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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ANNUAL REPORT
2006
=======================================================================
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 20, 2006
__________
Printed for the use of the Congressional-Executive Commission on China
Available via the World Wide Web: http://www.cecc.gov
_____
U.S. GOVERNMENT PRINTING OFFICE
29-862 PDF WASHINGTON : 2006
_________________________________________________________________
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
Senate
House
CHUCK HAGEL, Nebraska, Chairman JAMES A. LEACH, Iowa, Co-Chairman
SAM BROWNBACK, Kansas DAVID DREIER, California
GORDON H. SMITH, Oregon FRANK R. WOLF, Virginia
JIM DeMINT, South Carolina JOSEPH R. PITTS, Pennsylvania
MEL MARTINEZ, Florida ROBERT B. ADERHOLT, Alabama
MAX BAUCUS, Montana SANDER LEVIN, Michigan
CARL LEVIN, Michigan MARCY KAPTUR, Ohio
DIANNE FEINSTEIN, California SHERROD BROWN, Ohio
BYRON DORGAN, North Dakota MICHAEL M. HONDA, California
EXECUTIVE BRANCH COMMISSIONERS
STEVEN J. LAW, Department of Labor
PAULA DOBRIANSKY, Department of State
FRANKLIN L. LAVIN, Department of Commerce
CHRISTOPHER R. HILL, Department of State
BARRY F. LOWENKRON, Department of State
David Dorman, Staff Director (Chairman)
John Foarde, Staff Director (Co-Chairman)
C O N T E N T S
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Page
I. Commission Finding............................................ 1
II. Executive Summary............................................ 2
III. List of Recommendations..................................... 16
IV. Introduction................................................. 22
V. Monitoring Compliance With Human Rights....................... 25
(a) Special Focus for 2006: Freedom of Expression............ 25
(b) Rights of Criminal Suspects and Defendants............... 42
(c) Protection of Internationally Recognized Labor Rights.... 60
(d) Freedom of Religion...................................... 75
(e) Status of Women.......................................... 97
(f) The Environment.......................................... 100
(g) Public Health............................................ 104
(h) Population Planning...................................... 109
(i) Freedom of Residence and Travel.......................... 113
VI. Political Prisoner Database.................................. 118
VII. Development of the Rule of Law and Institutions of
Democratic Governance.......................................... 119
(a) Development of Civil Society............................. 119
(b) Institutions of Democratic Governance and Legislative
Reform..................................................... 124
(c) Access to Justice........................................ 131
(d) Commercial Rule of Law and the Impact of the WTO......... 142
VIII. Tibet...................................................... 160
IX. North Korean Refugees in China............................... 172
X. Developments in Hong Kong..................................... 175
XI. Appendix: Commission Activities in 2005 and 2006............. 178
XII. Endnotes.................................................... 180
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
2006 ANNUAL REPORT
I. Commission Finding
The Commission is deeply concerned that some Chinese
government policies designed to address growing social unrest
and bolster Communist Party authority are resulting in a period
of declining human rights for China's citizens. The Commission
identified limited improvements in the Chinese government's
human rights practices in 2004, but backward-stepping
government decisions in 2005 and 2006 are leading the
Commission to reevaluate the Chinese leadership's commitment to
additional human rights improvements in the near term. In its
2005 Annual Report, the Commission highlighted increased
government restrictions on Chinese citizens who worship in
state-controlled venues or write for state-controlled
publications. These restrictions remain in place, and in some
cases, the government has strengthened their enforcement.
The Communist Party's concern with growing social unrest
dominated its policy statements over the past year, and served
as
justification for increased government interference with, and
intimidation and harassment of, individuals and groups that the
Party believes may threaten its authority or legitimacy. The
government targeted social, political, and legal activists, as
well as
religious believers who violated strict government limitations
on religious practice. In the past year, government efforts to
maintain social stability have led to a greater reliance on the
coercive powers of the police to subdue potential threats to
Party rule. Chinese officials have also taken additional steps
in the past year to curb the growth of China's emerging civil
society. New government and Party controls have been imposed on
courts and judges that may further weaken the independence of
the Chinese judiciary. Moreover, the Chinese government
continues to use its regulatory control over the Internet and
print publishing to censor political and religious expression,
to imprison journalists and writers, and to prevent Chinese
citizens from having access to independent news sources.
The Commission notes the progress that the Chinese
government has made over the past 25 years in beginning to
build a political system based on the rule of law and on
respect for basic human rights. The twin demands of social
stability and continued economic progress have spurred legal
reforms that may one day be the leading edge of constraints on
the arbitrary exercise of state power. The Chinese government
continues to pursue judicial and criminal reforms, often in
cooperation with international partners, that could lead to
further protection of citizen rights. The government's
achievements in the economic realm are impressive, none more so
than its success in lifting more than 400 million Chinese
citizens out of extreme poverty since the early 1980s. Economic
reforms have also contributed to a growing middle class,
expected to total 170 million people by 2010. China's WTO
accession commitments have resulted in gradual improvements in
transparency at all levels of government. Elections at the
village level are now commonplace in China, and limited
experiments with popular participation continue at other levels
of government. Average Chinese citizens are free to discuss
sensitive issues in a way that would have been unimaginable two
decades ago.
While all of these changes are important, the gap between
forward-looking economic freedoms and a backward-looking
political system remains significant. There are leaders now
within China who comprehend the need for change, and who
understand that inflexibility, secretiveness, and a lack of
democratic oversight pose the greatest challenges to continued
development. These leaders will need to gather considerable
reformist courage to overcome obstacles and push for continued
change. Such changes will not occur overnight, but rather in
ways that Chinese society, culture, infrastructure, and
institutions must be prepared for and willing to accept.
II. Executive Summary
China has an authoritarian political system controlled by
the Communist Party. Party committees formulate all major state
policies before the government implements them. The Party
dominates Chinese legislative bodies such as the National
People's Congress (NPC), and fills all important government
positions in executive and judicial institutions through an
internal selection process. Party control extends throughout
institutions of local government. Chinese authorities have
ruled out building representative democratic institutions to
address citizen complaints about corruption and abuse of power,
and instead are recentralizing government posts into the hands
of individual Party secretaries. The absence of popular and
legal constraints to check the behavior of Party officials has
led to widespread corruption and citizen anger. The Party has
strengthened the role of internal responsibility systems to
moderate official behavior, but these systems have provided
some local Party officials with new incentives to conceal
information and abuse their power. In 2005, the central
leadership called for strengthened controls over society to
address mounting social unrest and to suppress dissent.
Since the 1980s, officials have introduced limited reforms
to allow citizens to vote in village elections. While these
reforms are a step forward in permitting citizen participation
at the local level, the reforms are designed to strengthen
Party governance and do not represent Party acceptance of
representative government. Since the late 1990s, the Party has
experimented with reforms that allow a limited degree of
citizen participation in the selection of local Party cadres,
but the Party retains tight control over the candidate pool and
the selection process. Since 2000, Chinese authorities have
experimented with the use of legislative hearings to solicit
public views on pending legislation, and the NPC held its first
controlled public hearing in September 2005. In March 2005, the
central government announced new transparency requirements for
local governments. The requirements mandate county and
provincial governments to increase transparency and popular
participation in government decisionmaking. Implementation of
these ``open government'' requirements varies, but some local
governments have taken steps toward greater transparency.
The Chinese government continues to engage the
international community on human rights and rule of law issues
to varying degrees. The government announced in 2006 that it
plans to amend its Criminal, Civil, and Administrative
Procedure Laws and reform the judiciary to prepare for
ratification of the International Covenant on Civil and
Political Rights. The government hosted visits by the UN
Special Rapporteur on Torture in late 2005 and the UN High
Commissioner for Refugees in March 2006. Both UN officials
commended the Chinese government for its open attitude toward
increased dialogue, but Manfred Nowak, UN Special Rapporteur on
Torture, also reported that his work was monitored and
obstructed by Chinese authorities. In May 2006, China was
elected to serve for a three-year term on the newly established
UN Human Rights Council. The government's application for
membership in the Council noted that it has acceded to 22
international human rights accords. As a member of the new
Council, the government has pledged to fulfill its obligations
under the terms of these accords, and is obligated under the
rules of the Council to submit to peer review of its human
rights record.
Chinese scholars and officials continued to engage foreign
governments and legal experts on a range of criminal justice
issues during late 2005 and 2006. Chinese law enforcement
agencies expressed a growing interest in cooperating with other
countries to combat transnational crime, and in expanding
cooperation with U.S. law enforcement agencies on money
laundering, fighting terrorism, and other issues. Numerous
international conferences and legal exchanges with Western
NGOs, judges, and legal experts took place, including programs
on public accountability, pretrial discovery, evidence
exclusion, criminal trials and procedure, bail, capital
punishment, and prison reform. In 2006, the U.S. and Chinese
governments continued to conduct a series of bilateral
cooperative activities on wage and hour laws, occupational
safety and health, mine safety and health, and pension program
oversight.
Government censorship, while not total, is pervasive and
highly effective, and denies Chinese citizens the freedoms of
speech and of the press guaranteed to them in the Chinese
Constitution. The government has imprisoned journalists who
provide news to foreigners, such as Zhao Yan, Shi Tao, and
Ching Cheong. Editors of publications that criticize government
policies, such as Yang Bin of the Beijing News and Li Datong of
the China Youth Daily, have been dismissed. The government
blocks the Web sites and radio and television broadcasts of
foreign news organizations, such as those of the British
Broadcasting Corporation, Radio Free Asia, and the Voice of
America. In 2005, the government banned dozens of newspapers
and confiscated almost one million ``illegal'' political
publications. Beginning in May 2005, the government blocked the
Commission's Web site from being viewed in China.
Modern telecommunications technologies such as the
Internet, cell phones, and satellite broadcasts, allow Chinese
citizens access to more information sources, both state-
controlled and non-state-controlled. But government
restrictions on news and information media, including on these
new information sources, do not conform to international human
rights standards for freedom of expression. The Chinese
government imposes a strict licensing scheme on news and
information media that includes oversight by government
agencies with discretion to grant, deny, and rescind licenses
based on political and economic criteria. The Chinese
government's content-based restrictions include controls on
political opinion and religious literature that are not
prescribed by law, and whose primary purpose is to protect the
ideological and political dominance of the Communist Party.
The government's restrictions on religious literature do
not conform to international human rights standards. Only
government-
licensed printing enterprises may print religious materials,
and then only with approval from both the provincial-level
religious affairs bureau and the press and publication
administration. In addition to confiscating religious
publications, the Chinese government also has fined, detained,
and imprisoned citizens for publishing, printing, and
distributing religious literature without government
permission. Cai Zhuohua, a house church pastor in Beijing, and
two of his family members were imprisoned in 2005 for printing
and giving away Bibles and other Christian literature. In Anhui
province, house church pastor Wang Zaiqing was arrested in May
2006 on the same charges.
The Communist Party's concern with growing social
instability dominated its policy statements over the past year,
and served as justification for increased government vigilance
over activities and groups that potentially threaten Party
legitimacy. Top Party, court, and law enforcement officials
repeatedly linked the government's policy of pursuing periodic
anti-crime campaigns, referred to as ``Strike Hard'' campaigns,
to the goal of maintaining social stability. Government efforts
to maintain social stability have led to a greater reliance on
the coercive powers of the police to subdue
potential threats to Party rule.
Abuse of power by local police forces remains a serious
problem. The Supreme People's Procuratorate (SPP) has
acknowledged the existence of continuing and widespread abuses
in law enforcement, including illegal extended detentions and
torture. New SPP regulations that detail the criteria for
prosecuting official abuses of power went into effect in July
2006, and establish standards for the prosecution of police who
abuse their power to hold individuals in custody beyond legal
limits, coerce confessions under torture, acquire evidence
through the use of force, maltreat prisoners, or retaliate
against those who petition the government or file complaints
against them.
The Chinese government continues to apply vague criminal
and administrative provisions to justify detentions based on an
individual's political opinions or membership in religious,
ethnic, or social groups. These provisions allow for the
targeting and punishment of activists for crimes that
``endanger state security'' or ``disturb public order'' under
the Criminal Law. The UN Special Rapporteur on Torture
concluded in his March 2006 report to the UN Commission on
Human Rights that the vague definition of these crimes leaves
their application open to abuse, particularly of the rights to
freedom of religion, speech, and assembly.
Chinese authorities use reeducation through labor and other
forms of administrative detention to circumvent the criminal
process and imprison offenders for ``minor crimes,'' without
judicial review and the procedural protections guaranteed by
the Chinese Constitution and Criminal Procedure Law. The UN
Working Group on Arbitrary Detention concluded in 2004 that the
Chinese government has made no significant progress in
reforming the administrative detention system to ensure
judicial review and to conform to international law. Although
proposed reforms would provide some added procedural
protections, they would still not provide an accused individual
the opportunity to dispute the alleged misconduct and contest
law enforcement accusations of guilt before an independent
adjudicatory body.
Although illegal in China, torture and abuse by law
enforcement officers remain widespread. Factors that perpetuate
or exacerbate the problem of torture include a lack of
procedural safeguards to protect criminal suspects and
defendants, over reliance on confessions of guilt, the absence
of lawyers at interrogations, inadequate complaint mechanisms,
the lack of an independent judiciary, and the abuse of
administrative detention measures. The Chinese government
emphasizes its ongoing efforts to pass new laws and
administrative regulations preventing, punishing, and
compensating cases of torture by law enforcement officers. Both
the SPP and the Ministry of Public Security have announced
their support for audio and video taping of interrogations of
criminal suspects accused of a limited number of crimes. The
Chinese government recognizes that problems of misconduct,
including physical abuse, exist within Chinese prisons and
reeducation through labor centers, and it is making progress
toward increasing accountability for such behavior.
In 2006, Chinese authorities increased restrictions on
lawyers who work on politically sensitive cases or cases that
draw attention from the foreign news media. Law enforcement
officials also intimidated lawyers defending these cases by
charging them, or threatening to charge them, with various
crimes. Since mid-2005, local authorities have also used
harassment and violent measures against those who participated
in criminal or civil rights defense in sensitive matters.
Beijing lawyer Zhu Jiuhu was detained during the past year.
Self-trained legal advocate Chen Guangcheng was sentenced on
August 24, 2006, to four years and three months' imprisonment,
and Shanghai lawyer Zheng Enchong is currently under house
arrest after being released from prison on June 5, 2006.
Beijing lawyer Gao Zhisheng has been held incommunicado since
authorities reportedly abducted him on August 15 from his
sister's home in Shandong province. Guo Feixiong, who served as
a legal advisor to Gao's law firm, was arrested and later
released in late 2005, and is currently in detention after
being taken from his home on September 14.
Chinese criminal law includes 68 capital offenses, over
half of which are non-violent crimes. The Chinese government
reportedly has adopted an ``execute fewer, execute cautiously''
policy. In 2006, the Chinese judiciary made reform of the death
penalty review process a top priority and introduced new
appellate court procedures for hearing death penalty cases. The
Supreme People's Court announced that it would consolidate and
reclaim the death penalty review power from provincial-level
high courts. These reforms are designed to limit the use of
death sentences, consolidate criteria used by courts to
administer those sentences, and ensure constitutionally
protected human rights.
The Vice Minister of Health acknowledged that the majority
of human organs used in transplants in China originate from
executed prisoners. Under the World Health Organization's
guiding principles on human organ transplantation, organ
donations by prisoners, even when reportedly voluntary, may
nonetheless violate international standards if the organs are
obtained through undue influence and pressure. New Ministry of
Health regulations include medical standards for organ
transplants, but do not provide guidance on what type of
consent is required for taking organs from
executed prisoners.
The Chinese government does not respect the internationally
recognized right of workers to organize their own unions. The
All-China Federation of Trade Unions (ACFTU), a Party-led mass
organization, is the only legal labor federation in China. It
controls local union branches and aligns worker and union
activity with government and Party policy. The ACFTU began a
campaign in March 2006 to establish union branches in foreign
enterprises doing business in China. Chinese workers who
attempt to form independent workers' organizations, or whom the
government suspects of being leaders of such organizations,
risk imprisonment. The government secretly tried labor rights
activist Li Wangyang and sentenced him to 10 years'
imprisonment in September 2001 for staging a peaceful hunger
strike. Li had previously served most of a 13-year sentence for
organizing an independent union. In May 2003, the government
sentenced labor activist Yao Fuxin to a seven-year prison term
for peacefully rallying workers to demand wage and pension
arrearages from a bankrupt state-owned enterprise. Both Li and
Yao remain in prison.
Weak protection of worker rights has contributed to an
increase in the number of labor disputes and protests.
According to ACFTU figures, the number of labor disputes rose
sharply in 2005. The ACFTU reports that there were 300,000
labor-related lawsuits filed, a 20.5 percent increase over 2004
and a 950 percent increase compared to 1995. Strikes, marches,
demonstrations, and collective petitions increased from fewer
than 1,500 in 1994 to about 11,000 in 2003, while the number of
workers involved increased from nearly 53,000 in 1994 to an
estimated 515,000 in 2003. Poor workplace health and safety
conditions and continuing wage and pension arrearages were the
most prominent issues resulting in labor disputes during the
past year. Chinese industry continues to have a high accident
rate, with death rates in the mining and construction
industries leading other sectors. According to official
statistics, 110,027 people were killed in 677,379 workplace
accidents through December 2005, and more than 10,000 workers
died in the mining and construction sectors during 2005.
Forced labor is an integral part of the Chinese
administrative
detention system. Authorities sentence some prisoners without
judicial review to reeducation through labor (laojiao) centers,
where they are forced to work long hours without pay to fulfill
heavy production quotas, and sometimes are tortured for
refusing to work. China's Labor Law prohibits forced labor
practices in the workplace, and authorities have arrested
employers who trap workers at forced labor sites. In 2002, the
Chinese government began to cooperate with the International
Labor Organization on broad issues of concern regarding forced
labor, including on potential reforms to the reeducation
through labor system, and on improving institutional capacity
to combat human trafficking for labor exploitation.
The use of child labor in some regions of China is
reportedly on the rise. Labor shortages in the economically
developed southern and eastern coastal provinces are causing
employers to turn to child laborers, according to NGO reports.
This development coincides with intensified efforts by the
Ministry of Justice and the Ministry of Labor and Social
Security to fight the illegal employment of children,
suggesting that the government is more concerned about such
abuses than before. Government authorities
consider statistics on child labor that have not been
officially
approved for release to be state secrets, and this policy
thwarts
efforts to understand the extent and causes of the problem.
Chinese government restrictions on the practice of religion
violate international human rights standards. Freedom of
religious
belief is protected by the Chinese Constitution and laws, but
government implementation of Party policy on religion, and
restrictions elsewhere in domestic law, violate these
guarantees. The
Chinese government tolerates some aspects of religious belief
and practice, but only under a strict regulatory framework that
represses religious and spiritual activities falling outside
the scope of Party-sanctioned practice. Religious organizations
are required to register with the government and submit to the
leadership of ``patriotic religious associations'' created by
the Party to lead each of China's five recognized religions:
Buddhism, Catholicism, Daoism, Islam, and Protestantism. Those
who choose not to register with the government, or groups that
the government refuses to register, operate outside the zone of
protected religious activity and risk harassment, detention,
imprisonment, and other abuses. Registered communities also
risk such abuse if they engage in religious activities that
authorities deem a threat to Party authority or legitimacy.
The 2004 Regulation on Religious Affairs (RRA) has not
afforded greater religious freedom to Chinese citizens, despite
government claims that it represented a ``paradigm shift'' by
limiting state control over religion. Like earlier local and
national regulations on religion, the RRA emphasizes government
control and restrictions on religion. The RRA articulates
general protection only for freedom of ``religious belief,''
but not for expressions of religious belief. Like earlier
regulations, it also protects only those religious activities
deemed ``normal,'' without defining this term. Although the RRA
includes provisions that permit registered religious
organizations to select leaders, publish materials, and engage
in other affairs, many provisions are conditioned on government
approval and oversight of religious activities.
Chinese government enforcement of Party policy on religion
creates a repressive environment for the practice of Tibetan
Buddhism. Party policies toward the Dalai Lama and Panchen
Lama, the second-ranking Tibetan spiritual leader, seek to
control the fundamental religious convictions of Tibetan
Buddhists. Government actions to implement Party policies
caused further deterioration in some aspects of religious
freedom for Tibetan Buddhists in the past year. Officials began
a patriotic education campaign in Lhasa-area monasteries and
nunneries in April 2005. Expressions of resentment by Tibetan
monks and nuns against the continuing campaign resulted in
detentions, expulsions, and an apparent suicide. Chinese
officials continue to hold Gedun Choekyi Nyima, the boy the
Dalai Lama recognized as the Panchen Lama in May 1995, in
incommunicado custody along with his parents.
Tibetan Buddhist monks and nuns constituted 21 of the 24
known political detentions of Tibetans by Chinese authorities
in 2005, compared to 8 of the 15 such known detentions in 2004,
based on data available in the Commission's Political Prisoner
Database. None of the known detentions of monks and nuns in
2005 took place in Sichuan province, a shift from the previous
three years, but known detentions of monks and nuns in Qinghai
and Gansu provinces increased during the same period. Based on
data available for 50 currently imprisoned Tibetan monks and
nuns, their average sentence length is approximately nine years
and six months. In one positive development, the government
permitted the resumption of a centuries-old Tibetan Buddhist
tradition of advanced study that leads to the highest level of
scholarly attainment in the Gelug tradition.
Government repression of unregistered Catholic clerics
increased in the past year. Based on NGO reports, officials in
Hebei and Zhejiang provinces detained a total of 38
unregistered clerics in 13 incidents in the last year, while in
the previous year officials detained 11 clerics in 5 incidents.
The government targets Catholic bishops who lead large
unregistered communities for the most severe punishment. Bishop
Jia Zhiguo, the unregistered bishop of Zhengding diocese in
Hebei province, has spent most of the past year in detention.
Bishop Jia has been detained at least eight times since 2004.
Government harassment and abuse of registered Catholic
clerics also increased in the past year. In November and
December 2005, three incidents were reported in which officials
or unidentified
assailants beat registered Catholic nuns or priests after they
demanded the return of church property. In April and May 2006,
officials began a campaign to increase control over registered
Catholic bishops. Officials detained, sequestered, threatened,
or exerted pressure on dozens of registered Catholic clerics to
coerce them into participating in the consecration of bishops
selected by the state-controlled Catholic Patriotic Association
but not approved by the Holy See. Government authorities also
restricted contact between registered clergy and the Holy See,
denying bishops permission to travel to Rome in September 2005
to participate in a meeting of Catholic bishops. Authorities
continued to permit some registered priests and nuns to study
abroad.
The Chinese government also strictly controls the practice
of Islam. Muslims face the same rigorous registration
requirements as other religious groups. The state-controlled
Islamic Association of China aligns Islamic practice to Party
goals by directing the training and confirmation of religious
leaders, the publication of religious materials, the content of
sermons, and the organization of Hajj pilgrimages, as well as
by indoctrinating religious leaders and adherents in Party
ideology and government policy.
The government severely represses Islamic practice in the
Xinjiang Uighur Autonomous Region (XUAR), especially among the
Uighur ethnic group. Local regulations in the XUAR impose
restrictions on religion that are not found in other parts of
China. The government's religious repression in the XUAR is
part of a broader policy aimed at diluting expressions of
Uighur identity and tightening government control in the
region. The government continues to imprison Uighurs who engage
in peaceful expressions of dissent and other non-violent
activities. Writer Nurmemet Yasin and historian Tohti Tunyaz
remain in prison for writing a short story and conducting
research on the XUAR.
The Chinese government continues to repress Chinese
Protestants who worship in house churches. From May 2005 to May
2006, the government detained nearly 2,000 house church
members, according to one U.S. NGO. Almost 50 percent of the
reported detentions of Protestant house church members and
leaders took place in Henan province, where the house church
movement is particularly strong. In June 2006, Pastor Zhang
Rongliang, the leader of one of China's largest house churches,
was sentenced to seven years and six months in prison for
``illegally crossing the national border'' and ``fraudulently
obtaining a passport.'' Authorities have detained or imprisoned
Pastor Zhang multiple times since 1976. Pastor Gong Shengliang
is serving a life sentence in declining health, and was beaten
in prison during the past year.
The Chinese government continues to maintain strict control
over the registered Protestant church. The RRA requires that
all Protestants worship at registered churches, regardless of
their differences in doctrine and liturgy. The state-controlled
Three-Self Patriotic Movement, which leads the registered
Protestant church in China, continues to impose a Party-defined
theology, called ``theological construction,'' on registered
seminaries that is intended to ``weaken those aspects within
Christian faith that do not conform with the socialist
society.'' In the past year, authorities detained a registered
Protestant pastor in Henan province for conducting a Bible
study meeting at a registered Protestant church outside his
designated geographic area.
The Chinese government continues to disrupt the
relationships that many house churches maintain with co-
religionists outside China, including raiding meetings between
house church leaders and overseas Protestants, and preventing
foreign travel by house church leaders. The Chinese government
also continues to restrict and monitor the ties between the
registered Protestant Church and foreign denominations.
Government persecution of the Falun Gong spiritual movement
continued during the past year. Authorities use both criminal
and administrative punishments to punish Falun Gong
practitioners for peacefully exercising their spiritual
beliefs. The state-controlled press has reported on at least
149 cases of Falun Gong practitioners currently in prison, but
Falun Gong sources estimate that up to 100,000 practitioners
have been detained since 1999. Manfred Nowak, UN Special
Rapporteur on Torture, reported after his November 2005 visit
to China that Falun Gong practitioners account for two-thirds
of victims of alleged torture by Chinese law enforcement
officers. Tsinghua University student Wang Xin was sentenced to
nine years' imprisonment in 2001 for downloading Falun Gong
materials from the Internet and printing leaflets.
Despite strict government controls on the practice of
religion, Chinese authorities accommodate the social programs
of Buddhist, Catholic, Daoist, Muslim, and Protestant
communities when these programs support Party goals. For
example, domestic Muslim civil society organizations carry out
social welfare projects, and international Muslim charities
have supported projects in Gansu and Shaanxi provinces, as well
as in the XUAR. The Amity Foundation, affiliated with the
registered Protestant Church, sponsors projects in social
services and development aid, including education, health care,
and care for the elderly.
The Chinese Constitution and national laws provide that men
and women should enjoy equal rights and list protections for
the economic and social rights of women, but vague language and
inadequate implementation hinder the effectiveness of these
legal protections. Some provincial and municipal governments
have passed regulations to strengthen the implementation of
national laws. A 2005 amendment to the Law on the Protection of
Rights and Interests of Women prohibits sexual harassment and
domestic violence, promotes a greater voice for women in the
government, and charges several government organizations with
responsibility for preventing human trafficking and
rehabilitating victims.
Civil society groups in China advocate on behalf of women's
rights within the confines of government and Party policy. The
All-China Women's Federation, a Party-led mass organization,
works with the Chinese government to support women's rights,
implement programs for disadvantaged women, and provide a
limited measure of legal counseling and training for women.
Women,
however, have limited earning power compared to men, despite
government policies that guarantee women non-discrimination in
employment and occupation.
The Chinese government strictly controls the reproductive
lives of Chinese women. Since the early 1980s, the government's
population planning policy has limited most women in urban
areas to bearing one child, while permitting many women in
rural China to bear a second child if their first child is
female. Officials have coerced compliance with the policy
through a system marked by pervasive propaganda, mandatory
monitoring of women's reproductive cycles, mandatory
contraception, mandatory birth permits, coercive fines for
failure to comply, and, in some cases, forced sterilization and
abortion. The Chinese government's population planning laws and
regulations contravene international human rights standards by
limiting the number of children that women may bear, by
coercing compliance with population targets through heavy
fines, and by discriminating against ``out-of-plan'' children.
Local officials have violated Chinese law by punishing
citizens, such as legal advocate Chen Guangcheng, who have
drawn attention to population planning abuses by government
officials.
Human trafficking remains pervasive in China despite
efforts by government agencies to combat trafficking, a
framework of domestic laws to address the problem, and ongoing
cooperation with international anti-trafficking programs. The
government's population planning policy has created a severe
imbalance in the male-female birth ratio, and this imbalance
exacerbates trafficking of women and girls for sale as brides.
Between 10,000 and 20,000 men, women, and children are victims
of trafficking within China each year, and NGOs estimate that
90 percent of those victims are women and children trafficked
for sexual exploitation. Authorities are working with the
International Labor Organization to build anti-trafficking
capacity and raise domestic awareness of the problem.
The Chinese government acknowledges the severity of China's
environmental problems and has taken steps to curb pollution
and environmental degradation. Since 2001, it has formulated or
revised environmental protection laws, administrative
regulations, and standards, and has worked to strengthen
enforcement of anti-pollution rules. The Chinese government has
also welcomed international technical assistance to combat
environmental degradation, and has increased cooperation with
the U.S. government on environmental protection over the past
year.
Despite these initiatives, local enforcement of
environmental laws and regulations is poor, and under funding
of environmental protection activities continues to hinder
official efforts to prevent environmental degradation. A lack
of transparency hampers the Chinese government's ability to
respond to civil emergencies, including environmental
disasters. Government efforts to impose greater control over
environmental civil society groups during the past year have
stifled citizen activism.
The central government strengthened its commitment during
the past year to address the severe shortage of affordable
health care in rural China. Since the collapse of the rural
public health infrastructure in the 1980s, the disparity in the
availability and affordability of health care between urban and
rural areas has increased. As a result, the medical needs of
China's rural poor, including the diagnosis and treatment of
infectious diseases, often go unaddressed. The government,
however, has pledged to accelerate the establishment of rural
health cooperatives and invest more than 20 billion yuan
(US$2.5 billion) over the next five years to modernize
hospitals, clinics, and medical equipment at the village,
township, and county levels.
The central government continued to take steps over the
past year to prevent and control the spread of HIV/AIDS.
Although the estimated number of HIV/AIDS cases nationwide has
decreased, health officials still consider the disease to be a
grave problem. Government efforts to prevent and control the
transmission of HIV/AIDS continue to face serious challenges,
as local implementation of national policy lags far behind
central government attention to the problem. Victims of HIV/
AIDS and other infectious diseases also continue to face
harassment and discrimination, despite legal protections.
Chinese public health officials have shown increased
commitment and responsiveness in their efforts to prevent and
control the spread of avian flu, and have taken steps to
improve government transparency following the mishandling of
the SARS epidemic in 2003. International health experts,
however, still consider China to be among the most likely
incubators of a potential human influenza pandemic. Central
government cooperation in sharing information and virus samples
with international health organizations has been inconsistent,
and international health organizations and central government
officials continue to express concern about the speed and
accuracy of local reporting on outbreaks among both humans and
poultry.
Since its implementation in the 1950s, the Chinese
household registration (hukou) system has limited the rights of
ordinary Chinese citizens to choose their permanent place of
residence, receive equal access to social services, and enjoy
equal protection of the law. Economic changes and relaxation of
some hukou controls have eroded previously strict limits on
citizens' freedom of movement, but these changes have also
exported a discriminatory urban-rural social division to
China's cities. Migrants who lack a local hukou for their new
city of residence face legal discrimination in employment,
education, and social services.
Chinese leaders called for reforms to the hukou system
during the past year. Central government interest in reform
stems not only from concern over migrant rights and economic
inequality, but also from concern over growing social
instability and a desire for stronger government control over
China's internal migrant population. New national goals for
hukou reform, like similar proposals implemented periodically
since the late 1990s, call for streamlined hukou categories,
elimination of discriminatory regulations on employment, and
improved migrant access to social services. Local governments
and urban residents have resisted reforms to the hukou system
because of the potential budgetary impact, fears of increasing
population pressure in cities, and discriminatory attitudes
toward migrants. Local opposition has limited the ability of
central government authorities to achieve national reform
goals.
The number of civil society organizations in China is
growing, with many organizations undertaking projects such as
poverty alleviation, faith-based social work, and legal efforts
to protect citizen rights. These organizations include national
mass organizations that the Party created and funds, smaller
citizen associations
registered under national regulations, and loose networks of
unregistered grassroots organizations. In February 2006, the
China Foundation for Poverty Alleviation selected six groups as
the first civil society organizations to receive Chinese
government funding to run experimental anti-poverty programs,
including the China office of a U.S.-based rural development
organization.
Central authorities seek to maintain control over civil
society groups, halt the emergence of independent
organizations, and prevent what they have called the
``Westernization'' of China. While recognizing the utility of
civil society organizations to address social problems, Chinese
authorities use strict regulations to limit the growth of an
independent civil society. Some Chinese citizens who attempt to
organize groups outside of state control have been imprisoned.
These include individuals who have attempted to establish
independent labor unions and political associations, such as
China Free Trade Union Preparatory Committee member Hu Shigen,
and China Democracy Party member Qin Yongmin; or young
intellectuals who organize informal discussion groups, such as
New Youth Study Group members Jin Haike, Xu Wei, Yang Zili, and
Zhang Honghai.
Chinese officials have taken additional steps to curtail
civil society organizations in the past year, but authorities
are undecided on how to proceed. Since early 2005, Ministry of
Civil Affairs (MOCA) officials have been researching a new
administrative system to monitor and control civil society
organizations. Many details of the new system are undetermined,
such as who will conduct the required evaluations of civil
society groups, how the evaluation results will be used, and
who will fund the evaluations. At the same time, Chinese
authorities have supported limited reforms to the status of
civil society organizations. MOCA officials are advocating
changes to the tax code to encourage private donations to civil
society organizations. Central Party officials have expressed
support for the creation of rural farmer cooperatives in annual
policy guidelines issued each year since 2004.
International human rights standards require effective
remedies for official violations of citizen rights. Despite
these guarantees, Chinese citizens face formidable obstacles in
seeking remedies to government actions that violate their legal
rights and constitutionally protected freedoms. External
government and Party controls continue to limit the
independence of the Chinese judiciary. Party officials control
the selection of top judicial personnel in all courts,
including the Supreme People's Court, China's highest judicial
authority. Since 2005, the government has restricted the
efforts of private lawyers and human rights defenders who
challenge government abuses. The All China Lawyers Association
issued a guiding opinion that restricts the ability of lawyers
to handle cases involving large groups of people. Local Chinese
authorities have imposed additional restrictions on lawyer
advocacy efforts.
The constitutional and administrative mechanisms in Chinese
law that allow citizens to challenge government actions do not
provide effective legal remedies, and Chinese citizens seldom
use them. Chinese citizens rarely submit proposals to the
National People's Congress for constitutional and legal review
because the review process lacks transparency and citizens
cannot compel review. Administrative court challenges to
government actions have not increased since 1998. Provincial
authorities report an overall decline between 2003 and 2005 in
applications for administrative reconsideration, and the total
numbers of such applications in major Chinese municipalities is
a few hundred per year.
Chinese law also permits citizens to petition government
officials directly to redress their grievances through the
``letters and visits'' (xinfang) system. Official news media
report that Chinese citizens presented 12.7 million petitions
to county-level and higher xinfang bureaus during 2005, in
contrast to the 8 million total court cases handled by the
Chinese judiciary during the same period. Local officials are
disciplined more severely for high incidences of petitioning.
Absent alternative political or legal channels to check the
power of local officials and obtain redress, this punishment
structure provides an incentive for Chinese citizens to take
their grievances to the streets in order to force local
officials to act. But this punishment structure also gives
local authorities an interest in suppressing mass petitions and
preventing petitioners from approaching higher authorities. A
December 2005 study of the xinfang system by a U.S. NGO found
that some local authorities have resorted to ``rampant violence
and intimidation'' to abduct or detain petitioners in Beijing
and force them to return home.
The Supreme People's Court 2004-2008 court reform program
imposes stronger external and internal controls that may
further weaken the independence of courts and judges. The court
reform program, however, also sets some positive long-term
goals for judicial reform in the areas of court financing,
adjudication, retrial procedures, and juvenile justice. Party
efforts to address growing
social unrest have resulted in new government programs to
strengthen institutions that assist citizens with legal claims
and disputes. Official Chinese statistics show that the number
of government legal aid centers rose from 2,774 in 2003 to
3,081 in 2005. The total number of cases handled by these
centers rose from about 166,000 in 2003 to an estimated 250,000
in 2005, or roughly 3 percent of all cases handled by the
Chinese courts in 2005.
In 2005, the Dalai Lama increased his efforts to explain
that he does not seek Tibetan independence from China. The
Dalai Lama's envoys traveled to China for a fifth round of
dialogue with Chinese officials in February 2006, relaying a
request to Chinese leaders to permit the Dalai Lama to visit
China as a religious pilgrim. Tibetans could benefit from full
implementation of the Regional Ethnic Autonomy Law, but the
lack of local self-government in Tibetan autonomous areas of
China creates mistrust in the dialogue and demonstrates that
authorities are not implementing this law.
The Chinese government favors accelerating implementation
of development initiatives, especially the Great Western
Development program, that already erode Tibetan culture and
heritage. The Qinghai-Tibet railway began passenger service in
July 2006, increasing Tibetan concerns about the railway's
potential effects on Tibetan culture and the environment.
Education levels among Tibetans are much lower than those of
ethnic Han Chinese, undermining the ability of Tibetans to
compete for employment and other economic advantages in an
emerging market economy that attracts an increasing number of
Han.
The Chinese government strictly limits the rights of
Tibetans to exercise the constitutionally guaranteed freedoms
of religion, speech, and assembly. Communist Party political
campaigns promote atheism and strengthen government efforts to
discourage
Tibetan aspirations to foster their unique culture and
religion. Chinese authorities have punished Tibetans, such as
Jigme Gyatso, a former monk imprisoned in 1996 who is serving a
17-year sentence and Choeying Khedrub, a monk serving a life
sentence since 2000, for peaceful expressions and non-violent
actions that officials believe could undermine Party rule. The
Commission's Political Prisoner Database listed 103 known cases
of current Tibetan political detention or imprisonment as of
August 2006, a figure that is likely to be lower than the
actual number of Tibetan political prisoners. Based on sentence
information available for 70 of the current prisoners, the
average sentence is approximately 10 years and 11 months.
The Chinese government forcibly repatriates North Korean
refugees facing starvation and political and religious
persecution in their homeland, contravening its obligations
under the 1951 Convention relating to the Status of Refugees
and its 1967 Protocol. Chinese authorities detained and
returned to the Democratic People's Republic of Korea (DPRK)
thousands of North Koreans in 2005. The government classifies
all North Koreans who enter China without documents as illegal
economic migrants and claims it must return them to the DPRK,
even though North Korean defectors meet the definition of
refugees under international law. Repatriated North Koreans
face long prison sentences, torture, and execution.
Without legal status, North Korean refugees in China are
vulnerable to abuse and exploitation. There are an estimated
20,000 to 50,000 North Koreans currently hiding in northeastern
China, and some NGOs estimate that the number of refugees is
much higher. The government refuses the UN High Commissioner
for Refugees (UNHCR) access to North Korean refugees, and fines
and imprisons humanitarian workers who assist North Koreans in
China.
Officials in Beijing met with UNHCR Antonio Guterres in March
2006 during the first UNHCR visit to China since 1997. In July
2006, the Chinese government for the first time allowed three
North Korean refugees to travel directly from the U.S.
Consulate in Shenyang, Liaoning province, to the United States
to seek asylum.
The people of Hong Kong continue to enjoy the benefits of
an independent judiciary and an open society in which the
freedoms of religion, speech, and assembly are respected. The
Commission strongly supports the provisions of the Basic Law
that provide for the election of the chief executive and the
entire Legislative Council through universal suffrage, and
highlights the importance of the central government's
obligation to give Hong Kong the ``high degree of autonomy''
promised in the Basic Law. The Commission notes, however, that
during the past year, no steps were taken that would move Hong
Kong closer to the ``ultimate aim'' of universal suffrage as
specified in the Basic Law.
The Hong Kong Special Administrative Region's
Constitutional Development Task Force issued its fifth report
in October 2005, which proposed modest measures to expand
citizen participation in selecting the chief executive in 2007
and forming the Legislative Council in 2008. A vigorous public
debate on the merits of the Task Force proposals, and their
lack of a timetable for universal suffrage, culminated in a
December 2005 march by tens of thousands to protest the slow
pace of democratization. Twenty-four Legislative Council
members voted against the report in late December, blocking its
passage. A last-minute package of adjustments offered by the
government did not meet the lawmakers' demand for a specific
timetable to realize universal suffrage.
The Chinese government has made progress in bringing its
laws and regulations into compliance with its World Trade
Organization (WTO) commitments. Although significant flaws
remain, the new body of commercial laws has improved the
business climate for foreign companies in China. With new, more
transparent rules, the Chinese trade bureaucracy has reduced
regulatory and licensing delays in many sectors. The Chinese
commercial regulatory regime remains, however, largely opaque
to both domestic and foreign businesses. When China joined the
WTO in December 2001, the government committed to establishing
an official journal that would publish drafts of trade-related
measures for notice and comment, and to publish trade-related
measures no later than 90 days after they become effective.
Although the government has acted to improve transparency, some
central government agencies and many local governments are not
consistent in publishing trade-
related measures in the official journal.
The Chinese government tolerates intellectual property
rights (IPR) infringement rates that are among the highest in
the world. The Chinese government has not introduced criminal
penalties sufficient to deter IPR infringement, and steps taken
by Chinese government agencies to improve the protection of
foreign intellectual property have not produced any significant
decrease in infringement activity. The Chinese government's
failure to provide effective criminal enforcement of IPR has
led foreign companies to turn to civil litigation to obtain
monetary damages or injunctive relief. Civil litigants continue
to find, however, that most judges lack the necessary training
and experience to handle IPR cases, and damage awards are too
low to be an effective deterrent.
Since acceding to the WTO, the Chinese government has used
technical, regulatory, and industrial policies, some of which
appear to conflict with its WTO commitments, to discriminate
against foreign producers and investors and limit their access
to the domestic market. U.S. rights holders and industry groups
have complained that the government's censorship regime serves
as a barrier to entry and encourages IPR violations. In 2005,
the American Chamber of Commerce in China wrote that censorship
clearance procedures severely restrict the ability to
distribute CD, VCD, and DVD products in China and provide an
``unfair and unnecessary advantage to pirate producers who
bring their products to market long before legitimate copies
are available for sale.''
III. List of Recommendations
The Commission is working to implement the recommendations
made in its 2002-2005 Annual Reports. Based on the information
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 Commission makes the following additional
recommendations to the President and the Congress for 2006:
Human Rights for China's Citizens
<bullet> The UN Human Rights Council held its first
session from June 19 to June 30 in Geneva. As a
responsible member of the international community and
one of the 47 members of the new Council, China must
abide by the international norms of behavior
articulated in the Universal Declaration of Human
Rights and international covenants, and submit to peer
review of its human rights record. The President and
the Congress should continue to urge the Chinese
government to ratify the International Covenant on
Civil and Political Rights, and to adopt such
legislative and other measures as may be necessary to
give effect to the rights recognized in the Covenant.
The President and the Congress should also encourage
the Council to fight human rights abuses and to speak
on behalf of Chinese prisoners of conscience who have
had their voices silenced, including: democracy and
labor activist Hu Shigen (imprisoned for helping to
establish an independent political party and trade
union), members Jin Haike, Xu Wei, Yang Zili, and Zhang
Honghai of the New Youth Study Group (imprisoned for
participating in a university discussion group), former
monk Jigme Gyatso (imprisoned for printing leaflets and
distributing posters), Uighur publisher Korash Huseyin
(imprisoned for publishing a short story), Uighur
writer Nurmemet Yasin (imprisoned for writing a short
story), democracy activist Qin Yongmin (imprisoned for
serving as a China Democracy Party spokesman), poet and
journalist Shi Tao (imprisoned for investigative
journalism), Uighur historian Tohti Tunyaz (imprisoned
for historical research), U.S. permanent resident and
democracy activist Yang Jianli (whose detention was
found to be arbitrary by the UN Working Group on
Arbitrary Detention), freelance writer Yang Tianshui
(imprisoned for writing articles critical of
authoritarian rule), labor rights activist Yao Fuxin
(imprisoned for rallying workers to seek back wages),
and New York Times researcher Zhao Yan (imprisoned for
investigative journalism).
<bullet> China's leaders say they are committed to
building a fair and just society based on the rule of
law, and, in an effort to control social unrest, have
moved toward strengthening government institutions that
assist citizens with legal claims. Over the past year,
however, prominent Chinese criminal and civil rights
defense lawyers who have worked to advance the
development of the rule of law under the rubric of
``rights defenders'' have met with government
intimidation, harassment, and imprisonment. The
President and the Congress should continue to discuss
with China's leaders the importance of an effective,
robust, and transparent legal defense in protecting
civil and political rights, and recall the 1998 UN
General Assembly declaration calling for the protection
of human rights defenders worldwide. The President and
the Congress should also continue to emphasize that
continued detention and imprisonment of rights
defenders such as Chen Guangcheng (sentenced in August
for speaking out against population planning abuses)
will only undermine the legitimacy of government
actions and of China's developing legal system. A full
commitment to the rule of law will also require the
Chinese government to cease its harassment,
surveillance, and abuse of citizens such as legal
advocates Guo Feixiong and Zhao Xin, who have suffered
repeated violence for working peacefully to defend
citizen rights, and to allow courageous lawyers such as
Gao Zhisheng and Zheng Enchong to resume their
important legal advocacy.
<bullet> The future of Tibetans and their religion,
language, and culture depends on fair and equitable
decisions about future policies that can only be
achieved through dialogue. The Dalai Lama is essential
to this dialogue. To help the parties build on dialogue
held during visits by the Dalai Lama's representatives
each year since 2002, the President and the Congress
should continue to urge the Chinese government to
invite the Dalai Lama to visit China, so that he can
see for himself the changes and developments in China,
and so that he can seek to build trust through direct
contact with the Chinese leadership.
<bullet> Rapid economic development without effective
environmental safeguards has resulted in severe
environmental degradation throughout China, poor air
and water quality in many areas, and increased risk of
disease. The Chinese government has acknowledged the
severity of China's environmental problems and has
taken steps to curb pollution. The United States and
China share a common interest in protecting the
environment, and the Chinese government has welcomed
international technical assistance to combat
environmental degradation. The President and the
Congress should discuss with China's leaders the
importance of citizen activism in protecting the
environment and in challenging governments to provide
clean air and drinking water. The President and the
Congress should also provide funding to support the
full range of activities envisioned in new Sino-U.S.
bilateral and international efforts to protect the
environment like the Joint Committee on Environmental
Cooperation and the Asia-Pacific Partnership on Clean
Development and Climate.
<bullet> The Chinese government continues to apply
vague criminal and administrative provisions to justify
detentions based on an individual's political opinions
or membership in religious, ethnic, or social groups.
These provisions allow for the targeting and punishment
of activists for crimes that ``endanger state
security'' or ``disturb public order'' under the
Criminal Law. They also allow for administrative
detention for ``minor crimes'' in centers where
prisoners can be subjected to forced labor without
judicial review and the procedural protections
guaranteed by the Constitution and Criminal Procedure
Law. The President and the Congress should raise these
issues in discussions with UN oversight agencies and
the Chinese government, and recommend that the Criminal
Law be amended to define these crimes in precise terms,
and to create exceptions for the peaceful exercise of
fundamental rights guaranteed under the Chinese
Constitution and international declarations and
treaties. The President and the Congress should also
recommend that the administrative detention system be
reformed to conform to international law, including the
abolition of forced labor practices. Reforms should
ensure that Chinese citizens have the opportunity to
dispute any alleged misconduct and contest law
enforcement accusations of guilt before an independent
adjudicatory body.
Freedom for Religious Believers in China
<bullet> Freedom of religion is a fundamental human
right. The freedom to believe and to practice one's
religion includes the right of religious adherents to
interact freely with their co-religionists abroad, and
to choose where they worship, who will teach them, the
texts they study, and whom they accept as their
leaders. The President and the Congress should continue
to foster the development of freedom of religion in
China by encouraging the Chinese government to
recognize that this freedom includes the right of
Tibetan Buddhists to freely express their religious
devotion to the Dalai Lama, of Chinese Catholics to
worship with bishops selected by the Holy See, of
Muslims to participate in religious pilgrimages without
government interference, of Protestants to worship in
house churches, and of adherents of spiritual belief
systems, like Falun Gong, to freely practice their
beliefs. In addition, the President and the Congress
should continue to encourage the Chinese government to
end the harassment, detention, and abuse of leaders and
members of unregistered religious organizations; raise
cases of religious imprisonment with the Chinese
government; and call for the immediate release of
religious prisoners of conscience, including house
church pastor Cai Zhuohua (imprisoned for printing and
giving away Bibles), Tibetan monk Choeying Khedrub
(sentenced to life imprisonment for printing leaflets),
South China Church leader Gong Shengliang (sentenced to
life imprisonment based on tortured confessions),
Catholic bishop Jia Zhiguo (detained for unauthorized
Catholic ministry), Catholic bishop Su Zhimin (held
incommunicado since 1997), and Tsinghua University
student and Falun Gong practitioner Wang Xin
(imprisoned for downloading Internet materials). The
President and the Congress should also continue to urge
the Chinese government to allow the UN Special
Rapporteur on Religious Intolerance to visit China
without conditions, as the Chinese government has
committed to the U.S. government and to the Special
Rapporteur.
<bullet> Chinese central government policy, and some
local regulations, only recognize five government-
defined religions. This restriction is neither
contained in national law nor in China's new Regulation
on Religious Affairs. In some parts of China,
Protestant communities that are not affiliated with the
state-controlled patriotic religious association have
been allowed to register with the government. Although
the government does not recognize Orthodox Christianity
as a religion, some Orthodox communities in China have
registered with a local government. These are welcome
developments, but they have been limited in scope. The
President and the Congress should continue to encourage
the Chinese government to eliminate its policy
restrictions on religion and to guarantee citizens
freedom of thought, conscience, religion, and belief in
accordance with Article 18 of the Universal Declaration
of Human Rights; to allow all religious and spiritual
groups to form independent organizations and practice
their faith free from interference by the government
and state-controlled religious associations; to remove
registration requirements or amend them so that the
government does not have the discretion to deny
registration to certain groups; and to provide
protections for individuals who choose to worship
outside the framework of organized
religion.
Labor Rights for China's Workers
<bullet> Working conditions in China remain poor, and
Chinese workers are often unaware of the national laws
that protect their rights. The U.S. Department of Labor
has been working with the Chinese Ministry of Labor and
Social Security and the State Administration of Work
Safety to implement activities that focus on such labor
issues as occupational and mine safety and health, wage
and hour law administration, and education for Chinese
workers about national labor laws. The President and
the Congress should support expansion of these
cooperative activities to improve labor conditions for
Chinese workers. The President and the Congress should
also raise with Chinese leaders the critical role that
independent unions can play in achieving safer
workplaces, pressing factory owners to pay workers
fully and on time, and reducing accidents and
countering official corruption in the mining sector.
<bullet> Human trafficking is a serious problem in
China. The government is cooperating with the
International Labor Organization's (ILO) Special Action
Program to Combat Forced Labor to strengthen the law
enforcement aspects of the trafficking cycle, but
government institutions lack the knowledge and capacity
to combat these practices effectively. China's Criminal
Law does not specifically address the issue of human
trafficking as it relates to forced labor, and although
the Labor Law outlaws forced labor practices in the
workplace, it only provides light penalties for
violators. The President should continue to support,
and the Congress should continue to fund, U.S.
assistance to the ILO's cooperative programs with China
on forced labor and trafficking; should urge the
Chinese government to ratify the two protocols to the
UN Convention against Transnational Organized Crime
concerning trafficking in persons and smuggling of
migrants; and should encourage bilateral discussions on
ways that government agencies, domestic law, and
employers and business groups can deter human
trafficking more
effectively.
Free Flow of Information for China's Citizens
<bullet> The National People's Congress is considering
a draft ``Law on the Handling of Sudden Incidents''
that, in its current form, restricts domestic and
foreign news media reporting on natural and man-made
disasters. If passed, this law would not only impose a
prior restraint on the press that is inconsistent with
international human rights standards, but also impede
the efficiency of the Global Public Health Intelligence
Network, an electronic surveillance system used by the
World Health Organization to monitor the Internet for
reports of communicable diseases and communicable
disease syndromes. The President and the Congress
should continue to raise with China's leaders the
global nature of public health emergencies, the
importance of complete transparency in the
administration of public health, and the importance of
an unimpeded press in monitoring government performance
on public health and providing critical information to
the public in a timely manner.
<bullet> The Chinese government uses technology, prior
restraints, intimidation, detention, imprisonment, and
vague and arbitrarily applied censorship regulations to
suppress free expression and control the news media.
Because the government
restricts the free flow of information, many Chinese
citizens are unaware that official censorship policies
violate their rights to freedom of speech and freedom
of the press. The President and the Congress should
urge the Chinese government to eliminate prior
restraints on publishing, cease detaining journalists
and writers, stop blocking foreign news broadcasts and
Web sites, and specify precisely what kind of political
content is illegal to publish. The President should
propose, and the Congress should appropriate, funds to
support U.S. programs to develop technologies that
would help Chinese citizens access Internet-based
information currently unavailable to them, as well as
educational materials about their rights under
international law to freedom of speech and freedom of
the press.
Rule of Law and the Development of Civil Society
<bullet> Chinese officials have taken additional steps
in the past year to curb the growth of China's emerging
civil society. Ministry of Civil Affairs officials are
currently researching a new administrative system to
supervise, control, and ``rate'' civil society
organizations. Many details of the plan, such as who
will conduct the evaluations and how the results will
be used, are not yet determined. The President and the
Congress should encourage bilateral discussion on the
issue of official control over civil society
organizations; reiterate statements made by Chinese
officials and scholars regarding the important role
independent civil society organizations can play in
resolving
conflict, protecting citizen rights, and maintaining
social stability; and encourage the Chinese government
to take steps that would promote the development of an
independent civil society, such as removing the sponsor
organization requirement.
<bullet> The Chinese government forcibly repatriates
North Koreans seeking refuge in China and denies the
Office of the UN High Commissioner for Refugees (UNHCR)
access to this vulnerable population, contravening its
obligations under the 1951 Convention relating to the
Status of Refugees and its 1967 Protocol, as well as
the Chinese government's 1995 Agreement with the UN.
The State Council is currently considering new
Regulations on the Administration of Refugees. These
regulations could provide new protections for the
vulnerable North Korean refugee population, but little
is known about their contents. The President and the
Congress should continue to press the Chinese
government to immediately cease repatriation of North
Korean refugees and grant the UNHCR unimpeded access to
screen North Korean refugee petitions. The President
and the Congress should also encourage the Chinese
government to be transparent as it progresses in
drafting and adopting its new regulations on refugees,
and to work closely with the UNHCR to ensure that this
legislation will protect North Korean refugees in full
accordance with international law.
<bullet> Abuse of power by local police forces remains
a serious problem throughout China. The Supreme
People's Procuratorate has acknowledged the existence
of continuing and widespread abuses in law enforcement,
including illegal extended detentions and torture. The
President and the Congress should work to expand
programs, such as funding a permanent Resident Legal
Advisor at the U.S. Embassy in Beijing, that will help
foster dialogue between Chinese and U.S. counterparts,
and encourage Chinese procuratorates to exercise
greater oversight over police abuses. These programs
should encourage the Chinese government to continue
reform efforts such as providing criminal defense
lawyers with greater access to their clients and case
files, audio and video taping law enforcement
interrogations of criminal suspects, and excluding
evidence at trial that was obtained through torture or
other illegal means.
<bullet> Upon joining the World Trade Organization
(WTO), the Chinese government committed to increasing
regulatory transparency, improving the protection of
intellectual property rights, and ensuring non-
discrimination in administering trade-related measures.
The government has achieved incremental improvements in
regulatory transparency since WTO accession, but
continues to tolerate rampant infringement of
intellectual property rights. In addition, government
industrial policies promote and protect many domestic
industries, in some cases in a manner that appears to
contravene China's WTO commitments. The President and
the Congress should continue to urge the Chinese
government to ensure that relevant authorities publish
all measures affecting trade in a timely manner; to
enact and impose criminal and civil penalties severe
enough to deter intellectual property infringement; and
to
remove all non-prudential barriers to U.S. and other
foreign participation in those market sectors governed
by WTO commitments.
The Commission's Executive Branch members have participated
in and supported the work of the Commission, including the
preparation of this report. The views and recommendations
expressed in this report, however, do not necessarily reflect
the views of individual Executive Branch members or the
Administration.
This report was approved by a vote of 22 to 1.<dagger>
IV. Introduction
Domestic Challenges Growing Out of Economic Restructuring
Since the beginning of the ``reform and opening up'' period
in 1978, Chinese government policies have raised the national
standard of living and lifted more than 400 million citizens
out of extreme poverty, according to Chinese and World Bank
statistics. This is an impressive achievement. But as incomes
have risen, so too have inequalities created by economic
restructuring policies that have favored urban over rural
development. In 2005, the average income of China's urban
residents was more than three times that of rural residents, an
increase from two and one-half times in 1978. China's ethnic
minorities, who live primarily in rural areas, constitute less
than 10 percent of China's population, but represent more than
40 percent of the nation's poorest citizens. The government
also faces a growing population of new urban poor. Millions of
Chinese citizens who lost their jobs and pensions because of
the collapse of state-owned enterprises have not found new
jobs. In addition, many rural to urban migrants survive in the
low-wage informal economy without access to public services of
any kind.
Chinese leaders face enormous domestic challenges. The
government estimated that it needs to create 25 million new
urban jobs in 2006 just to keep unemployment levels in check.
The dual problems of urban unemployment and growing rural-urban
inequality have created diverse and competing societal
interests that increasingly clash, fueling social unrest
throughout China, and complicating the government's efforts to
find solutions. Officials reported that ``disturbances of
public order'' rose to a total of 87,000 in 2005, a 6.6 percent
increase over the figure in 2004. Citizen protests broke out in
several provinces during the past year over land
expropriations, official corruption and abuse, low wages and
poor working conditions in factories, and environmental
degradation. In September 2005, police clashed with hundreds of
residents in Taishi village, Guangdong province, over citizen
attempts to remove a local official from office for embezzling
land compensation funds. In October, police in Chongqing
municipality broke up one of the largest worker protests in
China in more than a decade. In December, forces from the
paramilitary People's Armed Police shot at thousands of
villagers and killed as many as 20 in Shanwei city, Guangdong
province, in response to protests against the pollution and
displacement caused by construction of a power plant. In July
2006, hundreds of citizens rioted in Guiyang city, Guizhou
province, after officials beat a migrant worker lacking a
temporary residence permit.
Rural Inequality and Social Unrest
Concerns about mounting social unrest because of rural-
urban inequality have reached the top levels of the Chinese
leadership. In late 2005, Premier Wen Jiabao warned senior
rural bureaucrats that more violence would result if they
continued to commit the ``historic mistake'' of failing to
protect farmers and their lands. Party and government leaders
used the first major policy document of 2006 to announce a
campaign for ``construction of a new socialist countryside.''
This campaign seeks to address the growing inequalities between
rural and urban residents and commits the central government to
increasing services to rural areas in health, education, and
employment. In March, Wen told the National People's Congress
(NPC) that the central government will invest more than 20
billion yuan (US$2.5 billion) over the next five years to
modernize hospitals, clinics, and medical equipment at the
village, township, and county levels. Chinese officials also
promised to spend 218 billion yuan (US$27.25 billion) over the
next five years to improve rural education. In January, the
central government stopped levying agricultural and livestock
taxes on farmers in an effort to boost rural incomes. Although
Chinese authorities remain sensitive to farmers' efforts to
organize collectively to protect their interests, central
policy documents issued each year since 2004 have given a
limited degree of support to establishing farmer cooperatives,
and the 2006 legislative calendar for the NPC contains a
proposal for a national law on these organizations.
The central government has also called for increased
protections for the rights of migrant workers as part of its
effort to increase social stability. The Central Party
Committee and State Council issued a joint circular on social
stability in October 2005 calling, in part, for greater
protections of migrant rights and the creation of a permanent
mechanism to address worker claims for unpaid wages, a problem
that disproportionately affects migrants. China's Communist
Party-led labor union federation responded to the new central
government mandate by creating programs to help migrants avoid
abuse and exploitation by employers. In the past year, the
labor union federation has announced new programs to assist
migrants in signing labor contracts with employers, recovering
unpaid wages, improving work safety, and securing legal aid and
job training. Concerns over social unrest growing out of rural-
urban inequality also have compelled the government to consider
reforming some of the political tools it has used to control
society. Chinese
authorities announced in October 2005 that they were
considering national reforms to the Chinese household
registration (hukou) system, and have taken steps to remove
restrictions on migrant
employment in urban areas.
Political and Religious Repression and Social Unrest
The largely positive government response to social unrest
growing out of rural inequality stands in sharp contrast to the
government response to citizen grievances over political and
religious repression. The Chinese government has punished
citizens who press for change and challenge government abuses,
in disregard of the peaceful nature of their activities and in
contravention of international human rights standards. The same
October joint circular that detailed positive measures to help
migrants and the rural poor also called for stronger controls
over society. The central government has imposed
countermeasures to rein in the Chinese press and to exercise
greater control over the Internet. Officials are currently
evaluating new measures to control civil society organizations.
Party officials have warned about foreign ``hostile forces''
that push for ``color revolutions'' and ``infiltrate'' the
press, civil society, the legal profession, and the Uighur and
Tibetan autonomous areas of China.
In the absence of a free press, civil society, democratic
governance, and other mechanisms to allow citizens to press for
change, Chinese human rights defenders have used legal advocacy
and civil disobedience to promote democracy and the development
of the rule of law. Wang Yi, a Chinese law professor and rights
defender, said at a May 3 Congressional Human Rights Caucus
roundtable, ``If even the rights defense movement cannot
succeed, then there is really no hope for China.'' In February,
Beijing lawyer and rights defender Gao Zhisheng began a hunger
strike relay following months of government violence against
large numbers of Chinese citizens. The hunger strike called
attention to the illegal persecution and violent beatings of
many groups in China, including workers, farmers,
intellectuals, religious believers, petitioners, activists, and
journalists. These groups suffered from government repression
despite having maintained a strict policy of peaceful protest
against government abuses. In response to his citizen activism
and peaceful defense of basic human rights, authorities
stripped Gao Zhisheng of his ability to practice law, targeted
him for government intimidation and harassment, and accused him
of criminal activity.
The Chinese government's repressive measures threaten the
Party's goal of maintaining social stability. The failure to
provide effective mechanisms for citizens to voice their
grievances and protect their civil and political rights fuels
citizen anger and ultimately unrest, the very condition that
China's leaders are seeking to prevent. Such a result can only
undermine China's progress. Freedom of the press, a vibrant
civil society, and democratic governance are the primary means
for keeping officials accountable to the citizens they serve.
They are also the essential building blocks for any long-term
and successful system of government.
V. Monitoring Compliance with Human Rights
V(a) Special Focus for 2006: Freedom of Expression
findings
<bullet> Government censorship, while not total, is
pervasive and highly effective, and denies Chinese
citizens the freedoms of speech and of the press
guaranteed to them in the Chinese Constitution. The
government has imprisoned journalists who provide news
to foreigners, such as Zhao Yan, Shi Tao, and Ching
Cheong. Editors of publications that criticize
government policies, such as Yang Bin of the Beijing
News and Li Datong of the China Youth Daily, have been
dismissed. The government blocks the Web sites and
radio and television broadcasts of foreign news
organizations, such as those of the British
Broadcasting Corporation, Radio Free Asia, and the
Voice of America. In 2005, the government banned dozens
of newspapers and confiscated almost one million
``illegal'' political publications. Beginning in May
2005, the government blocked the Commission's Web site
from being viewed in China.
