided by the
criminal procedure laws under the slogan ``strike hard against
crime.'' The shift to a market economy and the closure of many
failing state-owned enterprises have created a mushrooming
population of laid-off workers demanding pension and severance
packages owed them by former employers. Massive demonstrations
have erupted as outrage and anxiety rise. Such problems,
together with the government's efforts to control the
associated tensions, have widened the gap between legal rights
as they exist on paper and the ability to exercise those rights
in practice.
Despite increasing willingness to use the rhetoric of
``rule of law'' and ``human rights,'' the government and the
Party's desire to maintain control undermines the promises of
the Constitution in the vital areas of the rights to freedom of
association, religion, and expression. New social organizations
(roughly equivalent in function to NGOs) must find government
sponsors, and religion can only be practiced in institutions
registered by the state. Restrictions on free expression remain
severe, and the government continues to suppress demonstrations
and other challenges to state power, including efforts to
organize independent trade unions. In these areas, new
regulations and government policy and practice actually roll
back freedoms enjoyed under the looser policies of the 1980s.
In summary, two trends have emerged since Deng Xiaoping's
reforms began in 1978. On the one hand, Chinese citizens today
enjoy more individual autonomy and freedom to pursue economic
opportunity and acquire certain property rights, and do so
under a more developed legal system and with less interference
from the state, than was imaginable in 1978. On the other hand,
they are still far from enjoying many of the fundamental rights
and freedoms set forth in the Universal Declaration of Human
Rights and other international human rights instruments.
4. Commission Activities in 2002:
Issues and Recommendations
During this abbreviated initial year of activities, the
Commission's focus was to establish a framework within which to
examine human rights and the rule of law in China, set a
baseline on which to make judgments about progress in the
future, and make an initial set of recommendations to the
Congress and the Administration. This section describes those
areas that the Commission was able to examine in-depth during
this period. Section 5 provides an illustrative list, although
not an exhaustive one, of additional issues on which the
Commission will focus over the coming year.
Religious Freedom
President George W. Bush told students at Beijing's Qinghua
University in February 2002, ``Freedom of religion is not
something to be feared. It's to be welcomed.'' \22\ In his
meetings that month in Beijing with President Jiang Zemin,
President Bush urged the Chinese leader to grant religious
liberty, free jailed Catholic clergy, and pursue dialogue with
the Vatican. Nevertheless, despite guarantees in the Chinese
Constitution protecting ``normal religious activity,'' \23\ the
Chinese government continues to view religious groups as a
threat and places strict limitations on religious practice and
organizations. However, Beijing's heavy hand has failed to
quash what has been called an ``astonishing revival'' in
religious practice and belief in China.\24\
The Chinese government officially recognizes five
religions: Buddhism, Taoism, Islam, Catholicism, and
Protestantism. National regulations require that religious
organizations and individual places of worship register with
the Religious Affairs Bureau, a ministry-level component of the
Chinese government.\25\ All mosques, churches, temples, and
monasteries are forced to submit to state-controlled umbrella
organizations that approve the selection of religious leaders,
vet religious texts, and oversee religious education. These
include the Buddhist Association of China, the China Taoist
Association, the Islamic Association of China, the Patriotic
Association of the Catholic Church in China, and the Three-Self
Patriotic Movement Committee of the Protestant Churches of
China. (Islam and Tibetan Buddhism are addressed in the
report's Xinjiang-Uighur and Tibet sections, respectively.)
Local regulations often are more detailed and restrictive than
their national-level counterparts. Foreign domination over
religion in China is strictly forbidden.\26\
Many religious practitioners in China reject the validity
of worshipping in religious institutions that fall under the
auspices of a government controlled by the officially atheist
Communist Party. As a result, underground churches and other
unsanctioned religious groups are experiencing dramatic growth,
despite the risk of punishment of members. Approximately 13
million Protestants are part of China's state-sanctioned
church, but analysts estimate that 50 million or more
Protestants worship in unregistered house churches.\27\ About
four million Catholics attend the official church, but perhaps
twice that many gather in unregistered churches.\28\ Other
religious movements, with varying degrees of orthodoxy, are
also growing dramatically.
In addition to laws and regulations making it illegal to
participate in unregistered churches, the Chinese government in
recent years has begun labeling many unsanctioned religious
groups as ``cults.'' Anti-cult measures enacted in 1999
initially were directed at Falun Gong, a meditation and
exercise movement that some critics in China and elsewhere say
exhibits mystical overtones. Falun Gong startled China's
leaders with a massive demonstration outside the Zhongnanhai
leadership compound in Beijing in April of that year. The ban
on cults now extends to other groups and movements.
The anti-cult regulations allow local authorities to
classify unsanctioned religious practices as threats to social
stability. Those who engage in such religious activities can be
arrested as criminals and charged with disrupting social
order.\29\ Because local officials often have the discretion to
determine which religious practices are ``cult-like,''
implementation of the laws is often arbitrary. Some localities
adopt a more tolerant approach to private religious practice;
others are repressive. David Aikman, a foreign affairs
consultant, told a Commission roundtable that ``Hunan Province,
for example, which has seen the largest Protestant growth of
any part of China in the last 20 years, is particularly harsh
upon the unregistered leadership groups in its midst.'' \30\
One illustration is the case of Pastor Gong Shengliang,
founder of the banned South China Church. The unregistered
Christian group he founded has grown rapidly over the course of
a decade and now has an estimated 50,000 members in eight
provinces in eastern and central China.\31\ Gong was sentenced
to death on December 5, 2001, on charges of ``establishing [a]
cult organization.'' \32\ He also was accused by authorities in
Hubei Province of ``raping women and violating social order,''
\33\ charges that Paul Marshall of Freedom House told the
roundtable were ``apparently trumped-up.'' \34\ Gong's
execution originally was scheduled for January 5, 2002, but has
been delayed due to international pressure so that he could
appeal. Gong's niece, Li Ying, also a church leader, was given
a death sentence, which was suspended for two years.\35\
Local police often deem as ``cult-like'' practices that are
accepted in mainstream religions in other Asian and Western
nations. Praying for the sick, printing religious material, and
conducting ecumenical relations between churches have all been
cited as illegal activities in China. ``The result of these new
laws and the move against so-called cults has been a marked
deterioration in religious freedom in China over the last
year,'' Marshall told the roundtable.\36\
The Committee for Investigation on Persecution of Religion
in China earlier this year released secret documents smuggled
out of China that allegedly detail government repression of
unauthorized religious groups. The documents, issued between
April 1999 and October 2001, indicate a systematic and
determined effort by officials at the national, provincial, and
local level to suppress religious practice carried on outside
of government control. Measures to be taken against banned
religious groups include surveillance, interrogation, arrest,
and confiscation of property. One document warns that some
religious groups had formed political front organizations in an
attempt to evade the crackdown: ``Discover them quickly, strike
them when they appear, and decisively punish them by law, so as
to destroy them in the cradle.'' Falun Gong, the Unification
Church, and underground Protestants and Catholics are among the
religious groups cited.\37\
The documents reveal a suspicion within the Chinese
leadership that Western nations supported democratic and
religious freedoms in China as part of an effort to foment
unrest, especially as China prepared to enter the World Trade
Organization. In addition, Chinese authorities accuse the
Vatican of ``waiting for an opportunity'' to incite religious
believers to rebel.\38\
China remains reluctant to normalize relations with the
Vatican, despite recent overtures from the Holy See. In October
2001, Pope John Paul II issued a statement in which he
apologized for past church ``errors'' and ``failings'' with
respect to China. He also expressed the hope that ``concrete
forms of communication and cooperation between the Holy See and
the People's Republic of China may soon be established.'' \39\
China's Foreign Ministry responded by calling on the Vatican to
``break relations with Taiwan'' and to stop using religion ``to
interfere in China's internal affairs.'' \40\ But Thomas
Quigley, of the U.S. Conference of Catholic Bishops, told a
Commission roundtable that many leaders within China's official
Catholic Church have already established links with the
Vatican, possibly with Beijing's tacit approval. According to
Mr. Quigley, ``The vast majority of all the registered bishops
have been reconciled with Rome, which the government obviously
knows.'' \41\
Meanwhile, Chinese authorities continue to wield a heavy
hand against leaders of the underground Catholic Church. In
February, the Vatican's official news agency, ZENIT, issued a
list of 33 Catholic bishops and priests who were arrested,
detained, or placed under house arrest in recent years. The
best known, Bishop James Su Zhimin of Baoding, Hebei Province,
was reportedly arrested in October 1997. His whereabouts remain
unknown.\42\
Chinese authorities are carrying out a harsh crackdown on
Uighur Muslims in the Xinjiang Uighur Autonomous Region in
northwest China. The crackdown, carried out under the guise of
anti-terrorism measures, extends to ``religious extremism'' and
``illegal religious activities.'' \43\ The Chinese government
has imposed strict limitations on Muslim worship. Religious
education in schools and universities has been banned, and
those under the age of 18 are not allowed to participate in
religious activities.\44\ Authorities closely monitor the work
of Xinjiang's imams, or Muslim clerics, and in 2001 required
them to attend 20-day ``patriotic re-education'' sessions to
study Communist Party ideology and China's ``anti-splittism''
law.\45\ (See the ``Xinjiang-Uighurs'' section of this report.)
There are 35,000 mosques in China, and more than 45,000 imams,
all of whom must be approved by the government.\46\
Three years after Chinese authorities banned Falun Gong,
government suppression of the spiritual movement continues.
Human rights groups have reported that thousands of
practitioners have been arrested or detained for their beliefs.
Human Rights Watch noted ``substantial evidence that torture
and other abuses are common'' for Falun Gong practitioners in
prisons, re-education camps, and other facilities.\47\
Unconfirmed reports suggest that scores, and possibly hundreds,
of Falun Gong practitioners have died in police custody since
suppression of the group began in 1999. Erping Zhang, President
of the Falun Gong International Committee for Human Rights,
told a Commission open forum, ``We are . . . sad to report
that, in the year 2002, the repression has only worsened.''
(Illustrative legal provisions include: PRC Constitution,
Article 36; PRC Criminal Law, Article 300--1979, amended 1996;
Detailed Rules on Implementing the Provisions on Managing the
Religious Activities of Aliens in the PRC--2000; Decision of
the Standing Committee of the National People's Congress on
Banning Heretical Cult Organizations, Preventing and Punishing
Cult Activities--1999; Regulations on the Registration of
Social Organizations--1998; Measures for the Annual Inspection
of Places of Religious Activity--1996; Measures for the
Registration of Places for Religious Activities--1994;
Regulations on Managing Places for Religious Activities--1994;
Provisions on Managing the Religious Activities of Aliens in
the PRC--1994; Implementing Measures on Managing the
Registration of Religious Social Organizations--1991)\48\
RECOMMENDATIONS ON RELIGIOUS FREEDOM
The Commission recommends that the Congress appropriate funds
to an American university, NGO, or other organization to train
individuals from U.S. faith-based or other organizations with
links to religious groups in China to assist Chinese religious
leaders in asserting their existing right of freedom to
practice religion under the Chinese Constitution and
international human rights documents.
This program would provide U.S. groups with the tools and
skills needed to conduct legal clinics and training sessions in
China, using their own resources and networks of contacts. Such
a program would include preparation of a Chinese-language
handbook with relevant information, such as texts of laws,
regulations, the Chinese Constitution, and international human
rights documents, and suggested guidelines for action.
The Commission recommends that the Administration sponsor
programs with key Chinese officials and policymakers to examine
the role of religion in society and to promote the concept of
religious tolerance.
Elements would include a program to bring key Chinese
individuals to the United States for two to four week visits to
see firsthand the role of religion in American society, as well
as a series of conferences with Chinese officials, leaders of
Chinese religious organizations, and Chinese academics to
examine and discuss the role of religion in society. Themes for
individual conferences could include the role of religion in
civil society; the role of religious groups in the delivery of
social services in Western countries; interfaith dialogue; and
the differences between cults, terrorist organizations, and
religious organizations. Participants should be people who
support reforms in existing Chinese government religious
policies, including officials from the Religious Affairs
Bureau, prosecutors' offices, and scholars from think tanks and
academia. Participants should include individuals from the
provincial as well as central level.
The Commission recommends that the Administration offer its
good offices to assist representatives of religious faiths and
the appropriate Chinese authorities in discussing ways to
improve relations between China and their religious
organizations, including the Holy See, without compromising
essential religious principles or the Holy See's existing
relationship with Taiwan.
Chinese law forbids outside interference in the religious
practices of Chinese citizens. However, many Chinese Catholics,
in particular, seek guidance and instruction from the Vatican.
Catholic bishops and priests in China are serving prison terms
for their recognition of the Pope's authority.
The Commission recommends that the Congress urge the Chinese
government to allow the import of religious literature without
restrictions.
China publishes large quantities of Bibles, Korans, and other
religious texts. However, specific versions of religious
literature used by faith-based groups often are unavailable. In
addition, some religious practitioners oppose using religious
material produced under the auspices of the Communist Party-
controlled government. Currently, the importation of religious
material is illegal.
The Commission recommends that the Administration urge that
China approve a follow-up visit to China and Tibet by the UN
Special Rapporteur on Religious Intolerance and urge China to
implement the Special Rapporteur's earlier recommendations.
The UN Special Rapporteur seeks to highlight and eliminate all
forms of intolerance and discrimination based on religion or
belief. As a permanent member of the UN Security Council, China
should welcome regular visits from the Special Rapporteur,
particularly to areas such as Tibet and Xinjiang.
Labor Rights and Working Conditions
In 1998, China, along with all other members of the
International Labor Organization (ILO), adopted the ILO's
Declaration on Fundamental Principles and Rights at Work, which
obligates members to heed the four core labor standards--
freedom of association and the effective recognition of the
right to collective bargaining, freedom from forced labor, the
effective abolition of child labor, and nondiscrimination in
employment. Moreover, China has signed the International
Covenant on Civil and Political Rights and ratified the
International Covenant on Economic, Social and Cultural Rights.
Both of these covenants contain provisions that protect the
rights of workers, although China has taken reservations on the
latter's section dealing with the right to form free trade
unions and the right to strike.\49\
As China has shifted to a market-oriented economy, labor
issues have become more prominent. While some workers have
benefited from the attendant economic changes, little progress
has been made in implementing core labor standards. Efforts to
improve compliance with China's own national laws are ongoing,
but weak.
Labor unrest has increased in recent years. In the spring
of 2002, tens of thousands of workers engaged in protests in
the northeastern Chinese cities of Liaoyang, Daqing, and Fushun
over issues that included nonpayment of back wages and
pensions, loss of benefits, insufficient severance pay, corrupt
company and government officials, and the inability of workers
to obtain a meaningful hearing on their grievances.\50\
Throughout China, the ``iron rice bowl'' that once guaranteed
workers lifetime employment and benefits is fast disappearing
as financially troubled state-owned enterprises downsize,
privatize, and shut down.
The unemployed rural workers, farmers, and young women who
are flooding into cities, primarily in southern and coastal
China in search of jobs in the rapidly growing private sector,
exacerbate the labor problem. They have few of the benefits of
local residents, and many find jobs in unsafe private factories
where wage and hour, and health and safety laws are seldom
strictly enforced. Economic and social stresses will grow and
become more difficult to manage if Chinese workers are not able
to enjoy their internationally recognized labor rights.
Freedom of Association
The ILO's Declaration on Fundamental Principles and Rights
at Work, as well as International Covenant on Civil and
Political Rights and the International Covenant on Economic,
Social, and Cultural Rights, provide workers the freedom to
associate.\51\ While the Chinese Constitution guarantees
freedom of association,\52\ Chinese law requires that all
worker associations be approved by, and subordinate to, the
All-China Federation of Trade Unions (ACFTU).\53\
No free trade unions exist in China today. Although the
ACFTU Constitution states that ``the major social functions of
the Chinese trade unions are to protect the legitimate
interests and democratic rights of workers and staff members,''
\54\ the government has harassed, arrested, and imprisoned
labor activists who attempt to form independent unions or
organize strikes or worker protests.\55\ Examples include Hu
Shigen and Liu Jingsheng, who are serving sentences of twenty
and fifteen years, respectively, for attempting to organize the
Free Labor Union of China.\56\
The ACFTU serves more as an instrument of the state and
Party than as a body to promote interests of workers,
traditionally acting as a vehicle for propaganda and as a
benefits managing body. Wei Jianxing, the current head of the
ACFTU, is a member of the Standing Committee of the Politburo
of the Central Committee of the Chinese Communist Party.\57\
There are signs that some individuals within the ACFTU have
tried to take a more proactive approach regarding worker
rights.\58\ However, both the Trade Union Law and the ACFTU
Constitution continue to require trade unions to abide by the
leadership of the Communist Party, promote economic reforms,
and safeguard state power.\59\
The Right to Assembly and Strike
The Chinese Constitution, the Universal Declaration of
Human Rights, and the International Covenant on Civil and
Political Rights provide for freedom of speech and
assembly.\60\ Although Chinese law does not explicitly deny the
right to strike, neither does the law protect that right.
Authorities generally act against strikes and break up many
worker protests, although the response of local security
authorities varies widely.\61\
According to government figures, which likely understate
the scope, there have been protests involving more than 10,000
workers in 31 cities in the last few years.\62\ Most of these
were illegal under Chinese laws governing public assembly.
Human Rights Watch has detailed the elaborate means used by the
government to crack down on worker demonstrations, including
targeted arrests and detention and other harsh treatment of the
leaders, along with minor concessions to the majority of
demonstrators.\63\ For example, four key leaders of the
Liaoyang city protest, Yao Fuxin, Pang Qingxiang, Xiao
Yunliang, and Wang Zhaoming, were detained in March 2002,
charged with ``illegal assembly, marches, and protests,'' and
now face possible five-year prison terms.
Despite these measures, in order to manage unrest and
prevent the formation of independent labor organizations, the
government has tolerated some strikes and demonstrations and
has even helped workers achieve their demands in a limited
number of cases where workers have sought to address narrow
economic grievances.\64\
Collective Bargaining
The ILO's Declaration on Fundamental Principles and Rights
at Work guarantees the right of workers to bargain
collectively. Official Chinese sources often refer to
collective bargaining in reaching labor agreements and cite as
evidence the approval of 270,000 collective contracts in
2001.\65\ In some areas in China, local labor authorities
develop a standard employment agreement and distribute it to
all factories for use as a labor contract. Workers have had
little meaningful input into this process.\66\ Without
independent labor unions and the ability of workers to organize
freely, collective bargaining cannot truly be said to exist in
China.
Working Conditions
The International Covenant on Economic, Social and Cultural
Rights recognizes the right of workers to safe and healthy
working conditions. China has adopted measures to improve
conditions at work, including the Labor Law, which requires
employers to implement standards for occupational health and
safety and to educate workers on safety issues; the Law on the
Prevention and Cure of Occupational Diseases; Regulations on
Labor Protection in Workplaces Where Toxic Products Are Used;
and the Law on Work Safety.\67\
Workplace health and safety continue to be serious problems
in China. The State Administration for Work Safety, established
in 2001, reported that, ``from January to July 2002, 65,350
people lost their lives in a total of 549,939 workplace
accidents.'' \68\ Safety in mines has become a priority
concern, with the Chinese government reporting that 12,000
miners were killed in accidents last year.\69\
Chinese law setting maximum hours for the work week and
overtime complies with international standards. However, in
practice, Chinese often work hours far in excess of these
limits, and companies frequently require excessive overtime
that is not paid properly.\70\
Migrant workers living in dormitories connected with
factories in southern China often face conditions of severe
overcrowding, lack of proper sanitation facilities, and
inadequate fire and safety protection. Many have been denied
medical care, access to schools for their children, and other
social benefits.
As in many areas covered by this report, the wide
discretion that local and provincial officials often have in
interpreting and implementing national laws and regulations
results in inconsistencies in application and opens the door to
corruption. For example, China's Labor Law allows enterprises,
with the approval of the local ``labor administrative
department,'' to adopt their own rules for working hours\71\--
an obvious invitation to abuse.
Labor Arbitration and Litigation
The Labor Law and the Regulations for the Handling of Labor
Disputes create a three-tier system for handling labor disputes
that includes mediation, arbitration, and litigation.\72\ With
the help of legal aid and information centers, some Chinese
workers have begun to understand their legal rights. In 2001,
workers filed 155,000 labor disputes, a 14 percent increase
over 2000, although statistics on the issues underlying these
disputes are not available.\73\
Nevertheless, general awareness of China's laws and
regulations on the part of workers, management, and even some
government officials remains low.\74\ The Hong Kong Christian
Industrial Committee, a group that organizes and provides
assistance to workers in Hong Kong and China, found that among
the workers they interviewed, ``Less than half . . . said they
knew about labor law. None of the workers knew about other
regulations concerning labor rights. Workers had no idea how to
use the laws to defend their rights.'' \75\ Programs for
enforcement generally do not exist, and enterprise managers
often ignore the regulations even when they are aware of
them.\76\
Worker advocates often find themselves in peril. Xu Jian, a
labor lawyer in the northern China city of Baotou, who
represented laid-off workers seeking redress from two large
state-owned enterprises, published pamphlets for workers
describing their rights under Chinese law. He was arrested and
sentenced in 2000 to four years in prison for ``incitement to
overthrow state power.'' \77\ Local authorities in Shenzhen
reportedly have ordered Zhou Litai, a lawyer who successfully
represented migrant workers injured in the workplace, to close
his law practice in that city.\78\
Ultimately, judgments about the success of labor
arbitration and litigation can rest only on whether workers
receive fair and impartial adjudication of disputes, whether
these remedies are made available to laid off workers (not
currently entitled to this right under the law),\79\ and to
what extent labor advocates are allowed to assist workers to
pursue grievances and assert their legal rights.
Child Labor
China ratified ILO Convention 182 on the Worst Forms of
Child Labor in August 2002.\80\ China's Law on the Protection
of Minors and related regulations prohibit employment of
children under the age of sixteen, except in very limited
circumstances. Children between sixteen and eighteen cannot
work in hazardous or physically strenuous jobs and are subject
to restrictions that include a prohibition on working overtime
or at night. These protections are ignored in many
workplaces.\81\ One well-publicized case in March 2001 involved
an explosion at a fireworks factory in Jiangxi Province, where
the factory was located inside a school and students
manufactured the fireworks. Forty-two people died, mainly
children.\82\ Estimates for the number of child laborers in
China vary widely.\83\ In the past, the Chinese government
denied that child labor was a problem. However, in October
2001, it established an interagency commission to study the
issue. The commission's activities have not been made public.
Forced Labor
The ILO's Declaration on Fundamental Principles and Rights
at Work and the International Covenant on Civil and Political
Rights prohibit forced labor. Yet China's system of re-
education through labor (laojiao--administrative detention
managed outside of the judicial process) and reform through
labor (laogai--a criminal punishment) encompass several million
individuals subject to forced labor. (See the Criminal Justice
section for details on re-education through labor.)
Chinese regulations bar the export of goods made with
prison labor, and China denies that prison-made goods are being
shipped to the United States.\84\ The United States and China
signed a Memorandum of Understanding in 1992 to prevent import
into the United States of products made using Chinese prison
labor. A subsequent agreement in 1994 permitted U.S. officials,
with Chinese government permission, to visit prison facilities
suspected of producing goods for export to the United
States.\85\ U.S. officials have made thirteen requests for site
visits. Since 1996, they have been permitted to conduct only
three site visits in China and found no proof of prison exports
to the United States.\86\ In June 2002, Chinese officials
agreed to regular meetings to facilitate implementation of the
agreements. China then agreed in September 2002 to allow one
previously requested visit to take place.
The United States-China Relations Act of 2000 created a
Prison Labor Task Force to monitor and promote effective
enforcement of U.S. law in this area.\87\ Its first annual
report to Congress stated, ``We believe that prison officials
frequently provide prison labor to private, quasi-government,
or government-owned manufacturing facilities to perform
manufacturing and assembly work, and that the remuneration
prisons receive for prisoners' services give prison officials
no incentive to cooperate in preventing the export to the
United States of goods made with prison labor.'' \88\ Overall,
Chinese cooperation in implementing these understandings has
been minimal.