<bullet> Modern telecommunications technologies such as
the Internet, cell phones, and satellite broadcasts
allow Chinese citizens access to more information
sources, both state-controlled and non-state-
controlled. But government restrictions on news and
information media, including on these new information
sources, do not conform to international human rights
standards for freedom of expression. The Chinese
government imposes a strict licensing scheme on news
and information media that includes oversight by
government agencies with discretion to grant, deny, and
rescind licenses based on political and
economic criteria. The Chinese government's content-
based restrictions include controls on political
opinion and religious literature that are not
prescribed by law, and whose primary purpose is to
protect the ideological and political dominance of the
Communist Party.
<bullet> The government's restrictions on religious
literature do not conform to international human rights
standards. Only government-licensed printing
enterprises may print religious materials, and then
only with approval from both the provincial-level
religious affairs bureau and the press and publication
administration. In addition to confiscating religious
publications, the Chinese government also has fined,
detained, and imprisoned citizens for publishing,
printing, and distributing religious literature without
government permission. Cai Zhuohua, a house church
pastor in Beijing, and two of his family members were
imprisoned in 2005 for printing and giving away Bibles
and other Christian literature. In Anhui province,
house church pastor Wang Zaiqing was arrested in May
2006 on the same charges.
Government Censorship in China
Government censorship in China, while not total, is
pervasive and highly effective, and denies Chinese citizens the
freedom of the press guaranteed to them in the Chinese
Constitution.\1\ As 13 Chinese scholars, lawyers, and editors
wrote in a letter to Chinese President Hu Jintao after the
Communist Party's Central Propaganda Department (CPD) shut down
a popular news weekly in February 2006, the CPD ``manipulates
and controls the range of speech, and it has become the sole
criterion for measuring truth.'' \2\ Another group, composed of
13 former senior government, Party, and news media officials,
wrote in an open letter regarding the same event that the CPD
has ``stripped away freedom of speech in order to quash public
opinion.'' \3\
The Chinese government has imprisoned journalists who
provide news to foreigners, such as Zhao Yan, Shi Tao, and
Ching Cheong. Editors of publications that criticize government
policies, such as Yang Bin of the Beijing News and Li Datong of
the China Youth Daily, have been dismissed. The government
blocks the Web sites and radio and television broadcasts of
foreign news organizations, such as those of the British
Broadcasting Corporation, Radio Free Asia, and the Voice of
America. In 2005, the government banned dozens of newspapers
and confiscated almost one million ``illegal'' political
publications. Beginning in May 2005, the government blocked the
Commission's Web site from being viewed in China. The heads of
government and Party agencies responsible for enforcing China's
media regulations emphasize press control, not press freedom:
<bullet> Liu Yunshan, director of the CPD, told
attendees at the National Propaganda Directors Seminar
in August 2005 that they should increase their
supervision of the media, impose content controls
earlier in the editorial process, and coordinate the
application of administrative, economic, legal,
ideological, and other controls.\4\ In a speech to the
same group the previous year, Liu said that no change
to the role of the news media as the mouthpiece of the
Party, or the Party's supervision of the media, would
be tolerated.\5\
<bullet> Long Xinmin, Director of the General
Administration of Press and Publication (GAPP), said in
a speech to the National Press and Publication
Directors Conference in December 2005 that Party
leaders had ordered press and publication officials to
increase their administration of press and publishing.
Long said that the key was to strengthen the leadership
of the Party and establish a ``grand cadre'' of
``politically strong'' press and publication
workers.\6\
<bullet> Liu Yuzhu, head of the Ministry of Culture's
Market Department, wrote in the January 2005 edition of
Seeking Truth, the official journal of the Chinese
Communist Party Central Committee, that Web sites
located in foreign countries such as the United States
represent a threat to China's political structure. He
encouraged increased censorship of foreign Web sites
and called on domestic Web site operators to step up
their self-censorship.\7\
Despite pervasive censorship, state control of domestic
news media is now less severe than before the ``reform and
opening up'' period began in the late 1970s. Modern
telecommunications technologies such as the Internet, cell
phones, and satellite broadcasts allow Chinese citizens access
to more information sources, both state-controlled and non-
state-controlled. More information is also available as a
result of a dynamic domestic newspaper and book publishing
industry. China also has a thriving underground publishing
industry, and citizens may easily purchase many banned books
from unlicensed publishers and retailers.\8\ By forcing
unlicensed publishers to break the law, however, the government
erodes respect for intellectual property rights and the rule of
law because illegal publishers are also de facto copyright
violators (the illegal works are ``pirated,'' and authors
cannot collect royalties on them) and must bribe officials to
keep operating.
Chinese leaders and officials maintain that citizens enjoy
freedom of the press, and that government restrictions on that
freedom conform to international standards.\9\ While the Party
does not screen content before publication to the same degree
as in the past, the government continues to impose
administrative restrictions on who may publish and what they
may publish (``prior restraints'') that do not conform to the
international human rights standards set forth in the Universal
Declaration of Human Rights\10\ and the International Covenant
on Civil and Political Rights (ICCPR).\11\ These standards
require the elimination of registration systems for the print
media that grant government agencies the discretion to approve,
deny, or rescind licenses based on the political and financial
qualifications of the applicant (``licensing schemes'').\12\
These standards also prohibit government restrictions on the
publication of political and religious ideas and information,
other than restrictions that are both prescribed by law and
necessary to protect an important state interest (``content-
based restrictions''). As two Chinese legal scholars noted in
their study of the ICCPR:
This principle [that the ICCPR prohibits prior
restraints] requires that government power may not be
employed to suppress expressive activities before they
are carried out, and no licensing measures or
ideological
content restrictions may be imposed on speech, books,
periodicals, or radio or television programs prior to
their dissemination, publication, distribution, or
broadcast.\13\
The Chinese government imposes a strict licensing scheme on
all newspaper, magazine, and book publishing and printing
(public and private, for-profit and non-profit). The government
uses this licensing scheme, as well as post-publication
punishments, to enforce content-based restrictions that include
prohibitions on the publication of political opinion and
religious literature. These content-based restrictions on
political opinion and religious literature are neither
prescribed by law nor necessary to protect a legitimate state
interest. Government and Party leaders state that these
restrictions are intended to protect the ideological and
political dominance of the Party.
Government Licensing for Print Media
Article 19 of the Universal Declaration of Human Rights and
Article 19 of the International Covenant on Civil and Political
Rights provide that people enjoy the right to seek, receive,
and impart information and ideas through any media and
regardless of frontiers. The Chinese government's licensing
scheme for print media does not conform to international
standards for freedom of the press. Although no absolute
international standard prescribes what constitutes freedom of
the press, international human rights standards set forth a
minimum prerequisite: no legal system can be said to respect
freedom of the press if it subjects the print media to any
prior restraint through a licensing scheme. In 2003, the UN
Special Rapporteur on Freedom of Opinion and Expression, the
Organization for Security and Cooperation in Europe (OSCE)
Representative on Freedom of the Media, and the Organization of
American States (OAS) Special Rapporteur on Freedom of
Expression issued a joint declaration saying that licensing
schemes are unnecessary and subject to abuse.\14\ Many nations,
both developed and developing, have abolished licensing schemes
for the print media. For example, the constitutions of many
countries, including those of Brazil and South Korea,
explicitly prohibit licensing schemes.\15\ In other countries,
such as the United States and India, the right to publish
without first having to obtain government authorization is
protected through a combination of constitutional and court-
made law.\16\ In those countries with registration
requirements, such as Sweden and the United Kingdom, the
government does not have the discretion to refuse
registration.\17\
The Chinese government, like a number of governments in
other countries, including Ethiopia,\18\ Iran,\19\ Jordan,\20\
Syria,\21\ Uzbekistan,\22\ and Yemen,\23\ imposes a strict
licensing scheme on the print media.\24\ No one may legally
publish a book, newspaper, or magazine in China unless they
have a license from the General Administration of Press and
Publication (GAPP).\25\ Chinese law requires that every book,
newspaper, and magazine have a unique serial number, and the
GAPP maintains exclusive control over the distribution of these
numbers.\26\ GAPP officials have explicitly linked the
allotment of book numbers to the political orientation of
publishers.\27\ The Chinese government's licensing scheme
includes substantive conditions on who may publish. To obtain a
license to publish news, applicants must have a government
sponsor.\28\ Although the average annual income in China is
less than 10,000 yuan (US$1,250),\29\ the government also
restricts the right to publish to those who can afford to
invest at least 300,000 yuan (US$37,500) in registered
capital.\30\ The Chinese government says that its licensing
scheme is necessary to regulate the publishing market,\31\ but
such reasoning does not conform to international human rights
standards.\32\
Chinese authorities banned 79 newspapers and periodicals
and seized 169 million publications in 2005.\33\ From 2003 to
2005, the government canceled the registrations of 202 news
bureaus and shut down 73 others.\34\ Other examples of the
government using its licensing authority to violate citizens'
freedom of the press in the past year include:
<bullet> In August 2005, GAPP officials in Luliang
city, Shanxi province, banned the Luliang Weekly, shut
down its editorial
department, and dismissed its staff. Officials imposed
these sanctions because the weekly had been published
without government authorization, and ``the articles it
carried were mostly negative reports, which severely
violated relevant national regulations, and which had
an adverse effect on society.'' \35\
<bullet> In September 2005, the Hunan provincial
government shut down the news bureaus of four
publications established without government
permission.\36\
<bullet> Also in September 2005, the Chinese government
reported that no illegal political materials had been
published in the Inner Mongolia Autonomous Region city
of Wuhai since 2002.\37\ The report attributed the city
government's ``success'' in part to a rigorous training
regime for publishers and printers and the fact that
authorities had closed 12 illegal printing enterprises.
The report said officials conducted daily inspection
tours and surprise raids to stop unauthorized
publications from entering or leaving the city.
In addition to these administrative measures, Chinese
authorities have used Article 225 of the Criminal Law, which
defines operating a publishing business without government
permission as an illegal business activity,\38\ to fine and
imprison publishers:
<bullet> In January 2004, authorities in Anhui province
sentenced two men to prison terms of nine and seven
years for publishing collections of love poems.\39\
<bullet> In September 2004, a court in Xinxiang county,
Henan province sentenced Wang Lelan, a farmer who had
purchased two printing presses, to five years'
imprisonment and an 8,000 yuan (US$1,000) fine for
publishing ``illegal books'' such as ``China's Top
Level'' and ``Confidential Exclusive News.'' \40\
<bullet> In August 2005, a court in Beijing sentenced
the head of the Beijing representative office of Hong
Kong's Credit China International Media Group Limited
to three years' imprisonment for publishing the
magazine ``Credit China'' without government
authorization.\41\
New rules governing the publication of newspapers and
magazines in China went into effect in December 2005.\42\ In
addition to restricting the right to publish newspapers and
magazines to government licensees, the rules also establish
post-publication content screening and review systems. The
rules require provincial-level GAPP offices to submit regular
written reports to the GAPP and conduct annual ``verification
and examination'' reviews. The rules stipulate that publishing,
printing, and distribution enterprises may not provide services
to any newspaper or magazine unless they have passed the
previous year's inspection. The rules also require each
newspaper and magazine publisher to submit regular reports to
the GAPP, as well as annual ``self-examination reports'' with
copies of its most recently published editions. The rules
require the GAPP to assess the ``publishing quality'' of
newspapers and magazines, and empower it to take the following
actions against any publisher whose contents it deems incorrect
or in violation of regulations:
<bullet> order it to cease publication and
distribution;
<bullet> order it to retract entire editions;
<bullet> order supervising and sponsoring government
agencies to ``rectify'' the publisher;
<bullet> revoke its publishing license.
The Chinese government's press licensing scheme also
extends to the Internet. According to the state-run media:
Since 1996, 14 agencies, including the Central
Propaganda Department, State Council Information
Office, Ministry of Public Security, Ministry of
Culture, and the
General Administration of Press and Publication have
participated in the administration of the Internet,
have promulgated nearly 50 laws and regulations, and
have put
together the world's most extensive and comprehensive
regulatory system for Internet administration. One
scholar who specializes in researching Internet Law
[said] China's emphasis on, and effectiveness of
administration over, the problem of Internet security
is ``rare in this world.'' \43\
The government requires all Web sites in China to be either
licensed by, or registered with, the Ministry of Information
Industry (MII).\44\ Web sites that fail to register or obtain a
license may be shut down and their operators fined.\45\ As part
of the registration process, the MII requires anyone who posts
news on a Web site to confirm that the Chinese government has
authorized him or her to do so.\46\ According to the OpenNet
Initiative, ``In large measure, the registration regulation is
designed to induce website owners to forego potentially
sensitive or prohibited content, such as political criticism,
by linking their identities to that content. The regulation
operates through a chilling effect.'' \47\ In August 2005, the
state-controlled news media reported that over 700,000 Web
sites had registered,\48\ and that authorities had shut down a
``large number of Web sites,'' using ``specialized software to
render them inaccessible.'' \49\ In December 2005, the MII
issued a notice to Internet service providers saying, ``The
campaign to rectify unregistered Web sites has entered a period
of severe sanctions,'' and demanded they shut down all
unregistered Web sites.\50\
In September 2005, the MII and the State Council
Information Office promulgated new rules tightening the
government's control over Internet news services.\51\ These
rules prohibit anyone from using the Internet to post or
transmit news reports or commentary relating to politics and
economics, or military, foreign, and public affairs, without a
government license. Chinese authorities used these rules to
shut down at least five Web sites before the annual plenary
sessions of the National People's Congress and the Chinese
People's Political Consultative Conference, which concluded in
March 2006.\52\
The MII crackdown coincided with a similar crackdown on the
Internet by branches of China's Ministry of Public Security
(MPS) in major cities.\53\ Throughout 2005 and 2006, public
security bureaus in cities such as Beijing, Guangzhou, and
Chongqing ordered Web sites to register with public security
authorities or be shut down. In addition, in December 2005, the
MPS promulgated new rules\54\ requiring Internet portals, Web
sites, Web logs (``blogs''), and hosting services to record and
retain any content that news providers post on their Web sites,
as well as the time it was posted.
Finally, the Chinese government instituted a licensing
scheme for journalists in 2005,\55\ even though such schemes
are incompatible with international human rights standards for
freedom of the press.\56\ In January 2005, the GAPP issued two
new regulations limiting ``lawful'' news gathering and
editorial activities to government-licensed journalists.\57\ In
March 2005, the GAPP, Central Propaganda Department, and State
Administration of Radio, Film, and Television (SARFT) jointly
issued new rules specifying that journalists and editors must
``support the leadership of the Chinese Communist Party,
support the socialist system . . ., respect the Party's news
propaganda discipline, [and] protect the interests of the Party
and the government.'' \58\ SARFT used its authority to accredit
television hosts to shut down the television show of well-known
economist Lang Xianping (also known as Larry Lang) in February
2006 on the grounds that he lacked required government
certification.\59\
Restrictions on Political and Religious Publishing
The Chinese government's restrictions on the publication of
political opinion and religious literature do not conform to
international human rights standards for freedom of the press
and freedom of religion. Article 19 of the Universal
Declaration of Human Rights and the same article of the
International Covenant on Civil and Political Rights (ICCPR)
provide that people enjoy the right to publish ``information
and ideas,'' and the ICCPR adds ``of all kinds.'' International
human rights standards permit restrictions on the press,
provided they are prescribed by law and are necessary to
prevent the dissemination of speech that is obscene or
defamatory, or that poses a realistic threat to national
security, or that is false and threatens public order.\60\ The
Chinese government's restrictions on the press are not clearly
prescribed in national law. In addition, the government uses
discretionary and extralegal powers to restrict the publication
of information and ideas that conflict with the Party's
political and religious orthodoxy or that threaten its control
over political and religious ideology.
Not Prescribed by Law
National media regulations include vague and sweeping
prohibitions on the publication of material that ``harms the
honor or the interests of the nation,'' \61\ ``spreads
rumors,'' \62\ or ``harms the credibility of a government
agency.'' \63\ The Criminal Law punishes acts said to
constitute ``rumor mongering'' to incite subversion or the
overthrow of the socialist system with sentences of up to five
years' imprisonment.\64\ Nothing in Chinese law specifies what
constitutes the ``interests of the nation,'' a ``rumor,'' or
``harming credibility.'' Chinese laws and regulations provide
lists of what may be deemed a state secret, but these lists are
broad and vague, encompassing essentially all matters of public
concern.\65\ Moreover, Chinese law does not require the
government to show that anyone committing any of these acts
knew that the materials they published fell into one of these
categories.\66\ Finally, Chinese courts do not require the
government to show that the publication of the materials in
question caused, or could have caused, any negative effect on
the national interest.\67\
Government agencies responsible for implementing and
interpreting national security do not balance government
interests against a citizen's right to freedom of the press,
and instead consistently interpret laws in favor of the
government. In recent years, more than 70 percent of all cases
of criminal disclosure of state secrets were the result of a
``faulty understanding of state secrets.'' \68\ None of the 17
or more central government and Party agencies responsible for
enforcing and interpreting national security and state secrets
laws as they relate to freedom of the press has provided any
public guidance about when it will or will not censor
publications or pursue criminal complaints against
publishers.\69\ In 2004, the Chinese government shut down 338
publications for publishing ``internal'' information.\70\ In
addition, the Chinese judiciary is not independent from Party
control and does not issue instructive opinions in criminal
trials (see discussion of Huang Qi below). [For more
information on the Chinese judiciary, see Section VII(c)--
Access to Justice.]
The Chinese government does not articulate content-based
restrictions in statutes and court judgments, but instead
relies upon detaining writers, indoctrinating journalists, and
banning publications to encourage companies, institutions, and
individuals to ``choose'' not to publicize views that a
government official might deem politically unacceptable.\71\ An
example of the Chinese government's indifference to freedom of
the press is the case of Huang Qi. The Chengdu Intermediate
People's Court sentenced Huang to five years' imprisonment in
May 2003 for inciting subversion by operating a Web site that
included articles on democracy and the 1989 Tiananmen democracy
protests. The court's decision did not provide examples of any
subversive language, and made no attempt to show that the
articles on the Web site had caused, or were likely to cause, a
threat to China's national security. Moreover, the court did
not place any constitutional limitations on the authority of
the government to criminalize certain types of speech, or
balance the need to protect national security with Huang Qi's
right to freedom of expression.\72\
Another example of the Chinese government's opaque national
security content-based restrictions occurred in October 2003,
when a Shanghai court sentenced Zheng Enchong to three years'
imprisonment for ``illegally providing state secrets to an
entity or individual outside China.'' Zheng faxed a copy of a
Xinhua news report to a U.S. NGO to get it published
abroad.\73\ In rejecting Zheng's appeal, the Shanghai High
People's Court said that, while the document in question
included no markings indicating it was a ``state secret,''
Zheng ``should have known'' that it was a state secret
because it had been published in a Xinhua publication called
``Internal Selections.'' Xinhua is a government agency that
reports directly to the State Council, and if an article
included information that was a state secret, Xinhua had both
the authority and the legal obligation to have it
classified.\74\ Instead, Xinhua officials labeled the article
``internal,'' and according to the Shanghai High People's
Court, officials with the local state secrets bureau had it
``certified'' as a state secret after Zheng was detained.\75\
Stories from ``Internal Selections,'' however, are freely
available on Party Web sites, including those of the Beijing
Municipal Party Committee and the Chongqing Municipal Party
Committee.\76\
The case of Zhao Yan, a researcher for the New York Times,
is a more recent example. Authorities detained Zhao in
September 2004 for ``illegally providing state secrets to an
entity or individual outside China.'' Sources said the ``state
secret'' was information that former President and Party
General Secretary Jiang Zemin had offered to resign as Chairman
of the Central Military Commission. His resignation was later
reported in the official press.\77\ [See Section V(b)--Rights
of Criminal Suspects and Defendants, for a discussion of Zhao's
arbitrary and extended detention.]
Chinese courts cannot consider Chinese citizens'
constitutional right to freedom of the press in subversion and
state secrets trials [see Section VII(c)--Access to Justice--
Constitutional Review]. Some cases have been reported, however,
in which a court found insufficient evidence to hold a trial on
the charges brought against a defendant. Such decisions are the
result of international pressure rather than an interest in
upholding the rights of the accused. For example, Chinese
authorities detained Liu Di (also known as the ``Stainless
Steel Mouse'') in November 2002 after she posted a series of
essays on the Internet discussing political reform and
criticizing the Party. They released her in November 2003
without charges following widespread international pressure.
The Chinese government also uses indoctrination as an
extralegal means of restricting publishing of political
opinions and religious literature. A January 2006 General
Administration of Press and Publication (GAPP) report described
an example of press indoctrination, saying that in 2005 the
government carried out on-the-job training of Party officials
holding leadership positions at news publishers, and ``deeply
and meticulously performed worker and staff ideological and
political work'' in order to ``safeguard stability and unity.''
\78\ Xinhua reported in May 2006 that the government and the
Party expect Chinese journalists to be ``politically strong''
and ``strictly disciplined.'' \79\ The All China Journalists
Association held a conference in April 2006 to study and
implement the Party's propaganda campaign on ``Socialist Glory
and Shame.'' \80\ The state-run news media reported that
conference participants expressed a desire to reject
``capitalist liberalism'' and to accept ``serving the general
work of the Party and the nation'' as the ``sacred mission'' of
journalists.\81\ Western news media have reported that the
Beijing Municipal Information Office, an agency that reports to
the Central Propaganda Department, summons executives from a
dozen Internet news Web sites every Friday morning to attend a
meeting. Chen Hua, Director of the Internet Propaganda
Management Department, usually runs this meeting. According to
one Western news report, ``[Chen] or one of his colleagues
tells the executives what news they should keep off their sites
and what items they should highlight in the week ahead.'' \82\
The Chinese government and the Party often carry out
censorship through informal and opaque procedures that are not
subject to legal oversight or restraint. For example, according
to Wang Yi, a law professor in Sichuan province, public
security officials in Beijing had his Web site shut down by
calling an employee of the Chinese Internet company Blogchina
at home and ordering him to do it.\83\
Chinese authorities used similar extralegal measures to
censor two of China's most popular publications. The first
incident occurred in December 2005, when the Party removed
editor-in-chief Yang Bin and two deputy editors at the Beijing
News, as part of an effort to curb that newspaper's aggressive
reporting style.\84\ Central Propaganda Department director Liu
Yunshan had told officials at an April 2005 meeting that
``[t]he South has a newspaper that disgusts a lot of officials
in the North, and the North has a paper that disgusts a lot of
officials in the South.'' \85\ An unnamed source told a Western
news magazine that the ``northern paper'' was the Beijing News,
and a Beijing News editor noted that so many cadres had
traveled to Beijing to complain about the paper that it was
under ``heavy'' pressure to conform to new restrictions on
``extra-territorial'' investigative reporting.\86\ In December
2005, propaganda officials singled out the Beijing News for
criticism at a meeting where it was decided that ``metropolitan
newspapers'' such as the Beijing News should ``strengthen Party
control'' and obey propaganda officials.\87\ Officials have
said that the Beijing News ``committed errors in the
orientation of opinion,'' and Liu Yunshan concluded that the
Beijing News' ``problems'' must be ``fundamentally resolved.''
A second example of official circumvention of the law to
silence critics occurred in January 2006, when Party officials
ordered the China Youth Daily (CYD) to suspend publication of
its Freezing Point weekly because it had published an essay on
Chinese history textbooks that officials claimed contradicted
historical facts, violated news propaganda discipline, harmed
the national sentiments of the Chinese people, harmed the image
of the CYD, and had a detrimental social influence.\88\ The
officials also ordered the CYD Publishing House to submit a
report criticizing Li Erliang, CYD editor-in-chief, and Li
Datong, editor-in-chief of the Freezing Point weekly. On
February 16, Ministry of Foreign Affairs spokesperson Qin Gang
defended the Party's decision.\89\ On the same day, the
Communist Party Youth League Publishing House Party Committee
announced the conditions under which Freezing Point would
resume publication. The CYD was required to dismiss Li Datong
from his position as editor-in-chief, and Lu Yuegang from his
position as deputy editor. In addition, it had to publish an
essay in the first issue of the re-launched Freezing Point
weekly that would
refute the earlier objectionable essay.\90\
Government and Party intimidation, harassment, and
imprisonment of writers and journalists create a chilling
effect on freedom of speech that results in self-censorship.
For instance, Internet and software companies in China must
either employ censorship technologies in their products or risk
a government order to close.
Although no Chinese law or regulation forbids specific words,
companies such as Tencent and MSN embed a list of banned words
and phrases in their Internet applications, including
``freedom'' and ``democracy.'' \91\ Chinese search engines such
as Baidu, and the China-based search engines of Yahoo!, MSN,
and Google filter search
results, including those relating to the Voice of America,
Radio Free Asia, and human rights. A senior corporate official
from Google testified to the House Committee on International
Relations in February 2006 that one of the factors leading to
the company's decision to filter search results for its China-
based service was:
Many queries, especially politically sensitive
queries, were not making it through to Google's
servers. And access became often slow and unreliable,
meaning that our service in China was not something we
felt proud of. Even though we weren't doing any self-
censorship, our results were being filtered anyway, and
our service was being
actively degraded on top of that. Indeed, at some times
users were even being redirected to local Chinese
search engines.\92\
Google designed its Chinese-language news aggregation
service so that users in China cannot view materials from
dissident news Web sites that Chinese authorities have blocked.
Google has said that it will not deploy e-mail and blogging
services in China because the company cannot meet its own
standards for the privacy and security of users' sensitive
information.\93\
The Party and the government are seeking to expand self-
censorship by instituting ``industry self-discipline.'' During
an August 2005 speech, Liu Yunshan called on propaganda
officials to ``merge propaganda work into the self-supervision
of mass groups and professional organizations,'' and said that
requiring professional organizations to ``tightly integrate
professional discipline and restraint with professional moral
restraint'' will allow employees to ``voluntarily'' accept
government supervision. In April 2006, 14 major Internet
portals, including Sina.com, Sohu.com, Baidu.com, and Yahoo!'s
Chinese Web site, issued a joint proposal calling for the
Chinese Internet industry to censor harmful information, spread
the ideas of President Hu Jintao, and voluntarily accept
government supervision.\94\ Shortly after the Internet portals
issued their
proposal, Internet information providers and industry groups
throughout China made similar announcements.
The state-run media portrayed the Internet portals'
participation as spontaneous and voluntary, but both the GAPP
and State Administration for Radio, Film, and Television
(SARFT) have either used or advocated the use of ``self-
discipline'' agreements and other informal methods to control
the press in China. For example, in April 2006, GAPP Director
Long Xinmin wrote that the government should establish an
administrative system for newspapers and magazines
characterized by Party leadership, government administration,
and industry self-discipline.\95\ In September 2005, SARFT
issued a notice saying that radio announcers and television
hosts would ``voluntarily'' obey professional ethical standards
that SARFT had issued in December 2004.\96\
Political Speech
International human rights standards obligate the Chinese
government to respect the rights of its citizens to publish
political ideas or opinions, even when they are critical of the
government.\97\ Chinese government and Party officials have
said, however, that they will not tolerate the publication of
political ideas or opinions with which they disagree:
<bullet> Liu Binjie, a deputy director of the General
Administration of Press and Publication (GAPP), has
said that political publications are the highest
priority target for the Sweep Away Pornography and
Strike Down Illegal Publications Task Force.\98\
<bullet> Shi Feng, another GAPP deputy director,
complained in an October 2005 speech that some
newspapers and periodicals in China have exhibited
``political orientation problems,'' by ``denying the
leading position of Marxism,'' ``violating the Party
line,'' and ``openly smearing the Party's leaders.''
\99\
<bullet> Officials have said that it is necessary to
``strike hard at'' and ``tightly seal up and
investigate'' political publications that ``spread
political rumors and create ideological chaos.'' \100\
The State Administration for Radio, Film, and Television
(SARFT) issued ``propaganda priorities'' in 2005 that said
broadcasters should ``refuse all incorrect ideological and
political perspectives and expression.'' \101\ The GAPP has
said that it will shut down publications with ``severe
political errors,'' \102\ and in 2005, the Chinese government
confiscated 996,000 publications because of their political
content.\103\ Regulations require that everything published in
China must adhere to Marxism, Leninism, Mao Zedong Thought, and
Deng Xiaoping Theory\104\ and prohibit the publication of
anything that violates the propaganda discipline of the
Party\105\ or contradicts the guiding policies of the
Party.\106\ In addition, Chinese law requires that books and
essays about Party and national government leaders must be
``solemn and discreet,'' and their point of view must conform
to the spirit of various Party documents.\107\
To enforce these ideological restrictions, Chinese
regulations require that publishers submit to the GAPP and the
Central Propaganda Department a list of any ``important topic
selections'' that they plan to publish.\108\ Only publishing
houses that the GAPP specifically approves may publish works
about government and Party leaders, foreign relations,
religion, the history of the People's Republic of China, and
the history of the People's Liberation Army.\109\ In February
2005, a GAPP official warned in a report:
If publishers are careless about strictly screening
topic selection, then serious orientation and quality
problems will occur. . . . Therefore, publishers'
screening of the selection of topics is not merely a
professional matter, but rather is a serious political
responsibility. Therefore, topic selection screening is
a political system.\110\
The GAPP report also said that publishers must carry out
registration procedures for all selections relating to
politics, the military, security, foreign affairs, religion,
ethnicities, and ``other
sensitive issues.'' In addition, the report also noted that it
is illegal to publish anything on these topics that has not
been reported to, and approved by, authorities.
New rules governing the publication of newspapers and
periodicals that went into effect in December 2005\111\ include
requirements that these publications must ``adhere to Marxism-
Leninism,'' ``follow correct guidelines of public opinion and
publication orientation,'' and foster a ``good atmosphere for
building socialism with Chinese characteristics.'' The rules
also require newspapers and periodicals to obey unspecified
``relevant regulations'' when publishing articles that relate
to ``important state policies'' and ethnic and religious
affairs.
SARFT requires screenplays that depict major historic
events and important leaders and their families to be approved
by both the government and the Party.\112\ SARFT issued
regulations in April 2006\113\ that removed the previous
requirement that television producers obtain government
approval for dramas, but
programs relating to modern Chinese history must still have
government approval.\114\ In addition, anyone wishing to film
television programs with content relating to ``important or
sensitive political issues, the military, foreign affairs, the
Party's United Front, religion, ethnicities, the administration
of justice, public security, education, and famous people''
must first request an ``opinion'' from the relevant department
at the provincial level or higher.
Government and Party intolerance of the independent
political views of citizens is particularly apparent before and
during government and Party plenary meetings and some national
holidays. In the weeks before the annual plenary sessions of
the National People's Congress and the Chinese People's
Political Consultative Conference, which concluded in March
2006, Chinese officials took the following measures (in
addition to the Web site closings that were described
previously):
<bullet> The Sweep Away Pornography and Strike Down
Illegal Publications Task Force held a teleconference
in January 2006 and notified relevant agencies that
they should ``purify the publishing market'' and be on
duty 24 hours per day during the plenary sessions.\115\
<bullet> Officials in Zhongshan city, Guangdong
province, issued a circular calling on local customs,
traffic, press and publications officials, and
commercial agencies, to step up their enforcement
measures against ``harmful information,'' including
illegal political publications.\116\
<bullet> Officials in Henan province launched a
crackdown on political publications and Falun Gong
materials to ``ensure the health and stability of the
publications market'' during the plenary sessions.\117\
During the last year Chinese authorities have continued to
silence writers, journalists, and Web sites for expressing
political ideas or opinions with which they disagree. In
October, an Anhui court upheld Zhang Lin's sentence of five
years' imprisonment for subverting state power in connection
with articles he posted on the Internet and a radio interview
he gave.\118\ Chinese authorities detained and imprisoned
several others, including Yang Tianshui, Guo Qizhen, and Li
Yuanlong for publishing articles on foreign Web sites
criticizing the government and the Party.\119\ During the run-
up to the annual plenary sessions, Chinese authorities shut
down the Aegean Sea [Aiqinhai] Web site, as well as four other
sites that had complained on behalf of local workers.\120\ In
June, authorities shut down two of China's major Internet
portals, Sina.com and Sohu.com, for several days to allow the
Internet portals to upgrade their censorship capabilities after
authorities found that the Internet portals failed to filter
certain key words deemed politically harmful.\121\ In July, the
Beijing Communications Administration shut down the ``Century
China'' Web site, a popular Internet discussion forum for
commentary on political, historical, and cultural issues.\122\
In August, authorities shut down the ``Polls'' Web site and
revoked its license after the Web site posted a poll asking
visitors whether the General Secretary of the Communist Party
should be chosen from among several candidates in differential
voting.\123\
Religious Speech
International human rights standards protect the printing
and distribution of religious literature as a fundamental human
right.\124\ The Chinese government asserts that its protection
of freedom of religious belief ``is basically in accordance
with the main contents of [relevant] international documents
and conventions,'' and that everyone in China ``should have the
freedom to compile and distribute printed materials pertaining
to religion or belief.'' \125\ Only government-licensed
printing enterprises may print such materials, however, and
then only with approval from the provincial-level religious
affairs bureau and a certificate of approval from the press and
publication administration.\126\ Printing enterprises in China
may print religious publications for in-house use by customers,
but the printing enterprise must first receive approval from
provincial-level religious and publishing authorities.\127\
Non-religious publications only require printing approval from
publishing authorities at the county level.\128\ Publishing
regulations mandate government authorization and screening of
books and news reports that mention religious issues.\129\ [See
Section V(d)--Freedom of Religion.]
Chinese authorities confiscated 4.62 million items of Falun
Gong and ``other cult organization propaganda material'' in
2005.\130\ This included the confiscation of 9,860 printed
materials in the Xinjiang Uighur Autonomous Region that were
either illegal publications of a religious nature, Falun Gong
materials, or publications related to ``feudal superstitions.''
\131\ In addition, authorities in the Tibet Autonomous Region
confiscated 54 ``Dalai Lama splittist group reactionary
publications.'' \132\
In addition to confiscating religious publications, the
Chinese government also has fined, detained, and imprisoned
citizens for publishing, printing, and distributing religious
literature without government permission. In November and
December 1999, officials detained and arrested Jiang Sunian, an
unregistered Catholic priest from Wenzhou diocese in Zhejiang
province who had published hymnals.\133\ Officials charged
Jiang with illegal publishing.\134\ In April 2000, a court
convicted Jiang under Article 225 of the Criminal Law, assessed
a fine of 270,000 yuan (US$32,000), and sentenced him to six
years' imprisonment. Officials released Jiang in December
2003.\135\ In November 2005, a Beijing court sent Cai Zhuohua,
a pastor of six house churches in Beijing, and two of his
family members to prison under Article 225 of the Criminal Law
for printing and giving away Bibles and other Christian
literature without government permission.\136\ In Anhui
province, house church pastor Wang Zaiqing was arrested in May
2006 on the same charges.
During the last year Chinese authorities have continued to
detain people who express religious ideas or opinions which
they consider incorrect. Chinese authorities detained
documentary filmmaker Hao Wu for 140 days after they discovered
him shooting a documentary about China's unregistered house
churches.\137\ In July 2006, authorities shut down two blogs
maintained by the popular Tibetan poet and writer Oezer, which
she believed was a response to her posting a photograph of the
Dalai Lama.\138\ In August 2006, authorities detained
journalist Zan Aizong for one week after he posted reports on
foreign Web sites about detentions of Protestants who were
protesting the destruction of a church in Xiaoshan city,
Zhejiang province.\139\
Ideological Uniformity
International human rights standards prohibit content-based
restrictions on the press except those necessary to protect the
rights and reputations of others and to meet the requirements
for morality, national security, and public order in a
democratic society.\140\ The Chinese government and the
Communist Party exceed these allowances, however, and control
and censor the press to impose ideological uniformity. In one
of his first speeches as head of the General Administration of
Press and Publication (GAPP), Long Xinmin told officials
attending a national conference in December 2005 to ``maintain
a high degree of uniformity with the political ideology of the
Party Central Committee under Comrade Hu Jintao as Secretary,
and insist on never wavering from Marxism as the guiding
principle of press and publication work.'' \141\ Liu Yunshan
called on propaganda officials to leverage the advantage
provided by the large circulation and distribution of the
state-run news media to guide public opinion in an ``intimate,
natural, quiet, and unobtrusive manner.'' \142\ Shi Feng has
said that investigative reporting must ``serve the work of the
Party and the government.'' \143\ In September 2005, the
Guangming Daily published an editorial saying:
[I]rresponsible expression online easily brings with
it ideological confusion, and creates a severe
challenge for college students' political ideological
education. An important and pressing question for
university political ideological education is how to
use positive and healthy ideological culture to capture
the Internet battlefield and prevent people with
ulterior motives from using the Internet to disseminate
incorrect ideology and information, and resist
infiltration by enemy forces and cult
organizations.\144\
Government and Party leaders also have said that they
intend to co-opt modern communications technologies such as the
Internet and mobile communications, and have called on
officials to ensure that their propaganda reaches newly
emerging social groups.\145\ Liu Yunshan noted that Chinese
society is becoming increasingly complex as it shifts from one
dominated by people employed in state-run enterprises to one in
which more and more people work for
private enterprises.\146\ Given this shifting demographic, Liu
said that Party propagandists must ``expand the targets of
propaganda work'' to new groups, such as young intellectuals,
and ``troubled'' groups, such as unemployed workers, migrant
workers, and farmers who have lost their land.\147\ The Party
also focuses political propaganda on Chinese youth. In late
2005, the Party journal Seeking Truth called on Party cadres to
focus on guiding the organization of college student
groups,\148\ and the Guangming Daily published an editorial
saying that schools should work to form ``united and positive
online public opinion'' by organizing ``ranks of online
commentators.'' \149\ Some Chinese universities have also
instituted student-run monitoring groups to remove offensive
content, including political dissent, from university Internet
forums.\150\
In December 2004, the State Administration of Radio, Film,
and Television (SARFT) issued ethical guidelines requiring
television editors, reporters, and hosts to be loyal to, and
carry out the work of, the Party.\151\ Later the same month,
SARFT announced that it would require television stations to
increase control over what television interviewers say on the
air, and only broadcast programs that ``comply with propaganda
discipline'' produced by government-licensed production
companies and screened by relevant officials.\152\ In March
2005, the Central Propaganda Department, the GAPP, and SARFT
jointly issued regulations requiring news reporting and editing
personnel to support the leadership of the Party, focus on
``correct propaganda'' as their guiding principle, and have a
firm grasp of ``correct guidance of public opinion.'' \153\ In
April 2005, SARFT issued ``Interim Implementation Rules for
Administration of Those Employed as Radio and Television News
Reporters and Editors,'' saying: ``It is necessary to instruct
news reporting and editing personnel to strengthen their
political consciousness.'' \154\ In September 2005, SARFT
issued a notice requiring television
announcers and hosts to increase their study of political
theory, improve their political character and political
proficiency, guide people with correct public opinion,
passionately love the motherland, serve the greater interests
of the work of the Party and the government, and implement the
Party's ``line, principles, and policies.'' \155\ The same
month, SARFT also issued a notice warning that reports relating
to politics and government policies must be handled carefully
to avoid ``problems.'' In addition, to ``ensure the correct
guidance of public opinion,'' radio and television broadcasters
must
receive approval from SARFT before making any ``large-scale
live broadcast reports of significant events . . . especially
those live broadcast reports of activities chaired by central
leading cadres.'' \156\ The notice also requires all
broadcasters to be sensitive to ``political'' issues and to
screen live broadcasts to ``ensure their orientation is
correct.''
The government and the Party remain concerned that Chinese
citizens have increased access to foreign sources of
information that may dilute the Party's control over public
opinion. Senior officials portray the news and information
media as a battlefield for the Party's propaganda work that
must either be occupied or lost to Western countries. For
example, Liu Yunshan has called on Party propagandists to learn
how to open to the outside world but prevent ``Western enemy
forces'' from using their ``economic and technical superiority
to carry out ideological infiltration and cultural expansion''
in order to ``Westernize and divide'' China.\157\ Shi Feng has
said the government must not abandon the battlefield of public
opinion, and has complained that, despite strict government
prohibitions on private and foreign investment in newspaper and
periodical publishing, people continue to ``illegally enter the
newspaper and periodical publication domain,'' and that illegal
publishers are a ``serious threat'' to the Party's ability to
use propaganda to influence ideology.\158\
The Supreme People's Court also supports censorship to
prevent Chinese citizens from having access to ``foreign''
political ideas. In 1998, the same year it issued a judicial
interpretation expanding the scope of Article 225 of China's
Criminal Law to include unauthorized publishing,\159\ it warned
China's judges, ``Foreign enemy forces are using publishing as
a channel to carry out infiltration and aggravation of our
ideology and culture, and there are numerous publications with
political problems circulating within the country's borders.''
\160\
The Chinese government attempts to prevent its citizens
from having access to uncensored political ideas and
information by banning the general distribution of foreign
newspapers, news magazines, and television news programs, and
by restricting the ability of foreign news agencies to
distribute news domestically. In November 2005, Shi Zongyuan,
then Director of the GAPP, said that Chinese authorities had
halted plans to allow foreign newspapers to print in China
because of concerns raised by the recent ``color revolutions''
in former Soviet republics.\161\ Also in 2005, the GAPP
introduced internal restrictions on foreign magazines, limiting
approvals to science and technology publications.\162\ In
October 2004, SARFT issued regulations prohibiting joint
ventures from producing programs on ``political news.'' \163\
In March 2005, SARFT issued an interpretive notice on these
regulations that further limits foreign companies to investing
in a single joint venture, saying:
[W]e must control the contents of all products of
joint ventures in a practical manner, understand the
political inclinations and background of foreign joint
venture parties, and in this way prevent harmful
foreign ideology and culture from entering the realm of
our television program production through joint
investment and cooperation.\164\
In September 2006, Xinhua issued new rules prohibiting
foreign news agencies from distributing news to Chinese
citizens without government permission.\165\ The new rules
require foreign news agencies to be licensed by Xinhua and to
submit all articles to a government-approved agency for
distribution.\166\ The new rules give Xinhua the authority to
select the news and information that foreign news agencies
release, and to delete any information that the government has
banned.\167\ [For information on the commercial implications of
the new rules, see Section VII(d)--Commercial Rule of Law and
the Impact of the WTO.]
To prevent Chinese citizens from using television and radio
to access ideas and opinions that may conflict with the Party
line, the government jams programming offered by the Voice of
America and the British Broadcasting Corporation. The
government also has enacted regulations that restrict private
satellite dish ownership and only permit foreign television
news from broadcasters that are ``friendly'' to China and that
offer their programs through government-controlled
channels.\169\ In August 2005, SARFT issued three notices
restricting Chinese citizens' access to foreign television and
radio content.\166\ In April 2006, SARFT issued a circular\170\
repeating the restrictions on the dissemination of foreign news
reports that were first put in place in 2002.\171\ Both
circulars prohibit local television stations from using news
footage taken from foreign satellite programs and require them
to use only international news
reports provided by China Central Television and China Radio
International. The new circular said these restrictions are
required to ``ensure correct orientation of public opinion,''
because some foreign wire services and news media have
distributed international news to local television stations
with ``blatant political intentions.'' The circular calls on
television regulators to ``firmly establish political
consciousness'' and ``increasingly bring the administration of
international news within the administration of propaganda
work.''
Chinese officials attempt to prevent citizens who use the
Internet from gaining access to ideas and opinions that the
government and Party cannot censor. In February 2006, Liu
Zhengrong, Deputy Chief of the Internet Affairs Bureau of the
State Council Information Office, said Chinese citizens can
access the Web freely, except for ``a very few'' foreign Web
sites that are blocked because their contents mostly involve
pornography or terrorism.\172\ According to one study, however,
Chinese authorities operate ``the most extensive,
technologically sophisticated, and broad-reaching system of
Internet filtering in the world'' to prevent access to
``sensitive'' religious and political material on the
Internet.\173\ The central government blocks the Web sites of
foreign news providers such as the Voice of America, Radio Free
Asia, and the British Broadcasting Corporation, and of human
rights advocacy groups such as Human Rights Watch, Human Rights
in China, Reporters Without Borders, and the Committee to
Protect Journalists. Since May 2005, the Chinese government has
prevented its citizens from accessing the Commission's Web
site.
V(b) Rights of Criminal Suspects and Defendants
findings
<bullet> The Communist Party's concern with growing
social instability dominated its policy statements over
the past year, and served as justification for
increased government vigilance over activities and
groups that potentially threaten Party legitimacy. Top
Party, court, and law enforcement officials repeatedly
linked the government's policy of pursuing periodic
anti-crime campaigns, referred to as ``Strike Hard''
campaigns, to the goal of maintaining social stability.
Government efforts to maintain social stability have
led to a greater reliance on the coercive powers of the
police to subdue potential threats to Party rule.
<bullet> Abuse of power by local police forces remains
a serious problem. The Supreme People's Procuratorate
(SPP) has acknowledged the existence of continuing and
widespread abuses in law enforcement, including illegal
extended detentions and torture. New SPP regulations
that detail the criteria for prosecuting official
abuses of power went into effect in July 2006, and
establish standards for the prosecution of police who
abuse their power to hold individuals in custody beyond
legal limits, coerce confessions under torture, acquire
evidence through the use of force, maltreat prisoners,
or retaliate against those who petition the government
or file complaints against them.
<bullet> The Chinese government continues to apply
vague criminal and administrative provisions to justify
detentions based on an individual's political opinions
or membership in religious, ethnic, or social groups.
These provisions allow for the targeting and punishment
of activists for crimes that ``endanger state
security'' or ``disturb public order'' under the
Criminal Law. The UN Special Rapporteur on Torture
concluded in his March 2006 report to the UN Commission
on Human Rights that the vague definition of these
crimes leaves their application open to abuse,
particularly of the rights to freedom of religion,
speech, and assembly.
<bullet> Chinese authorities use reeducation through
labor and other forms of administrative detention to
circumvent the criminal process and imprison offenders
for ``minor crimes,'' without judicial review and the
procedural protections guaranteed by the Chinese
Constitution and Criminal Procedure Law. The UN Working
Group on Arbitrary Detention concluded in 2004 that the
Chinese government has made no significant progress in
reforming the administrative detention system to ensure
judicial review and to conform to international law.
Although
proposed reforms would provide some added procedural
protections, they would still not provide an accused
individual the opportunity to dispute the alleged
misconduct and contest law enforcement accusations of
guilt before an independent adjudicatory body.
<bullet> Although illegal in China, torture and abuse
by law enforcement officers remain widespread. Factors
that perpetuate or exacerbate the problem of torture
include a lack of procedural safeguards to protect
criminal suspects and defendants, over reliance on
confessions of guilt, the absence of lawyers at
interrogations, inadequate complaint mechanisms, the
lack of an independent judiciary, and the abuse of
administrative detention measures. The Chinese
government emphasizes its ongoing efforts to pass new
laws and administrative regulations preventing,
punishing, and compensating cases of torture by law
enforcement officers. Both the SPP and the Ministry of
Public Security have announced their support for audio
and video taping of interrogations of criminal suspects
accused of a limited number of crimes. The Chinese
government recognizes that problems of misconduct,
including physical abuse, exist within Chinese prisons
and reeducation through labor centers, and it is making
progress toward increasing accountability for such
behavior.
<bullet> In 2006, Chinese authorities increased
restrictions on lawyers who work on politically
sensitive cases or cases that draw attention from the
foreign news media. Law enforcement officials
intimidated lawyers defending these cases by charging
them, or threatening to charge them, with various
crimes. Since mid-2005, local authorities have also
used harassment and violent measures against those who
participated in criminal or civil rights defense in
sensitive matters. Beijing lawyer Zhu Jiuhu was
detained during the past year. Self-trained legal
advocate Chen Guangcheng was sentenced on August 24,
2006, to four years and three months' imprisonment, and
Shanghai lawyer Zheng Enchong is currently under house
arrest after being released from prison on June 5,
2006. Beijing lawyer Gao Zhisheng has been held
incommunicado since authorities reportedly abducted him
on August 15 from his sister's home in Shandong
province. Guo Feixiong, who served as a legal advisor
to Gao's law firm, was arrested and later released in
late 2005, and is currently in detention after being
taken from his home on September 14.
<bullet> Chinese criminal law includes 68 capital
offenses, over half of which are non-violent crimes.
The Chinese government reportedly has adopted an
``execute fewer, execute cautiously'' policy. In 2006,
the Chinese judiciary made reform of the death penalty
review process a top priority and introduced new
appellate court procedures for hearing death penalty
cases. The Supreme People's Court announced that it
would consolidate and reclaim the death penalty review
power from provincial-level high courts. These reforms
are designed to limit the use of death sentences,
consolidate criteria used by courts to administer those
sentences, and ensure constitutionally protected human
rights.
<bullet> The Vice Minister of Health acknowledged that
the majority of human organs used in transplants in
China originate from executed prisoners. Under the
World Health Organization's guiding principles on human
organ transplantation, organ donations by prisoners,
even when reportedly voluntary, may nonetheless violate
international standards if the organs are obtained
through undue influence and pressure. New Ministry of
Health regulations include medical standards for organ
transplants, but do not provide guidance on what type
of consent is required for taking organs from executed
prisoners.
<bullet> The Chinese government continues to engage the
international community on human rights and rule of law
issues, including those related to the criminal justice
system. The government's application for membership in
the UN Human Rights Council noted that it has acceded
to 22 international human rights accords, and that it
plans to amend its Criminal, Civil, and Administrative
Procedure Laws and reform the judiciary to prepare for
ratification of the International Covenant on Civil and
Political Rights. As a member of the new Council, the
government has pledged to fulfill its obligations under
the terms of these accords, and is obligated under the
rules of the Council to submit to peer review of its
human rights record.
Public Security and Coercive Use of Police Power
The Communist Party's concern with growing social
instability dominated its policy statements over the past year,
and served as justification for increased government vigilance
over activities and groups that potentially threaten Party
legitimacy. Top Party, court, and law enforcement officials
repeatedly linked the government's policy of pursuing periodic
anti-crime campaigns, referred to as ``Strike Hard'' campaigns,
to the goal of maintaining social stability.\1\ On a national
level, the government's ``Strike Hard'' campaigns included
crackdowns on the publication of materials, including Falun
Gong literature, that the government deemed to be ``illegal
political publications'' or that allegedly ``spread political
rumors and create ideological chaos'' \2\ [see Section V(a)--
Special Focus for 2006: Freedom of Expression]. Regionally,
provincial-level officials used ``Strike Hard'' campaigns to
justify crackdowns on ``ethnic separatist forces'' in the
Xinjiang Uighur Autonomous Region\3\ and those who might
threaten the operation of the new Qinghai-Tibet railroad,\4\
among other groups. [See Section V(d)--Freedom of Religion--
Religious Freedom for China's Muslims; Section VIII--Tibet for
additional information.]
Government efforts to maintain social stability have led to
a greater reliance on the coercive powers of the police to
subdue potential threats to Party rule.\5\ In late 2005, a land
dispute between local government officials and villagers in
Shanwei city, Guangdong province, escalated into a mass protest
and then a violent confrontation between villagers and the
paramilitary People's Armed Police (PAP).\6\ Both domestic and
international human rights activists condemned the coercive use
of police power to subdue the Shanwei villagers, and called for
an investigation into the PAP's decision to open fire on the
crowd.\7\ Shanwei authorities detained Deputy Director Wu Sheng
of the local public security bureau for mishandling the
situation,\8\ but one month later, Public Security Minister
Zhou Yongkang and the PAP's top two officials reaffirmed the
role of the PAP as a prominent force in guarding against
threats to public order, particularly large-scale mass
incidents.\9\ In May 2006, domestic news media reported that
Party officials delivered a ``stern internal warning'' to Wu
and fired him from office.\10\ No criminal charges were filed
against Wu, but 13 of the villagers who participated in the
protest received sentences ranging from three to seven years'
imprisonment for allegedly ``gathering people to disturb public
order,'' among other crimes.\11\
Party concerns over the type of unrest that occurred in
Shanwei have prompted new government measures that allow for
greater discretion by local police in responding to
``disturbances of public order.'' \12\ In late 2005, Premier
Wen Jiabao warned senior rural bureaucrats that more violence
would result if they continued to commit the ``historic
mistake'' of failing to protect farmers and their lands.\13\ In
April 2006, the Ministry of Public Security (MPS) denied the
existence of conflict between police and villagers.\14\
Instead, MPS officials maintained that China faces ``conflicts
among the people,'' high crime rates, and struggles against
unnamed ``enemies.'' \15\ The MPS reported that crimes of
``disturbing public order'' rose to a total of 87,000 in 2005,
a 6.6 percent increase over the figure in 2004.\16\ Officials
declined to provide a figure for mass incidents in 2005, but
previously reported a rise from 58,000 mass incidents in 2003
to 74,000 in 2004.\17\ In March, a new Public Security
Administration Punishment Law went into effect nationwide and
added 165 new offenses that are subject to administrative
punishments at the discretion of public security agencies,
rather than according to the procedures required under the
criminal justice system.\18\ In a press conference about the
new law, MPS officials
explained that the law entrusts public security agencies and
the police with greater powers and means for protecting social
stability and public order.\19\
Abuse of power by local police forces remains a serious
problem. The government does not encourage external supervision
over police affairs or prosecution of police abuses by the
procuratorate,\20\ as mandated by law.\21\ Instead, the MPS
maintains a system of self-discipline carried out by the police
affairs supervisory departments within local public security
bureaus.\22\ Between 2001 and 2005, 1.5 million on-site
inspections resulted in 330,000 findings of abuse by police
officers.\23\ Of those, 4,321 offending officers were suspended
and 2,576 were taken into custody as punishment for their
wrongdoing.\24\ In February 2006, the MPS announced that it had
suspended a total of 10,034 police officers since 1997 for
breaches of discipline.\25\ The announcement acknowledged the
problem of police misconduct and expressed a high-level
commitment to confront the problem and improve the image of the
police. At the same time, it also confirmed that local police
in some areas openly collude with criminals, without fear of
reprisal. In one case in Hunan province, a court convicted
three senior public security officials for ties to organized
crime, but ultimately suspended their two- and three-year
sentences.\26\
The Supreme People's Procuratorate (SPP) has acknowledged
the existence of continuing and widespread abuses in law
enforcement, including illegal extended detentions and
torture.\27\ New SPP regulations that detail the criteria for
prosecuting official abuses of power went into effect on July
26, 2006, and establish standards for the prosecution of police
who abuse their power to hold individuals in custody beyond
legal limits, coerce confessions under torture, acquire
evidence through the use of force, maltreat prisoners, or
retaliate against those who petition the government or file
complaints against them.\28\ Domestic news media reported in
2006 on the convictions of several public security officials
who had beaten to death criminal suspects or prisoners in their
custody.\29\ In one case, two public security officials
received sentences of 1 year and 12 years' imprisonment,
respectively, for beating a woman to death during police
interrogation.\30\ The local procuratorate did not launch an
investigation until two years after the incident occurred, and
only in response to persistent efforts by the woman's husband
to petition the government.\31\ In response to these reports,
one Chinese legal scholar criticized authorities for being too
lenient and for shielding one another from punishment.\32\ In
July, an SPP spokesperson stated that local procuratorates do
not lack potential cases against official abuses of power, but
that ``many of them are cases that [the procuratorates] don't
dare handle, are unlikely to handle, and cannot handle.'' \33\
Political Crimes
The Chinese government continues to harass, detain, and
imprison citizens for the peaceful exercise of fundamental
rights guaranteed under the Chinese Constitution and
international declarations and treaties such as the Universal
Declaration of Human Rights (UDHR) and the International
Covenant on Civil and Political Rights (ICCPR).\34\ In some
cases, police detain individuals without formal charge or
judicial review, in contravention of provisions in both the
UDHR and the ICCPR.\35\ Arbitrary detentions intensified during
politically sensitive periods, such as the periods both
preceding and following the visits of U.S. President George W.
Bush and Manfred Nowak, UN Special Rapporteur on Torture, in
November and December 2005, respectively.\36\ Police also
detained, placed under surveillance, and harassed citizens
before the first anniversary of former Communist Party General
Secretary Zhao Ziyang's death in January 2006,\37\ and before
and after the March 2006 plenary sessions of the National
People's Congress (NPC) and Chinese People's Political
Consultative Conference.\38\ A senior official from the
Ministry of Public Security justified police use of mass
roundups during the plenary sessions by stressing the need to
``manage public order'' and ``reduce some of the factors
threatening social stability'' \39\ [see Section VII(c)--Access
to Justice--Citizen Petitioning]. In most cases, police
released individuals after a few days in detention.
The Chinese government continues to apply vague criminal
and administrative provisions to justify detentions based on an
individual's political opinions or membership in religious,
ethnic, or social groups, even when authorities identify a
formal charge and initiate the legal process. These provisions
allow for the targeting and punishment of activists for crimes
that ``endanger state security'' or ``disturb public order''
under the Criminal Law.\40\ After a 2004 visit to China, the UN
Working Group on Arbitrary Detention (UNWGAD) recommended that
the Chinese government define these crimes in precise terms and
create exceptions under the Criminal Law for the peaceful
exercise of fundamental rights guaranteed by the UDHR.\41\
Nowak noted after his visit to China in late 2005 that the
UNWGAD's recommendations have not been implemented to date.\42\
He concluded in his March 2006 report to the UN Commission on
Human Rights: ``The vague definition of these crimes leaves
their application open to abuse, particularly of the rights to
freedom of religion, speech, and assembly.'' \43\
Courts convict 99 percent of those tried for crimes that
allegedly ``endanger state security,'' and the Dui Hua
Foundation, a U.S. NGO that advocates for political prisoners
in China, reports: ``The great majority were detained for non-
violent expression of their political and religious beliefs.''
\44\ ``Splittism'' and ``inciting splittism,'' \45\ as well as
``subversion of state power'' and ``inciting subversion of
state power,'' \46\ are classified as crimes that endanger
state security under the Criminal Law. Chinese authorities
continue to use charges of ``splittism'' and ``inciting
splittism'' to target and punish peaceful activities by ethnic
Uighurs and Tibetans [see Section V(d)--Freedom of Religion--
Religious Freedom for China's Muslims; Section VIII--Tibet].
They continue to apply charges of ``subversion'' and ``inciting
subversion'' to target and punish the peaceful activities of
writers, journalists, and publishers [see Section V(a)--Special
Focus for 2006: Freedom of Expression], as well as those who
have supported the creation of independent political parties or
associations [see Section VII(a)--Development of Civil
Society].
Faced with an increasing number of ``public order
disturbances'' in 2005, Chinese authorities have applied
criminal provisions to crack down on otherwise lawful citizen
attempts to challenge government abuses.\47\ Many of the
``public order disturbances'' that
occurred in 2005 involved alleged crimes of ``gathering people
to disturb public order,'' \48\ ``obstructing public
services,'' \49\ ``gathering people to engage in affrays,''
\50\ and ``creating disturbances.'' \51\ From 2004 to 2005,
these ``public order disturbances'' increased by 13 percent,
18.9 percent, 5.8 percent, and 11.8 percent, respectively.\52\
In one case, a local people's court in Yulin city, Shaanxi
province, sentenced private investor and former Party official
Feng Bingxian to three years' imprisonment for ``gathering
people to disturb public order'' and obstructing the work of
government agencies.\53\ Feng's conviction was based on his
efforts to meet with local officials and discuss compensation
for private property that the government seized in 2003.\54\
The procuratorate charged that the presence of too many
investor representatives led to traffic congestion, disturbance
of public order, and interference with the work of the
government.\55\ At the time that the procuratorate indicted
Feng, the NPC was publicizing efforts to increase legal
protection for property rights.\56\
Since late 2005, government officials have abused Criminal
Law provisions on ``public order disturbances'' to silence
property rights advocates in particular. In 2004, the
government amended the
Constitution to recognize explicitly the private property
rights of Chinese citizens.\57\ One year later, at the same
time that Shaanxi officials detained Feng Bingxian, Guangdong
provincial authorities used force to suppress citizen efforts
to defend property rights in Shanwei city\58\ and Taishi
village\59\ in Guangzhou city. In October 2005, Guangdong
authorities arrested legal advocate Yang Maodong (who uses the
pen name Guo Feixiong) for ``gathering people to disturb public
order.'' \60\ The charge was based on Guo's efforts to advise
Taishi villagers in their recall campaign against the village
committee head, who allegedly had embezzled compensation funds
for government seizures of farmland [see Section VII(b)--
Institutions of Democratic Governance and Legislative Reform].
In February 2006, the Guangdong Public Security Bureau
circulated a report that blamed a succession of mass protests
in 2005 on ``disputes over so-called rights defense.'' \61\
With the release of this report, Guangdong authorities made
explicit their campaign against legal advocates such as Guo and
directly linked the activities of these individuals to crimes
of ``disturbing public order.''
The Chinese government has released a small number of
political prisoners since August 2005, but many Chinese
citizens continue to serve long prison or reeducation through
labor sentences for political or religious activities.\62\ In
April 2005, the Chinese government insisted that authorities do
not apply a stricter standard for evaluating sentence
reductions and parole in crimes that ``endanger state
security.'' \63\ Between early 2005 and 2006, however,
officials granted sentence reductions or early releases to
political prisoners in only a few cases.\64\ Authorities
released most political prisoners only when their court-imposed
sentences expired. The list of released political prisoners
includes political activist Wang Wanxing, journalist Liu Shui,
legal advocate Guo Feixiong, journalist Jiang Weiping, Falun
Gong practitioner Charles Lee, labor activist Xiao Yunliang,
journalist and Tiananmen democracy activist Yu Dongyue,
Internet publisher Cai Lujun, China Democracy Party member Tong
Shidong, Internet writer Luo Changfu, house church activist
Xiao Gaowen, Shanghai lawyer Zheng Enchong, Gyatso Children's
Home founder Nyima Choedron, and Catholic auxiliary bishop An
Shuxin.\65\ Despite the Chinese government's pledge to conduct
a national review of cases involving political acts that are no
longer crimes under Chinese law,\66\ some prisoners are still
serving sentences for counterrevolutionary and other crimes
that were removed from the Criminal Law in 1997.\67\
Arbitrary Detention in the Formal Criminal Process
The UN Working Group on Arbitrary Detention (UNWGAD)
defines the deprivation of personal liberty to be ``arbitrary''
if it meets one of the following conditions:
(1) there is clearly no legal basis for the deprivation
of liberty;
(2) an individual is deprived of his liberty because he
has exercised rights and freedoms guaranteed under the
Universal
Declaration of Human Rights (UDHR) or the International
Covenant on Civil and Political Rights (ICCPR); or
(3) non-compliance with the standards for a fair trial
set out in the UDHR and other relevant international
instruments is sufficiently grave to make the detention
arbitrary.\68\
Chinese authorities use measures such as surveillance or
house arrest\69\ to punish and control political activists,
even when no legal basis exists for such deprivations of
liberty. Authorities in Linyi city, Shandong province, placed
Chen Guangcheng, a legal advocate who exposed and challenged
the abuses of local population planning officials [see Section
V(h)--Population Planning], under house arrest on September 6,
2005.\70\ In March 2006, Chen's house arrest exceeded the six-
month limit permitted by Chinese law.\71\ A network of Chinese
human rights activists and groups subsequently worked with
Chen's defense lawyers to submit information about his case to
the UNWGAD, the UN Special Rapporteur on the Independence of
Judges and Lawyers, and the Special Representative of the
Secretary General for Human Rights Defenders.\72\ From March
until formal notification of Chen's criminal detention on June
10, Linyi authorities held Chen without charge or trial.\73\
Since March, authorities have kept Chen's wife under
surveillance at their home, formally arrested several of Chen's
relatives, beaten and summoned Chen's lawyers for
interrogation, and placed other activists under house arrest to
prevent them from holding a press conference about Chen's
case.\74\
Chinese authorities also have used incommunicado detention
to punish and control particularly high-profile political
offenders who exercise their fundamental rights. The Criminal
Procedure Law (CPL) permits detention without arrest or charge,
but generally requires notification of family members or the
detainee's workplace within 24 hours of custody.\75\ Despite
this legal safeguard, a number of activists, including Hu Jia,
disappeared in February 2006 after launching a nationwide
hunger strike to protest government abuses [see Section IV--
Introduction]. Hu, who has campaigned on behalf of HIV/AIDS
patients [see Section V(g)--Public Health--HIV/AIDS], was
missing from February 16 to March 28. When Hu reappeared, he
reported that security officers took him from his home and held
him on the outskirts of Beijing without any legal formalities
and without notifying his family.\76\ In February, a UN agency
expressed concern about Hu's disappearance and reported his
case to the Ministry of Health.\77\ Others who have been held
incommunicado include Gedun Choekyi Nyima and his parents,
abducted by Chinese officials in 1995 after the Dalai Lama
recognized him as the reincarnation of the Panchen Lama, and
Catholic Bishop Su Zhimin, who reportedly has been detained in
a form of house arrest since 1997. Both Gedun Choekyi Nyima and
Bishop Su have been the subject of frequent U.S. and
international inquiries, but the Chinese government denies that
it took coercive measures against either of them. [See Section
V(d)--Freedom of Religion--Religious Freedom for Tibetan
Buddhists; Section V(d)--Freedom of Religion--Religious Freedom
for China's Catholics and China-Holy See Relations for
additional information.]
Law enforcement authorities continue to detain Chinese
citizens for long periods without formal charge or trial,
despite official statements to the contrary. In January 2006,
the Chinese government reported to Manfred Nowak, UN Special
Rapporteur on Torture, that serious cases of extended detention
lasting more than three years had been eliminated, and that the
number of individuals held beyond time limits was at an all-
time low.\78\ The government further reported that the number
of provinces, autonomous regions, and municipalities in which
there were no cases of extended detention had risen from 14 at
the end of 2003 to 29.\79\ In May 2006, the Supreme People's
Procuratorate (SPP) identified Beijing as one of nine
municipalities or provinces where no cases of extended
detention had occurred in 2005.\80\ Despite these claims,
Beijing authorities repeatedly used provisions in Chinese law
to hold New York Times researcher Zhao Yan from September 17,
2004, until his trial date on June 16, 2006.\81\ After invoking
several legal exceptions to extend Zhao's pretrial detention,
authorities indicted him on December 23, 2005, for disclosing
state secrets and for fraud.\82\ The Beijing procuratorate
withdrew its case against Zhao on March 17, 2006,\83\ shortly
before President Hu Jintao's visit to the United States, but
resumed legal proceedings based on the same charge in May,
after Hu returned to China.\84\ The court permitted the
procuratorate to resume its case, despite objections from
Zhao's defense lawyer that this action was illegal.\85\ The
UNWGAD has concluded that Zhao's detention was arbitrary
because it resulted from the exercise of rights guaranteed
under the UDHR and the ICCPR, and because official non-
compliance with the international standards for a fair trial
was sufficiently grave.\86\
Chinese authorities do not comply with the minimum
international standards for prompt judicial review of criminal
detention and arrest. Both the UDHR and the ICCPR prohibit
arbitrary detention or arrest. Under the ICCPR, anyone detained
or arrested on a criminal charge must be brought promptly
before a judge or other officer authorized by law to exercise
adjudicatory powers, for review of the lawfulness of his
detention or arrest.\87\ In December 2004, the UNWGAD found
that the CPL and related regulations on pretrial detention fail
to meet this basic standard because: (1) Chinese suspects
continue to be held for too long without judicial review; (2)
procurators, who review arrest decisions, only examine case
files and do not hold a hearing; and (3) a procurator cannot be
considered an independent adjudicator under applicable
international standards.\88\ In May 2006, the SPP acknowledged
that unlawful extended detentions remain problematic, and that
Chinese authorities misuse provisions in the CPL to disguise
this problem.\89\ The SPP is currently working with the Supreme
People's Court and Ministry of Public Security to finalize new
regulations that will seek to address the problem of extended
detention.\90\
Administrative Detention
The Chinese government continues to punish large numbers of
citizens administratively, without effective judicial review
and in contravention of human rights standards under the
Universal Declaration of Human Rights (UDHR) and the
International Covenant on Civil and Political Rights
(ICCPR).\91\ Public security agencies reported that they
investigated and charged a total of 6.3 million ``public
security'' (zhi'an) offenses in 2005, up from 5.4 million in
2004.\92\ ``Public security'' offenses include public order
disturbances, traffic offenses, prostitution, drug use, and
other ``minor crimes'' that the Chinese government typically
sanctions with administrative punishments rather than formal
criminal sentences.\93\ In some instances, public security
agencies handle cases administratively because they do not have
enough evidence for a formal prosecution,\94\ or because it is
a convenient method for detaining and harassing activists.\95\
Administrative punishments can range from a warning or fine to
detention in a reeducation through labor (RTL) center for up to
three years, with the possibility of a one-year extension.\96\
Administrative punishments such as RTL can be harsher than some
criminal punishments such as fines, public surveillance, and
criminal detention of one to six months.\97\
In March 2006, Manfred Nowak, UN Special Rapporteur on
Torture, concluded that the RTL system and other forms of
administrative detention ``go beyond legitimate rehabilitation
measures provided for in [A]rticle 10 of the ICCPR.'' \98\
Forms of administrative detention include short-term detention
under the Public Security Administration Punishment Law (PSAPL)
and long-term
detention such as RTL, forced psychiatric commitment, ``custody
and education'' of prostitutes and their clients, forced drug
detoxification, work-study schools, and discipline and
inspection of corrupt officials under Party rules.\99\ Although
many public security cases do not result in detention, the U.S.
State Department estimates that at least 260,000 to 310,000
individuals are currently detained in approximately 340 RTL
centers.\100\ In addition, another 350,000 individuals were
held in facilities for drug offenders and prostitutes as of
2004.\101\ The government consistently has emphasized the
beneficial ``reeducation'' function of administrative detention
measures,\102\ but Nowak found that ``some of these measures of
[reeducation] through coercion, humiliation and punishment aim
at altering the personality of detainees up to the point of
even breaking their will.'' \103\
The Chinese government is in the process of reforming the
administrative punishment system, but these reforms seek to
codify rather than abolish it. In August 2005, the National
People's Congress Standing Committee passed the PSAPL to
provide a basis in national law for short-term detentions of up
to 20 days. In addition to establishing more severe punishments
than its predecessor, the Regulations on Public Security
Administration Punishment, the new law creates 165 new offenses
subject to administrative punishment effective March 1,
2006.\104\ These offenses include, among other things, ``taking
on the name of religion or qigong to carry out activities
disturbing public order'' \105\ and ``inciting or plotting
illegal assemblies, marches, or demonstrations.'' \106\ The new
law reaffirms the role of public security bureaus as the
entities that determine and administer punishments for public
security violations. Ministry of Public Security officials have
interpreted this provision to mean greater powers and means for
public security agencies and police to carry out their duties
and protect stability.\107\ The new law provides for
disciplinary sanctions and criminal liability to address
violations of human rights, such as coercing confessions under
torture or exceeding time limitations on interrogation.\108\
The law, however, lacks mechanisms for external supervision of
public security agencies and police, and lacks standards for
imposing disciplinary and criminal sanctions on police abuses.
Although short-term administrative detention of up to 20
days for public security offenses now has a basis in national
law under the PSAPL, long-term administrative detention,
including RTL, is authorized only under administrative
regulations and therefore violates Chinese law. The Legislation
Law requires that all deprivations of personal liberty be
authorized by national law, and not by administrative
regulation.\109\ Under the criminal justice system, a Chinese
citizen cannot be found guilty of any crime, even a ``minor
crime,'' without being judged guilty by a people's court.\110\
The Constitution makes explicit the inviolable nature of a
person's liberty and further dictates:
No citizen may be arrested except with the approval or
by decision of a people's procuratorate or by decision
of a people's court, and arrests must be made by a
public security organ. Unlawful deprivation or
restriction of citizens' freedom of person by detention
or other means is prohibited. . . .\111\
Nonetheless, Chinese authorities use RTL and other forms of
long-term administrative detention to circumvent the criminal
process and imprison offenders for ``minor crimes,'' without
judicial review and the procedural protections guaranteed by
the Chinese Constitution and Criminal Procedure Law.\112\
The UN Working Group on Arbitrary Detention (UNWGAD)
concluded that between its 1997 and 2004 visits, the Chinese
government had made no significant progress in reforming the
administrative detention system to ensure judicial review and
to conform to international law.\113\ Domestic pressure is
building to reform the RTL system, particularly in the National
People's Congress (NPC).\114\ Since March 2005, the NPC has
been considering a new Law on the Correction of Unlawful Acts
that would provide a basis in national law for RTL.\115\ The
draft law reportedly enhances the rights of RTL prisoners by
setting a maximum sentence of 18 months, and by permitting
defendants to hire a lawyer, request a hearing, and appeal
sentences imposed by public security officials in RTL
cases.\116\ Although the reforms would provide some added
procedural protections, the draft law would still not provide
an accused individual the opportunity to dispute the alleged
misconduct and contest law enforcement accusations of guilt
before an independent adjudicatory body.\117\ Public security
officials continue to dominate the decisions of RTL
administration commissions,\118\ which consist of officials
from the public security, civil affairs, and labor
bureaus.\119\ The Chinese government has argued that
administrative detention decisions are subject to judicial
review under the Administrative Procedure Law (APL), but the
UNWGAD found APL review ``of very little value'' and maintained
that ``no real judicial control has been created over the
procedure to commit someone to [reeducation] through labor.''
\120\
The UNWGAD also has found that the government's practice of
forced psychiatric commitment of criminal offenders is a ``form
of deprivation of liberty, since it lacks the necessary
safeguards against arbitrariness and abuse.'' \121\ The U.S.
State Department estimates that there are at least 20
ankang,\122\ or special psychiatric institutions for mentally
ill criminal offenders, in China. Public security officials can
forcibly commit ``political maniacs,'' and increasingly have
done so as a measure against those who repeatedly petition the
government such as Liu Xinjuan,\123\ or political activists
such as Wang Wanxing.\124\ The government deprives these
individuals of their liberty without judicial review.\125\
Treatment in these institutions is sometimes brutal, and
political prisoners are held along with patients suffering from
true mental illnesses.\126\ Upon his release in August 2005,
Wang called for the government to cease psychiatric detention
of those without mental illness and transfer administration of
ankang hospitals from public security
officials to psychiatric professionals.\127\ He added that the
inability to object to public security officials' determination
that one is
mentally ill ``makes it so difficult for the inmates to hope
for release--more difficult than in prison or in a labor camp,
where the punishments are for a fixed term.'' \128\
Torture and Abuse in Custody
Although illegal in China, torture and abuse by law
enforcement officers remain widespread.\129\ In March 2006,
Manfred Nowak, UN Special Rapporteur on Torture, reported that
Falun Gong practitioners make up the overwhelming majority of
victims of alleged torture [see Section V(d)--Freedom of
Religion--Government Persecution of Falun Gong], and that other
targeted groups include Uighurs, Tibetans, human rights
defenders, and political activists.\130\ About half of all
alleged acts of torture take place in pretrial criminal
detention centers or reeducation through labor (RTL) centers,
and 47 percent of alleged perpetrators are police or other
public security officials.\131\ Forms of torture and abuse
cited in Nowak's report include beating, electric shock,
painful shackling of the limbs, denial of medical treatment and
medication, and hard labor.\132\ Foreign news media and NGOs
reported that torture by law enforcement officers resulted in
the death of at least one detainee during the past year.\133\
The widespread use of torture in China violates both
domestic and international law. Chinese domestic law prohibits
judicial officers from coercing confessions under torture or
acquiring evidence through the use of force, and imposes
criminal liability on police and other corrections officers who
beat or maltreat prisoners, if the circumstances are
particularly ``serious.'' \134\ The government is further bound
by the provisions of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT) that
prohibit the use of torture.\135\ Nowak has said that the
government's definition of torture under the Criminal Law and
administrative regulations does not correspond fully to the
international standard as outlined in Article 1 of the
CAT.\136\ In addition, the government does not recognize the
competence of the Committee against Torture authorized under
the CAT to investigate allegations of systematic torture.\137\
Factors that perpetuate or exacerbate the problem of
torture in China include a lack of procedural safeguards to
protect criminal suspects and defendants, over reliance on
confessions of guilt, the absence of lawyers at interrogations,
inadequate complaint mechanisms, the lack of an independent
judiciary, and the abuse of administrative detention
measures.\138\ In late 2005 and early 2006, the U.S. State
Department and several faith-based organizations reported that
these factors and the pervasiveness of torture and abuse by
public security officials contributed to the conviction of
Pastor Gong Shengliang of the banned South China Church.\139\
Following their release from prison in late 2003 and early
2004, several female members of the church disclosed that
public security
officials tortured and forced them to sign statements accusing
Pastor Gong of the sexual crimes for which he was ultimately
convicted.\140\ Pastor Gong reportedly continues to be tortured
in prison,\141\ and is confined for a life term.
The Chinese government emphasizes its ongoing efforts to
pass new laws and administrative regulations preventing,
punishing, and compensating cases of torture by law enforcement
officers.\142\ Some of these new measures appeared after a
series of news media reports in 2005 on wrongful convictions
drew national attention to widespread abuses in the criminal
justice system and the continuing problem of torture.\143\ In
April 2005, the Sichuan provincial government prohibited the
use of evidence acquired through illegal means and introduced a
requirement that interrogation in ``major'' cases be
taped.\144\ Other provincial governments have not followed
Sichuan's lead in excluding illegally acquired evidence,\145\
but have shown more willingness to adopt the practice of audio
and video taping of interrogations as a preventive measure
against torture. In early 2006, the Supreme People's
Procuratorate mandated that by October 1, 2007, all
procuratorate interrogations of criminal suspects in job-
related crimes such as graft and dereliction of duty be audio
and video taped.\146\ At the March 2006 plenary session of the
National People's Congress, one deputy submitted a proposal
calling on the Ministry of Public Security (MPS) to mandate
tapings of police interrogations in cases of crimes punishable
by death.\147\ The MPS has announced that it will promote audio
and video taping of police interrogations in homicide and
organized crime cases, and that public security bureaus in
economically developed areas such as Shanghai and Beijing
municipalities have already adopted this practice.\148\ It has
no formal plans for nationwide implementation.
The Chinese government recognizes that problems of
misconduct, including physical abuse, exist within Chinese
prisons and RTL centers, and it is making progress toward
increasing accountability for such behavior. In February 2006,
the Ministry of Justice (MOJ) established punishments ranging
from warnings to dismissal and criminal liability for prison
and RTL police found to violate prohibitions against beating,
or instigating others to beat, prisoners.\149\ Under these new
regulations, police activities will be subject to regular
supervision and investigation by the MOJ and local justice
bureaus, to ensure that they comply with legal requirements.
Beijing municipal authorities have also imposed quality control
measures on prison police that authorize warnings, demotions,
and dismissals for misconduct including insults, beatings,
prolonged confinement, and isolation of inmates.\150\
Access to Counsel and Right to Present a Defense
Most defendants in China go to trial without a lawyer, and
domestic sources cite fear of law enforcement retribution and
the lack of legal protections for lawyers as major factors in
the low rate of representation.\151\ Chinese law grants
criminal defendants the right to hire an attorney, but
guarantees pro bono legal defense only if the defendant is a
minor, faces a possible death sentence, or is blind, deaf, or
mute.\152\ In other cases in which defendants cannot afford
legal representation, courts may appoint defense counsel or the
defendant may apply for legal aid.\153\ In late 2005, the
Chinese government expanded the scope of legal aid in criminal
cases and required public security bureaus and procuratorates
to notify all criminal suspects of their right to apply for
legal aid.\154\ Criminal suspects who cannot afford legal
services can now make a request for legal aid as early as the
investigative stage of their case, and do not have to wait
until formal indictment.\155\ Despite these advances, lawyers
represent criminal defendants in, at most, 30 percent of all
cases, and the rate of representation continues to drop.\156\
Government abuses of provisions in the Criminal Procedure
Law (CPL) have prevented some criminal defendants who are able
to find lawyers from meeting with them. Under Chinese law,
suspects have a right to meet with their lawyers after police
interrogation or from the first day of their formal
detention.\157\ Nevertheless, after the first interrogation,
police have manipulated legal exceptions to deny lawyers access
to their clients or otherwise obstruct or encumber such
access.\158\ The UN Working Group on Arbitrary Detention
identified China's use of the ``state secrets'' exception as
one area of particular concern, noting that authorities apply
the exception to improperly interfere with access to defense
counsel.\159\ In late 2005, Beijing lawyer Gao Zhisheng
attempted to register as defense counsel for democracy activist
Xu Wanping, but authorities refused to grant him access to Xu
on the grounds that the case involved ``state secrets.'' \160\
Authorities also held freelance writer Yang Tongyan (who uses
the pen name Yang Tianshui) without access to a lawyer or
contact with his family, again citing ``state secrets.'' \161\
According to Yang's lawyer, the inability of lawyers to get
involved during the investigative stage is a ``tacitly
understood, unwritten rule'' in political cases.\162\ Chinese
scholars have urged amending the CPL to allow for lawyers to be
present throughout the criminal process, beginning with the
interrogation of a criminal suspect, to help guard against
coerced confessions under torture and other abuses.\163\
Chinese law imposes procedural obstacles that make it
difficult for lawyers to build and present an adequate defense.
In practice, defense lawyers cannot start building a case until
the official investigation ends and a case is transferred to
the procuratorate.\164\ Even then, police and procurators often
deny lawyers access to government case files and information,
despite provisions in the CPL that are intended to guarantee
access to those materials.\165\ Defense lawyers can gather
information in support of their case from a witness, but must
obtain the consent of the witness or permission from a
procuratorate or court.\166\ In June and July, authorities
obstructed attempts by lawyers to meet with witnesses and
gather evidence in defense of legal advocate Chen
Guangcheng.\167\ Li Jinsong, one of Chen's defense lawyers,
reported that unidentified assailants attacked him during a
visit to Chen's home village, and that police officers stood by
and watched.\168\ In order to interview crime victims, defense
lawyers must obtain both the consent of the victim and
permission from a procuratorate or court.\169\ In addition,
about 95 percent of witnesses in criminal cases do not appear
in court to testify, in part due to hardship or fear of
reprisals.\170\ The inability of defense lawyers to cross-
examine witnesses undermines their ability to represent their
clients.\171\ Chinese scholars involved in the discussion of
potential amendments to the CPL suggest that a provision
requiring witnesses to appear in court should be written into
the law.\172\
In 2006, Chinese authorities increased restrictions on
lawyers who work on politically sensitive cases or cases that
draw attention from the foreign news media. The All China
Lawyers Association issued a guiding opinion that restricts and
subjects to punishment lawyers who handle collective cases
without authorization [see Section VII(c)--Access to Justice--
Access to Legal Representation]. Defense lawyers have also
reported that local authorities apply added pressure in cases
that involve systemic problems or large groups of people.\173\
In April 2006, local justice bureaus in at least two provinces
formalized this growing practice by issuing opinions to
restrict the scope of activities that lawyers are permitted to
undertake in particularly sensitive or high-profile cases [see
Section VII(c)--Access to Justice--Access to Legal
Representation].\174\ The opinion issued by the justice bureau
in Shenyang city, Liaoning province, emphasized the role of
Chinese lawyers as protectors of social stability and builders
of a harmonious society, and implied that these functions may
outweigh the defense of legally protected rights.\175\
Law enforcement officials intimidated lawyers defending
these cases by charging them, or threatening to charge them,
with various crimes [see Section IV--Introduction], including
``evidence fabrication'' under Article 306 of the Criminal
Law.\176\ Such charges often prove to be groundless.\177\ At
the March 2006 plenary session of the National People's
Congress, one delegate submitted a motion to eliminate the
Criminal Law's provision on evidence fabrication and noted its
chilling effect on criminal defense work.\178\ Since mid-2005,
local authorities have also used harassment and violent
measures against those who participated in criminal or civil
rights defense in sensitive matters such as the Shaanxi oil
case and Taishi recall election\179\ [see Section IV--
Introduction]. Asia Weekly included prominent legal advocates
and scholars Chen Guangcheng,\180\ Fan Yafeng,\181\ Gao
Zhisheng,\182\ Guo Feixiong,\183\ Guo Guoting,\184\ Li
Baiguang,\185\ Li Heping,\186\ Xu Zhiyong,\187\ Zhang
Xingshui,\188\ Zheng Enchong,\189\ and Zhu Jiuhu\190\ among
China's 14 ``Icons of 2005,'' \191\ but all have been placed
under surveillance or other government restrictions after
drawing news media attention to themselves and their legal
cases. Zhu Jiuhu was detained during the past year. Chen
Guangcheng was sentenced on August 24, 2006, to four years and
three months' imprisonment, and Zheng Enchong is currently
under house arrest after being released from prison on June 5,
2006. Gao Zhisheng has been held incommunicado since
authorities reportedly abducted him on August 15 from his
sister's home in Shandong province. Guo Feixiong was arrested
and later released in late 2005, and is currently in detention
after being taken from his home on September 14.
Fairness of Criminal Trials and Appeals
China's criminal justice system is strongly biased toward
presumptions of guilt, particularly in cases that are high-
profile or politically sensitive.\192\ The conviction rate for
first instance criminal cases rose slightly and remained above
99 percent in 2005.\193\ After Chinese reports disclosed in
2005 that official malfeasance had led to the wrongful murder
conviction of She Xianglin, a local court official blamed the
miscarriage of justice on negligence by investigative
personnel, intense public pressure, and a heavy presumption of
guilt throughout the criminal process.\194\ The local court,
city government, and public security bureau all acknowledged
wrongdoing in She's case and agreed to provide compensation or
subsidy based on his wrongful imprisonment, physical and
emotional damages, lost wages, and reintegration into
society.\195\ She Xianglin's case sets a potential precedent
for similar claims based on wrongful conviction and
imprisonment. Reports of wrongful murder convictions in Hebei,
Henan, Liaoning, and Shaanxi provinces appeared in the news
throughout 2005, and similarly called into question the
fairness of those trials and the criminal process.\196\
Reports of wrongful convictions indicate that public
security officials and procurators rely heavily on pretrial
witness statements to support their case,\197\ despite
provisions in the Criminal Procedure Law (CPL) that say such
statements cannot serve as the sole basis for a criminal
judgment.\198\ In February 2006, an intermediate people's court
in Chongqing municipality reversed its original death sentence
against a man convicted of robbery, and called into question
the procuratorate's heavy reliance on pretrial statements that
were later retracted during the trial.\199\ One Chinese legal
scholar has reported that retraction of pretrial statements is
increasing, and that in recent years, the reliability of
pretrial statements has become increasingly suspect.\200\
According to one criminal defense lawyer, even when lawyers
and judges believe that a defendant may be innocent, ``external
factors'' may nonetheless lead to a criminal conviction.\201\
Senior court officials and Party political-legal committees
continue to influence judicial decisionmaking, particularly in
sensitive or important criminal cases\202\ [see Section
VII(c)--Access to Justice--The Chinese Judicial System]. In
addition, Chinese procurators may appeal acquittals as a matter
of right or request ``adjudication supervision'' from higher
courts until they obtain a guilty verdict.\203\ In practice,
procurators have incentives to do so, since they face potential
liability and professional sanction for wrongful detention if a
criminal suspect is acquitted.\204\
Chinese defendants who are judged to be guilty face limited
prospects for reversal of their conviction, due to procedural
and other barriers. In one case during the past year, Beijing
court officials pressured house church pastor Cai Zhuohua into
giving up his right to an appeal,\205\ even though provisions
under the CPL guarantee this right.\206\ If an appeals court
finds a case to be based on questionable or incomplete
evidence, it may send the case back to a court of first
instance for retrial.\207\ However, courts of first instance
have incentives not to change their original judgments because
they face potential liability and professional sanction for
incorrect decisions\208\ [see Section VII(c) --Access to
Justice--The Chinese Judicial System]. Procedural provisions do
not limit the number of times an appeals court may send the
case back for retrial, so some cases based on questionable or
incomplete evidence have bounced back and forth between courts,
sometimes for several years while the defendant remains in
prison.\209\
Capital Punishment
Chinese criminal law includes 68 capital offenses, over
half of which are non-violent crimes such as tax evasion,
bribery, and embezzlement.\210\ The Chinese government
reportedly has adopted an ``execute fewer, execute cautiously''
policy, but the government publishes no official statistics on
the number of executions and considers this figure a state
secret.\211\ Some Chinese sources have estimated that the
annual number of executions in China is in the thousands.\212\
In 2006, the Chinese judiciary made reform of the death
penalty review process a top priority and introduced new
appellate court procedures for hearing death penalty cases.
After news accounts of several wrongful murder convictions in
2005, the Supreme People's Court (SPC) convened seminars to
help lower-level courts draw lessons from judgments made in
error.\213\ In October 2005, the SPC announced that it would
consolidate and reclaim the death penalty review power from
provincial-level high courts, as part of a five-year court
reform program for 2004 to 2008.\214\ Court officials emphasize
that returning the power of death penalty review to the SPC
will play a significant role in limiting the use of death
sentences, consolidating criteria used by courts to administer
those sentences, and ensuring constitutionally protected human
rights.\215\ The SPC's five-year court program also mandates
that in 2006, provincial-level high courts will begin to
conduct hearings on all death penalty appeals.\216\ At these
hearings, courts are required to conduct a ``comprehensive
examination'' of the trial court's conclusions of fact and law,
and to ensure that key witnesses, expert witnesses,
procurators, and lawyers appear in court.\217\ Some provincial-
level high courts began implementing these requirements in
January 2006, and have commented that court hearings help them
to minimize wrongful executions and to provide greater
protection to criminal defendants.\218\
The Chinese government took positive steps toward reform of
death penalty procedures in 2006, but legal scholars and
professionals question how these steps will be implemented in
practice. In 2005, provincial-level high courts reviewed nearly
90 percent of death sentences handed down in China.\219\ The
SPC has added three criminal tribunals to cope with the
additional work from
reclaiming death penalty review from the high courts, and has
already transferred hundreds of court personnel to staff the
new tribunals.\220\ Scholars at the National Judges College,
however, expressed concern that three new criminal tribunals
would require training at least 300 new judges.\221\ Moreover,
early reports indicate that provincial-level high courts do not
agree about which cases require court hearings under the law,
or about the specific procedures that they should apply to
hearings.\222\ The SPC has not yet issued a judicial
interpretation to help settle unresolved issues in the death
penalty review process and further clarify its own
procedures.\223\
Harvesting of Organs From Executed Prisoners
In July 2005, Huang Jiefu, Vice Minister of Health, became
the first senior official to acknowledge that the majority of
organs used in transplants in China originate from executed
prisoners.\224\ Other officials maintain that organ harvesting
is limited to a few cases in which the express consent of the
condemned convicts has been obtained, and pursuant to strict
legal regulations.\225\ In 2006, new reports from overseas
medical and legal experts condemned the government's continuing
practice of harvesting organs from executed prisoners without
their consent.\226\
Existing Chinese law legalizes the harvesting of organs
from executed prisoners, but does not regulate the practice in
a way that conforms to international standards. Under the World
Health Organization's guiding principles on human organ
transplantation, organ donations by prisoners, even when
reportedly voluntary, may nonetheless violate international
standards if the organs are obtained through undue influence
and pressure, or if insufficient information prevents the donor
from understanding the consequences of consent.\227\ Ministry
of Health regulations that became effective on July 1, 2006,
include new medical standards for organ transplants in
China.\228\ These regulations do not provide guidance, however,
on what type of consent is required for taking organs from
executed prisoners, and leave intact 1984 provisions that
legalize organ harvesting if no one claims the prisoner's body
for burial.\229\
Criminal Justice Exchanges
Chinese scholars and officials continued to engage foreign
governments and legal experts on a range of criminal justice
issues during late 2005 and 2006. Chinese law enforcement
agencies expressed a growing interest in cooperating with other
countries to combat transnational crime,\230\ and in expanding
cooperation with U.S. law enforcement agencies on money
laundering, fighting terrorism, and other issues.\231\ Numerous
international conferences and legal exchanges with Western
NGOs, judges, and legal experts took place, including programs
on public accountability, pretrial discovery, evidence
exclusion, criminal trials and procedure, bail, capital
punishment, prison reform, and other subjects.\232\
Participants in these programs encouraged more such
exchanges.\233\
The Chinese government continues to engage the
international community on human rights and rule of law issues,
including those related to the criminal justice system. The
government hosted visits by the UN Special Rapporteur on
Torture from November to December 2005\234\ and the UN High
Commissioner for Refugees in March 2006.\235\ Both UN officials
commended the Chinese government for its open attitude toward
increased dialogue,\236\ but Manfred Nowak, UN Special
Rapporteur on Torture, also reported that his work was
monitored and obstructed by Chinese authorities.\237\ On May 9,
2006, China was elected to serve for a three-year term on the
newly established UN Human Rights Council.\238\ The
government's application for membership in the Council noted
that it has acceded to 22 international human rights accords,
including five of the seven core conventions.\239\ In addition,
the government reports that it plans to amend its Criminal,
Civil, and Administrative Procedure Laws and reform the
judiciary to prepare for ratification of the International
Covenant on Civil and Political Rights.\240\ As a member of the
new Council, the government has pledged to fulfill its
obligations under the terms of these accords,\241\ and is
obligated under the rules of the Council to submit to peer
review of its human rights record.\242\
V(c) Protection of Internationally Recognized Labor Rights
findings
<bullet> The Chinese government does not respect the
internationally recognized right of workers to organize
their own unions. The All-China Federation of Trade
Unions (ACFTU), a Party-led mass organization, is the
only legal labor federation in China. It controls local
union branches and aligns worker and union activity
with government and Party policy. The ACFTU began a
campaign in March 2006 to establish union branches in
foreign enterprises doing business in China. Chinese
workers who attempt to form independent workers'
organizations, or whom the government suspects of being
leaders of such organizations, risk imprisonment. The
government secretly tried labor rights activist Li
Wangyang and sentenced him to 10 years' imprisonment in
September 2001 for staging a peaceful hunger strike. Li
had previously served most of a 13-year sentence for
organizing an independent union. In May 2003, the
government sentenced labor activist Yao Fuxin to a
seven-year prison term for peacefully rallying workers
to demand wage and pension arrearages from a bankrupt
state-owned enterprise. Li and Yao remain in prison.
<bullet> Weak protection of worker rights has
contributed to an increase in the number of labor
disputes and protests. According to ACFTU figures, the
number of labor disputes rose sharply in 2005. The
ACFTU reports that there were 300,000 labor-related
lawsuits filed, a 20.5 percent increase over 2004 and a
950 percent increase compared to 1995. Strikes,
marches, demonstrations, and collective petitions
increased from fewer than 1,500 in 1994 to about 11,000
in 2003, while the number of workers involved increased
from nearly 53,000 in 1994 to an estimated 515,000 in
2003. Poor workplace health and safety conditions and
continuing wage and pension arrearages were the most
prominent issues resulting in labor disputes during the
past year. Chinese industry continues to have a high
accident rate, with death rates in the mining and
construction industries leading other sectors.
According to official statistics, 110,027 people were
killed in 677,379 workplace accidents through December
2005, and more than 10,000 workers died in the mining
and construction sectors during 2005.
<bullet> Forced labor is an integral part of the
Chinese administrative detention system. Authorities
sentence some prisoners without judicial review to
reeducation through labor (laojiao) centers, where they
are forced to work long hours without pay to fulfill
heavy production quotas, and sometimes are tortured for
refusing to work. China's Labor Law prohibits forced
labor practices in the workplace, and authorities have
arrested employers who trap workers at forced labor
sites. In 2002, the Chinese government began to
cooperate with the International Labor Organization on
broad issues of concern regarding forced labor,
including on potential reforms to the reeducation
through labor system, and on improving institutional
capacity to combat human trafficking for labor
exploitation.
<bullet> The use of child labor in some regions of
China is reportedly on the rise. Labor shortages in the
economically developed southern and eastern coastal
provinces are causing employers to turn to child
laborers, according to NGO reports. This development
coincides with intensified efforts by the Ministry of
Justice and the Ministry of Labor and Social Security
to fight the illegal employment of children, suggesting
that the government is more concerned about such abuses
than before. Government authorities consider statistics
on child labor that have not been officially approved
for release to be ``state secrets,'' and this policy
thwarts efforts to understand the extent and causes of
the problem.
<bullet> In 2006, the U.S. and Chinese governments
continued to conduct a series of bilateral cooperative
activities on wage and hour laws, occupational safety
and health, mine safety and health, and pension program
oversight.
Internationally Recognized Labor Rights
The Chinese government is committed through its membership
in the International Labor Organization (ILO) to respect a
basic set of internationally recognized labor rights for
workers: the freedom of association and the right to collective
bargaining, the elimination of forced labor, the abolition of
child labor, and non-discrimination in employment and
occupation. The ILO's Declaration on the Fundamental Principles
and Rights at Work (1998 Declaration) commits ILO members ``to
respect, to promote and to realize'' these fundamental rights
based on ``the very fact of [ILO] membership.'' \1\ China is a
founding member of the ILO, and has been a member of the ILO
Governing Board since June 2002.\2\
The ILO's eight core conventions provide guidance on the
full scope of worker rights and principles enumerated in the
1998 Declaration.\3\ Many ILO members have not ratified all of
these core conventions, but each member is committed to respect
the fundamental right or principle addressed in each.\4\ China
has ratified four of the eight ILO core conventions, including
two core conventions on the abolition of child labor (No. 138
and No. 182) and two on non-discrimination in employment and
occupation (No. 100 and No. 111).\5\ The ILO reports that the
Chinese government is preparing to ratify the two core
conventions on forced labor (No. 29 and No. 105).\6\
Chinese labor law generally incorporates the basic
obligations of the ILO's eight core conventions, with the
exception of the provisions relating to the freedom of
association and the right to collective bargaining.\7\ The
Chinese government's failure to implement existing labor
regulations, however, and the general lack of awareness
regarding worker rights among citizens, renders most of the
protective aspects of Chinese labor law ineffective. The
administrative detention system prescribes forced labor as a
punishment for those accused of ``minor crimes'' [see Section
V(b)--Rights of Criminal Suspects and Defendants--
Administrative Detention],\8\ in contravention of the 1998
Declaration, relevant ILO conventions,\9\ and Article 8 of the
International Covenant on Civil and Political Rights
(ICCPR).\10\
In March 2001, the Chinese government ratified the
International Covenant on Economic, Social, and Cultural Rights
(ICESCR), which guarantees the right of workers to strike, the
right of workers to organize independent unions, the right of
trade unions to function freely, the right of trade unions to
establish national federations or confederations, and the right
of the latter to form or join international trade union
organizations. The Chinese government took a reservation to
Article 8(1)(a) of the ICESCR, which guarantees workers the
right to form free trade unions. The government asserted that
application of the article should be consistent with the
Chinese Constitution and the Trade Union Law. The Trade Union
Law does not allow for the creation of independent trade
unions.\11\
Freedom of Association
The Chinese government does not respect the internationally
recognized right of workers to organize their own unions.
Article 22 of the International Covenant on Civil and Political
Rights guarantees that ``[e]veryone shall have the right to
freedom of association with others, including the right to form
and join trade unions for the protection of his interests.''
The All-China Federation of Trade Unions (ACFTU), a Communist
Party-led mass organization, is the only legal labor federation
in China. It controls local union branches and aligns worker
and union activity with government and Party policy.\12\ The
Trade Union Law requires the ACFTU to ``uphold the leadership
of the Communist Party.'' \13\ Wang Zhaoguo, the current ACFTU
chairman, is a Politburo member, and the Party, not union
members, selected him as ACFTU chairman.\14\ Article 10 of the
Trade Union Law establishes the ACFTU as the ``unified national
organization,'' and Article 11 mandates that all unions must be
approved by the next higher-level union body, giving the ACFTU
an absolute veto over the establishment of any local union and
the legal authority to block the formation of independent
workers' associations.\15\ Article 15 of the ACFTU constitution
stipulates that the establishment of an ACFTU branch in a
factory ``must be endorsed by its general membership or
membership congress.'' \16\ Most workers, however, do not vote
in union elections and most officials are appointed to their
union posts.\17\
Since 2004, ACFTU and Party officials have made major
efforts to expand their control over non-unionized groups of
workers. In 2004, the ACFTU announced the target of recruiting
6.6 million workers per year from 2004 to 2008.\18\ It also
launched a major recruitment drive aimed at migrant
workers.\19\ Authorities permitted migrant workers to become
union members for the first time in 2003, but ACFTU officials
announced in 2006 that only 13.8 percent of the total migrant
workforce has been ``unionized.'' \20\
The ACFTU began a campaign in March 2006 to establish
unions in foreign enterprises doing business in China,
including Wal-Mart, Kentucky Fried Chicken, McDonald's, and
Samsung.\21\ ACFTU officials noted in July that some 60 percent
of the 500,000 foreign enterprises in China have not
established ACFTU branches,\22\ and made the promotion of
unions within foreign enterprises a priority for the second
half of 2006.\23\ ACFTU Chairman Wang Zhaoguo proposed an
amendment to the Trade Union Law on July 5 that would
specifically require foreign enterprises to establish ACFTU-
affiliated unions.\24\ ACFTU pressure has led to the creation
of some local branches in foreign enterprises doing business in
China. In July and August, unions were established in 17 Wal-
Mart stores in China.\25\ The ACFTU's campaign to establish
unions in foreign enterprises followed a March directive issued
by top Party leaders ordering the establishment of Party
committees and trade unions in foreign enterprises as a means
to counter social unrest.\26\ Labor experts have noted that the
ACFTU's 2006 efforts to expand the number of local branches in
foreign enterprises is an effort to respond to declining ACFTU
membership, increasing labor protests, efforts by Chinese
workers to organize independent unions, and an increase in the
percentage of the workforce composed of non-unionized migrant
workers.\27\
Some local authorities have experimented with using direct
elections to choose the leaders of union branches, but Party
authorities and higher-level ACFTU officials retain control
over the selection and approval of candidates.\28\ ACFTU
officials in Hubei province began an experimental program of
direct elections for union officials in 2004, and issued a
directive in July 2005 to implement the program on a province-
wide basis by 2009.\29\ The Hubei regulations provide that
higher-level ACFTU officials and Party authorities are
responsible for choosing the electoral leadership groups that
determine candidate eligibility. These authorities also approve
the specific proposals of individual union branches about how
to conduct their direct elections.\30\
Chinese workers who attempt to form independent workers'
organizations, or whom the government suspects of being leaders
of such organizations, risk imprisonment. The government
secretly tried labor rights activist Li Wangyang and sentenced
him to 10 years' imprisonment in September 2001 for staging a
peaceful hunger strike. Li had previously served most of a 13-
year sentence for organizing an independent union.\31\ In May
2003, the government sentenced labor activist Yao Fuxin to a
seven-year prison term for rallying workers to demand payment
of wage arrearages and pension benefits from a bankrupt state-
owned enterprise in Liaoning province.\32\ Yao reportedly
suffers from serious medical problems resulting from his
imprisonment.\33\ Li and Yao remain in prison.
Right to Collective Bargaining
Chinese labor law does not prohibit collective bargaining,
but the absence of independent unions to represent worker
interests makes the concept of bargaining with employers on
behalf of workers incompatible with the Chinese labor
system.\34\ Trade union officials at the enterprise level
function as part of the enterprise management structure for
whom, according to three Western and Chinese labor experts,
``the idea of representing and protecting the legitimate rights
and interests of their members in opposition to those of the
employer is something unfamiliar, if not totally alien.'' \35\
Although collective bargaining does not exist, trade union
officials are permitted under Article 20 of the Trade Union Law
to facilitate a process of ``equal consultations'' between
workers and employers that can result in a ``collective
contract.'' \36\ The Provisions on Collective Contracts, issued
by the Ministry of Labor and Social Security (MOLSS) in January
2004, detail the specific content which may be included, and
the procedures for negotiating, such contracts.\37\ Once
concluded, the collective contract is legally binding on both
employer and employees, but the contract generally
includes only the ``bare-boned reflections of labor statutory
minimums,'' according to one Western scholar.\38\ Another group
of Western and Chinese academics examining collective contracts
and the consultation process concluded in 2004 that trade
unions defer to the employer on any contentious issue. Both the
union and the employer are reluctant to include any provisions
in the collective contract that ``might subsequently provide
grounds for a grievance or dispute.'' \39\ Collective contracts
covered more than 103 million Chinese workers at the end of
September 2005, out of a total urban labor force of around 250
million.\40\ The majority of collective contracts are not
actually negotiated, but rather model agreements endorsed by
the employer and union without the direct involvement of
workers.\41\ In addition, most collective contracts are
``single-issue'' agreements, usually pertaining to wages,
rather than comprehensive agreements covering all aspects of
labor relations.\42\
The Chinese labor dispute resolution process does not
provide workers with meaningful union support to address
workplace grievances. Labor disputes in China are channeled
through the government's three-stage labor dispute resolution
process: mediation,
arbitration, and litigation.\43\ Workers enter the first stage
of dispute resolution without union representation. Article 80
of the Labor Law designates the union branch chief to serve as
chair of the labor dispute mediation committee.\44\ As chair,
the union official mediates on an equal basis between employer
and employee, and does not represent the employee in the
dispute. If mediation fails, either party may apply to an
arbitration committee for a hearing.\45\ The high cost of
arbitration discourages workers from applying. According to one
National People's Congress (NPC) delegate, labor arbitration
typically costs 420 yuan (US$52.39), about half the average
monthly wage for Chinese workers.\46\ Workers who choose to
arbitrate face other obstacles to achieving a fair outcome.
Article 81 of the Labor Law designates a ``tripartite
structure'' for the arbitration committee: the employer's
representative, the union's representative, and the
government's local labor bureau representative, who serves as
chair.\47\ In effect, the local labor bureau representative, in
consultation with two representatives from the enterprise
management team, decides how to rule on a worker's
complaint.\48\
Chinese authorities currently are experimenting with
reforms to the labor dispute resolution system. The Supreme
People's Court issued a judicial interpretation on August 14
that allows workers seeking to recover back wages to bypass the
labor arbitration process and sue directly in court.\49\ Some
authorities have supported the creation of arbitration
tribunals, which are specialized sub-divisions of arbitration
committees, to resolve labor disputes. Chinese news media
reports note that the creation of these tribunals is an effort
to make arbitration determinations ``more neutral'' by
separating the administrative functions of the arbitration
committees from hearing and deciding cases.\50\ These tribunals
also conduct mediation in addition to their arbitration work.
Shenzhen authorities created the first such tribunal in
2001,\51\ and the MOLSS reported in May 2006 that Chinese
authorities have since established 116 of the tribunals
throughout China.\52\ Descriptions of the work responsibilities
for some of the provincial tribunals emphasize that they should
handle ``major,'' ``cross-provincial,'' or ``emergency''
events, suggesting that the tribunals may be focused on
handling specifically designated, high-profile cases.\53\
The courts are the final recourse for resolving labor
disputes, pursuant to Article 83 of the Labor Law.\54\ The All-
China Federation of Trade Unions (ACFTU) reports that there
were 300,000 labor-related lawsuits filed in 2005, a 20.5
percent increase over 2004 and a 950 percent increase compared
to 1995.\55\ Like arbitration, litigation costs are high, which
``results in many workers being unable to afford a lawyer or to
even bring the case to court,'' according to one Chinese legal
scholar.\56\ The scholar
recommended in December 2005 to the NPC Standing Committee that
the NPC should enact a labor dispute resolution law that would
allow courts to hear labor cases with simplified, less
expensive procedures that better protect worker rights. The law
should include evidentiary rules that do not discriminate
against workers, the scholar said.\57\ She criticized the
current three-stage process for labor dispute resolution as
``more complex than the procedure for resolving regular civil
disputes,'' and recommended that parties to certain types of
labor disputes be able to choose to litigate directly without
meeting the current precondition that parties first complete
arbitration.\58\
Draft Labor Contract Law
The National People's Congress (NPC) circulated a draft of
a new Labor Contract Law for public comment in early 2006,\59\
the first law that would govern exclusively the establishment,
revocation, and termination of labor contracts, and the rights
of workers and employees who sign them.\60\ During the one-
month period for public comment, the NPC received over 190,000
comments, and claimed that over 65 percent of these were
submitted by Chinese workers.\61\
Current Chinese law mandates labor contracts, but
implementation and enforcement of this mandate have been poor.
Chapter 3 of the Labor Law outlines the requirements and
procedures for individual and collective labor contracts, and
Article 16 mandates labor contracts between workers and
employers.\62\ A recent NPC survey found that less than 20
percent of small- and medium-size private enterprises use labor
contracts.\63\ According to a survey published in 2006, 46
percent of migrant workers did not have labor contracts with
their employers.\64\ Current law is deficient in that the
contractual relationship between enterprises and workers hired
though labor contractors is not defined. The widespread use of
both legal and illegal labor contractors results in numerous
cases of non-payment, underpayment, or late payment of wages,
especially in the construction sector. Moreover, when labor
contractors fail to give contracts to the workers they hire and
assign to enterprises, the workers often cannot prove a
contractual relationship with the enterprise, which is the
principal employer for whom they have performed the work.\65\
The State Council compiled the draft Labor Contract Law for
NPC consideration to increase the formation rate for written
labor contracts. The draft law provides for a ``contractual
relationship'' in situations where employers do not sign
written contracts with their employees,\66\ and it standardizes
labor contract rules and procedures in a way that ``tilts more
toward workers,'' according to an All-China Federation of Trade
Unions official.\67\ The Ministry of Labor and Social Security
began a three-year effort, concurrent with consideration of the
draft law, to compel all employers to sign labor contracts with
their workers, as required under the existing Labor Law.\68\
Some companies that have complied with Chinese labor
contract regulations are concerned that the draft law includes
provisions that would be both expensive and cumbersome to
business owners,\69\ and would take away market-driven
flexibility in hiring and firing.\70\ These provisions include
a requirement that workers receive severance pay if fixed-term
contracts expire and are not renewed, and a mandatory payment
equaling an employee's annual salary to enforce non-compete
agreements.\71\
One article in the Chinese state-controlled media
criticized portions of the proposed draft for being too weak,
pointing out that it does not cover part-time workers or
students engaged in work-study programs, that it fails to
provide definitions for key terms such as ``technical'' and
``non-technical'' positions, and that the sanctions it applies
on employers who withhold workers' wages in bad faith do not
exceed the requirements of existing labor regulations.\72\
ACFTU Role in Protecting Worker Rights
The careers of union leaders are tied to their rank in the
Communist Party, and local union officials generally are
recruited from enterprise management. This system compromises
the ability and willingness of unions to defend worker rights
when they conflict with Party or employer interests.\73\
Article 6 of the Trade Union Law calls on unions to ``represent
and safeguard the legitimate rights and interests of workers,''
\74\ but in practice this directive means that unions help
workers only in ways that do not conflict with government and
Party policy, such as by managing welfare assistance programs
for workers and organizing social events. Some local unions,
however, have developed innovative programs to help workers,
within the limits of government and Party policy. For example,
the Tianjin Trade Union Council has developed new procedures to
aid unemployed workers, monitor safety problems and accidents,
and resolve employee-employer disputes.\75\
Some national-level All-China Federation of Trade Unions
(ACFTU) programs have had a positive impact on worker rights,
while also maintaining consistency with government policy
goals. ACFTU efforts in the past year to expand the
availability of legal aid services to workers, and to improve
worker knowledge of the dispute resolution process, are part of
the central government's policy responses to Party concerns
about growing social unrest\76\ [see Section VII(c)--Access to
Justice]. According to news media reports from early 2006,
nearly 4,000 legal aid offices were established by ACFTU
branches in 2005. Provincial branches must establish a legal
aid office by the end of 2006, but county branches have three
years to do so.\77\ In 2005, the Shenzhen Federation of Trade
Unions' legal aid efforts included outreach to ensure that
workers understand their rights in cases of unlawful discharge,
occupational injury, and compensation arrearages.\78\ In June
2006, the ACFTU and the State Administration of Work Safety
began a program to inspect mining, construction, and
manufacturing worksites to ensure safe conditions for migrant
workers.\79\
Elimination of Forced Labor
Forced labor is an integral part of the Chinese
administrative detention system [see Section V(b)--Rights of
Criminal Suspects and Defendants--Administrative Detention].
Authorities sentence some prisoners without judicial review to
reeducation through labor (RTL, or laojiao) centers, where they
are forced to work long hours without pay to fulfill heavy
production quotas, and sometimes are tortured for refusing to
work.\80\ Prisoners in RTL centers have suffered physical
injuries from extended periods of repetitive labor, and former
prisoners report that fainting from exhaustion is common.\81\
The Chinese government continues to deny the International
Committee of the Red Cross access to such centers.
China's Labor Law prohibits forced labor practices in the
workplace,\82\ and authorities have arrested employers who trap
workers at forced labor sites. Article 96 of the Labor Law
prohibits employers from ``compelling workers to work by the
use of force, threat or by resorting to the means of
restricting personal freedom,'' \83\ but only specifies light
penalties for violators including a warning, fine, or 15 days
in custody for the person in charge.\84\ Chinese press
reports over the past year, however, have described some
instances of overseers coercing workers to remain in factories
or fields for work without pay, and beating or torturing those
who try to
escape.\85\
In 2002, the Chinese government began to cooperate with the
International Labor Organization (ILO) on broad issues of
concern regarding forced labor, including potential reforms to
China's RTL system, to prepare for the eventual ratification of
the ILO's two conventions on forced labor.\86\ Since September
2004, the ILO's Special Action Program to Combat Forced Labor
has been working with the Chinese Ministry of Labor and Social
Security to improve institutional capacity within China to
address the law enforcement aspects of the trafficking cycle,
and to assist employers' and workers' organizations in
identifying cases of forced labor\87\ [see Section V(e)--Status
of Women--Human Trafficking].
Prison Labor Products
Section 307 of the Tariff Act of 1930 prohibits the import
of goods made by prisoners into the United States.\88\ The
United States and China signed a Memorandum of Understanding in
1992 to prevent the import into the United States of prison
labor products. A subsequent agreement in 1994 permits U.S.
officials, with Chinese government permission, to visit prison
facilities suspected of producing products for export to the
United States.\89\ The U.S.-China Relations Act of 2000 created
a Prison Labor Task Force to monitor and promote enforcement of
U.S. law in this area.\90\ In 2005, the Chinese government
cooperated with the Task Force to resolve a number of alleged
cases of prison labor products being exported to the United
States.\91\
Although goods made in Chinese prisons probably do not
constitute a large percentage of overall Chinese imports into
the United States, the types of products produced by prisoners,
and the commercialization of the Chinese prison system, make
prison labor products difficult to detect. Many prison labor
goods are produced under abusive conditions,\92\ and Chinese
prisoners cannot refuse to produce goods for the commercial
market.\93\ Although the term laogai, or reform through labor,
has been expunged from the Criminal Law as a term describing
one form of criminal punishment, Western and Chinese experts
estimate the number of commercial prison factories in China to
be in the thousands.\94\ One senior Chinese official expressed
concern in 2004 about the commercial use of prison labor as a
source of official corruption, and noted instances of prison
administrators mixing prison-made goods with those from
ordinary commercial enterprises.\95\
Abolition of Child Labor
The use of child labor in some regions of China is
reportedly on the rise, according to analyses over the past
year by NGOs with expertise on Chinese labor issues.\96\ State-
controlled media reported in June that the Ministry of Justice
and the Ministry of Labor and Social Security intensified their
efforts ``to fight illegal employment of child laborers,''
suggesting that the government is more concerned about such
abuses than before.\97\ Article 15 of the Labor Law prohibits
employing children under the age of 16, and Article 94 provides
for punishment of businesses that employ children, including
revocation of their business licenses.\98\ Chinese law bars
employers from hiring juvenile workers between 16 and 18 years
old to engage in mining, or highly strenuous or hazardous work,
and requires employers to provide such workers with regular
health inspections.\99\ The State Council issued a rule in
September 2002 requiring employers to check identity cards to
verify age, and imposing fines of 5,000 yuan (US$625) a month
for each child laborer employed.\100\ Government authorities
consider statistics on child labor that have not been
officially approved for release to be state secrets, and this
policy thwarts efforts to understand the extent and causes of
the problem.\101\
Labor shortages in the economically developed southern and
eastern coastal provinces are causing employers to turn to
child laborers, according to NGO reports.\102\ Hong Kong news
media has reported on employers who exploit child labor by
recruiting underage students to work in factories as
``interns.'' In one press report, teachers at a school in
Shaanxi province arranged for about 600 students to be employed
in a joint venture electronics factory in southern China. At
the time of the report, more than 240 students were working on
the factory's assembly lines for up to 14 hours a day of
``practical training.'' \103\ Although factory owners may
legally employ interns, employers abuse internship programs
when they rely on students as a large percentage of their
workforce and do not pay them fairly for work performed,
according to one publication on corporate social responsibility
issues in China.\104\
Hong Kong based experts have asserted that the Chinese
education system is partly to blame for the problem of child
labor because insufficient state funding, expensive local
surcharges, and an excessive focus on college entrance exams
leads many students to drop out of school.\105\ Poverty also
leads to child labor abuses. Some poor families send children,
frequently girls, to find work as a means of support.\106\
Other children work because their families cannot afford to pay
school tuition fees, or because schools have hired them out to
fill budget shortfalls.\107\
Non-discrimination in Employment and Occupation
The Constitution, Labor Law, and Law on the Protection of
Interests and Rights of Women all contain provisions that
guarantee women non-discrimination in employment and
occupation\108\ [see Section V(e)--Status of Women]. The Rules
on Collective Contracts issued in December 2003 contain
``special protections'' for women, including provisions on
pregnancy and breastfeeding in the workplace.\109\ The Chinese
government has also begun national development programs to
improve the status of women.\110\ Despite these efforts and
legal protections, both urban and rural women in China have
limited earning power compared to men, and women lag behind men
in finding employment in higher-wage urban areas.\111\
Some local authorities provide job training and
reemployment services for women,\112\ and civil society groups
may advocate for women's rights within the confines of
government and Party policy [see Section V(e)--Status of
Women--Gender Disparities]. For example, the Center for Women's
Law and Legal Services at Peking University submitted a
petition in March 2006 to the National People's Congress (NPC)
Standing Committee requesting constitutional review of a
regulation that requires women workers to retire five years
before men.\113\ The petition recommended that a future Chinese
Pension Law include a provision for a flexible retirement
system that allows both men and women to retire at or around 60
years of age.\114\ As of August 2006, the NPC Standing
Committee had not responded to the petition,\115\ and it has no
legal obligation to do so [see Section VII(c)--Access to
Justice--Constitutional
Review].
Article 4 of the Chinese Constitution prohibits ethnic
discrimination,\116\ and Article 12 of the Labor Law forbids
discrimination in job hiring on the basis of ethnicity.\117\
Nevertheless, ethnic discrimination continues to exist
throughout China in both private and governmental hiring
practices. Some Han Chinese entrepreneurs in ethnic minority
areas recruit Han workers from other areas rather than hiring
local minorities.\118\ Tibetans have reported discrimination in
job hiring.\119\ According to the head of the Qinghai-Tibet
railway construction project, 10,000 of 100,000 workers
employed were Tibetan,\120\ and most of the Tibetan workers
were employed in menial labor positions.\121\ In the Xinjiang
Uighur Autonomous Region (XUAR), personnel decisions in 2005
and 2006 explicitly favored Han Chinese over minorities. In
April 2005, for example, the government specified that 500 of
700 new civil service positions in the southern XUAR would be
reserved for Han Chinese.\122\ In June 2006, the Xinjiang
Production and Construction Corps announced it would recruit
840 civil servants from the XUAR, designating almost all of the
job openings for Han Chinese and reserving 38 positions for
members of specified minority groups.\123\
Conditions for China's Workers
Weak protection of worker rights has contributed to an
increase in the number of labor disputes and protests.
According to All-China Federation of Trade Unions (ACFTU)
figures, the number of labor disputes rose sharply in 2005. The
ACFTU reports that there were 300,000 labor-related lawsuits
filed, a 20.5 percent increase over 2004 and a 950 percent
increase compared to 1995.\124\ Strikes, marches,
demonstrations, and collective petitions increased from 1,482
in 1994 to about 11,000 in 2003, while the number of workers
involved increased from 52,637 in 1994 to an estimated 515,000
in 2003.\125\ Participants in all labor disputes rose from
77,794 in 1994 to nearly 800,000 in 2003.\126\ Poor workplace
health and safety conditions and continuing wage and pension
arrearages were the most prominent issues resulting in labor
disputes during the past year. Workers in all parts of China
have difficulty collecting the wages that they are owed for
work performed. Workers in the construction sector have the
most problems with wage arrearages,\127\ and the continuing
building boom, along with new construction for the 2008
Olympics in Beijing, will challenge central and local
governments to ensure that workers are paid promptly.
Workplace Health and Safety Conditions
Workplace health and safety conditions in China remain
poor, despite central government statements about the need to
improve safety and despite efforts at the enterprise level to
cut the rate of industrial accidents. Chinese industry
continues to have a high accident rate, with death rates in the
mining and construction industries leading other sectors.
According to State Administration of Work Safety (SAWS)
statistics, 110,027 people were killed in 677,379 workplace
accidents through December 2005, and more than 10,000 workers
died in the mining and construction sectors during 2005.\128\
The government has continued to take steps to address
China's poor workplace safety record. In February 2006, SAWS
ordered the closure of 35,842 companies that failed to meet a
requirement to obtain safety licenses by the end of 2005,
warning that it would
ensure compliance by cutting off electric power to the
companies' facilities.\129\ SAWS also announced in February
2006 that the government is drafting legislation that would
hold top provincial and city government and Party officials
responsible for fatal accidents that result from lapses in
workplace safety.\130\ Criminal Law amendments passed in June
2006 strengthen punishments for work safety violation,
including new penalties for personnel who hinder rescue efforts
by covering up or failing to report accidents.\131\ In July,
the government ratified a safety plan for the 11th Five-Year
Program aimed at addressing major problems in workplace
safety.\132\ In August, the government announced it would
dedicate 467.4 billion yuan (US$58.81 billion) over the next
five years to curb workplace accidents.\133\
The Ministry of Health implemented a plan in May 2006 to
improve rural migrant worker health that includes a number of
goals for improving workplace health and safety conditions for
migrant workers. These goals include implementing health and
safety training and instruction programs in mid- and small-
scale businesses, and undertaking collaborative efforts with
the World Health Organization and the International Labor
Organization.\134\ Many migrant workers are employed in
industries in which they are exposed to occupational diseases
and other workplace safety hazards, according to an expert with
the Chinese Center for Disease Control.\135\
Occupational Health
Occupational diseases and injuries are widespread in many
Chinese industries. Estimates of the incidence rate of
occupational diseases and injuries caused by chemicals, toxic
fumes, and machinery vary and are difficult to confirm. For
example, one Chinese press report estimates that 200 million
workers suffer from occupational diseases.\136\ The SAWS
officials who provided the estimate note that the number of
workers suffering from occupational diseases is increasing, and
describe the victims as mostly younger, poor workers.\137\
Coal Mine Safety
Deaths in the coal mining sector totaled 5,938 in 2005,
according to official Chinese statistics,\138\ but some NGOs
estimate that the number of deaths is much higher.\139\ A
political scientist at the Chinese Academy of Social Sciences
offered the view that ``China is so hungry for energy that safe
coal produced by safe mines is not enough to quench its
thirst.'' \140\ Press reports suggest that Chinese coal mines
are the world's deadliest.\141\ Fires, explosions, and floods
occur in Chinese mines almost daily.\142\ The government has
set the modest goal of reducing coal mine deaths during 2006 by
3.5 percent, but one workplace safety activist believes that
``even this will take a great effort to realize.'' \143\
Chinese officials have ordered the closure of dangerous
mines, most of which are small, privately run mines, in an
attempt to control the number of coal mine accidents.\144\
Small mines produce one-third of China's coal output, but are
responsible for two-thirds of coal mine deaths.\145\ The
government deems mines that produce under 30,000 tons per year
as most vulnerable to accidents, and intends to close all such
mines by the end of 2007.\146\ Most of these small mines are
expected to merge administratively with larger mines with
better safety records.\147\
Pervasive official corruption impedes implementation of
coal mine safety programs. Local officials often receive income
from mines, and therefore are reluctant to enforce safety
regulations that will affect production.\148\ In an August 2005
circular, the State Council ordered the managers of state-owned
enterprises and government officials to divest themselves of
all financial interests in coal mines other than stock of
publicly listed companies.\149\ By January 2006, official news
media reported that more than 7,000 officials had given up
investments in coal mines.\150\
The government has prosecuted officials responsible for
serious coal mine disasters. A December 2005 State
Administration of Work Safety announcement described the
prosecution and punishment of over 200 officials involved in
six large coal mine disasters in 2004.\151\
Wages
Article 8 of the Provisions on Minimum Wages, issued by the
Ministry of Labor and Social Security (MOLSS) in January 2004,
charges provincial MOLSS authorities with drafting minimum wage
rules in cooperation with provincial-level unions and
industrial associations.\152\ In July 2006, the Shenzhen
Special Economic Zone, which is not a provincial-level
government, raised its minimum wage to 810 yuan per month
(US$101).\153\ The previous minimum wage rate in Shenzhen had
been the same as Jiangsu province and Shanghai municipality:
690 yuan per month (US$86).\154\ At the lower end of the
minimum wage scale are Gansu province at 340 yuan per month
(US$43) and Jiangxi and Jilin provinces at 360 yuan per month
(US$45).\155\
Provincial governments in China are reluctant to review
their minimum wage levels every two years, even though the 2004
provisions require it.\156\ In March 2006, at least four
provincial governments were out of compliance with the two-year
rule, according to the MOLSS.\157\ Official news media suggests
that provincial officials fear that higher minimum wages will
force companies to relocate manufacturing facilities to
provinces where wages are lower.\158\ A Xinhua editorial
recommended that the central government develop a more clearly
defined method to determine that the minimum wage is not
artificially low, and monitor how local governments apply this
method. An All-China Federation of Trade Unions official said
in May that the minimum wage levels set by most provincial-
level governments did not meet national guidelines.'' \159\
Wage Arrearages
Employers illegally withhold or refuse to pay wages earned
by millions of Chinese workers.\160\ Employers owe millions of
migrant workers more than US$12 billion in unpaid wages, a
problem that is particularly acute in the construction
industry, which employs many migrant workers.\161\ Some
employers make only minimal wage payments through the year in
addition to providing room and board. Others withhold payments
over the New Year holiday as a means of compelling workers to
return.\162\ A State Council report estimates that employers do
not pay about half of migrant workers on time.\163\
Despite central government pledges beginning in 2003 to
clear up wage arrearages for migrant workers in the
construction sector, the problem persists. In some cases where
the government has reported success in clearing arrearages, the
workers have, in fact, accepted less than full pay in order to
get any cash at all. Many wage arrearages also go unreported,
and new arrearages continue to accumulate, despite the creation
of programs to discourage them.\164\
Some local governments have taken steps to help workers
recover wages. In February 2006, the Shenzhen Labor and Social
Security Bureau sanctioned 1,300 companies and imposed 47
million yuan (US$5.8 million) in fines for not paying wages
owed to workers. The Bureau reclaimed about 70 million yuan
(US$8.6 million) in unpaid wages.\165\ Since July 2006,
employers in Shaanxi province who have not met time limits set
by the provincial government for paying back wages have been
subject to fines totaling 50 to 100 percent of the
arrearages.\166\ In 2005, the Guangdong Provincial Labor and
Social Security Bureau began posting the names of companies
that continued to default on wages after ``repeated education,
warnings, or even heavy punishments.'' \167\ Although these
programs are positive developments, they have not been highly
successful.\168\
Benefits
Employers in China rarely comply with laws and regulations
on benefits.\169\ In one 2004 study, a Western auditing firm
found that only 5 of 80 Chinese factories surveyed were in
compliance with benefits laws.\170\ Compliance problems
included failure to grant workers paid vacations and failure to
enroll workers in the social security system (including
pensions).\171\ Companies also have failed to provide workers
with medical benefits, including treatment for workplace
injuries and maternity benefits.\172\ Some employers circumvent
their obligation to provide benefits by refusing to sign labor
contracts.\173\
The State Council adopted a decision on basic old-age
insurance in December 2005 with the stated goal of shifting
Chinese pensions from an enterprise-based system to a market-
oriented system with personal accounts.\174\ The decision also
seeks to address the underfunding of personal accounts,
guarantee the short-term availability of pension funds, and
expand coverage of the funds.\175\ One U.S. expert said, ``For
this patchwork [of pensions], covering perhaps a sixth of the
total Chinese workforce, the net present value of unfunded
liabilities is estimated to exceed current GDP--perhaps
substantially.'' \176\ Problems in the pension system spurred
large-scale worker protests in 2005 and 2006.\177\
The government announced plans in 2006 to expand coverage
of on-the-job injury insurance to 140 million people by
2010\178\ and said it would take compulsory measures to promote
employer participation.\179\ As of April 2006, 87 million
workers were covered, the government reported.\180\ In June,
the Shanxi province government announced that all employers
must provide injury insurance to migrant workers.\181\ By the
end of July 2006, 18.7 million migrant workers nationwide had
such insurance, according to government figures.\182\
U.S.-China Bilateral Programs
The U.S. Department of Labor (DOL) and two Chinese
government agencies continued to conduct cooperative activities
during 2006 on wage and hour laws, occupational safety and
health, mine safety and health, and pension program
oversight.\183\ The DOL-sponsored mine safety program provided
training to 55 Chinese mine managers and over 400 miners. Under
the Labor Law Cooperation Project, four legislative drafters
participated in internship programs in the United States to
learn about legislative and labor law systems and enforcement
practices. The project also produced information, education,
and communication materials on labor law that were distributed
to tens of thousands of Chinese workers. Under the project,
2,437 migrant workers received labor law training, 380 workers
received counseling services, and 24 were provided with legal
assistance.\184\
The DOL, in cooperation with central and local Chinese
government agencies, completed five baseline surveys on labor
dispute resolution that served as references for drafting a new
Dispute Resolution Law, scheduled for consideration in August
2006. In addition, the Project selected 15 diverse enterprises
(including joint venture, foreign-owned, state-owned, small,
medium, and large enterprises) to participate in a pilot
project to improve labor relations. Training for some 80
individuals began in April 2006 to establish and operate in-
plant labor-management committees. Trainees
include officials from district labor dispute tribunals,
company human resource directors, and workers from the
enterprises.\185\
Migrant Workers
Official statistics suggest 120 million rural migrants
worked in China's urban cities in 2005.\186\ These migrant
workers often face discrimination and violations of their legal
rights. Over 81 percent of rural migrant workers currently work
outside of their place of residence for more than six months
out of the year, an increase of 6.4 percent compared to 2002,
according to a State Council research report.\187\ Since many
local regulations limit the ability of poor migrants to obtain
local hukou (household registration) in the urban areas where
they live and work, migrant workers are often unable to obtain
public services such as health insurance and education for
their children on an equal basis with urban residents [see
Section V(i)--Freedom of Residence and Travel].