(Illustrative legal provisions include: PRC Constitution,
Articles 17, 35, 42, 43, 44; PRC Law on Work Safety--2002; PRC
Law on the Prevention and Cure of Occupational Diseases--2001;
PRC Law on Trade Unions--1992, amended 2001; PRC Labor Law--
1994; Regulations on Labor Protection in Workplaces Where Toxic
Articles Are Used--2002; Regulations on Enterprise Minimum
Wage--1994; PRC Regulations Governing the Settlement of Labor
Disputes in Enterprises--1993; Constitution of the Trade Unions
of the People's Republic of China--1998)
RECOMMENDATIONS ON LABOR RIGHTS AND WORKING CONDITIONS
The Commission recommends that the Congress and the
Administration provide assistance to legal clinics to expand
the availability of legal representation in cases involving
worker rights, and that special assistance be provided to legal
aid centers in communities with large numbers of migrant
workers, and migrant women in particular, to build expertise
and capacity in resolving the issues of concern to this
vulnerable group.
The demand for labor lawyers' services has increased
dramatically. Migrant workers, including young rural women who
travel to work in urban factories, are especially subject to
abuse. They need help not only in learning about their rights
but also in asserting them.
The Commission recommends that the Administration facilitate
meetings of U.S., Chinese, and third-country companies doing
business in a specific locality and industry in China to
identify systemic worker rights abuses, develop recommendations
for appropriate Chinese government entities, and discuss these
recommendations with Chinese officials, with the goal of
developing a long-term collaborative relationship between
government and business to assist in improving China's
implementation of internationally recognized labor standards.
U.S. and other foreign companies with significant sourcing in
China focus their workplace compliance efforts on specific
suppliers. This program will seek to broaden foreign companies'
focus to address the systemic issues that affect them and
require Chinese government policy responses.
The Commission recommends that the Secretary of Labor travel to
China and engage relevant Chinese officials on labor issues.
Such a visit would raise the profile of labor issues in our
bilateral dialogue, confirm to the Chinese that compliance with
core internationally recognized labor standards and safe and
equitable working conditions are important to the United
States, emphasize the importance to the United States of the
principles of freedom of association and collective bargaining,
and encourage advances made during the 2001 visit to China of
the ILO Director General.
The Commission recommends that the Congress appropriate funds
for suitable U.S. institutions to conduct programs for Chinese
lawyers and law students on labor law, employment law, and
international labor standards, and promote exchanges between
Chinese and U.S. labor lawyers and academics.
The number of qualified lawyers in China has expanded in recent
years, but demand still exceeds supply, particularly with
respect to worker rights. The ability of workers to assert
their legal rights depends upon access to qualified legal
representation.
The Commission recommends that the Congress fund programs to
promote improved working conditions and safety at the
enterprise level, including the use of worker health and safety
councils, whose members would be chosen by the workers.
China's workplace safety record has degraded to the point that
Chinese authorities have reached out to the international
community for help. The United States should fund programs on
workplace safety that over time could be replicated in other
Chinese enterprises, starting in a small number of enterprises
in carefully selected locations. The initial focus should be on
the mining industry, in which accident rates are exceedingly
high, and the toy and footwear industries, in which toxic
chemicals are used to produce large volumes of products
destined for the U.S. market.
The Commission recommends that the Administration, in
conjunction with the governments of other countries that import
Chinese goods, organize a series of conferences in key
exporting regions in China to emphasize to Chinese
manufacturers and exporters the importance of legal and fair
working conditions to consumers in overseas markets.
Conferences about global market expectations and the benefits
of acceptable working conditions to Chinese factory managers
have been well received in China, although they have been aimed
mainly at contract suppliers. Chinese companies are beginning
to manufacture and export under their own brand names. Seminars
describing how to develop, implement, and maintain social
compliance programs that conform to international norms would
give these Chinese factory managers and owners a basis upon
which to implement reforms in their day-to-day operations.
The Commission recommends that the Congress commission a
detailed study to analyze the social unrest caused by the
decline of China's state-owned enterprises and to recommend how
U.S. technical and other support could help alleviate these
problems.
Large-scale labor unrest, especially in northern China where
many state-owned enterprises are located, has increased as they
reduce in size or shut down, often leaving workers without
pensions, health care, or other services. There may be ways for
U.S. assistance to help these workers, and a thorough study
would illuminate the options.
Criminal Justice
The Chinese government revised the Criminal Procedure Law
in 1996 and the Criminal Law in 1997.\89\ The revisions
promised increased protection for criminal suspects and
defendants and a fairer trial process.\90\ The amendments to
the Criminal Procedure Law included an expansion of the right
to counsel, a more meaningful role for defense attorneys during
the pre-trial and trial stages, and other measures to address
the problem of ``decision first, trial later'' (xian ding hou
shen).\91\ The amended Criminal Law abolished the provision on
``analogy'' contained in the 1979 Criminal Law. Under this
provision, a person could be punished for an act that was not
explicitly prohibited by law at the time the act was committed
by providing for punishment according to the closest analogous
provision of the Criminal Law.\92\ The revised Criminal Law
also replaced ``counterrevolutionary'' crimes with ``crimes of
endangering national security'' as part of an effort to
depoliticize criminal law, at least on paper.\93\
But as this report notes repeatedly, a wide discrepancy
often exists in China between the law on paper and the law in
practice. Criminal suspects and defendants frequently do not
enjoy in practice the enhanced protections found in the revised
laws. Although the revisions to the Criminal Procedure Law and
the Criminal Law reflect progress toward internationally
recognized criminal justice standards as set forth in the
Universal Declaration of Human Rights, the International
Covenant on Civil and Political Rights, and other international
human rights documents, the Chinese criminal justice system
still falls far short of international standards.
Absence of an Independent Judiciary
Both the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights mandate
that every individual is entitled to a fair and public hearing
by an independent and impartial tribunal.\94\ However, the lack
of an independent judiciary is a fundamental problem that China
must address before it can meet international human rights
standards. The Communist Party exerts significant control over
the court system. Party political-legal committees often select
judges--decisions that are then simply rubber-stamped by the
relevant provincial or local people's congresses, which have
the formal power to appoint judges.\95\ Most senior judges and
members of the courts' adjudication committees are Party
members.\96\ The adjudication committees supervise the work of
the court and have the ultimate power to decide any case before
the court.\97\ Moreover, judges often confer with the relevant
political-legal committee in politically sensitive or difficult
cases.\98\ As long as the Party controls the courts, a fair and
impartial judicial process and protection of the fundamental
rights of criminal defendants will remain elusive, particularly
in cases of political dissidents or others deemed to be threats
to ``national security.''
Right to Counsel and Right to Present a Defense
Under the 1979 Criminal Procedure Law, a defendant had no
right to legal counsel prior to seven days before the start of
the trial. Under the revised Criminal Procedure Law, defendants
may retain counsel much earlier in the criminal process--after
the first interrogation or from the day he or she is first
subjected to ``coercive measures'' (e.g., pre-arrest detention
(juliu) and arrest (daibu)).\99\ Although a significant
improvement over the 1979 Criminal Procedure Law, the revised
law fails to conform to international standards. For example,
it still leaves a suspect without counsel during a ``first
interrogation.'' Given the widespread problem of torture,
coupled with the fact that the law requires suspects to answer
investigators' questions ``truthfully,'' the absence of counsel
at the first interrogation is a serious deficiency in China's
criminal process.\100\
Although defense lawyers are entitled under the Criminal
Procedure Law to meet with their clients during the
investigation of an alleged crime, in practice lawyers are
frequently denied access to their clients.\101\ In cases
involving ``state secrets,'' a term that public security
authorities construe expansively, a lawyer must first obtain
approval from the relevant investigating authority before
meeting with his or her client.\102\ The authorities frequently
invoke ``state secrets'' to deny suspects access to a lawyer
during the investigation phase.\103\ When actually allowed to
meet with their clients, defense lawyers generally get only one
brief meeting, which is usually monitored and sometimes
recorded by investigators.\104\ Article 96 of the Criminal
Procedure Law permits such monitoring, ``depending on the
circumstances and necessities of the case.''
The revised law provides defense counsel greater access to
evidence in the possession of the authorities, at least in
theory. In practice, the Supreme People's Procuratorate
(China's chief prosecutorial authority) has interpreted the
relevant provisions of the new law to require access only to
formal documents in the file, such as copies of the detention
and arrest notices.\105\ There is no requirement that
prosecutors provide defense counsel access to physical
evidence, documentary evidence, crime-scene records, or
statements by witnesses or the victim that are in their
possession. Moreover, the revised law severely restricts the
ability of defense lawyers to collect their own evidence.\106\
Another long-standing problem unresolved by the revised
Criminal Procedure Law is the absence of witnesses at criminal
trials.\107\ Although the law requires the testimony of
witnesses to be cross-examined at trial, witnesses in criminal
cases frequently do not appear in court.\108\ Thus, in most
trials defense lawyers are faced with the difficult task of
trying to contradict written testimony.
Professor Jerome Cohen of New York University Law School
told a Commission roundtable that there are disturbing
disincentives for lawyers to engage in the practice of criminal
defense law. Criminal defense lawyers have encountered
intimidation and harassment from the police and prosecutors as
they attempt to assist their clients under the revised Criminal
Procedure Law.\109\ Some defense lawyers have even faced
criminal prosecution for zealous representation of their
clients. For example, Zhang Jianzhong, a well-known lawyer who
has represented some high-profile defendants in major
corruption cases, has been detained since May 2002 under
circumstances that remain murky. While Mr. Zhang has
purportedly been charged with providing a false statement in a
commercial case, members of the local criminal defense bar and
other observers believe that the authorities are punishing Mr.
Zhang for his vigorous criminal defense work.\110\ Criminal
defense lawyers have also been targeted for prosecution under
Article 306 of the Criminal Law, which prohibits a lawyer from
forcing or inducing a witness to change his or her testimony or
falsify evidence. Any lawyer who counsels a client to repudiate
a forced confession, for example, risks prosecution under this
provision.\111\
Torture
The use of torture to obtain confessions during the
investigation stage of the criminal process is still widespread
in China. Article 43 of the revised Criminal Procedure Law
prohibits the use of torture to coerce confessions, but in
contravention of the UN Convention Against Torture, the
Criminal Procedure Law does not prohibit the use of confessions
obtained by torture from being admitted as evidence in
court.\112\ To curb the high incidence of torture during the
investigation stage, many scholars and Chinese reformers
advocate the adoption of a rule making illegally obtained
evidence inadmissible at trial, as well as rules guaranteeing
the right to remain silent and the right against self-
incrimination. Professor Murray Scot Tanner of Western Michigan
University told a Commission roundtable he believed that
although significant progress on the torture problem may be
possible within China's current authoritarian political system,
more fundamental improvements must ``await a liberalization and
democratization of that system.'' \113\ Professor Tanner
explained that over the past several years, a growing number of
officials and scholars within China's law enforcement system
(including public security authorities and prosecutors) have
begun to criticize China's serious torture problem and to call
for reform. For example, Professor Cui Min of the Chinese
People's Public Security University has written that as long as
confessions coerced by torture are admissible for convictions,
the Criminal Procedure Law's prohibition against using torture
to coerce confessions exists in name only.\114\
Administrative Sanctions
One of the most highly touted reforms under the revised
Criminal Procedure Law was the abolition of the form of
arbitrary detention known as ``custody and investigation''
(shourong shencha), under which the police could detain
suspects virtually indefinitely, without trial or judicial
review.\115\ Chinese public security authorities, however,
still use other forms of administrative sanctions. Under ``re-
education through labor'' (laojiao), for example, an individual
can be ``sentenced'' by public security authorities to three
years in a labor camp, with a possible one-year extension, for
allegedly committing a variety of relatively minor offenses,
such as drug use, prostitution, or offenses deemed to ``disturb
public order.'' \116\ Suspects assigned to re-education through
labor are not entitled to a trial, and therefore do not enjoy
even the minimal procedural safeguards provided by the Criminal
Procedure Law.\117\
The public security authorities frequently use re-education
through labor in political cases as a convenient tool for
circumventing the formal criminal process. For example,
authorities gave Li Guotao, one of the organizers of the China
Democracy Party, a three-year re-education through labor term
for ``disturbing social order'' after he protested the
government's crackdown on other dissidents.\118\ Scholars and
activists have documented the use of re-education through labor
to detain pro-democracy protesters after the Tiananmen
crackdown in 1989.\119\ As of early 2001, approximately 260,000
people were being held in nearly 300 re-education through labor
camps.\120\ Although detainees may challenge a re-education
through labor term under the 1989 Administrative Litigation
Law, Veron Mei-ying Hung of the Carnegie Endowment for
International Peace told a Commission roundtable that such
efforts are fraught with obstacles.\121\ Some legal scholars
and others in China have called for the abolition of re-
education through labor. Others advocate at least bringing it
within the criminal justice system.\122\
``Custody and repatriation'' (shourong qiansong), another
widespread form of administrative detention designed to
``protect urban social order,'' targets the urban homeless,
undocumented migrant workers, and beggars. Detainees are placed
in custody, without trial, until they can pay for their release
or are sent home.\123\ Experts estimate that this form of
administrative detention affects nearly two million people
every year.\124\ In theory, Chinese authorities consider
custody and repatriation to be a form of welfare, but in
practice public security authorities detain members of these
marginalized groups and warehouse them in facilities, the
conditions of which are essentially no different from detention
centers or labor camps.\125\ Because both re-education through
labor and custody and repatriation are criminal penalties
masquerading as administrative sanctions, imposed without
judicial procedures, they conflict with basic international
criminal justice standards.
Strike Hard Anti-Crime Campaigns
In response to an increase in crime and corruption over the
past twenty years, the Chinese government has periodically
instituted crackdowns against crime, referred to as Strike Hard
anti-crime campaigns. Launched for the first time in 1983,
Strike Hard campaigns are now, according to the Lawyers
Committee for Human Rights, a ``permanent feature of Chinese
life.'' \126\ Abuses of the criminal justice process, increased
use of the death penalty, and summary executions intensify
during these campaigns.\127\ During the period from April to
July 2001 of the most recent Strike Hard campaign, law
enforcement authorities sentenced at least 2,960 people to
death and executed 1,781 for crimes ranging from tax evasion to
murder.\128\ The use of torture in order to quickly ``solve''
cases increases during Strike Hard campaigns, as does the use
of re-education through labor.\129\
The discussion above illustrates just a few of the problems
with China's criminal justice system. Many other aspects of the
system, such as pre-trial detention and appellate review of
trial court decisions, fail to conform to international human
rights standards. For example, detainees are denied the
internationally recognized right to contest the lawfulness of
their detention.\130\ Moreover, criminal suspects enjoy neither
the presumption of innocence nor the right to remain
silent.\131\ In addition, the right to a public trial is
frequently not honored in China, particularly in cases
involving political dissidents.\132\ The Commission will be
examining these and other issues relating to the criminal
justice system in the coming year.
(Illustrative legal provisions include: PRC Constitution,
Articles 33, 35, 37, 53, 123, 125, 126, 128, 129, 131, 133,
135; PRC Criminal Law--1979, amended 1997; PRC Criminal
Procedure Law--1979, amended 1996; PRC State Security Law--
1993; Ministry of Public Security Rules on the Process of
Handling Criminal Cases by Public Security Departments--1998;
Supreme People's Court Interpretation on Several Issues
Regarding Implementation of the PRC Criminal Procedure Law--
1998; Supreme People's Procuratorate Rules on the Criminal
Process for People's Procuratorates--1998; PRC Lawyers Law--
1996; PRC Administrative Punishment Law--1996; PRC
Administrative Litigation Law--1989; PRC Law on Protecting
State Secrets--1988; PRC Organic Law of the People's Courts--
1979, amended 1983; Security Administration Punishment
Regulations--1957, amended 1986, 1994; Detailed Rules on
Implementing the Law in the Administration of Re-education
Through Labor--1992; Decision of the State Council Regarding
the Question of Re-education Through Labor--1957; Supplementary
Decision of the State Council on Re-education Through Labor--
1979; Notice of the State Council on Re-Issuing the Ministry of
Public Security's Trial Methods for Implementation of Re-
education Through Labor--1982.)
RECOMMENDATIONS ON CRIMINAL JUSTICE
The Commission recommends that the Congress appropriate funds
for suitable U.S. institutions to conduct programs for Chinese
criminal defense lawyers on the role of the criminal defense
bar outside of China and promote exchanges between Chinese and
U.S. criminal defense lawyers.
Like judicial exchanges, such exchanges will enhance the
professional expertise, solidarity, and prestige of the
criminal defense bar. Programming should specifically include
case studies in legal ethics, which draw attention to the kinds
of challenges faced by lawyers in both countries. Programs
should include provisions for electronic follow-up (e.g., a
listserv) to build on the dialogue and contacts created in the
exchanges, with the goal of establishing long-term interaction
and support.
The Commission recommends that the Administration continue to
work multilaterally to encourage China to cooperate fully with
the UN Special Rapporteur on Torture.
Although the Chinese government invited Theo van Boven, the
Special Rapporteur on Torture, to visit in 2003, it has not yet
indicated that it will cooperate fully with his investigation.
Indeed, during her recent visit to China, Mary Robinson, the UN
High Commissioner on Human Rights, stated that the visit was
not yet assured.
The Commission recommends that the Congress appropriate funds
for a suitable U.S. institution to implement a program that
would bring Chinese police and non-police experts on criminal
procedure to the United States to learn firsthand the roles
various institutions and societal actors (e.g., civilian review
boards, courts, NGOs and the press) play in fighting torture
and police abuse in the United States.
A growing number of officials and scholars in China, including
those within China's law enforcement system, are openly
criticizing China's widespread torture problem and debating
proposals for reforms designed to combat torture. This program
would contribute to such reform efforts and would focus solely
on measures to curb torture; it would not include, for example,
training on police techniques for suppressing protests or
apprehending suspects.
The Commission recommends that the Congress appropriate funds
for a suitable U.S. institution to implement a program that
would include a series of conferences to which U.S., Chinese
and legal experts from other countries would be invited to
discuss questions of law relating to internationally recognized
criminal justice standards such as the presumption of
innocence, the right to remain silent, the right to contest
detention, etc.
As with the torture issue, legal officials and scholars in
China are openly debating these issues. This program could aid
such reform efforts.
The Commission recommends that the Administration and the
Congress press the Chinese government to allow U.S. Embassy and
Consulate officers to attend trials of political dissidents and
individuals charged with ``endangering national security,'' or
``revealing state secrets,'' particularly the trials of
individuals who have committed non-violent acts.
Although the U.S. Embassy and Consulates General in China
periodically request permission to observe the trials of
defendants charged with political offenses, Chinese authorities
almost never grant such permission.
The Commission recommends that the Administration encourage the
Chinese government to review convictions and sentences of those
imprisoned for ``counterrevolutionary'' crimes in light of
revisions to the Criminal Law that eliminated this category of
crime.
On February 13, 2002, the Commission sent a letter to President
Bush recommending that he urge President Jiang Zemin to take
this action, which would address a continuing injustice and
likely permit the release of a significant number of prisoners.
Free Flow of Information
Chinese authorities continue to censor the media despite
constitutional guarantees of freedom of speech and of the
press.\133\ China has signed, though not ratified, the
International Covenant on Civil and Political Rights, which
guarantees freedom of expression.
China's newspapers and magazines have become more
freewheeling in recent years as they struggle to turn a profit
in an increasingly competitive market. But the central
government still has the last word, and Beijing is aggressive
in ensuring that media outlets know where it draws the line.
Current sensitive subjects include labor strikes, rural unrest,
Taiwan independence, the Falun Gong spiritual movement, the
1989 Tiananmen Square crackdown, criticism of the Communist
Party, opposition to Chinese rule in Tibet and Xinjiang, and
disclosures of corruption or nepotism within the government and
military leadership.\134\ Chinese President Jiang Zemin has
said that the news media in China ``are the loudspeakers of the
Party and the people'' and have a duty ``to educate and
propagate the spirit of the Central Party's committee.'' \135\
James Mann of the Center for Strategic and International
Studies told a Commission roundtable, ``The Chinese Communist
Party maintains its monopoly on power, and that includes the
power over the principal newspapers and television stations.''
\136\
A recent case in point is Southern Weekend (Nanfang
Zhoumo), a newspaper published in Guangdong Province. Southern
Weekend has long pushed the boundaries of media control in
China by reporting frankly on sensitive social problems,
including AIDS, crime, and trafficking in women. In the spring
of 2002, the newspaper published a story about a criminal gang
that killed 28 people in a spree of murder and theft. The
article indicated that problems such as poverty and inequality
in Chinese society led gang members to a life of crime.\137\
As a result, Southern Weekend was accused of painting a
negative picture of China's socialist struggle, and its deputy
editor-in-chief, front-page editor, and a senior editor were
demoted. The news section chief and the reporter who wrote the
story also were fired and banned from ever working in
journalism again.\138\ Now, the newspaper is significantly
tamer. He Qinglian, former editor of China's Shenzhen Legal
Daily, told a Commission roundtable, ``In a free country, the
media is expected to criticize the government. In China, it's
exactly the opposite; it is the government that criticizes the
media.'' \139\
Foreign media organizations operating in China are not
immune from Beijing's control. In July 2002, Chinese
authorities blocked BBC World news broadcasts into China after
the British network aired a report about the banned Falun Gong
spiritual movement.\140\ A month earlier, authorities detained
and later expelled Canadian journalist Jiang Xueqin after he
filmed labor unrest in northeastern China for the U.S. Public
Broadcasting Service. Until recently, some major foreign news
organizations, such as the New York Times and CNN, have had
their websites blocked. The Chinese government continues to jam
broadcasts of the Voice of America (VOA) and Radio Free Asia
(RFA).\141\
Calling China ``the world's leading jailer of
journalists,'' \142\ the Committee to Protect Journalists (CPJ)
reported at the end of 2001 that at least 35 journalists were
imprisoned in China.\143\ Kavita Menon of the CPJ told a
Commission roundtable, ``China is too large and unwieldy for
perfect control to be possible, but the Communist Party remains
unwilling to cede the battle. Hardliners believe that to
relinquish control over information would be to relinquish
control of power altogether.'' \144\
Many Chinese are finding ways around the government's
information control. For example, a growth in purchasing power
has allowed large numbers of Chinese citizens to purchase
satellite-receiving equipment, even though regulations
generally prohibit private use of such equipment. They often
use the equipment to receive foreign television broadcasts and
more politically open programming from Hong Kong.
Internet use in China has grown rapidly, with an estimated
46 million users at the end of June 2002\145\ and analysts
predicting that China could have the world's largest on-line
population in two years. Although most Internet users today
live in larger cities, Internet cafes are becoming ubiquitous
throughout China.
The Chinese government continues to encourage expanded use
of the Internet to improve economic efficiency, increase
economic growth, and disseminate government information more
effectively to the public. But Chinese authorities are also
aware that the Internet creates new challenges to information
control and are scrambling to meet what they perceive as a
threat to that control. The Internet (e.g., e-mail, chat rooms,
websites) has given Chinese citizens greater access to
information about events inside China and overseas. Some
organizational activities have developed over the Internet,
perhaps the most well known being a large Falun Gong
demonstration outside the government leadership compound at
Zhongnanhai in 1999.
The Chinese government policy towards the Internet
generally parallels its approach to other media. To some
extent, the Internet is harder to control than the print or
broadcast media because of its decentralized and personal
nature. The ``Seven No's'' on media activity issued in August
2001 by the State Press and Publications Administration--
including prohibitions against disclosing state secrets,
interfering in Communist Party affairs, and criticism of
government policies--apply equally to the Internet.\146\ Over
the past 18 months, the Chinese government has issued an
extensive and still growing series of regulations restricting
Internet content and placing monitoring requirements on the
industry. For example, on August 1, 2002, the Ministry of
Information Technology and the State Administration of Press
and Publishing issued ``Interim Provisions on the
Administration of Internet Publishing'' that clarify topics
prohibited on Internet sites, including the oft-cited
prohibitions against anything that will ``harm national unity,
sovereignty, or territorial integrity'' or ``reveal state
secrets'' and ``endanger national security.'' \147\
James Mulvenon of the RAND Corporation pointed out at a
Commission roundtable that the Chinese government has used two
methods to control the impact of the Internet.\148\ High-tech
software and hardware can block, monitor, filter, and hack
websites and e-mail. This capability includes blocking offshore
dissident sites, foreign news sites, general-purpose search
engines such as Google and AltaVista, and VOA's weekly e-mail
to China. Internet users in China attempting to access foreign
websites have also found themselves redirected to Chinese
government-approved websites.
Meanwhile, low-tech methods include a combination of
traditional control activities such as surveillance,
informants, regulations, searches, and arrests to produce ``a
regulatory and political climate of self-censorship and self-
deterrence'' on the part of Internet users and providers. A
case in point is the arrest of Internet activists such as Huang
Qi, who was arrested in June 2000 after establishing one of
China's first human rights websites.
A recent low-tech development is a ``Public Pledge on Self-
discipline for China's Internet Industry,'' a voluntary pledge
sponsored by the Internet Society of China, an industry
organization linked to the Ministry of Information
Industry.\149\ Under this pledge, Internet Service Providers
(ISPs) and Internet Content Providers (ICPs) agree not to post
or produce information ``that may jeopardize state security and
disrupt social stability.'' \150\ Several foreign human rights
NGOs have expressed concern that Yahoo's China subsidiary has
signed this pledge. Another recent development is an August
2002 action by the Chinese government to halt new approvals for
Internet cafes and to stop screening applications for re-
registration as the government tries to exert firmer controls
over this outlet for the Internet.\151\
Under this dual high-tech/low-tech strategy, the Chinese
government, with minimal resources, has succeeded in limiting
use of the Internet for dissemination of what it considers to
be undesirable political and social content, including
pornography, Falun Gong information, human rights, and
political commentary. At the same time, the government has been
able to shift much of the responsibility for Internet control
from the Ministry of Public Security to ISPs and ICPs.
(Illustrative legal provisions include: PRC Constitution,
Articles 35, 41; PRC Law on Protecting State Secrets--1998; PRC
Criminal Law--1979, amended 1997, Article 111; Specific
Measures for Taking Action on Cases Involving Internet Cafes
and other Internet Access Service Business Establishments--
2002; Interim Provisions on the Administration of Internet
Publishing--2002; Measures on the Administration of Internet
Information Services--2001; Regulations on the Administration
of Publishing--2001; Telecommunications Regulations--2000
Decision of the Standing Committee of the National People's
Congress on the Protection of Internet Security--2000; Interim
Provisions on the Administration of Internet Sites Engaging in
News Publication Services--2000; Provisions Governing the
Administration of Internet Electronic Bulletin Board Services--
2000; Supplementary Decision of the NPC Standing Committee
Concerning Punishing Crimes of Leaking Important State
Secrets--1988; Regulations on the Scope and Classification
Level of State Secrets Concerning the Work of the Public
Security Organs--1986)
RECOMMENDATIONS ON FREE FLOW OF INFORMATION
The Commission recommends that the Congress and the
Administration expand U.S. government efforts to disseminate
human rights, worker rights, and rule of law-related
information in China through radio, television, and the
Internet.
On topics such as worker rights and religious freedom, foreign
radio transmissions and the Internet provide a crucial external
link for both reformers and citizens attempting to learn about
basic rights and efforts within China to promote such rights.
In addition, China's WTO membership requires that it improve
dissemination and accessibility of laws and regulations.
Overall, the public's lack of awareness of legal rights impedes
legal reform, particularly in rural areas, including Tibet. The
Commission's website (www.cecc.gov) serves as an important
medium for disseminating human rights and rule of law related
information in China. (See Appendix 1--Website Summary.) VOA
and RFA management should increase programming to China that
emphasizes essential human rights-related topics such as
religious freedom, labor rights, freedom of expression, legal
rights and the legal system at the grassroots level, and other
human rights issues. VOA should create a Uighur language
service to provide news and information to Uighurs in Xinjiang.
The Commission recommends that the Administration urge China to
end restrictions on foreign journalists based in China.
Restrictions include limits on the number of journalists issued
correspondent visas, as well as regulations requiring
government approval for foreign journalists to conduct
interviews and to travel outside of their host cities to
investigate stories.
The Commission recommends that the Administration pursue
political and technical ways to prevent China from blocking
U.S. government Internet sites and e-mail and to make it easier
for Chinese users to access them.
The development of democracy in China depends upon people
having access to unfiltered information. People in China are
increasingly turning to the Internet and e-mail for news about
China and the world at large, but China's government continues
to try to ensure that its monopoly on such information extends
to these media. Although Chinese authorities employ
increasingly sophisticated means to censor the Internet, as the
technology for blocking access improves, so do the methods for
circumventing such blocks. The United States should complement
its diplomacy on this issue by using state-of-the-art methods
to ensure that Chinese users can access U.S. government sites
and receive e-mail from U.S. government agencies.
Village Elections
China began experimenting with village elections in the
early 1980s. Despite opposition from hard-line factions within
the Communist Party, the National People's Congress passed a
provisional law on rural self-governance in 1987.\152\
Following the Tiananmen Square democracy movement in 1989, the
idea of expanding democracy in rural areas fell out of favor in
Beijing. However, grassroots efforts to develop democratic
activities continued in China throughout the 1990s, and in 1998
the Organic Law on the Village Committees, revised to include
widely recognized election procedures, was finally enacted.
As a result, all of China's approximately 730,000
administrative villages are required by law to conduct direct,
competitive elections every three years. These elections
involve hundreds of millions of rural voters.\153\ China's
leaders hope competitive village elections will reduce
corruption by making local officials more accountable to the
people they serve and can help prevent social unrest in the
Chinese countryside. In addition, Beijing often encourages
officials elected by the villagers to join the Communist Party
in an attempt to infuse the Party with a new credibility.
U.S. and other international observers have monitored
village elections in China for nearly a decade and generally
believe that the balloting they have witnessed has been free
and fair.\154\ However, outside observers have been able to
monitor only a small fraction of the villages where elections
occur, and Chinese government officials generally supervise the
observation visits. As a result, it is difficult to determine
whether the vast majority of village elections in China adhere
to democratic principles. In addition, there has been little
analytical work by international observers on the impact of the
elections on actual governance at the village level. Professor
Anne Thurston of The Johns Hopkins University's School of
Advanced International Studies told a Commission roundtable,
``One of the great frustrations of anyone trying to make sense
of these village elections is that we simply do not know how
widespread they are--how well and how universally they have
actually been implemented.'' \155\
Critics of the process say that the Communist Party often
manipulates the outcome, and that reform at the village level
has little impact on the spread of democracy at higher
government levels. While there is talk that elections may be
extended to the township level,\156\ Beijing still has no plans
to let people vote for city mayors, provincial governors, the
national president, or Party leaders. Chinese President Jiang
Zemin has said that China's people are too uneducated to be
given that responsibility any time soon.\157\
Nevertheless, supporters say the elections are important
because they familiarize China's villagers with some of the
tools of democracy, including ballot boxes, voter registration,
and candidate nomination. Liu Yawei of The Carter Center's
China Village Elections Project told the roundtable that the
election process ``has cultivated a new value system, a much-
needed sense of political ownership and rights awareness among
the Chinese peasants who do not have any leverage in bargaining
with the heavy-handed government.'' \158\
In 1998, the remote rural township of Buyun, in Sichuan
Province, conducted China's first direct election for a
township leader. Local authorities allowed the unprecedented
election in an effort to appease simmering peasant anger over
rampant corruption and an onerous tax burden. The balloting,
apparently carried out without formal approval from Beijing,
was later declared unconstitutional. But last year Buyun tried
again, this time finessing the constitutional issue by allowing
voters to nominate one candidate to challenge the incumbent.
(The incumbent won by a narrow margin.) Liu Yawei told the
roundtable, ``There probably will be more cases in China in the
near future to model their elections after Buyun. We are still
holding our breath to see if this is going to spread.'' \159\
In 1999, China began expanding the village election concept
to some urban areas. Over the last few years, a dozen or so
pilot cities have held elections for positions on urban
neighborhood committees, the lowest level of organized
government in Chinese cities.\160\ Regulations for the urban
community elections have not yet been standardized, and local
officials have a great deal of autonomy in carrying them out.
(Illustrative legal provisions include: PRC Constitution,
Articles 34, 111; Organic Law on the Village Committees--1998;
Organic Law on the Village Committees (Provisional)--1987)
RECOMMENDATIONS ON VILLAGE ELECTIONS
The Commission recommends that members of Congress and the
Administration who visit China request to observe village
elections.
Village elections in China remain in the developmental stages
and are fraught with problems. Nevertheless, they expose tens
of millions of Chinese peasants to an essential element of
democracy. To date, Chinese authorities have encouraged
foreigners to observe these elections, and the Administration
and the Congress should show support for these early and
tentative steps toward democracy by asking to visit election
sites.
The Commission recommends that the Congress require an analysis
of the impact of village elections on village governance when
making recommendations for future government funding to
organizations promoting and monitoring village elections in
China.
Congress needs objective assessments of the impact of U.S. NGO
activity in China, especially when those activities receive
U.S. government funding. (See similar recommendation under
section on Rule of Law Programs.)
The Commission recommends that the Administration encourage the
expansion of democratic reforms to higher levels of government
in China. The Commission also recommends that the Congress
support expanding technical assistance to elections at higher
government levels in China.
Chinese authorities have shown little inclination to introduce
democratic principles, such as direct representative elections,
at higher levels of government. Representative, democratically
elected government has proven to be the best safeguard against
corruption and abuse of power. The United States should do all
it can to encourage the spread of democracy in China.
Tibet
Defining geographical Tibet can be confusing, if not
contentious. Although Tibetans make up barely a half percent of
China's population, areas designated by the Chinese government
as Tibetan account for 23 percent of China's total land
mass.\161\ They include the Tibet Autonomous Region (TAR,
sometimes called ``Tibet''), which has the same rank as a
province. In addition, there are ten Tibetan Autonomous
Prefectures and two Tibetan Autonomous Counties located in
Qinghai, Gansu, Sichuan, and Yunnan Provinces.
China's claim to sovereignty over Tibetan areas derives
from the Mongol ascendancy over much of Central and East Asia
in the thirteenth century. After crushing Chinese imperial
troops, the Mongol Khans established the Yuan Dynasty and ruled
their empire from a newly built capital in Beijing. Tibetans
avoided conflict with the Mongols, exchanging spiritual
instruction by Tibetan lamas for protection by Mongols in a
relationship that was later known as ``priest and patron.''
Today, China argues that Mongols were not conquerors, but
unifiers, and that Beijing should exercise sovereignty over
lands where Tibetans once deferred to Mongols. The Tibetan
government-in-exile, based in Dharamsala, India, asserts that
Tibet is an ``occupied country'' \162\ and that the exiled
government ``is recognized by Tibetans, both in and outside
Tibet, as their sole and legitimate government.'' \163\ The
Dalai Lama seeks a resolution that would accept Chinese
sovereignty over Tibetan lands in exchange for genuinely
functional Tibetan autonomy.
Beijing defends its modern administration of Tibetan areas
with contentions that under the Chinese Constitution and the
Regional National Autonomy Law, Tibetans are ``the masters of
their state and society.'' \164\ Chinese leaders say that the
human rights of Tibetans are fully protected and that economic
and social development is proceeding rapidly with generous aid
from the central government.
The Chinese government asserts that Tibetans are but one of
the 56 ``nationalities'' comprising the multi-ethnic state of
China. Tibetan and other non-Han Chinese groups account for
only eight percent of China's population, with the Han Chinese
making up the rest.\165\ The Chinese Constitution and the
Regional National Autonomy Law stipulate that local areas of
``regional autonomy,'' administered by local ``organs of self-
government,'' should be established in areas where minority
nationalities live in ``concentrated communities.'' \166\
Officials claim that autonomy functions successfully. In
practice, the law provides local governments no alternative but
to accept and implement directives from above: ``The organs of
self-government of national autonomous areas shall place the
interests of the state as a whole above anything else and make
positive efforts to fulfill the tasks assigned by state organs
at higher levels.'' \167\
The call for independence is the most uncompromising
expression of Tibetan interest, and even non-violent, pro-
independence activism has been largely crushed by the
government. The Chinese Constitution provides the basis for
calling ``separatists'' criminals and requires that citizens
protect national and ethnic unity.\168\ Repercussions increase
as the state broadens its perceptions of threat. Many Tibetans
seek a path to modernity that would sidestep struggle with
Beijing but allow retention of a functional Tibetan identity.
They believe that operational, rather than nominal, autonomy
could achieve this. Samdhong Rinpoche, elected last year by
Tibetans in exile as their first prime minister,\169\ said
during his July 2002 visit to the United States, ``Political
separation from China is not important. What is important is to
restore Tibetan civilization.'' \170\
Conflict between Tibetan aspirations and Chinese policy is
found within cultural, religious, and educational spheres.
Party and government are hostile to any practice or expression
that they perceive as nourishing a self-identity that suggests
that being Tibetan is not the same as being Chinese. As the
Chinese government seeks to diminish or eliminate aspects of
Tibetan culture that it regards as threatening, the peaceful
exercise of internationally recognized human rights is
systematically suppressed.
China's prime requirement is unity and stability for the
nation and among ethnic groups. This is enforced by
constraining Tibetan political, cultural, educational, and
religious life. Human rights and rule of law in Tibet are
configured to accommodate party and state interests. Dr. Dong
Yunhu, a senior human rights official in the State Council
Information Office, explained the Chinese position: ``The West
stressed personal and individual rights; we stress the need for
harmony between the individual and the collective.'' \171\
Despite unrelenting effort by the Chinese government to
discourage or prevent expressions of loyalty and devotion to
the Dalai Lama, he remains the most respected and influential
Tibetan anywhere. More than any other figure or institution, he
is seen to embody not just Buddhism but vital elements of
Tibetan identity. The Chinese government regards any expression
of support for him as a form of opposition to official policy.
Zhu Xiaoming, a senior Party official with oversight on Tibetan
policy, told visiting Commission staff, ``The Dalai Lama uses
religion as a pretext for harming the country. He carries
people away [from the Motherland] under the signboard of
religion.'' \172\ An ethnic Tibetan Communist Party official in
Lhasa described the Dalai Lama as ``just a person who is
engaged in politically subversive activities,'' adding that
``he has never done anything for the Tibetan people in 40
years.'' \173\
Professor Elliot Sperling of Indiana University told a
Commission roundtable that he believes Chinese leaders are
awaiting the Dalai Lama's death and intend to choose a
successor who will be molded to suit the interests of the
state.\174\ The State Council's management of the enthronement
of Gyaltsen Norbu as Panchen Lama in 1995 may provide a model.
He was enthroned a few months after the Dalai Lama recognized
then five-year-old Gedun Choekyi Nyima as the true
reincarnation of the Panchen Lama--after the Dalai Lama, the
most important figure in the dominant sect of Tibetan Buddhism.
Infuriated, Beijing rejected the Dalai Lama's decision and
installed Gyaltsen Norbu instead. Chinese officials continue to
assert that Gedun Choekyi Nyima, held incommunicado along with
his parents for the last seven years, is living a ``normal''
life. His current location is unknown and his status is
unverified. If waiting for the Dalai Lama's death is the
strategy of the Chinese government, it could exacerbate tension
as Tibetans focus on what they may perceive as a destructive
affront to their heritage and religion. In the belief that both
sides will benefit, the Congress and the Administration have
repeatedly urged Chinese leaders to engage in substantive
dialogue with the Dalai Lama or his representatives.
Due to sustained repression and harsh punishment, fewer
Tibetans risk any form of peaceful protest. The number of
Tibetan political prisoners has declined since 1996 to less
than 200 according to a recent report by the Tibet Information
Network (TIN),\175\ a London-based independent news
organization that monitors human rights inside Tibet. Three-
quarters are Buddhist monks and nuns. Approximately 100 Tibetan
political prisoners are known to be currently serving sentences
at TAR Prison No.1 in Lhasa, better known as Drapchi. They
include high-profile cases such as monks Ngawang Phuljung,
Jamphel Jangchub, and Ngawang Oezer, and nuns Ngawang Sangdrol
and Phuntsog Nyidrol, all of whom have served at least ten
years of sentences which range from 16 to more than 20 years
for counterrevolutionary activities. According to the Tibet
Information Network report, 22 of Drapchi's political prisoners
have died as a result of severe abuse since 1989.
As political detention decreases and China becomes more
adept at blocking information flow, fewer new reports of
mistreatment of political prisoners emerge. Abuses experienced
by Tibetans attempting to cross the Tibet-Nepal frontier
without proper documentation are common on both sides of the
border. Several releases on medical parole of Tibetan political
prisoners have occurred this year.\176\ Former prisoners
remaining in Tibet are subject to close police control, and if
they were released on medical parole they risk return to prison
until their sentences have expired.
Article 36 of the Chinese Constitution provides for the
freedom of ``normal'' religious practice. Party official Zhu
Xiaoming explained to Commission staff that this must be based
on seamlessness between religion and patriotism. ``Loving the
country is identical to loving religion,'' he said. The
``Patriotic Education'' campaign, carried out from 1996 to
2000, resulted in the expulsion or displacement of thousands of
monks and nuns. Although the formally designated campaign is
reportedly complete, routine forms of patriotic education
continue at monasteries, nunneries, schools, and workplaces.
The Chinese government exercises administrative authority
over each Tibetan monastery and nunnery indirectly through a
Democratic Management Committee (DMC) made up primarily of
monks and nuns elected from among themselves. A DMC generally
includes at least one representative of the local government,
and local authorities must approve important decisions. Members
of the DMC of Sera Monastery in Lhasa told Commission staff
that boosting monastic enrollment depends primarily on whether
income from monastery-run commercial enterprises is rising. The
view held widely by officials and many Han Chinese citizens--
that religious institutions and practitioners are unproductive
and hinder economic development--underlies this requirement.
Official hostility toward religion also may play a role in
a series of detentions of locally popular Buddhist figures
implicated or charged with links to violence. They include
Sonam Phuntsog and Tenzin Deleg of the Ganzi Tibetan Autonomous
Prefecture (Tibetan: Kardze) in Sichuan Province and Jigme
Tenzin of Lhasa. Officials have shown a tendency to equate
separatism and terrorism. Details about charges or legal
proceedings are unavailable for these cases.
Although there is conspicuous evidence that material living
standards of Tibetans are rising, statistics showing sustained
double-digit increases in local economic production\177\ and
massive infusions of government funding\178\ are misleading.
Article 9 of the Constitution appropriates natural resources as
state property.\179\ Government policy compels farmers and
herders to sell their meat and grain to the government at low,
fixed prices. Thus, after the government has taken much of the
value of both extracted natural resources and agricultural
production, the local Tibetan economies have little left.
Some academics and experts, including those who testified
at a Commission roundtable, observe that Chinese authorities
favor projects in natural resource extraction and large-scale
infrastructure construction, and that beneficiaries of current
development practices are concentrated among the urban, largely
non-Tibetan population.\180\ For economic development to
benefit the 80 percent majority of Tibetans who live in rural
areas,\181\ small-scale models are needed that are
environmentally and culturally friendly. Arthur Holcombe of the
Tibet Poverty Alleviation Fund pointed out at the roundtable
that Chinese statistics show urban per capita income rising
much faster than rural incomes.\182\ Bhuchung Tsering of the
International Campaign for Tibet told the roundtable that
economic development must not further dilute Tibetan
identity.\183\
The Great Western Development campaign (Xibu Da Kaifa) has
the most profound implications for western China of any
official policy formulation to emerge in the post-Deng era. Ten
provincial entities making up more than half of China's total
area will be integrated into the national mainstream at a
sharply accelerated pace through economic and social
transformation. Of particular concern to indigenous populations
is Western Development's effort to boost the influx of Han
Chinese into the region under the rubric of promoting ``two-way
population flow.'' Li Dezhu, Minister of the State Council
Commission on Ethnic Affairs stated, ``There will be some
changes in the proportions of the nationalities. There will
also be some conflicts and clashes in their contacts. If this
is not handled well, it will have a deleterious effect on
national unity and social stability.'' \184\
The project raising the greatest alarm is construction of a
rail link between Golmud (in Qinghai Province) and Lhasa
scheduled for completion in 2007. Arthur Holcombe told the
roundtable, ``The new railway to Tibet will only intensify
existing migratory trends, exacerbate ethnic income disparities
and further marginalize Tibetans in traditional economic
pursuits.'' \185\
China has made progress at establishing public education
infrastructure across a vast, lightly populated area. Credible
reports, however, explain that poverty, as well as fees
introduced during the 1990s, create significant barriers to
school attendance.\186\ A senior Tibetan academic at the
Chinese Center for Tibetan Studies in Beijing disputed this,
telling Commission staff that Tibetan schools are ``free for
all the people.'' Parents and students, however, contend that
public schools in Tibetan areas impart low levels of literacy
in both the Tibetan and Chinese languages, leaving students
disadvantaged within their own culture and in China's economic
mainstream. Educational models are needed that will prepare
Tibetans for entry into a job market largely created and
dominated by Han Chinese, yet facilitate retention of their
self-identity, especially through competence in the Tibetan
language. Witnesses before the Commission expressed their
belief that international and U.S. government assistance is
vital as Tibetans seek to acquire the educational tools to cope
with a competitive, bicultural environment.
(Illustrative legal provisions include: PRC Constitution,
Articles 36, 51, 52, 53, 54, 112-122, and 134; PRC Law on
Regional National Autonomy--1984, amended 2001, Article 7; PRC
Criminal Law--1979, amended 1997, Articles 13 and 102-113. For
an illustrative list of national laws and regulations affecting
religious organizations, see the Religious Freedom section.)
RECOMMENDATIONS ON TIBET
The Commission recommends that the Congress appropriate
increased funding for NGOs to develop programs that improve the
health, education and economic conditions of ethnic Tibetans.
Programs should continue to promote modernization and
prosperity while respecting Tibetan culture and language;
create direct benefits for Tibetans, especially in rural areas
where most Tibetans live; be environmentally sound and
sustainable; and do nothing to encourage or facilitate an
influx of non-indigenous persons. Economic development programs
should continue to include small-scale projects and
enterprises, including micro-financing opportunities for
Tibetans. Educational programs should continue to include
primary, secondary, and tertiary levels; and international
education exchange programs should continue to be for Tibetans
from Tibetan areas who will return to Tibetan areas.
Application for this funding should be open and competitive.
The Commission recommends that the Congress and the
Administration continue to urge Chinese leaders to engage in
substantive dialogue with the Dalai Lama or his
representatives.
There is mutual benefit to be achieved for Tibetans and
Chinese. An agreement could foster greater prosperity and
stability in Tibetan areas of China as well as a more secure,
robust future for Tibetan culture. The Dalai Lama recently
said, ``Genuine autonomy should cover all the Tibetan
territory, all the Tibetan ethnic group's areas.'' ``I'm not
seeking separation,'' he said. ``Our top most concern is
preservation of Tibetan culture, Tibetan spirituality, and
Tibetan involvement.''
The Commission recommends that members of Congress and
Administration officials continue to urge that China end
restrictions on Gedun Choekyi Nyima, the boy identified by the
Dalai Lama as the 11th Panchen Lama, and his family members,
and request that representatives of international observer
organizations visit the boy and his family.
The family should make its own decisions on matters of
residence and education, maintain normal correspondence with
others, and be free to visit others and receive visitors.