Migrant workers also frequently have difficulties
protecting their legal rights under China's labor laws. Fewer
than 54 percent of rural migrant workers have signed labor
contracts with their
employers. Excessive work hours and unpaid wages are common
problems.\188\ Over 35 percent of rural migrant workers report
``sometimes'' having difficulty being paid on time, while
nearly 16 percent say they ``frequently'' have problems being
paid.\189\ Seventy-six percent of migrant workers report that
they have not received overtime pay owed to them.\190\
Chinese authorities have attempted to address the problems
of migrant workers. The Ministry of Health announced a plan in
May 2006 to improve the health of rural migrant workers. The
plan includes goals for preventing and controlling the spread
of HIV/AIDS among rural migrants, improving infectious disease
monitoring capabilities in large urban areas with migrant
workers, as well as improving workplace health and safety
conditions for migrant workers.\191\ The central government has
also included in its 2006 rural development campaign for a
``new socialist countryside'' such components as reform of the
hukou system, protection of the legal rights of migrant
workers, and the elimination of discriminatory regulations that
restrict urban job opportunities for migrants.\192\ In 2005,
both Beijing municipal authorities and national Ministry of
Labor and Social Security officials eliminated rules that limit
employment in cities for migrants.\193\ Chinese authorities
also have called for creating better mechanisms for addressing
workers' claims for unpaid wages and for expanding workers'
compensation insurance programs to cover migrants.\194\ The
State Council's research report on migrant workers notes that
despite central government policies regarding the abolition of
discriminatory permits and fees for rural migrant workers,
``the phenomenon of illegal charges continues to exist'' in
some areas.\195\
V(d) Freedom of Religion
findings
<bullet> Chinese government restrictions on the
practice of religion violate international human rights
standards. Freedom of religious belief is protected by
the Chinese Constitution and laws, but government
implementation of Communist Party policy on religion,
and restrictions elsewhere in domestic law, violate
these guarantees. The Chinese government tolerates some
aspects of religious belief and practice, but only
under a strict regulatory framework that represses
religious and spiritual activities falling outside the
scope of Party-sanctioned practice. Religious
organizations are required to register with the
government and submit to the leadership of ``patriotic
religious associations'' created by the Party to lead
each of China's five recognized religions: Buddhism,
Catholicism, Daoism, Islam, and Protestantism. Those
who choose not to register with the government, or
groups that the government refuses to register, operate
outside the zone of protected religious activity and
risk harassment, detention, imprisonment, and other
abuses. Registered communities also risk such abuse if
they engage in religious activities that authorities
deem a threat to Party authority or legitimacy.
<bullet> The 2004 Regulation on Religious Affairs (RRA)
has not afforded greater religious freedom to Chinese
citizens, despite government claims that it represented
a ``paradigm shift'' by limiting state control over
religion. Like earlier local and national regulations
on religion, the RRA emphasizes government control and
restrictions on religion. The RRA articulates general
protection only for freedom of ``religious belief,''
but not for expressions of religious belief. Like
earlier regulations, it also protects only those
religious activities deemed ``normal,'' without
defining this term. Although the RRA includes
provisions that permit registered religious
organizations to select leaders, publish materials, and
engage in other affairs, many provisions are
conditioned on government approval and oversight of
religious activities.
<bullet> Chinese government enforcement of Party policy
on religion creates a repressive environment for the
practice of Tibetan Buddhism. Party policies toward the
Dalai Lama and Panchen Lama, the second-ranking Tibetan
spiritual leader, seek to control the fundamental
religious convictions of Tibetan Buddhists. Government
actions to implement Party policies caused further
deterioration in some aspects of religious freedom for
Tibetan Buddhists in the past year. Officials began a
patriotic education campaign in Lhasa-area monasteries
and nunneries in April 2005. Expressions of resentment
by Tibetan monks and nuns against the continuing
campaign resulted in detentions, expulsions, and an
apparent suicide. Chinese officials continue to hold
Gedun Choekyi Nyima, the boy the Dalai Lama recognized
as the Panchen Lama in May 1995, in incommunicado
custody along with his parents.
<bullet> Tibetan Buddhist monks and nuns constituted 21
of the 24 known political detentions of Tibetans by
Chinese authorities in 2005, compared to 8 of the 15
such known detentions in 2004, based on data available
in the Commission's Political Prisoner Database. None
of the known detentions of monks and nuns in 2005 took
place in Sichuan province, a shift from the previous
three years, but known detentions of monks and nuns in
Qinghai and Gansu provinces increased during the same
period. Based on data available for 50 currently
imprisoned Tibetan monks and nuns, their average
sentence length is approximately nine years and six
months. In one positive development, the government
permitted the resumption of a centuries-old Tibetan
Buddhist tradition of advanced study that leads to the
highest level of scholarly attainment in the Gelug
tradition.
<bullet> Government repression of unregistered Catholic
clerics increased in the past year. Based on NGO
reports, officials in Hebei and Zhejiang provinces
detained a total of 38 unregistered clerics in 13
incidents in the last year, while in the previous year
officials detained 11 clerics in 5 incidents. The
government targets Catholic bishops who lead large
unregistered communities for the most severe
punishment. Bishop Jia Zhiguo, the unregistered bishop
of Zhengding diocese in Hebei province, has spent most
of the past year in detention. Bishop Jia has been
detained at least eight times since 2004.
<bullet> Government harassment and abuse of registered
Catholic clerics also increased in the past year. In
November and December 2005, three incidents were
reported in which officials or unidentified assailants
beat registered Catholic nuns or priests after they
demanded the return of church property. In April and
May 2006, officials began a campaign to increase
control over registered Catholic bishops. Officials
detained, sequestered, threatened, or exerted pressure
on dozens of registered Catholic clerics to coerce them
into participating in the consecration of bishops
selected by the state-controlled Catholic Patriotic
Association but not approved by the Holy See.
<bullet> Government authorities also restricted contact
between registered clergy and the Holy See, denying
bishops permission to travel to Rome in September 2005
to participate in a meeting of Catholic bishops.
Authorities continued to permit some registered priests
and nuns to study abroad.
<bullet> The Chinese government strictly controls the
practice of Islam. The state-controlled Islamic
Association of China aligns Islamic practice to Party
goals by directing the training and confirmation of
religious leaders, the publication of religious
materials, the content of sermons, and the organization
of Hajj pilgrimages, as well as by indoctrinating
religious leaders and adherents in Party ideology and
government policy.
<bullet> The government severely represses Islamic
practice in the Xinjiang Uighur Autonomous Region
(XUAR), especially among the Uighur ethnic group. Local
regulations in the XUAR impose restrictions on religion
that are not found in other parts of China. The
government's religious repression in the XUAR is part
of a broader policy aimed at diluting expressions of
Uighur identity and tightening government control in
the region. The government continues to imprison
Uighurs who engage in peaceful expressions of dissent
and other non-violent activities. Writer Nurmemet Yasin
and historian Tohti Tunyaz remain in prison for writing
a short story and conducting research on the XUAR.
<bullet> The Chinese government continues to repress
Chinese Protestants who worship in house churches. From
May 2005 to May 2006, the government detained nearly
2,000 house church members, according to one U.S. NGO.
Almost 50 percent of the reported detentions of
Protestant house church members and leaders took place
in Henan province, where the house church movement is
particularly strong. In June 2006, Pastor Zhang
Rongliang, the leader of one of China's largest house
churches, was sentenced to seven years and six months
in prison for
``illegally crossing the national border'' and
``fraudulently obtaining a passport.'' Authorities have
detained or imprisoned Pastor Zhang multiple times
since 1976. Pastor Gong Shengliang is serving a life
sentence in declining health, and was beaten in prison
during the past year.
<bullet> The Chinese government continues to maintain
strict control over the registered Protestant church.
The RRA requires that all Protestants worship at
registered churches, regardless of their differences in
doctrine and liturgy. The state-controlled Three-Self
Patriotic Movement, which leads the registered
Protestant church in China, continues to impose a
Party-defined theology, called ``theological
construction,'' on registered seminaries that is
intended to ``weaken those aspects within Christian
faith that do not conform with the socialist society.''
In the past year, authorities detained a registered
Protestant pastor in Henan province for conducting a
Bible study meeting at a registered Protestant church
outside his designated geographic area.
<bullet> The Chinese government continues to disrupt
the relationships that many house churches maintain
with co-religionists outside China, including raiding
meetings between house church leaders and overseas
Protestants, and preventing foreign travel by house
church leaders. The Chinese government also continues
to restrict and monitor the ties of the registered
Protestant Church with foreign denominations.
<bullet> Government persecution of the Falun Gong
spiritual movement continued during the past year.
Authorities use both criminal and administrative
punishments to punish Falun Gong practitioners for
peacefully exercising their spiritual beliefs. The
state-controlled press has reported on at least 149
cases of Falun Gong practitioners currently in prison,
but Falun Gong sources estimate that up to 100,000
practitioners have been detained since 1999. Manfred
Nowak, UN Special Rapporteur on Torture, reported after
his November 2005 visit to China that Falun Gong
practitioners account for two-thirds of victims of
alleged torture by Chinese law enforcement officers.
Tsinghua University student Wang Xin was sentenced to
nine years' imprisonment in 2001 for downloading Falun
Gong materials from the Internet and printing leaflets.
<bullet> Despite strict government controls on the
practice of religion, Chinese authorities accommodate
the social programs of Buddhist, Daoist, Catholic,
Muslim, and Protestant communities when these programs
support Party goals. For example, domestic Muslim civil
society organizations carry out social welfare
projects, and international Muslim charities have
supported projects in Gansu and Shaanxi provinces, as
well as in the XUAR. The Amity Foundation, affiliated
with the registered Protestant Church, sponsors
projects in social services and development aid,
including education, healthcare, and care for the
elderly.
Introduction
Chinese government restrictions on the practice of religion
violate international human rights standards.\1\ Freedom of
religious belief is protected by the Chinese Constitution\2\
and laws,\3\ but government implementation of Communist Party
policy on religion, and restrictions elsewhere in domestic law,
violate these guarantees. Although Party doctrine acknowledges
the presence of religion in Chinese society, the Party's
central tenets remain at odds with religion.\4\ The Party
promotes atheism among Chinese citizens, and has continued
efforts to dismiss religious believers from its ranks.\5\
The government acknowledges only five belief systems as
religions entitled to legal protection: Buddhism, Catholicism,
Daoism, Islam, and Protestantism. While the State
Administration for Religious Affairs (SARA) has established an
office to oversee religions and folk beliefs other than these
five,\6\ legal protections are restricted to these five in
practice,\7\ with only limited exceptions.\8\ Some local
regulations also restrict legal protections to these five
religions.\9\ Religious organizations affiliated with
recognized religions must register with the government and
apply for government approval to establish churches, mosques,
temples, or other religious venues. The government claims that
citizens do not need official approval to conduct worship
services in private homes ``mainly
attended by relatives and friends for religious activities such
as praying and Bible reading,'' \10\ but no national law or
regulation specifically protects worship at home,\11\ and
authorities have shut down services held in private homes.\12\
The Chinese government tolerates some aspects of religious
belief and practice, but only under a strict regulatory
framework that represses religious and spiritual activities
falling outside the scope of Party-sanctioned practice. The
government's policies create a hierarchy of religious
communities subject to different forms of government control.
The government and Party exercise control over registered
religious communities through the ``patriotic religious
associations'' created by the Party to lead each recognized
religion.\13\ The patriotic associations ensure that religious
doctrine conforms to state policy by controlling such matters
as the training of religious leaders, contacts with religious
groups outside China, the
interpretation of religious texts, the content of sermons, and
the publication of religious materials.\14\ Despite such
controls, a visiting delegation from the U.S. Commission on
International Religious Freedom found that the government
nonetheless provides a ``zone of toleration'' for registered
religious communities acting within the parameters set by the
government.\15\ Religious adherents also have reported being
able to worship in authorized venues without direct government
interference.\16\ Those who choose not to register with the
government, or groups that the government refuses to register,
operate outside the zone of protected religious activity and
risk harassment, detention, imprisonment, and other abuses.
Members of approved organizations also risk harassment,
detention, imprisonment, and other abuses if they engage in
religious activities that authorities deem a threat to Party
authority or legitimacy.
Legal protections for freedom of religion are narrow. By
stating only that ``religious belief'' is under constitutional
protection,\17\ the Constitution does not broadly protect the
exercise of religion, including public expressions of belief.
Instead, the Constitution and Chinese laws and regulations
provide protection only for ``normal religious activity.'' Laws
and regulations do not clearly define what constitutes ``normal
religious activity,'' and this vague term is subject to
arbitrary interpretation by implementing officials.\18\
Officials interpret and implement domestic laws and
policies on religion inconsistently, resulting in uncertainty
among religious believers about potential government actions.
Such inconsistencies have led to additional restrictions in
practice beyond those specified in law. In some cases, regional
variations in implementation have resulted in more official
tolerance for religion, and in unregistered groups being
allowed to operate.\19\ In a few cases, local authorities have
registered groups affiliated with a religion not recognized by
the central government, as well as groups that are part of a
recognized religion but have not affiliated with a patriotic
religious association.\20\ In other cases, however, variations
in implementation have resulted in official abuses and
repression of religious activities.
Although the SARA acknowledges and manages some ``folk''
beliefs, the government does not give them the same protections
as recognized religions, despite widespread practice throughout
China. The government tolerates some practices associated with
``folk'' religions,\21\ but also designates some other popular
practices as ``feudal superstitions,'' which it denounces and
in some cases penalizes.\22\
The government does not recognize spiritual movements as
belief systems protected under the law, and in some cases, the
government persecutes practitioners. The government designates
some spiritual movements, such as the Falun Gong, as ``cults''
and applies criminal and administrative punishments against
them.\23\ In 2006, the government continued its campaign of
persecution against Falun Gong members.
Foreign residents or visitors may conduct worship services
for foreign members of their own religious communities,\24\ and
foreign faith-based NGOs operate in China.\25\ National rules
governing
foreigners' religious activities forbid them, however, from
``cultivating followers from among Chinese citizens,''
distributing ``religious propaganda materials,'' and carrying
out other missionary
activities.\26\
Regulation on Religious Affairs
The 2004 Regulation on Religious Affairs (RRA)\27\ has not
afforded greater religious freedom to Chinese citizens, despite
government claims that it represented a ``paradigm shift'' by
limiting state control over religion.\28\ Like earlier local
and national regulations on religion,\29\ the RRA emphasizes
government control and restrictions on religion. The RRA
articulates general protection only for freedom of ``religious
belief,'' \30\ but not for expressions of belief. Like earlier
regulations, it also protects only those religious activities
deemed ``normal,'' \31\ without defining this term. Although
the RRA includes provisions that permit registered religious
organizations to select leaders, publish materials, and engage
in other affairs, many provisions are conditioned on government
approval and oversight of religious activities.\32\
Party doctrine guides implementation of the RRA. The
Party's United Front Work Department continues to administer
religious matters alongside the government's religious affairs
bureaus,\33\ and in doing so, ensures that the RRA is
implemented in line with Party directives. During 2006, local
authorities cited Party policy as a guiding influence when
addressing religious issues and implementing the RRA.\34\
The RRA and related regulations\35\ subject religious
communities to onerous and arbitrary registration requirements
that give the government discretion to deny recognition to
religious communities. Like earlier regulations,\36\ the RRA
requires religious groups to apply for approval from the
government to operate as an organization or to establish a
venue for religious activities.\37\ Among other requirements, a
group must have 50 or more members to apply for recognition as
an official organization.\38\ Once recognized, religious
organizations must fulfill conditions such as demonstrating a
``necessity to frequently carry out collective religious
activities'' to gain permission to build a venue for religious
activities.\39\
The RRA's protections for religious activities are limited.
Although the RRA states that it protects the ``lawful rights
and interests'' of religious believers, it does not
specifically protect individual public displays of religious
belief, which is a protected component of religious freedom
under international human rights standards.\40\ In addition, it
requires collective religious activities ``in general'' to be
conducted at registered venues\41\ and does not specify that
religious believers or religious members of a family may
practice a
religion within their own homes, although some local
regulations appear to permit this practice.\42\
International human rights standards define freedom of
religion to include the ``freedom to prepare and distribute
religious texts or publications.'' \43\ While the RRA provides
that authorized religious organizations and venues may compile
and print materials for internal and public distribution, the
RRA requires such publications to be prepared in accordance
with national regulations.\44\ The Chinese government imposes
strict prior restraints on religious literature in national
regulations that go beyond restrictions on other types of
publications\45\ [see Section V(a)--Special Focus for 2006:
Freedom of Expression].
The RRA provides for government oversight of the
appointment of religious personnel. Although the RRA permits
authorized religious organizations to select religious
personnel, it requires them, in most cases, to report this
selection to the local religious affairs bureau.\46\ In
addition, the RRA singles out the appointment of reincarnated
Tibetan Buddhist lamas and Catholic bishops for reporting to
higher levels of government, and in the case of reincarnated
Tibetan Buddhist lamas, appointments require government
approval.\47\
The RRA provides administrative penalties, ranging from
fines to the possibility of administrative detention, for
violations of its provisions.\48\ While it sanctions government
officials who abuse their authority when administering
religious policy,\49\ it is unclear whether this provision
protects unregistered organizations and venues that lack legal
standing. The RRA directs most of its provisions on legal
liability at ordinary citizens, religious organizations, or
venues that violate its provisions.\50\ Some of the RRA's
penalties are absent in earlier regulations. For example, the
RRA for the first time proscribes Hajj pilgrimages that are
organized without government authorization and subjects
violators to fines.\51\
The RRA also represents a codification, and in some cases
expansion, of limited protections for authorized religion found
in older regulations on religion. For example, the RRA permits
registered religious organizations and venues to engage in
social welfare activities, as earlier local regulations have
allowed.\52\ It also permits registered religious organizations
and venues to accept contributions from abroad,\53\ while
previous regulations have not granted this permission in such
explicit terms.\54\ The RRA specifies time limits for
decisionmaking by government agencies, and permits
administrative appeal of actions and decisions by religious
affairs
bureaus.\55\
At the same time, the RRA lacks some of the restrictions
found in earlier regulations. For example, the RRA does not
specify that only the five recognized religions are protected,
and does not reinforce the authority of patriotic religious
associations by naming them, as in the case of some local
regulations.\56\ Some observers suggest that the omission of
previous controls, coupled with vague language within the RRA,
may signify more tolerance toward religion.\57\ Without further
clarification, however, such omissions and wording do not grant
new rights. Moreover, the RRA's vague
language, including the lack of a definition of ``normal
religious activity,'' generates inconsistent interpretations
not only in the implementation of the RRA itself but also in
the drafting of new local regulations.
The RRA does not mention the status of local
regulations.\58\ Since the RRA entered into force, however, at
least six provincial-level governments have issued new or
amended comprehensive regulations on religion. These
regulations are generally consistent with the RRA with respect
to provisions on establishing religious organizations and
venues,\59\ but differ in other areas. For example, a new
regulation from Henan province restricts the term ``religion''
to Buddhism, Daoism, Islam, Catholicism, and Protestantism.\60\
In April 2005, the Shanghai municipal government amended its
1995 regulation on religious affairs to remove a previous
reference to the five recognized religions.\61\ All of the new
and amended regulations appear to provide citizens with a
degree of permission to practice an authorized religion at
home, but the wording of each regulation on this issue
varies.\62\ The amended Shanghai regulation expands its
previous section on legal liability, increasing both penalties
and protections for religious believers;\63\ the Henan
regulation contains the most detailed provision on the
liability of government officials.\64\
Other Developments
In December 2005, the government announced the
establishment of the China Religious Culture Communication
Association (CRCCA), which it described as a non-profit social
organization designed to promote religious exchanges,
cooperation with other countries, and the dissemination of
information about religion in China. Ye Xiaowen, Director of
the State Administration for Religious Affairs (SARA), leads
the association. CRCCA honorary chairman Bishop Fu Tieshan,
Vice Chairman of the Standing Committee of the National
People's Congress and Chairman of the Catholic Patriotic
Association, called the association's establishment
``beneficial for accurately publicizing China's policies on
freedom of religious belief and the real state of affairs for
religious belief.'' \65\
The government adopted measures during 2005 that provide
freer access to information on religious regulations and to
religious sites that charge admission. The SARA launched a Web
site on December 1, 2005, that posts religion-related news and
regulations, bringing greater transparency to the
administration of religious affairs.\66\ The government also
issued a circular in December 2005 requiring that religious
sites charging admission to tourists must provide free entrance
to religious adherents, although Chinese journalists
investigating the circular in January 2006 found that
implementation was inconsistent.\67\
Religious Freedom for Tibetan Buddhists
Chinese government enforcement of Communist Party policy on
religion creates a repressive environment for the practice of
Tibetan Buddhism. The Party tolerates religious activity only
within the strict requirements of the Chinese Constitution,
laws, regulations, and policies.\68\ The government interprets
and enforces these requirements in a manner that interferes
with the Tibetan Buddhist monastic education system and
discourages devotion to the Dalai Lama and other important
Tibetan Buddhist teachers who live in exile.\69\
Party polices toward the Dalai Lama and Panchen Lama, the
second-ranking Tibetan spiritual leader, seek to control the
fundamental religious convictions of Tibetan Buddhists.
Government actions to implement Party policies caused further
deterioration in some aspects of religious freedom for Tibetan
Buddhists during the past year. Officials began a patriotic
education campaign in Lhasa-area monasteries and nunneries in
April 2005.\70\ The Chinese government and the Party mandate
patriotic education as a recurrent feature of religious
education to indoctrinate Tibetans on the relationship between
religion and patriotism toward China, and to end the Dalai
Lama's influence among Tibetans. Monks and nuns must pass
examinations on political texts,\71\ agree that Tibet is
historically a part of China, accept the legitimacy of the
Panchen Lama installed by the Chinese government, and denounce
the Dalai Lama.
In May 2006, Zhang Qingli,\72\ Secretary of the Tibet
Autonomous Region (TAR) Party Committee, called on senior
government and Party officials to widen the patriotic education
campaign to include a broader population, and to intensify the
``rectification'' and
restructuring of each monastery and nunnery's Democratic
Management Committee (DMC),\73\ according to the TAR Party
newspaper.\74\ Zhang told the officials that the Party is
engaged in a ``fight to the death struggle'' against the Dalai
Lama and his supporters, and that the Dalai Lama is ``the
biggest obstacle hindering Tibetan Buddhism from establishing
normal order.'' Comprehensive implementation of the Regulation
on Religious Affairs (RRA)\75\ will lead to the ``normalization
of religious order'' and the ``standardization of religious
activity,'' Zhang said. Li Guangwen, Executive Vice Chairman of
the TAR People's Congress Standing Committee, stressed ``the
need to step up legislative work in the area of the anti-
separatism struggle and the management of religious affairs''
\76\ at a meeting of Standing Committee members, probably in
early June. In August, Zhang confirmed the Party's plans to
broaden patriotic education in an interview with Western media:
``We are organizing patriotic education everywhere, not just in
monasteries. Those who do not love their country are not
qualified to be human beings.'' \77\
Expressions of resentment by Tibetan monks and nuns against
the continuing campaign resulted in detentions, expulsions, and
an apparent suicide. At Sera Monastery, when monks were to be
tested on patriotic education in July 2005, officials
reportedly expelled 18 monks, of whom police detained 8.\78\ At
about the same time, public security officials detained monk
Tsering Dondrub and subjected Jangchub Gyaltsen, a Sera
``disciplinarian,'' \79\ to one year of surveillance\80\ for
their roles in arranging an oral reading of a prayer that
mentioned the Dalai Lama.\81\ Drepung Monastery monk Ngawang
Jangchub apparently committed suicide in October 2005, after he
argued with patriotic education instructors.\82\ Public
security officials detained five Drepung monks (Abbot Ngawang
Phelgyal, Ngawang Namdrol, Ngawang Nyingpo, Ngawang Thubten,
and Phuntsog Thubwang) on November 23 after they refused
instructions from patriotic education instructors to sign a
document denouncing the Dalai Lama as a splittist, pledging
loyalty to the Chinese government, and agreeing that Tibet is
part of China.\83\ On November 25, some 400 monks gathered in
Drepung's main courtyard and protested together silently
against the patriotic education campaign and the accompanying
crackdown.\84\ Authorities threatened to remove them by force
and sealed the monastery for two days.\85\ Officials conducting
patriotic education at Gyabdrag Nunnery in June 2005 expelled
more than 40 nuns, and authorities expelled 13 nuns from
Shugsib Nunnery.\86\
In December 2005, the government and Party stepped up a
campaign to challenge the Dalai Lama's role as the spiritual
leader of Tibetan Buddhists by increasing the prominence of
Gyaltsen Norbu, the boy the State Council installed in 1995 as
the 11th Panchen Lama.\87\ An official Chinese report on the
10th anniversary of Gyaltsen Norbu's installation referred to
him as ``the highest ranking figure in Tibetan Buddhism'' and
``the leader of Tibetan Buddhism.'' \88\ Chinese news media
reports that rank Gyaltsen Norbu above the Dalai Lama, however,
contradict previous official statements about the relationship
between the Dalai Lama and Panchen Lama. In November 1995, Li
Ruihuan, then a senior Politburo member, described the late
10th Panchen Lama\89\ as ``a prominent leader of China's
Tibetan Buddhism,'' \90\ and a 1992 Chinese government White
Paper described the 10th Panchen Lama as the ``co-leader of
Tibetan Buddhism with the Dalai Lama.'' \91\
Gyaltsen Norbu demonstrated support of the Party's
policy\92\ to merge Tibetan Buddhism with patriotism toward
China when he pledged at a December 2005 ceremony to be ``a
good living Buddha who loves his motherland, his religion, and
serves his country and its people.'' \93\ A week later, he
concluded a Buddhist ritual at the tombs of his predecessors by
saying that he would ``live up to the expectations of the
Chinese Communist Party and the central government.'' \94\
Gyaltsen Norbu made his first appearance before an
international gathering at the First World Buddhist Forum in
Hangzhou city, Zhejiang province, on April 13, 2006.\95\ He
told some 1,000 monks, nuns, and scholars from more than 30
countries that, ``Defending the nation and working for the
people is a solemn commitment Buddhism has made to the nation
and society.'' \96\ The forum's organizers\97\ did not allow
the Dalai Lama, Tibetan Buddhism's foremost representative, to
attend. Qi Xiaofei, Deputy Director of the State Administration
of Religious Affairs (SARA) told reporters on April 12 that the
Dalai Lama is a stubborn secessionist who would ``surely pose a
really disharmonious note'' if he had been invited.\98\
Chinese officials continue to hold Gedun Choekyi Nyima, the
boy the Dalai Lama recognized as the Panchen Lama in May 1995,
in incommunicado custody along with his parents.\99\ After the
Dalai Lama announced his recognition of Gedun Choekyi Nyima,
Chinese officials took the then six-year-old boy and his
parents into custody. The State Council declared the Dalai
Lama's announcement ``illegal and invalid'' \100\ and installed
Gyaltsen Norbu, whose appointment continues to stir widespread
resentment among Tibetans. The UN Committee on the Rights of
the Child recommended in September 2005 that the Chinese
government ``allow an independent expert to visit and confirm
the well-being'' of Gedun Choekyi Nyima.\101\ In an official
response to the UN Special Rapporteur on Freedom of Religion or
Belief in September 2005, Chinese officials claimed that Gedun
Choekyi Nyima is leading a ``normal, happy life and receiving a
good cultural education.'' \102\
The Party intends to strengthen its authority over Tibetan
Buddhism by controlling the selection of the religion's most
important leaders, including the Dalai Lama. Party officials
assert that the next Dalai Lama will be selected in the same
manner as Gyaltsen Norbu: by drawing a name from a golden urn.
In July 2005, Jampa Phuntsog (Xiangba Pingcuo), Chairman of the
TAR government, referred to the Dalai Lama's advancing age and
told reporters that the next Dalai Lama will be identified by
``the traditional rules of Tibetan Buddhism since the Qing
dynasty.'' \103\ He denied that the Party interferes in the
process.\104\ In 1995, however, Party Central Committee member
and State Councilor Luo Gan, who is now a Politburo Standing
Committee member, presided when Gyalsten Norbu's name was
pulled from a golden urn.\105\ Jampa Phuntsog's comment about
``the traditional rules of Tibetan Buddhism'' refers to a 1792
Qing Dynasty edict demanding that the Tibetan government in
Lhasa reform religious, administrative, economic, and military
practices to suit the Qing court.\106\ The first of the edict's
29 articles directed that the Dalai Lama and Panchen Lama be
selected by drawing lots from a golden urn, and that a high-
ranking Chinese official must be present to confirm the result.
Tibetans used their own methods, however, to identify the
current Dalai Lama and his predecessor.\107\ Article 27 of the
Regulation on Religious Affairs issued in 2004 includes the
principle of the Qing directive by requiring that the
identification of reincarnated lamas be performed in accordance
with ``religious ritual and historic conventions'' and be
subject to government approval.\108\
Tibetan Buddhist monks and nuns constituted 21 of the 24
known political detentions of Tibetans by Chinese authorities
in 2005, compared to 8 of the 15 such known detentions in 2004,
based on data available in the Commission's Political Prisoner
Database (PPD) as of August 2006. This increased proportion in
part reflects monks imprisoned for expressing their resentment
of the patriotic education campaign. None of the known
detentions of monks and nuns in 2005 took place in Sichuan
province, a shift from the previous three years,\109\ but known
detentions of monks and nuns in Qinghai and Gansu provinces in
2005 increased during the same period.\110\ Tibetan monks and
nuns make up about 70 percent of the 103 currently detained or
imprisoned Tibetan political prisoners, according to PPD data.
Thirty-two of the monks and nuns were detained or imprisoned in
the TAR, 22 in Sichuan province, 12 in Qinghai province, and 6
in Gansu province. Based on data available for 50 currently
imprisoned Tibetan monks and nuns, their average sentence
length is approximately nine years and three months. Several
monks reportedly detained during patriotic education in Lhasa
in 2005 remain unidentified and these figures do not reflect
their cases.\111\
In one positive development, the government permitted the
resumption in July 2004\112\ of a centuries-old Tibetan
Buddhist tradition of advanced study that leads to the highest
level\113\ of scholarly attainment in the Gelug tradition.\114\
A small number of lamas successfully completed the program in
2005 and 2006.\115\ Tibetan human rights monitors pointed out
that even advanced lamas are required to study political texts
promoting patriotism toward China,\116\ but also noted that the
resumption of the program is a ``welcome gesture.'' \117\
Chinese authorities shut the program down in 1966 at the start
of the Cultural Revolution, and did not allow it to resume
until 1986.\118\ Officials closed it again in March 1988 after
Tibetan monks staged a peaceful pro-independence protest march
in central Lhasa.\119\
Religious Freedom for China's Catholics and China-Holy See Relations
Government repression of unregistered Catholics increased
in the past year.\120\ Based on NGO reports, officials in Hebei
and Zhejiang provinces detained a total of 38 unregistered
clerics and 90 unregistered laypersons in 13 incidents during
the past year, while the preceding year officials detained 11
clerics in 5 incidents.\121\ Twelve of the 13 detention
incidents reported since October 2005 occurred in Hebei
province, where the unregistered Catholic community is
particularly strong.\122\ The other reported detention incident
occurred in Zhejiang province.\123\ Officials in Fujian
province demolished an unregistered Catholic church in
September.\124\
The government targets Catholic bishops who lead large
unregistered communities for the most severe punishment. The
government has detained Bishop Jia Zhiguo, the unregistered
bishop of Zhengding diocese in Hebei province, at least eight
times since 2004.\125\ Bishop Jia has spent most of the past
year in detention. The government detained Bishop Jia from
November 2005 to April 2006, when officials released him into
residential surveillance.\126\ In May 2006, officials admitted
Bishop Jia to the hospital for medical treatment, releasing him
the following month into detention at an unknown location.\127\
Su Zhimin, the unregistered bishop of Baoding diocese in Hebei
province, was detained in October 1997, and the government has
refused to provide any information about his health or
location.\128\ Su's auxiliary bishop, An Shuxin, was released
after 10 years' detention in August 2006. An reportedly agreed
to register with the government but not with the state-
controlled Catholic Patriotic Association (CPA).\129\
Government harassment and abuse of registered Catholic
clerics also increased in the past year. In November and
December 2005, three incidents were reported in which officials
or unidentified
assailants beat registered Catholic nuns or priests after they
had demanded that local governments return church property. In
November 2005, officials beat a group of registered Catholic
nuns in Tongyuan village, Shaanxi province.\130\ Also in
November, unidentified assailants beat a group of registered
Catholic nuns in Xi'an city, Shaanxi province.\131\ In December
2005, unidentified assailants beat a group of registered
Catholic priests in Tianjin municipality.\132\ A Catholic news
service reported additional incidents in which officials beat
registered priests in Hebei province, but supplied no
details.\133\ The recent increase in reports of violence toward
registered clergy contrasts sharply with the situation between
2000 and 2004, during which there were no such reports. The
same period was marked by a relative relaxation of control over
registered bishops.\134\
In the beating incidents in Tongyuan, Xi'an, and Tianjin,
the nuns or priests sought to recover property that had once
belonged to Catholic dioceses or religious orders and that
local governments had confiscated during the 1950s and
1960s.\135\ In violation of a 1980 State Council directive,
local officials had refused to return the properties.\136\ One
NGO reported that local governments in Xi'an and Tianjin have
rented or sold church properties to third parties and retained
the income.\137\ Incidents like these have
occurred elsewhere in China.\138\
In April and May 2006, officials began a campaign to
increase control over registered Catholic bishops, coercing
bishops and priests to participate in episcopal consecrations
not approved by the Holy See, and demanding that registered
bishops uphold the government's authority to select bishops.
Since the 1950s, the government has insisted that the Holy See
lacks the authority to
select Chinese bishops, and the state-controlled Catholic
Patriotic Association (CPA) has selected bishops for the
registered Church.\139\ Nevertheless, the registered Catholic
community has increasingly acknowledged the spiritual
leadership of the Holy See, and Catholic bishops and news
agencies outside China have reported that, in recent years, the
CPA has accepted the Holy See's discreet involvement in the
selection process. Most or all recently consecrated registered
bishops had been approved by the Holy See before their
consecration.\140\
In April 2006, however, officials detained, sequestered,
threatened, or otherwise exerted pressure on dozens of
registered Catholic clerics to coerce them into participating
in the consecration of bishops selected by the CPA but not
approved by the Holy See. On April 30 and May 3, a group of
registered bishops consecrated two new bishops who had not been
approved by the Holy See.\141\ The CPA installed the new
bishops in episcopal sees in Kunming city, Yunnan province, and
Wuhu city, Anhui province. The CPA also installed a bishop, who
was consecrated in 2000 without the approval of the Holy See,
in the see of Mindong diocese in Fujian province.\142\ On May
19, the CPA convened a meeting of 18 registered bishops
involved in recent episcopal consecrations and demanded they
uphold the CPA's authority to select bishops without seeking
approval from the Holy See.\143\ On May 27, CPA officials
announced their refusal to recognize a bishop in Shaanxi
province, a former registered priest who was consecrated by a
registered bishop without the approval of the CPA, but with the
approval of the Holy See. Officials forbade him to act as a
bishop, harassed him for several months, and on September 11
detained him at an unknown location.\144\
Although a generation of elderly bishops has been passing
away, the CPA has been slow to approve candidates for the
registered sees. Over 40 registered dioceses had no bishops in
April 2006.\145\ Because no priests were ordained during the
Cultural Revolution period in the 1960s and 1970s, new bishops
must be selected from priests in their thirties and early
forties.\146\ Government officials and the Holy See are
competing for the loyalty of the new bishops, since many who
will be selected in the next few years are likely to be young
men who will govern the Church into the distant
future.\147\
The Holy See has not approved the consecration of new
bishops for the unregistered community since 1999.\148\ In
October 2005, an authoritative Vatican periodical recommended
that the Holy See should unite the unregistered and registered
communities by continuing its policy of approving the
consecration of bishops only for the registered community.\149\
According to the proposal, as the unregistered bishops pass
away, Holy See-approved registered bishops would become the
sole point of reference for both communities. As a result of
reports from authoritative Catholic sources abroad that most
registered bishops have been legitimated or approved by the
Holy See, unregistered Catholics increasingly have accepted
Catholics practicing in the registered church.\150\
Government authorities restricted contact between
registered clergy and the Holy See over the past year. In
September 2005, the CPA denied bishops permission to travel to
Rome to participate in a meeting of Catholic bishops.\151\
Since 2005, authorities have required registered clergy to
report on their activities on a weekly basis.\152\ Authorities
continued to permit some registered priests and nuns to study
abroad, including in the United States. Authorities also
permitted the continued development of the registered
community's Catholic social service agencies, and new
charitable groups have reportedly been founded.\153\
The Chinese government has not altered its longstanding
public position that the Holy See must break relations with
Taiwan and renounce its role in the selection of Chinese
bishops before the
government will open formal talks on establishing diplomatic
relations.\154\ After the election of Pope Benedict XVI, the
Chinese government reiterated its desire for diplomatic
relations with the Holy See, but the tone of these public
statements became progressively cooler during late 2005.\155\
In February 2006, the government responded to the elevation to
the College of Cardinals of Bishop Zen Ze-kiun of Hong Kong by
warning him to stay out of politics.\156\ In April 2006, Ye
Xiaowen, Director of the State Administration for Religious
Affairs, said that the issue of whether the CPA or the Holy See
has the authority to select Catholic bishops ``may be open to
consultation.'' \157\ Church figures, however, interpreted the
government's coerced consecration of bishops without Holy See
approval in April and May as a diplomatic rebuff to the Holy
See.\158\ In June, Chinese government officials met with Holy
See representatives in Beijing, although the meeting reportedly
yielded few concrete results.\159\
Religious Freedom for China's Muslims
The Chinese government strictly controls the practice of
Islam. The state-controlled Islamic Association of China\160\
aligns Islamic practice to Communist Party goals by directing
the training and confirmation of religious leaders, the
publication of religious materials, and the content of sermons,
as well as by indoctrinating religious leaders and adherents in
Party ideology and government policy.\161\ The Regulation on
Religious Affairs acknowledges that Muslims may make
pilgrimages abroad but limits such trips to those organized by
the Islamic Association of China\162\ and penalizes those
organizing pilgrimages without authorization.\163\ In May 2006,
the Islamic Association of China announced it would establish
an office to manage pilgrimages to Mecca.\164\ In 2005, the
Association's Islamic Affairs Steering Committee, which
controls the content of religious publications, announced that
it was compiling a fourth edition of its ``new collected
sermons,'' noting that messages on patriotism and unity within
the text contribute to building a ``socialist harmonious
society.'' \165\ In May 2006, the China Islamic Congress, which
met to define the goals of the Islamic Association for the
coming five years, passed a measure on confirming religious
personnel that requires knowledge of the sermons.\166\
Official policy toward Islam reflects government and Party
concern about maintaining control over, and stability within,
China's Muslim population, which includes 10 ethnic groups
under the government's classification system.\167\ In November
2005, the government said it was formulating national
legislation to regulate halal foods, in part because of
concerns that misuse of the halal label could ``influence
ethnic unity and social stability, and harm ethnic relations.''
\168\ After Muslims protested the publication of materials that
they found offensive to Islam, the government issued a national
circular in 1993 requiring strict examination of publications
that ``touch upon the Islamic religion'' in order to ``uphold
social stability'' and avoid ``hurting the feelings of
religious believers.'' \169\ A 1995 national circular on
pilgrimages abroad requires provincial-level authorities to
instruct pilgrims before departure on patriotism, socialism,
``defending the unity of the motherland,'' and ethnic
unity.\170\
The government accommodates Muslim communities in certain
respects. Outside the Xinjiang Uighur Autonomous Region (XUAR),
some Muslim communities and mosques have openly set up schools
to provide children and adults with secular and religious
education.\171\ Domestic Muslim NGOs carry out social welfare
projects,\172\ and international Muslim charities have
supported projects in Gansu and Shaanxi provinces, as well as
in the XUAR.\173\
Islam in the Xinjiang Uighur Autonomous Region
The Chinese government severely represses Islamic practice
in the Xinjiang Uighur Autonomous Region (XUAR), especially
among the Uighur ethnic group.\174\ Some restrictions on
religion in the XUAR are not found elsewhere in China. The
XUAR's 1993 Implementing Measures for the Law on the Protection
of Minors forbid parents and guardians to allow minors to
engage in religious activity.\175\ No other provincial-level or
national regulation on minors or religion contains this
restriction.\176\ Amendments\177\ in 2001 to the XUAR's 1994
Regulation on the Management of Religious Affairs eliminated a
clause that protected ``normal religious activities,'' and
limited the publication of religious materials to provincial-
level religious organizations.\178\ Internal policy directives
and handbooks also control the practice of religion in the
region.\179\ One Chinese official said, ``Xinjiang is different
from other places in China. Islam is administered much more
strictly there than elsewhere.'' \180\
In addition to these formal legal strictures, the
government also implements harsh policies in practice.
Authorities have detained Muslims for unauthorized possession
and study of religious materials,\181\ forbidden students and
discouraged adults from fasting during Ramadan,\182\ barred
university students from conducting prayers in dormitory
rooms,\183\ posted signs forbidding children from entering
mosques,\184\ and revoked the credentials of imams deemed not
to uphold Communist Party policy.\185\ The government limits
the ability of Muslim communities in the XUAR to support social
welfare programs.\186\ A visiting U.S. delegation in 2005 was
told that the government has not authorized Uighurs to build
new mosques since 1999.\187\
The government continued severe repression of religious
practice in the XUAR during 2006, including a reported new
restriction on who may enter mosques. According to one report,
authorities now have included women in restrictions on mosque
entry already
enforced against children, Party members, and government
workers, including retirees.\188\ Another report stated in
January that authorities were conducting a month-long
investigation aimed at ``the masterminds of religious extremist
forces'' and other groups.\189\ In February, authorities raided
a minority-language publishing market and confiscated 350
``illegally printed'' religious posters.\190\ During the same
month, official news media reported that XUAR authorities had
confiscated 9,860 illegal publications involving religion,
Falun Gong, or ``feudal superstitions'' during 2005.\191\ In
April, Wang Lequan, XUAR Party Secretary, said that the XUAR
government would intensify its work on religion and called for
``resolutely curb[ing] illegal religious activities'' and
strengthening the ``ideological and political consciousness''
of religious figures.\192\
The government uses counterterrorism policies as a pretext
for severely repressing religion in the XUAR.\193\ The
government describes security conditions in the XUAR in a
manner that suggests terrorist attacks continue in the
region,\194\ even as official sources indicate that no
terrorist attacks have taken place in the XUAR since 1999.\195\
Authorities continue to detain and arrest XUAR residents
engaged in religious activities deemed unauthorized and have
charged them with a range of offenses, including state security
crimes.\196\ The government targets ``religious extremism,''
splittism, and terrorism in anti-crime campaigns, calling them
the ``three evil forces.'' \197\ The government began
tightening control over religious practice in the region in the
early 1990s, following unrest in the region, but intensified
its crackdown after September 11, 2001.\198\ Official sources
published in 2001 recorded an increase in the number of Uighurs
sent to prison or reeducation through labor centers since the
mid-1990s because of religious
activity.\199\
The government's religious repression in the XUAR is part
of a broader policy aimed at diluting expressions of Uighur
identity and tightening government control of the region. The
government promotes Han migration to the XUAR, claiming it is
necessary to foster ``social stability,'' ``ethnic unity,'' and
the ``unity of the state,'' \200\ and has staffed top
government and Party positions with high numbers of ethnic Han
Chinese [see Section V(c)--Protection of Internationally
Recognized Labor Rights--Non-discrimination in Employment and
Occupation].\201\ In January and February 2006, the XUAR
government acknowledged that migrants contribute to the
region's high population growth rate, even as it announced
plans to direct its population planning measures at controlling
birth rates in impoverished ethnic minority regions.\202\ The
government also announced plans throughout the year to promote
language programs that decrease the use of ethnic minority
languages in XUAR schools and preschools.\203\ The government
continues to imprison Uighurs who engage in peaceful
expressions of dissent and other non-violent activities.
Foreign news media reported in November 2005 that Korash
Huseyin, editor of the Kashgar Literature Journal, received a
three-year sentence for publishing writer Nurmemet Yasin's
story ``Wild Pigeon.'' \204\ Yasin received a 10-year sentence
in February 2005 for ``inciting splittism.'' Other Uighurs
engaged in peaceful activities, including Tohti Tunyaz,
Abdulghani Memetemin, and Abduhelil Zunun, remain in
prison.\205\ In addition, since Uighur activist Rebiya Kadeer's
2005 release into exile in the United States, the government
has continued to harass her relatives in the XUAR.\206\ In June
2006, authorities charged Alim, Ablikim, and Qahar Abdurehim,
three of Kadeer's sons, with state security and economic
crimes.\207\ Authorities beat Alim and Ablikim, and in early
July, Alim confessed to the charges against him after
reportedly being tortured.\208\ The local procuratorate
indicted Alim and Qahar on July 10.\209\ Authorities also have
placed other family members under house arrest and
surveillance.\210\
Religious Freedom for China's Orthodox Christians
The Chinese government has not officially recognized its
small and slowly reawakening Orthodox Christian community, nor
has it accommodated its need for priests and bishops.\211\ In
recent years, Chinese officials have met with representatives
of the Russian Orthodox Church to discuss these issues.\212\
The central government has not recognized Orthodoxy as a
religion, as many had hoped after the 2004 Regulation on
Religious Affairs omitted mention of the government's five
recognized religions. The provincial regulations of
Heilongjiang and Inner Mongolia, however, have recognized
Orthodoxy, and some other localities have published documents
that appear to recognize Orthodoxy while including it under the
category of Protestantism.\213\ Local authorities have not
accepted the registration of any Orthodox parishes other than
the four that were registered before 2005 in Harbin city,
Heilongjiang province, Labdarin city, in the Inner Mongolia
Autonomous Region, and Ghulja and Urumqi cities, in the
Xinjiang Uighur Autonomous Region (XUAR).\214\ In the XUAR,
authorities have reportedly advised Orthodox Christians not to
communicate with foreigners.\215\ The Chinese government has
not permitted Chinese Orthodox priests trained in Russia to
minister to Chinese Orthodox, who still have no priests to
conduct divine liturgy and administer sacraments.\216\
Religious Freedom for China's Protestants
The Chinese government continues to repress Chinese
Protestants who worship in house churches. According to reports
from a U.S. NGO that monitors religious freedom in China,
officials raided house church services or meetings, and
detained and questioned leaders and members.\217\ Although
public security officials held most of those whom they detained
in such raids for short periods, they held house church leaders
for more extended periods, sometimes for weeks or months.\218\
Officials also reportedly tortured or physically abused some of
the house church detainees.\219\ Officials confiscated personal
property belonging to house church leaders and members, and
officials also detained foreign missionaries who provided
training to house church leaders.\220\
From May 2005 to May 2006, the government detained nearly
2,000 house church members, according to the same U.S.
NGO.\221\ Almost 50 percent of the reported detentions of
Protestant house church members and leaders took place in Henan
province, where the Protestant house church movement is
particularly strong.\222\ Detentions were also reported in
Beijing municipality and in Anhui, Hubei, Jiangsu, Jilin,
Shandong, Shanxi, Sichuan, Yunnan, and Zhejiang provinces, and
in the Xinjiang Uighur Autonomous Region (XUAR).\223\ In
addition, officials demolished a large house church in Hangzhou
city, Zhejiang province, and beat hundreds of house church
members. Municipal officials had denied repeated requests for
permission to build a church.\224\
The government targets house church leaders for the most
severe punishment. In November 2005, officials convicted Cai
Zhuohua, a house church pastor in Beijing, of ``illegal
operation of a business'' for printing and giving away Bibles
without government authorization\225\ [see Section V(a)--
Special Focus for 2006: Freedom of Expression]. The court
sentenced Cai to three years' imprisonment. Xiao Yunfei and
Xiao Gaowen, his wife and brother-in-law, were sentenced to
shorter terms.\226\ House church pastors Liu Yuhua and Wang
Zaiqing also reportedly printed Bibles without permission, and
in 2006 officials detained the former and formally arrested the
latter.\227\ In December 2004, officials arrested Zhang
Rongliang, a leader of the China for Christ house church
network in Henan province, and several months later charged him
with ``illegally crossing the national border'' and
``fraudulently obtaining a passport.'' \228\ In June 2006,
Pastor Zhang was sentenced to seven years and six months in
prison.\229\ Officials convicted Gong Shengliang, founder of
the South China Church in Hubei province, of premeditated
assault and rape in 2001. Gong continues to serve a sentence of
life in prison in Hubei province, although nine of the
government's witnesses against him have recanted their
testimony, alleging that their testimony was extracted under
torture [see Section V(b)--Rights of Criminal Suspects and
Defendants--Torture and Abuse in Custody]. In 2006, Gong's
daughters reported that he is in poor health, and that another
inmate beat Gong in prison. His lawyers have applied for his
release on medical parole.\230\
Chinese authorities have banned some house churches as
``cults,'' and harassment and repression of unregistered
Protestants for involvement in ``cults'' became more prominent
in mid-2006. Religious practitioners involved in what the
government classifies as a ``cult'' are subject to prosecution
under Article 300 of the Criminal Law. On five occasions in
June and July 2006, officials reportedly accused or
investigated house church members for involvement in ``cults''
(xiejiao).\231\ In July 2006, Xu Shuangfu and 15 additional
leaders of the Three Grades of Servants house church, which was
banned as a ``cult'' in 1999, were convicted on charges of
murder and fraud.\232\
The Chinese government continues to maintain strict control
over the registered Protestant church. The Regulation on
Religious Affairs (RRA) requires that all Protestants worship
at registered churches,\233\ regardless of their differences in
doctrine and liturgy. The state-controlled Three-Self Patriotic
Movement (TSPM), which leads the registered Protestant church
in China, does not allow Protestants to express these
differences freely.\234\ The TSPM continues to impose a
Communist Party-defined theology, called ``theological
construction,'' on registered seminaries that, according to
TSPM leader Ding Guangxun, will ``weaken those aspects within
Christian faith that do not conform with the socialist
society.'' \235\ TSPM publications indicate that the aspects to
be weakened include fundamental Protestant beliefs, such as
justification by faith alone.\236\ TSPM publications also
contain indications that some Chinese Protestants resist
``theological construction,'' and that this resistance may be
gaining in strength.\237\ In the past year, one instance was
reported in which officials detained a
registered Protestant pastor in Henan province, when the pastor
conducted a Bible study meeting at a registered Protestant
church outside his designated geographic area.\238\ The Henan
provincial Regulation on Religious Affairs requires visiting
registered
religious personnel to secure permission from both the
religious
organization in their designated geographic area and the
religious organization in the area they propose to visit.\239\
A TSPM official in the XUAR, where Protestantism is spreading
rapidly among the Han Chinese population, has reportedly said
that, although several years ago children used to attend
church, authorities now have forbidden this throughout the
region.\240\ A foreign expert who has done extensive research
on the TSPM has said that authorities have been ``siphoning off
the church's main source of revenue--rental income.'' \241\
The Chinese government continues to restrict the
relationships of unregistered Chinese Protestants with their
co-religionists abroad, in contravention of international human
rights standards.\242\ House church Protestants reported that
authorities raided meetings
between house church leaders and Protestants visiting China to
conduct theological or organizational training.\243\ Officials
have prevented some house church leaders from traveling abroad,
and imprisoned others upon their return.\244\ Senior government
officials continue to incite suspicion of overseas Christians
by accusing them of ``religious infiltration'' intended to
weaken China. Press reports have associated Protestantism with
``foreign imperialism'' and warn that Protestantism must be
``patriotic'' and not harm China.\245\ Despite these
restrictions, Chinese house churches have become increasingly
interested in theological and denominational issues,\246\ and
major house church networks continued to have regular contacts
with each other and with Protestants abroad.\247\
The government also restricts and monitors the foreign
relationships of the registered Protestant church. Although the
government permits the TSPM to maintain contact with foreign
denominations and educational institutions, and to conduct
exchanges with interdenominational Protestant organizations
abroad, it strictly regulates these contacts and limits them to
the TSPM's top leadership.\248\ Registered churches, however,
continue to receive financial support from abroad, a right
protected by Article 35 of the RRA.\249\
The number of reported house church and registered
Protestants in China continued to increase in the past
year.\250\ Foreign estimates of the total number of Protestants
range from 30 million to 100 million. Official Chinese
estimates exclude those who worship in unregistered house
churches.\251\ In response to the rapid growth in the numbers
of unregistered house churches, the government has instructed
registered churches to hold home services.\252\ According to
some reports, Protestants constitute a significant proportion
of the religious practitioners within the Communist Party.\253\
An internal Party study found that of some 60 million Party
members, 20 million engage in religious activities (9 million
do so regularly), and that a majority of them are
Christians.\254\ In October 2005, Party leaders concluded that
this high level of religious practice will ``change the
ideology of Party members and lead to the disintegration of
their political belief . . . and this will create all kinds of
social and political crises in the Party and in the country.''
The same leaders also called for all religious adherents to be
expelled from the Party.\255\ Party members in Liaoning
province and certain members of the Party Central Committee in
Beijing reportedly expressed their disagreement with this
policy, and said that it is time to permit Party members to be
believe in and practice a religion.\256\
The government continues to welcome some of the effects and
influences of Protestantism, specifically those that support
the
Party's societal goals. Chinese Protestants report that many
local officials believe that religious influence reduces
criminality and contributes to social welfare.\257\ The
government continues to welcome social service projects
undertaken by the Amity Foundation, a Protestant foundation
that recently sponsored projects in social services and
development aid, including education, healthcare, and care for
the elderly.\258\ A U.S.-based NGO plans to open the first
private university with an openly Christian mission in China
since 1949.\259\ A growing number of urban entrepreneurs who
have become Protestants use their influence to protect and
promote their religious communities.\260\ Likewise, a growing
number of urban intellectuals who have joined the house church
movement advocate for political and legal reform in China.\261\
Government Persecution of Falun Gong
Government persecution of Falun Gong practitioners, which
began in 1999 after thousands of practitioners demonstrated
peacefully outside the senior leadership compound in
Beijing,\262\ continued during the past year. Falun Gong and
other sources reported cases of arrest, abuse, detention,
torture, and execution of practitioners in 2005 and 2006.\263\
Based on official Chinese government information, at least 202
Falun Gong practitioners are currently in prison.\264\ Falun
Gong sources estimate that since 1999, at least 6,000
practitioners have been sentenced to prison, over 100,000
practitioners have been sentenced to reeducation through labor
(RTL), and almost 3,000 Falun Gong practitioners have died from
torture while in custody.\265\ Manfred Nowak, UN Special
Rapporteur on Torture, reported after his November 2005 visit
to China that Falun Gong practitioners account for 66 percent
of victims of alleged torture while in government custody.\266\
Multiple allegations of government-sanctioned organ harvesting
from Falun Gong prisoners surfaced in 2006. The U.S. State
Department investigated one set of charges, but was unable to
confirm them.\267\ A former senior Canadian government official
provided transcripts of telephone calls to detention facilities
and transplant centers in China, where officials there
confirmed the availability of organs from Falun Gong
prisoners.\268\ [See Section V(b)--Rights of Criminal Suspects
and Defendants--Harvesting of Organs from Executed Prisoners.]
Chinese government persecution of Falun Gong practitioners
contravenes the standards in Article 18 of the International
Covenant on Civil and Political Rights (ICCPR).\269\ Article
18(1) of the ICCPR guarantees everyone ``the right to freedom
of thought, conscience, and religion . . . [and] to manifest
his religion or belief in teaching, practice, worship, and
observance.'' Article 18(3) specifies that ``freedom to
manifest one's religion or beliefs may be subject only to such
limitations as are prescribed by law and are necessary to
protect public safety, order, health, or morals or the
fundamental rights or freedoms of others.'' \270\ The Chinese
government justifies its persecution of Falun Gong on the
grounds that it is necessary to protect public safety, order,
and morals, an argument based on Article 36 of the
Constitution.\271\ The UN Working Group on Arbitrary Detention
(UNWGAD), however, has rejected this argument. In 2004, the
UNWGAD found the detention of Falun Gong practitioner Qiu
Minghua arbitrary, and added that the Chinese government had
``failed to adduce any argument explaining why and how Ms.
Qiu's affiliation with, or profession of, the ideas or
principles of Falun Gong was or could have been detrimental to
the society as a whole, or to other individuals.'' \272\
Article 300 of the Criminal Law\273\ and Article 27 of the
newly enacted Public Security Administration Punishment
Law\274\ provide the legal pretext for penalizing Falun Gong
activities. Public security officials punish the majority of
detained Falun Gong practitioners administratively, including
by detaining them in RTL centers.\275\ [See Section V(b)--
Rights of Criminal Suspects and
Defendants--Administrative Detention.] According to a 1999
joint Supreme People's Court and Supreme People's Procuratorate
interpretation, ``cult'' activities that merit punishment under
the Criminal Law include publishing sect-related materials and
inciting others to disturb public order.\276\ Individuals
sentenced under Article 300 of the Criminal Law for organizing
the April 1999 demonstration in Beijing, and who remain in
prison today, include Li Chang, Wang Zhiwen, Ji Liewu, and Yao
Jie. In 2001, officials sentenced Chongqing practitioners Chen
Qi, He Haiou, Li Zongyu, and Xu Linfen to sentences from 8 to
12 years in prison for using the Internet to create and
distribute information about Falun Gong. In December 2001, a
Beijing court sentenced Wang Xin, Dong Yanhong, Meng Jun, Yao
Yue, and Liu Wenyu, five practitioners associated with Tsinghua
University, and Wang Xuefei, a university student from
Shanghai, to sentences ranging from 3 to 12 years. The
practitioners were convicted of using the Internet to download
materials from foreign Falun Gong Web sites and printing
leaflets for posting and distribution on Beijing streets.\277\
Officials harass and punish Chinese rights defenders and
lawyers who defend Falun Gong practitioners against government
persecution. [See Section V(b)--Rights of Criminal Suspects and
Defendants--Access to Counsel and Right to Present a Defense.]
In November 2005, authorities suspended the operating license
of the Beijing Shengzhi Law Firm and its director Gao Zhisheng
after he wrote an open letter to President Hu Jintao and
Premier Wen Jiabao criticizing official abuses against Falun
Gong practitioners.\278\ In January 2006, a Guangxi law firm
dismissed lawyer Yang Zaixin after he represented three Falun
Gong practitioners.\279\
The Chinese government continues its propaganda campaign
against Falun Gong and other qigong disciplines that it has
designated as ``cults.'' The government alleges that ``Falun
Gong is not only a cult but also an anti-China political
organization with base political intentions.'' \280\ The
government reports that ``in some places, the illegal
activities of Falun Gong and other cults are not completely
contained,'' and has maintained a campaign to distribute
posters illustrating the ``nature and danger'' of these
organizations throughout the country.\281\ The government
campaign against Falun Gong extends to all written materials
that practitioners use. In 2005, the government confiscated
4.62 million ``illegal'' Falun Gong and ``other cult propaganda
materials.'' \282\ One email provider in China blocked almost
20,000 emails relating to Falun Gong and other ``reactionary''
topics in 2005.\283\
V(e) Status of Women
findings
<bullet> The Chinese Constitution and national laws
provide that men and women should enjoy equal rights
and list protections for the economic and social rights
of women, but vague language and inadequate
implementation hinder the effectiveness of these legal
protections. Some provincial and municipal governments
have passed regulations to strengthen the
implementation of national laws. A 2005 amendment to
the Law on the Protection of Rights and Interests of
Women prohibits sexual harassment and domestic
violence, promotes a greater voice for women in the
government, and charges several government
organizations with responsibility for preventing human
trafficking and rehabilitating victims.