Xinjiang--Uighurs
The Chinese government supports the U.S.-led global war on
terrorism, but critics argue that Beijing is using terrorism as
an excuse to crack down on human rights and religious freedoms
of the Uighur Muslim population in Xinjiang.
The Uighurs, a Muslim Turkic people, are the dominant
ethnic group in China's westernmost region, the Xinjiang Uighur
Autonomous Region. They have a different ethnic, cultural,
historical, and linguistic background than Han Chinese and have
resisted Beijing's authority since Qing Dynasty troops first
took control of the Uighurs' homeland in 1759.\187\ Resistance
to Chinese rule continued after the Qing officially gained
control of the area in 1884 and renamed it Xinjiang.\188\
Uighurs managed to regain independence briefly in the 1930s and
again in the 1940s.\189\ Many Uighurs today identify more
strongly with their Central Asian neighbors than with China.
However, while many Uighurs are unhappy with Beijing's
controls, they manifest their discontent through different
means, from deep personal immersion into Islamic traditions to
advocating independence through violent methods.\190\ Yet
``only a very few Uighurs have turned to militancy,'' as Dr.
Justin Rudelson, former executive director of the University of
Maryland's Institute for Global Chinese Affairs, told a
Commission roundtable.\191\
Uighur separatists have committed occasional acts of
violence in recent years, and a few have been linked to
terrorist groups. In August 2002, the U.S. government
designated the East Turkestan Islamic Movement as a foreign
organization that supports terrorism and placed this obscure
Xinjiang separatist group under an executive order blocking its
financial transactions and freezing its assets in the United
States.\192\ China's state-controlled media have alleged that
Osama bin Laden is an active sponsor of Xinjiang
separatists.\193\ However, there is little evidence to
substantiate the Chinese government's claims that thousands of
Uighurs are associated with al-Qaeda and other terrorist
organizations,\194\ or that ``the majority of [Xinjiang]
separatists are engaged in terrorist activities,'' as asserted
by Zhang Guobao, vice-chairman of China's State Development
Planning Commission.\195\ President Bush has cautioned Chinese
President Jiang Zemin that ``the war on terrorism must never be
an excuse to persecute minorities.'' \196\
According to China's official 2000 census, approximately 45
percent of the 19 million people in Xinjiang are Uighurs. The
Han Chinese population has swelled to around 40 percent now, up
from approximately six percent in 1949. In the past, the
increase in the Han Chinese population was largely due to
government-initiated migration to Xinjiang. Now, however, many
Han Chinese workers are moving to Xinjiang in search of new
economic opportunities, as development there has become a
priority for the central government under the Great Western
Development campaign.\197\ This demographic shift is a source
of the growing tension and resentment Uighurs feel towards Han
Chinese and the Chinese government. A July 2002 Financial Times
article stated, ``Settlers and migrant workers are pouring in
from the east at such a rate . . . that Uighurs are beginning
to feel like aliens in their own land.'' \198\
Although Xinjiang has benefited from the central
government's economic development policies, Uighurs contend
that Han Chinese are the primary beneficiaries, often depriving
Uighurs of jobs.\199\ Uighurs are also concerned about the
economic and environmental impact of large extraction projects,
such as a $5.6 billion, 2,500 mile pipeline to transport
natural gas from the Tarim Basin in Xinjiang to Shanghai.\200\
They believe it will simply exploit the region's natural
resources and provide little economic benefit to local Uighur
people.\201\ Many observers also question the pipeline's
viability.\202\
Events in May 2002 amplified Uighur concerns. Article 4 of
the Chinese Constitution guarantees cultural and linguistic
protections for all nationalities. However, the practical
effect of such protections is questionable. Western media
reports describe a massive book-burning rally in the Xinjiang
city of Kashgar in May.\203\ Officials claim that the books
promoted separatism and threatened stability. Uighurs claim
that the books related to their history and culture. Also in
May, officials reportedly ordered Xinjiang University, the
largest in the region, to cease all instruction in the Uighur
language.\204\ Nearly half of the 32,000 students are from
ethnic minority groups, mainly Uighur,\205\ making this ban a
threat to Uighur linguistic preservation and Uighur identity.
Uighur separatist activity, both non-violent and violent,
occurred long before September 11, 2001, and Chinese government
campaigns to suppress separatist actions and religious
extremism have been in full effect for years. The government
justifies its actions under Chinese law, such as Article 52 of
the Chinese Constitution, which requires all Chinese citizens
``to safeguard the unity of the country and the unity of its
nationalities,'' Article 36, which protects only ``normal
religious activities'' as determined by the state, and Article
13 of the Criminal Law, which criminalizes separatist beliefs.
In April 2001, the Chinese government renewed its Strike
Hard anti-crime campaign. While on the national level the
campaign targets crime (see the ``Criminal Justice'' section of
this report), in Xinjiang the crackdown extends to separatists
and ``illegal religious activities.'' \206\ Abulahat Abdurixit,
chairman of the regional government, told the Xinjiang Legal
Daily in April 2001 that the Strike Hard campaign in Xinjiang
would specifically target ``national splittists,'' ``violent
terrorists,'' and ``religious extremists.'' In January 2002,
Abdurixit announced that artists, writers, performers,
historians, and others who advocate separatism through art
would also become Strike Hard targets.\207\ The campaign
exacerbated the rate of sentencing and arrests in the region.
Official accounts note that in May 2001, more than 3,000 cases
were undergoing prosecution in Xinjiang and massive public
sentencing rallies were held throughout the region, with
attendance reaching over 300,000.\208\
Strike Hard intensified in Xinjiang after September 11,
2001. Within a month, authorities announced heightened measures
against separatists, terrorists, ``illegal religious
activities,'' and ``extremist religious forces.'' \209\ Senior
Xinjiang Justice Department officials told visiting Commission
staff in Urumqi that ``illegal religious activities include
splitting the country and endangering national security and
unity under the pretext of religion.'' \210\ Punishable
activities targeted during the crackdown include looting,
rioting, possessing and publishing materials containing
separatist views, engaging in campaigns for religious wars,
illegally setting up organizations, and anything perceived by
authorities to be ``endangering state security or unity.''
\211\ Participation in such activities can lead to long prison
sentences or execution. Senior Xinjiang Justice Department
officials also told Commission staff that approximately 1,000
people are currently in prison in Xinjiang for ``carrying out
concrete activities toward splitting or endangering the
country,'' mostly through violent means.\212\ The sweeping
scope of such charges makes it difficult to discern which cases
are legitimate and peaceful and which may be criminal and
violent.
The case of Rebiya Kadeer exemplifies the nebulous legal
environment. Kadeer is a prominent Uighur businesswoman who was
active in organizing grassroots campaigns to address Uighurs'
social concerns.\213\ She is also a former member of the
provincial-level Chinese People's Political Consultative
Conference and was a Chinese government-appointed delegate to
the 1995 United Nations World Conference on Women in Beijing.
In August 1999, Chinese authorities arrested her while she was
on her way to meet a visiting U.S. Congressional staff
delegation. In March 2000, a Xinjiang court sentenced her to
eight years in prison for ``passing state secrets'' to
foreigners. According to an official Chinese news report, the
alleged ``state secrets'' included local newspaper articles and
names of people whose cases the courts had handled.\214\ Many
observers believe Kadeer was targeted for her activism in the
Uighur community and for her husband's support in the United
States for Uighur causes and involvement with Radio Free Asia.
Restrictions on religious activity in Xinjiang have a
serious impact on Uighurs, whose culture and ethnic identity
are closely tied to Islam. Regulations tightly control places
of worship, activities of religious leaders, religious
education, and participation in religious activities.\215\
Officials restrict the building of mosques in Xinjiang, and,
according to unofficial reports, mosques have been torn down as
part of a crackdown on religious activity.\216\ The Chinese
government closely monitors and guides activities of Islamic
religious leaders (imams), all of whom must be approved by
local branches of the state-controlled Islamic Association of
China. From March through December 2001, the government
implemented an imam ``patriotic re-education'' campaign in
Xinjiang. Imams were required to attend 20-day sessions to
study patriotism, Communist Party ideology, and how to combat
separatism.\217\ The China Islamic Affairs Steering Committee
was set up in March 2001 under the administration of the
Islamic Association of China to conform Islam to Chinese
political ideology.\218\ The Committee is charged with
translating religious texts in accordance with Chinese law and
Islamic doctrine, and preparing sermons for distribution,
according to the China Daily, ``to help the imams improve
themselves.'' \219\
According to unofficial sources, no one under the age of 18
is allowed to enter mosques, and official sources verify that
religious education is tightly restricted,\220\ under the
Chinese government's assumption that religion interferes with
education per Article 36 of the Chinese Constitution. Heavy
restrictions on religious activities extend to teachers and
university students. Dr. Tashpolat Tiyip, Vice President of
Xinjiang University, told visiting Commission staff that at
Xinjiang University, ``We do not allow for religious activities
inside the school'' and that any student found participating in
religious activities at the university would be dismissed.
``They all obey the school rules and none participates in
religious activities.'' \221\
(Illustrative legal provisions include: PRC Constitution,
Articles 36, 51, 52, 53, 54, 112-122, and 134; PRC Law on
Regional National Autonomy--1984, amended 2001, Article 7; PRC
Criminal Law--1979, amended 1997, Articles 13 and 102-113. For
an illustrative list of national laws and regulations affecting
religious organizations, see the Religious Freedom section.)
RECOMMENDATIONS ON XINJIANG--UIGHURS
The Commission recommends that the Congress and the
Administration continue to emphasize that the war against
terrorism is not an excuse for suppression and violations of
human rights of ethnic Uighurs in Xinjiang, and recommends that
the Congress and the Administration provide funding for NGOs to
develop programs that focus on preserving the Uighur culture
and language.
While the U.S., Chinese, and other governments have linked some
Uighur separatists in Xinjiang to terrorist groups elsewhere,
the Chinese government's broader claims against the Uighur
minority in Xinjiang have not been proven. Combating terrorism
and separatism in Xinjiang has resulted in intensifying
repression against Uighurs, escalating violations of their
human rights (especially the right to religious freedom), and
undermining local efforts to preserve Uighur culture and
language. Programs to preserve Uighur culture should promote
Uighur language and literature.
The Commission recommends that the Congress and the
Administration urge the Chinese government to lift restrictions
on religious activity for Uighurs, allowing Uighurs of all ages
to participate in religious activities and receive religious
education.
Restrictions on religious freedom in China particularly
resonate with Uighurs, as they consider Islam inseparable from
their culture and identity. Current Chinese restrictions on
religious activities are notably stringent for Uighurs in
Xinjiang, especially since an intensified government campaign
against terrorism and separatism has also extended to religious
extremism. Uighurs of all ages should be allowed to worship
freely, receive religious instruction, and obtain and study the
Koran and other religious texts.
The Commission recommends that the Congress and the
Administration continue to press the Chinese government to
allow U.S. Embassy and Consulate officers, as well as other
international observers, to attend trials of individuals
charged with ``endangering national unity or security'' in
Xinjiang, particularly of individuals who have committed non-
violent acts.
Xinjiang Justice Department officials told visiting Commission
staff that it is ``permissible and normal'' for foreign
diplomats to attend the trials of those accused of these
offenses. In practice, however, the procedures for doing so are
opaque and court authorities evidently do not consider it
normal for foreign observers to attend. Thus, few U.S. Embassy
officers have been permitted to attend these trials in the
past. Because charges of ``endangering national unity or
security'' against Uighur separatists are common, the
Commission believes it is particularly important to press the
Chinese government to permit U.S. and international observers
to attend these trials.
Impact of the World Trade Organization on
the Development of the Rule of Law
On December 11, 2001, China formally became a member of the
WTO. In doing so, China agreed to abide by the rules governing
trade relations among most of the nations of the world. U.S.
trade analysts and business leaders expect China's accession to
the WTO to provide greater opportunities and a more stable
economic environment for American businesses operating there.
More important, although some believe that increased trade may
serve to strengthen the existing power structure in China, many
others believe that the changes that the Chinese government
must make to implement its WTO commitments will help foster the
broader development of the rule of law.
In joining the WTO, China has demonstrated an unprecedented
willingness to make fundamental changes to its system of
governance in response to the dictates of an international
body. This decision itself is an important step in moving
toward a system of government based on the rule of law. As U.S.
Undersecretary of Commerce for International Trade Grant
Aldonas stated to the Commission, ``Observance of the law in
any society has to become a habit.'' \222\ Reform-minded
elements within the Chinese leadership have been eager to
demonstrate China's commitment to compliance and the
institutional changes that are expected to result from
accession.\223\ Early in 2002, Long Yongtu, Vice Minister of
Foreign Trade and Economic Cooperation, announced that WTO
accession will help China build ``a stable, transparent and
predictable law system.'' \224\
The WTO agreements and China's accession documents contain
many core elements of the rule of law. The WTO imposes
transparency on its members by requiring that all laws,
regulations, judicial decisions, and administrative rulings
relating to trade be published promptly.\225\ WTO agreements
also require that all trade-related measures be administered in
a uniform, impartial and reasonable manner,\226\ and that those
measures not be enforced before they are officially
published.\227\ Further, WTO members must maintain tribunals or
procedures for the prompt, independent review of trade-related
administrative actions.\228\ WTO members must incorporate these
requirements into their own legal systems.
The Chinese leadership has viewed the WTO as a vehicle for
promoting economic reforms that were already regarded as
desirable but politically difficult to achieve, including
reforms that involve the same rule of law elements found in
China's WTO commitments. Professor Donald Clarke of the
University of Washington Law School told a Commission hearing
that ``accession is part of a larger strategy of massive and
fundamental economic reform.'' \229\ Recognizing the importance
of the changes WTO membership would bring to its larger
economic reform policies, China began amending and abolishing
laws and regulations inconsistent with the WTO before it became
a member. The Ministry of Foreign Trade and Economic
Cooperation (MOFTEC) reported that 2,300 laws and regulations
had been ``cleaned up'' due to WTO non-compliance as of May
2002, and of these 830 had been abolished.\230\ Efforts to
undertake reform of China's administrative law regime and its
judiciary also began long before China joined the WTO.
Reform of Lawmaking and Rulemaking Processes
In joining the WTO, China has agreed to honor transparency
commitments by publishing trade-related measures in an official
journal and providing an opportunity for the public to comment
on drafts before those measures are implemented.\231\ The
Legislation Law passed in 2000 provides for the possibility of
publishing drafts of ``important'' bills and of seeking
opinions from various parties through public hearings, although
it does not mandate releasing draft bills to the public at
large.\232\ Similarly, the State Council's Procedural Rules for
Formulating Administrative Regulations require that the State
Council gather opinions from relevant government bodies,
associations, and citizens, but does not require the release of
draft regulations to the public at large.\233\
Some administrative bodies have published regulations and
other measures in draft form for public comment; administrative
bodies that regularly issue rules and regulations involving
trade and investment, such as the China Securities Regulatory
Commission, have done so more consistently.\234\ Other
administrative bodies also have made public a limited number of
proposed regulations, including some without obvious
connections to trade.\235\ Some measures are shared in draft
form with a limited Chinese audience, further promoting
concerns among foreign investors and trading partners about
discrimination and selective transparency. However, Chinese
government authorities promulgate most measures in final form
without distributing drafts and allowing public comment. This
practice demonstrates that, on the whole, Chinese
administrative bodies are far from achieving full compliance
with China's transparency commitments.
As expected, progress in implementing WTO rules on
transparency varies widely at the provincial and local levels.
A large number of laws and regulations at these levels need to
be revised or rescinded. China's most commercially advanced
provinces and cities lead the rest of the country in these
reforms. For example, in 2000, the Shanghai people's government
instituted an action plan that included a review of local
measures for WTO compatibility. Shanghai also has begun holding
open hearings on some draft legislation. In 2002, the Beijing
people's government adopted measures that permit publishing
draft rules and holding public hearings.\236\ Although a few
other provinces and municipalities have set up WTO compliance
centers and have taken significant steps toward revising laws
and rules and improving transparency,\237\ many provincial and
local governments continue to lack the will or knowledge
necessary to embrace the changes that WTO membership requires.
Administrative Law Reform
China lacks comprehensive procedures for making
administrative rules and regulations, which leads to
inconsistent rulemaking practices among administrative
bodies.\238\ China also lacks adequate methods for challenging
administrative actions, either internally or through the
courts. Many administrative bodies have no procedures or
personnel in place to hear and decide administrative
appeals.\239\ The Administrative Litigation Law allows citizens
to sue government officials in a court of law for violation of
their ``legitimate rights and interests.'' \240\ However, the
law limits the types of actions that can be challenged, and the
courts have defined ``legitimate rights and interests''
narrowly.\241\ With the support of the Asia Foundation and U.S.
legal scholars, the China Administrative Law Research Group, a
group of Chinese legal scholars and government officials, is
drafting a new law on administrative procedure that is to be
completed by December 2003. Many Chinese and foreign observers
hope that the new law, together with reform of all laws and
regulations inconsistent with WTO requirements, will bring
about a more uniform system of enforcing trade-related measures
through administrative appeals and improved mechanisms for
judicial review of administrative actions.
Judicial Reform
Many argue that the weakness of China's judiciary poses one
of the biggest obstacles to effective judicial review of
administrative actions.\242\ The most significant development
in judicial reform resulting from China's WTO membership has
been the establishment of new procedures to handle
transnational disputes, whereby foreign entities may have their
cases heard before intermediate courts without first appearing
before lower level courts.\243\ Similar procedures have been
established for intellectual property cases. Judges assigned to
these cases have begun training in business law, intellectual
property, and legal English. For WTO-related cases, these new
procedures may lessen the impact of corruption and lack of
professional competence, problems that critics find throughout
China's judicial ranks.\244\
Some critics argue these new court procedures show that the
Chinese government will attempt to limit the impact of WTO
accession to the commercial sphere. Others argue that China's
commitment to provide independent and impartial judicial review
for WTO-related actions may be having a broader impact. For
example, in the past year, the Chinese government established
the first uniform national examination for new judges, lawyers,
and prosecutors, and the Supreme People's Court issued a
circular calling for standardized selection processes and
improved professional competence at all levels of the
judiciary.\245\ It is too early, however, to assess whether
these calls for reform and efforts to improve the competence of
China's judges will lead to beneficial changes in the judicial
process, either within the realm of commercial law or more
broadly.
U.S. Government Activities
The United States Trade Representative (USTR) coordinates
the Administration's monitoring efforts through chairmanship of
the interagency Trade Policy Staff Committee (TPSC)
subcommittee on China WTO compliance, which consists of
officials from those federal agencies most concerned with WTO
commitments, including the Departments of Commerce, State,
Agriculture, Labor, and Treasury and the U.S. Patent and
Trademark Office. In China, the State Department, the
International Trade Administration, the Foreign Agricultural
Service, and U.S. Customs monitor compliance. The U.S.-China
Relations Act of 2000 requires the USTR to submit an annual
report on China's compliance with its WTO commitments,
including the findings of the Department of Commerce's
compliance monitoring program. The first report is due by
December 11, 2002.\246\ Moreover, the Senate Finance and House
Ways and Means Committees have tasked the General Accounting
Office (GAO) with a four-year project to examine China-WTO
implementation issues.
In China, U.S. government agencies provide limited
technical assistance for WTO implementation and compliance, but
there is little coordination among them. U.S. diplomats have
held training courses for Chinese government officials at
various levels. The Department of Commerce has conducted a
number of seminars throughout China, mostly on industry-
specific topics. U.S. agencies currently conducting programs
have little experience in offering technical assistance.
Moreover, agencies carry out existing programs without funds
appropriated for this specific purpose, and the programs are
not designed to address China's WTO commitments relating to
rule of law development. The U.S.-China Relations Act of 2000
authorizes the Department of Commerce to establish a commercial
rule of law and technical assistance program related to
commercial activities in China.\247\ If carried out, this
program could help China meet its WTO rule of law commitments.
However, the Congress has not appropriated funds for this
specific purpose, and, consequently, the Department of Commerce
has not established a comprehensive commercial rule of law
program in China.
Foreign Government Assistance
In contrast to the United States, other governments,
including the European Union, individual European states,
Australia, Canada, and Japan, have committed to provide
significant technical assistance to China on WTO compliance and
the development of the rule of law. The European Union has been
the largest donor for training programs. Its WTO-related
projects, reportedly estimated at about $100 million, are being
phased in over a number of years as part of the EU's larger
strategic plan for relations with China.\248\ Commission
hearing witnesses have cautioned that the United States should
not cede to other governments the opportunity to prioritize the
content of technical assistance to China, as doing so may
result in a Chinese legal system that favors other countries'
interests to the detriment of the United States.\249\
It is too soon to determine whether China will adhere to
its commercial rule of law commitments, given the sweeping
structural changes required. China's capacity to implement the
changes necessary for WTO compliance continues to be debated
vigorously in China, the United States, and elsewhere. Some
doubt whether MOFTEC is capable of coaxing the other ministries
into action.\250\ Analysts also question Beijing's ability to
force provincial and local governments to change their policies
and practices after having enjoyed significant autonomy for so
long, despite the strong interest to comply among China's most
senior leaders.\251\
(Illustrative legal provisions include: Accession of the
People's Republic of China to the World Trade Organization,
Decision and Protocol--2001; Marrakesh Agreement Establishing
the World Trade Organization--1994, Annex 1B (General Agreement
on Trade in Services), Annex 1C (Agreement on Trade-Related
Aspects of Intellectual Property Rights); General Agreement on
Tariffs and Trade--1947)
RECOMMENDATIONS ON IMPACT OF THE WTO ON THE
DEVELOPMENT OF THE RULE OF LAW
The Commission recommends that the Administration develop a
comprehensive plan for WTO-related technical assistance to
China.
Although China has undertaken its own training efforts,
officials there have stressed that a lack of expertise and
capacity to meet China's training needs has hampered progress
in WTO implementation. The need is particularly acute in
training for judges, administrators, and bureaucrats in WTO
rules and processes.\252\ A comprehensive U.S. government plan
should focus on WTO implementation areas that not only will
have an impact on commercial rule of law, but also will
accelerate the development of the rule of law more broadly. In
particular, technical assistance should be geared to
transparency in the legal system, administration of laws in a
transparent and reasonable manner, and the provision of fair,
impartial, and independent judicial procedures. Since existing
programs have focused principally on training national-level
officials, new training programs should target provincial and
municipal officials, in addition to addressing the training
needs of national-level officials more systematically.
The Commission recommends that the Congress appropriate funds
and earmark them for the Commercial Law Development Program
(CLDP) to implement a commercial rule of law training program
in China, as authorized by the U.S-China Relations Act of 2000.
The Department of Commerce's Commercial Law Development Program
(CLDP) focuses on all aspects of laws, regulations, and
administrative practices affecting trade. It has worked with
foreign governments, academics, and NGOs to conduct commercial
rule of law programs all over the world, including many
programs focusing on WTO accession and implementation issues.
The Congress should make funding for a CLDP China program
available either through a direct appropriation to the
Department of Commerce or through the U.S. Agency for
International Development (USAID). It appears that there are no
legislative obstacles to providing CLDP with the funding,
through USAID or otherwise, to carry out commercial rule of law
or technical assistance programs in China. A CLDP China program
should be part of the comprehensive plan in the previous
recommendation.
Rule of Law Programs
From a small start in the late 1970s, provision by foreign
entities of technical assistance to promote the development of
the rule of law in China has accelerated. The spiraling number
of programs and their increasing variety have made it difficult
to sort out what kinds of efforts have been most effective and
where governmental and non-governmental help in the future
might be best deployed to achieve the desired goals. To
untangle these issues, the Commission has begun to construct a
database of rule of law programs that will be available on the
Commission's website.
The U. S. government lags behind other nations in
supporting these kinds of programs.\253\ The bulk of
government-funded assistance furnished so far has come from
Europe, including a large program funded by the European Union
itself, along with programs by individual European states.
Other major assistance comes from the governments of Canada,
Australia, New Zealand, Japan, and South Korea.
Conversely, U.S. NGOs have been at the forefront of efforts
to develop rule of law programs and have played key roles in
developing creative ways to provide assistance. The Commission
roundtable ``Promoting the Rule of Law in China'' introduced
examples of ongoing U.S.-based rule of law programs. The Temple
University School of Law was the major direct recipient of U.S.
government funds for rule of law development in China,
authorized for the first time in fiscal 2000. Its cooperative
Masters of Law program with Qinghua University and other
universities has already turned out more than 70 graduates,
including judges, high-level officials, and private lawyers.
U.S. faculty members are currently participating in drafting
workshops with staff of the National People's Congress and the
Supreme People's Court on new torts and property laws, as well
as a code of judicial ethics.
Robert Kapp, President of the U.S.-China Business Council,
presented testimony at a Commission roundtable about the U.S.-
China Legal Cooperation Fund. The Fund sponsors small-scale
cooperative projects in areas ranging from legal support for
women in cases of domestic violence to the drafting of a code
of legal ethics for the All-China Lawyers Association. At the
same Commission roundtable, Nancy Yuan of the Asia Foundation
presented some of the Foundation's grassroots rule of law
projects. These and other grassroots initiatives, such as those
of the Ford Foundation, address issues of concern to the
average Chinese citizen and promote rights awareness in the
areas of environmental protection, public health, HIV/AIDS,
worker rights, property law, family law, trafficking in women
and children, and consumer protection.
NGOs from other nations work on rule of law programs in
China. Multilateral organizations such as the UNDP, the Asian
Development Bank, UNICEF, UNESCO, and the World Bank have also
offered assistance in this area. Twice a year, foreign entities
supporting legal reform and human rights work in China meet in
Beijing to exchange ideas, avoid duplication of effort, and
evaluate obstacles and opportunities.
The Commission has concluded that popular legal education
and legal aid programs are some of the most promising areas for
future promotion of the rule of law in China. The staff members
of existing legal assistance programs, including hotlines and
drop-in clinics, say that demand for grassroots legal
information and help far exceeds their ability to satisfy it.
The large number of people seeking help to assert their rights
in a legal context belies the assertions of some foreign
scholars that China's lack of an ``indigenous rights
tradition'' makes it unlikely that the concept of human rights
can ever prosper in China. To the contrary, it appears that
once they know the law, the Chinese people are no less willing
than the people in other nations to seek legal means to protect
their rights and interests.
RECOMMENDATIONS ON RULE OF LAW PROGRAMS
The Commission recommends that the Congress authorize the
development of programming in popular legal education for
groups in China, such as farmers in remote areas and migrant
workers, who are unaware of their rights under existing law.
Programs of this type should involve cooperation with local
organizations and legal aid centers and focus on specific
rights under Chinese law. Programs in minority areas should be
offered in the relevant languages.
The Commission recommends that the Congress authorize and
strengthen judicial training programs and exchanges between the
United States and China.
Judicial exchanges and training programs enhance the expertise
and professional prestige of judges in China, a vital component
of the culture of judicial independence. Such programming
should include discussion of case studies in judicial ethics
pointing out the challenges faced by judges in both countries.
Programs must include mechanisms for building lasting
communication and support networks (such as email lists and
electronic bulletin boards).
The Commission recommends that the Congress and the
Administration provide special assistance to legal aid centers
serving marginalized populations in China, such as the
disabled, laid-off workers, victims of unsafe working
conditions, and individuals harmed by environmental pollution.
Many members of these marginalized groups should benefit from
existing Chinese laws that in principle extend legal
protections to them, but most members know little about
existing law and lack the resources to obtain useful legal
assistance.
The Commission recommends that the Congress instruct the GAO to
review and analyze the effectiveness of all U.S. government-
funded programs promoting the rule of law, human rights, and
democracy in China.
Some existing programs have not been evaluated by external
auditors to assess their performance. Some programs have no
evaluation process at all. Diligent external evaluation can
lead to more effective future programming.
General Recommendations
The Commission recommends that the President, senior Executive
Branch officials, and members of Congress continue to raise
human rights issues, as well as individual cases of victims of
human rights abuses, including those discussed in this report,
whenever they meet with Chinese government officials. The
Commission further recommends that the Administration include
Commission leaders in any future Presidential visit to China.
Our nation's political leadership, in both the Congress and the
Administration, should reinforce to Chinese counterparts at
every opportunity that the international community expects
China (and all nations) to abide by internationally recognized
human rights practices.
The Commission recommends that the Administration explore
additional ways to build multilateral support to put pressure
on China to improve human rights practices and legal protection
of citizens.
All 18 Congressional members of the Commission signed a letter
to President Bush on April 18, 2002, urging him to work with
members of the United Nations Human Rights Commission (UNHRC)
to pass a resolution on China's human rights practices. In part
because the United States had no seat at the UNHRC in 2002, no
China resolution was introduced in the 2002 UNHRC session. In
addition to diplomacy at the UNHRC, the Commission believes
that the United States could usefully explore additional
multilateral approaches, including applicable United Nations
human rights mechanisms.
The Commission recommends that the Administration require that
all Commerce Department officials assigned to China complete a
course on human rights issues and their relationship to U.S.
business activities in China.
Many U.S. businesses bring American values to China with their
operations. Commerce Department officials can play a critically
important role in sensitizing business leaders to human rights
issues and to appropriate responses.
The Commission recommends that the Administration urge the
Chinese government to ratify the International Covenant on
Civil and Political Rights.
China has signed but not sent this covenant to the National
People's Congress for ratification. On February 13, 2002, the
Commission sent a letter to President Bush recommending that he
urge President Jiang Zemin to direct his government to complete
the process of ratification.
The Commission recommends that Congress authorize funds for
technical assistance to China to slow the spread of HIV/AIDS
and to mobilize national and local policy responses to the HIV
epidemic based on the epidemiology of HIV in China and on
``best practices'' identified through international experience.
An uncontrolled epidemic of HIV/AIDS in China will cripple the
capacity of the already battered public health system in China
to respond to normal public health demands. Technical
assistance on coping with HIV/AIDS could include cooperation on
drafting model codes on the national, provincial, county,
township, and municipal levels to address the epidemic without
infringing on basic human rights.
5. Commission Activities for the Next Year
This section provides a partial list of additional issues
that the Commission will examine over the coming year. It is
illustrative and is not intended to be comprehensive.
Human Rights and the Beijing 2008 Olympics
On July 13, 2001, Beijing was awarded the right to host the
2008 Summer Games. The International Olympic Committee (IOC)
selected Beijing despite vociferous criticism of China's human
rights record. The IOC maintained that hosting the Games would
spur improved civil liberties in China.\254\ The Secretary
General of Beijing's bid committee, Wang Wei, encouraged that
perception, vowing that the Beijing Games would ``improve all
facets of life in China, including education, health, and human
rights.'' \255\ But Kevin Wamsley, Director of the
International Centre for Olympic Studies at the University of
Western Ontario, said the impact of the Olympics on the host
country is overblown: ``I'm sure in the years leading up to the
Games political prisoners will be released, but it will be for
the wrong reason,'' Wamsley said. ``It will be to save face,
not to preserve humanity. Let's face it, a three-week festival
can't change political, cultural, and historical traditions.''
\256\
The Commission will look at what, if any, effect hosting
the Olympics will have on China's human rights practices and
how the U.S. government might encourage positive results.
Corporate Social Responsibility
Many NGOs argue that foreign businesses operating in China
focus on earning profits with little regard for the promotion
of human rights. Businesses respond by saying that a U.S.
corporate presence is the best way to promote democratic values
in China. In recent years, companies around the world have
instituted corporate social responsibility programs intended to
strike a balance between financial success, relations with host
governments, and the well-being of their surrounding
communities. In China, as part of such programs, some U.S.
companies and industrial associations have established
guidelines governing their practices with respect to working
conditions, environmental protection, community involvement,
and other aspects of their corporate activities.
There is debate regarding whether such social
responsibility programs have a significant impact on business
practices in China. NGOs have criticized multinational
corporations for touting their programs while failing to
establish mechanisms to implement them fully. The Commission
will examine these corporate social responsibility programs and
policies, focusing on the ``American values'' that U.S.
businesses purport to bring to China and what those values
embody. The Commission will also work to identify best
practices and to determine whether foreign companies in China
have lived up to the commitments they have made to adopt
procedures and policies that will have a positive impact on
China.
Women's Rights
Article 48 of the Chinese Constitution states, ``Women in
the People's Republic of China enjoy equal rights with men in
all spheres of life.''
Despite this guarantee of equality, the transition from a
planned to a market economy in China has resulted in particular
hardships for women. The one child policy, even in its somewhat
milder current form, has had a severe and unequal impact on
women, including in some instances forced sterilization and
abortion. In addition, the continuing preference for sons has
resulted in selective abortion and sometimes infanticide of
baby girls, causing a skewed male-female ratio in the general
population. The growing problem of HIV/AIDS (see below) will
have a substantial impact on women who too often do not have
the legal and political standing to demand protection from
their sexual partners.
Other issues the Commission will address include women's
access to justice, women in the migrant workforce, trafficking
in women, women's health issues, and family planning law and
policy.
HIV/AIDS
The United Nations Theme Group on HIV/AIDS in China's 2001
update, ``HIV/AIDS: China's Titanic Peril,'' warns of ``a
catastrophe that could result in unimaginable human suffering,
economic loss, and social devastation.'' The United Nations
estimates that up to 1.5 million people are infected with HIV
in China, nearly double the official Chinese estimate of
850,000 cases at the end of 2001. The New York Times quoted UN
officials as saying that ``there could be as many as six
million cases already in China, with 20 million expected by the
end of the decade if nothing is done.'' \257\ Yet in some
regions, low percentages of Chinese citizens are even aware of
the disease and how it is spread. Unofficial news reports
describe Chinese authorities as continuing to suppress
information about HIV/AIDS in some parts of China.\258\
The UN's Office of the High Commissioner for Human Rights
identifies HIV/AIDS as an undeniable human rights concern:
There is clear evidence that where individuals and
communities are able to realize their rights--to
education, free association, information, and, most
importantly, non-discrimination--the personal and
societal impact of HIV and AIDS are reduced. The
protection and promotion of human rights are therefore
essential to preventing the spread of HIV and to
mitigating the social and economic impact of the
pandemic.\259\
The Commission will examine the development of HIV/AIDS in
China, the Chinese government's interest and effectiveness in
addressing this issue, and the human rights implications of the
disease.
Reform through Labor (Laogai)
Before 1997, among the punishments that Chinese courts
meted out at the end of China's criminal justice process was
``reform through labor'' or laogai, which purported to reform
unacceptable social and political behavior by inculcating
``socialist values'' through rigorous labor. Due to
international criticism of this aspect of China's penal system,
the Chinese government officially purged the term laogai, and
the corresponding formal institutions, from China's criminal
law in 1997. Nevertheless, the forced labor sites that the
former term laogai described continue to operate, modernize,
and boost production of goods. Today's forced labor penal
system produces manufactured goods, commodities, and
agricultural produce in state-owned and operated farms,
ranches, mines, and factories. Experts differ as to whether
these sites operate at a profit or constitute a drain on the
Chinese government budget. They also disagree on the scope of
these sites and the number of inmates, and whether export of
prison labor products to the United States is rising, falling,
or remaining static. (U.S. law forbids prison labor imports
into the United States.) China has numerous penal sites that
were created as penal reform institutions that can also
accommodate some productive labor. China also continues to
operate hundreds of forced labor sites (camps and other
facilities) created solely for commercial production using
prisoners as the workforce. The Commission will examine these
issues during the coming year.
Rights of Farmers and Rural Migrants
Farmers and rural migrant workers, who comprise the vast
majority of China's population, suffer additional injustices
beyond those encountered by urban residents. Hou Wenzhuo, a
Visiting Fellow at Harvard Law School, told a Commission open
forum that the Chinese household registration system (hukou)
has bifurcated China's population into the urban first world
and the rural third world. Although reform of the household
registration system has begun in some areas of China, rural
migrant workers are still denied social services in the cities
and are generally treated as second-class citizens because of
their rural status. Rural migrant workers face unequal rights
in employment, job security, and health and safety, and women
migrant workers encounter additional discrimination in the form
of sexual harassment, pregnancy discrimination, and unequal pay
for equal work. Rural Chinese remaining in the countryside face
significant problems such as arbitrary and excessive taxation
and a lack of social services. While land-use rights have
improved under China's 1998 Land Management Law, the law is
often not adequately implemented. Corruption in village
governments and local law enforcement agencies is widespread.
Human trafficking is also a serious problem for rural women and
children.
In the coming year, the Commission will examine these and
other human rights issues affecting farmers and rural migrants.
Indigenous Chinese ``NGOs''
As China has moved from central planning toward a market
economy, the state has retreated from many areas of social life
where it once played a dominant role. A variety of social
organizations has sprung up to help provide services once
guaranteed by the state and to give a voice to new
constituencies shaped by the changing economy. Education and
health care are two examples of vital state functions now
sometimes performed by non-state organizations. A 2001 report
by the editors of China Development Brief lists 250 Chinese
NGOs, ranging from the huge Party-led ``mass organizations,''
founded soon after 1949, to specialized local associations
founded much more recently. They include the Shanghai Cancer
Recovery Club and the Women's Legal Services Centre in Qianxi
County.\260\
Observers disagree on whether the term NGO, which implies a
degree of autonomy from government control, should be applied
to Chinese social organizations (called ``social associations''
under relevant Chinese legislation).\261\ Some point out that
these organizations are ultimately under state control and,
therefore, should not be considered as truly ``non-
governmental'' organizations. They contend that strict state
supervision and suppression have led these groups to adopt an
attitude of cautious deference to the government, rather than
one of criticism and public advocacy. Others disagree, seeing
them as nascent NGOs, at least in substance, if not in form.
Some Chinese associations even argue that their connection with
state sponsors can translate into more effective influence on
government policy.
The Commission will examine this issue and determine if and
how such entities can help promote the rule of law and human
rights in China and whether the U.S. government might play a
role in assisting their development.
Hong Kong
Five years after Hong Kong's reversion to China on July 1,
1997, many in Hong Kong and elsewhere continue to voice
concerns about the direction of the territory's development as
a Special Administrative Region (SAR) of China. The PRC-UK
Joint Declaration of 1984, together with the Basic Law adopted
by China's National People's Congress (NPC) in 1990, declared
that Hong Kong would enjoy ``a high degree of autonomy'' after
reversion under the rubric ``One Country, Two Systems.'' Some
remain uneasy about developments since reversion while
admitting that the transition itself has been generally
successful, permitting Hong Kong to maintain its autonomy and
unique character. Most analysts agree that Hong Kong's long-
term success will depend on preserving the quality and
integrity of Hong Kong's highly respected civil service,
maintaining and strengthening the rule of law and an
independent judiciary, and building the vigilance of an
informed and public-spirited populace. The Chinese government's
continued commitment to accepting the spirit and letter of the
Joint Declaration and Basic Law will also be of critical
importance.
Critics of the current Hong Kong government accuse it of
adopting policies and making decisions that it believes will be
pleasing to the Chinese government in Beijing, most frequently
without any informal or formal expression of views by the
latter. Some are concerned about the SAR's 1999 decision to
refer a decision of the Hong Kong Court of Final Appeal in
cases involving the right of abode in Hong Kong to the NPC
Standing Committee. Some critics cite the seemingly abrupt
retirement of longtime Chief Secretary Anson Chan in 2001 as
evidence that the integrity of the Hong Kong civil service is
at risk. Such fears were fueled in 2002 when Chief Executive
Tung Chee-hwa announced an ``accountability system'' permitting
him to create a cabinet of appointed ``principal officials'' to
lead government departments. In addition, many were unsettled
by the process that gave Mr. Tung a second five-year term in
early 2002, worrying that the method used to determine his
candidacy called into question whether the government intends
to meet the Basic Law's commitment to extend universal suffrage
and directly elect the Chief Executive and all members of the
Legislative Council by 2008. Recent statements by senior
Chinese leaders fuel these concerns about Hong Kong's autonomy.
The Hong Kong government is studying whether to adopt
legislation under Article 23 of the Basic Law that deals with
subversion and sedition. Some fear that the new law could
become a legal device to limit public discussion or activities
that the government may deem sensitive to the authorities in
Beijing. Many have called on the Hong Kong government to ensure
that any such legislation adheres to international human rights
standards and that the government promote broad public debate
and consultation in its drafting.
Development of Prisoner Database and Registry
During the coming year, the Commission intends to make
substantial progress to meet the requirements of the
legislative mandate to establish and maintain lists of victims
of human rights abuses in China. This will entail the creation
of a database of information on political and religious
prisoners. A custom software application will be developed
because no off-the-shelf product can provide the features,
security, or interface needed. An Internet interface will
provide access to information via a page on the Commission
website. Development is expected to take at least 12 months.
Until the database is operating, the Commission will monitor
the key systemic issues underlying political imprisonment,
identify individual prisoners who represent these systemic
abuses, and take measures on their behalf.
The design of the database will allow collection and
analysis of a wide variety of information types for prisoners.
Categories will include biographical and personal information,
details about detention and imprisonment, the role and behavior
of police, prosecutors and courts, as well as health,
maltreatment and torture.
The database will provide a powerful tool for the Congress,
the Executive Branch, state and local government, NGOs,
scholars, and the public to access information about
individuals currently detained as a consequence of exercising
internationally recognized human rights. The structure of the
database will allow diverse queries, including about broad
groups of victims based on any of many parameters, as well as
searches based on very specific criteria. Whether a focus is
defined by the reason for arrest, legal process, a geographic
area, a period of time, a prison, or a religion, the Commission
database will provide an invaluable tool for seeking
information on current political imprisonment in China.
6. Additional Views of Commission Members
Dissenting Views of Senator Sam Brownback
While I strongly support the efforts of the Commission to
monitor the People's Republic of China's compliance with
international human rights norms, it is my view that the report
has some significant hurdles to overcome before I can be
satisfied that it is fulfilling its mandate.
The report identifies United States assistance and PRC
cooperation on rule of law reform as the solution to changing
the human rights situation in China. By directing the report's
criticism away from the deliberate policies of the PRC
Government that undermine international human rights norms, the
Commission does a disservice. It is well known that the
Government routinely uses the absence of rule of law to explain
away human rights abuses, while also denying that they exist.
As well, I have deep concerns with China's well-known
reliance on forced sterilizations and abortions as part of its
aggressive enforcement of its' population targeting programs.
Earlier this year, in commenting on China's enforcement of
its population programs, Secretary of State Colin Powell said
in a letter dated July 21, 2002, ``Regrettably, the PRC has in
place a regime of severe penalties on women who have unapproved
births. This regime plainly operates to coerce pregnant women
to have abortions . . .''
The problem of coercive abortions and forced sterilizations
in China is more than a serious problem, it is an international
outrage. I would hope that the Commission would conduct a very
thorough and intensive review of this issue and deal more
substantially with these concerns in its report next year.
For these reasons, I am unable to support this report. I
would hope that next year's report will address these concerns
more fully.
Dissenting Views of Representative Frank Wolf
While this first report by the Congressional Executive
Commission on China (CECC) contains some worthwhile
recommendations and observations on the continued human rights
abuses in the People's Republic of China, I do not believe it
sufficiently describes and addresses the degree to which these
human rights abuses can be laid at the feet of the Government
of China.
In a recent letter to all CECC commissioners, human rights
advocate Harry Wu outlined several human rights issues in China
that should have been included or discussed with more vigor and
analysis in this report. I share in Mr. Wu's analysis.
For example, the section of the report on village elections
gives the impression that the practice of village elections may
be a positive development in a transition to democracy in
China, without seriously analyzing whether or not the Communist
Part may use village elections as a method of establishing
control in the rural regions. The report says that ``critics of
the process say that the Communist Party manipulates the
outcome [s],'' but it does not adequately assert that China's
rulers may use village elections as part of a strategy to
maintain control.
On another matter which Mr. Wu raises, it is perplexing
that the report fails to reflect the debate this year in
Congress and in the Bush Administration about China's planned
birth policy, particularly regarding whether or not the
Administration would withhold funding from the United Nations
Population Control Fund. This important issue is not addressed
in this, the first, report of the commission and is conspicuous
by its absence. The commission recently held a hearing on this
subject, and I believe the report should address in detail
China's planned birth policy.
Similarly, I agree with Mr. Wu that the report fails to
discuss China's state-sponsored harvesting and trafficking of
prisoners' organs, where a common thief can be executed in
order for his organs to be sold for transplanting. Can you
imagine being imprisoned for a minor offense and ending up
being shot in the head and having your kidneys or corneas
removed to be sold? Congress has held numerous hearings on this
issue and the news media has written about this issue, but the
report fails to discuss this horrible practice.
I also believe the recommendations on religious freedom
should be stronger. While these recommendations may be well-
intentioned, they lack the necessary depth of discussion in
addressing the Chinese Government's continued persecution of
believers of all faiths--Roman Catholics, Protestants, Falun
Gong practitioners, Muslim Uighurs, and Tibetan Buddhists.
Furthermore, I am concerned that this commission may not be
willing to be a direct advocate on behalf of human rights and
religious freedom, through letters or conversations with
Chinese officials.
As I stated at a commission hearing this year, this panel
should follow the model of the Helsinki Commission and be vocal
in its advocacy for individual cases and human rights in
general. I agree with John Kamm, president of the Dui Hua
religious freedom organization, who has done more than almost
anyone I know for human rights in China, who said at a
commission hearing, ``The model should be the Helsinki
Commission . . . I foresee a day when this commission . . . is
an arsenal of human rights.''
The Helsinki Commission does not hesitate to write directly
to leaders of member countries advocating human rights and
religious freedom. The Helsinki Commission has done more than
almost any other entity to bring freedom, hope and democracy to
the former Soviet Union and the Eastern Bloc countries. The
CECC ought to follow this successful model. But, clearly, this
has not yet occurred, and it is almost as if the CECC is afraid
that it will offend the China Government.
If I were a prisoner in China today, I wonder if I would
have the same amount of trust and hope in the CECC to take up
my case with Chinese officials as Soviet dissidents had in the
Helsinki Commission, which was a tireless advocate with
officials in the former Soviet Union.
While there are those of us on the commission on differing
sides of the China PNTR issue, I am concerned with the
perception that many of the commission's staff are more skilled
in the areas of business and trade than in the area of human
rights. As the law that created the CECC states, monitoring
China's compliance on respecting human rights is a primary task
of the commission. I believe the commission's efforts would be
enhanced if staff expertise were more balanced, especially to
include more staff who have the passion for promoting human
rights in China. While I know that the commission staff is
composed of competent and skilled professionals, and they are
people of integrity, I have been very disappointed with their
shortcomings in human rights and religious freedom advocacy.
For the reasons outlined above, I believe this report has
some serious gaps in its coverage of human rights in China and
I cannot sign the report.
This commission was created with a mandate to promote human
rights in China. Unfortunately, I do not see this happening.
Human rights organizations have expressed similar concerns to
me and some have even questioned whether the commission should
continue to exist. I have similar questions regarding the
continued viability of the commission.
Lastly, an observation: the fundamental problem in China in
regard to the government's human rights abuses and restriction
on human liberty is not the ``law'' in China, but the
``regime'' in China. The root problem in China is not just a
faulty legal system, but a corrupt, totalitarian, oppressive,
communist ruling regime that consistently violates human rights
and religious freedom of its own citizens--Roman Catholics,
Protestants, Falun Gong practitioners, Muslim Uighurs, Tibetan
Buddhists or almost anyone who strives to worship and live with
liberty.