<bullet> Civil society groups in China advocate on
behalf of women's rights within the confines of
government and Communist Party policy. The All-China
Women's Federation, a Party-led mass organization,
works with the Chinese government to support women's
rights, implement programs for disadvantaged women, and
provide a limited measure of legal counseling and
training for women. Women, however, have limited
earning power compared to men, despite government
policies that guarantee women non-discrimination in
employment and occupation.
<bullet> Human trafficking remains pervasive in China
despite
efforts by government agencies to combat trafficking, a
framework of domestic laws to address the problem, and
ongoing cooperation with international anti-trafficking
programs. The government's population planning policy
has created a severe imbalance in the male-female birth
ratio, and this imbalance exacerbates trafficking of
women and girls for sale as brides. Between 10,000 and
20,000 men, women, and children are victims of
trafficking within China each year, and NGOs estimate
that 90 percent of those victims are women and children
trafficked for sexual exploitation. Authorities are
working with the International Labor Organization to
build anti-trafficking capacity and raise domestic
awareness of the problem.
Laws and Institutions
The Chinese Constitution and national laws provide that men
and women should enjoy equal rights and list protections for
the economic and social rights of women.\1\ A 2005 amendment to
the Law on the Protection of Rights and Interests of Women
(LPRIW) prohibits sexual harassment and domestic violence,
promotes a greater voice for women in the government, and
charges several government organizations with responsibility
for preventing human trafficking and rehabilitating victims.\2\
Some provincial and municipal governments have passed
regulations to strengthen the implementation of national laws.
For example, 15 provinces and cities have passed anti-domestic
violence regulations, and some localities have rules mandating
that police respond to domestic abuse calls.\3\
Vague language and inadequate implementation hinder the
effectiveness of these legal protections. The editor of the
Beijing newspaper Women's News points out that the LPRIW does
not define sexual harassment and domestic violence.\4\
According to one expert, many women know that laws exist to
protect their rights, but do not understand what these rights
are.\5\ Moreover, judges lack training on the laws protecting
women's rights. One Peking University Law School professor
notes that case rulings in domestic violence cases are
inconsistent because Chinese laws and judicial explanations
lack clear standards.\6\ Under a 1978 State Council regulation,
employers can require women workers to retire five years
before men.\7\ Courts have used this regulation to rule against
women in employment cases, even though the practice contravenes
the LPRIW.\8\ [See Section V(c)--Protection of Internationally
Recognized Labor Rights--Non-discrimination in Employment and
Occupation.] When determining who is eligible to receive shares
of collectively owned village assets, village committees have
made decisions that legitimize discrimination against women who
have moved to their husband's village, or who have remained in
the village in contravention of traditional marriage
arrangements.\9\ The Law of the PRC on Land Contract in Rural
Areas and the Marriage Law guarantee women the same land rights
as men, including land contracts and compensation for
requisitioned land, and since August 2005, judges have ruled in
favor of women in four lawsuits concerning land rights.\10\
The All-China Women's Federation (ACWF), a Communist Party-
led mass organization, works with the Chinese government to
support women's rights, implement programs for disadvantaged
women, and provide a limited measure of legal counseling and
training for women. The ACWF's close ties to the government
allow it to secure funding for innovative methods to deal with
women's problems.\11\ According to one Chinese official, ACWF
loans have helped increase education and employment
opportunities for rural women living in poverty.\12\ Urban
district-level ACWFs are cooperating with judicial and law
enforcement agencies to combat domestic violence by ensuring
police intervention and improving evidence collection in
domestic violence cases.\13\ The ACWF does not promote women's
interests, however, when such interests conflict with Party
policies that limit women's rights. For example, an ACWF
representative in Yunnan refused to allow a leading women's
rights activist to represent over 500 women in Yunnan who were
seeking redress for lost land, on the grounds that such
interference could ``influence stability.'' \14\ In addition,
the ACWF has been silent about the abuses of the government
population planning policy and is complicit in coercive
enforcement of birth limits\15\ [see Section V(h)--Population
Planning].
Civil society groups in China advocate for women's rights
within the confines of government and Party policy. Working
with the ACWF, the Chinese Legal Aid Foundation has set up a
fund to encourage volunteers to provide expert legal advice for
economically disadvantaged women.\16\ Women lawyers represent
women in lawsuits involving sexual harassment, domestic
violence, and compensation for land seizures, and newspapers
such as Women's News publicize the cases.\17\ In October 2005,
six domestic Chinese women's organizations attended a symposium
to share best practices,\18\ and women lawyers, entrepreneurs,
mayors, and reporters have also begun to form associations to
raise the profile of women in these professions.\19\
Gender Disparities
Women have limited earning power compared to men, despite
government policies that guarantee women non-discrimination in
employment and occupation. [See Section V(c)--Protection of
Internationally Recognized Labor Rights--Nondiscrimination in
Employment and Occupation.] Women have fewer opportunities for
promotion than men\20\ and have lower rates of employment at
high-paying jobs than men.\21\ Employers demand that women have
higher education levels than men to be hired for equivalent
white-collar positions.\22\ Middle-aged women have lost their
jobs more quickly than men as the state-owned manufacturing
sector has undergone economic restructuring.\23\ Some local
governments have established programs to provide loans and
training to women who have lost their jobs.\24\
In rural areas, women have fewer economic opportunities
than men and have less access to education. Men have more
opportunities to engage in non-agricultural employment, and
women are increasingly taking up uncompensated farming
responsibilities.\25\ Women now account for 60 percent of total
rural laborers.\26\ Some families emphasize the education of
male children over female children.\27\ According to statistics
in a 2006 Chinese Academy of Social Sciences report, 61 percent
of boys and 43 percent of girls in rural areas have completed
education higher than lower middle school.\28\ Young women
migrate to urban areas to find work, leaving them vulnerable to
trafficking, forced labor, and other abuses.\29\ According to a
2005 survey conducted in Hunan province, 74.8 percent of
migrant women respondents in Changsha, the capital of Hunan
province, had experienced sexual harassment while working.\30\
Chinese health statistics reflect women's disadvantaged
status. Chinese women have a higher overall rate of infectious
disease and disability than men.\31\ A lack of gender-sensitive
anti-HIV/AIDS policies has led to a growing risk of infection
for women\32\ [see Section V(g)--Public Health--HIV/AIDS].
According to one Chinese
report, since the late 1990s, the proportion of female HIV/AIDS
patients has risen. In the late 1990s, the ratio of infected
men to women was 9:1. In 2006, the ratio was reported to be
3:1.\33\ China is the only country in the world where the rate
of suicide is higher among women than among men.\34\ In rural
areas, the instance of suicide among women is three to four
times higher than the rate among men.\35\
Human Trafficking
Human trafficking remains pervasive in China despite
efforts by government agencies to combat trafficking, a
framework of domestic laws to address the problem, and ongoing
cooperation with international anti-trafficking programs.
Traffickers are often linked to organized crime and specialize
in abducting infants and young children for adoption and
household service.\36\ They also abduct girls and women for the
bridal market in China's poorest areas and for sale as
prostitutes.\37\ According to the U.S. State Department's
Office to Monitor and Combat Trafficking in Persons, between
10,000 and 20,000 men, women, and children are victims of
trafficking within China each year, and NGOs estimate that 90
percent of those victims are women and children trafficked for
sexual
exploitation.\38\ The government's population planning policy
has created a severe imbalance in the male-female sex ratio,
and the imbalance exacerbates trafficking of women for sale as
brides [see Section V(h)--Population Planning]. The Chinese
official media reported that employees at state-run welfare
organizations in Hunan province and the Inner Mongolia
Autonomous Region engaged in infant trafficking in 2005.\39\
Article 240 of the Criminal Law provides for severe
punishment, including the death penalty, for abducting and
trafficking women and children, and Article 416 contains
provisions to punish officials who fail to rescue women and
children who are abducted and trafficked.\40\ Efforts by the
Ministry of Public Security (MPS), however, have not kept pace
with increased trafficking. The number of victims of child
trafficking increased by 15 percent over a two-year period
beginning in 2003, according to unofficial government sources
cited by foreign news media,\41\ but the number of trafficking-
related arrests has declined since reaching a peak during an
MPS enforcement campaign that began in 2000.\42\ China is a
signatory to the UN Convention against Transnational Organized
Crime, but not to its two protocols that address human
trafficking and smuggling of migrants.\43\ China's Criminal Law
does not specifically address the issue of human trafficking as
it relates to forced labor, and although the Labor Law outlaws
forced labor practices in the workplace, it only provides light
penalties for violators.\44\ [For more information on forced
labor, see Section V(c)--Protection of Internationally
Recognized Labor Rights--Elimination of Forced Labor.]
State Council ministries, as well as employers' and
workers' organizations, are cooperating with the International
Labor Organization (ILO) to build anti-trafficking capacity and
raise domestic awareness of the problem.\45\ For example, an
ILO pilot program begun in 2000 to reduce the vulnerability of
women and children to trafficking in Yunnan province has
coordinated the resources of the All-China Women's Federation
and other local agencies to raise awareness and rehabilitate
victims of trafficking. The program has been expanded to five
other provinces.\46\
V(f) The Environment
findings
<bullet> The Chinese government acknowledges the
severity of China's environmental problems and has
taken steps to curb pollution and environmental
degradation. Since 2001, it has
formulated or revised environmental protection laws,
administrative regulations, and standards, and has
worked to strengthen enforcement of anti-pollution
rules. The Chinese government has also welcomed
international technical assistance to combat
environmental degradation, and has increased
cooperation with the U.S. government on environmental
protection over the past year.
<bullet> Despite these initiatives, local enforcement
of environmental laws and regulations is poor, and
underfunding of environmental protection activities
continues to hinder official efforts to prevent
environmental degradation. A lack of transparency
hampers the Chinese government's ability to respond to
civil emergencies, including environmental disasters.
Government efforts to impose greater control over
environmental civil society groups during the past year
have stifled citizen activism.
Government Response to Environmental Degradation
The Chinese government acknowledges the severity of China's
environmental problems. The State Council's White Paper on
``Environmental Protection (1996-2005),'' issued in June 2006,
notes that ``the contradiction between economic growth and
environmental protection is particularly prominent'' as the
``relative shortage of resources, a fragile ecological
environment and insufficient environmental capacity are
becoming critical problems hindering China's development.'' \1\
Senior government officials also acknowledge the possible
threat to social stability posed by severe environmental
degradation.\2\ A U.S. expert has observed that environmental
degradation and pollution ``constrain economic growth,
contribute to large-scale migration, harm public health, and
engender social unrest.'' \3\ According to official Chinese
estimates, environmental degradation and pollution cost China
an estimated 8 to 12 percent of annual GDP,\4\ and the number
of mass protests over pollution has increased by 29 percent per
year since 2000.\5\
The Chinese government has taken steps to curb pollution
and environmental degradation. In both its 10th (2001-2005) and
11th (2006-2010) Five-Year Programs, the government formulated
or revised environmental protection laws, administrative
regulations, and standards,\6\ and has worked to strengthen
enforcement of anti-pollution rules.\7\ The State Environmental
Protection Administration (SEPA) announced in October 2005 that
city governments will be penalized if they fail to attain
national air quality standards.\8\ SEPA has also continued to
close factories and halt construction projects that violate the
Environmental Impact Assessment Law and other environmental
protection laws.\9\ In September 2005, a Sichuan court found
environmental protection officials and commercial enterprise
officers criminally liable for severely polluting the Tuojiang
(Tuo River). This case is the first in which environmental
protection authorities investigated officials and company
officers at the same time for an environmental crime.\10\
Despite these initiatives, local enforcement of
environmental laws and regulations is poor, and underfunding of
environmental protection activities continues to hinder
official efforts to prevent environmental degradation.\11\
Officials often seek to protect enterprises that pollute
because local governments derive income from these enterprises
and job evaluations for officials are based on local economic
performance, not improvements in health or safety.\12\ Local
officials have also pressured local environmental protection
bureaus (EPBs) to overlook pollution and take no action against
polluters. Moreover, EPB officials sometimes allow polluting
enterprises to continue operation, because their often
underfunded bureaus derive additional funds by collecting fines
from polluters.\13\ In late 2005, poor local enforcement of
environmental laws and corruption triggered mass protests by
villagers in Zhejiang province.\14\
Government Transparency and Environmental Protection
A lack of transparency hampers the Chinese government's
ability to respond to civil emergencies, including
environmental disasters. An explosion in November 2005 at a
petrochemical plant in Jilin province released over 100 tons of
benzene and other toxic chemicals into the Songhua River.\15\
The Songhua flows into neighboring Heilongjiang province and is
the main water source for Harbin, the provincial capital, and
surrounding areas.\16\ Jilin officials and plant managers
initially denied that the explosion caused any pollution and
tried to dilute the spill by discharging water from a
reservoir.\17\ Jilin officials also waited approximately five
days to inform Heilongjiang provincial officials and the State
Environmental Protection Administration (SEPA) about the
spill.\18\ Once informed, Harbin officials announced that the
water supply system would be shut down for ``routine
maintenance.'' Harbin officials revised the announcement amid
rumors of a chemical spill, and informed the public 10 days
after the spill that the water system would be unavailable for
4 days due to ``possible'' contamination.\19\ This delayed
local government response impeded central government efforts to
manage the crisis, led to panic among the citizens of Harbin
city, and created a diplomatic incident with Russia.\20\
According to a U.S. expert, ``there are few incentives for
local officials in China to be bearers of bad news within the
system, because they believe they will likely be penalized for
it politically from the higher-ups.'' \21\
After the Songhua spill, the central government dismissed
some officials and passed rules to discourage provincial and
local officials from concealing information from the central
government.\22\ These reforms were not intended to relax the
government's control over the media or over the free flow of
information to the general public. Rather, the goal was to
increase the flow of information to central authorities in
Beijing. In January 2006, the State Council issued a general
plan on emergency response, stipulating that Class I (``most
serious'') or Class II (``serious'') incidents must be reported
to the State Council within four hours, and that the public
should be provided with accurate information in a timely
manner.\23\ In February 2006, SEPA issued a notice stating that
serious incidents must be reported to SEPA within an hour of
being discovered.\24\ Despite these steps to improve local
reporting to higher authorities, the central government did not
address the larger issue of government control over the news
media,\25\ which led to a nearly two-week press blackout on the
Songhua spill. Moreover, the National People's Congress is
considering a new draft law that would fine news media
organizations that report on sudden incidents, such as
environmental disasters, without prior government
authorization.\26\
Public Participation in Environmental Protection
The State Environmental Protection Administration (SEPA)
has continued efforts to expand public participation in
environmental protection work. In February 2006, SEPA released
two provisional measures on public participation in
Environmental Impact Assessment (EIA) procedures. These
measures are the first to contain specific arrangements and
procedures for public involvement in environmental issues.\27\
The measures allow a limited role for the public in the EIA
process through attendance at symposiums or public hearings,
answering questionnaires, and consulting experts. In July 2006,
a SEPA official announced that public hearings may be held on
important, complex, or difficult environmental matters.\28\ In
addition, before contractors launch a project, they are
required to provide the public with details on how construction
could affect the environment and what preventive measures will
be taken.\29\
The Chinese government has altered or delayed some
development projects in response to environmental concerns from
civil society groups, but a continued lack of transparency
limits public
involvement and violates the government's own environmental
protection laws. In February 2004, the government responded to
citizen environmental concerns and agreed to suspend all 13
proposed hydroelectric dam projects on the Nujiang (Nu River)
in Yunnan province, pending further review.\30\ In 2005,
Chinese officials reversed this decision after a closed
internal review, said that four of the proposed dams would be
built, and banned further news media coverage of the topic.\31\
Officials released information regarding the proposed dam
project under public pressure. In September 2005, environmental
activists posted an open letter to the State Council on the
Internet, pointing out violations of the EIA law and demanding
that officials organize a public hearing on the dam
project.\32\ Provincial authorities subsequently released the
government's order approving the EIA report, after refusing to
do so for two years.\33\
Despite these positive steps, government efforts to impose
greater control over environmental civil society groups during
the past year have stifled citizen activism. In June 2006, an
unidentified assailant assaulted Three Gorges resettlement
activist Fu Xiancai, leaving him paralyzed from the shoulders
down, after he met with a public security official to discuss
his interview with a German television station in May. Fu had
been harassed and threatened for more than a year as a result
of his petitioning efforts.\34\ The official investigation into
the assault concluded in August that Fu's injuries were self-
inflicted, a finding that is disputed by observers and those
close to him.\35\ This assault follows the detention of
environmental activists in October 2005 and April 2006.\36\ Tan
Kai, who was detained in October 2005 for his involvement in
the environmental group ``Green Watch,'' went to trial in May
on charges of illegally obtaining state secrets and was
sentenced to 18 months' imprisonment in August.\37\ Authorities
tried a villager from Zhejiang province in November 2005 for
his role in a protest against air pollution.\38\ In August
2005, senior officials announced that the All-China Environment
Federation would conduct a survey of environmental
organizations.\39\ Some analysts believe that the goal of the
survey is to rein in the activities of civil society
organizations.\40\
International Environmental Cooperation
The Chinese government has welcomed international technical
assistance to combat environmental degradation. The United
States and China share a common interest in protecting the
environment, and over the past year the two governments have
increased bilateral cooperation on environmental protection,
including:
<bullet> In November 2005, the Joint Committee on
Environmental Cooperation (JCEC) met in the United
States for its inaugural session. The JCEC was formed
on the basis of a 2003 agreement between the U.S.
Environmental Protection Agency (EPA) and the China
State Environmental Protection Administration to
collaborate on environmental issues, beginning with air
pollution, water contamination, and the environmental
impact of toxic substances.\41\
<bullet> The Asia-Pacific Partnership on Clean
Development and
Climate, a U.S. initiative to promote the development
and deployment of clean energy technologies to meet
pollution reduction, energy security, and climate
change concerns, was launched in January 2006. Member
countries include the United States, China, Australia,
India, Japan, and South Korea.\42\ One priority of the
Partnership is to strengthen U.S.-China cooperation on
environmental protection.\43\
<bullet> In April 2006, EPA Administrator Stephen
Johnson met in China with his counterpart, Minister
Zhou Shengxian, to sign an agreement on hazardous-waste
management, including finding and disposing of
polychlorinated biphenyls (PCBs). Johnson also toured
an EPA-funded project to encourage the use of cleaner,
safer home cooking fuels in Lijiang city, Yunnan
province, and an EPA-supported project between the Port
of Los Angeles and the Shanghai Municipal Port
Administration to reduce air pollution.\44\
<bullet> In May 2006, the U.S. Trade and Development
Agency awarded a grant to the Shandong Provincial
Environmental Protection Bureau (EPB) to develop
cleaner energy sources and another grant to the Shanxi
Provincial EPB to improve air quality.\45\
V(g) Public Health
findings
<bullet> The central government strengthened its
commitment during the past year to address the severe
shortage of affordable health care in rural China.
Since the collapse of the rural public health
infrastructure in the 1980s, the disparity in the
availability and affordability of health care between
urban and rural areas has increased. As a result, the
medical needs of China's rural poor, including the
diagnosis and treatment of infectious diseases, often
go unaddressed. The government, however, has pledged to
accelerate the establishment of rural health
cooperatives and invest more than 20 billion yuan
(US$2.5 billion) over the next five years to modernize
hospitals, clinics, and medical equipment at the
village, township, and county levels.
<bullet> The central government continued to take steps
over the past year to prevent and control the spread of
HIV/AIDS. Although the estimated number of HIV/AIDS
cases nationwide has decreased, health officials still
consider the disease to be a grave problem. Government
efforts to prevent and control the transmission of HIV/
AIDS continue to face serious challenges, as local
implementation of national policy lags far behind
central government attention to the problem. Victims of
HIV/AIDS and other infectious diseases also continue to
face harassment and discrimination, despite legal
protections.
<bullet> Chinese public health officials have shown
increased commitment and responsiveness in their
efforts to prevent and control the spread of avian flu,
and have taken steps to improve government transparency
following the mishandling of the SARS epidemic in 2003.
International health experts, however, still consider
China to be among the most likely incubators of a
potential human influenza pandemic. Central government
cooperation in sharing information and virus samples
with international health organizations has been
inconsistent, and international health organizations
and central government officials continue to express
concern about the speed and accuracy of local reporting
on outbreaks among both humans and poultry.
Rural Poverty and Public Health
The central government strengthened its commitment during
the past year to address the severe shortage of affordable
healthcare in rural China. Premier Wen Jiabao announced the
launching of a Plan for Establishing and Developing a Rural
Healthcare Service System in a March 2006 work report to the
annual plenary session of the National People's Congress. The
Chinese leadership highlighted these goals in their December
2005 Opinion Promoting the Construction of a New Socialist
Countryside, a document that enumerated key policy goals
related to rural development for 2006.\1\
According to the plan, the government will invest more than
20 billion yuan (US$2.5 billion) over the next five years to
modernize hospitals, clinics, and medical equipment at the
village, township, and county levels.\2\ In an effort to
accelerate the establishment of rural health cooperatives,
Premier Wen pledged to expand experimental health cooperative
coverage from 671 counties to 1,145 counties (over 70 percent
of the counties in China) by the end of 2006, and double the
healthcare allowances paid to rural residents in the program
from 20 yuan (US$2.5) to 40 yuan (US$5).\3\ Wen also said that
central and local governments will build rural health
cooperatives across the entire country by 2008.\4\
Since 2002, the central government has encouraged the
formation of rural health cooperatives, which receive local
government subsidies to cover a portion of the medical expenses
for farmers who pay an annual 10 yuan (US$1.25) premium.
Despite these
improvements, healthcare costs have become one of the greatest
financial burdens for those living in rural areas.\5\ The
poorest residents in rural areas frequently do not enroll in
health cooperatives because of the modest annual fee.\6\ Even
for participants, the cooperative plan covers only between 30
and 40 percent of hospitalization costs, leaving many rural
families in debt after a serious
illness.\7\ Yang Lixiong, a social security expert at Renmin
University in Beijing, found that since 2001, the per capita
income of those living in rural areas increased 2.4 percent,
while the per capita yearly expenditure on healthcare services
among rural residents rose 11.8 percent.\8\
Since the dissolution of the commune-based rural public
health infrastructure in the 1980s, the disparity between urban
and rural areas in the availability and affordability of
healthcare has increased.\9\ China's healthcare system
underwent privatization beginning in 1978, and by 1999 the
central government's share of
national healthcare spending fell from 32 percent to 15
percent.\10\ From 1977 to 2002, the number of doctors in rural
China decreased from 1.8 million to 800,000, and the number of
rural healthcare workers decreased from 3.4 million to
800,000.\11\ Eighty percent of medical resources are now
concentrated in cities, and the new rural healthcare system
covers less than 23 percent of rural residents.\12\ The rural-
urban disparity is also apparent in mortality statistics.
Residents of large cities in China live 12 years longer than
rural residents, and the infant mortality rate in some rural
areas is nine times higher than in large cities.\13\
Infectious Diseases and Public Health
Infectious diseases such as tuberculosis and hepatitis B
continue to be a major challenge for China's public health
system. According to the Ministry of Health (MOH), a total of
4.42 million infectious disease cases were reported in 2005, an
increase of 12.7 percent from 2004.\14\ Over 13,000 people died
from infectious diseases in 2005, and the mortality rate
increased more than 80 percent from 2004, according to a MOH
report.\15\ Among the top killers were tuberculosis, rabies,
AIDS, hepatitis B, and neonatal tetanus.\16\ Unofficial
estimates place the number of hepatitis B carriers in China at
120 million.\17\ In an attempt to reduce hepatitis B infection,
the MOH issued the ``2006-2010 National Plan on Hepatitis B
Prevention and Control.'' The plan's top priority is to
strengthen vaccination programs, especially among young
children.\18\ The plan sets the goal of lowering the infection
rate to 1 percent among those five years old and younger, and
to less than 7 percent nationwide by 2010. The MOH has
acknowledged the limitations of the current public health
system in addressing the growing medical needs of hepatitis
carriers.\19\ A survey conducted by the China Foundation for
Hepatitis Prevention and Control (CFHPC) found that a majority
of Chinese physicians do not have adequate knowledge of
hepatitis B or of ways to prevent and treat the disease.\20\
Victims of infectious diseases, like hepatitis B, continue
to face discrimination in schooling and employment, despite
protections in the Law on the Prevention and Control of
Infectious Diseases, as amended in 2004.\21\ The amended law
prohibits discrimination against people with infectious
diseases, people carrying the pathogen of an infectious
disease, and people who are suspected of having an infectious
disease. A 2005 CFHPC survey, covering 583 hepatitis patients
in 18 provinces, found that 52 percent of the respondents had
faced discrimination in employment and education.\22\ Some
carriers, however, have become aware of their legal rights and
have taken legal action against unfair treatment. In November
2005, university authorities in the Xinjiang Uighur Autonomous
Region ordered 156 students, diagnosed as hepatitis B positive
in their matriculation health checks, to suspend their
schooling ``for the sake of public health.'' Students formed an
action group and circulated fliers to protest the unfair
treatment, and one student started legal proceedings against
university authorities.\23\ One student also filed a lawsuit
against a university in Henan province alleging that the school
denied him admission because he is a carrier of the hepatitis B
virus. The university had denied the student admission, despite
the fact that he scored above the cut-off point on the entrance
examination. His application showed that he had tested positive
for hepatitis B.\24\
HIV/AIDS
The central government continued to take steps over the
past year to prevent and control the spread of HIV/AIDS. In
January 2006, the State Council issued its most comprehensive
HIV/AIDS regulations since the government first adopted
guidelines in 1987.\25\ The new regulations address the
dominant modes of HIV/AIDS transmission in China: intravenous
drug use and sexual contact. The regulations call for
cooperative measures among health authorities to provide
treatment for drug addicts, require that local governments
organize HIV/AIDS prevention action plans and monitoring
systems, and encourage local governments to post material about
HIV/AIDS transmission in public places. The new regulations
also require that governments at the county level and above
provide free anti-HIV/AIDS drugs for rural and poor urban AIDS
patients.\26\ A March 2006 UNAIDS report found that China was
only half way to meeting its goal under the UN's ``3 by 5''
initiative of providing 30,000 HIV/AIDS carriers access to
anti-HIV drugs by the end of 2005.\27\ The new regulations also
address discrimination against HIV patients, mandating that
``no work unit or individual shall discriminate against HIV
carriers, AIDS patients, or their families.'' \28\ The
regulations, however, do not specify legal redress for victims
who face such discrimination.
Health officials still consider HIV/AIDS in China to be a
``grave'' problem.\29\ Although the World Health Organization
and UNAIDS program decreased the estimated number of HIV/AIDS
cases nationwide from 840,000 to 650,000, health officials
calculate that there were on average 200 new cases of HIV/AIDS
infection in China each day in 2005.\30\ Government efforts to
prevent and control the transmission of HIV/AIDS continue to
face serious challenges. Central government officials expressed
frustration during 2005 and 2006 with local-level
implementation of national HIV/AIDS policy. During a November
29, 2005, meeting of the State Council Work Committee on AIDS
Prevention and Treatment, Vice Premier Wu Yi criticized some
local officials for failing to recognize the severity of the
HIV/AIDS problem, and criticized others for neglecting and, at
times, obstructing HIV/AIDS prevention and control efforts.\31\
Wang Longde, Vice Minister of Health, criticized local
governments in November 2005 for only providing HIV/AIDS
prevention services to urban residents with local residential
registration, thus excluding migrant workers who are a high-
risk group for HIV/AIDS infection.\32\ To address this
discrimination, the State Council and the Ministry of Health
announced a new program in November 2005 that aims to provide
more than 65 percent of migrant workers with access to HIV/AIDS
prevention information by the end of 2006, and more than 85
percent by 2010.\33\
Reports of government harassment of HIV/AIDS carriers
continued throughout the year, as some local officials
retaliated against AIDS victims who expressed their
grievances.\34\ Local government harassment of Chinese civil
society organizations dealing with HIV/AIDS also continued,
undermining efforts to combat the disease. Public security
officials detained activist Hu Jia, co-founder of the Beijing
Aizhixing Institute and of Loving Source, both HIV/AIDS
advocacy groups, when he attempted to deliver a petition on
behalf of more than 50 AIDS patients to Vice Premier Wu Yi at a
November 2005 AIDS conference in Henan province.\35\ Citing
government pressure, Hu subsequently resigned from Loving
Source in February 2006.\36\ [See Section VII(a)--Development
of Civil Society.]
Avian Flu
Chinese public health officials have shown increased
commitment and responsiveness in their efforts to prevent and
control the spread of avian flu, and have taken steps to
improve government transparency following the mishandling of
the SARS epidemic in 2003.\37\ Since a series of outbreaks in
poultry occurred in the fall of 2005, the central government
has appropriated over 2 billion yuan (US$250 million) for the
establishment of an avian flu prevention fund, and initiated
avian flu emergency management and monitoring plans through the
Ministry of Health and the Chinese Center for Disease Control
and Prevention.\38\ Local officials have culled or vaccinated
millions of poultry in affected areas.\39\ International health
experts, however, still consider China to be among the most
likely incubators of a potential human influenza pandemic.\40\
International health officials have continued to express
concern about the effectiveness of animal disease surveillance
methods at the local level, as the majority of reported human
infections have occurred in regions in which no previous bird
infections had been reported.\41\
Central government cooperation in sharing avian flu
information and virus samples with international health
organizations has been inconsistent. Although the Ministry of
Health has cooperated with international health organizations,
the Ministry of Agriculture has been less forthcoming.\42\
Testifying before a Commission roundtable, one health expert
said, ``Unfortunately, the lessons learned from SARS by the
Ministry of Health do not seem to have translated as well to
the Ministry of Agriculture.'' \43\ In an attempt to improve
the transparency of official reporting on avian flu outbreaks,
the State Council issued regulations in November 2005 requiring
provincial governments to report ``major'' animal epidemics to
the State Council within four hours of discovering them, and
county and city governments to report cases to provincial
authorities within two hours.\44\ Officials who are found
negligent in reporting outbreaks face removal from office and
potential prosecution.\45\ Despite these regulations,
international health organizations and central government
officials continue to express concern about the speed and
accuracy of local reporting of outbreaks among both humans and
poultry.\46\ The reporting of domestic outbreaks by Chinese
news media sources also has frequently lagged behind that of
international news media organizations.\47\ In an October 2005
editorial discussing the government's response to avian flu, Hu
Shuli, editor of Caijing, a government-sponsored magazine,
wrote that, ``if one wants to do things even better, one should
admit that announcements of avian influenza outbreaks to the
domestic public are still obviously delayed and incomplete.
This is inappropriate in every way.'' \48\
V(h) Population Planning
findings
<bullet> The Chinese government strictly controls the
reproductive lives of Chinese women. Since the early
1980s, the government's population planning policy has
limited most women in urban areas to bearing one child,
while permitting many women in rural China to bear a
second child if their first child is female. Officials
have coerced compliance with the policy through a
system marked by pervasive propaganda, mandatory
monitoring of women's reproductive cycles, mandatory
contraception, mandatory birth permits, coercive fines
for failure to comply, and, in some cases, forced
sterilization and abortion.
<bullet> The Chinese government's population planning
laws and regulations contravene international human
rights standards by limiting the number of children
that women may bear, by coercing compliance with
population targets through heavy fines, and by
discriminating against ``out-of-plan'' children. Local
officials have violated Chinese law by punishing
citizens, such as legal advocate Chen Guangcheng, who
have drawn attention to population planning abuses by
government officials.
Population Planning Policy
The Chinese government strictly controls the reproductive
lives of Chinese women, but population planning policy varies
by locality. Since the early 1980s, the government's population
planning policy has limited most women in urban areas to
bearing one child, while permitting many women in rural China
to bear a second child but generally restricting the additional
birth to women whose first child is female.\1\ Officials have
coerced compliance with the policy through a system marked by
pervasive propaganda, mandatory monitoring of women's
reproductive cycles, mandatory contraception, mandatory birth
permits, coercive fines for failure to comply, and, in some
cases, forced sterilization and abortion. Since the early
1980s, population planners have frequently revised provincial
and local rules and quotas as the result of evolving national
population targets.\2\ Current policies concerning the
circumstances under which women may bear two children vary at
the provincial and local level, depending on changes in the
national plan, on changes in provincial and local quotas, and
on whether provinces or localities have met or exceeded
previous quotas.\3\ Local regulations permit ethnic minorities
to have additional children. Ethnic minorities in the Xinjiang
Uighur Autonomous Region are permitted to have more than two
children if they reside in rural areas, and the Communist
Party's official journal, Seeking Truth, has claimed that in
the Tibet Autonomous Region there are no restrictions on the
number of children that farmers and herders may have.\4\
The government coerces compliance with its restrictions on
birth principally through a system of harshly coercive fines,
which are termed ``social compensation fees.'' \5\ Provincial-
level governments determine the criteria for issuing these
fines, their amounts, and the method for collecting them
``based on local conditions.'' \6\ In Beijing municipality,
officials file a case, investigate, and deliver a ``Social
Compensation Fee Decision'' to parents when they suspect an
illegal birth. The parents must pay in full within 30 days of
receiving the ``Social Compensation Fee Decision'' or file an
application to pay the fine in installments. The first payment
must be 50 percent of the total fine, and the parents must make
full payment within three years. Parents in Beijing who violate
regulations on having a second child, or unmarried persons who
violate regulations on having a child, are fined 3 to 10 times
the area's average annual income. Parents who have a second
child in accordance with regulations, but less than four years
after the first child, or when the mother is less than 28 years
old, are fined one-fifth of the area's average disposable
annual income for urban residents, and one-fifth of the area's
average gross annual income for rural residents. When the
parents' actual income exceeds the area's average income, the
regulations provide that the actual income should be the basis
for computing the fine. If the parents ``practice deception,''
obstruct official processes, or ``exert negative social
influence,'' fines can be doubled.\7\ Practices for assessing
fees against parents who violate population planning
regulations differ in Shandong province, where incomes are
lower than in Beijing municipality. The fine is set at 30
percent of a given area's average annual income.\8\ Families
forced to pay these heavy fines can be financially devastated
for years. When parents do not pay the fines, population
planning officials can file legal cases, and one Chinese media
report from 2006 described a local court acting ``vigorously''
to collect fees and to ``uphold the authority'' of population
planning officials.\9\ Officials also have reportedly destroyed
the homes of those who do not pay the fines.\10\
Violations of Chinese Law and International Human Rights
Standards
The Chinese government's population planning laws and
regulations contravene international human rights standards.
For example, the Population and Family Planning Law, which
became
effective in 2002, contravenes the standards set by the 1995
Beijing Declaration and the 1994 Programme of Action of the
Cairo International Conference on Population and Development
(1994 Programme) by limiting the number of children that
married women may bear and by banning unmarried women from
bearing any children.\11\ Population planning laws coerce
compliance by penalizing women who bear an ``out-of-plan''
child with a ``social compensation fee'' that ranges from
roughly one-half to 10 times an individual's average annual
income, based on locality.\12\ Moreover, 7 provinces require
``termination'' of pregnancies that violate provincial
regulations, while 10 provinces require unspecified ``remedial
measures.'' \13\ The government contravenes the standards set
by the
Universal Declaration of Human Rights and the International
Covenant on Economic, Social, and Cultural Rights by
discriminating against ``out-of-plan'' children in health care
and education.\14\ The government also contravenes the 1994
Programme by setting population targets.\15\
Some local officials charged with implementing the national
population planning policy violate Chinese law by physically
coercing abortions and sterilizations. Although physical
coercion violates Article 4 of the Population and Family
Planning Law,\16\ local officials continue to use physical
coercion, or the threat of physical coercion, to enforce
compliance with population planning laws and regulations. In
December 2005, Western media reported that officials in Hebei
province forced a Falun Gong practitioner to have an abortion,
and in 2006, officials in Chongqing municipality and in Fujian
province forcibly sterilized women.\17\ In June 2006, Western
media reported that a woman fell to her death while fleeing
Anhui provincial officials who were attempting to force her to
abort twins, since she had previously given birth to one
child.\18\ Central government personnel policies encourage the
coercive practices of local officials by making the local
officials' promotions and bonuses dependent on meeting
population targets.\19\ Little public evidence is available to
show that officials who employ physical coercion against
pregnant women have been punished for their illegal acts.\20\
Two committees of the U.S. House of Representatives heard
testimony in 2004 and 2006 that some Chinese officials continue
to physically coerce compliance with the population planning
policy. Witnesses said that the means employed against pregnant
women include forced abortion, sterilization, and implantation
of contraceptive devices. Other forms of physical coercion are
exercised against friends and relatives who try to assist
them.\21\ The government uses group rewards and punishments,
denying benefits or imposing penalties on entire villages,
factories, or work units in the event of a single ``out-of-
plan'' birth. As a result, women with ``out-of-plan''
pregnancies are ostracized and placed under great pressure to
have an abortion.\22\ These abuses have created an atmosphere
of fear in which most Chinese women feel they have little
choice but to comply with the population planning policy.\23\
Officials charged with implementing these laws and
regulations have also violated Chinese law by punishing
citizens, such as legal advocate Chen Guangcheng, who have
publicized population planning abuses by local authorities.\24\
In early 2005, authorities in Linyi city, Shandong province,
directed a campaign against ``out-of-plan'' births in which
local officials reportedly committed physical abuses, including
forced abortions, forced sterilizations, and beatings. The
authorities profited from their abuses by charging illegal fees
to those detained.\25\ Although Article 41 of the Chinese
Constitution guarantees Chinese citizens ``the right to
criticize and make suggestions to any state organ or
functionary,'' Chen was beaten, placed under house arrest,
detained, arrested, tried, and sentenced to four years and
three months in prison for peacefully drawing attention to the
abuses in Linyi.\26\ A number of his relatives, supporters, and
attorneys were also harassed, beaten, or
detained [see Section V(b)--Rights of Criminal Suspects and
Defendants--Arbitrary Detention in the Formal Criminal
Process]. In September 2005, an official from the National
Population and Family Planning Commission (NPFPC) responded to
international news media attention by admitting that Linyi
officials had committed unspecified ``practices that violated
law'' and declaring that ``the
responsible persons have been removed from their posts.'' \27\
In October 2005, however, foreign journalists reported that
forced abortions continued in Linyi, and in February 2006,
foreign journalists were unable to confirm that any Linyi
officials had been punished for these acts.\28\
Victims and activists have accused officials of other
instances of corruption and abuse of power in implementing the
population planning program. Article 4 of the Population and
Family Planning Law requires officials to perform their
administrative duties strictly in accordance with the law, and
Article 39 provides that population planning officials may be
subject to criminal punishment for ``abusing [their] power . .
. demanding or accepting bribes. . . .'' \29\ In Hunan
province, approximately 60 villagers claimed that population
planning officials took 11 adopted and ``out-of-plan'' children
away from their homes and demanded money for their return.\30\
Xinhua reported that government authorities punished 13
officials in Shaanxi province after investigators found that a
population planning official and a village head took bribes
from a woman and her husband, supplied them with fraudulent
documents, and forged the woman's contraception records.\31\
Some wealthy Chinese choose to pay the fines for ``out-of-
plan'' children to have a large family.\32\ The head of the
NPFPC said in an interview that a minority of wealthy and
famous people, as well as leading cadres, violate the birth
restrictions and, although they ``should be legally punished .
. . our supervision has not yet reached the desired level.''
\33\
Social Crises Resulting From the Population Planning Policy
Chinese population planning policies, combined with a
cultural preference for sons, produce sex ratio imbalances and,
in some cases, lead families to abort female infants. The
current male-female birth ratio for first births is 121:100 and
152:100 for second births. Some foreign experts believe that
the actual ratios are even more imbalanced,\34\ and some
reports claim that the imbalance is worsening.\35\ Demographers
and population experts consider a normal male-female birth
ratio to be between 103 to 107:100.
In June 2006, the National People's Congress (NPC) withdrew
a proposed law that would have criminalized sex-selective
abortion. Article 35 of the 2002 Population and Family Planning
Law prohibits, but does not penalize, sex-selective abortion.
The prohibition has been widely ignored by medical personnel
and parents.\36\ In December 2005, the National Population and
Family Planning Commission (NPFPC) reported that the government
had submitted a draft Criminal Law amendment to the NPC under
which parents or medical personnel involved in sex-selective
abortions would face fines and up to three years in prison.\37\
In an April 2006 interview, Zhang Weiqing, Director of the
NPFPC, emphasized the long-term nature of the sex-ratio
imbalance and the need to support the draft amendment.\38\
Xinhua later reported that the proposed amendment had resulted
in a ``controversial debate'' that left the NPC Standing
Committee ``sharply divided.'' \39\ In June, the NPC decided to
withdraw the proposed law.\40\ Some officials opposed the law
on the grounds that a woman has the right to know the sex of
her child, that harsh penalties would create a black market in
fetal sex determination, and that prosecution of offenders
under the proposed amendment would prove difficult.\41\ Yu
Xuejun, Director of the NPFPC's Department of Policies and
Regulations, told a foreign newspaper that he regretted that
the amendment had been withdrawn and that he would continue
lobbying for it.\42\ Subsequent
reports in the state-run press have not disclosed whether the
government plans to submit a similar amendment to the NPC in
the future, but stated that curbing the sex ratio imbalance
remained a ``top priority'' and that the imbalance could become
a major obstacle to economic development. Other reports have
also discussed the means by which the sex-ratio imbalance might
be addressed. These included closing more clinics involved in
sex-selective abortions; strengthening and geographically
expanding implementation of the Care for Girls Program; raising
the criteria for licensing medical institutes and
practitioners; implementing preferential policies for girls and
women in health care, education, and employment; and
dispatching 60 teams to evaluate sex ratios, trends, and the
efficiency of government policies.\43\ The government has also
said that it plans to create a system to punish local officials
who fail to control sex ratio imbalances.\44\
The population planning policy has contributed to an
increasing number of elderly Chinese citizens without children
to support them financially. Director Zhang of the NPFPC has
noted that ``[t]here is a definite relationship between the
acceleration of the aging of the population and the strict
birth control policy.'' \45\ During the past year, the
government established a national program that grants a small
sum of money to rural couples who have one child or two
daughters.\46\ Some Chinese demographers predict that the aging
of the Chinese population and the sex-ratio imbalance will
create additional economic and social problems in the future,
and therefore advocate moving toward a ``two-child policy.''
\47\ One Chinese demographer at a December 2005 forum contended
that the Chinese population is aging faster than expected,
while others predicted that the population will begin to
decrease earlier and more sharply than expected.\48\ Others
predict worsening labor shortages and insufficient numbers of
working-age people to cover social insurance and pensions, and
foresee economic stagnation or recession in the next 20
years.\49\ Although many provinces have adopted policies that
expand the number of people permitted to have two children, not
all Chinese demographers agree with these forecasts or advocate
a ``two-child policy.'' \50\ NPFPC officials maintain that the
population planning policy will not change in the near future
and that preventing overpopulation will remain the government's
top priority for the foreseeable future.\51\ Director Zhang of
the NPFPC said in April that the policy was open to change, but
not in the short term. He claimed that China faces an impending
``baby boom.'' \52\
V(i) Freedom of Residence and Travel
findings
<bullet> Since its implementation in the 1950s, the
Chinese hukou (household registration) system has
limited the rights of ordinary Chinese citizens to
choose their permanent place of residence, receive
equal access to social services, and enjoy equal
protection of the law. Economic changes and relaxation
of some hukou controls have eroded previously strict
limits on citizens' freedom of movement, but these
changes have also exported a discriminatory urban-rural
social division to China's cities. Migrants who lack a
local hukou for their new city of residence face legal
discrimination in employment, education, and social
services.
<bullet> Chinese leaders called for reforms to the
hukou system during the past year. Central government
interest in reform stems not only from concern over
migrant rights and economic inequality, but also from
concern over growing social instability and a desire
for stronger government control over China's internal
migrant population. New national goals for hukou
reform, like similar proposals implemented periodically
since the late 1990s, call for streamlined hukou
categories, elimination of discriminatory regulations
on employment, and improved migrant access to social
services.
<bullet> Local governments and urban residents have
resisted reforms to the hukou system because of the
potential budgetary impact, fears of increasing
population pressure in cities, and discriminatory
attitudes toward migrants. Local opposition has limited
the ability of central government authorities to
achieve national reform goals.
The Hukou System
Since its implementation in the 1950s, the Chinese hukou
(household registration) system has limited the rights of
ordinary Chinese citizens to choose their permanent place of
residence, receive equal access to social services, and enjoy
protection of the law. Urban residents received preferential
employment opportunities, favorable educational quotas, and
old-age pensions. Rural residents did not. Hukou status, and
the accompanying right to receive these benefits, is inherited
at birth. Only limited methods exist for citizens to change
their hukou status.\1\ During the late 1970s, the system became
so rigid that rural residents risked arrest for entering urban
areas. These limits effectively blocked upward mobility for
most rural citizens.\2\
Economic changes and relaxation of some hukou controls have
eroded previously strict limits on citizens' freedom of
movement,\3\ but these changes have also exported a
discriminatory urban-rural social division to China's cities.
Official statistics suggest 120 million rural migrants worked
in Chinese cities in 2005, about a quarter of China's total
urban population.\4\ Official reforms undertaken since the late
1990s have allowed migrants to obtain hukou in urban areas
where they have a ``stable source of income'' and a ``stable
place of residence.'' \5\ Local officials, however, often
interpret these terms to exclude low-income rural migrants.\6\
As a result, poor rural migrants may live in Chinese cities for
long periods, even from birth, but retain hukou registration
inherited from their parents because they are unable to obtain
a local hukou in their new city of residence.
Migrants who lack a local hukou for their new city of
residence face legal discrimination. They cannot receive social
services such as healthcare or schooling for their children on
the same basis as other residents.\7\ Local authorities also
condition government employment, old-age benefits, and low-
interest housing loans on having a local hukou in the city of
residence.\8\ The Supreme People's Court issued a judicial
interpretation in 2003 regarding compensation for deaths in
personal injury cases that mandates a lower rate of
compensation for deceased rural hukou holders, even if they
have been resident in urban areas for many years.\9\
Representation in local legislative bodies favors urban hukou
holders; an individual rural local people's congress deputy
represents four times as many citizens as his or her urban
counterpart.\10\
Chinese laws and regulations that condition citizen legal
rights and social services on hereditary hukou status conflict
with international human rights standards on non-discrimination
and have generated criticism in China. Article 26 of the
International Covenant on Civil and Political Rights guarantees
equal protection of the law and non-discrimination based on
``national or social origin . . . birth or other status.''
Article 2(2) of the International Covenant on Economic, Social,
and Cultural Rights also prohibits discrimination on the same
grounds in fields such as employment, education, health, and
social security benefits. In early 2006, Chinese news media
carried a series of critical reports on cases of long-term
migrants in urban areas who held non-local rural hukou and who
were killed in traffic accidents. Families of the deceased
received substantially less in compensation than families of
residents who held local urban hukou and who were killed in the
same or similar accidents.\11\ The father of one deceased
migrant student said, ``My daughter had lived in the city for
10 years. She didn't pay less for her school fees because she
had [a] rural hukou. Why was her life worth less than half of
that of her classmates? '' \12\
Reform Efforts in 2005 and 2006
Chinese leaders called for reforms to the hukou system
during the past year. Communist Party scholars and government
officials publicly raised the subject of hukou reform in
October 2005, after the conclusion of the Party plenum.\13\ The
joint opinion issued by the Party Central Committee and the
State Council in December 2005 made hukou reform part of the
Party's ``new socialist countryside'' campaign on rural reform,
and a policy goal for 2006.\14\
Central government interest in reform stems not only from
concern over migrant rights and economic inequality, but also
from concern over growing social instability and a desire for
stronger government control over China's internal migrant
population. The December joint opinion emphasized the need to
protect the ``legitimate rights and interests of farmers who
seek work.'' \15\ Accompanying press statements noted a large
and increasing gap
between urban and rural incomes, with the former totaling 3.22
times the latter in 2005.\16\ An earlier October 2005 joint
Party and State Council opinion on public security and social
stability also highlighted the need to better protect migrant
rights, but also called for ``new techniques to manage China's
migrant population.'' \17\ In December 2004, Chen Jiping,
Director of the General Office of the Party's Committee for
Comprehensive Management of Public Security, the office that
drafted the October joint opinion, called for improving systems
used to keep track of temporary residents, including better
monitoring of migrant housing rentals.\18\
New national goals for hukou reform, like similar proposals
implemented periodically since the late 1990s, call for
streamlined hukou categories, elimination of discriminatory
regulations on employment, and improved migrant access to
social services.\19\ Public Security Vice Minister Liu Jinguo
said in October 2005 that the government was considering
elimination of the distinction between ``agricultural'' and
``non-agricultural'' hukous nationwide, a reform already
adopted in 11 provinces.\20\ Chinese academics noted that this
reform ``has not involved substantive content,'' since it does
not affect the requirement that migrants must obtain a hukou in
a particular city in order to receive equal access to social
services.\21\ Liu also said that Chinese authorities will
continue to require a ``stable place of residence'' to
determine which migrants may obtain hukou in larger cities.\22\
Both Liu's speech and the December joint opinion also
called for elimination of discriminatory regulations that limit
the ability of rural migrants to work in urban areas.\23\ The
State Council issued a similar directive in December 2004.\24\
Some ministries and local authorities have taken steps to
implement these directives. In late 2005, the Ministry of Labor
and Social Services (MOLSS) issued a migrant rights handbook
that says that MOLSS officials will not require migrants to
obtain a work registration card from their place of origin
before they seek jobs in urban areas.\25\ In early 2005,
Beijing municipal authorities abolished regulations that
prohibited renting apartments to migrants and that allowed
labor officials to exclude migrants from certain
occupations.\26\
Finally, central government authorities have called for
improving migrant access to urban social services as a national
reform goal. Public Security Vice Minister Liu said that local
governments should make serious efforts to address migrant
housing, education, and healthcare needs.\27\ The December
joint opinion calls for ``gradually constructing a social
security network for migrants,'' ``exploring the provision of
medical insurance for serious illnesses to migrants,'' and
``solving the problem of educating migrant children'' \28\ [see
Section IV--Introduction]. Draft amendments to the Law on
Compulsory Education would charge local governments with
providing equal educational opportunities to the children of
migrants.\29\ The Ministry of Health has announced projects to
educate migrant workers about HIV/AIDS, provide occupational
healthcare, and vaccinate migrant children against infectious
diseases.\30\
Local governments and urban residents have resisted reforms
to the hukou system because of the potential budgetary impact,
fears of increasing population pressure in cities, and
discriminatory attitudes toward migrants. Ministry of Public
Security (MPS) officials said in November 2005 that national
hukou reform efforts had encountered resistance from local
authorities who would bear responsibility for funding the
additional services to migrants.\31\ In the fall of 2005,
Shenzhen authorities announced tighter rules for migrants in an
effort to control the growth rate of the temporary resident
population. The new Shenzhen measures temporarily suspend
processing of local hukou applications for the dependent
children of current Shenzhen migrant residents, limit the
growth of private schools for migrant children, and require
migrant parents to pay additional fees to enroll their children
in public schools.\32\ Some urban residents oppose improved
treatment for migrants, expressing concern about urban
population growth and the influx of poor, less educated
migrants. Citizens invited to comment on Beijing's municipal
development plans in August 2005 demanded tighter restrictions
on rural migrants, including strict hukou policies and strict
controls on providing housing and employment to migrants.\33\
Local opposition has limited the ability of central
government authorities to achieve national reform goals. Lu
Hongyan, Deputy Director of the MPS General Office, said that
hukou reform ``is not entirely within the power or
responsibility of the MPS,'' but that the MPS would attempt to
coordinate with local governments and other ministries to
present a hukou reform program by late December 2005 or early
2006.\34\ Neither official sources nor the state-controlled
news media have reported the completion of work on such a
program. Chen Xiwen, Deputy Director of the General Office of
the Central Leading Group for Finance and Economics, remarked
at a press conference accompanying the issuance of the December
2005 joint opinion that the ``attached benefits'' linked to
hukou identification, such as education or healthcare, hinder
reform efforts. Chen said that the central government will not
press for a single plan for hukou reform, but will instead
allow localities to adopt their own reforms.\35\
Some provincial governments have made efforts to address
discrimination against migrants. For example, Henan provincial
authorities announced that starting in October 2005 they would
include several urban medical facilities in the local rural
health cooperative system. The plan allows migrants and rural
residents to receive health services at the designated
facilities, and forbids health providers from discriminating
between urban and non-urban residents in assessing fees.\36\ In
June 2006, the Henan High People's Court (HPC) issued an
opinion setting death or injury compensation awards for some
rural migrants at the same level as long-term urban residents.
The opinion requires that rural migrants have a ``regular place
of residence in the city'' and that their ``main source of
income be earned in the city.'' \37\ The Anhui HPC has issued
rules stipulating that injury or death compensation for minors
who hold a rural hukou but attend school and live in urban
areas shall be computed using the urban standard.\38\ Other
courts and legislative bodies are considering issuing similar
directives.\39\
Other local reforms have been limited, or have reversed
previous efforts to relax hukou controls. In January 2006, the
Shanghai local people's congress (LPC) for the first time
allowed two migrant workers from Jiangsu province to attend a
session of the Shanghai LPC as observers. The China Economic
Times, a State Council-sponsored publication, criticized the
Shanghai LPC, however, for not allowing the two migrants to
serve as full representatives. It noted that hukou restrictions
bar migrants from standing for election, and that none of the
1,000 LPC delegates attending the session represented
Shanghai's 4 million migrant workers.\40\ Shenyang municipal
authorities announced in December 2005 that they would resume
requiring temporary residence permits for migrants. Authorities
had abolished these permits in July 2003,
requiring only that migrants sign in with local public security
officials upon arrival in the city. Shenyang authorities noted
that they reinstated the temporary residence permits to comply
with provincial and national guidelines on hukou reform.\41\
International Travel
The National People's Congress Standing Committee passed a
new Law on Passports in April 2006 that will take effect in
January 2007. The law narrows the legal authority of Chinese
officials to deny passports to Chinese citizens.\42\ Article 13
of the new law specifies the conditions under which Chinese
authorities may deny a citizen's passport application,
including document falsification, failure to prove citizenship,
pending fulfillment of a criminal sentence or other criminal
punishment, or a court order not to leave the country as a
result of an ongoing civil case.\43\ Authorities may also deny
a passport application if they determine that the applicant's
activities abroad would harm national security or state
interests.\44\ This language is narrower than that of the
previous 1980 Regulations on Passports and Visas, which set no
limits on the government's authority to deny passport
applications.\45\ Article 12 of the International Covenant on
Civil and Political Rights provides both that ``[e]veryone
shall be free to leave any country, including his own,'' and
that ``[n]o one shall be arbitrarily deprived of the right to
enter his own country.'' Chinese authorities have denied
passports to Chinese citizens who express views they find
objectionable. In May 2006, Chinese authorities refused to
issue passports to two Chinese lawyers who applied for
permission to travel to the United States to assist a Falun
Gong practitioner who faced criminal charges.\46\ Chinese
authorities have also prevented Protestant house church leaders
from traveling abroad [see Section V(d)--Freedom of Religion--
Religious Freedom for China's Protestants]. Yang Jianli, a
Chinese citizen and democracy activist, is currently serving a
five-year prison sentence in China on charges of illegal entry
and espionage after entering the country on another person's
passport. Throughout the 1990s, Yang was unable to secure a
passport from Chinese consular officials in the United
States.\47\ The UN Working Group on Arbitrary Detention has
found his detention to be arbitrary.\48\
VI. Political Prisoner Database
The Commission made the CECC Political Prisoner Database
(PPD) globally accessible via the Internet in November 2004.
The PPD serves as a unique and powerful resource for
individuals, educational institutions, NGOs, and governments
that wish to research political and religious imprisonment in
China or advocate on behalf of prisoners. The Commission
routinely uses the database for its own advocacy work, and to
prepare summaries of information about political and religious
prisoners for Members of Congress and senior Administration
officials. The Commission uses the database to alert the public
about upcoming dates of parole eligibility, and about dates
when sentences expire and prisoners are due for release. The
PPD received approximately 150,000 online requests for prisoner
information since last October.
The PPD is designed to allow anyone with Internet access to
query the database and download prisoner data without providing
personal information. Users also have the option to create a
user account, which allows them to save, edit, or reuse
queries. A user-specified ID and password is the only
information required to set up a user account. The PPD does not
download or install any software or Web cookies to a user's
computer.
The PPD currently allows users to conduct queries on 19
categories of prisoner information.\1\ The Commission intends
to upgrade the PPD software and interface to make it possible
to search and retrieve more categories of prisoner information,
such as the names and locations of the courts that convicted
political and religious prisoners, and the dates of key events
in the legal process such as sentencing and decision upon
appeal. The Commission also plans future upgrades that will
make it possible for users to navigate between reports on
political imprisonment in the CECC Virtual Academy and records
of political and religious prisoners in the PPD. The Virtual
Academy is accessible on the Commission's Web site.
Each prisoner's record describes the type of human rights
violation by Chinese authorities that led to his or her
detention. These include violations of the right to peaceful
assembly, freedom of religion, freedom of association, freedom
of expression, including the freedom to advocate peaceful
social or political change, and to criticize government policy
or government officials. Many records feature a short summary
of the case that includes basic details about the political or
religious imprisonment and the legal process leading to
imprisonment. Users may download information about prisoners
from the PPD as Adobe Acrobat files or Microsoft Excel
spreadsheets.
As of September 2006, the PPD contained more than 3,900
individual case records of political and religious imprisonment
in China. The Dui Hua Foundation, based in San Francisco, and
the Tibet Information Network, based in London, shared their
extensive experience and data on political and religious
prisoners in China with the Commission to help establish the
database.\2\ The Dui Hua Foundation continues to do so. The
Commission also relies on its own staff research for prisoner
information, as well as on information provided by NGOs and
other groups that specialize in promoting human rights and
opposing political and religious imprisonment.
The PPD is accessible on the Internet at http://
ppd.cecc.gov. The Commission Web site contains instructions on
how to use the PPD.
VII. Development of the Rule of Law and Institutions of Democratic
Governance
VII(a) Development of Civil Society
findings
<bullet> The number of civil society organizations in
China is growing, with many organizations undertaking
projects such as poverty alleviation, faith-based
social work, and legal efforts to protect citizen
rights. These organizations include national mass
organizations that the Communist Party created and
funds, smaller citizen associations registered under
national regulations, and loose networks of
unregistered grassroots
organizations. In February 2006, the China Foundation
for Poverty Alleviation selected six groups as the
first civil society organizations to receive Chinese
government funding to run experimental anti-poverty
programs, including the China office of a U.S.-based
rural development organization.
<bullet> Central authorities seek to maintain control
over civil society groups, halt the emergence of
independent organizations, and prevent what they have
called the ``Westernization'' of China. While
recognizing the utility of civil society organizations
to address social problems, Chinese authorities use
strict regulations to limit the growth of an
independent civil society. Some Chinese citizens who
attempt to organize groups outside of state control
have been imprisoned. These include individuals who
have attempted to establish independent labor unions
and political associations, such as China Free Trade
Union Preparatory Committee member Hu Shigen and China
Democracy Party member Qin Yongmin; or young
intellectuals who organize informal discussion groups,
such as New Youth Study Group members Jin Haike, Xu
Wei, Yang Zili, and Zhang Honghai.
<bullet> Chinese officials have taken additional steps
to curtail civil society organizations in the past
year, but authorities are undecided on how to proceed.
Since early 2005, Ministry of Civil Affairs (MOCA)
officials have been researching a new administrative
system to monitor and control civil society
organizations. Many details of the new system are
undetermined, such as who will conduct the required
evaluations of civil society groups, how the evaluation
results will be used, and who will fund the
evaluations. At the same time, Chinese authorities have
supported limited reforms to the status of civil
society organizations. MOCA officials are advocating
changes to the tax code to encourage private donations
to civil society organizations. Central Party officials
have expressed support for the creation of rural farmer
cooperatives in annual policy guidelines issued each
year since 2004.
Civil Society and Government Controls
The number of civil society organizations in China is
growing, with many organizations undertaking projects such as
poverty alleviation, faith-based social work, and legal efforts
to protect citizen rights.\1\ These organizations include
national mass organizations that the Communist Party created
and funds, smaller citizen associations registered under
national regulations, and loose networks of unregistered
grassroots organizations.\2\ According to official Chinese
statistics, the number of registered civil society
organizations increased from 288,936 in 2004 to 317,000 in
2006, but one Chinese source estimates the number of
unregistered organizations to be as high as 3 million.\3\
Chinese authorities support the growth of civil society
organizations to help address social problems such as poverty
and AIDS.\4\ Ministry of Civil Affairs (MOCA) officials
acknowledge that these organizations have ``exerted [a]
positive influence in boosting China's economic growth and
helping maintain social stability.'' \5\ In February 2006, the
China Foundation for Poverty Alleviation selected six groups to
be the first civil society organizations to receive Chinese
government funding to run experimental anti-poverty programs,
including the China office of a U.S.-based rural development
organization.\6\
While recognizing the utility of civil society
organizations to address social problems, Chinese authorities
use strict regulations to limit the growth of an independent
civil society. National regulations issued in 1998 require that
civil society organizations have a government-approved sponsor
organization to register and obtain legal status.\7\ The
government limits sponsor organizations to designated
government and Party bureaus.\8\ This requirement contravenes
Article 22 of the International Covenant on Civil and Political
Rights, which provides that:
[N]o restrictions shall be placed on the exercise of
[the freedom of association] other than those which are
prescribed by law and which are necessary in a
democratic society in the interests of national
security or public safety. . . .\9\
Chinese regulations that require a government sponsor
organization for registration, and that consider all groups
that do not register to be illegal, differ from legal standards
in many countries and regions, including India, South Korea,
the European Union, and the United States.\10\ Other countries,
such as Moldova, Singapore, Tajikistan, and Uzbekistan, have
legal requirements similar to those in China.\11\
Chinese civil society organizations also have difficulty
raising funds, which limits their ability to act independently.