Additional Views of Representative Sander Levin
The Congressional-Executive Commission on China was created
to play an active role to both engage and pressure China to
create a more open society with greater respect for human
rights, worker rights and rule of law. The importance of this
effort is underlined by the vital strategic role of the United
States and the increasing significance of China. The United
States and China are the largest and third largest economies in
the world, respectively. The relationship between our countries
is of crucial importance and is becoming increasingly more so.
Although China is different from the former Soviet Union,
and specific strategies and techniques will need to vary, the
effective and activist role undertaken by the Helsinki
Commission succeeded in focusing a spotlight on human rights
and rule of law issues. In these ways, the Helsinki Commission
served as an example in the establishment of this high-level
Congressional-Executive Commission and should provide
encouragement for it to meet its necessary and important
challenge. The Commission has the potential to become a new
meeting place for ideas on China and add an important new
dimension to our bilateral relationship.
In its inaugural year, the China Commission has held
several important hearings, a number of staff roundtables and
staff have visited China. The coming year provides the
Commission an opportunity to accelerate, and enhance its
efforts both at the Commissioner and staff levels. In this
regard, the following are activities that would enhance the
Commission's role:
<bullet> Regular visits by Commissioners and staff to
China to meet with key Chinese government and party
officials to engage the Chinese in difficult issues
regarding human rights and rule of law.
<bullet> Prominent participation by Commissioners in
senior level Chinese official visits to the United
States and in developing an on-going relationship with
the Chinese Ambassador to the United States and his
staff.
<bullet> Through its political prisoner project, not
only pursuing the important task of collecting names of
political prisoners but also developing strategies to
seek the release of specific prisoners and addressing
the larger systemic issues that these prisoners
symbolize.
<bullet> Exploring all multilateral avenues to
pressure China on violations of international
standards, such as working through the U.N. Commission
on Human Rights, the International Labor Organization,
as well as reaching out to other countries with ties to
China. Without other countries' support and
concurrence, our efforts to press China to improve its
compliance with international human rights and worker
rights standards will be less effective over the long
term.
<bullet> Continuously throughout the year,
anticipating, responding to and providing analysis of
significant human rights and rule of law events and
developments in China and proposing creative and
constructive policy and legislative responses.
<bullet> Becoming an important forum for its
Congressional Commissioners to air their broad spectrum
of views on China, to forge a bipartisan consensus and
thereby strengthen the Commission.
<bullet> Becoming an important forum for exchange of
views between Congress and the Executive Branch through
its Commissioners from each branch.
<bullet> Focusing concerted attention and analysis on
a few carefully selected broad, crosscutting human
rights and rule of law issues of particular current
relevance in China. In the coming year, such themes
might include workers rights and corporate social
responsibility.
<bullet> Energetically reaching out to the broad
spectrum of constituencies that work on human rights
and rule of law issues in China, such as the NGO
community and providing a forum for exchange of views
and as a key conduit for these groups to work with
Congress and where appropriate, finding means to
support Chinese human rights and workers rights
activists, either directly or through agencies working
on their behalf.
In the coming year, I look forward to working with the
Commissioners and Commission staff to bring to fruition key
activities and to achieve the Commission's potential to play a
vital role in shaping the U.S.-China relationship and improving
human rights, worker rights, and the rule of law in China.
Additional Views of Representative Sherrod Brown
I joined this Commission in May 2002. As a member who stood
in staunch opposition to extending most favored nation
treatment to the People's Republic of China by granting
permanent normal trade relations (PNTR), I harbored my own
misgivings over the Commission's focus. But I was committed,
and remain committed, to helping make trade work between the
U.S. and China.
The Commissioners and staff put forward great effort in
creating this report. It is clear to me that several members
made significant leaps in reaching compromises on various
issues. But even after such endeavors, I must reluctantly
oppose the final draft of the Commission's annual report. I do
not oppose the observations made in this report. In fact, the
signatures on this report represent a sea change among members
of Congress and the Administration in recognizing the state of
affairs in China. In the upcoming years, I am encouraged that
this commission can work together and might develop itself into
a force for change.
My concern with the report, and my reason for not signing,
is that the report does not do enough to promote change. These
recommendations will do little to create tangible changes in
China. To adequately address the concerns of the Chinese
people, the Commission must aggressively push Congress, the
Administration, the Chinese government, and the American
business community.
I commend the Commission for identifying corporate
responsibility as a specific topic to be debated in the
upcoming year, but I regret that the overall report falls short
in recognizing the unmistakable role many American companies
play in China's abuse of human rights. Why should another year
pass before the Commission speaks out on this issue? This
should have been a major topic for this year's agenda and
should not have been omitted from the main body of this work.
As we strive to encourage democracy in developing nations,
something is obviously amiss in our China policy if American
companies simply promote the status quo in China.
During the PNTR debate, as CEOs of multi-national
corporations lobbied to eliminate virtually any standards or
rules governing trade with China, they talked about access to
the 1.2 billion customers in China. What they did not say is
that their real interest is 1.2 billion Chinese workers--
workers whom they pay cents to the dollar in comparison to
American workers.
Many executives claim that increasing trade with China will
force China to improve its human rights record. But history
shows that engagement alone will not necessarily bring
democracy to China. As we engage with developing countries in
trade and investment, democratic countries in the developing
world have been losing ground to more authoritarian countries,
where people enjoy far fewer freedoms and a working environment
often hostile to discussion of labor rights and unions.
In the Post-Cold War decade, the share of developing
country exports to the U.S. for democratic nations fell from
53.4 percent in 1989 to 34.9 percent in 1998, a decrease in
18.5 percentage points.
It goes without saying that western corporations are
interested in investing in countries that have below-poverty
wages, poor environmental standards, no worker benefits, and no
opportunities to bargain collectively. As developing nations
make progress toward democracy, as they increase worker rights
and create regulations to protect the environment, the American
business community too often plays a counter-productive role of
punishing these countries by transferring their trade and
investment elsewhere in search of more accommodating regimes
that may ignore environmental degradation, inadequate health
care, limits on human rights, widespread poverty, or worse.
The People's Republic of China ignores the United Nations
High Commission for Human Rights. They ignore the U.S.
Commission on International Religious Freedom and the State
Department's country reports. They ignore the agreements of the
International Labor Organization. By only discussing these
issues, our inaction would only encourage China's less than
desirable behavior.
This Commission should be making recommendations to
American companies, such as advocating for worker empowerment
and the right to assemble and bargain collectively. We should
address the complicated issue of sub-contracting, where
American companies can take advantage of oppressive working
conditions without being held directly responsible. We should
recommend that the US government encourage companies to adopt
and follow a progressive code of conduct. The Secretary of
Commerce, OPIC, and the Export Import Bank should be directed
to give preference to companies that have a strong code of
conduct and prove they have been following it in their business
practices.
We must also keep in mind that most reforms in Chinese law
are meant to maintain stability in the country. They are not a
result of philosophical changes in the government's agenda. To
fully understand China's disdain for rules that impinge on
their authority, simply look at the promises China has not kept
as a new member of the World Trade Organization.
Recently the United States, Japan, the EU, Australia,
Taiwan, and Canada have confronted the Chinese at the WTO,
demanding adequate responses to inquiries over market access
and tariff-rate quota commitments in areas such as cars,
fertilizers, machinery, newsprint, photographic material and
beer. Instead, Chinese officials have brushed off these demands
and characterized other WTO members as ``troublemakers.''
This Commission needs to become an agent for change,
similar to the Helsinki Commission and the role it played with
the Soviet Union. We should encourage all American companies to
apply to their operations in China the ideals our nation
embraces. As we move forward, the Commission should measure any
changes in China on an on-going basis and hold the People's
Republic of China accountable for the promises it has made to
the United States, the international community, and most
importantly, its own citizens.
7. Appendix
Appendix 1.--Website Summary
The Congressional-Executive Commission on China is
committed to promoting the development of human rights and the
rule of law in China. A crucial part of that task is providing
information about these issues to the public in the United
States, China, and around the world. To that end, the
Commission maintains a website (www.cecc.gov) with
comprehensive information about the Commission and its
activities. This website is a useful resource, allowing a wide
range of people to access information easily and to increase
their understanding of issues related to human rights and the
rule of law in China. The information on the website currently
includes:
<bullet> The 2002 Annual Report issued by the
Commission;
<bullet> The Executive Summary of the 2002 Annual
Report in
Chinese;
<bullet> Prepared testimony and complete transcripts
from the
Commission's hearings;
<bullet> Prepared testimony and complete transcripts
from the
Commission's staff-led roundtables;
<bullet> The Commission's upcoming activities;
<bullet> Background information on the Commission's
members
and staff; and
<bullet> Links related to the U.S. government, the
Chinese govern
ment, U.S.-China organizations, human rights,
religion,
labor, news media, Tibet, Uighurs, and the rule of
law.
The database of rule of law and human rights programs of
national governments, NGOs, and multilateral organizations in
China will soon be available on the website. This database will
be continuously updated as the Commission receives new
information. Suggestions for corrections or additions are
welcome, and should be emailed to Samantha Palans at:
samantha.palans@mail.house.gov.
In the future, the website also will permit users to
request information from the prisoner database and registry.
Appendix 2.--Commission Activities in 2002
Hearings
February 7 Human Rights in the Context of the Rule of Law
William Alford, Harvard
Law School
James V. Feinerman,
Georgetown University
Law Center
Mike Jendrzejczyk,
Human Rights Watch
Xiao Qiang, Human
Rights In China
April 11 Taming the Dragon: Can Legal Reform Foster
Respect for Human Rights in
China?
John Kamm, The Dui Hua
Foundation
Jonathan Hecht, Yale
Law School
T. Kumar, Amnesty
International
Michael Posner, Lawyers
Committee For Human
Rights
June 6 WTO: Will China Keep Its Promises? Can It?
Susan S. Westin,
General Accounting
Office
Christian Murck,
American Chamber of
Commerce in China
Donald C. Clarke,
University of
Washington, Seattle
Grant D. Aldonas, Under
Secretary of Commerce
for International Trade
Jeffrey L. Fiedler,
Food and Allied Service
Trades Department, AFL-
CIO
Jon M. Huntsman, Deputy
U.S. Trade
Representative
Roundtables
March 4 Open Forum on Human Rights and the Rule of Law
Wenzhuo Hou, Harvard
Law School
Ignatius Y. Ding,
Silicon Valley for
Democracy in China
G. Eugene Martin,
Foreign Affairs
Consultant
Raj Purohit, Lawyers
Committee For Human
Rights
Erping Zhang, Falun
Gong International
Committee for Human
Rights
March 18 Labor Rights in China
Bama Athreya,
International Labor
Rights Fund
Mark Hankin, American
Center for
International Labor
Solidarity, AFL-CIO
Tony Freeman,
International Labor
Office
March 25 Religious Freedom
Paul Marshall, Center
For Religious Freedom,
Freedom House
Thomas E. Quigley, U.S.
Conference of Catholic
Bishops
Joseph Kung, Cardinal
Kung Foundation
David Aikman, Foreign
Affairs Consultant
April 15 Wired China: Whose Hand is on the Switch?
Kathryn Hauser,
Technology Industry
Council
Sharon K. Hom, Human
Rights in China
Edward Kaufman,
Broadcasting Board of
Governors
James C. Mulvenon, RAND
Center for Asia-Pacific
Policy
May 24 Promoting Rule of Law in China
Nancy Yuan, Asia
Foundation
Robert Reinstein,
Temple University
School of Law
Robert Kapp, U.S.-China
Business Council
William Sullivan,
Syracuse University
June 10 Ethnic Minorities in China: Tibetans and Uighurs
Bhuchung Tsering,
International Campaign
for Tibet
Elliot Sperling,
Indiana University
Arthur Holcombe, Tibet
Poverty Alleviation
Fund
Justin Rudelson,
University of Maryland
Dolkun Kamberi, Radio
Free Asia
June 24 Restrictions on Media Freedom in China
James Mann, Center for
Strategic and
International Studies
Kavita Menon, Committee
to Protect Journalists
He Qinglian, Princeton
University
July 8 Village Elections
Liu Yawei, Carter
Center
Anne Thurston, School
of Advanced
International Studies,
The Johns Hopkins
University
Elizabeth Dugan,
International
Republican Institute
July 26 China's Criminal Justice System
Jerome A. Cohen, New
York University School
of Law
Murray Scot Tanner,
Western Michigan
University
Veron Mei-Ying Hung,
Carnegie Endowment for
International Peace
Jonathan Hecht, Yale
Law School
August 5 Open Forum on Human Rights and the Rule of Law
Christine Shea, Amnesty
International
Shiyu Zhou, University
of Pennsylvania
Enhebatu Togochog,
Southern Mongolian
Human Rights
Information Center
Sokrat Saydahmat,
Uyghur American
Association
Derek Wong, University
of Pennsylvania
Kathy Polias, Uyghur
Human Rights Coalition
September 9 HIV/AIDS in China: Can Disaster Be Averted?
Bates Gill, Center for
Strategic and
International Studies
Don des Jarlais, Beth
Israel Medical Center
Joan Kaufman, Harvard
Law School
September 23 Women's Rights: China's New Population and
Family Planning Law
Edwin A. Winckler,
Columbia University
Stirling Scruggs,
United Nations
Population Fund
Bonnie Glick, Member,
2002 U.S. Assessment
Team to China
Susan Greenhalgh,
University of
California, Irvine
John Aird, Bureau of
the Census, Retired
Other
February 13 Chairman Max Baucus and Co-Chairman Doug
Bereuter write a letter to
President Bush urging human
rights dialogue with Beijing.
March 13 The Commission's 18 Congressional members send
a letter to President Bush
urging United States support
for a China resolution at the
United Nations Human Rights
Commission (UNHRC) meeting in
Geneva.
April 11 Co-Chairman Doug Bereuter delivers a speech to
the Washington International
Trade Association.
May 6-18 Staff Director Ira Wolf, Senior Advisor Steve
Mar-
shall, and Specialist on Ethnic
Minorities Anne Tsai visit
Beijing, Chengdu, Lhasa, and
Urumqi.
July 2 Commissioners' staffers meet with Han Dongfang,
Editor of the China Labour
Bulletin
Appendix 3.--China's International Human Rights Commitments
FOUNDATIONAL UNITED NATIONS INSTRUMENTS RELATED TO HUMAN RIGHTS
<bullet> United Nations Charter
<bullet> Universal Declaration of Human Rights
CORE UNITED NATIONS INSTRUMENTS RELATED TO HUMAN RIGHTS SIGNED, RATIFIED
OR ACCEDED TO BY CHINA
------------------------------------------------------------------------
Convention or Protocol Ratification Status Reservations
------------------------------------------------------------------------
International Covenant Ratified March 27, The application of
on Economic, Social and 2001 Article 8.1 (a) of the
Cultural Rights Covenant to the
People's Republic of
China shall be
consistent with the
relevant provisions of
the Constitution of
the People's Republic
of China, Trade Union
Law of the People's
Republic of China and
Labor Law of the
People's Republic of
China.
------------------------------------------------------------------------
International Covenant Signed October 5,
on Civil and Political 1998
Rights Not yet ratified
------------------------------------------------------------------------
International Convention Acceded to December The People's Republic
on the Elimination of 29, 1981 of China has
All Forms of Racial reservations on the
Discrimination provisions of article
22 of the Convention
and will not be bound
by it.
------------------------------------------------------------------------
International Convention Acceded to April 18,
on the Suppression and 1983
Punishment of the Crime
of Apartheid
------------------------------------------------------------------------
International Convention Signed October 21,
Against Apartheid in 1987
Sports Not yet ratified
------------------------------------------------------------------------
Convention on the Ratified November 18, The People's Republic
Elimination of All 1980 of China does not
Forms of Discrimination consider itself bound
Against Women by paragraph 1 of
article 29 of the
Convention.
------------------------------------------------------------------------
Convention on the Rights Ratified March 3, The People's Republic
of the Child 1992 of China shall fulfill
its obligations
provided by article 6
of the Convention
under the prerequisite
that the Convention
accords with the
provisions of article
25 concerning family
planning of the
Constitution of the
People's Republic of
China and in
conformity with the
provisions of article
2 of the Law of Minor
Children of the
People's Republic of
China.
------------------------------------------------------------------------
Optional Protocol to the Signed March 15, 2001
Convention on the Not yet ratified
Rights of the Child on
the Involvement of
Children in Armed
Conflict
------------------------------------------------------------------------
Optional Protocol to the Signed September 6,
Convention on the 2000
Rights of the Child on
the Sale of Children,
Child Prostitution and
Child Pornography
------------------------------------------------------------------------
Convention Against Ratified October 4, 1. The Chinese
Torture and Other 1988 Government does not
Cruel, Inhuman or recognize the
Degrading Treatment or competence of the
Punishment Committee against
Torture as provided
for in article 20 of
the Convention.
2. The Chinese
Government does not
consider itself bound
by paragraph 1 of
article 30 of the
Convention.
------------------------------------------------------------------------
Convention relating to Acceded to September [Subject to]
the Status of Refugees 24, 1982 reservations on the
following articles:
1. The latter half of
article 14, which
reads
``In the territory of
any other Contracting
State, he shall be
accorded the same
protection as is
accorded in that
territory to nationals
of the country in
which he has his
habitual residence.''
2. Article 16 (3).
------------------------------------------------------------------------
Protocol Relating to the Acceded to September
Status of Refugees 24, 1982
------------------------------------------------------------------------
Convention on the Ratified April 18,
Prevention and 1983
Punishment of the Crime
of Genocide
------------------------------------------------------------------------
SELECTED INTERNATIONAL LABOR ORGANIZATION CONVENTIONS RATIFIED BY OR
ACCEDED TO BY CHINA
------------------------------------------------------------------------
No. Convention Date of Ratification
------------------------------------------------------------------------
C.11 Right of Association (Agriculture) 1984*
Convention, 1921
------------------------------------------------------------------------
C.14 Weekly Rest (Industry) Convention, 1984*
1921
------------------------------------------------------------------------
C.19 Equality of Treatment (Accident 1984*
Compensation) Convention, 1925
------------------------------------------------------------------------
C.26 Minimum Wage-Fixing Machinery 1984*
Convention
------------------------------------------------------------------------
C.45 Underground Work Women Convention, 1984*
1935
------------------------------------------------------------------------
C.80 Final Articles Revision Convention, 1984*
1946
------------------------------------------------------------------------
C.100 Equal Remuneration Convention, 1951 Ratified November 11,
1990
------------------------------------------------------------------------
C.122 Employment Policy Convention, 1964 Ratified December 17,
1997
------------------------------------------------------------------------
C.138 Minimum Age Convention, 1973 Ratified April 4, 1999
------------------------------------------------------------------------
C.144 Tripartite Consultation Ratified November 2,
International Labor Standards 1990
Convention, 1976
------------------------------------------------------------------------
C.150 Labor Administration Convention, Ratified March 7, 2002
1978
------------------------------------------------------------------------
C.159 Vocational Rehabilitation and Ratified February 2,
Employment (Disabled Persons) 1988
Convention, 1983
------------------------------------------------------------------------
C.167 Safe and Health in Construction Ratified March 7, 2002
Convention, 1978
------------------------------------------------------------------------
C.170 Chemical Convention, 1990 Ratified January 11,
1995
------------------------------------------------------------------------
C.182 Worst Forms of Child Labour Ratified June 29, 2002
Convention, 1999
------------------------------------------------------------------------
* In a letter dated July 11, 1984, the Minister of Foreign Affairs of
the People's Republic of China informed the ILO that China agreed to
recognize this convention, which was ratified before October 1, 1949
by the then Chinese government.
Endnotes
\1\ This report was approved by a vote of 18 to 5.
Voted to approve: Senators Baucus, Levin, Feinstein, Dorgan, Bayh,
Hagel, and Hutchinson, Representatives Bereuter, Leach, Dreier, Pitts,
Levin, and Davis, Undersecretaries Dobriansky and Aldonas, Deputy
Secretary Findlay, Assistant Secretaries Craner and Kelly.
Voted not to approve: Senators Smith and Brownback, Representatives
Wolf, Kaptur, and Brown.
\2\ United States-China Relations Act, Public Law No. 106-286, div.
B, title III, sec. 301, 114 Stat. 895 (2000) [hereinafter ``2000 China
Relations Act''].
\3\ Constitution of the People's Republic of China, ch. II
[hereinafter ``Chinese Constitution''].
\4\ Chinese Constitution, arts. 36, 51-54.
\5\ See, e.g., ibid., art. 4.
\6\ Chinese Constitution, ch. II.
\7\ Albert Hung-yee Chen, An Introduction to the Legal System of
the People's Republic of China (Hong Kong: Butterworths, 1992), 32.
\8\ Deng Xiaoping, Selected Works of Deng Xiaoping (1975-1982)
(Beijing: Foreign Languages Press, 1984), 282.
\9\ See, e.g., Communique of the Third Plenary Session of the
Eleventh Central Committee of the Communist Party of China (Hong Kong:
Joint Publishing Co., 1978).
\10\ Wei Jingsheng, The Courage to Stand Alone: Letters from Prison
and Other Writings (New York: Viking, 1997).
\11\ Human Rights in the Context of the Rule of Law: Hearing Before
the Congressional-Executive Commission on China, 7 February 2002
[hereinafter ``Human Rights in the Context of the Rule of Law:
Commission Hearing''], Written Statement Submitted by William Alford,
Henry L. Stimson Professor of Law and Director of East Asian Legal
Studies Program, Harvard Law School.
\12\ Organic Law of the People's Courts of the People's Republic of
China [Zhonghua renmin gongheguo renmin fayuan zuzhifa], adopted 1 July
1979; Organic Law of the People's Procuratorates of the People's
Republic of China [Zhonghua renmin jianchayuan zuzhifa], adopted 5 July
1979; Organic Law of Local People's Congresses and Local People's
Governments of the People's Republic of China [Zhonghua renmin
gongheguo difang geji renmin daibiao dahui he difang geji renmin
zhengfu zuzhifa], adopted 4 July 1979.
\13\ Chinese-Foreign Equity Joint Ventures Law of the People's
Republic of China [Zhonghua renmin gongheguo zhongwai hezi jingying
qiyefa], adopted 1 July 1979; Economic Contract Law of the People's
Republic of China [Zhonghua renmin gongheguo jingji hetongfa], adopted
13 December 1981.
\14\ As is noted below in the section on criminal justice, the 1997
revisions to the Criminal Law eliminated the category of counter-
revolutionary crimes. However, many of the political acts once
prosecuted as ``counter-revolutionary'' are now handled under the
provisions on endangering state security or disrupting public order.
Criminal Law of the People's Republic of China [Zhonghua renmin
gongheguo xingfa], adopted 1 July 1979, amended 14 March 1997, part II,
chs. I, II, and VI).
\15\ See Mao Zedong's 1957 speech ``On the Correct Handling of
Contradictions Among the People,'' in Selected Works of Mao Tse-tung,
Vol. 5 (Beijing: Foreign Languages Press, 1977), 384-421.
\16\ Law of the People's Republic of China on Protecting State
Secrets [Zhonghua renmin gongheguo baoshou guojia mimifa], adopted 5
September 1988.
\17\ State Security Law of the People's Republic of China [Zhonghua
renmin gongheguo guojia anquan fa], adopted 22 February 1993.
\18\ Administrative Litigation Law of the People's Republic of
China [Zhonghua renmin gongheguo xingzheng susongfa], adopted 4 April
1989 [hereinafter ``Administrative Litigation Law'']; State
Compensation Law of the People's Republic of China [Zhonghua renmin
gongheguo guojia peichangfa], adopted 12 May 1994.
\19\ Consumer Rights Protection Law of the People's Republic of
China [Zhonghua renmin gongheguo xiaofeizhe quanyi baohufa], adopted 31
October 1993.
\20\ 2001 Law Yearbook of China [2001 Zhongguo falu nianjian]
(Beijing: Law Yearbook of China Press, 2001), 864; 1987 Law Yearbook of
China [Zhongguo falu nianjian] (Beijing: Law Yearbook of China Press,
1987), 883.