The majority of funds raised by environmental civil society
organizations is monopolized by a small group of organizations
with close official ties, according to a 2005 survey by the
All-China Environment Federation (ACEF).\12\ As a result, these
groups avoid direct confrontation with the government. Almost
65 percent of environmental organizations say that they would
prefer to cooperate with authorities, while 32.1 percent said
they would neither cooperate with nor oppose the
government.\13\ As one officer of a Chinese civil society
organization noted, ``[we] all recognize that keeping in line
with government policies and receiving government approval are
indispensable prerequisites for successful action.'' \14\ These
pressures are heightened by legal rules that hamper the ability
of civil society organizations to raise funds from private
domestic donors.\15\ Current law provides that Chinese
corporations may only deduct charitable donations for tax
purposes that are made to a few specified groups, and limits
tax exemptions to 3 percent of income.\16\
Central authorities seek to maintain control over civil
society groups, halt the emergence of truly independent
organizations, and prevent what they have called the
``Westernization'' of China. Top government and Party officials
have stopped citizen efforts to
register groups that they perceive as a threat, such as qigong
associations and organizations of veterans, laborers, and the
unemployed.\17\ Party officials have ordered the establishment
of Party cells within civil society organizations.\18\ Chinese
authorities periodically issue warnings against the use of
civil society organizations by ``hostile Western forces'' to
``combat'' or ``infiltrate'' China\19\ [see Section V(a)--
Special Focus for 2006: Freedom of Expression and Section
V(d)--Freedom of Religion]. Some Chinese citizens who attempt
to organize groups outside of state control have been
imprisoned. These individuals include those who have attempted
to establish independent labor unions and political
associations, such as China Free Trade Union Preparatory
Committee member Hu Shigen and China Democracy Party member Qin
Yongmin, and young intellectuals who organize informal
discussion groups, such as New Youth Study Group members Jin
Haike, Yang Zili, Xu Wei, and Zhang Honghai.\20\
Official reluctance to permit independent citizen
associations limits the options of Chinese citizens seeking to
protect their interests. According to the 2005 ACEF survey,
only 23.3 percent of Chinese environmental civil society groups
are registered.\21\ The absence of applicable national legal
standards hampers the development of the approximately 140,000
rural farmer cooperatives established as of 2003. Farmers use
these cooperatives to pool resources, increase their
competitiveness, and undertake limited collective action
against government authorities. National law does not provide
clear legal standards for the registration of these
organizations. Without legal status, they cannot borrow money
from institutional lenders or sign legally binding contracts.
Their tax obligations are also unclear. Some have registered
with MOCA, others with the Ministry of Industry and Commerce,
and others choose not to
register.\22\
Developments During 2005 and 2006
Chinese officials have taken additional steps to curtail
civil society organizations in the past year, but recent
developments indicate that authorities are undecided on how to
proceed with additional controls. In early 2005, an article in
an academic journal sponsored by the State Council pressed
officials to prevent Western ``infiltration and sabotage of
China through political NGOs.'' \23\ International NGOs with
U.S. ties operating in China subsequently have reported Chinese
partners cancelling or withdrawing from projects under
government pressure.\24\ Since 2005, Chinese public security
officials have investigated the operations of domestic and
international civil society organizations and questioned their
staff.\25\ In February 2006, prominent Chinese AIDS activist Hu
Jia resigned from Loving Source, an organization that he helped
establish to assist the orphans of AIDS victims, citing
pressure on the organization's international donors. Hu said
that the Chinese government ``is using soft methods to narrow
the space NGOs can exist in. The authorities are worried a
civil society would bring about a strong force that challenges
its rule.'' \26\ In August 2006, one Western expert on Chinese
civil society said that there has been a ``virtual paralysis''
of official registration by civil society organizations in
China, contrasted this with a more permissive climate two years
ago, and also noted an increase in self-censorship on the part
of civil society organizations that seek to avoid antagonizing
the government.\27\
Since early 2005, Ministry of Civil Affairs (MOCA)
officials have been researching a new administrative system to
supervise and control civil society organizations. In March
2005, MOCA established a leading group to develop this system.
During the summer of 2005, MOCA sponsored research on the new
system in Jinan and Qingdao municipalities in Shandong
province, and participated in international conferences
regarding new management techniques for civil society
organizations in the fall of 2005.\28\ News media reports and
official statements say that the system will be designed to
``evaluate'' and ``rate'' civil society organizations.\29\ Many
details of the new system have not been determined, such as who
will conduct the evaluations, how the evaluation results will
be used, and who will fund the evaluations.\30\ Provincial
efforts to implement the new system suggest that it will
augment rather than replace existing controls. For example,
Jiangxi provincial officials called for the implementation of
the new administrative system in March 2006, and said that it
should operate in addition to existing registration authorities
and official sponsor organizations.\31\ A MOCA official said
these efforts seek to improve the ``quality'' of civil society
organizations,\32\ while MOCA-sponsored conferences have linked
these efforts to the elimination of ``illegal organizations.''
\33\
Central government officials continue to consider draft
revisions to the 1998 regulations that govern civil society
organizations. Although MOCA officials have suggested that the
sponsor organization requirement be abolished,\34\ other
central government officials have rejected this option. State
publications note that ``there are no fundamental changes in
the draft revision[s]'' and that the sponsor organization
requirement will remain unchanged.\35\ News reports suggest
that the planned revisions contain a degree of liberalization,
allowing authorities discretion to register multiple civil
organizations of the same type in the same administrative area,
and
removing high capital requirements for registration.\36\
Reports also indicate that the revisions will allow
international organizations that operate in China to register,
but will also require them to have approved sponsor
organizations.\37\ Existing regulations do not specify a
procedure for most foreign NGOs to register, and therefore
their status is unclear.\38\ The reported content of the
revisions corresponds to the approach taken in 2004 national
regulations on foundations, which replaced a prior set of rules
on the same
subject.\39\
Chinese authorities have supported limited reforms to the
status of civil society organizations. MOCA officials are
advocating changes to the tax code to encourage private
donations to civil society organizations.\40\ Central Communist
Party officials have expressed support for the creation of
rural farmer cooperatives in annual policy guidelines issued
each year since 2004.\41\ Zhejiang provincial officials have
experimented with granting legal status to these cooperatives,
passing the first set of provincial regulations in 2004, and
registering the first group of associations under these rules
in 2005.\42\ In 2006, Chinese leaders voiced support for
national legislation to reform lending, tax, and registration
treatment of rural farmer cooperatives.\43\ The National
People's Congress (NPC) has placed relevant proposals on the
2006 legislative calendar. Nonetheless, NPC delegates say that
the central government's attitude toward these organizations
remains ``cautious'' and that central officials only support
these reforms because they have concluded that these
cooperatives are economic in nature, and will not become
involved in political issues.\44\
VII(b) Institutions of Democratic Governance and Legislative Reform
findings
<bullet> China has an authoritarian political system
controlled by the Communist Party. Party committees
formulate all major state policies before the
government implements them. The Party dominates Chinese
legislative bodies such as the National People's
Congress (NPC), and fills all important government
positions in executive and judicial institutions
through an internal selection process. Party control
extends throughout institutions of local government.
<bullet> In 2005, the central leadership called for
strengthened
controls over society to address mounting social unrest
and to suppress dissent. Chinese authorities have ruled
out building representative democratic institutions to
address citizen complaints about corruption and abuse
of power, and instead are recentralizing government
posts into the hands of individual Party secretaries.
<bullet> The absence of popular and legal constraints
to check the behavior of Party officials has led to
widespread corruption and citizen anger. The Party has
strengthened the role of internal responsibility
systems to moderate official behavior, but these
systems have provided some local Party officials with
new incentives to conceal information and abuse their
power.
<bullet> Since the 1980s, officials have introduced
limited reforms to allow citizens to vote in village
elections. While these reforms are a step forward in
permitting citizen participation at the local level,
the reforms are designed to strengthen Party governance
and do not represent Party acceptance of representative
government.
<bullet> Since the late 1990s, the Party has
experimented with reforms that allow a limited degree
of citizen participation in the selection of local
Party cadres, but the Party retains tight control over
the candidate pool and the selection process. Since
2000, Chinese authorities have experimented with the
use of legislative hearings to solicit public views on
pending legislation, and the NPC held its first
controlled public hearing in September 2005.
<bullet> Since 2000, the central government has
announced new transparency requirements for local
governments. In March 2005, central authorities
specifically required county and provincial governments
to increase transparency and popular participation in
government decisionmaking. Implementation of these
``open government'' requirements varies, but some local
governments have taken steps toward greater
transparency.
Introduction
China has an authoritarian political system controlled by
the Communist Party. Party committees formulate all major state
policies before the government implements them. The Party
dominates Chinese legislative bodies such as the National
People's Congress (NPC), and fills all important government
positions in executive and judicial institutions by an internal
selection process. The State Council's White Paper on
``Building Political Democracy in China,'' issued in October
2005, says that:
Party committees serve as the leadership core over
all [government and mass] organizations at the same
level . . . and through Party committees and cadres in
these organizations, ensure that the Party's policies
are carried out. . . . Through legal procedures and
democratic discussion, Party committees ensure that
Party proposals become the will of the state and that
candidates recommended by Party organizations become
leaders in the institutions of state power.\1\
Party control extends throughout institutions of local
government. Party institutions control the selection of judges,
and local Party committees influence which judges are posted to
their localities.\2\ Many local Party secretaries serve
concurrently as head of the local people's congress (LPC).\3\
County and township Party secretaries also control LPC and
village elections through the election leadership groups which
they often head.\4\ The Party constitution charges delegates to
Party congresses with selecting and controlling local Party
committees,\5\ but, as a U.S. expert noted at a Commission
roundtable, delegates ``are generally uninformed as to the
content of the Party congress or who they are to vote for until
just before the congress meets.'' \6\
China's authoritarian one-party system does not comply with
international human rights standards contained in the
International Covenant on Civil and Political Rights
(ICCPR).\7\ Article 25 of the ICCPR requires that citizens be
allowed to ``take part in the conduct of political affairs''
and ``to vote and to be elected at genuine periodic
elections.'' Under General Comment 25 to the ICCPR, this
language requires that:
<bullet> The right of persons to stand for election
should not be limited unreasonably by requiring
candidates to be members of parties or of specific
parties;
<bullet> Party membership should not be a condition of
eligibility to vote;
<bullet> It is implicit in Article 25 that [elected]
representatives do in fact exercise governmental power
and that they are accountable through the electoral
process for their exercise of that power;
<bullet> An independent electoral authority should be
established to supervise the electoral process and to
ensure that it is conducted fairly, impartially, and in
accordance with established laws which are compatible
with the ICCPR;
<bullet> Freedom of expression, assembly, and
association are essential conditions for the effective
exercise of the right to vote and must be fully
protected.
The absence of popular and legal constraints to check the
behavior of Party officials has led to widespread corruption
and citizen anger. Although Party policy documents assert that
one-party control is necessary for social stability,\8\ senior
Chinese officials have acknowledged that the inability of local
Party cadres to respond to citizen grievances is contributing
to rising social unrest.\9\ As one U.S. expert noted, ``the
power concentrated in the hands of the Party secretary and
standing committee has led to corruption and other abuses of
power that have fed social protests and a general decline in
the legitimacy of the Party in recent years.'' \10\ For
example, thousands of local Chinese officials have used their
positions to acquire financial interests in local mines,
hampering efforts to improve their safety [see Section V(c)--
Protection of Internationally Recognized Labor Rights]. In some
localities, police collude with criminal forces\11\ [see
Section V(b)--Rights of Criminal Suspects and Defendants--
Public Security and Coercive Use of Police Power]. In June
2005, local officials hired armed thugs to break up a protest
by farmers in Shengyou village, Hebei province, killing six
villagers and wounding more than 100. Villagers had opposed
local government efforts to seize their land and claimed that
local officials had embezzled money that should have gone to
the villagers.\12\ Ministry of Public Security statistics show
that incidents of ``mass gatherings to disturb social order''
rose by 13 percent from 2004 to 2005.\13\ Weak protection of
labor rights and worker discontent over unpaid wages and
benefits resulted in an increase in mass labor disputes from
1,482 in 1994 to 11,000 in 2003.\14\ Both collective and
individual citizen petitions seeking official redress have
increased steadily from 1993 to 2004.\15\
Party secretaries can block access to local information
sources that might challenge their control,\16\ which stifles
the role of the media as a check on the abuse of government
power. In November 2005, Jilin provincial officials prevented
the news media from reporting on an industrial accident and
massive benzene leak on the Songhua River for more than a week.
The delayed local government response impeded central
government efforts to manage the crisis, caused panic among the
citizens of Harbin city, and created a diplomatic incident with
Russia\17\ [see Section V(f)--The Environment]. In June 2005,
Hong Kong news media reported that Party propaganda officials
issued a directive limiting publication of critical
investigative reports by local news media through a requirement
that state-run news media first clear the articles with the
local Party committee.\18\ [See Section V(a)--Special Focus for
2006: Freedom of Expression.]
Chinese authorities have ruled out building representative
democratic institutions to address citizen complaints about
corruption and abuse of power,\19\ and are recentralizing
government posts into the hands of individual Party
secretaries. Officials are also relying on top-down personnel
controls to address local governance problems,\20\ but these
measures have increased incentives for some local Party
secretaries to conceal problems from their superiors, and thus
risk compounding the issue.\21\ One Commission roundtable
witness noted that ``rural governance can only be improved
within the current framework by strengthening the measures to
monitor government by the local congress[es] and farmers'
organizations,'' but that ``Chinese rural governments have no
impetus to initiate their own reform. . . .'' \22\
Stronger Party Controls
In 2005, Communist Party officials called for strengthened
controls over society to address mounting social problems and
suppress dissent. In October 2005, the Party Central Committee
and State Council issued an opinion calling for strengthened
controls over society, and the accompanying press statement set
a 2006 goal to reduce the number of ``mass incidents'' that
disturb public order, including strikes, marches,
demonstrations, and collective petitions to government
authorities.\23\ In January 2005, Party leaders launched an
``advanced education'' campaign to strengthen Party
organizations and to conduct political education for Party
cadres. Officials expanded the campaign to rural areas in
November 2005.\24\ Party officials assert that this propaganda
campaign will help reduce social unrest.\25\ A December 2005
Party and State Council joint opinion called for strengthening
village autonomous institutions (such as elected village
committees), but ``under village Party leadership.'' \26\
Government officials tightened controls over the press and
imposed new restrictions on the Internet [see Section V(a)--
Special Focus for 2006: Freedom of Expression]. Authorities
issued warnings about the activities of civil society
organizations, and are preparing new measures to monitor and
control them [see Section VII(a)--Development of Civil
Society].
Party officials say that the Chinese government ``will
absolutely not imitate Western political models,'' and they are
strengthening Communist consultative institutions instead of
creating representative political bodies.\27\ At the March 2005
meeting of the Chinese People's Political Consultative
Conference (CPPCC), Central Party School Vice President Li
Junru contrasted the Chinese system of ``elections plus
consultation'' with ``discredited'' Western liberal democratic
models.\28\ The CPPCC is a Party-led organization that includes
Party members, representatives of Party mass organizations, and
non-Party members that closely align themselves with Party
goals, including members of the eight minor ``democratic''
parties permitted under Chinese law.\29\ Li said, ``[i]n order
to
address foreign and domestic challenges regarding the issue of
democracy, particularly the challenge of the `color
revolutions,' the advantages of the CPPCC need to be brought
into play more effectively.'' \30\ In February 2006, Party
authorities issued an opinion on strengthening the CPPCC.\31\
It described ``Chinese socialist democracy'' as including not
only elections but also ``political consultation'' between
CPPCC and Party officials before important policy decisions are
made.\32\ It emphasized the role of the CPPCC in reflecting
popular opinion and providing government and Party leaders with
suggestions.\33\ It also called for stronger guarantees that
non-Party members may participate in consultations about
government policies.\34\ Foreign and Chinese news media have
noted that Chinese government and Party officials see the CPPCC
as a means to address mounting social unrest and popular
grievances.\35\
Party officials are recentralizing government posts into
the hands of Party secretaries, reversing reforms from the late
1980s in which Party leaders took some steps toward separating
government and Party roles.\36\ Chinese authorities now
encourage local Party secretaries to serve as the heads of
local people's congresses (LPCs), and also encourage the same
person to be village Party secretary and village committee
head.\37\ The Party's September 2004 ``Decision on
Strengthening the Party's Ruling Capacity'' instructed
officials to increase the number of dual Party-government
appointments.\38\ In 2005, Anhui provincial authorities
expanded to 17 counties an experimental program that implements
the 2004 Decision.\39\ The Anhui program promotes having
township Party secretaries serve concurrently as the head of
township governments.\40\ Reforms in individual townships
require other government positions to be held by lower-ranking
Party committee members.\41\ Local officials say that the
reforms seek to reduce overlapping responsibilities between
government and Party officials, thereby decreasing the size of
government and the local tax burden. Chinese domestic media has
raised concerns about the wisdom of concentrating power in the
hands of a single Party official.\42\
Chinese authorities increasingly use responsibility systems
that, in the absence of popular and legal constraints on their
power, provide incentives for local Party officials to conceal
information and engage in illegal behavior. Responsibility
systems link career rewards and sanctions to the success of
local officials in meeting government and policy goals for
social order, population planning, and other issues.\43\
Because no meaningful popular participation constrains the
behavior of local officials, responsibility systems create
incentives for abuse of authority, as officials try to fulfill
the goals set by their superiors. Such abuses include covering
up mining
accidents to meet safety goals [see Section V(c)--Protection of
Internationally Recognized Labor Rights], coercing women to
have abortions to meet population planning targets [see Section
V(h)--Population Planning], and illegally detaining petitioners
to meet social order objectives [see Section VII(c)--Access to
Justice]. In July 2005, the State Council issued an opinion
promoting the use of these top-down personnel systems.\44\
Since that time, authorities have ordered responsibility
systems to be implemented widely for officials in charge of
enforcing intellectual property rights,\45\ prohibiting illegal
mining,\46\ protecting the environment,\47\ and supervising the
judiciary [see Section VII(c)--Access to Justice]. In
December 2005, central Party officials said that government and
Party leaders at all levels should bear personal responsibility
for maintaining social order.\48\
Limited Public Participation Reforms
Since the 1980s, officials have introduced limited reforms
to allow citizens to vote in village elections. While these
reforms are a step forward in permitting citizen participation
at the local level, the reforms are designed to strengthen
Party governance and do not represent Party acceptance of
representative government.\49\ Since the 1990s, Chinese
authorities have pursued other reforms to increase citizen
political participation, including the use of public hearings,
greater government transparency requirements, and citizen
participation in Party elections.\50\ As one U.S. expert noted
at a Commission roundtable, Chinese leaders have introduced
these reforms to
allay local discontent, to respond to growing demands
for greater participation in politics, and to better
monitor local agents of the state. . . . [They intend
to] improve Party responsiveness both to reduce
societal discontent and to preserve the Party's ruling
position.\51\
These reforms attempt to ``gain the sort of input that
elections normally provide, but without introducing electoral
democracy.'' \52\ In an October 2005 joint opinion, Party and
State Council officials specified that they want to create a
system in which ``the Party leads, the government bears
responsibility, society assists, and the people participate.''
\53\
Since the late 1990s, the Party has experimented with
reforms that allow a limited degree of citizen participation in
the selection of local Party cadres, but the Party retains
tight control over the candidate pool and the selection
process. Party regulations adopted in 1995 and 2002 granted
officials the discretion to permit public participation in
nominations of government and Party leaders.\54\ But the
regulations warned that Party selection of nominees should not
depend solely on the total number of votes received in the
nomination process.\55\ ``Public nomination, direct election''
experiments are currently under way in 217 counties in 13
provinces.\56\ These experiments, however, grant citizens only
a small role in the nomination of potential candidates, while
allowing Party committees to strike names from the nominee
lists, and giving Party members the final authority to choose
officials.\57\ For example, in February 2006 elections for the
township Party committee in Longtoupu, Hunan province, Party
members and non-Party citizen delegates first selected
candidates from 16 nominees. The system weighted the selection
process in favor of Party members, however, by restricting the
proportion of citizen delegates to 30 percent (136) of the
number of Party members (433). Party members then participated
in a Party-only election to choose seven township committee
members from the nine remaining candidates.\58\
Since 2000, Chinese authorities have experimented with the
use of hearings to solicit public views on pending
legislation.\59\ The National People's Congress held its first
controlled public hearing in September 2005. It chose 20
people, including academics and migrant workers, from among
nearly 5,000 applicants to offer opinions on a proposal to
raise the minimum taxable income.\60\ The 2002 Environmental
Impact Assessment (EIA) Law generally requires authorities and
developers to hold public hearings or use other means to
solicit public and expert input when projects may have a
significant environmental impact.\61\ The 2003 Administrative
Licensing Law places similar requirements on government
efforts to create administrative licensing schemes.\62\
National authorities at the State Environmental Protection
Administration (SEPA) and local authorities in cities such as
Shenyang city in Liaoning province have adopted implementing
measures for holding hearings under these two laws.\63\
Environmental authorities and activists used public hearings in
2004 and 2005 to challenge some development projects.\64\
Citizen efforts to use hearings to advocate for change have
been hampered both by the opposition of some central government
officials and by rules that do not require hearings until late
in the
regulatory drafting process. SEPA sponsored two environmental
hearings in Beijing that received wide news media coverage and
allowed the public to air concerns about the projects, but the
hearings had limited impact on the projects. Some Western
experts have noted that the hearings occurred well after the
projects were under way.\65\ Government authorities responded
to public opposition to government plans to dam the Nujiang (Nu
River) by temporarily halting the project, conducting a closed
internal review, and banning further news media coverage of the
topic\66\ [see Section V(f)--The Environment--Public
Participation in Environmental Protection]. Chinese officials
have taken steps to curb SEPA's activism in the field of
environmental protection. Soon after SEPA ordered the closure
of 30 construction projects in early 2005 for failure to comply
with EIA procedures, other central government officials
overruled the decision.\67\
The central government has also announced transparency
requirements for local governments. In 2000, the Party and
State Council issued a joint opinion directing township
authorities to make information available to the public on
government administration and local finances. The joint opinion
also encouraged authorities at the county level and above to
experiment with such policies.\68\ A March 2005 opinion
expanded these requirements, announced the principle that
government information generally should be made public, placed
specific requirements on county and provincial governments, and
linked these steps to efforts to increase popular participation
in supervising government decisions.\69\ Neither opinion
requires officials to make Party information public.
Implementation of these ``open government'' requirements
varies, but some local governments, including the cities of
Shanghai and Guangzhou, have taken steps toward greater
openness.\70\
Local experiments with governance reform can result in
positive changes when they are linked to substantive and
independent citizen oversight. Officials in Wuyi county in
Zhejiang province have allowed the creation of ``village
affairs supervision committees'' with veto power over the
financial decisions of the local Party branch and the village
committee.\71\ Villagers select supervision committee members
through direct election, and the committee may not include
Party branch or village committee members. The reforms have
helped check official corruption and have provided limited
space for citizen political participation.\72\ Nonetheless,
supervision committees in Wuyi remain dependent on the support
of individual reform-minded Party cadres, and officials
threatened by these reforms have resisted such efforts.\73\
In December 2005, the government placed reform of laws
governing village and residents' committees (VCs, RCs) on the
national 2006 legislative plan.\74\ In October 2005, provincial
Ministry of Civil Affairs officials prepared draft proposals
for reform of the Organic Law on Village Committees. The
proposed changes would regularize and clarify campaign rules,
allow village representative assemblies to choose the village
election committee, and require townships to organize village
recall elections if a village assembly fails to handle a
recall.\75\ These changes do not address issues such as
township government and local Party control over VCs. Party
regulations and directives require local Party branches to
direct VC election work.\76\ One local Party organization
bureau official explained that this mandate requires the local
Party secretary to head the election committee that is charged
with supervising the elections; to organize Party members to
serve on the election committee; to encourage Party members to
run for the position of VC head; and to bar the registration of
candidates who belong to unregistered religious groups, oppose
population planning policies, or organize mass petitions.\77\
Local Party and township government control over local
elections undermines the protections granted to citizens by
national law. In July 2005, residents of Taishi village,
Guangdong province, launched a recall campaign pursuant to the
provisions of Article 16 of the Organic Law on Village
Committees that authorize such efforts.\78\ The recall sought
to remove the official serving as both local Party branch
secretary and village committee head, whom they accused of
misusing village revenue from land sales.\79\ In September
2005, township and village officials suppressed the recall
effort. They removed village financial documents from
government offices, forced popularly elected members of the
recall committee to resign, arrested and beat dozens of
residents and activists, and barred reporters from entering the
village.\80\ In March 2006, a leader of the Taishi recall
effort lost a township local people's congress election bid
against a rival candidate supported by local officials. The
defeated candidate and his supporters alleged that the rival
candidate bought votes and that the election committee and
local officials tampered with the ballots.\81\
VII(c) Access to Justice
findings
<bullet> International human rights standards require
effective remedies for official violations of citizen
rights. Despite these guarantees, Chinese citizens face
formidable obstacles in seeking remedies to government
actions that violate their legal rights and
constitutionally protected freedoms. External
government and Communist Party controls continue to
limit the independence of the Chinese judiciary. Party
officials control the selection of top judicial
personnel in all courts, including the Supreme People's
Court, China's highest judicial authority. Since 2005,
the government has restricted the efforts of private
lawyers and human rights defenders who challenge
government abuses. The All China Lawyers Association
issued a guiding opinion that restricts the ability of
lawyers to handle cases involving large groups of
people. Local Chinese authorities have imposed
additional restrictions on lawyer advocacy efforts.
<bullet> The constitutional and administrative
mechanisms in Chinese law that allow citizens to
challenge government actions do not provide effective
legal remedies, and Chinese citizens seldom use them.
Chinese citizens rarely submit proposals to the
National People's Congress for constitutional and legal
review because the review process lacks transparency
and citizens cannot compel review. Administrative court
challenges to government actions have not increased
since 1998. Provincial authorities report an overall
decline between 2003 and 2005 in applications for
administrative reconsideration, and the total numbers
of such applications in major Chinese municipalities is
a few hundred per year.
<bullet> Chinese law also permits citizens to petition
government officials directly to redress their
grievances through the xinfang (``letters and visits'')
system. Official news media report that Chinese
citizens presented 12.7 million petitions to county-
level and higher xinfang bureaus during 2005, in
contrast to the 8 million total court cases handled by
the Chinese judiciary during the same period. Local
officials are disciplined more severely for high
incidences of petitioning. Absent alternative political
or legal channels to check the power of local officials
and obtain redress, this punishment structure provides
an incentive for Chinese citizens to take their
grievances to the streets in order to force local
officials to act. But this punishment structure also
gives local authorities an interest in suppressing mass
petitions and preventing petitioners from approaching
higher authorities. A December 2005 study of the
xinfang system by a U.S. NGO found that some local
authorities have
resorted to ``rampant violence and intimidation'' to
abduct or detain petitioners in Beijing and force them
to return home.
<bullet> The Supreme People's Court 2004-2008 court
reform program imposes stronger external and internal
controls that may further weaken the independence of
courts and judges. The court reform program, however,
also sets some positive long-term goals for judicial
reform in the areas of court financing, adjudication,
retrial procedures, and juvenile justice. Party efforts
to address growing social unrest have resulted in new
government programs to strengthen institutions that
assist citizens with legal claims and disputes.
Official Chinese statistics show that the number of
government legal aid centers rose from 2,774 in 2003 to
3,081 in 2005. The total number of cases handled by
these centers rose from about 166,000 in 2003 to an
estimated 250,000 in 2005, or roughly 3 percent of all
cases handled by the Chinese courts in 2005.
Access to Justice and International Human Rights Standards
Chinese citizens face formidable obstacles in seeking
remedies to government actions that violate their legal rights
and constitutionally protected freedoms. Party and government
controls limit the independence of Chinese courts and weaken
the ability of individual judges to decide cases fairly. The
government restricts lawyer advocacy efforts, particularly in
politically sensitive cases.
Although Chinese law provides citizens with Constitutional,
judicial, and administrative mechanisms to challenge official
violations of their rights, these mechanisms do not provide
effective legal remedies.
International human rights standards require effective
remedies for official violations of citizen rights. Article 8
of the Universal Declaration of Human Rights states that
``Everyone has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental
rights granted him by the constitution or by law.'' Article 2
of the International Covenant on Civil and Political Rights
(ICCPR) requires that all parties to the ICCPR ensure that
persons whose rights or freedoms are violated ``have an
effective remedy, notwithstanding that the violation has been
committed by persons acting in an official capacity.'' \1\
The Chinese Judicial System
External government and Communist Party controls continue
to limit the independence of the Chinese judiciary. Party
officials control the selection of top judicial personnel in
all courts, including the Supreme People's Court (SPC), China's
highest judicial authority. Party interests guide judicial
reform efforts. SPC President Xiao Yang has linked official
efforts to improve the funding and professionalization of rural
Chinese courts to the core Party goals of establishing a
``harmonious society'' and ``increasing the Party's governance
capacity.'' \2\ In January 2006, the Party's Political and
Legislative Affairs Committee issued a circular directing
courts to improve enforcement efforts ``under the leadership of
local Party committees,'' apparently in response to the Party's
broader effort to address mounting social unrest.\3\
The SPC's 2004-2008 reform program imposes stronger
external controls on courts.\4\ The program directs courts to
permit officials from local procuratorates to participate in
adjudication committees, the highest authorities within Chinese
courts. Since the procuratorate represents the government in
cases pending before the courts, this directive raises issues
of judicial independence and conflict of interest.\5\ The
program also directs local officials to strengthen court
mechanisms for receiving criticism and recommendations from
local people's congresses (LPCs). The Chinese Constitution
grants the standing committees of LPCs the authority to
supervise local courts,\6\ and court procedures facilitate the
intervention of LPC delegates in individual cases.\7\
The SPC also announced stronger internal controls over
Chinese courts that may weaken the independence of individual
judges to decide cases fairly. The SPC's 2004-2008 program
requires that Chinese courts implement responsibility systems
for individual judges and judicial panels.\8\ These systems
discipline judges for a range of errors, including reversals by
a higher court for legal errors.\9\ Chen Youxi, Vice President
of the Constitutional and Human Rights Committee of the All
China Lawyers Association, noted that because such systems
``have a direct impact on personal interests such as bonuses
and benefits of those trial judges with high rates of
overturned cases,'' trial judges ``commonly resort to seeking
advance guidance from higher courts before making a decision,
and run to appeals courts to convince them not to overturn
their verdicts.'' \10\ Such systems encourage judges to violate
the principles of openness and transparency in judicial
decisionmaking.\11\ In November 2005, Chi Qiang, the president
of the Beijing No. 1 Intermediate People's Court, announced the
abolition of his court's
responsibility system, and said that his court will attempt to
move toward a disciplinary system that sanctions judges for
illegal behavior rather than ``incorrect'' outcomes.\12\ The
wider adoption of such innovative local reforms remains in
doubt, however, given the SPC's requirement that courts
implement responsibility systems.
Some local Party officials have called for a degree of
judicial independence, even as they press for strengthened
controls over courts.\13\ State-controlled news media announced
in January that Jiangxi provincial Party officials had issued a
decision pressing local Party committees to strengthen their
controls over the selection of court personnel. The decision,
however, also called on local Party officials to support
judicial independence and guard against local protectionism.
The decision warned local Party committees against organizing
court personnel to participate in campaigns to enforce
administrative decisions or to attract investment in the local
economy.\14\
The SPC's 2004-2008 court reform program sets some positive
long-term goals for judicial reform. The SPC announced that it
will consolidate and reclaim the death penalty review power
from provincial-level high courts, and will require court
hearings to resolve death penalty appeals [see Section III(b)--
Rights of Criminal Defendants and Suspects]. The program also
proposes steps to implement other positive reforms,\15\
including:
<bullet> Court financing. Local governments influence
courts through their control over judicial funding and
appointments, and use this influence to protect local
interests. The program directs court officials to
explore national financing for court operations.
<bullet> Court adjudication committee system.
Adjudication committees include court presidents and
other administrative personnel and are the highest
authorities in Chinese courts. They are often the
vehicle for outside pressure to reverse individual
decisions. The program directs committees to adopt more
open decisionmaking procedures and to guarantee that
experienced judges are able to serve on adjudication
committees.
<bullet> Retrial procedures. Chinese court decisions
often lack finality, as the result of extensive use of
retrial procedures with vague rules and few
limitations. [See Section V(b)--Rights of Criminal
Suspects and Defendants--Fairness of Criminal Trials
and Appeals for the impact that this has had on
criminal trials.] The program directs officials to
clarify the criteria, limits, jurisdiction, and
procedures for granting retrial. Officials have drafted
two proposed judicial interpretations that seek to
address some of these questions.\16\
<bullet> Advisory opinion system. Lower courts often
rely on advisory opinions from higher courts for
specific guidance on how to decide pending cases. This
system undermines judicial fairness by separating
actual court decisions from trials and by making
subsequent appeals (to the same entity that responded
to the request for review) no more than a formality.
The program directs courts to limit use of advisory
opinions to general questions of law rather than
determinations of fact.
<bullet> Use of official authentication conclusions and
expert testimony. The program directs court officials
to implement a 2005 National People's Congress decision
that forbids courts from establishing for-profit
authentication centers to provide expert testimony. The
Ministry of Justice issued relevant implementing
measures in September 2005.\17\
<bullet> Juvenile justice system. China currently has
2,400 juvenile tribunals.\18\ The program directs
courts to improve their work in handling criminal,
civil, and administrative cases affecting the rights of
juveniles. It also provides for the establishment of
experimental juvenile courts.
Access to Legal Representation
Communist Party efforts to address growing social unrest
have resulted in government programs to strengthen institutions
that assist citizens with legal claims and disputes. To help
reduce the number of citizen protests and mass petitions,
provincial and municipal Party committees have directed local
officials to improve legal aid and mediation efforts.\19\
Minister of Justice Wu Aiying said in February that:
[We must] bring into play the professional strengths
of lawyers in resolving disputes. [We must] take
further steps to organize and guide lawyers, basic
legal service workers, and legal aid personnel to
actively participate in the work of handling mass
incidents and citizen petitions involving legal issues.
[We must] actively explore methods and measures that
press parties to settle out-of-court and in non-
litigation forums, in order to better resolve disputes
and prevent them from escalating.\20\
Central government officials also are strengthening the
Ministry of Justice (MOJ) presence at the local level,
particularly in western China and at the level of township
governments. MOJ offices guide the work of local mediation
committees, run government legal aid programs that provide pro
bono legal representation to citizens who meet designated
criteria, and supervise and license Chinese lawyers.\21\ In
2005, Chinese authorities set the goal of ensuring that 91
percent of Chinese townships had a MOJ office by the end of
2006.\22\ Chinese authorities designated 7.4 billion yuan
(US$920 million) to improve housing and work conditions for
township court, justice, and public security bureaus in western
China from 2004 to 2008.\23\ The MOJ has made the strengthening
of township mediation and legal aid programs part of its effort
to implement the Party's ``new socialist countryside''
campaign.\24\
Chinese authorities have expanded the scope of government
legal aid efforts. Official Chinese statistics show that the
number of government legal aid centers rose from 2,774 in 2003
to 3,081 in 2005. The total number of cases handled by these
centers rose from about 166,000 in 2003 to an estimated 250,000
in 2005, or roughly 3 percent of all cases handled by the
Chinese courts in 2005.\25\ In July 2005, the All-China
Environment Federation and the State Environmental Protection
Administration announced the creation of a joint legal aid
program for the victims of environmental pollution.\26\ In
September 2005, the Shanghai People's Congress issued a
decision clarifying the eligibility of migrant workers for
legal aid in cases of labor disputes, occupational injuries,
and domestic violence.\27\ In May, the All-China Federation of
Trade Unions (ACFTU) announced that 669 of its legal staff
would be permitted to acquire bar licenses and provide
increased legal services to workers [see Section V(c)--
Protection of Internationally Recognized Labor Rights].
At the same time that it has promoted efforts to expand
legal assistance to citizens, the government also has
restricted the efforts of private lawyers and human rights
defenders who challenge government abuses [see Section IV--
Introduction; Section V(b) --Rights of Criminal Suspects and
Defendants--Access to Counsel and Right to Present a Defense].
The MOJ's ``2006 Report on the Policy for Development of
China's Legal Profession'' emphasized its role in ``guiding''
the legal profession and the need for all lawyers to ``serve
the harmony and stability of society.'' \28\ The All China
Lawyers Association (ACLA) issued a guiding opinion that went
into effect on March 20 and restricts the ability of lawyers to
handle cases involving representative or joint litigation by 10
or more litigants, or cases involving both litigation and non-
litigation efforts.\29\ The guiding opinion further instructs
law firms to assign only ``politically qualified'' lawyers to
conduct the initial intake of these cases, and to obtain the
approval of at least three law firm partners before taking them
on.\30\ Lawyers who handle mass cases must accept supervision
and guidance by judicial administration departments, attempt to
mitigate conflict, and propose mediation as the method for
conflict resolution.\31\ Local lawyers' associations may
sanction any lawyer or law firm that fails to follow these
guidelines and causes a ``negative impact.'' \32\
Local Chinese authorities have imposed additional
restrictions on lawyer advocacy efforts. The Henan Provincial
Justice Bureau has issued an opinion that forbids lawyers from
using the news media and engaging in various other activities
when handling ``major, sensitive, mass'' cases.\33\ The opinion
says that lawyers in Henan province cannot ``use the media to
stir things up or create a negative impact on domestic or
international public opinion.'' It prohibits lawyers and law
firms from publishing commentary to affect the outcome of a
case or the mood of the public, and warns them not to establish
contact with foreign organizations or news media in violation
of disciplinary rules. The Shenyang Municipal Justice Bureau
has also issued an opinion that requires lawyers to seek
instruction from the Justice Bureau before they handle ``major,
difficult, and sensitive'' cases.\34\
Constitutional Review
The National People's Congress (NPC) wields exclusive power
to amend the Constitution and to enact and amend national laws,
particularly through its Standing Committee (NPCSC). The NPC is
the only governmental body with the power to interpret the
Constitution and supervise its enforcement. Chinese courts do
not have the power either to apply constitutional provisions in
the absence of concrete implementing legislation or to strike
down laws or regulations that are inconsistent with the Chinese
Constitution.\35\ In December 2005, the NPCSC enacted new
procedures that require the Supreme People's Court (SPC) and
the Supreme People's Procuratorate to submit judicial
interpretations to the NPCSC within 30 days of
promulgation.\36\ At least one Chinese scholar has said that
these new procedures represent an NPC move to rein in the SPC
and to ensure that the SPC does not erode the NPC's power as
China's sole legislator and interpreter of the
Constitution.\37\ The NPC supervises both the SPC, China's
highest judicial authority, and the State Council, China's
executive authority, but the NPC remains subject to tight Party
control [see Section VII--Development of the Rule of Law and
the Institutions of Democratic Governance].
Some scholars have suggested removing the power of
constitutional review from the NPC and vesting it in a
``dedicated judicial agency,'' \38\ but the government has
ruled out establishing a specialized court to review the
constitutionality of laws and administrative regulations.\39\
Senior government and Party leaders have warned officials to
guard against the promotion of ``Western-style constitutional
reform.'' \40\ They also reject adopting a ``Western separation
of powers,'' \41\ and insist that any restraint on the central
government's power must not diminish the leadership of the
Communist Party.\42\
Under Article 90 of the Legislation Law, Chinese citizens
may propose NPCSC review of whether or not a State Council
regulation violates the Constitution or any national law.\43\
The Chinese government has taken some limited steps to
formalize the constitutional and legal review system. For
example, the NPCSC announced in 2004 the formation of a new
Legislation Review and Filing Office (LRFO) to assist its
Legislative Affairs Commission in reviewing regulations that
may conflict with the Constitution and national laws.\44\ In
December 2005, the NPCSC amended the ``Working Procedures for
the Filing and Review of Administrative Rules, Local Rules,
Autonomous Region and Special Purpose Regulations, and Special
Economic Zone Rules'' (Legislation Procedures).\45\ The
Legislation Procedures stipulate three phases for
constitutional and legal review: consultation between the NPCSC
and the formulating agency; NPCSC submission of a written
request to the formulating agency that it revise or rescind the
legislation; and, if the formulating agency does not accept the
request, consultation within the NPCSC to determine whether or
not to rescind the legislation. The amendments include a new
provision authorizing the special committees of the NPC to
review laws and regulations on their own initiative, with a
deadline of two months for formulating agencies to respond to
NPCSC special committee requests that a regulation be revised
or rescinded.
Chinese citizens rarely submit proposals to the NPCSC for
constitutional and legal review because the review process
lacks transparency and citizens cannot compel review.\46\
During the run-up to the annual plenary sessions of the NPC and
the Chinese People's Political Consultative Conference, Chinese
authorities shut down the Aegean Sea (Aiqinhai) Web site, as
well as four other sites that had complained on behalf of local
workers.\47\ The Web site operators sought relief through the
constitutional and legal review system in April 2006.\48\ As of
September 2006, the NPCSC had not yet responded to the request
for review. To address these problems, some Chinese legal
experts have called for requiring the LRFO to notify those
seeking review whether or not it will accept their proposal,
and to provide explanations to those whose proposals it
rejects.\49\ Others have suggested that the NPCSC report each
year to the full NPC, describing the previous year's
constitutional review work.\50\ Some legal experts in China
also have advocated that the NPCSC establish a dedicated
Constitutional Commission staffed by scholars, judges, and
lawyers.\51\
NPC special committees and other central government
agencies have the power to compel the NPCSC to act on their
applications,\52\ but they have an interest in maintaining the
national status quo and not creating conflicts among
themselves.\53\ Thus, they have little incentive to request
review of national laws, State Council regulations, or other
central government agencies' rules on major issues relating to
civil or human rights.\54\ Citizens may only offer proposals to
the LRFO, which stands between them and the NPCSC and lacks the
power to issue binding decisions that would resolve
disputes.\55\ In addition, unlike other laws that compel State
Council departments, courts, and local governments to act on
citizens' applications and lawsuits,\56\ the Legislation Law
merely provides that the NPCSC may react to citizens' proposals
``if necessary.'' Finally, the government is not required to
inform citizens whether or not it will act on a proposal, and
the 2005 amendments to the Legislation Procedures revised the
provision concerning government notification to a citizen that
a review is complete, making such notification voluntary.\57\
The NPCSC has enacted and amended laws and regulations that
protect citizens from government abuses in response to public
pressure\58\ and new legislative mandates,\59\ but it has never
rescinded a law or administrative regulation in direct response
to a citizen proposal.\60\ The primary purpose of the
constitutional and legal review system is to safeguard the
unity of China's legal system rather than to give citizens an
effective remedy by a competent national tribunal.\61\ The
system is based on the constitutional and legal
presumption that the NPC and its Standing Committee are
paramount,\62\ and therefore not subject to checks, balances,
or oversight.\63\ The China Law Society's Democracy and Law
Times summarized the situation as follows:
As a system, constitutional review comprises
proposal, acceptance, review, determination, and
resolution. If it lacks any one of these, then the
constitutional review system is not complete. Although
the meaning of citizens having been granted the right
to submit proposals for constitutional review is very
important, if all they have is the right of proposal,
and do not have the right of acceptance, review,
determination, and resolution, then the right of
proposal exists in name only. This also explains the
reason why so few citizens propose constitutional
review.\64\
Judicial and Administrative Review of State Action
Chinese law provides methods for citizens to seek a remedy
when they believe the government has violated their rights.
These methods allow Chinese citizens limited legal recourse
against individual officials or local governments that exceed
their authority.\65\ Under the Administrative Reconsideration
Law (ARL), Chinese citizens may submit an application to State
Council departments for administrative review of specific
government actions that violate their legal rights and
interests.\66\ Under the Administrative Procedure Law (APL),
citizens may file a lawsuit in a people's court to challenge
government actions.\67\ Under the State Compensation Law,
citizens may request compensation for illegal government acts
along with an ARL or APL action, or present them directly to
the relevant government bureau.\68\ Some local Party
disciplinary committees are also experimenting with procedural
changes that grant cadres in specific cases the ability to
mount a defense, present evidence, and receive a hearing on the
charges against them.\69\
These methods, however, do not allow Chinese citizens to
challenge administrative regulations that violate
constitutional or legal rights. Article 12 of the APL forbids
courts from accepting citizen challenges of administrative
rules and regulations that have ``general binding force.''
Article 7 of the ARL allows citizens to apply to administrative
agencies for review of the legality of decrees\70\ of State
Council departments and local people's governments at or above
the county level, and any provisions enacted by town or
township people's governments.\71\ The ARL does not, however,
allow reconsideration of State Council rules or
regulations.\72\
Citizens are making only limited use of laws that protect
their rights by granting judicial and administrative review of
government actions. For example, Hubei provincial authorities
report an overall decline between 2003 and 2005 in applications
for administrative reconsideration, from 3,468 to 3,336.\73\
Total numbers of such applications in major Chinese
municipalities is a few hundred per year.\74\ Administrative
court challenges to government actions have not increased since
1998. In 2005, first-instance administrative law cases totaled
95,707, nearly twice the 52,596 reported in 1995, but a decline
from the 101,921 recorded in 2001. This decline parallels a
similar stagnation in citizens using the judiciary generally.
In 2005, the Chinese judiciary handled 4.3 million first-
instance civil cases, down from 4.73 million reported in 2001,
and only slightly higher than the 4 million recorded in
1995.\75\
Chinese laws that grant judicial and administrative action
to citizens to protect their rights do not provide mechanisms
to compel effective judicial or government review. When the
government shut down the Aegean Sea Web site, along with four
other Web sites, in March 2006, authorities cited Article 5 of
the Provisions on the Administration of Internet News
Information Services (Provisions),\76\ which grant the State
Council Information Office (SCIO) the authority to license Web
sites that report and comment on politics, economics, fast-
breaking social events, and military, foreign, social, and
public affairs. The operators of the closed Web sites believed
that the Provisions violated their constitutional and legal
rights,\77\ but they had no way to compel judicial or other
government review of the Provisions. Government authorities
were acting under the authority of the Provisions when they
shut down the Web sites, and so the issue was whether the
Provisions violated the Constitution, a national law, or a
State Council regulation. Administrative review under the ARL
could not provide the Web site operators an effective remedy
because the Provisions are ``department rules,'' and a 2005
State Council decision (Decision) explicitly provides for the
licensing authority granted to the SCIO.\78\ Because citizens
may not use the administrative reconsideration system to
question the constitutionality or legality of State Council
regulations (such as the Decision) or State Council department
rules (such as the Provisions), the Web site operators would be
unlikely to obtain effective relief based on an application for
administrative reconsideration attacking the Provisions
directly.
The ARL provides that citizens who do not accept an
administrative reconsideration decision may file a lawsuit with
a people's court under the APL.\79\ Like the ARL, however, the
APL explicitly prohibits constitutional or legal review of
State Council departments' rules.\80\ A court could refuse to
enforce the Provisions if they conflicted with a national law
or a State Council regulation,\81\ but since the SCIO's
licensing authority is derived from the Decision, a court would
lack the authority to declare the Provisions unconstitutional
or illegal.\82\
Citizen Petitioning
Since the 1950s, xinfang (``letters and visits'') offices
have provided a channel outside court challenges for citizens
to appeal government decisions and present their
grievances.\83\ Under the new national Regulations on Letters
and Visits (RLV) issued in January 2005, citizens may ``give
information, make comments or suggestions, or lodge
complaints'' to xinfang bureaus of local governments and their
departments.\84\ Individual petitioning may be as simple as one
dissatisfied citizen visiting multiple xinfang bureaus within
government agencies. Collective or mass petitioning may involve
organized demonstrations, speeches, or marches of hundreds or
thousands of people seeking to present their grievances,
despite an official prohibition on such activities.\85\
Official news media report that Chinese citizens presented 12.7
million petitions to county-level and higher xinfang bureaus
during 2005,\86\ in contrast to the 8 million total court cases
handled by the Chinese judiciary during the same period.\87\
The total number of petitions increased each year from 1993 to
2004.\88\ Petitioning is common even within the judiciary.
Chinese courts handled four million petitions in 2005, a number
roughly equal to the total number of civil court cases for the
year.\89\
Authorities launched an implementation campaign for the RLV
in 2005 aimed at reducing the number of citizen petitions. The
government tasked the Ministry of Public Security (MPS) with
coordinating official responses to citizen petitions, required
local MPS heads to meet personally with petitioners in a May-
to-September campaign, and increased propaganda efforts
pressing local officials to resolve citizen petitions.\90\
Chinese authorities have ordered the nationwide adoption of
responsibility systems that discipline local officials who fail
to prevent mass petitions.\91\ Concerned about the rising
number of mass petitions, central Party officials have set a
goal to decrease the number during 2006.\92\ Party and
government officials have called for strengthening xinfang
institutions in conjunction with stronger efforts to maintain
social order.\93\
Chinese authorities and state-run news media report that
official measures to address citizen petitions in 2005 were a
major policy success,\94\ but official statistics provide
conflicting support for this claim. Official statistics show
total citizen petitions declined for the first time in 12
years, from 13.7 million in 2004 to 12.7 million in 2005.\95\
Although officials reported a 90 percent success rate in
resolving petitions,\96\ scholars commissioned by the
government to study the issue say that only 0.2 percent of
petitions filed receive a response.\97\ Official news media
report that government and Party xinfang bureaus at the county
level and above have handled some 917,000 petitions since the
beginning of the campaign, but this represents less than a
tenth of the total number of petitions received in 2005 by
xinfang bureaus. Since MPS rules issued in August 2005 provide
for disciplining local MPS officials who fail to prevent
collective petitions, MPS officials may be suppressing
petitioners or misreporting their numbers rather than resolving
the underlying problems.\98\
The 2005 RLV requires local governments to adopt official
xinfang responsibility systems, and some local governments have
done so.\99\ These systems punish local officials more harshly
for mass petitions that reach higher-level authorities,
depending on the numbers of petitioners involved and the level
of government that they reach.\100\ Absent alternative
political or legal channels to check the power of local
officials and obtain redress, this punishment structure
provides an incentive for Chinese citizens to take their
grievances to the streets in order to force local officials to
act.\101\ But this punishment structure also gives local
authorities an interest in suppressing mass petitions and
preventing petitioners from approaching higher authorities. A
December 2005 NGO study of these systems found that some local
authorities have resorted to ``rampant violence and
intimidation'' to abduct or detain petitioners in Beijing and
force them to return home.\102\ The report alleges that Beijing
police often ignore such abductions or detentions and sometimes
assist with abductions.\103\
The government uses harsh measures to repress petitioners
during high-profile national events. In March 2006, a senior
MPS official confirmed that MPS officials would engage in mass
roundups to ``strongly encourage'' those ``people without
proper professions, fixed places of residence, or stable
incomes who have been hanging around Beijing for a long time''
to leave the capital before the annual plenary session of the
National People's Congress (NPC).\104\ Other repressive
measures include:
<bullet> During the annual NPC plenary session in March
2006, authorities detained AIDS activist Hu Jia for 41
days without legal formalities and without notifying
his family [see Section V(b)--Rights of Criminal
Suspects and Defendants--Arbitrary Detention]. Hu had
attempted to submit petitions on behalf of AIDS victims
to central government officials during high-profile
conferences [see Section V(g)--Public Health--HIV/
AIDS].
<bullet> In December 2005, Beijing police arrested
several hundred petitioners who gathered outside the
offices of China Central Television to present their
grievances on ``Popularize Law Day.''
<bullet> In December 2005, Shanghai police arrested
over 200 petitioners who sought to present their
grievances to municipal Party officials and were
gathered outside a building in which the local Party
branch was holding a conference.
<bullet> In November 2005, police in a number of cities
arrested or detained dozens of petitioners before an
official visit by U.S. President George W. Bush.\105\
Chinese court officials are pursuing reforms to the process
of handling citizen petitions that may weaken the ability of
individual judges to decide cases according to law. The Supreme
People's Court (SPC) announced in November 2005 that it will
require Chinese courts to establish procedures to resolve
citizen petitions about judicial decisions. Trial judges will
be responsible for responding to parties who visit the court
and raise complaints about judgments, and their record for
handling such complaints will be made part of their performance
reviews.\106\ Similarities between the SPC announcement and the
RLV suggest that the central government seeks to implement a
common set of reforms for addressing citizen petitions to both
the courts and local governments.\107\ The SPC reforms may
encourage Chinese litigants to resort to post-decision
petitioning rather than appeals to reverse verdicts, increase
pressure on Chinese trial judges to alter verdicts to satisfy
persistent petitioners, and weaken the finality of
judgments.\108\
VII(d) Commercial Rule of Law and the Impact of the WTO
findings
<bullet> The Chinese government has made progress in
bringing its laws and regulations into compliance with
its World Trade
Organization (WTO) commitments. Although significant
flaws remain, the new body of commercial laws has
improved the business climate for foreign companies in
China. With new, more transparent rules, the Chinese
trade bureaucracy has reduced regulatory and licensing
delays in many sectors.
<bullet> The Chinese commercial regulatory regime
remains, however, largely opaque to both domestic and
foreign businesses. When China joined the WTO in
December 2001, the government committed to establishing
an official journal that would publish drafts of trade-
related measures for notice and comment, and to
publishing trade-related measures no later than 90 days
after they become effective. Although the government
has acted to improve transparency, some central
government agencies and many local governments are not
consistent in publishing trade-related measures in the
official journal.
<bullet> The Chinese government tolerates intellectual
property rights (IPR) infringement rates that are among
the highest in the world. The Chinese government has
not introduced criminal penalties sufficient to deter
IPR infringement, and steps taken by Chinese government
agencies to improve the protection of foreign
intellectual property have not produced any
significant decrease in infringement activity. The
Chinese government's failure to provide effective
criminal enforcement of IPR has led foreign companies
to turn to civil litigation to obtain monetary damages
or injunctive relief. Civil litigants continue to find,
however, that most judges lack the necessary training
and experience to handle IPR cases, and damage awards
are too low to be an effective deterrent.
<bullet> Since acceding to the WTO, the Chinese
government has used technical, regulatory, and
industrial policies, some of which appear to conflict
with its WTO commitments, to discriminate against
foreign producers and investors and limit their access
to the domestic market. U.S. rights holders and
industry groups have complained that the government's
censorship regime serves as a barrier to entry and
encourages IPR violations. In 2005, the American
Chamber of Commerce in China wrote that censorship
clearance procedures severely restrict the ability to
distribute CD, VCD, and DVD products in China and
provide an ``unfair and unnecessary advantage to pirate
producers who bring their products to market long
before legitimate copies are available for sale.''
Introduction
On December 11, 2001, China formally became a member of the
World Trade Organization (WTO). In doing so, the Chinese
government agreed to abide by the rules governing trade
relations among most of the nations in the world, and voiced
its willingness to make fundamental changes to its trade regime
to conform with the WTO's rules-based system, affecting China's
system of governance at all levels. The WTO agreements and
China's accession documents contain many core elements of the
rule of law. When China joined the WTO, the Chinese government
committed to ensuring that all trade-related measures be
administered in a non-discriminatory manner. The WTO also
imposes transparency on its members by requiring that all laws,
regulations, judicial decisions, and administrative rulings
relating to trade be published promptly.
The government's implementation of its WTO non-
discrimination and transparency obligations is a useful measure
of the overall development of the rule of law in China,
including the extent to which the government treats individuals
equally under the law and makes laws and administrative
regulations accessible to the public. The Chinese government
has made progress in bringing its laws and regulations into
compliance with its WTO commitments. The new body of commercial
laws has improved the business climate for foreign companies in
China. With new, more transparent rules, the Chinese trade
bureaucracy has reduced regulatory and licensing delays in many
sectors. Nevertheless, serious problems remain in such areas as
regulatory transparency, the enforcement of intellectual
property rights (IPR), and discrimination against goods and
services of foreign origin. Most of China's WTO commitments
were to have been phased in by December 2004, and the past year
therefore provides an indication of what Chinese citizens and
foreign investors can expect of China as a WTO member with its
full range of WTO commitments in place.
The U.S. and Chinese governments established the U.S.-China
Joint Commission on Commerce and Trade (JCCT) in 1983 as a
government-to-government mechanism to develop and facilitate
the bilateral commercial relationship. The two governments held
the 17th plenary session of the JCCT on April 11, 2006, in
Washington, D.C. The Chinese delegation made a number of
commitments on trade issues of priority concern to the United
States, such as fighting piracy of U.S. intellectual property;
increasing transparency in China's domestic regulatory process;
ending duplicative testing of U.S. medical products entering
the Chinese market; resuming sales of U.S. beef; and making
progress toward accession to the WTO Agreement on Government
Procurement. The U.S. Department of Commerce is the lead U.S.
government agency in the JCCT process, and engages the Chinese
government to ensure compliance with commitments made at JCCT
meetings.
Transparency
The Chinese commercial regulatory regime continues to
exhibit what the United States Trade Representative (USTR)
describes as ``systemic opacity.'' \1\ China's Protocol of
Accession to the WTO requires that the Chinese government
translate all trade-related laws, regulations or other measures
into one or more of the WTO's official languages.\2\ In
addition, to the maximum extent possible, it must make these
laws, regulations and other measures available before they are
implemented or enforced, but in no case later than 90 days
after the date of implementation or enforcement.\3\ Moreover,
the government committed to designating an official journal to
regularly publish trade-related laws, regulations, and other
measures, and to provide additional relevant information, such
as the effective date for a particular measure and the identity
of the governmental and non-governmental authorities
responsible for authorizing, approving, or regulating services
activities.\4\ Before implementing or enforcing trade-related
laws, regulations, and other measures, the Chinese government
has committed to publishing them in an official journal and to
providing a reasonable period for public comment to the
appropriate government authorities, except in extraordinary
circumstances.\5\
The government, in particular the Ministry of Commerce
(MOFCOM), has taken steps toward improving transparency, but
still does not consistently publish trade-related measures\6\
and does not always translate those measures that it
publishes.\7\ Some government agencies do not circulate drafts
of trade-related measures to outside groups or individuals,
domestic or foreign, or do so only on the condition that the
outside party promises not to share the draft more widely.\8\
In March 2006, the State Council issued a circular
providing that the ``Chinese Foreign Economic Trade Gazette''
would be the government's official journal for the publication
and registration of ``all laws, regulations, or other measures
pertaining to or affecting trade in goods, services, trade-
related aspects of intellectual property rights (TRIPs), or the
control of foreign exchange.'' \9\ The
circular reiterated that all local governments and government
agencies are required to forward to MOFCOM any trade-related
regulations that they promulgate or make available in draft
form for public comment. MOFCOM is then responsible for
publishing the regulations. MOFCOM began making the Gazette
available on its Web site in 2003.\10\ A Commission review of
the Gazette indicates, however, that few trade-related measures
below the central government level have been published there.
Poor transparency has made it difficult for the U.S.
government to obtain accurate information on the Chinese
government's subsidy programs.\11\ The WTO Agreement on
Subsidies and Countervailing Measures requires each WTO member
to submit an annual notification of all the subsidies that it
maintains, and provides that members shall respond to requests
for information regarding practices that appear to constitute
subsidies ``as quickly as possible and in a comprehensive
manner.'' \12\ To date, however, the Chinese government has not
met its annual notification commitment. The United States
submitted a request to the Chinese government in October 2004
regarding a number of subsidy programs.\13\ The Chinese
government did not respond until April 2006,\14\ and that
response was limited to subsidies that existed between 2001 and
2004.
Chinese officials credit China's accession to the WTO as
having increased the government's attention to transparency.
Zhou Hanhua, the head of the State Council-designated drafting
team on open government measures [see Section VII(b)--
Institutions of Democratic Governance and Legislative Reform],
said WTO accession has raised awareness about citizen rights
and the importance of openness and transparency.\15\ Some local
governments also have cited the WTO transparency principle as
support for their own reforms. For example, officials in
Changzhou city, Jiangsu province, announced in November 2005
that the city government would no longer enforce regulatory
documents that have not been published first in the local
newspaper, the government's gazette, or other publications
specified by the city government. In the circular announcing
this requirement, the Changzhou government said that,
``[A]ccording to the WTO `principle of openness and
transparency,' there is generally one month between the time
that regulatory documents and other policies and proceedings
are promulgated and the time that they are implemented.'' \16\
The new procedures provided that the public could ``inspect and
review'' any such draft measure before the government makes it
effective if it has been published in one of the three approved
media.
Intellectual Property Rights Protection and Enforcement
Intellectual property counterfeiting and piracy in China
are rampant, according to Chinese\17\ and U.S. government
sources.\18\ Industry reports indicate that infringement levels
in China range from 85 to 95 percent for all copyrighted
works.\19\ In 2005, the value of copyrighted works that were
pirated exceeded US$2.3 billion.\20\ China is now the second-
largest legal music market in Asia, with sales worth US$212
million in 2004. Sales of pirated discs were, however, worth
approximately US$400 million.\21\ Ninety percent of the
software used in China is pirated,\22\ and business software
losses were estimated at US$1.27 billion in 2005.\23\ A study
commissioned by the Motion Picture Association of America found
that 93 percent of the Chinese film market is lost to
piracy,\24\ costing U.S. rights holders nearly US$300 million
per year, according to industry estimates.\25\ According to
U.S. customs statistics, 69 percent of all counterfeit products
seized at the U.S. border in 2005 were of Chinese origin,\26\
and the volume of seized Chinese goods continues to rise.\27\
U.S. industry reports of piracy levels in China ranged from an
assessment that ``no significant reduction in IPR infringement
levels'' had taken place in 2005,\28\ to a more positive
assessment that there had been sharp improvement in some
regions.\29\
Some Chinese officials have characterized their
government's IPR enforcement efforts as effective, or
downplayed the seriousness of IPR issues.\30\ In November 2005,
the head of China's WTO delegation responded to simultaneous
requests under Article 63 of the WTO Agreement on Trade Related
Aspects of Intellectual Property Rights from the United States,
Japan, and Switzerland for information on the Chinese
government's IPR enforcement, by saying that the blame laid on
China for being one of the top producers and exporters of
counterfeit and infringing automotive parts was groundless.\31\
One report in the state-run Chinese news media cited the United
States and other developed countries as being the source of
intellectual property piracy.\32\ A Ministry of Commerce
(MOFCOM) analyst said that the U.S. government exaggerates IPR
issues because it fears China's surging exports.\33\ According
to one senior Chinese customs official, IPR infringement in
China is ``not that serious'' when compared with international
standards and when viewed in proportion to China's total
exports to the United States.\34\
Chinese officials cite enforcement statistics and
legislative activities to demonstrate a strong respect for
IPR.\35\ In the weeks before the April 2006 meeting of the
bilateral Joint Commission on Commerce and Trade (JCCT),
Chinese officials made several announcements regarding
administrative IPR enforcement measures that the government had
recently undertaken.\36\ The State Council and its agencies
continue to issue new regulations regarding intellectual
property rights.\37\ In March 2006, the MOFCOM National IPR
Protection Working Group Office issued an ``Action Plan on IPR
Protection 2006'' outlining how 11 government ministries and
agencies will coordinate in nine areas to work on the
protection of trademarks, copyrights, and patents, and
formulate and revise IPR-related laws and regulations.\38\ In
July 2006, a new regulation on Internet copyright protection
went into effect.\39\ Chinese officials said this regulation
would form the basis of China's ratification of the World
Intellectual Property Organization Internet treaties in the
second half of 2006.\40\ In November 2005, the Supreme People's
Court published four draft interpretations for comment
regarding unfair competition, plant patents, civil IPR
disputes, and civil disputes regarding music television
broadcasting rights.\41\
Ongoing enforcement and legislative activity, however, has
not translated into decreased IPR infringement. At the
conclusion of a review conducted under Special 301 provisions
of U.S. trade law in April 2005, the United States elevated
China to the ``Priority Watch'' list. In its report, the USTR
noted that ``[i]nadequate IPR enforcement is one of China's
greatest shortcomings as a trading partner,'' and that ``China
suffers from chronic over reliance on toothless administrative
enforcement and underutilization of criminal remedies.'' \42\
At the 2005 JCCT Plenary, the Chinese government committed
to completing its legalization program to ensure that all
central, provincial, and local governments offices would use
only licensed software, and would extend that program to
enterprises in 2006.\43\ In March 2006, the National Copyright
Administration, Ministry of Information Industry, Ministry of
Finance, and State Council jointly reiterated requirements set
forth in previous regulations that
ordered Chinese government agencies to use legitimate copies of
software. According to Chinese officials, all government
departments had complied with this mandate.\44\ The software
industry
reports, however, that the level of new government purchases
does not support this claim.\45\
Current provisions in the Criminal Law are inadequate to
deter infringement.\46\ While China has said that the absolute
number of criminal IPR infringement cases rose from 2004 to
2005,\47\ the number remains small in comparison to the volume
and value of IPR violations that occur in China each year. The
Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPs)
requires WTO members to maintain criminal IPR infringement
penalties, including monetary fines ``sufficient to provide a
deterrent.'' \48\ China's state-run media, however, cites
``experts'' to support the position that, because intellectual
property is a private right, the government should prosecute
IPR violations only in those cases that ``negatively influence
the public interest,'' and that if the government were to focus
on assisting foreign companies in protecting their IPR, ``it
would be an infringement on the rights of Chinese individuals
and companies.'' \49\
High thresholds for criminal liability make it difficult
for the Chinese government to prosecute illegal commercial
operations.\50\ Although some high-profile prosecutions have
been undertaken,\51\ because the government calculates criminal
thresholds using the retail value of the illegal goods rather
than the value of genuine products, the current procedure
creates a ``safe harbor'' for commercial infringers. In
addition, because a government agency that successfully
prosecutes an IPR case is eligible to receive a portion of any
fines assessed, current rules create a disincentive to transfer
cases to law enforcement officials.\52\ The Supreme People's
Court and Supreme People's Procuratorate issued an
interpretation in 2004 on transferring IPR infringement cases
from administrative to criminal enforcement,\53\ but the U.S.
government subsequently determined that the revisions did not
go far enough,\54\ and less than 25 percent of respondents in
one survey of U.S. businesses believed the interpretation would
aid IPR protection to a moderate or great extent.\55\ In
response to expressions of concern from the United States
regarding the availability of remedies to address commercial-
scale counterfeiting and piracy, as well as reliance on non-
deterrent administrative penalties rather than transferring
cases for criminal prosecution,\56\ China's WTO delegation said
that the National People's Congress had no plans to amend
China's Criminal Law or other intellectual property laws.\57\
A lack of interagency cooperation is at least partly to
blame for the government's continued failure to impose criminal
sanctions on IPR infringers, according to Zhu Xiaoqing, Deputy
Procurator General of the Supreme People's Procuratorate.\58\
The government has begun, however, to address this problem. In
January and March 2006, the Ministry of Public Security and
several other government agencies enacted rules intended to
improve interagency coordination in handling criminal trademark
and copyright infringement cases.\59\
The Chinese government's failure to provide effective
administrative and criminal enforcement of IPR has led foreign
companies to turn to civil litigation to obtain monetary
damages or injunctive relief.\60\ Civil litigants continue to
find, however, that most judges lack the necessary training and
experience to handle IPR cases. In addition, the evidentiary
and other rules governing civil lawsuits are generally vague or
ineffective, and damage awards are too low to be an effective
deterrent.\61\ Despite these challenges, some high-profile
lawsuits have been filed in which foreign IPR holders have
succeeded in suing infringers as well as the Chinese
government. For example, in December 2005, the Shanghai No. 2
Intermediate People's Court ordered a Chinese coffee retailer
to pay Starbucks Corporation 500,000 yuan (US$62,000), saying
the Chinese retailer had engaged in unfair competition by using
Starbucks's Chinese name and imitating the design of its
cafes.\62\ In June 2006, the Beijing No. 1 Intermediate
People's Court ordered the State Intellectual Property Office
to withdraw its decision to invalidate Pfizer, Inc.'s patent on
the active ingredient in the drug Viagra.\63\
The central government has begun to make policy statements
emphasizing the importance of IPR protection, specifically
about how this protection will benefit domestic Chinese IPR
holders. At its October 2005 plenum, the Communist Party
included ``innovation'' in the 11th Five-Year Plan (2006-2010),
and since then Chinese officials\64\ and the state-run
media\65\ have called for increasing IPR protection to further
the innovation of Chinese companies and increase China's
international trade. In 2004, China overtook the United States
to become the world's largest exporter of information and
communication technology goods.\66\ Although the majority of
these goods are made by foreign-invested enterprises,\67\ some
high-technology Chinese manufacturers, such as Huawei and
Lenovo, are garnering global name recognition and market share.
In 2005, the first Chinese company with independently developed
intellectual property was listed on the NASDAQ.\68\
The Chinese government possesses the resources necessary to
enforce IPR, but appears to lack the resolve to do so with
respect to foreign rights holders. The government's position is
that its failure to enforce IPR is a result of China's current
stage of economic development.\69\ According to Chinese and
U.S. experts, however, the problem is that local police
generally resist efforts to shut down commercial infringers
because large-scale pirating efforts support local economies
and have the financial support of key local officials.\70\ In
2002, the State Council enacted regulations specifically
addressing protection of the 2008 Beijing Olympic Games'
trademark symbol from counterfeiting.\71\ Western news media
reports indicate that vendors who otherwise sell counterfeit
goods are avoiding the new Olympic symbol out of fear of
government reprisals.\72\
Financial Services
In 2004, the United States recorded a US$145 million
financial services surplus with China, according to the U.S.
International Trade Commission.\73\ Exports of U.S. banking and
securities services to China were down, however, from 2003.\74\
Although the
Chinese government has acknowledged the value that foreign
investment and exchanges can bring to its financial services
sector,\75\ it continues to impose strict limits and high
barriers to entry on foreign investment in its banking,
insurance, and securities sectors.
Banking
The Chinese government has committed to eliminating all
non-prudential measures that restrict ownership, operation, and
juridical form of foreign financial institutions, including
measures on
internal branching and licenses, before 2007.\76\ The
government currently imposes tighter limitations and higher
barriers to entry on foreign banks than on Chinese banks.
In its WTO accession agreement, the government also set
different restrictions and schedules on foreign banks based on
whether they conduct business in domestic or foreign currency.
With respect to business in domestic currency, the government
has met its WTO commitment regarding lifting geographic
restrictions. The Chinese WTO accession agreement provides
that, immediately upon joining the WTO, the government would
allow foreign banks to conduct domestic currency business with
foreign-invested enterprises and foreign individuals, subject
to certain geographic restrictions. Within two years after
accession, foreign banks were also to be able to conduct
domestic currency business with Chinese enterprises, subject to
certain geographic restrictions, which were to be lifted
gradually over the following three years.\77\ The Chinese
government met these commitments, and opened several cities
ahead of schedule.\78\ In addition, in December 2005, the China
Banking Regulatory Commission (CBRC) announced that it was
lowering the minimum operating capital requirement to conduct
domestic currency businesses from 500 million yuan to 400
million yuan for a foreign bank branch, and from 300 million
yuan to 200 million yuan for a wholly foreign-owned or a joint
venture bank.\79\
With respect to foreign currency business, the Chinese
government agreed as part of its WTO accession agreement that,
immediately upon joining the WTO, it would allow foreign banks
to
conduct foreign currency business without any geographic or
client restrictions. According to the U.S. Trade
Representative, although the Chinese government has permitted
licensed foreign banks to freely engage in foreign currency
business with any customer, only a limited number of banks are
allowed to enter into forward foreign exchange contracts.\80\
In addition, according to one industry group, measures issued
in May 2004 limit the foreign currency financing of foreign
banks in China and, although identical restrictions are
applicable to domestic banks, their effects on foreign banks
are disproportionately negative.\81\
Market entry requirements for foreign banks are higher than
those for domestic banks. For example, domestic banks need only
100 million yuan in registered capital to establish an urban
commercial bank.\82\ Foreign banks seeking to establish a
market presence through a wholly foreign-owned or joint venture
bank must have at least 300 million yuan in registered
capital.\83\ In addition, Chinese regulations, consistent with
China's WTO services schedule, provide that these banks must
have total assets of at least US$10 billion.\84\ Finally, a
wholly foreign-owned bank must have had a representative office
in China for at least two years.\85\ Even if a foreign bank
meets these requirements, it is restricted to conducting
foreign currency business with a limited category of clients,
unless it meets higher registered capital requirements.\86\
The prudential thresholds to establish a branch are much
higher for wholly foreign-funded banks or joint venture banks
than for domestic commercial banks.\87\ A wholly foreign-funded
bank or joint venture applying to establish a branch must have
three years of business operation experience in China, and have
been profitable for two consecutive years before applying.\88\
In addition, Chinese law, consistent with its WTO services
schedule, provides that a foreign bank applying to establish a
branch in China must have at least US$20 billion in total
assets.\89\ In its accession agreement, the Chinese government
agreed that qualified foreign financial institutions could
establish joint venture banks immediately after accession. The
government currently caps total foreign investment in any
single Chinese bank at 25 percent, however, with no single
foreign investor allowed to hold more than 20 percent.\90\
In December 2005, it was reported that a group of investors
led by Citigroup had successfully bid for the right to
negotiate to purchase an 85 percent stake in the Guangdong
Development Bank, with Citigroup taking a 40 percent stake.\91\
This led to speculation and conflicting reports that Chinese
authorities might be considering raising limits on foreign
investment in Chinese banks.\92\ In April 2006, however,
China's state-run media reported that, ``It is certain that the
banking regulatory agency will not let the ceiling be broken in
this case.'' \93\ The same month, the CBRC sent a letter to the
Guangdong provincial government saying: ``The case of Guangdong
Development Bank has been looked into many times by the CBRC
and other related administrations, and it is hard to break the
present restrictions on foreign strategic investor issues.''
\94\ In July, Chinese-language news media in Hong Kong reported
that Citigroup would lower its offer to below 20 percent.\95\
Insurance
According to the USTR's 2005 report on China's WTO
compliance, opaque regulatory processes and overly burdensome
licensing and operating requirements continue to hinder U.S.
insurance companies' access to China's insurance market.\96\ In
its accession agreement, the Chinese government agreed that it
would phase out geographic restrictions on all types of
insurance operations by 2004.\97\ The China Insurance
Regulatory Commission (CIRC) approved life insurance operations
for U.S. insurers in Beijing municipality, Suzhou city, and
Tianjin municipality two years ahead of schedule, in Chongqing
municipality one year ahead of schedule,\98\ and removed all
geographic restrictions in 2004.\99\
Foreign insurance companies may enter the Chinese market as
wholly foreign-owned subsidiaries selling insurance policies
other than life insurance, but foreign investment in domestic
life insurance providers is capped at 51 percent,\100\ and the
Chinese government does not plan to lift this restriction.\101\
To obtain a license, foreign insurance companies must have at
least 30 years of experience in the insurance business, have
had a representative office in China for no less than two
years, and have no less than US$5 billion in total assets.\102\
According to the USTR, every U.S. insurer that has applied
to enter the China market has received a license.\103\ At the
end of 2005, the CIRC had approved 40 overseas insurers, which
operated 99 offices and held a combined market share of almost
7 percent.\104\ In May 2006, the CIRC authorized subsidiaries
of American International Group, Inc. to expand their
businesses in Guangdong and Jiangsu provinces and to issue
group contracts throughout China covering life insurance,
personal accident and health insurance, and other
products.\105\
U.S. companies have complained, however, that while
domestic insurers can obtain multiple branch licenses at once,
the government requires foreign companies to apply for them one
at a time.\106\ According to a report from the U.S. Embassy in
Beijing, while the CIRC claims it does not have any
restrictions on opening multiple branch offices, it has denied
several U.S. insurance companies' applications to open multiple
branch offices, and instead granted approval to open only one
branch office.\107\
Securities
The Chinese government currently limits foreign
participation to minority stakes in securities joint ventures
(49 percent for fund management and 33 percent for securities
trading).\108\ Joint ventures are permitted to underwrite and
trade B-shares and H-shares, as well as government and
corporate debt.\109\ The Chinese government has allowed foreign
institutions to trade in A-shares since December 2002, but only
those that have met strict criteria, and then only to a limited
extent.\110\ ``A-shares'' refers to shares of companies
incorporated in mainland China that are traded in Chinese stock
markets and are denominated in local currency. ``B-shares''
refers to shares of companies incorporated in China that are
traded in Chinese stock markets and are denominated in
foreign currencies. ``H-shares'' refers to shares of companies
incorporated in China that are listed on the Hong Kong Stock
Exchange and foreign stock exchanges.
In its accession agreement, the government agreed that
immediately upon WTO accession it would allow foreign
securities institutions to engage directly (without a Chinese
intermediary) in
B-share business. In addition, representative offices in China
of foreign securities institutions could become special members
of all Chinese stock exchanges. Finally, foreign service
providers were permitted to establish joint ventures with
foreign investment up to 33 percent to conduct domestic
securities investment fund management business, increasing to
49 percent in 2004. Also by 2004, foreign securities
institutions were to be permitted to establish joint ventures
with up to one-third foreign ownership. These institutions were
to be allowed to engage (without a Chinese intermediary) in
underwriting A-shares, underwriting and trading of B- and H-
shares, government and corporate debts, and launching
funds.\111\
The U.S. Securities and Exchange Commission (SEC) and the
China Securities Regulatory Commission (CSRC) announced they
had established a framework for a dialogue between the two
agencies.\112\ The objectives of the dialogue included
improving cooperation and the exchange of information in cross-
border securities
enforcement matters, and expanding upon the existing program of
training and technical assistance that the SEC provides to the
CSRC.
China's Financial Services Environment
Money laundering, embezzlement, bribery, and financial
fraud are major problems in China. The International Monetary
Fund has estimated that money laundering in China may total as
much as US$24 billion annually, while the Asian Development
Bank estimates that more than 2 percent of China's gross
domestic product is laundered in mainland China each year.
Transparency International, an anti-corruption NGO based in
Germany, ranked China 78 out of 158 in its 2005 Corruption
Perceptions Index,\113\ and reports in Chinese state-run news
media indicate that government corruption in China is
widespread.\114\
The Chinese government is taking steps to address these
issues. In January 2005, China became an observer to the
Financial Action Task Force.\115\ In October 2005, the National
People's Congress ratified the UN Anti-Corruption
Convention.\116\ In April 2006, the People's Bank of China
issued a series of draft regulations for public comment aimed
at ``beefing up efforts to rein in money laundering across its
banking, securities, and insurance sectors.'' \117\ In
addition, in February 2006, the China Banking Regulatory
Commission issued rules requiring newly established joint stock
commercial banks, which have equity owners and are typically
smaller institutions, to have at least one foreign
shareholder.\118\
Information and Entertainment
The Chinese government made limited commitments in its WTO
accession agreements regarding foreign participation in the
domestic information and entertainment sectors.\119\ The
government agreed to permit foreign investors to enter the
retail market for books, newspapers, and magazines within one
year after accession, and to permit them to import and engage
in wholesale distribution of these products within three years
of accession. The government also committed to implementing a
system in which the relevant regulatory authority for the
provision and transfer of financial information would be
separate from, and not accountable to, any service suppliers
that it regulated.\120\
Although the government initially allowed foreign
enterprises to obtain the right to distribute books,
newspapers, and magazines,\121\ it has recently enacted
regulations that appear to restrict this right.\122\ In January
2005, the State Council issued a revised Sectoral Guidelines
Catalogue for Foreign Investment that, like the version issued
in March 2002, placed the importation of books, magazines, and
newspapers in the ``prohibited'' category.\123\ The Chinese
government maintains that it may impose this restriction based
on the general exception for the protection of the public
morals in Article XX of the General Agreement on Tariffs and
Trade 1994.\124\
The government has not established an independent regulator
for financial information service providers, despite its WTO
commitment to do so. In 2004, the State Council issued a
decision designating the Xinhua News Agency, a government
agency directly under the control ofthe State Council, as the
regulator of foreign financial information service providers in
China.\125\ Foreign companies have complained that Xinhua has
been using its regulatory authority to increase control over
the distribution of content, and has been expanding the
definition of a wire service so as to establish a monopoly on
the dissemination of sports and financial news.\126\ In
September 2006, Xinhua issued new measures prohibiting
international financial information companies from providing
news and information directly to Chinese customers.\127\
Instead, under the new measures, foreign media outlets such as
Reuters and Bloomberg may only sell their products through an
agency appointed by Xinhua.\128\
U.S. rights holders and industry groups have complained
that the government's censorship regime serves as a barrier to
entry and encourages IPR violations. In 2005, the American
Chamber of Commerce in China wrote that censorship clearance
procedures severely restricted the ability to distribute CD,
VCD, and DVD products in China and provide an ``unfair and
unnecessary advantage to pirate producers who bring their
products to market long before legitimate copies are available
for sale.'' \129\ In its 2006 Special 301 Report, the USTR
cited delays created by the Chinese censorship process as a
market access restriction. This restriction adversely affects
U.S. IPR holders by artificially limiting the availability of
foreign content and thereby leading consumers to resort to
pirated goods. In addition, U.S. officials noted that rights
holders have complained that the government's censorship
standards and procedures for video and television broadcasting
products are unclear. The U.S. delegation to the WTO's TRIPs
Council asked Chinese officials to explain their government's
standards and procedures, how WTO members can obtain copies of
them, and the inquiry process when a delay in approval occurs.
U.S. delegates made similar inquiries about how Chinese
authorities screen and censor entertainment software.\130\ The
Chinese government told the U.S. delegation to ``convey these
TRIPs non-relevant concerns to the competent committees or
councils in the WTO, for example the Committee on Market
Access.'' \131\
Chinese government censorship also makes it difficult for
foreign Internet and media companies to operate in China. In
February 2006, in testimony before the Subcommittee on Asia and
the Pacific and the Subcommittee on Africa, Global Human
Rights, and International Operations of the Committee on
International Relations of the U.S. House of Representatives, a
Google representative said that Chinese government censorship
was one of the factors that forced the company to launch a new,
self-censoring service.\132\ Microsoft has said that Chinese
government regulations allow authorities to restrict content on
``the kinds of Internet-based services provided by Microsoft's
MSN division.'' \133\ Yahoo! no longer owns the Yahoo! China
business.\134\ In September 2005, the chief executive of Time
Warner, Inc., said that his company had withdrawn from a US$50
million Internet venture in January 2004 because the Chinese
government insisted that it had the right to monitor all
traffic on the service.\135\ [See Section V(b)--Special Focus
for 2006: Freedom of Expression.]
The government's restrictions on foreign participation in
China's media industry reflect growing Party concern that its
monopoly is weakening over what Chinese citizens view, read,
and listen to. The government has effectively banned all
foreign news media from distributing their products in
China.\136\ When the State Administration of Radio, Film, and
Television increased restrictions on
foreign participation in China's domestic television and film
production in March 2005, it issued a circular saying that
regulators must ``control the contents of all products of joint
ventures in a practical manner, understand the political
inclinations and background of foreign joint venture parties,
and in this way prevent harmful foreign ideology and culture
from entering the domain of television program production
through joint ventures.'' \137\ In August 2005, Chinese
government regulators blocked News Corp.'s plan to operate a
television channel in China.\138\ In June 2006, when News Corp.
announced it would sell part of its stake in Phoenix Satellite
Television, a channel that the Chinese government permitted to
have limited broadcast rights in China, Western news media
cited analysts as saying that the deal ``underscored Beijing's
apparent attempt to limit foreign firms' operations in the
sensitive media industry and News Corp.'s efforts to circumvent
that.'' \139\ The action coincided with the government's
promulgation of several regulations that limit foreign access
to China's media industry.\140\
Government Procurement
When China acceded to the WTO, the government made several
commitments related to non-discrimination in government
procurement. These commitments include providing all foreign
suppliers an equal opportunity to participate in procurements
that are opened to any foreign suppliers, conducting
procurement in a transparent manner, and ensuring procurements
would be subject only to regulations of general application and
procedures that had been published and made available to the
public.\141\ In addition, the Chinese government committed to
beginning negotiations for membership in the Government
Procurement Agreement (GPA) ``as soon as possible.'' \142\
China became an observer to the WTO Committee on Government
Procurement in February 2002, but has yet to join the GPA. At
the April 2006 Joint Commission on Commerce and Trade (JCCT),
Chinese officials committed to starting formal negotiations to
join the GPA, and to submitting a list of government entities
to be subject to GPA coverage no later than December 2007.\143\
The government has acknowledged the potential benefits to the
domestic commercial environment that joining the GPA
represents.\144\ Nevertheless, at least one Chinese expert has
said that China's government procurement market may remain
closed to foreign companies for another four years.\145\
Little government procurement in China is currently open to
competitive bidding, and decentralized and individual agency
procurement expenditures are growing much more rapidly than
centralized government procurement expenditures.\146\ According
to the state-run media, the current government procurement
system suffers from several problems, including officials
making procurements without prior authorization and government
agencies charged with oversight of procurement not imposing
sanctions for violations of existing regulations.\147\ These
practices in turn hinder the government's ability to make
appropriate budget forecasts for procurement.\148\ Corruption
also continues to be a problem. In April 2006, the Ministry of
Finance launched a four-stage program, scheduled to be
completed by the end of 2006, to address bribery in government
procurement.\149\ In April 2006, the Ministry of Finance also
established a task force on commercial bribery and launched a
hotline for reporting bribery in government procurement.\150\
Agriculture
Agricultural trade with China is ``among the least
transparent and predictable of the world's major markets,''
according to Deputy U.S. Trade Representative Karan K.
Bhatia.\151\ The government's inspection and quarantine system
continues to implement discriminatory sanitary and
phytosanitary (SPS) measures with questionable scientific
bases. The WTO, the United States, and other WTO members have
expressed concerns over how the Chinese government handles
restrictions on foreign agricultural imports. According to the
WTO, the Chinese government's SPS regime and inspection
procedures for imports are complex and unclear.\152\ The
Chinese government maintained bans on Florida citrus and U.S.
cherries entering the Chinese market through late 2004, despite
the lack of a scientific basis for the decisions.\153\ The
General Administration of Quality Supervision, Inspection and
Quarantine (AQSIQ) has also set a limit for selenium in U.S.
wheat that is lower than the international standard. The
requirement, if enforced, could result in a significant
decrease in exports of U.S. wheat to China.\154\ WTO members
have also raised concerns that the Chinese government is
apparently using SPS measures to ban imports of affected
products from countries rather than just the affected regions
within countries.\155\ The Chinese government has said however,
that its SPS standards are fully compliant with international
standards and were based on risk assessment.\156\
According to the USTR, ``capricious practices by Chinese
customs and quarantine officials can delay or halt shipments of
agricultural products into China.'' \157\ In August 2005, the
United States expressed concern to the WTO Committee on Import
Licensing about requirements that importers must obtain an
import inspection
permit\158\ and quarantine inspection permit\159\ prior to
signing an import contract.\160\ These regulations allow port
quarantine authorities to return or destroy any cargoes without
a prior import inspection permit. In addition, according to the
USTR, AQSIQ uses its discretion to slow down and suspend
issuance of quarantine inspection permits, and uses unofficial
quantity requirements to reject shipments that are too large,
and to limit imports during peak harvest periods.\161\
Furthermore, exporters are forced to ship commodities to
Chinese ports without quarantine inspection permits because of
delays in the issuance of the permits and the limited time
purchasers have under the permits to purchase, transport, and
discharge cargoes.\162\ The inefficiencies lead to demurrage
bills for Chinese purchasers.
The Chinese government employs food safety standards for
imported commodities in a manner that lacks transparency,\163\
and in some cases appears intended as a way to limit imports.
With respect to genetically modified agricultural products,
international practice is that, once a trait is approved for a
product it need not be approved for use in other products,
whether singly or combined with other approved traits.\164\ The
Chinese government, however, not only requires that a trait be
reviewed each time it is used in a new product, but also
requires combinations of approved traits to be separately
approved.\165\
The end result of the Chinese government's implementation
of its SPS, import inspection permit, quarantine inspection
permit, and food safety systems has been, according to the U.S.
government and the American Chamber of Commerce in China, a
source of both significant commercial uncertainty for U.S.
exporters as well as higher prices for Chinese importers and
consumers.\166\ The U.S. government has asked the Chinese
government to explain why
import inspection permits do not constitute import licenses,
but instead fall under the umbrella of SPS measures, as the
Chinese government has claimed.\167\
While the soybean industry has not experienced significant
problems in these areas in the past two years,\168\ U.S. beef
exporters continue to be hard hit. At the April 2006 Joint
Commission on Commerce and Trade (JCCT), the Chinese government
agreed to reopen the Chinese market to U.S. beef, subject to
the completion of a technical protocol.\169\ China had joined
several countries in banning U.S. beef following the discovery
of bovine spongiform encephalopathy (BSE) in a cow imported
into the United States from Canada in December 2003. Even
though the United States repeatedly provided China with
extensive technical information on all aspects of its BSE-
related surveillance and mitigation measures, China maintained
its ban for over two years without providing any scientific
justification for the decision or identifying the regulatory
steps that the U.S. government needed to pursue to have the ban
lifted.\170\
The Chinese government announced in June 2006 that it was
lifting the ban on U.S. beef.\171\ U.S. government officials
and industry sources have said that this will not lead to a
resumption of beef exports, because the Chinese government has
yet to agree to a technical protocol.\172\ Moreover, China's
June announcement, even if implemented, would only open the
Chinese market to a narrow segment of imports (boneless beef
under 30 months of age) rather than all beef, consistent with
Organization for Animal Health (OIE) standards. The Chinese
government made similar commitments in 2004 and 2005 with
respect to bovine semen and embryos, but the U.S. government
and industry analysts have noted little or no progress in
getting the relevant Chinese agencies to allow
imports of those items to resume, as regulatory authorities
impose information requirements that are not consistent with
OIE standards.\173\
When it acceded to the WTO, the Chinese government
committed to establish a transparent tariff-rate quota (TRQ)
system that included large and increasing TRQs for imports of
wheat, corn, rice, cotton, wool, sugar, vegetable oils, and
fertilizer, a portion of which was to be reserved for
importation through non-state trading entities.\174\ After
China joined the WTO, complaints arose that its TRQ system
lacked transparency and included burdensome licensing
procedures.\175\ While the Chinese government eliminated
certain unnecessary licensing requirements in 2004,\176\
problems with a lack of transparency continue, and there is no
publicly available list of quota holders.\177\
Certain aspects of China's value-added tax (VAT) system
continue to generate concerns about a lack of national
treatment as they relate to agriculture. In October 2005, the
United States and China notified the WTO that they had resolved
a longstanding
dispute over the Chinese government's preferential rebate of a
substantial portion of VAT for domestically designed and
produced
integrated circuits. Problems remain, however, with respect to
fertilizers and agricultural products, as U.S. industry reports
state that Chinese producers are able to avoid payment of the
VAT on their products, either as a result of poor collection
procedures, special deals or even fraud, while the full VAT
must be paid on competing imports.\178\
In April 2006, AQSIQ Minister Li Changjiang signed a
memorandum of understanding with U.S. Agriculture Secretary
Mike Johanns. The signatories agreed to exchange information on
food regulations and standards, inspection and quarantine
procedures, and other issues such as pests and diseases,
harmful residues, and food certification.\179\ The same month,
the American Soybean Association signed a three-year agreement
with China's Chamber of Commerce for Import and Export of
Foodstuffs, Native Produce
and Animal By-products that included measures on information
exchange and training programs.\180\
Automobiles
In March 2006, the United States filed a WTO request for
consultations with China, saying that the Chinese government's
industrial policy for automobiles discriminates against foreign
auto parts in a manner which appears inconsistent with China's
WTO commitments.\181\ Canada and the European Union also filed
similar requests.\182\ The U.S. request expressed the
understanding that, if imported parts in a vehicle exceed a
specified threshold, the Chinese government would assess a
charge on the imported auto parts equal to the tariff on
complete vehicles, rather than the lower charge otherwise
applied to auto parts. The U.S. request says that these
measures appear to constitute a charge in excess of rates that
the Chinese government committed to in its accession agreement,
as well as a subsidy contingent upon the use of domestic rather
than imported goods.\183\
Even as it agreed to consultations with the United States,
Canada, and the European Union,\184\ the Chinese government,
speaking through state-run media, said that China should
``promulgate a regulation on imports of auto parts in an
attempt to prompt foreign partners to produce core auto parts
in China, thus reducing the country's dependence on imported
components.'' \185\ Consultations were held in May, which were
joined by Japan, Mexico, and Australia, but no resolution was
reached.\186\ In June, the European Union said it would seek
another round of consultations. In September, several
countries, including the United States, requested the WTO
establish a dispute resolution panel to address this
issue.\187\
Steel
The National Development and Reform Commission (NDRC)
issued a new steel industrial policy in July 2005\188\ that,
according to the USTR, provides for state management of
``nearly every major aspect of China's steel industry.'' \189\
The USTR reports that the policy includes provisions that
appear to raise barriers to foreign participation, discriminate
against foreign equipment and technology imports, and encourage
the use of domestically produced equipment.\190\ The USTR has
said that the policy imposes a high degree of government
direction and decisionmaking about the allocation of resources
into and out of China's steel industry. The USTR reports that
this policy is inconsistent with the spirit of
China's general WTO obligations, and raises concerns regarding
China's WTO commitment not to influence, directly or
indirectly, commercial decisions on the part of state-owned or
state-invested enterprises.\191\ The U.S. and Chinese
governments held the first Steel Dialogue meeting in March
2006. During this meeting, U.S. officials stressed U.S. steel
industry concerns that government direction, not market
mechanisms, is driving much of the capacity expansion in
China's steel industry.\192\
The policy's requirement that foreign investors possess
proprietary technology or intellectual property in the
processing of steel also raises concerns. The USTR has said
that, because foreign investors are not allowed to have a
controlling share in Chinese steel and iron enterprises, this
requirement would seem to constitute a de facto technology
transfer requirement, in conflict with China's WTO commitments
not to condition investment on the transfer of technology.\193\
In May 2005, without prior notification to the WTO, the
Chinese government imposed new import licensing procedures for
iron ore.\194\ In August 2005, the United States submitted
questions to the WTO Committee on Import Licensing noting that
qualification rules reportedly restrict licenses to 48 traders
and 70 steel producers, but that no list of criteria or list of
qualified companies had been published.\195\ The United States
raised the issue of the operation of the import licensing
procedures applicable to iron ore during the transitional
reviews before the Committee on Import
Licensing in September 2005,\196\ and before the Committee on
Trade-Related Investment Measures in October 2005.\197\ The
Chinese delegates maintained that the government did not impose
any qualifying criteria, but it also acknowledged that two
organizations affiliated with the Chinese government had been
discussing whether it was necessary to impose industry rules
regarding the qualification criteria for enterprises applying
for automatic import licenses.\198\
Distribution Services and Trading Rights
When it acceded to the WTO, the Chinese government
committed to phase out restrictions on the right of foreign
investors to import and export products in and out of China
(``trading rights'') and to sell products within China
(``distribution services'') for most sectors by December
2004.\199\ While it implemented its trading rights commitments
nearly six months ahead of schedule,\200\ the government's
efforts to implement the distribution services commitments were
characterized by ``delay and confusion.'' \201\ Although the
Ministry of Commerce (MOFCOM) issued regulations on foreign
distribution services in April 2004,\202\ the Ministry
subsequently found it necessary to issue several circulars to
clarify issues relating to sales away from a fixed location
(``direct sales''),\203\ the ability of foreign-invested
enterprises in bonded zones to apply for distribution
rights,\204\ and the procedures for foreign-invested
enterprises to expand their business scope to include
distribution.\205\ The government did not issue formal
regulations on direct sales until August 2005.\206\ According
to U.S. government and industry sources, however, these
regulations contained several problematic provisions.\207\ In
February 2006, however, MOFCOM issued the first direct selling
license to Avon Products, Inc.,\208\ and in April 2006, the
government agreed to establish a public-private dialogue
designed to
facilitate direct sales.\209\
Standards
As part of its WTO accession commitments, the Chinese
government became obligated under the WTO Technical Barriers to
Trade Agreement to use international standards as the basis for
domestic standards except when ineffective or inappropriate,
and to refrain from adopting more trade-restrictive standards
than necessary.\210\ In November 2005, a Chinese representative
told the WTO Committee on Technical Barriers to Trade that as
the result of an ``overhaul'' of national standards to ensure
their consistency with WTO commitments, the General
Administration of Quality Supervision, Inspection and
Quarantine and the Standards Administration of China reported
that a total of 1,416 national standards had been nullified,
among which 114 were mandatory.\211\ Nevertheless, according to
the WTO, the percentage of China's national standards that are
equivalent to international standards has remained unchanged
since 2000, at around 32 percent.\212\ In May 2006, the U.S.
Trade and Development Agency awarded the American Chamber of
Commerce in China a US$500,000 technical assistance grant to
promote increased cooperation between the United States and
China in the development of commercial and industrial standards
and regulatory policy.\213\
Despite these positive steps, according to the USTR, the
Chinese government continues to pursue ``unique national
standards in many areas of high technology that could lead to
the extraction of technology or intellectual property from
foreign rights holders.'' \214\ For example, in May 2003, the
Chinese government issued two standards that incorporated the
WLAN Authentication and Privacy Infrastructure (WAPI)
encryption.\215\ WAPI differs from, and cannot function with,
the 802.11 standard approved by the International Standards
Organization (ISO). In addition, the government was prepared to
enforce the standard by providing the algorithms only to a
limited number of Chinese companies, requiring foreign
competitors to provide specifications of their products if they
wished to produce WLAN equipment for the Chinese market.\216\
At the April 2004 Joint Commission on Commerce and Trade (JCCT)
meeting, Chinese officials agreed to delay WAPI implementation,
and submitted a voluntary WAPI standard to the ISO.\217\
In March 2006, the ISO rejected China's proposed WAPI
standard.\218\ The Chinese government said that the decision
had been influenced by ``the diplomatic relationship between
the United States and other nations,'' and that ``nothing would
affect WAPI's domestic application.'' \219\ The Chinese
government filed appeals with the ISO in April and May asking
it to overturn the vote and accusing the Institute of
Electrical and Electronics Engineers (IEEE) of ``organizing a
conspiracy against the China-developed WAPI, insulting China
and other national bodies, and intimidation and threats.''
\220\ In June, the Chinese delegation walked out of an ISO-
organized meeting, saying that only 7 of the 17 countries
opposing the WAPI standard had attended the meeting, and that
the ``monopoly force from the American standard maker IEEE
poisoned the voting process and created an unfair atmosphere at
the Prague meeting.''\221\
Bilateral Cooperation on Commercial Issues
The U.S. Department of Commerce (DOC) promotes bilateral
cooperation with relevant Chinese government departments and
agencies on market access issues and ensuring compliance with
trade agreements. Past DOC programs have offered training to
Chinese officials on protection of intellectual property
rights, adoption standards, promotion of the rule of law, and
improving domestic health care. To improve transparency in the
Chinese commercial legal regime, DOC officials, in cooperation
with the National People's Congress, held roundtables in three
major Chinese cities during 2005 that focused on legislative
and regulatory transparency. As the Chinese government works to
adopt its first anti-monopoly law, DOC also hosted a Chinese
delegation to the United States in November 2005 to discuss the
principles of U.S. antitrust law. In July 2006, DOC officials
organized a program focusing on the U.S. Federal Register
system and regulatory transparency for a delegation from the
China Foreign Economic and Trade Gazette. In August 2006, DOC
and the Legislative Affairs Commission of China's National
People's Congress Standing Committee (NPCSC) jointly organized
a seminar on the revision of China's Partnership Enterprise
Law. The revisions adopted by the NPCSC later in the month
incorporated a number of suggestions made by the U.S. side,
thus bringing the Chinese regulatory regime, important to
professional services and venture capital firms, closer to
international practices. A bilateral Standards and Intellectual
Property program held in September 2006 focused on the
relationship between standards and intellectual property as
well as their impact on innovation and competitiveness.
VIII. Tibet
findings
<bullet> In 2005, the Dalai Lama increased his efforts
to explain that he does not seek Tibetan independence
from China. The Dalai Lama's envoys traveled to China
for a fifth round of dialogue with Chinese officials in
February 2006, relaying a request to Chinese leaders to
permit the Dalai Lama to visit China. Tibetans could
benefit from full implementation of the Regional Ethnic
Autonomy Law, but the lack of local self-government in
Tibetan autonomous areas of China creates mistrust in
the dialogue and demonstrates that authorities are not
implementing this law.
<bullet> The Chinese government favors accelerating
implementation of development initiatives, especially
the Great Western Development program, that already
erode Tibetan culture and heritage. The Qinghai-Tibet
railway began passenger service in July 2006,
increasing Tibetan concerns about the railway's
potential effects on Tibetan culture and the
environment. Education levels among Tibetans are much
lower than those of
ethnic Han Chinese, undermining the ability of Tibetans
to compete for employment and other economic advantages
in an emerging market economy that attracts an
increasing number of Han.
<bullet> The Chinese government strictly limits the
rights of Tibetans to exercise the constitutionally
guaranteed freedoms of
religion, speech, and assembly. Communist Party
political campaigns promote atheism and strengthen
government efforts to discourage Tibetan aspirations to
foster their unique culture and religion. Chinese
authorities have punished Tibetans, such as Jigme
Gyatso, a former monk imprisoned in 1996 who is serving
a 17-year sentence and Choeying Khedrub, a monk serving
a life sentence since 2000, for peaceful expressions
and non-violent actions that officials believe could
undermine Party rule. The Commission's Political
Prisoner Database listed 103 known cases of current
Tibetan political detention or imprisonment as of
August 2006, a figure that is likely to be lower than
the actual number of Tibetan political prisoners. Based
on sentence information available for 70 of the current
prisoners, the average sentence is approximately 10
years and 11 months.
Introduction
The Chinese government and the Communist Party give
economic development in Tibetan areas of China a higher
priority than protecting basic human rights such as the
freedoms of religion, speech, and assembly. Chinese officials
provide economic statistics\1\ to demonstrate Tibetan progress,
but Tibetans continue to struggle with poverty, suffer from
inadequate education, and face a growing number of better-
educated ethnic Han who travel to Tibetan areas and compete for
jobs and other economic benefits. The government can strengthen
China's ethnic and national unity by improving the
implementation of the Regional Ethnic Autonomy Law, and by
ensuring that Tibetans can manage their affairs, become equal
competitors with their neighbors, and preserve their unique
cultural, religious, and linguistic heritage.\2\
The Status of Discussion Between China and the Dalai Lama
U.S. government policy on Tibet recognizes the Tibet
Autonomous Region (TAR) and Tibetan autonomous prefectures and
counties\3\ in other provinces to be a part of China.\4\ The
State Department's annual Report on Tibet Negotiations detailed
the U.S. government's steps to encourage Chinese officials to
``enter into a dialogue with the Dalai Lama or his
representatives leading to a negotiated agreement on Tibet.''
\5\ The Report described the Dalai Lama as someone who
``represents the views of the vast majority of Tibetans,'' and
expressed encouragement that Chinese officials invited the
Dalai Lama's envoys to visit China in February 2006 (2005
visits also cited). The Report states, ``The Administration
believes that dialogue between China and the Dalai Lama or his
representatives will alleviate tensions in Tibetan areas and
contribute to the overall stability of China.'' The Report
notes, however, that ``the lack of resolution of these problems
leads to greater tensions inside China and will be a stumbling
block to fuller political and economic engagement with the
United States and other nations.'' \6\
In 2005, the Dalai Lama increased his efforts to explain
that he does not seek Tibetan independence from China. During a
religious teaching in India in January 2006, the Dalai Lama
spoke to some 9,000 Tibetans who traveled from Tibetan areas of
China to be among the estimated 90,000 attendees.\7\ In his
closing remarks, the Dalai Lama told them that he does not seek
Tibetan independence, and that he is working for a solution
based on the Middle Way Approach\8\ and within the existing
Chinese constitutional framework.\9\ He urged Tibetans
returning to China to tell other Tibetans about the importance
of his approach for ensuring genuine autonomy for Tibetans.\10\
The Dalai Lama's envoys traveled to China for a fifth round
of dialogue with Chinese officials in February 2006.\11\
Special Envoy Lodi Gyari\12\ and Envoy Kelsang Gyaltsen did not
travel to the TAR or one of the Tibetan Autonomous Prefectures
(TAPs) in other provinces, as they did during previous trips to
China.\13\ Instead, they visited the Guangxi Zhuang Autonomous
Region to observe ``the situation'' in one of the other five
provincial-level ethnic autonomous regions, and to meet with
Zhu Weiqun, the deputy head of the Communist Party's United
Front Work Department (UFWD). Gyari explained that as a result
of the visit, ``today there is a better and deeper
understanding of each other's position and the fundamental
differences that continue to exist in the position held by the
two parties.'' A Tibetan government-in-exile representative
told reporters in July 2005 that the most fundamental
difference is over ``the definition of Tibet,'' and explained,
``While China sees Tibet as the area included under the Tibet
Autonomous Region, Tibetans claim a much larger area\14\ where
the culture and language are
Tibetan.'' \15\
After the envoys returned to India, the Dalai Lama focused
his annual March 10 statement\16\ entirely on the dialogue,
emphasizing his commitment to the dialogue process and
expressing his wish to visit China. He summarized his position
by saying, ``I have only one demand: self-rule and genuine
autonomy for all Tibetans, i.e., the Tibetan nationality in its
entirety. This demand is in keeping with the provisions of the
Chinese Constitution, which means it can be met.'' \17\ The
Dalai Lama stated that his envoys relayed a request to Chinese
leaders to permit him to visit China as a religious pilgrim.
``As well as visiting the pilgrim sites, I hope to be able to
see for myself the changes and developments in the People's
Republic of China,'' he said.\18\
Tashi Wangdi, the Dalai Lama's representative to the
Americas, told a Commission roundtable in March 2006 that the
Chinese government's basic concern is the ``unity, territorial
integrity, and economic health of the country.'' A resolution
of the Tibetan issue would contribute to China's national
interests, he said, and if the Dalai Lama were to visit China,
it would be a ``win-win situation'' for the Chinese leadership:
The Middle Way Approach adopted by His Holiness will
in fact reinforce and strengthen all this. . . . One of
the most effective ways of creating the right
atmosphere is through personal contact and face-to-face
meetings. It is with this in mind His Holiness the
Dalai Lama had conveyed to the Chinese government
through his envoys his wish to visit some of the holy
Buddhist pilgrimage sites in China.\19\
The Tibetan government-in-exile's March 10, 2006, statement
declared support for the Dalai Lama's policy, and described
Tibetans as ``one of China's 55 minority nationalities.'' \20\
The statement noted that ``before 1951 [Tibetans] all lived
together in small, compact groups in a contiguous chain,'' and
argued that administrative unity of that territory is necessary
to protect Tibetan culture:
In essence, we have always said that the need to have
genuine autonomy for the three provinces of Tibet or
the entire Tibetan people is the basic principle. We
cannot compromise on this principle. . . . Because of
these reasons,\21\ we have proposed the need to have
unification of all the Tibetans, with the status of
genuine autonomy. This demand is in accordance with
Marxist and Leninist principles and the provisions of
the Chinese Constitution.
Chinese officials say that the Dalai Lama's proposal to
combine existing areas of Tibetan autonomy\22\ and implement
genuine autonomy is not consistent with the Chinese
Constitution and laws. Lhagpa Phuntsog (Laba Pingcuo),
Secretary General of the China Tibetology Research Center and
former Vice Chairman of the TAR, told reporters in May 2006
that the Dalai Lama had raised two principal issues, ``greater
Tibet'' and ``real autonomy.'' He said that the Dalai Lama's
demands ``don't match the history of Tibet,'' and that changing
the status quo would not accord with the Chinese Constitution
or the Regional Ethnic Autonomy Law (REAL).\23\ Sun Yuxi, the
Chinese Ambassador to India, told reporters in October 2005
that the Dalai Lama's request for a legal system ``something
like that of Hong Kong,'' is not possible, and that a ``larger
Tibet, [that would] include part of four more Chinese
provinces,'' is ``technically not acceptable.'' \24\ In July
2006, Wu Yingjie, the Vice Chairman of the TAR government,
rejected the Dalai Lama's objective that a Tibetan autonomous
area should have a democratically elected government, according
to a Hong Kong news media report.\25\ According to Wu, the
Dalai Lama has said\26\ that if he returns to China, the
Chinese government should create a greater Tibet and allow
democracy within it. Wu said that it is not possible for the
Chinese government to accept the Dalai Lama's conditions, and
that Tibetans enjoy prosperity under Party leadership and are
reluctant to see the Dalai Lama return.\27\
Chinese government officials express interest in continuing
the dialogue, but blame the Dalai Lama for the lack of
substantive progress, claiming that he is attempting to ``split
the motherland.'' \28\ China's Ministry of Foreign Affairs
accused the U.S. Congress on September 14, 2006, of sending a
``severely wrong signal to the `Tibet-independence' forces''
\29\ after the U.S. House of Representatives passed a bill the
previous day authorizing the Dalai Lama to receive the
Congressional Gold Medal.\30\ After the Dalai Lama's envoys
visited China in February, Foreign Ministry spokesperson Qin
Gang told reporters that the Dalai Lama ``steals his way to
this or that corner of the world'' in order to ``split our
motherland.'' \31\ Jampa Phuntsog (Xiangba Pingcuo), Chairman
of the TAR government, however, recognized the envoys' visit in
frank remarks to reporters in Beijing on March 6: ``We cannot
call the talks negotiations now. They are just dialogue, or
contact, but the channels for communication have always been
smooth. . . . We will have further discussions in [the] future.
But we haven't yet reached the stage of substantive
negotiations.'' \32\
Tibetans could benefit from full implementation of the
REAL, but the lack of local self-government in Tibetan
autonomous areas of China creates mistrust in the dialogue and
demonstrates that authorities are not implementing this law.
The REAL asserts in its Preamble that the practice of autonomy
``reflects the state's full respect for and guarantee of ethnic
minorities' right to administer their internal affairs.'' \33\
Article 7 of the REAL, however, requires that local autonomous
governments ``place the interests of the state as a whole above
all else and actively fulfill the tasks assigned by state
organs at higher levels.'' \34\ A 2004 Harvard University study
of autonomy in Tibetan areas of China considered a compilation
of 161 laws and regulations, and found that poor implementation
negates the value of autonomy legislation and erodes the rule
of law.\35\ A University of Hong Kong professor pointed out in
March 2006 that regional ethnic autonomy is ``very restricted''
because ``Beijing can override it through either legislation or
administrative decisions.'' \36\ ``Today, the concept is valued
primarily for speeding up economic and industrial development,
which itself threatens the cultures and languages of
minorities,'' according to the professor's article.
The central government and Party defend the regional ethnic
autonomy system, asserting that it is successful. A February
2005 State Council White Paper declared that regional ethnic
autonomy is ``a correct solution to the issue of ethnic
groups,'' and that more than 50 years of implementation prove
that the system is ``immensely successful.'' \37\ At a meeting
chaired by President and Party General Secretary Hu Jintao in
August 2005, the Politburo considered ``Tibet work in the new
century'' and declared that ``the ethnic regional autonomy
system has been continually consolidated and perfected, and the
people of all ethnic groups fully enjoy their rights as masters
of the country.'' \38\
Some Tibetans reject the Dalai Lama's offer to resolve the
issue within the framework of the Chinese Constitution and
autonomy, and their willingness to speak out is increasing. For
example, the chairman of the oldest Tibetan advocacy group in
the United States told a Commission roundtable in March 2006
that the dialogue has not resulted in ``any tangible
progress.'' \39\ He said that he believes most Tibetans want
independence, but they support the Middle Way Approach because
of their high regard for the Dalai Lama. He warned that Chinese
leaders may be mistaken if they expect the Tibet issue to fade
away after the Dalai Lama passes away:
Rather than the issue dying away, there is a greater
likelihood that the issue will destabilize, with future
generations of very frustrated Tibetans resorting to
other means to bring freedom to Tibet. The role and the
position of the Dalai Lama has been a great stabilizer
for the Tibetan community, the Free Tibet Movement, and
even the world.\40\
The Chinese government portrays as terrorists some Tibetans
living outside of China who call for independence,\41\ but has
not provided evidence for this designation. In February 2004, a
Chinese public security journal described the Tibetan Youth
Congress (TYC), a pro-independence NGO based in India that
claims 20,000 members worldwide,\42\ as ``the extremists among
the new generation of the Dalai Lama group.'' \43\ The article
claimed, ``It can be said that every violent terrorist activity
that took place in the Tibetan regions was intricately
connected with extremist organizations such as the TYC.'' \44\
An August 2005 article in China's Tibet magazine charged that
``[TYC] diehards stick to `Tibetan independence,' stand for
violence, and work hand-in-glove with international terrorists
to form terrorist organizations in India.'' \45\
Some Tibetans, especially the younger generation, are
questioning the non-violent message of Buddhist philosophy. TYC
President Kalsang Phuntsok acknowledged in December 2005 that
``a huge section of the Tibetan youth community'' believes that
the Tibetan independence movement ``is like any other
movement:''
There is no reason for us to restrain ourselves just
because we are Buddhist or just because we have a
leader of His Holiness's stature. . . . [We] have a
youth section which is not so much influenced by the
Buddhist philosophy. They are very much attracted by
the movements which are going on all over the world,
mostly violence-infested movements, and people see they
are achieving results. They look around everywhere,
whether it's Israel or Palestine or the Middle East--
these give them every reason to believe in every
[violent] movement that is being waged on this
Earth.\46\
A senior broadcaster for the Voice of America summarized
the complexities of the outlook for dialogue at a March 2006
Commission roundtable:
Cumulatively, these disparate variables have had the
effect of creating conditions more favorable to a
strategy of engagement for Beijing. But while it seems
likely that China will, for the time being, continue to
pursue talks with the Dalai Lama, it seems equally
unlikely that the two parties can expect to begin
discussing matters of substance under present
circumstances. . . . [T]he question now for Beijing is
whether its deferral of substantive negotiations risks
forgoing an historic opportunity to reach a lasting
solution on the dispute over Tibet.\47\
Culture, Development, and Demography
The Chinese government favors accelerating implementation
of development initiatives, especially the Great Western
Development program (GWD),\48\ that already erode Tibetan
culture and heritage. Minister Li Dezhu of the State Ethnic
Affairs Commission (SEAC) described GWD in 2000, the first year
of implementation, as ``the necessary choice for solving
China's nationality problems under the new historical
conditions.'' \49\ He pointed out that GWD will integrate
ethnic minorities into the mainstream of ``marketization and
socialization,'' saying, ``[E]ach nationality will become more
strongly unified with each day under the centripetal force . .
. of the large family of the Chinese nation.'' Implementation
of programs such as GWD encourages Han migration into Tibetan
and other ethnic areas, a movement that Li described as a
westward flow of ``human talent'' that would result in
``clashes and conflicts'' between ethnic groups. Li warned that
clashes must be ``handled well,'' or there would be a
detrimental effect on national unity and social stability.\50\
The Regional Ethnic Autonomy Law (REAL) provides local
autonomous governments the right to modify or cancel the
implementation of higher-level laws and regulations,\51\ but
the central government overrides the rights of local
governments by passing laws that ensure implementation of
central government policies such as GWD. Li said in 2000 that
the state ``must use legal methods to provide legal guarantees
for the implementation of these policies, and safeguard
implementation [of GWD] with laws and regulations.'' \52\ A
March 2004 State Council paper called on the government to
``speed up the pace of law-making as it pertains to the
development of the West, to provide a legislative guarantee for
the development of the West.'' \53\ In March 2006, Wang
Jinxiang, Vice Minister of the National Development and Reform
Commission and Deputy Director of the State Council Office of
the Leading Group for Western Region Development, said that the
National People's Congress is preparing a draft law that ``aims
to create a favorable legal environment and support for a
smooth implementation of the western region development
program.'' \54\ If enacted, this law would be the first
national law created solely for the development of a single
region, according to Wang.
Senior government and Party officials emphasized the
importance of hastening the implementation of development
policies when they attended a September 2005 ceremony in Lhasa
marking the 40th anniversary of the establishment of the
TAR.\55\ Jia Qinglin, a Politburo Standing Committee member,
led the delegation and told an assembly of Party cadres in
Lhasa that the pace of change in the TAR must be quickened from
``accelerated development'' to ``development by leaps and
bounds.'' \56\ Jia listed priorities that include boosting
rural Tibetan living standards and income, increasing
infrastructure construction, and consolidating the TAR's ties
with China's populous east, along with the political objective
of cracking down on expression and activity that the Party
characterizes as ``separatist and sabotaging activities.'' \57\
The latter descriptions can apply to peaceful expressions of
devotion to the Dalai Lama, and Tibetan complaints about
Chinese policies. Authorities in Lhasa tightened security
before the anniversary and detained as many as 10 Tibetans,\58\
including Sonam,\59\ a monk employed at the Potala Palace, and
Sonam Gyalpo,\60\ a Lhasa tailor who had video and printed
material in his home featuring the Dalai Lama.
The Qinghai-Tibet railway, officially designated as a key
GWD project,\61\ began passenger service in July 2006, ahead of
scheduled completion in 2007,\62\ increasing Tibetan concerns
about the railway's potential effects on the Tibetan culture
and environment.\63\ President Hu Jintao inaugurated the
railway at a ceremony in Golmud city, Qinghai province. Hu
described the railway's completion as ``an important expression
of the constant increase in the comprehensive national strength
of our country,'' and of ``very great significance'' to
speeding up regional economic and social development and
``enhancing ethnic solidarity and consolidating the
motherland's frontier defense.'' \64\ Ragdi (Raidi), an ethnic
Tibetan who is a Vice Chairman of the National People's
Congress Standing Committee (NPCSC) and former Chairman of the
TAR People's Congress, described the railway during its first
week of operation\65\ as the Tibetan people's ``road to
heaven,'' and predicted that it would ``have a profound and
far-reaching historical significance.'' \66\ In August, an
official announced that the government plans to extend the
railway westward from Lhasa to Rikaze, the TAR's second largest
city, within three years.\67\
State-run news media reports about the railway's startup
rejected assertions that operating the railway will result in
increased Han migration into the TAR, or threaten the Tibetan
culture and environment. A Xinhua editorial published on July 1
dismissed claims that ``an influx of the Han people'' would
lead to Tibetan ``cultural genocide,'' \68\ countering that the
railway will benefit Tibetans by providing them access to
``modern civilization.'' \69\ Lhasa mayor Norbu Dondrub said
the same day, ``Tibetan culture will not disappear when there
is market demand for it. The Tibetan culture will not have
fundamental changes with the opening of the Qinghai-Tibet
Railway. On the contrary, it has a bright future.'' \70\ Wu
Yingjie, Vice Chairman of the TAR government and head of the
provincial Propaganda Bureau,\71\ told foreign reporters in
July that, ``Tibet's unique natural conditions make it
impossible for the Han people and other ethnic groups to settle
down here,'' \72\ a statement that is inconsistent with Chinese
census statistics that document the increasing Han population
in the TAR.\73\ Chinese news reports described the passengers
expected to use the new railway as tourists, visitors, or
travelers. Chairman of the TAR government Jampa Phuntsog
(Xiangba Pingcuo) acknowledged on July 4 that the railway will
bring ``a lot of travelers'' to the TAR and build the tourism
industry, but the railway would not have ``a great impact'' on
the Tibetan environment.\74\ A TAR tourism official announced
in May that 4,000 ``tourists'' \75\ will arrive in Lhasa every
day after the railway is operating, and that the railway would
bring an additional 400,000 visitors to the TAR during the
remainder of 2006.\76\ Official estimates are not available of
the number of persons the government expects to arrive by train
in Lhasa who will seek employment, conduct business, engage in
a professional practice, or remain in the area for other
reasons.
As the inauguration date of the 33 billion yuan (US$4.12
billion)\77\ railway approached, Chinese officials and experts
disclosed that thawing permafrost on the Qinghai-Tibet Plateau
could adversely affect operation of the railway, but officials
did not warn of any immediate risks. Professor Wu Ziwang, an
expert at the Chinese Academy of Sciences frozen soil
engineering laboratory,\78\ said in January 2006 that the
permafrost layer on the Qinghai-Tibet Plateau is melting and
will continue to deteriorate due to global warming.\79\ ``I am
worried that after ten years the railroad will be unsafe,'' he
said. In February, Wu observed that faster thawing of the
permafrost ``might greatly increase the instability of the
ground . . . where major projects such as highways or railways
run through.'' \80\ La Youyu, the Deputy Director General of
the railway's construction headquarters, disclosed in August
2005 that about 340 miles of track crosses frozen earth that
``is vulnerable to climate change'' and ``will thaw in summer
and distend the railway base in winter.'' \81\
Supreme People's Court (SPC) and Party officials opened a
conference on June 15 that considered the role the judiciary
should play in maintaining social stability following the
opening of the Qinghai-Tibet railway in July.\82\ SPC Vice
President Zhang Jun said that the railway has an important role
in the GWD program, and that the inauguration of the rail
service would create ``new demands regarding the work of the
courts.'' He stressed that courts along the rail line, the
principal terminals of which are Lhasa and Xining, the capital
of Qinghai province, must strengthen their ``communication and
cooperation'' to coordinate efforts to ``resolve problems.''
The courts of both the TAR and Qinghai province must be active
participants in the ``comprehensive management of public
security'' to ``assure the harmony and stability of the
Qinghai-Tibet area, particularly the safe operation of the
railroad,'' Zhang said.\83\ Wang Yibin, a TAR Communist Party
Standing Committee member and the head of the TAR Public
Security Bureau, also spoke at the conference and provided
specific judicial ``requirements'' linked to the TAR's
``current anti-splittist struggle and public security
situation.'' \84\ The requirements included: increasing the
force of ``strikes against all categories of criminal
activity;'' establishing a legal environment that is
``favorable to the safety of the railroad;'' and protecting the
legal rights and interests of workers while ``preventing and
appropriately handling mass incident work.'' \85\
Chinese law, government and Party policies, and official
statements increase Tibetan concerns that programs such as
GWD\86\ and projects such as the Qinghai-Tibet railway will
lead to large increases in Han migration. In an unusual
statement, a China Daily report in October 2005 described the
government's expectation that the railway will ``attract
tourists, traders, and ethnic Chinese settlers'' to the
region.\87\ The implementation provisions of the REAL issued in
May 2005 instruct the state to encourage and support ``talents
of all categories and classes to develop and pioneer in ethnic
autonomous areas.'' \88\ The Provisions require local
governments to provide newly arriving ``talent'' with
``preferential and convenient working and living conditions,''
and to ensure that their dependents and children ``enjoy
special treatment in employment and schooling.'' \89\ An
opinion paper circulated by the Party Central Committee and the
government in July 2005 called for ``a large number of trained
personnel, especially graduates of schools of higher learning,
to go to [grassroots areas, especially the western region] to
render meritorious service and make a distinguished career.''
\90\ The paper advises the state to offer incentives, such as
full repayment of academic loans, to graduates who work for an
unspecified number of years in ``harsh areas.'' \91\
The Chinese government hampers objective study of regional
social and economic issues by providing inadequate or
misleading information about the number of ethnic Han who live,
work, and trade in Tibetan autonomous areas. The Commission's
2005 Annual Report showed that official Chinese census data
portray ethnic Han population as decreasing in 10 of 13 Tibetan
autonomous areas between 1990 and 2000,\92\ a decline that
contradicts the visible changes evident in many Tibetan towns
and cities, and raises questions about the reliability of the
data.\93\ Comparing national census data with population data
from provincial statistical yearbooks demonstrates that the
yearbooks sometimes report even fewer Han in Tibetan areas than
the census.\94\ Census data for 2000 reports 158,570 Han in the
TAR,\95\ for example, but a TAR annual statistical yearbook
reports only 72,122 Han in the TAR in 2000 (less than half the
census figure).\96\
A Chinese academic study conducted in Lhasa in 2005
observed that GWD promotes the flow of ``a large number of
temporary migrants'' into the TAR, and leads to increased
competition between a ``low quality'' local Tibetan workforce
and incoming (mostly Han) migrant workers.\97\ The authors,
Professors Ma Rong and Tanzen Lhundup, examine the migrant
population in Lhasa (Tibetan and non-Tibetan), and the role of
local authorities in registering and managing the migrant
population. The paper concludes that it is difficult to study
temporary migrants in the TAR, and that the actual number of
temporary migrants is much larger than official records
reveal.\98\ The authors explain that temporary migrants keep
moving seasonally, and usually try to avoid registering with
local authorities in order to escape payment of fees and
charges. Local governments are understaffed with inexperienced
personnel and cannot keep track of the migrants.\99\
Education levels among Tibetans are much lower than those
of ethnic Han,\100\ undermining the ability of Tibetans to
compete for employment and other economic advantages in an
emerging market economy that attracts an increasing number of
Han. Based on 2000 census data, the Tibetan rate of illiteracy
(47.55 percent) is more than five times higher than for Han
(8.60 percent), while Han reach senior middle school at more
than five times the rate of Tibetans (8.83 percent compared to
1.70 percent).\101\ Ma and Lhundup found similar patterns in
their study of migrants in Lhasa: the rate of illiteracy among
Tibetan migrants (32.3 percent) was almost 10 times higher than
for Han migrants (3.3 percent),\102\ and Han migrants were
better prepared to secure jobs that require skills learned in
junior or senior middle school. Of the migrants surveyed, Han
reached junior or senior middle school at about twice the rate
of Tibetans: 53.7 percent of Han compared to 26 percent of
Tibetans reached junior middle school, and 19.4 percent of Han
compared to 9 percent of Tibetans reached senior middle
school.\103\ The survey's population sample shows that the
advantage Han migrants enjoy in the Lhasa job market is
qualitative, based on their education levels, and also
quantitative--there were at least four times as many Han
migrants in Lhasa as Tibetan migrants.\104\
The difference in education levels heightens the barrier
that rural Tibetans face, even compared to urban Tibetans, when
they seek employment or commercial opportunities in urban
centers.\105\ Tibetans living in towns and cities reached
senior middle school at about 12 times the rate of Tibetans
living in rural areas, according to official 2000 census
data.\106\ Based on the same data, Tibetans with the least
access to education--rural Tibetans--outnumbered Tibetan
residents of towns and cities by more than five-to-one.\107\
The average income of TAR rural residents remains a fraction of
urban income, but according to official data the gap has
narrowed slightly. In 2000, the average TAR urban per capita
income (6,448 yuan) was 4.84 times more than the average rural
per capita income (1,331 yuan).\108\ In 2005, the average TAR
urban per capita income (8,411 yuan) was 4.05 times higher than
the average rural per capita income (2,075 yuan).\109\
The Chinese government implements policies intended to
improve educational and economic opportunities for rural
Tibetans,\110\ especially nomadic herders, but programs require
Tibetans to participate on the government's terms. In the first
three years of a pasture construction and nomadic settlement
program launched in 2001, authorities in the TAR relocated
48,000 nomadic herders and settled them in fixed
communities.\111\ A government program to settle nomadic
herders, including Tibetans, in Qinghai province placed about
10,000 families in fixed communities by 2005.\112\ In Gansu
province, a program started in the late 1990s to settle nomadic
herders in Tibetan autonomous areas settled 7,000 families by
2004 and is expected to be complete in 2009.\113\ A U.S. Agency
for International Development rangeland expert told a
Commission roundtable in March 2004 that in his opinion,
despite good government intentions,\114\ most Tibetan farmers
and herders have not been able to participate fully in
assessing, planning, and implementing the programs that affect
their lives.\115\
Tibetan Culture and Human Rights
The Chinese government strictly limits the rights of
Tibetans to exercise the constitutionally guaranteed freedoms
of religion, speech, and assembly. Communist Party political
campaigns promote atheism and strengthen government efforts to
discourage
Tibetan aspirations to foster their unique culture and
religion. Chinese authorities have punished Tibetans for
peaceful expressions and non-violent actions that officials
believe could undermine Party rule. The downward trend in the
number of known Tibetan political prisoners,\116\ compared to
an upward trend that peaked in the mid-1990s,\117\ suggests
that Tibetans are avoiding the risks of direct protest against
government policies, and turning to other, sometimes
innovative, ways to express and protect their culture.\118\
An example of Tibetan cultural expression, and of the Dalai
Lama's influence on Tibetans, emerged after the Dalai Lama told
thousands of Tibetans gathered in January 2006 at a religious
teaching in India,\119\ ``I am ashamed and don't feel like
living when I see all those pictures of people decorating
themselves with skins and furs.'' \120\ He specifically
referred to fur trim from rare and
endangered animal species that some Tibetans use to decorate
traditional garments. ``Neither use, sell, or buy wild animals,
their products or derivatives,'' he instructed the attendees.