\21\ Lawyers Law of the People's Republic of China [Zhonghua renmin
gongheguo lushifa], adopted 15 May 1996.
\22\ President Bush at Tsinghua (Qinghua) University, White House
News Release, 22 February 2002, <http://www.whitehouse.gov/news/
releases/2002/02/20020222.html> (12 September 2002).
\23\ Chinese Constitution, art. 36.
\24\ Religious Freedom in China: Staff Roundtable of the
Congressional-Executive Commission on China [hereinafter ``Religious
Freedom in China: Commission Roundtable''], 25 March 2002, Testimony of
Paul Marshall, Senior Fellow, Center for Religious Freedom, Freedom
House.
\25\ Regulations on Managing Places for Religious Activities
[Zongjiao huodong changsuo guanli tiaoli], issued 31 January 1994.
\26\ Chinese Constitution, art. 36.
\27\ Religious Freedom in China: Commission Roundtable, Marshall
Testimony.
\28\ Religious Freedom in China: Commission Roundtable, Testimony
of Thomas E. Quigley, U.S. Conference of Catholic Bishops.
\29\ Decision of the Standing Committee of the National People's
Congress on Banning Heretical Cult Organizations, Preventing and
Punishing Cult Organizations [Guanyu chudi xiejiao zuzhi, fangfan he
chengzhi xiejiao huodong de jueding], issued 30 October 1999.
\30\ Religious Freedom in China: Commission Roundtable, Testimony
of David Aikman, Foreign Affairs Consultant.
\31\ Center For Religious Freedom, ``Freedom House Calls On
President Bush To Protest China's Plan To Execute Christian Leader,'' 3
January 2002, <http://www.freedomhouse.org/religion/news/bn2002/bn-
2002-01-03.htm> (20 August 2002).
\32\ Embassy of the People's Republic of China in the United
States, ``Chinese Embassy Spokesman: Gong Shengliang is Guilty of
Establishing Cult Organization and Raping Women,'' 9 January 2002,
<http://www.china-embassy.org/eng/23472.html> (2 August 2002).
\33\ Ibid.
\34\ Religious Freedom in China: Commission Roundtable, Marshall
Testimony.
\35\ Embassy of the People's Republic of China in the United
States, ``Gong Shengliang is Guilty of Establishing Cult Organization
and Raping Women.''
\36\ Religious Freedom in China: Commission Roundtable, Marshall
Testimony.
\37\ The Committee for Investigation on Persecution of Religion in
China, ``Religion and National Security in China: Secret Documents from
China's Security Sector,'' 11 February 2002, <http://
religiousfreedomforchina.org/English/docs/Final%20Report.htm> (31 July
2002).
\38\ Ibid.
\39\ Message of Pope John Paul II to China, 24 October 2001,
<http://www.hsstudyc.org.hk/tripod-4.htm> (3 September 2002).
\40\ Religious Freedom in China: Commission Roundtable, Quigley
Testimony.
\41\ Ibid.
\42\ Center for Religious Freedom, ``List of 33 Bishops and Priests
Arrested or Restricted in China,'' 21 February 2002, <http://
freedomhouse.org/religion/country/china/
china__2002__list__of__33__detained__priests.htm> (31 July 2002).
\43\ See, e.g., Bureau of Democracy, Human Rights, and Labor, U.S.
Department of State, ``Country Report on Human Rights Practices--2001,
China, including Hong Kong and Macau,'' 4 March 2002, 7, <http://
www.state.gov/g/drl/rls/hrrpt/2001/eap/8289.htm> (20 March 2002)
[hereinafter ``State Department Human Rights Report, China'']; Human
Rights Watch, Human Rights Concerns in Xinjiang, October 2001; Amnesty
International, ``China's Anti-Terrorism Legislation and Repression in
the Xinjiang Uighur Autonomous Region,'' March 2002, 10-12, <http://
web.amnesty.org/aidoc/aidoc__pdf.nsf/index/ASA170102002ENGLISH/$File/
ASA1701002.pdf> (1 April 2002).
\44\ Commission Staff Meeting with senior officials of the Legal
System Committee of the People's Congress of Xinjiang Uighur Autonomous
Region, and the Xinjiang Uighur Autonomous Region Justice Department,
16 May 2002 [hereinafter ``Staff Meeting with Xinjiang People's
Congress and Justice Department''].
\45\ See, e.g., Vivien Pik-Kwan Chan, ``Mosque Leaders' Re-
education Campaign Stepped Up,'' South China Morning Post, 14 November
2001, <http://www.uygur.org/wunn21/2001__11__14.htm> (1 August 2002);
Human Rights Watch, China Human Rights Update, February 2002, 11.
\46\ BBC, ``Islam in China,'' <http://www.bbc.co.uk/religion/
religions/islam/history/china/china4.shtml> (23 September 2002).
\47\ Human Rights Watch, Dangerous Meditations: China's Campaign
Against Falungong, January 2002, 4.
\48\ The discussion of each issue in Section 4 of the report is
followed by a list of key national laws, regulations, and decisions
related to that issue area. The lists are not exhaustive, but rather
illustrative, and are intended to provide the reader with a starting
point for understanding relevant law. For example, local laws and
regulations, which often are more detailed and more restrictive than
their national-level counterparts, are not included.
\49\ International Labour Organization Declaration on Fundamental
Principles and Rights at Work, adopted 19 June 1998 [hereinafter ``ILO
Declaration''], art. 2; International Covenant on Civil and Political
Rights, entered into force 23 March 1976 [hereinafter ``ICCPR''];
International Covenant on Economic, Social and Cultural Rights, entered
into force 3 January 1976 [hereinafter ``ICESCR'']. China ratified the
ICESCR on March 27, 2001 with reservations (see Appendix 2).
\50\ See, e.g., Human Rights Watch Report, Paying the Price: Worker
Unrest in Northeast China, p. 2.
\51\ ILO Declaration on Fundamental Principles and Rights at Work,
adopted 19 June 1998, art. 2; Universal Declaration of Human Rights,
adopted 10 December 1948, art. 20 [hereinafter Universal Declaration];
ICESCR, arts. 21, 49.
\52\ Chinese Constitution, art. 35.
\53\ Trade Union Law of the People's Republic of China [Zhonghua
renmin gongheguo gonghuifa], adopted 3 April 1992, amended 27 October
2001, arts. 4, 9, 11.
\54\ Constitution of the All China Federation of Trade Unions
[Zhonghua quanguo zong gonghui zhangcheng], General Principles, para.
4.
\55\ Human Rights in the Context of Rule of Law: Commission
Hearing, Written Statement Submitted by Mike Jendrzejczyk, Washington
Director, Human Rights Watch Asia.
\56\ Jiang Xueqin, ``Fighting to Organize,'' Far Eastern Economic
Review, 6 September 2001, 72.
\57\ People's Daily, ``Wei Jianxing,'' 24 September 2002 <http://
english.peopledaily.com.cn/data/people/weijianxing.shtml> (20 August
2002).
\58\ Anita Chan, ``China and the International Labour Movement,''
China Review (Summer 2001); Commission Staff Meeting with John
Chamberlin, First Secretary, Labor Affairs, Economic Section, Embassy
of the United States in Beijing, 23 July 2002.
\59\ Constitution of the All China Federation of Trade Unions,
General Principles, para. 6.
\60\ Chinese Constitution, art. 35; ICCPR, arts. 19, 21; ICESCR,
art. 8(d).
\61\ ``Deprived Groups May Be the Greatest Threat to Society,''
South China Morning Post, 6 February 2002.
\62\ ``Labour Unrest Spreads to 16 Provinces and Municipalities,''
Hong Kong Cheng Min, 1 April 2002, translated in FBIS, Doc ID
CPP20020404000066.
\63\ Human Rights Watch, Paying the Price: Worker Unrest in
Northeast China, August 2002, 15-38.
\64\ Thomas Lum, Congressional Research Service, China: Labor
Conditions and Unrest, Report for Congress, 15 October 2001, 13.
\65\ PRC Ministry of Labor and Social Security, ``2001 Annual
Statistical Report on the Development of Labor and Social Security
Work,'' 3, <http://www.molss.gov.cn/tongji/gb/GB2001.htm> (20 August
2002).
\66\ Guangdong Province Labor and Social Security Office, Guangdong
Province Workers' Labor Contract (Non-Local Personnel: Temporary
Employment) (on file with the Commission).
\67\ Labor Law of the People's Republic of China [Zhonghua renmin
gongheguo laodongfa], adopted 5 July 1994 [hereinafter ``PRC Labor
Law''], arts. 52, 53-55, 56; Law of the People's Republic of China on
the Prevention and Cure of Occupational Diseases, adopted 27 October
2001; PRC Regulations on Labor Protection in Workplaces where Toxic
Products Are Used, issued 12 May 2002; and the Work Safety Law of the
People's Republic of China, adopted 29 June 2002. China has also
promulgated regulations on administrative penalties for violations of
the Labor Law and ascertaining responsibility for serious industrial
accidents. See Administrative Penalty Measures for Violating the Labor
Law [Weifan zhonghua renmin gongheguo laodongfa xingzheng chufa banfa],
adopted 26 December 1994; Regulations on Ascertaining Administrative
Responsibility for Extremely Serious Accidents Due to Negligence of
Production Safety [Guowuyuan guanyu teda anquan shigu xingzheng zeren
zhuiqiu de guiding], issued 21 April 2001.
\68\ ``Workplace Safety Poses Major National Challenge,'' China
Daily, 8 August 2002.
\69\ State Department Human Rights Report, China, 37.
\70\ See, e.g., Philip Pan, ``Worked Till They Drop Few Protections
for China's New Laborers'' The Washington Post, 13 May 2002, Section
A1.
\71\ PRC Labor Law, art. 39.
\72\ PRC Labor Law, arts. 77-83; PRC Regulations on Settlement of
Labor Disputes [Zhonghua renmin gongheguo qiye laodong zhengyi chuli
tiaoli], issued 11 June 1993.
\73\ PRC Ministry of Labor and Social Security, ``2001 Annual
Statistical Report on the Development of Labor and Social Security
Work,'' 3.
\74\ Gerard Greenfield and Tim Pringle, ``The Challenge of Wage
Arrears in China,'' ILO Labor Education (2002).
\75\ Hong Kong Christian Industrial Committee, Report on the Labor
Rights and Occupational Safety and Health Conditions of Toy Workers in
Foreign Investment Enterprises in Southern Mainland China, 67.
\76\ Verite, Country Labor and ILO Compliance Assessment Series:
People's Republic of China, draft report to be published in October
2002, 13 (on file with the Commission) [hereinafter Verite, Country
Labor and ILO Compliance Assessment Series].
\77\ China Labor Bulletin, ``Release Xu Jian--Background
Information and Addresses,'' <http://iso.china-labour.org.hk/iso/
article.adp?article__id=42> (20 September 2002).
\78\ See, e.g., Craig S. Smith, ``China Tells Lawyer Who Aids
Injured Workers to Close His Office,'' The New York Times, 3 January
2002.
\79\ Philip P. Pan, ``Chinese Workers' Rights Stop at Courtroom
Door,'' Washington Post, 28 June 2002, A1.
\80\ International Labor Organization, ``Ratification Map of
Convention No. 182,'' <http://www.ilo.org/public/english/standards/
ipec/ratification/map/asiai.htm> (20 August 2002).
\81\ Verite, Country Labor and ILO Compliance Assessment Series, 7.
\82\ ABC News, ``A Classroom Into a Grave,'' 8 March 2001, <http://
abcnews.go.com/sections/world/DailyNews/china010308__explosion.html>
(15 September 2002).
\83\ Calum and Lijia MacLeod, ``Never Seen, Never Heard,'' South
China Morning Post, 12 July 2000, 2, 3.
\84\ Task Force on the Prohibition of Importation of Products of
Forced or Prison Labor from the People's Republic of China, 2002 Annual
Report, August 2002 [hereinafter, ``Prison Labor Task Force, Annual
Report''].
\85\ See 1992 Memorandum of Understanding on Prohibiting Trade in
Prison Labor Products with China dated 7 August 1992; the Statement of
Cooperation on the Memorandum of Understanding on Prohibiting Trade in
Prison Labor Products with China, dated 14 March 1994.
\86\ Ibid.
\87\ 2000 China Relations Act, sec. 501 et seq.
\88\ Prison Labor Task Force, Annual Report.
\89\ Criminal Procedure Law of the People's Republic of China
[Zhonghua renmin gongheguo xingshi susongfa], adopted 1 July 1979,
amended 17 March 1996 [hereinafter ``Criminal Procedure Law''];
Criminal Law of the People's Republic of China [Zhonghua renmin
gongheguo xingfa], adopted 1 July 1979, amended 14 March 1997
[hereinafter ``Criminal Law''].
\90\ See generally Lawyers Committee for Human Rights, Opening to
Reform? An Analysis of China's Revised Criminal Procedure Law, October
1996 [hereinafter, ``LCHR, Opening to Reform?'']; Lawyers Committee for
Human Rights, Wrongs and Rights: A Human Rights Analysis of China's
Revised Criminal Law, December 1998 [hereinafter ``LCHR, Wrongs and
Rights''].
\91\ See LCHR, Opening to Reform?, 53-60.
\92\ See LCHR, Wrongs and Rights, 1, 33-41. In theory, the
abolition of analogy brings the Criminal Law into conformance with the
principle of nullum crimen sine lege (no crime without law making it
so), which is expressed in Article 11 of the Universal Declaration of
Human Rights: ``No one shall be held guilty of any penal offence on
account of any act or omission which did not constitute a penal
offence, under national or international law, at the time when it was
committed.''
\93\ See LCHR, Wrongs and Rights.
\94\ Universal Declaration, art. 10; ICCPR, art. 14.
\95\ Lawyers Committee for Human Rights, Lawyers in China:
Obstacles to Independence and the Defense of Rights, March 1998, 2
[hereinafter ``LCHR, Lawyers in China''].
\96\ Ibid., 2-3.
\97\ Ibid.
\98\ For a discussion of the Party's influence on the courts, see
generally Stanley Lubman, ``Bird in a Cage: Chinese Law Reform After
Twenty Years,'' Northwest Journal of International Law and Business 20
(2000): 395-398; LCHR, Lawyers in China, 1-10.
\99\ Criminal Procedure Law, art. 96; LCHR, Opening to Reform?, 39.
\100\ See LCHR, Opening to Reform?, 42; Criminal Procedure Law,
art. 93.
\101\ Human Rights in China, Empty Promises: Human Rights
Protections and China's Criminal Procedure Law in Practice, March 2001,
25-26 [hereinafter ``HRIC, Empty Promises'']; Challenges for Criminal
Justice in China: Staff Roundtable of the Congressional-Executive
Commission on China, 26 July 2002 [hereinafter ``Challenges for
Criminal Justice in China: Commission Roundtable''], Written Statement
Submitted by Jerome A. Cohen, Professor, New York University School of
Law.
\102\ Criminal Procedure Law, art. 96.
\103\ LCHR, Opening to Reform?, 41. In cases involving ``state
secrets,'' a suspect must first obtain approval from authorities before
he or she may even retain counsel. Criminal Procedure Law, art. 96.
\104\ Challenges for Criminal Justice in China: Commission
Roundtable, Cohen Written Statement.
\105\ HRIC, Empty Promises, 31-34. The people's procuratorates are
the legal supervisory organs of the state. Chinese Constitution, art.
129. The functions of the people's procuratorates include approving
arrests made by public security authorities and supervising their
investigatory activities, as well as prosecuting cases. See Margaret Y.
K. Woo, ``Law and Discretion in the Contemporary Chinese Courts,''
Pacific Rim Law and Policy Journal 8 (1999): 606-07.
\106\ See HRIC, Empty Promises, 30-34.
\107\ Challenges for Criminal Justice in China: Commission
Roundtable, Cohen Written Statement.
\108\ Criminal Procedure Law, art. 47; Challenges for Criminal
Justice in China: Commission Roundtable, Cohen Written Statement.
\109\ Ibid.
\110\ Ibid. Mary Robinson, the United Nations High Commissioner for
Human Rights, raised Zhang Jianzhong's case with the Ministry of
Justice, noting that he has not been accorded many of the legal
protections required by the Criminal Procedure Law. Elisabeth
Rosenthal, ``U.N. Official, in Beijing, Tells of Worry Over Rights,''
New York Times, 21 August 2002, <http://www.nytimes.com/2002/08/21/
international/asia/21RIGH.html> (28 August 2002).
\111\ HRIC, Empty Promises, 36-39. Chinese criminal defense lawyers
and observers believe that Article 306 may also possibly be implicated
in Zhang Jianzhong's case, but the facts of his case remain unclear.
See Challenges for Criminal Justice in China: Commission Roundtable,
Cohen Written Statement.
\112\ Article 15 of the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, which entered into force
on June 26, 1987, provides that ``any statement which is established to
have been made as a result of torture shall not be invoked as evidence
in any proceeding.'' LCHR, Opening to Reform?, 68-69.
\113\ Challenges for Criminal Justice in China: Commission, Written
Statement Submitted by Murray Scot Tanner, Professor of Chinese and
East Asian Politics, Western Michigan University.
\114\ Ibid.
\115\ HRIC, Empty Promises, 41-42.
\116\ Human Rights in China, Reeducation Through Labor (RTL): A
Summary of Regulatory Issues and Concerns, February 2001, 1
[hereinafter ``HRIC, Reeducation Through Labor (RTL)''].
\117\ ``Re-education through labor'' (laojiao) should be
distinguished from ``reform through labor'' (laogai). Whereas re-
education through labor is an administrative (`` non-criminal'')
sanction, reform through labor is a form of criminal punishment given
after a defendant is found guilty after a trial.
\118\ HRIC, Reeducation Through Labor (RTL), 8; Challenges for
Criminal Justice in China: Commission Roundtable, Written Statement
Submitted by Dr. Veron Mei-ying Hung, Associate, Carnegie Endowment for
International Peace.
\119\ Lawyers Committee for Human Rights, Criminal Justice with
Chinese Characteristics: China's Criminal Process and Violations of
Human Rights, May 1993, 73-74; Hungdah Chiu, ``China's Criminal Justice
System and the Trial of Pro-Democracy Dissidents,'' New York University
Journal of International Law and Politics 24 (1992): 1200.
\120\ HRIC, Empty Promises, 51-52.
\121\ Challenges for Criminal Justice in China: Commission
Roundtable, Hung Written Statement.
\122\ Ibid.
\123\ See Human Rights in China, Not Welcome at the Party: Behind
the ``Clean-Up'' of China's Cities--A Report on Administrative
Detention Under ``Custody and Repatriation,'' September 1999.
\124\ Ibid., 1.
\125\ Ibid., 17-18.
\126\ LCHR, Opening to Reform?, 5.
\127\ ``Human Rights Watch World Report 2002: Asia: China and
Tibet,'' 7, <http://www.hrw.org/wr2k2/asia4.html> (22 July 2002).
\128\ Amnesty International Press Release, ``China: `Strike Hard'
Anti-crime Campaign Intensifies,'' 23 July 2002.
\129\ HRIC, Reeducation Through Labor (RTL), 1; Human Rights in
China, Impunity for Torturers Continues Despite Changes in the Law:
Report on Implementation of The Convention Against Torture in the
People's Republic of China, April 2000, 6.
\130\ See International Covenant on Civil and Political Rights,
art. 9(4) (``Anyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings before a court, in
order that that court may decide without delay on the lawfulness of his
detention and order his release if the detention is not lawful.'');
LCHR, Opening to Reform?, 33; Challenges for Criminal Justice in China:
Commission Roundtable, Cohen Written Statement.
\131\ LCHR, Opening to Reform?, 60, 63.
\132\ Chiu, ``China's Criminal Justice System and the Trial of Pro-
Democracy Dissidents,'' 1197.
\133\ Chinese Constitution, art. 35.
\134\ Restrictions on Media Freedom in China, Staff Roundtable of
the Congressional-Executive Commission on China, 24 June 2002
[hereinafter ``Restrictions on Media Freedom in China: Commission
Roundtable''], Testimony of James Mann, Senior Writer in Residence,
Center for Strategic and International Studies.
\135\ Statement by Chinese President Jiang Zemin, 11 January 2001,
quoted in a written statement by Reporters Sans Frontieres
International, submitted to the United Nations Economic and Social
Council, 18 January 2002, <http://www.unhchr.ch/Huridocda/Huridoca.nsf/
(Symbol)/E.CN.4.2002.ngo.140.En?Opendocument> (22 August 2002).
\136\ Restrictions on Media Freedom in China: Commission
Roundtable, Mann Testimony.
\137\ Committee to Protect Journalists, ``Asia 2001, China,''
<http://www.cpj.org/attacks01/asia01/china.html> (31 July 2002)
[hereinafter ``CPJ, 'Asia 2001, China''' ].
\138\ Ibid.
\139\ Restrictions on Media Freedom in China: Commission
Roundtable, Testimony of He Qinglian, former editor, Shenzhen Legal
Daily, author of China's Pitfalls.
\140\ Ted Anthony, ``China Axes BBC After Falun Gong Item,''
Associated Press, 6 July 2002, <http://www.clearharmony.net/articles/
5577.html> (16 September 2002).
\141\ Wired China: Whose Hand is on the Switch?: Staff Roundtable
of the Congressional-Executive Commission on China,'' 15 April 2002
[hereinafter ``Wired China: Commission Roundtable''], Written Statement
submitted by Edward E. Kaufman, Member of the Broadcasting Board of
Governors.
\142\ Committee to Protect Journalists, ``Ten Enemies of the Press
for 2001,'' 3 May 2001, <http://www.cpj.org/enemies/enemies__01.html>
(31 July 2002).
\143\ CPJ, ``Asia 2001, China.''
\144\ Restrictions on Media Freedom in China: Commission
Roundtable, Testimony of Kavita Menon, Asia Program Director, Committee
to Protect Journalists.
\145\ China Internet Network Information Center, 10th Statistical
Survey Report on the Development of Internet in China, July 2002, 5.
\146\ Compare ``Government Issues New List of Banned Media Topics''
<http://www.cpj.org/news/2001/China10aug01na.html> with ``Measures on
the Administration of Internet Information Services'' [Hulianwang xinxi
fuwu guanli banfa], issued 25 September 2000, art. 15 and ``Interim
Provisions on the Administration of Internet Publishing'' [Hulianwang
chuban guanli zanxing guiding], effective 1 August 2002, art. 17.
\147\ Interim Provisions on the Administration of Internet
Publishing'' [Hulianwang chuban guanli zanxing guiding], effective 1
August 2002, art. 17.
\148\ Wired China: Commission Roundtable, Written Statement
submitted by James C. Mulvenon, Deputy Director, Center for Asia-
Pacific Policy, RAND.
\149\ <http://www.isc.org.cn>.
\150\ ``Public Pledge on Self-Discipline for China Internet
Industry'' [Zhongguo hulianwang zilu gongyue], issued 26 March 2002,
art. 9.
\151\ People's Daily, ``Three Departments Jointly Issue Notice:
Approvals for New Internet Cafes Will Cease Prior to the End of
August,'' 13 August 2002 <http://www.people.com.cn/GB/kejiao/39/
20020813/798648.html>.
\152\ Village Elections in China: Staff Roundtable of the
Congressional-Executive Commission on China, 8 July 2002 [hereinafter
``Village Elections in China: Commission Roundtable''], Testimony of
Liu Yawei, Associate Director, The Carter Center's China Village
Elections Project.
\153\ Village Elections in China: Commission Roundtable, Liu
Testimony.
\154\ Village Elections in China: Commission Roundtable, Testimony
of Anne Thurston, Associate Professor, The Johns Hopkins University's
Paul H. Nitze School of Advanced International Studies.
\155\ Ibid.
\156\ The township government is one level above the village and is
charged with administering several by villages.
\157\ Rebecca MacKinnon, ``China's Experiments with Rural
Democracy,'' CNN.com, 28 May 1999, <http://www.cnn.com/WORLD/asiapcf/
9905/28/china.democracy> (31 July 2002).
\158\ Village Elections in China: Commission Roundtable, Liu
Testimony.
\159\ Ibid.
\160\ Village Elections in China: Commission Roundtable, Testimony
of Elizabeth Dugan, Regional Program Director, Asia and the Middle
East, International Republican Institute (IRI).
\161\ Steven D. Marshall and Susette Ternent Cooke, Tibet Outside
the TAR: Control, Exploitation and Assimilation: Development with
Chinese Characteristics (Washington D.C.: Self-published CD-ROM, 1997),
2564-66. Table 7 provides land area figures cited to seven Chinese
sources including provincial statistical yearbooks. The thirteen areas
designated as Tibetan and autonomous total 2.24 million square
kilometers (865,000 square miles). Complete 2000 census data for ethnic
populations in China is not yet available. The official 1990 census
reported a total population of 1.13 billion, including 4.59 million
Tibetans (0.4 percent of the total), of whom 2.09 million resided in
the TAR. China's area is approximately 9.6 million square kilometers
(3.7 million square miles).
\162\ Tibetan Government-in-Exile, ``Facts--Occupied Tibet,''
<http://www.tibet.net/eng/tgie/tibet/> (7 August 2002). The area of
``occupied Tibet'' is reported as 2.5 million square kilometers
(965,000 square miles). Political status is given as ``occupied
country.'' The Tibetan population is reported as six million, 2.09
million of which is in the TAR.
\163\ Tibetan Government-in-Exile, ``Background,'' <http://
www.tibet.net/eng/tgie/background/> (7 August 2002).
\164\ Information Office of the State Council of the People's
Republic of China, ``New Progress in Human Rights in the Tibet
Autonomous Region,'' February 1998, <http://english.peopledaily.com.cn/
whitepaper/19.html> (20 August 2002).
\165\ Population Census Office, National Bureau of Statistics of
the People's Republic of China, Major Figures on 2000 Population Census
of China, 1 June 2001, 30. Han population for the 2000 census is given
as 1.159 billion of a total population of 1.266 billion for mainland
China.
\166\ Law of the People's Republic of China on Regional National
Autonomy [Zhonghua renmin gongheguo minzu quyufa], adopted 31 May 1984,
amended 28 February 2001, art. 2 [hereinafter ``Regional National
Autonomy Law'']. ``Regional autonomy shall be practiced in areas where
minority nationalities live in concentrated communities. National
autonomous areas shall be classified into autonomous regions,
autonomous prefectures and autonomous counties. All national autonomous
areas are integral parts of the People's Republic of China.''
\167\ Regional National Autonomy Law, art. 7.
\168\ Chinese Constitution, art. 52. ``It is the duty of citizens
of the People's Republic of China to safeguard the unity of the country
and the unity of all its nationalities.''
\169\ Department of Information and International Relations,
Tibetan Government-in-Exile, Dharamsala, India, ``It is Samdhong
Rinpoche,'' 20 August 2001, <http://www.tibet.net/eng/diir/flash/0801/
200801.html> (20 August 2002) (Samdhong Rinpoche received about 29,000
votes, 85 percent of those cast). According to ``Tibet in Exile at a
Glance,'' <http://www.tibet.com/exileglance.html> (20 August 2002), the
exiled government reports that 131,000 Tibetans are in exile and that
125,000 of them are in India or Nepal.
\170\ Barbara Crossette, ``Tibetan Monk Prepares Exiles for a
Political Shift,'' The New York Times, 21 July 2002, Section A4.
\171\ Erik Eckholm and Elisabeth Rosenthal, ``The Bright Young
Stars of China's Future,'' The New York Times, 28 September 1999,
Section A1.
\172\ Commission Staff Meeting with Zhu Xiaoming, Deputy Secretary-
General, United Front Work Department, 9 May 2002.
\173\ Commission Staff Meeting with Shoulang Rezhen (Tibetan: Sonam
Rigzin), Vice-Director, United Front Work Department, TAR Communist
Party Committee, 13 May 2002.
\174\ Ethnic Minorities in China: Tibetans and Uighurs: Staff
Roundtable of the Congressional-Executive Commission on China, 10 June
2002 [hereinafter ``Ethnic Minorities in China: Commission
Roundtable''], Written Statement Submitted by Professor Elliot
Sperling, Associate Professor of Tibetan Studies and Chair, Department
of Central Eurasian Studies, Indiana University.
\175\ Steven D. Marshall, In the Interests of the State: Hostile
Elements III--Political Imprisonment in Tibet, 1987-2001 (London: Tibet
Information Network, 2002), 3.
\176\ Ngawang Choephel, an ethnomusicologist who had studied in
Vermont, was released and allowed to return to the United States in
January 2002. Nuns Gyaltsen Drolkar, Tenzin Thubten, Ngawang Choekyi
and Ngawang Choezom were released during March-June 2002 and remain in
Tibet. The elderly Tagna Jigme Zangpo was released in March and allowed
to travel to the United States in July 2002.
\177\ China Today, ``Tibet: Nearer and Nearer--an interview with
Raidi, Chairman of the Standing Committee of the People's Congress of
[the] Tibet Autonomous Region,'' May 2001, <http://
www.chinatoday.com.cn/English/english/tibet1.htm> (20 August 2002).
According to Raidi [Tibetan: Ragdi], ``Over the past six years [1994-
2000] Tibet's [GDP] has increased at a rate of more than 10 percent
annually, averaging 12.9 percent, ranking [it] at the national
forefront.''
\178\ ``Tibet Chairman Legqog on Ways Tibet Will Use Assistance
from Other Parts of Nation,'' Ta Kung Pao, 10 August 2001, translated
in FBIS, Doc. ID CPP20010810000064. Legqog [Tibetan: Legchog], Chairman
of the TAR Government states that ``the central treasury's assistance
and subsidies for Tibet during the Tenth Five-Year Plan period will
reach 37.9 billion yuan,'' or doubling the amount provided under the
Ninth Five-Year Plan (1996 to 2000). This is to say that each of the
region's 2.62 million people will receive 26,700 yuan of assistance on
the average.''
\179\ Chinese Constitution, art. 9. ``Mineral resources, waters,
forests, mountains, grassland, unreclaimed land, beaches and other
natural resources are owned by the state, that is, by the whole people,
with the exception of the forests, mountains, grassland, unreclaimed
land and beaches that are owned by collectives in accordance with the
law. . . . The appropriation or damage of natural resources by any
organization or individual by whatever means is prohibited.''
\180\ See generally, Ethnic Minorities in China: Commission
Roundtable.
\181\ China County and City Population Statistics 1992 (Beijing:
China Statistical Publishing House, 1993). Statistics from the 1990
census show 3.43 million Tibetans living in Tibetan autonomous areas
classified as rural and 854,000 living in Tibetan autonomous areas
classified as urban.
\182\ Ethnic Minorities in China: Commission Roundtable, Written
Statement Submitted by Arthur Holcombe, President, Tibet Poverty
Alleviation Fund. Holcombe states that authorities ``estimated average
per capita family income in urban areas of Tibet to be the equivalent
of $606 in 1996, in comparison to only $117 in rural areas, and growing
at about 5 times the rate in rural areas.''
\183\ Ibid., Testimony of Bhuchung Tsering, Director, International
Campaign for Tibet.
\184\ Li Dezhu, ``Large-Scale Development of Western China and
China's Nationality Problem,'' Beijing Qiushi, 1 June 2000, translated
in FBIS, Doc. ID CPP20000615000057.
\185\ Ethnic Minorities in China: Commission Roundtable, Holcombe
Written Statement.
\186\ Catriona Bass, Education in Tibet: Policy and Practice Since
1950 (London: Tibet Information Network and Zed Books, 1998), 90-92,
123.
\187\ James Millward and Peter Perdue, ``Political History and
Strategies of Control, 1884-1978,'' Address at the Conference of the
JHU-SAIS Central Asia Caucasus Institute on Xinjiang: Muslim and Turkic
Unrest in China's ``New Territory,'' 27 March 2002.
\188\ Dewardric McNeal, Congressional Research Service, China's
Relations with Central Asian States and Problems with Terrorism, Report
for Congress, 17 December 2001, 1.
\189\ James Millward and Peter Perdue, ``Political History and
Strategies of Control, 1884-1978,'' Address at the Conference of the
JHU-SAIS Central Asia Caucasus Institute on Xinjiang: Muslim and Turkic
Unrest in China's ``New Territory,'' 27 March 2002.
\190\ Ethnic Minorities in China: Commission Roundtable, Testimony
of Justin Rudelson, Executive Director, Institute for Global Chinese
Affairs, University of Maryland.
\191\ Ibid.
\192\ Press Briefing of Richard Boucher, Spokesman, U.S. Department
of State, 26 August 2002.
\193\ ``Fresh Claims of bin Laden link to Uyghur Separatists
Emerge,'' South China Morning Post, 25 July 2002, <http://
china.scmp.com/chimain/ZZZGBFX1X3D.html> (26 July 2002).
\194\ See, e.g., Dewardric McNeal, Congressional Research Service,
China's Relations with Central Asian States and Problems with
Terrorism, Report for Congress, 17 December 2001, 7-12; Chien-peng
Chung, ``China's `War on Terror': September 11 and Uighur Separatism,''
Foreign Affairs (July/August 2002): 8-12; Dexter Roberts, ``Beijing
Stokes the Fires of Ethnic Tensions,'' Business Week, 29 May 2002,
<http://www.businessweek.com/bwdaily/dnflash/may2002/
nf20020529__1844.htm> (31 May 2002); Human Rights Watch, China Human
Rights Update, 10.
\195\ Vivien Pik-Kwan Chan, ``Top Cadre Issues Xinjiang Warning,''
South China Morning Post, 17 October 2001, <http://special.scmp.com/
apec01/news/ZZZAEIMFRSC.html> (1 August 2002).
\196\ President George W. Bush, ``U.S., China Stand Against
Terrorism,'' Remarks at the Press Conference of President Bush and
President Jiang Zemin, 19 October 2002, <http://www.whitehouse.gov/
news/releases/2001/10/20011019-4.html> (3 September 2002).
\197\ See, e.g., State Department Human Rights Report, China, 32;
Matthew Forney, ``One Nation--Divided,'' TIME Asia, 25 March 2002,
<http://www.time.com/time/asia/features/xinjiang/cover.html> (20 March
2002).
\198\ John Congreve, ``Enter the Dragon,'' Financial Times, 27 July
2002, <http://news.ft.com/servlet/ContentServer?pagename=FT.com/
StoryFT/FullStory&c=StoryFT&cid=1028039809097&p=1012571727169> (30 July
2002).
\199\ See, e.g., State Department Human Rights Report, China, 32;
Congreve, ``Enter the Dragon.''
\200\ Agence France-Presse, ``ExxonMobil to Take Stake in 4,000 km
Chinese Gas Pipeline Project,'' 1 July 2002, <http://
www.uyghurinfo.com/viewNews.asp?newsid=6259> (3 July 2002). $5.6
billion is the investment for just the gas pipeline's construction.
Another estimated $3.1 billion will be spent on gas extraction, and up
to $9.6 billion will be spent on construction of the distribution
network.
\201\ Ethnic Minorities in China: Commission Roundtable, 10 June
2002, Testimony of Dolkun Kamberi, Director of the Uighur Service,
Radio Free Asia.
\202\ See, e.g., John Schauble, ``China's $A40b Gas Line is on the
Way,'' The Age, 6 June 2002, <http://www.theage.com.au/articles/2002/
06/05/1022982718963.html> (6 June 2002); Agence France-Presse,
``ExxonMobil to Take Stake in 4,000 km Chinese Gas Pipeline Project,''
1 July 2002, <http://www.uyghurinfo.com/viewNews.asp?newsid=6259> (3
July 2002).
\203\ See, e.g., ``China Orders End to Instruction in Uyghur at Top
Xinjiang University,'' Agence France-Presse, 28 May 2002, in FBIS, Doc.
ID CPP20020528000103; Radio Free Asia News Release, ``Chinese
Authorities Burn Thousands of Uyghur Books,'' 5 June 2002; Ethnic
Minorities in China: Commission Roundtable, Kamberi Testimony.
\204\ See, e.g., ``China Orders End to Instruction in Uyghur at Top
Xinjiang University,'' Agence France-Presse, 28 May 2002, in FBIS, Doc.
ID CPP20020528000103; ``Xinjiang University Drops Instruction in Uyghur
Language,'' RFA Reports, June 2002, 3; Open Forum Staff Roundtable of
the Congressional-Executive Commission on China, 5 August 2002, Written
Statement Submitted by Sokrat Saydahmat, Member, Board of Directors,
Uyghur American Association.
\205\ Commission Staff Meeting with Dr. Tashpolat Tiyip, Vice
President of Xinjiang University, 16 May 2002 [hereinafter ``Staff
Meeting with Dr. Tashpolat Tiyip''].
\206\ See, e.g., State Department Human Rights Report, China, 7;
Human Rights Watch, Human Rights Concerns in Xinjiang; Amnesty
International, ``China's Anti-Terrorism Legislation and Repression in
the Xinjiang Uighur Autonomous Region,'' March 2002, 10-12, <http://
web.amnesty.org/aidoc/aidoc__pdf.nsf/index/SA170102002ENGLISH/$File/
ASA1701002.pdf> (1 April 2002).
\207\ Human Rights Watch, China Human Rights Update, 11.
\208\ State Department Human Rights Report, China, 31.
\209\ Amnesty International, ``China's Anti-Terrorism Legislation
and Repression in the Xinjiang Uighur Autonomous Region.''
\210\ Staff Meeting with Xinjiang People's Congress and Justice
Department.
\211\ Ibid.
\212\ Ibid.
\213\ See, e.g., State Department Human Rights Report, China, 31;
Amnesty International, ``China: Uighur Businesswoman Rebiya Kadeer
Sentenced to Eight Years After Secret Trial,'' 10 March 2000, <http://
web.amnesty.org/802568F7005C4453/0/5D1C4EAFB6642952802
568A30069E912?Open> (20 March 2002).
\214\ State Department Human Rights Report, China, 31.
\215\ See, e.g., Regulations on Managing Places for Religious
Activities [Zongjiao huodong changsuo guanli tiaoli], issued 31 January
1994; Measures for the Registration of Places for Religious Activities
[Zongjiao huodong changsuo dengji banfa], issued 13 April 1994; State
Department Human Rights Report, China, 21.
\216\ Human Rights Watch, China Human Rights Update, 11.
\217\ See, e.g., Vivien Pik-Kwan Chan, ``Mosque Leaders' Re-
education Campaign Stepped Up,'' South China Morning Post, 14 November
2001, <http://www.uygur.org/wunn21/2001__11__14.htm> (1 August 2002);
Human Rights Watch, China Human Rights Update, 11.
\218\ See, e.g.,``Committee to Spread True Koran,'' China Daily, 24
April 2002; Human Rights Watch, China Human Rights Update, 11.
\219\ ``Committee to Spread True Koran.''
\220\ Staff Meeting with Xinjiang People's Congress and Justice
Department.
\221\ Staff Meeting with Dr. Tashpolat Tiyip.
\222\ WTO: Will China Keep its Promises? Can it?: Hearing Before
the Congressional-Executive Commission on China, 6 June 2002
[hereinafter ``WTO: Will China Keep its Promises?: Commission
Hearing''], Testimony of Grant Aldonas, Undersecretary of Commerce for
International Trade.
\223\ See, e.g., WTO: Will China Keep its Promises?: Commission
Hearing, Testimony of Susan Westin, Managing Director of International
Affairs and Trade, U.S. General Accounting Office.
\224\ ``Long Yongtu on `Three Changes' from China's WTO Entry,''
People's Daily, 28 March 2002, <http://english.peopledaily.com.cn/
200203/28/print20020328__93016.html> (2 August 2002).
\225\ See, e.g., General Agreement on Tariffs and Trade (GATT), 30
October 1947, as amended through 1966, art. X(1); General Agreement on
Trade in Services (GATS), 15 April 1994, Marrakesh Agreement
Establishing the World Trade Agreement, Annex 1B, art. III.
\226\ See, e.g., GATT, art. X(3)(a), GATS, art. VI(1).
\227\ GATT, art. X(2).
\228\ GATT, art. X(3)(b).
\229\ WTO: Will China Keep its Promises?: Commission Hearing,
Testimony of Donald C. Clarke, Professor of Law, University of
Washington Law School.
\230\ ``Laws Revised to Meet WTO,'' China Daily, 25 May 2002,
<www.chinadaily.com.cn> (26 May 2002).
\231\ Protocol on the Accession of the People's Republic of China
to the World Trade Organization, art. 2(c)(1).
\232\ Legislation Law of the People's Republic of China [Zhonghua
renmin gongheguo lifafa], adopted 15 March 2000, arts. 34, 35.
\233\ Procedural Rules for Formulating Administrative Regulations
[Xingzheng fagui zhiding chengxu tiaoli], issued 11 November 2000,
arts. 12, 19, 20, 22.
\234\ See, e.g., The China Securities Regulatory Commission Seeks
Public Opinions on Revising the ``Notice on Further Increasing the
Standardization of New Stock Issuances by Listed Companies'' (draft for
comment) [Zhongguo zhengquanhui gongkai zhengqiu ``Guanyu jinyibu
guifan shangshi gongsi zengfa xingu de tongzhi'' (zhengqiu yijian gao)
de xiugai yijian], issued 21 June 2002; China Securities Regulatory
Commission Notice Soliciting Public Opinion Regarding ``Interim
Provisions on Foreign Organizations Buying Stock and Participating in
the Establishment of Fund Management Companies,''(draft for comment)
[Jingwai jigou cantou canyu faqi sheli jijin guanli gongsi zanxing
guiding (zhengqiu yijian gao)], issued 20 December 2001.
\235\ See, e.g., Notice on Seeking Opinions Regarding ``Sanitation
Standards on the Quality of Drinking Water in Drinking Water
Pipelines'' (draft for comment) [Guanyu zhengqiu dui ``Shenghuo
yinyongshui guanli fenzhi zhi yinshui weisheng guifan'' (zhengqiu
yijian gao)], issued 27 June 2002; State Drug Administration Notice on
Seeking Opinions to Revise ``Methods for Managing Anesthetic Drugs''
(revised draft for comment) and ``Methods for Managing
Psychotherapeutic Drugs'' (revised draft for comment) [Guanyu zhengqiu
dui ``Mazui yaopin guanli banfa'' (xiuding zhengqiu yijian gao)
``jingshen yaopin guanli banfa'' (xiuding zhengqiu yijian gao) xiugai
yijian de tongzhi], issued 24 April 2002.
\236\ Beijing People's Government Measures for Formulating Rules
[Beijing shi renmin zhengfu guizhang zhiding banfa], issued 21 May
2002.
\237\ See, e.g., Chongqing City Regulations on Unemployment
Insurance (draft for comment) [Chongqing shi shiye baoxian tiaoli
(zhengqiu yijian gao)], issued 28 January 2002; ``Shenyang Adapts to
WTO Regulations by Establishing 'Work Office for Administrative
Approvals''' [Shenyang zaoying WTO guize ``Xingzheng shenpi ban shi da
ting''], 6 July 2002, <www.chinanews.com.cn/2002-07-06/201105.html> (15
July 2002); ``Zhejiang Adapts to Entering WTO by Abolishing 76 `Red
Head [Internal] Documents' '' [Zao ying ru xingshi Zhejiang feizhi 76
ge hongtou wenjian], 19 April 2002, <www.chinanews.com.cn/2002-04-/26/
179554.html> (15 July 2002); ``MOFTEC Vice Minister Long Yongtu to
Serve as Advisor on WTO Related Affairs,'' Beijing Zhongguo Xinwen She,
9 April 2002, translated in FBIS, Doc. ID CPP20020409000221 (announcing
the establishment of the Guangdong Provincial Consulting Council on
Affairs Related to the WTO).
\238\ This inconsistency is illustrated by the varying policies
that ministries have with respect to transparency, as discussed above.
\239\ Randall Peerenboom, ``Globalization, Path Dependency and the
Limits of Law: Administrative Law Reform and Rule of Law in the
People's Republic of China,'' Berkeley Journal of International Law 19
(2001): 232.
\240\ Administrative Litigation Law, art. 2.
\241\ Peerenboom, 235.
\242\ See, e.g., ibid.
\243\ WTO: Will China Keep its Promises?: Commission Hearing,
Westin Testimony; see also ``Beijing Sets Up New Court System to Handle
Foreign Cases, WTO Matters,'' China Daily, 5 February 2002, in FBIS,
Doc. ID CPP20020205000018.
\244\ See WTO: Will China Keep its Promises?: Commission Hearing,
Clarke Written Statement; Human Rights in the Context of the Rule of
Law: Commission Hearing, Written Statement Submitted by Stanley Lubman,
Visiting Scholar, Center for Law and Society and Lecturer in Law,
School of Law, University of California (Berkeley), 7 February 2002.
\245\ ``PRC Supreme Court Circular Calls for Raising Judges'
Professional Competence,'' Xinhua, 5 August 2002, translated in FBIS,
Doc. Id. CPP20020728000031.
\246\ 2000 China Relations Act, secs. 413(b)(2), 421.
\247\ 2000 China Relations Act, sec. 511(a).
\248\ WTO: Will China Keep its Promises?: Commission Hearing,
Responses of Aldonas to Questions from Senator Max Baucus. The German
Technical and Cooperation Corporation's training of MOFTEC lawyers and
the Canadian International Development Agency's Canada-China World
Trade Organization Capacity Building Project are examples of other
large-scale programs that incorporate WTO compliance training into
larger rule of law efforts. For a list of rule of law programs,
including programs related to WTO technical assistance, see the
Congressional-Executive Commission on China website, www.cecc.gov.
\249\ WTO: Will China Keep its Promises?: Commission Hearing,
Aldonas Testimony.
\250\ WTO: Will China Keep its Promises?: Commission Hearing,
Testimony of Jon M. Huntsman, Jr., Deputy U.S. Trade Representative.
\251\ Ibid.; Clarke Testimony; Written Statement Submitted by Chris
Murck, Chairman, American Chamber of Commerce of China.
\252\ WTO: Will China Keep its Promises?: Commission Hearing,
Westin Testimony.
\253\ Promoting the Rule of Law in China: Staff-Led Roundtable of
the Congressional-Executive Commission on China, 24 May 2002, Testimony
of Nancy Yuan, Director, Asia Foundation.
\254\ Human Rights Watch, ``Olympics and Human Rights: Beijing in
2008,'' 8 February 2002, <http://www.hrw.org/press/2002/02/
china0208.htm> (5 August 2002).
\255\ Matthew Forney, ``Beijing Bags It,'' TIME Asia, 23 July 2001,
<http://www.time.com/time/asia/arts/magazine/0,9754,167611,00.html> (22
August 2002).
\256\ Jim Kernaghan, ``All Eyes on Beijing,'' London Free Press, 14
July 2001, <http://www.canoe.ca/Slam010714/col__kernaghan-sun.html> 20
August 2002.
\257\ Elisabeth Rosenthal, ``U.N. Publicly Chastises China for
Inaction on H.I.V. Epidemic,'' New York Times, 27 June 2002, <http://
www.nytimes.com/2002/06/28/international/asia/28CHIN.html> (27 June
2002).
\258\ ``Not For General Release,'' Far Eastern Economic Review, 15
August 2002, 31.
\259\ United Nations Office of the High Commissioner for Human
Rights, ``HIV/AIDS & Human Rights: What is a Human Rights Approach to
HIV/AIDS?'' <http://www.unhchr.ch/hiv/index1.htm#relation> (28 June
2002).
\260\ China Development Brief, 250 Chinese NGOs: Civil Society in
the Making, August 2001.
\261\ Regulations for Managing the Registration of Social
Organizations [Shehui tuanti dengji guanli tiaoli], adopted 25
September 1998.
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