In February and March 2006, Tibetans in Tibetan autonomous
prefectures in Qinghai, Gansu, and Sichuan provinces responded
by conducting campaigns to collect and burn fur stripped from
garments.\121\ Security officials detained and questioned the
Tibetan organizers of at least two events and then released
them, apparently without charge.\122\ At an event in March, the
organizers took care to avoid provoking authorities,\123\ but
participants openly displayed their devotion to the Dalai
Lama.\124\ Police monitored the scene, but did not detain or
question any participants, or prevent the Tibetans from burning
the fur.\125\
Chinese authorities carried out 24 known political
detentions of Tibetans in 2005, an increase compared to the 15
such detentions in 2004, according to information available in
the Commission's Political Prisoner Database (PPD) as of August
2006. Of the political detentions in 2005, 10 took place in the
Tibetan Autonomous Region (TAR), 8 in Qinghai province, and 6
in Gansu province. None of the known political detentions of
Tibetans in 2005 took place in Sichuan province, although
Sichuan was the location of the largest number of new cases
from 2001-2004.\126\ In January 2006, a court in Gannan Tibetan
Autonomous Prefecture in Gansu province sentenced Tibetan monks
Dargyal Gyatso and Jamyang Samdrub, and nuns Choekyi Drolma,
Tamdrin Tsomo, and Yonten Drolma to up to three years'
imprisonment for displaying and distributing letter-sized
posters critical of the Chinese government.\127\ The nuns are
the first nuns known to be imprisoned in Gansu province since
this period of Tibetan political activism began in 1987.\128\
The PPD listed 103 known cases of current Tibetan political
detention or imprisonment as of August 2006, a figure that is
likely to be lower than the actual number of Tibetan political
prisoners. Reports of Tibetan political imprisonment often do
not reach monitoring groups until at least one or two years
after the detentions occur. Approximately 55 of the Tibetans
are believed to be detained or imprisoned in the TAR,
approximately 25 in Sichuan province, fewer than 15 in Qinghai
province, and 6 in Gansu province. Based on sentence
information available for 70 of the current prisoners, the
average sentence is approximately 10 years and 11 months.
The Commission welcomed the decision by Chinese authorities
to permit nun Phuntsog Nyidron to travel to the United States
in March 2006 to receive medical treatment.\129\ Lhasa
authorities imprisoned her for more than 14 years for
participating in a peaceful political demonstration, and then
for secretly recording songs that criticized the Chinese
government's rule of Tibetans while she was in prison.\130\ In
another development, the Lhasa Intermediate People's Court
commuted Bangri Chogtrul's sentence from life imprisonment for
``splittism'' \131\ to a fixed term of 19 years in July 2003,
and then reduced his sentence by an additional year in November
2005, according to a February 2006 NGO report.\132\ The same
court sentenced Nyima Choedron, Bangri Chogtrul's wife, to 10
years' imprisonment on the same charge in September 2000, and
subsequently reduced her sentence twice, by 18 months in 2002
and 1 year in 2004. Officials released her on February 26,
2006, after commuting the final year of her sentence.\133\ No
new developments were reported in the cases of prisoners
Ngawang Phuljung (a monk serving a 19-year sentence since
1989), Choeying Khedrub (a monk serving a life sentence since
2000), or Tenzin Deleg (a lama imprisoned in 2002, serving a
life sentence). (See Section VI--Tibet of the CECC 2005 Annual
Report for more information about these cases.)
Manfred Nowak, UN Special Rapporteur on Torture, reported
after his visit to China in late 2005 that TAR authorities
opened Qushui Prison, near Lhasa, in April 2005 for male
prisoners serving sentences longer than 15 years, as well as
prisoners sentenced as a ``principal'' criminal when more than
one person commits a ``joint crime.'' \134\ NGO reports of
Tibetan political prisoners in Qushui Prison have confirmed few
by name, although according to a Commission staff analysis
about 25 political prisoners, most of them transferred from
Lhasa's TAR Prison (Drapchi), are likely to be imprisoned in
Qushui Prison.\135\
Nowak interviewed three Tibetan political prisoners at
Qushui Prison: Jigme Gyatso\136\ (a former monk imprisoned in
1996 who is serving a 17-year sentence), Bangri Chogtrul,\137\
and Lobsang Tsultrim\138\ (a monk serving a 14-year sentence
since 1995). Each prisoner recounted his personal experience of
beating, torture, or other abuse during imprisonment. Jigme
Gyatso reported that authorities extended his 15-year sentence
by an additional 2 years after he shouted slogans in March 2004
calling for the Dalai Lama's long life.\139\ The prisoners told
Nowak that conditions in Qushui Prison are harsher than those
in TAR Prison, and they said that imprisoned monks are
forbidden to pray.\140\
IX. North Korean Refugees in China
findings
<bullet> The Chinese government forcibly repatriates
North Korean refugees facing starvation and political
and religious persecution in their homeland,
contravening its obligations under the 1951 Convention
relating to the Status of Refugees and its 1967
Protocol. Chinese authorities detained and returned to
the Democratic People's Republic of Korea (DPRK)
thousands of North Koreans in 2005. The government
classifies all North Koreans who enter China without
documents as illegal economic migrants and claims it
must return them to the DPRK, even though North Korean
defectors meet the definition of refugees under
international law. Repatriated North Koreans face long
prison sentences, torture, and execution.
<bullet> Without legal status, North Korean refugees in
China are vulnerable to abuse and exploitation. There
are an estimated 20,000 to 50,000 North Koreans
currently hiding in northeastern China, and some NGOs
estimate that the number of refugees is much higher.
The government refuses the UN High Commissioner for
Refugees (UNHCR) access to North Korean refugees, and
fines and imprisons humanitarian workers who assist
North Koreans in China. Officials in Beijing met with
UNHCR Antonio Guterres in March 2006 during the first
UNHCR visit to China since 1997. In July 2006, the
Chinese government for the first time allowed three
North Korean refugees to travel directly from the U.S.
Consulate in Shenyang, Liaoning province, to the United
States to seek asylum.
The Chinese government forcibly repatriates North Korean
refugees fleeing starvation and political and religious
persecution in their homeland.\1\ The U.S. State Department and
NGO sources
report that Chinese authorities detained and returned to the
Democratic People's Republic of Korea (DPRK) thousands of North
Koreans in 2005.\2\ The government provides financial rewards
to security
officials who detain North Koreans and to citizens who reveal
the locations of refugees.\3\
The government's repatriation of North Korean refugees
contravenes its obligations under the 1951 Convention relating
to the Status of Refugees (1951 Convention) and its 1967
Protocol. The 1951 Convention and its Protocol mandate that
``no Contracting State shall expel or return (`refouler') a
refugee in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened on
account of his race, religion, nationality, membership of a
particular social group or political opinion.'' \4\ The
government bases its policy of repatriating North Koreans on a
1961 treaty with the DPRK and a subsequent 1986 border
protocol,\5\ but international law concerning refugees
supersedes any such bilateral commitments.\6\
The government classifies all North Koreans who enter China
without documents as illegal economic migrants and claims it
must return them to the DPRK, even though North Korean
defectors meet the definition of refugees under international
law. In March, a Ministry of Foreign Affairs (MFA) spokesperson
reiterated the government's position that undocumented North
Koreans in China are ``illegal migrants and not refugees.'' \7\
The 1951 Convention and its Protocol, however, define a refugee
as someone who, ``owing to well-founded fear of being
persecuted for reasons of race, religion,
nationality, membership of a particular social group or
political opinion, is outside the country of his nationality
and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country.'' \8\ The UN Special
Rapporteur on Human Rights in North Korea also recognized in a
2005 report that North Koreans who have crossed the border into
other countries for reasons of livelihood are refugees sur
place, or those ``who did not leave their country of origin for
fear of persecution, but who fear persecution upon return.''
\9\
Repatriated North Koreans face long prison sentences,
torture, and execution. Article 233 of the amended North Korean
Penal Code states that any citizen ``who crosses a frontier of
the Republic without permission shall be committed to a
detention labor facility for up to two years,'' and Article 62
says that any citizen ``who defects to a foreign country or to
the enemy in betrayal of the country and the people shall be
committed to a reform institution for not less than five years.
In cases where the person commits an extremely grave offense,
he or she shall be given life imprisonment in a reform
institution, the death penalty or have their property
confiscated.'' \10\ According to international NGO sources, the
``grave offenses'' include leaving the DPRK multiple times,\11\
meeting with foreigners, and returning to the DPRK with the
intention of becoming Christian missionaries.\12\ Testifying
before a Commission hearing, an international humanitarian
worker said that North Korean officials summarily executed one
refugee's repatriated sister and son for converting to
Christianity and interacting with Chinese Christians while in
China.\13\ Conditions in North Korean labor camps and prisons
are harsh, and defector testimonies ``document cases of
beatings, forced labor, degrading treatment, torture, and
execution.'' \14\
Without legal status, North Korean refugees in China are
vulnerable to abuse and exploitation. Jay Lefkowitz, U.S.
Special Envoy for Human Rights in North Korea, estimates that
at least 20,000 to 50,000 North Koreans currently are hiding in
northeastern China.\15\ Some NGOs estimate that the number of
refugees is much higher.\16\ Trafficking in North Korean women,
who make up two-thirds of the refugees,\17\ is widespread,\18\
and the Chinese government has done little to combat the
network of traffickers along the North Korean border.\19\
International NGOs estimate that traffickers intercept 70 to 80
percent of all North Korean women entering China.\20\
Traffickers sell the majority of women into marriage and a
smaller number into prostitution\21\ [see Section V(e)--Status
of Women--Trafficking of Women and Girls]. Few North Korean
children and children born in China from Chinese-Korean
marriages have access to education,\22\ and traffickers have
sold babies born to North Korean women in China.\23\
Officials in Beijing met with Antonio Guterres, the UN High
Commissioner for Refugees (UNHCR), in March 2006 during the
first UNHCR visit to China since 1997. State Councilor Tang
Jiaxuan told Guterres that ``the Chinese government attaches
great importance to the protection of refugees.'' \24\ During
Guterres' visit, an MFA spokesperson said that the Chinese
government was ``considering how to improve and perfect the . .
. legal system''
pertaining to refugees.\25\ The State Council is considering
new Regulations on the Administration of Refugees, according to
its 2006 Legislative Plan.\26\ Guterres said the UNHCR would be
``fully engaged in supporting the Chinese authorities to make
sure that this legislation is in full compliance with
international law.'' \27\
The government refuses the UNHCR access to North Korean
refugees, and Chinese guards outside the UNHCR office in
Beijing block access to North Korean and other refugees. This
policy contravenes a 1995 agreement between the UN and the
Chinese government which provides that ``UNHCR personnel may at
all times have unimpeded access to refugees and to the sites of
UNHCR projects in order to monitor all phases of their
implementation.'' \28\ Chinese security forces that guard the
UNHCR office\29\ and foreign embassies\30\ in Beijing drive
away North Koreans who try to present refugee petitions or seek
asylum. In a March 30 statement, the White House expressed
``grave concern'' over China's repatriation of refugee Kim
Chun-hee and called upon the Chinese government ``not to return
North Korean asylum seekers without
allowing UNHCR access to these vulnerable individuals.'' \31\
In July 2006, the Chinese government for the first time allowed
three North Korean refugees to travel directly from the U.S.
Consulate in Shenyang, Liaoning province, to the United States
to seek
asylum.\32\
The government fines and imprisons international
humanitarian workers who assist North Koreans in China. Chinese
authorities sentenced South Korean citizen Choi Yong-hun to
five years in prison and fined him 30,000 yuan (US$3,750) in
May 2003 for assisting North Koreans in China.\33\ Authorities
in Yanji city in the Yanbian Korean Autonomous Prefecture
detained U.S. citizen Philip J. Buck in May 2005 for his role
in assisting North Koreans in China to seek asylum in a third
country.\34\ In August 2006, authorities convicted Reverend
Buck of human smuggling, and sentenced him to deportation and
prohibition from returning to China.\35\ A South Korean
Ministry of Foreign Affairs and Trade report released in
September 2005 said that, of the 64 South Koreans detained by
Chinese authorities since 2001 for helping North Koreans in
China, 15 are still in detention.\36\ The government imposes
fines of 1,000 yuan (US$125) on Chinese citizens who shelter
North Korean refugees\37\ and offers financial rewards to
citizens who turn in those assisting North Koreans.\38\
X. Developments in Hong Kong
The United States supports a stable, autonomous Hong Kong
under the ``one country, two systems'' formula articulated in
the Sino-U.K. Joint Declaration and the Basic Law.\1\ The
people of Hong Kong enjoy the benefits of an independent
judiciary\2\ and an open society in which the freedoms of
religion, speech, and assembly are respected. The Commission
notes, however, that during the past year no steps were taken
that would move Hong Kong closer to the ``ultimate aim'' of
universal suffrage as specified in the Basic Law. The
Commission strongly supports the provisions of the Basic Law
that provide for the election of the chief executive and the
entire Legislative Council through universal suffrage, and
highlights the importance of the central government's
obligation to give Hong Kong the ``high degree of autonomy''
promised in the Basic Law.
Constitutional Reform and Steps to Universal Suffrage
The National People's Congress Standing Committee (NPCSC)
issued a decision in April 2004 prohibiting the people of Hong
Kong from electing both the chief executive in 2007 and the
members of the Legislative Council (LegCo) in 2008 through
universal suffrage.\3\ Universal suffrage is described in
Articles 45 and 68 of the Basic Law as the ``ultimate aim.''
\4\ Currently, the chief executive is selected by the 800-
member Election Committee chosen from Hong Kong's 28 functional
constituencies, and only half of the 60 legislators in the
LegCo are chosen by direct election. In July 2004, hundreds of
thousands of Hong Kong citizens staged a demonstration to
demand greater democracy, conveying the clear message that most
people in Hong Kong want universal suffrage.\5\
The Hong Kong Special Administrative Region's (HKSAR)
Constitutional Development Task Force issued its fifth report
on October 19, 2005, which proposed modest measures to expand
citizen participation in selecting the chief executive in 2007
and forming the LegCo in 2008. The report called for adding 10
new seats to the 60-member LegCo, although the public would
directly elect only 5 of the new members. District Councilors
elected by the current group of 529 elected and appointed
Councilors would fill the other five new seats.\6\ The report
also called for doubling the size of the Election Committee
(EC) that chooses Hong Kong's chief executive from 800 to 1,600
members, and increasing the number of EC members that are
professionals in industry, commerce, finance, labor, and social
services from 600 to 900.\7\ EC members from these functional
constituencies are elected by Hong Kong citizens from their
respective professional and industrial sectors. In addition,
the report proposed increasing the number of EC members from
the LegCo, District Councils, Heung Yee Kuk (a statutory
advisory body representing the New Territories), Hong Kong
deputies to the National People's Congress, and Hong Kong
members of the Chinese People's Political Consultative
Conference from 200 to 700.\8\ These members either serve in an
ex officio capacity, or are selected by members of their
constituency.
Hong Kong government leaders pointed to the challenge of
meeting citizen demands for universal suffrage, while facing
the
constraints on policymaking imposed by the April 2004 NPCSC
decision. Chief Executive Donald Tsang described the proposals
as ``a significant step forward in our democratic
development,'' according to the transcript of a press
conference posted on the Hong Kong government Web site
following the release of the fifth report.\9\ Tsang also said
that the HKSAR government formulated a package that embodied
``democracy and openness to the highest extent possible,'' but
was still consistent with the Basic Law and the decision of the
NPCSC.\10\ Rafael Hui, Chief Secretary for Administration, who
led the Constitutional Development Task Force, explained that
``although constitutional development in 2007-2008 will not
take us immediately to the ultimate goal of universal suffrage,
it is a substantive and significant step toward that goal.''
\11\
A vigorous public debate on the merits of the Task Force
proposals, and their lack of a timetable for universal
suffrage, culminated in a December 2005 march by tens of
thousands to protest the slow pace of democratization.\12\
According to polls at the time, public support for the
proposals had fallen to just above 45 percent, down from an
initial approval rating of nearly 60 percent following the
proposals' release in October.\13\ Polling also showed that 60
percent of respondents were in favor of introducing a timetable
for universal suffrage.\14\ Twenty-four LegCo members voted
against the Task Force report on December 21, 2005, blocking
its passage.\15\ A last-minute package of adjustments offered
by the government did not meet the lawmakers' demand for a
specific timetable to realize universal suffrage.\16\
Compliance with the International Covenant on Civil and Political
Rights
A March 2006 report by the UN Human Rights Committee, which
is responsible for reviewing compliance with the International
Covenant on Civil and Political Rights (ICCPR), expressed
concern about the absence of universal suffrage in Hong Kong,
as well as with the implementation of the procedure for
interpretation of the Basic Law, a reference, in part, to the
April 2004 NPCSC decision to prohibit universal suffrage in the
2007 chief executive and 2008 Legislative Council
elections.\17\ The report questioned the HKSAR government's
compliance with Article 25 of the ICCPR in both situations.
Article 25 states that every citizen should have the right and
the opportunity, without unreasonable restrictions, to
participate in public affairs, either by himself or through a
directly elected representative, and to express his political
will through universal suffrage.\18\ The report concluded that,
``All necessary measures should be taken whereby the
Legislative Council is elected by universal and equal suffrage.
It should be ensured that all interpretations of the Basic Law,
including on electoral and public affairs issues, are in
compliance with the Covenant.'' \19\
XI. Appendix: Commission Activities in 2005 and 2006
Hearings
September 20, 2006 Human Rights and Rule of Law in China
Jerome A. Cohen,
Professor of Law, New
York University School
of Law
John Kamm, Executive
Director, The Dui Hua
Foundation
Minxin Pei, Director,
China Program, Carnegie
Endowment for
International Peace
Xiao Qiang, Director,
China Internet Project,
University of
California at Berkeley
March 6, 2006 Combating Human Trafficking in China:
Domestic and
International Efforts
The Honorable
Christopher H. Smith,
Vice Chairman,
Committee on
International
Relations, U.S. House
of Representatives
The Honorable John R.
Miller, Ambassador-at-
Large and Director,
Office to Monitor and
Combat Trafficking in
Persons, Department of
State
Roger Plant, Head,
Special Action Program
to Combat Forced Labor,
International Labor
Organization
Wenchi Yu Perkins,
Director, Anti-
Trafficking and Human
Rights Program, Vital
Voices
Abraham Lee, Director
of Public Relations,
Crossing Borders
Roundtables
May 15, 2006 Political Change in China? Public
Participation
and Local Governance
Reforms
Merle Goldman,
Professor Emerita of
Chinese History, Boston
University, and
Executive Committee
Member, Fairbank Center
for East Asian
Research, Harvard
University
Joseph Fewsmith,
Director of East Asian
Studies Program and
Professor of
International Relations
and Political Science,
Boston University
Xie Gang, Former Senior
Program Officer, Law
and Governance
Programs, Asia
Foundation
April 11, 2006 The Lot of Chinese Workers: Do China's
Labor
Laws Work?
Han Dongfang, Director,
China Labour Bulletin
Robin Munro, Director
of Research, China
Labour Bulletin
March 13, 2006 The China-Dalai Lama Dialogue: Prospects for
Progress
Tashi Wangdi,
Representative of His
Holiness the Dalai Lama
to the Americas, Office
of Tibet, New York
Sonam Wangdu, Chairman,
United States Tibet
Committee
Tseten Wangchuk, Senior
Broadcaster, Voice of
America, Tibetan
language service
February 24, 2006 China's Response to Avian Flu: Steps Taken,
Challenges Remaining
Dr. John R. Clifford,
Deputy Administrator
for the Veterinary
Services Program,
Animal and Plant Health
Inspection Services'
Veterinary Services
program, U.S.
Department of
Agriculture
Erika Elvander, Office
of Asia and the
Pacific, Office of
Global Health Affairs,
U.S. Department of
Health and Human
Services
Dr. Bates Gill, Freeman
Chair of China Studies,
Center for Strategic
and International
Studies
November 16, 2005 China's Changing Strategic Concerns: The Im-
pact on Human Rights in
Xinjiang
James A. Millward,
Associate Professor of
History, School of
Foreign Service,
Georgetown University
Daniel Southerland,
Vice President of
Programming/Executive
Editor, Radio Free Asia
S. Frederick Starr,
Chairman of the Central
Asia-Caucasus
Institute, School of
Advanced International
Studies, Johns Hopkins
University
November 3, 2005 Working Conditions in China: Just and Favor-
able?
Judy Gearhart, Program
Director, Social
Accountability
International
Dr. Ruth Rosenbaum,
Executive Director,
Center for Reflection,
Education and Action,
Inc.
Dan Viederman,
Executive Director,
Verite
XII. Endnotes
<dagger>Voted to approve: Senators Hagel, Smith, DeMint, Martinez,
Baucus, Levin, Feinstein, Dorgan; Representatives Leach, Dreier, Wolf,
Pitts, Aderholt, Levin, Kaptur, Brown, and Honda; Deputy Secretary Law,
Under Secretary Dobriansky, Under Secretary Lavin, Assistant Secretary
Hill, and Assistant Secretary Lowenkron.
Voted not to approve: Senator Brownback.
Notes to Section V(a)--Special Focus for 2006: Freedom of
Expression
\1\ Article 35 of China's Constitution states: ``Citizens of the
People's Republic of China enjoy freedom of speech, of the press, of
assembly, of association, of procession and of demonstration.''
\2\ ``Open Letter From `Freezing Point' Writers to National
People's Congress Standing Committee'' [Bingdian zhoukan bufen zuozhe
zhi zhengzhiju changwei de gongkaixin], Boxun (Online), 18 Feb 06. The
signatories included Cui Weiping, a professor at the Beijing Film
Academy; He Weifang, a law professor at Peking University; and Qin Hui,
a history professor at Tsinghua University.
\3\ ``Joint Declaration Concerning the `Freezing Point' Incident''
[Guanyu bingdian shijian de lianhe shengming], Epoch Times (Online), 14
February 06. The signatories included Zhu Houze, former head of the
Central Propaganda Department; Li Rui, former secretary to Mao Zedong;
Li Pu, former Deputy Director of the Xinhua News Agency; Zhang Sizhi,
former Vice Chair of the Beijing Lawyers Association; Hu Jiwei, former
editor-in-chief of the People's Daily; and Zhong Peizhang, former head
of the China Youth Daily Group.
\4\ Liu Yunshan, ``In Accordance With the Requirements of Building
a Socialist and Harmonious Society: Deepen, Broaden, and Innovate
Propaganda Ideological Work'' [Anzhao goujian shehuizhuyi hexie shehui
yaoqiu shenhua tuozhan chuangxin xuanchuan sixiang gongzuo], Seeking
Truth (Online), 1 October 05.
\5\ Liu Yunshan, ``Earnestly Study and Implement the Spirit of the
Fourth Plenary Session of the 16th Chinese Communist Party Central
Committee, Strive to Increase the Party's Ability to Lead Ideological
Work'' [Renzhen xuexi guanche shiliu jie si zhong quanhui jingshen nuli
tigao dang lingdao yishi xingtai gongzuo de nengli], Seeking Truth
(Online), 16 October 04.
\6\ ``Long Xinmin: Forcefully Promote the Glorious Development of
the News Publishing Industry'' [Long Xinmin: dali cujin xinwen chubanye
fanrong fazhan], People's Daily (Online), 31 December 05; ``Censorship
Agency Gets New Director, Calls for `Uniformity' of Political
Ideology,'' CECC China Human Rights and Rule of Law Update, March 2006,
14.
\7\ Liu Yuzhu, ``Actively Responding to the Challenge of the
Internet Era'' [Jiji yingdui wangluo shidai de tiaozhan], Seeking Truth
(Online), 1 January 05.
\8\ Antoaneta Bezlova, ``Big Brother's Book Ban Blues,'' The Hong
Kong Standard (Online), 28 May 05; ``Piracy: A Page Hard to Turn for
Regulators,'' Xinhua (Online), 23 May 05.
\9\ ``Senior Chinese Government, Party, and Business Leaders Deny
Internet Censorship,'' CECC China Human Rights and Rule of Law Update,
April 2006, 10; ``Wen Jiabao: It Is Necessary to Learn How to Handle
the Social Contradictions of the New Age'' [Wen Jiabao: yao xuehui
chuli xinshiqi de shehui maodun], Xinhua (Online), 14 March 06; Zhao
Huanxin, ``Regulation of Internet In Line With World Norms,'' China
Daily (Online), 15 February 06; ``SCIO--China's Regulation of the
Internet Complies With International Standards'' [Guo Xinban: Zhongguo
guanli hulianwang fuhe guoji tongxing zuofa], Xinhua (Online), 15
February 06; ``China Denies Arrest of Any Individual for Releasing
Online Comment,'' Xinhua, reprinted in People's Daily (Online), 15
February 06; ``China Denies Harsh Internet Censorship,'' Xinhua
(Online), 14 February 06; ``CPPCC Delegate Zhou Jinfeng Calls for
Greater Regulation of the Internet'' [Zhengxie weiyuan Zhou Jinfeng:
Hulianwang youxiao guanli xu youpoyouli], Beijing News, reprinted in
People's Daily (Online), 8 March 06. See also ``Liu Binjie: China Is
One of the World's Countries Richest in Freedom of Expression and
Freedom of the Press,'' People's Daily (Online), 2 November 03, which
states: ``Currently China is one of the world's countries richest in
freedom of speech and freedom of publication. Those outside of China
who make claims about China's news, expression, and press are
completely without support.'' See also State Council Information
Office, White Paper on China's Progress in Human Rights in 2004,
People's Daily (Online), 13 April 05, which states: ``Citizens' freedom
of information, of speech and of the press is protected by law.''
\10\ Universal Declaration of Human Rights, adopted and proclaimed
by General Assembly resolution 217A(III) of 10 December 48 [hereinafter
UDHR]. Article 19 of the UDHR states: ``Everyone has the right to
freedom of opinion and expression; this right includes freedom to hold
opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.''
\11\ International Covenant on Civil and Political Rights, adopted
by General Assembly resolution 2200A(XXI) of 16 December 66, entry into
force 23 March 76 [hereinafter ICCPR]. China has signed, but has not
yet ratified, the ICCPR. The Chinese government has committed itself to
ratifying, and thus bringing its laws into conformity with, the ICCPR
and reaffirmed its commitment as recently as April 13, 2006, in its
application for membership in the UN Human Rights Council. China's top
leaders have previously stated on three separate occasions that they
are preparing for ratification of the ICCPR, including in a September
6, 2005, statement by Politburo member and State Councilor Luo Gan at
the 22nd World Congress on Law, in statements by Chinese Premier Wen
Jiabao during his May 2005 Europe tour, and in a January 27, 2004,
speech by Chinese President Hu Jintao before the French National
Assembly.
Article 19 of the ICCPR states: ``1. Everyone shall have the right
to hold opinions without interference. 2. Everyone shall have the right
to freedom of expression; this right shall include freedom to seek,
receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art,
or through any other media of his choice.''
\12\ Before the Chinese Communist Party came to power, Party
officials, and earlier, Karl Marx and Frederick Engels, wrote that
requiring the news media to obtain government permission to publish is
inconsistent with freedom of the press. See, e.g., ``Smash Fascist
Publishing Laws'' [Dasui faxisi de chubanfa], Xinhua Daily, 29 June 46,
reprinted in Comment-cn.net (Online), 20 February 06, which states:
``Modern democratic countries like England and the United States simply
have nothing like publishing laws formulated to gag freedom of the
press. In a publishing law, to adopt requirements that newspapers and
periodicals must not only apply and register, but must also obtain
permission in order to engage in distribution under a so-called special
permit system; only fascist countries have this sort of evil.'' See
also Mao Zedong's Government Work Report to the Seventh National
People's Congress--Discussion of United Government [Mao Zedong zuo qi
da zhengzhi baogao--lun lianhe zhengfu], 24 April 45, reprinted in
People's Daily (Online), 26 April 01, which states: ``We believe that
the following demands are appropriate, and furthermore represent the
very minimum. . . . We demand the elimination of all reactionary laws
that suppress the rights of the people to expression, the press,
assembly, association, ideology, belief and personhood, and allowing
the people to obtain full freedoms and rights.'' See also Karl Marx,
``Debates on Freedom of the Press and Publication of the Proceedings of
the Assembly of the Estates,'' Rheinische Zeitung, Nos. 135, 139, May
1842, which states: ``It is the censored press that has a demoralizing
effect. . . . The government hears only its own voice, it knows that it
hears only its own voice, yet it harbors the illusion that it hears the
voice of the people, and it demands that the people, too, should itself
harbor this illusion. Freedom of the press will certainly not be
achieved by a crowd of official writers being recruited by you from
your ranks.'' See also, ``The Condition of England: II The English
Constitution,'' Frederick Engels, written March 1844, first published
in Vorworts!, No. 80, 5 October 1844, wherein Engels defines freedom of
the press as ``the right that any man may publish his opinion without
hindrance and without the previous permission of the government.''
\13\ Jiao Hongchang and Yao Guojian (professors at China University
of Politics and Law), ``Freedom of Expression,'' in A Study on the
Issues of Ratifying and Implementing of the International Covenant on
Civil and Political Rights [``Gongmin quanli he zhengzhi quanli guoji
gongyue'' pizhun yu shishi wenti yanjiu], ed. Chen Guangzhong (Beijing,
China Legal System Publishing, 2002), 388.
\14\ UN Press Release, UN Special Rapporteur on Freedom of Opinion
and Expression, the Organization for Security and Cooperation in Europe
Representative on Freedom of the Media, and the Organization of
American States Special Rapporteur on Freedom of Expression,
``International Experts Condemn Curbs on Freedom of Expression and
Control Over Media and Journalists,'' 18 December 03. See also UN
Special Rapporteur on the Promotion and Protection of the Right to
Freedom of Opinion and Expression, ``Report on the Mission to the
Republic of Korea,'' E/CN.4/1996/39/Add.1 (1995), 8: ``The Special
Rapporteur considers that any system of prior restraint on freedom of
expression carries with it a heavy presumption of invalidity under
international human rights law. Any institutionalization of such
restraint adds further weight to this presumption.''
\15\ Constitutions of Brazil, art. 5(IX), South Korea, art. 21(2).
See also the constitutions of: Austria, art. 13(2), The Netherlands,
art. 7(1), and Norway, art. 100.
\16\ The First Amendment of the U.S. Constitution provides that
``Congress shall make no law . . . abridging the freedom of speech, or
of the press . . .,'' and the U.S. Supreme Court has held that:
``[L]iberty of the press, historically considered and taken up by the
Federal Constitution, has meant, principally although not exclusively,
immunity from previous restraints or censorship.'' Near v. State of
Minnesota Ex Rel. Olson, 283 U.S. 697 (1931). See also Talley v.
California, 362 U.S. 60 (1960); Lakewood v. Plain Dealer Publishing
Co., 486 U.S. 750 (1988); and Lovell v. City of Griffin, GA., 303 U.S.
444 (1938). Similarly, Article 19(1)(a) of India's Constitution states
that all citizens are guaranteed the right to freedom of speech and
expression, and India's Supreme Court has stated that, ``It follows
that a citizen for propagation of his or her ideas has a right to
publish for circulation his views in periodicals, magazines and
journals or through the electronic media . . . .'' Supreme Court of
India, L.I.C. vs. Professor Manubhai D. Shah, (1992) 3 S.C.C. 637.
\17\ In Sweden, for example, prior restraints on publications are
forbidden by Article 2 of Chapter 1 of the Freedom of the Press Act,
which states in part that ``no publication shall be subject to scrutiny
before printing, nor shall the printing thereof be prohibited.''
Article 5 of Chapter 5 of the Act requires publishers of periodicals to
provide the title and place of printing of the periodical, and its
publishing schedule, but the government may only refuse registration if
the title of the periodical so closely resembles the title of a
periodical for which a publishing license has already been issued that
the two may easily be confused. The United Kingdom's Newspaper Libel
and Registration Act 1881 requires registration, but under the
Companies Act of 1985, registration under the Act is not necessary if
the publication is owned by a company that is incorporated under
corporate law, if the publication is distributed free of charge, and if
it is published at intervals exceeding 26 days.
\18\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, Country Report on Human Rights Practices--2005, Ethiopia, 8
March 06.
\19\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, Country Report on Human Rights Practices--2005, Iran, 8 March
06.
\20\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, Country Report on Human Rights Practices--2005, Jordan, 8
March 06.
\21\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, Country Report on Human Rights Practices--2005, Syria, 8
March 06.
\22\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, Country Report on Human Rights Practices--2005, Uzbekistan, 8
March 06.
\23\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, Country Report on Human Rights Practices--2005, Yemen, 8
March 06.
\24\ Regulations on the Administration of Publishing [Chuban guanli
tiaoli], issued 25 December 01, ch. 2 (Establishment and Administration
of Publishing Units).
\25\ Notice Regarding Prohibiting the Transmission of Harmful
Information and Further Regulating Publishing Order [Guanyu jinzhi
zhuanbo youhai xinxi jinyibu guifan chuban zhixu de tongzhi], issued 5
November 01: ``No one may establish an entity whose primary purpose is
to transmit news information and engage in other news publishing
activities without permission from the press and publication
administration agency.''
\26\ Regulations on the Administration of Publishing, art. 29.
\27\ Guangdong Press and Publication Administration (Online),
``Responsible Person at the General Administration of Press and
Publication Book Office Reports on the Previous Year's National Book
Publishing Administration Work'' [Zongshu tushusi fuzeren tongbao
qunian quanguo tushuchuban guanli gongzuo], 24 February 05 (saying that
authorities should use the opinions provided when screening the
selection of topics to determine the distribution of book numbers,
because this ``reduces the risks relating to orientation'').
\28\ Article 11(2) of the Regulations on the Administration of
Publishing states that publishing work units must have a sponsoring
work unit and a managing work unit recognized by the State Council's
publishing administration agency. The ``sponsoring work unit'' must be
a government agency of a relatively high level, and the publishing work
unit must answer to its sponsoring work unit and managing work unit.
Circular Regarding Issuance of the ``Temporary Provisions on the
Functions of the Sponsoring Work Unit and the Managing Work Unit for
Publishing Work Units'' [Guanyu fabu ``Guanyu chuban danwei de zhuban
danwei he zhuguan danwei zhize de zanxing guiding'' de tongzhi], issued
29 June 93, arts. 5-6.
\29\ Cary Huang, ``Incomes Up Over 10pc In Urban, Rural Areas,''
South China Morning Post (Online), 28 Apr 06.
\30\ Regulations on the Administration of Publishing, art. 11(4).
\31\ ``China Banning Illegal Publications for Overhauling
Publications Market, Official Says,'' Xinhua (Online), 14 May 05.
\32\ Communication No. 780/1997, UN Human Rights Committee, UN Doc.
CCPR/C/68/D/780/1997 (2000): ``In the absence of any explanation
justifying the registration requirements [that prior to publishing and
disseminating a leaflet with a print run of 200, the publisher must
register the publication with the administrative authorities to obtain
index and registration numbers] and the measures taken, it is the view
of the Committee that these cannot be deemed necessary for the
protection of public order (ordre public) or for respect of the rights
or reputations of others. The Committee therefore finds that Article
19, paragraph 2, has been violated in the present case.''
\33\ ``Officials Ban Dozens of Papers, Seize Thousands of Political
Publications, in 2005,'' CECC China Human Rights and Rule of Law
Update, February 2006, 6; Sweep Away Pornography and Strike Down
Illegal Publications Task Force (Online), ``Inner Mongolia Wuhai City
Government Suppression of Unauthorized Political Publications, Firm
All-Round Line of Defense'' [Neimenggu Wuhaishi jinghua chubanwu
shichang si dao fangxian zhu de lao], 11 August 05.
\34\ ``People's Daily Publishes 2005 Censorship Numbers,'' CECC
China Human Rights and Rule of Law Update, May 2006, 4; Sui Xiaofei and
Qu Zhihong, ``China's Publishing Sector's Glorious Development Must
Move From Being a Big Country to a Great Country'' [Woguo chubanye
fanrong fazhan; yao cong chuban daguo zouxiang qiangguo], People's
Daily (Online), 25 March 06.
\35\ Sweep Away Pornography and Strike Down Illegal Publications
Task Force (Online), ``Luliang City, Shandong Province Bans an Illegal
Newspaper [Shandongsheng Luliangshi qudi yi feifa baozhi], 9 August 05.
\36\ Hunan Provincial Government (Online), ``Hunan Province Bans
Three Illegal News Organizations and Two Illegal Periodicals'' [Hunan
sheng qudi san ge feifa xinwen jigou yiji liang jia feifa baokan], 9
September 05.
\37\ Sweep Away Pornography and Strike Down Illegal Publications
Task Force, ``Inner Mongolia Wuhai City Government Suppression of
Unauthorized Political Publications, Firm All-Round Line of Defense.''
\38\ Article 225 of China's Criminal Law makes it a crime for
anyone to commit ``illegal acts in business operation and thus disrupt
market order.''
\39\ ``Writing Their Own Poems and Self-Publishing Them, Two
`Poets' Are Convicted'' [Ziji xieshi ziji chuban ``shiren'' bei
panxing], People's Daily (Online), 17 January 04.
\40\ ``Farming Woman Imprisoned for Illegally Publishing and
Printing Books'' [Yinzhi feifa tushu huo xing chufajin], China Court
Net (Online), 13 September 04.
\41\ ``Printing and Publishing an Illegal Periodical: Media Group's
Chief Representative Sentenced to Three Years' Imprisonment'' [Yinshua
chuban feifa qikan chuanmei jituan shouxi daibiao huo xing 3 nian],
Legal Evening Report, reprinted in Xinhua (Online), 11 August 05.
\42\ ``New Regulations on Newspapers and Magazines Go Into Effect
December 1,'' CECC China Human Rights and Rule of Law Update, January
2006, 10; Provisions on the Administration of Newspaper Publishing
[Baozhi chuban guanli guiding], issued 30 September 05; Provisions on
the Administration of Periodical Publishing [Qikan chuban guanli
guiding], issued 30 September 05.
\43\ ``Guangdong Weekly Reports on How Chinese Authorities Have
`United to Purify the Internet','' CECC China Human Rights and Rule of
Law Update, September 2005, 9; Li Liang and Yu Li, ``14 Government and
Party Agencies Unite to `Purify' the Internet'' [14 buwei lianhe
``jinghua'' hulianwang], Southern Weekend (Online), 18 August 05.
\44\ All commercial Web sites must obtain a government license.
Measures for the Administration of Internet Information Services
[Hulianwang xinxi fuwu guanli banfa], issued 20 September 00. All non-
commercial Web site operators must register. Registration
Administration Measures for Non-Commercial Internet Information
Services [Fei jingyingxing hulianwang xinxi fuwu bei'an guanli banfa],
issued 28 January 05. Because the MII's registration system gives the
government discretion to reject an application based on content (i.e.,
whether the Web site operator intends to post ``news,'' and if so,
whether it is authorized to do so), it is qualitatively different from
registration which all Web site operators must undertake with a domain
registrar, and constitutes a de facto licensing scheme.
\45\ ``MII Reports China's Government Has Met its Goals in Private
Web Site Crackdown,'' CECC Human Rights and Rule of Law Update,
September 2005, 5; ``Ministry of Information Industry: Web Sites That
Fail to Register May Be Shut Down,'' CECC Human Rights and Rule of Law
Update, June 2005, 3. According to China's state-run media, the
crackdown actually began in July 2004, when authorities launched a
``special project'' to shut down pornographic Web sites. In November
2004, after the Party issued a document calling for ``increasing work
on the administration of the Internet,'' the 14 departments ``carried
out a large-scale clean up and reorganization of the Internet, and this
activity has continued until today.'' Li Liang and Yu Li, ``14
Government and Party Agencies Unite to `Purify' the Internet.'' The MII
said in a May 30, 2005, announcement posted on its Web site that its
authority to launch the campaign was based on the Measures for the
Administration of Internet Information Services [Hulianwang xinxi fuwu
guanli banfa], issued 20 September 00; Ministry of Information Industry
(Online), ``Ministry of Information Industry Organizes and Launches
Work on Web Site Collective Registration'' [Xinxi chanyebu zuzhi
kaizhan wangzhan jizhong bei'an gongzuo], 30 May 05. These measures
became effective in 2000, however, and the MII did not explain what
prompted it to issue the Registration Administration Measures for Non-
Commercial Internet Information Services in February 2005 or specify
how the measures should be enforced.
\46\ OpenNet Initiative (Online), ``OpenNet Initiative: Bulletin
011--Analysis of China's Non-Commercial Web Site Registration
Regulation,'' 22 February 06.
\47\ Ibid. The Opennet Initiative comprises researchers at the
Citizen Lab at the Munk Centre for International Studies, University of
Toronto, Berkman Center for Internet & Society at Harvard Law School,
the Advanced Network Research Group at the Cambridge Security
Programme, University of Cambridge, and the Oxford Internet Institute,
Oxford University.
\48\ ``MII to Monitor Online Content, Sanction Web Sites That Fail
to Register,'' CECC China Human Rights and Rule of Law Update, March
2006, 2; ``700,000 Web Sites Already Registered: Three Difficulties in
Spotting Illegal Web Sites'' [Zhongguo yi you 70 wan jia wangzhan
bei'an faxian weifa wangzhan you san nandian], Xinhua (Online), 29
December 05.
\49\ ``Authorities Begin to Sanction, Permanently Shut Down Web
Sites That Failed to Register With the Government,'' CECC China Human
Rights and Rule of Law Update, August 2005, 1; Li Liang and Yu Li, ``14
Government and Party Agencies Unite to Purify the Internet.''
\50\ ``Call for Unregistered Web Sites to Be Shut Down'' [Yaoqiu
guanbi reng wei bei'an de wangzhan], Boxun (Online), 13 December 05.
Xinhua reported that Shanghai registered over 150,000 Web sites by
October, and that ``many'' Web sites were shut down for failing to
register. ``Shanghai Shuts Down 150,000 Illegal Web Sites that Fail to
Register'' [Shanghai wangzhan yu 15 wan feifa wangzhan bei zanting
jieru], Xinhua (Online), 29 December 05. The report also stated that an
audit by the Shanghai Communications Administration (SCA) had found
that the number of Web sites had increased by 22,000 by December 2005,
and a ``significant proportion'' had not undertaken registration. In
response, the SCA contacted the main Internet service providers
(defined as anyone who provides ``public, shared information to
Internet users'') in Shanghai, and demanded that they shut down the
unregistered Web sites. ``MII to Monitor Online Content, Sanction Web
Sites That Fail to Register,'' CECC China Human Rights and Rule of Law
Update, March 2006, 2.
\51\ ``Government Agencies Issue New Regulations Restricting News
Reporting on the Internet,'' CECC China Human Rights and Rule of Law
Update, November 2005, 4; Provisions on the Administration of Internet
News Information Services [Hulianwang xinwen xinxi fuwu guanli
guiding], issued 25 September 05.
\52\ These were: ``Aegean Sea'' [Aiqinhai], ``China Worker Net''
[Zhongguo gongren wang], ``Worker, Farmer, Soldier BBS'' [Gong, nong,
bing BBS], and ``Communist Party People Net'' [Gongchandang ren wang].
``Groups Petition Government to Review Constitutionality of Internet
News Rules,'' CECC China Human Rights and Rule of Law Update, July
2006, 6; ``Petition on Behalf of `the Aegean Sea Web Site Et. Al. to
Repeal Rules on the Administration of Internet News Information
Services' '' [Yaoqiu chedi feichu ``hulianwang xinwen xinxi fuwu guanli
guiding''], Signature Net (Online), 28 March 06.
\53\ The cities included Qingdao, Guangzhou, and Beijing. ``Qingdao
Internet Police: 30 Percent of Web Sites in the City Are Illegal'' [Shi
gonganju wang jian zhidui: quanshi wangzhan sancheng shi heihu ewang
pingan], Qingdao News (Online), 7 July 05; ``Guangzhou Requires Private
Web Sites to Register with Police, Receive Government Permission to
Post News'' [Guangzhou: geren wangzhan xu dao jingfang bei'an kanzai
xinwen xu pizhun], Xinhua (Online), 29 April 05; ``Beijing Requiring
Small and Medium Web Sites to Register with Public Security Office''
[Beijing gonganju yaoqiu bingdu wangzhan ji zhongxiao wangzhan dao
shudi bei'an], Xinhua (Online), 2 June 05. Officials cited provisions
of the Measures for the Administration of Security Protection of
Computer Information Networks with International Interconnections
[Jisuanji xinxi wangluo guoji lianwang anquan baohu guanli banfa],
issued 30 December 97, as authorizing this registration requirement,
but did not explain why the government had chosen to begin enforcing
those provisions at that time, when the Measures were enacted in 1997.
Circular Regarding Centralized Handling of Internet Web Site
Registration [Guanyu jizhong banli hulian wangzhan anquan bei'an de
tongzhi], issued 28 April 05, art. 1.
\54\ Provisions on Internet Security Protection Technology Measures
went into effect on March 1, 2006. ``New Rules to Increase Government
Surveillance of Internet News Go Into Effect,'' CECC China Human Rights
and Rule of Law Update, April 2006, 16; Provisions on Internet Security
Protection Technology Measures [Hulian wang anquan baohu jishu cuoshi
guiding], issued 28 December 05.
\55\ Measures for the Administration of Journalist Accreditation
Cards [Xinwen jizhezheng guanli banfa], issued 10 January 05; Measures
for the Administration of News Bureaus [Baoshejizhezhan guanli banfa],
issued 10 January 05; Interim Provisions for the Administration of
Those Employed as News Reporters and Editors [Guanyu xinwen caibian
renyuan congye guanli de guiding (shixing)], issued 22 March 05;
Interim Implementation Rules for the Administration of Those Employed
as Radio and Television News Reporters and Editors [Guangdianzongju
yinfa ``guangbo yingshi xinwen caipian renyuan congye guanli de shishi
fangan (shixing) de tongzhi''], issued 1 April 05; ``China Begins To
Implement Trial Internet News Editor Qualification Test Areas''
[Zhongguo kaishi shixing wangluo bianji renyuan zige kaoshi shidian],
Xinhua (Online), 22 October 05; ``Internet Editors Can Apply For
Professional Certification'' [Wangluo bianji ke kao zhiye zigezheng],
Beijing News (Online), 13 February 06.
\56\ ``International Experts Condemn Curbs on Freedom of Expression
and Control Over Media and Journalists,'' UN Press Release, UN Special
Rapporteur on Freedom of Opinion and Expression, the Organization for
Security and Cooperation in Europe Representative on Freedom of the
Media, and the Organization of American States Special Rapporteur on
Freedom of Expression, 18 December 03, stating, inter alia:
``Individual journalists should not be required to be licensed or to
register. Accreditation schemes for journalists are appropriate only
where necessary to provide them with privileged access to certain
places and/or events; such schemes should be overseen by an independent
body and accreditation decisions should be taken pursuant to a fair and
transparent process, based on clear and non discriminatory criteria
published in advance.''
\57\ Measures for the Administration of Journalist Accreditation
Cards, arts. 7, 13.
\58\ Interim Provisions for the Administration of Those Employed as
News Reporters and Editors.
\59\ Lang is a Taiwan-born professor of finance at the Chinese
University of Hong Kong. According to one press account, ``Lang's
tirades against the sale of state assets struck a nerve in a country
increasingly concerned about the corruption involved in the rapid
accumulation of wealth by some entrepreneurs in recent years.'' ``SARFT
Uses Accreditation Authority to Silence Critical Television Host,''
CECC China Human Rights and Rule of Law Update, April 2006, 15;
``Should We Cautiously Execute Corrupt High Officials? '' [Gai bu gai
shen sha ju tan gaoguan], Defense Lawyer Net (Online), 17 May 06;
Richard McGregor, ``Chat Show Economist Forced Off China TV,''
Financial Times (Online), 14 March 06.
\60\ UDHR, art. 29; ICCPR, art. 19(3).
\61\ Regulations on the Administration of Publishing, art. 26.
\62\ Provisions on the Administration of Internet News Information
Services, art. 19.
\63\ Measures for the Administration of Security Protection of
Computer Information Networks with International Interconnections, art.
5.
\64\ PRC Criminal Law, enacted 1 July 79, amended 14 March 97, 25
December 99, 31 August 01, 29 December 01, 28 December 02, 28 February
05, 29 June 06, art. 105.
\65\ See, e.g., Provisions on the Protection of Secrets in News
Publishing: [Xinwen chuban baomi guiding], art. 14: ``Anyone wishing to
provide a foreign news publishing organization a report or publication
with contents that relate to the nation's government, economy,
diplomacy, technology or military shall first apply to this agency or
their supervising organ or unit for examination and approval.'' See
also PRC Law on the Protection of State Secrets [Zhonghua renmin
gongheguo baoshou guojia mimi fa], issued 5 September 88, art. 8;
Measures for the Implementation of the Law on the Protection of State
Secrets [Zhonghua renmin gongheguo baoshou guojia mimi fa shishi
banfa], issued 25 April 20, art. 4; and Article 1 of the Explanation of
Certain Issues Regarding the Specific Laws to be Used in Adjudicating
Cases of Stealing or Spying to Obtain, or Illegally Supplying, State
Secrets or Intelligence for Foreigners [Guanyu shenli wei jingwai
qiequ, citan, shoumai, feifa tigong guojia mimi, qingbao anjian juti
yingyong falu ruogan wenti de jieshi], issued 20 November 00, which
states: ``The term `intelligence' in Article 111 of the Criminal Law
refers to items which involve the security and interests of the nation,
but which are not public or which, according to relevant regulations,
should not be made public.'' See also ``Secrets Protection Knowledge''
[Baomi zhishi], posted on the Administration for the Protection of
State Secrets of Guangdong province Web site, which states: ``
`Relating to the security and interests of the nation,' means that, if
a secret matter were known by people who do not currently know it, it
would result in various kinds of harm to the security and interests of
the nation.'' In September 2003, the Guangzhou Daily published a
warning to readers that everyone from Internet users to garbage
collectors can run afoul of China's state secrets legislation. ``If a
Nanny Can Disclose State Secrets, Then Average Citizens Should Raise
Their Awareness of Preserving Secrets'' [Baomu jingran xielou guojia
jimi baixing yexu tigao baomi yishi], People's Daily (Online), 5
September 03.
\66\ The Supreme People's Court has extended liability for
disclosing state secrets negligently. Explanation of Certain Issues
Regarding the Specific Laws to be Used in Adjudicating Cases of
Stealing or Spying to Obtain, or Illegally Supplying, State Secrets or
Intelligence for Foreigners, art. 5, which states: ``Any person who
knows, or should know, that an item which is not marked secret relates
to the security and interests of the nation and steals, acquires
through spying or buys it for, or illegally supplies it to, a
foreigner, shall be prosecuted and punished under the provisions of
Article 111 of the Criminal Law for stealing, acquiring through spying
or buying state secrets for, or illegally supplying state secrets to, a
foreigner.''
\67\ Such a standard exists in many representative democracies.
See, e.g., Supreme Court of India, Secretary, Ministry of Information
and Broadcasting vs. Cricket Association of Bengal and Others, (1995) 2
S.C.C. 161 (stating ``the burden is on the authority to justify the
restrictions [on freedom of expression]''). The Chinese government
appears to have begun to recognize the importance of such a
requirement. Compare the statutory language discussed above with that
of Article 291(a), which was added to China's Criminal Law in December
2001, which makes dissemination of ``terrorist information'' a crime,
but which requires both that the accused knew the information was
fabricated and that the dissemination actually resulted in a
disturbance of public order. Third Amendment to the Criminal Law of the
People's Republic of China [Zhonghua renmin gonghe guo xingfa xiuzheng
an (san)], issued 29 December 01.
\68\ ``It is Possible to Accidentally Disclose State Secrets Over
Your Cell Phone'' [Shouji bu kai ye neng xie ``tianji'' wuyi xiemi
keneng panxing], Xinhua (Online), 1 May 05.
\69\ The Chinese government formed an interagency group called the
National Sweep Away Pornography and Strike Down Illegal Publications
Task Force (sometimes translated as the ``Office for Eliminating
Pornography and Illegal Publications,'' or the ``Office of the National
Anti-Piracy and Pornography Working Committee''). It is responsible for
investigating and prosecuting illegal publishing, and has 17 members,
including the Communist Party Central Propaganda Department, Political
and Legislative Affairs Commission under the Central Committee of the
Communist Party of China, Ministry of Information Industry, Ministry of
Culture, SARFT, GAPP, and the People's Liberation Army General
Political Department's Propaganda Department.
\70\ ``2004 News Publishing Industry Development Report'' [2004
nian xinwen chubanye fazhan baogao], People's Daily (Online), 1
February 05.
\71\ According to the editor of a major Chinese magazine noted for
publishing critical articles without being shut down, ``We go up to the
line--we might even push it. But we never cross it.'' David Barboza,
``Pushing (and Toeing) the Line in China,'' New York Times (Online), 18
April 05.
\72\ ``Also, defense counsel takes the standpoint that Huang Qi has
freedom of speech, and may freely express his opinion on a given
matter. This court believes that freedom of speech is a political right
of the citizens of China, but when exercising this right, no one may
harm the interests or security of the nation, and may not use rumor
mongering or defamation to incite subversion of the national regime.
Therefore, the court takes note that the defense counsel takes a
standpoint that only stresses the right of the accused, and ignores his
duties.'' Sichuan, Chengdu Intermediate People's Court Criminal
Judgment (2001), Chengdu Criminal First Instance Document No. 49
[Sichuan sheng Chengdu shi zhongji renmin fayuan xingshi panjue shu
(2001) cheng xing chu zi di 49 hao], issued 22 February 03.
\73\ Shanghai No. 2 Intermediate People's Court Criminal Judgment
(2003), Shanghai Second Intermediate Document No. 136 [Shanghai shi di
er zhongji renmin fayuan xingshi panjue shu (2003) hu er zhong xing chu
zi di 136 hao], issued 5 November 03.
\74\ PRC Law on the Protection of State Secrets [Zhonghua renmin
gongheguo baoshou guojia mimi fa], issued 5 September 88, art. 11. In
addition, Chinese regulations require all news outlets to have
personnel and procedures in place to determine whether information
intended for public reporting contains state secrets. See, e.g., Notice
Regarding Preventing State Secrets from Being Divulged in Publications
[Guanyu fangzhi zai chubanwu zhong xielu guojia mimi de tongzhi],
issued 12 March 94; Provisions on the Protection of Secrets in News
Publishing [Xinwen chuban baomi guiding], issued 13 June 92.
\75\ Shanghai High People's Court Criminal Judgment (2003),
Shanghai High Document No. 181 [Shanghai shi gaoji renmin fayuan
xingshi panjue shu (2003) hu gao xing chu zi di 181 hao], issued 23
August 03.
\76\ CECC Staff Testing.
\77\ After holding Zhao in custody for almost two years, a Chinese
court acquitted him of disclosing state secrets on August 25, 2006, but
sentenced him to three years' imprisonment on an unrelated fraud
charge, fined him 2,000 yuan (US$250), and ordered him to pay back
20,000 yuan (US$2,500) that it ruled he had acquired through fraud.
``China Gives Times Researcher 3 Years,'' New York Times (Online), 25
August 06; ``Journalist Imprisoned For Fraud,'' China Daily (Online),
26 August 06.
\78\ ``GAPP: Indoctrination, Prior Restraints, Political Censorship
`Highlights' of '05,'' CECC China Human Rights and Rule of Law Update,
March 2006, 16; ``Looking Back on 2005: Focusing on Ten Bright Spots on
the Press Battle Lines'' [Hui mou 2005: xinwen chuban zhanxian shi da
liang dian zhumu], General Administration for Press and Publication
(Online), 4 January 06.
\79\ ``The `Three Studies Education' Results Are Clear: News
Personnel Develop in a Healthy Way'' [``San xiang xuexi jiaoyu''
chengguo xianzhu xinwen duiwu jiankang fazhan], Xinhua (Online), 1 May
06.
\80\ ``News Industry Clarifies the Specific Ideology Underlying
Propaganda and the `Eight Glories and Eight Shames' '' [Xinwenjie
mingque xuanchuan he jianxing ``ba rong ba chi'' juti silu], Xinhua
(Online), 12 April 06.
\81\ Ibid.
\82\ ``Internet Operators in China Agree to Support Hu Jintao,
Marxism, and the Party,'' CECC China Human Rights and Rule of Law
Update, May 2006, 9; Philip P. Pan, ``The Click That Broke a
Government's Grip,'' Washington Post, 19 February 06, A1.
\83\ CECC Staff Interview.
\84\ ``Chinese Authorities Crack Down on Progressive Newspaper
Publisher,'' CECC China Human Rights and Rule of Law Update, February
2006, 13.
\85\ ``Pressure on the Press,'' Newsweek (International Edition),
reprinted on MSNBC (Online), 27 June 05.
\86\ Extra-territorial (yidi) reporting refers to the practice in
which a newspaper from one area publishes critical investigative
reports about another area, about matters that officials in the
investigated area are preventing their local news media from reporting.
For additional background, see ``Chinese Government Increases
Censorship by Restricting `Extra-Territorial' Reporting,'' CECC China
Human Rights and Rule of Law Update, July 2005, 2.
\87\ ``Beijing News Reporters Walk Out Over Top Editor's Removal,''
Reuters, reprinted in China Post (Online), 31 December 05.
\88\ Decision Regarding the Handling of the China Youth Daily
``Freezing Point Weekly'' Mistake in Publishing Modernism and History
Text Books [Zhongguo gongqingtuan zhongyang xuanchuanbu ``guanyu dui
zhongguo qingnianbao `bingdian zhoukan' cuowu kanfa xiandaihua yu lishi
jiaokeshu de chuli jueding''], issued 24 January 06.
\89\ ``Yuan Weishi Welcomes Freezing Point's Resumption of
Publication, Hopes He Can Respond to Criticism'' [Yuan Weishi huanying
bingdian fukan xi neng huiying piping], Voice of America (Online), 17
February 06.
\90\ Decision of the Communist Party Youth League Publishing House
Communist Party Committee Regarding Handling the Rectification and
Expeditious Relaunch of the ``Freezing Point'' Weekly [Zhongguo
qingnian baoshe dangzu guanyu dui bingdian zhoukan zhengdun he zhengqu
zaori fukan de chuli jueding], issued 16 February 06.
The Freezing Point incident also exposed the role of the CPD's
Critical Review Committee, which operates under the Central Propaganda
Department's News Office, and comprises about 10 officials. The
Committee issues on average 800 reports each year, about half of which
are negative, that bypass standard reporting channels, and can go
directly to senior Party officials or the propaganda offices at
provincial and local news media organizations. When the Critical Review
Committee celebrated its 10th anniversary in 2004, two senior Central
Propaganda Department officials issued a congratulatory statement on
behalf of Politburo member Li Changchun and Liu Yunshan, a Communist
Party Central Committee member who also serves as Secretary of the
Party Secretariat and Director of the Central Propaganda Department. Ji
Bingxuan, one of the officials, emphasized that, ``Establishing a news
critique system was an innovation in news supervision in this new
era.'' ``Calls Within the Party To Relax Media Restrictions, The News
Reading and Criticizing Group Is Exposed'' [Zhonggong dangnei huyu
xinwen songbang, xinwen yupingzu baoguang], Asia Weekly (Online), 4
March 06. In their open letter regarding the Freezing Point incident,
the 13 former senior government, Party, and news media officials
singled out the Critical Review Committee for criticism, saying: ``They
have not only engaged in stigmatizing and criticizing, but have even
gone so far as to manufacture all sorts of ``blacklists,'' carry out
secret investigations, waiting for an opportunity to pounce, sometimes
carrying out the process of an ``execution'' with instruction on a
single phone call, leaving the target without any right to plead their
case. Their methods are incredibly crude, and are not subject to any
legal restraints whatsoever.'' ``Joint Declaration Concerning the
`Freezing Point' Incident'' [Guanyu bingdian shijian de lianhe
shengming], Epoch Times (Online), 14 February 06.
\91\ Charles Hutzler, ``China Finds New Ways To Restrict Access to
the Internet,'' Wall Street Journal, 1 September 04; Xiao Qiang, ``The
Words You Never See in Chinese Cyberspace,'' China Digital Times
(Online), 30 August 04.
\92\ The Internet in China--A Tool of Freedom or Suppression?,
Hearing of the Subcommittee on Africa, Global Human Rights, and
International Operations, Committee on International Relations, U.S.
House of Representatives, 15 February 06, Written Statement Submitted
by Elliot Schrage, Vice President, Global Communications and Public
Affairs, Google, Inc.
\93\ Ibid.
\94\ ``Internet Operators in China Agree to Support Hu Jintao,
Marxism, and the Party,'' CECC China Human Rights and Rule of Law
Update, May 2006, 9; ``14 Web Sites Sign Letter Jointly Calling on
Internet to Be Operated in a Civilized Manner'' [Beijing 14 jia
wangzhan lianhe xiang hulianwangjie fachu wenming ban wang changyishu],
People's Daily (Online), 10 April 06. The former phrase refers to
President Hu Jintao's ``Eight Glories and Eight Shames'' propaganda
slogan, and the latter phrase means, according to Liu Yunshan, head of
the Central Propaganda Department, to: ``carry forward a nationalist
spirit whose core is patriotism . . . carry forward collectivist and
socialist ideology and allow it to become the main stream of modern
times and the prevailing fashion of the entire society . . . require
the coordination of the lines of propaganda of ideological warfare . .
. and pluck the people's heart strings to bring about their sympathetic
response. . . .'' Liu Yunshan, ``Earnestly Study and Implement the
Spirit of the Fourth Plenary Session of the 16th Chinese Communist
Party Central Committee; Strive to Increase the Party's Ability to Lead
Ideological Work.''
\95\ ``GAPP Head Long Xinmin: Reform Does Not Mean Fragmentation''
[Xinwen chuban zongshu shuzhang Long Xinmin: gaige budengyu jituanhua],
People's Daily (Online), 6 April 06.
\96\ Circular on ``Self Discipline Agreement for Chinese Radio and
Television Announcers and Hosts'' [Guangdianzongju guanyu pizhuan
zhongguo guangbo dianshi xiehui ``Zhongguo guangbo dianshi boyinyuan
zhuchiren zilu gongyue'' de tongzhi], issued 10 September 05.
\97\ As noted above, the UDHR and ICCPR protect the right of
citizens to impart information and ideas of all kinds. For examples of
how this right is protected by other jurisdictions, see, e.g.,
Baumgartner v. U.S., 322 U.S. 665 (1944): ``One of the prerogatives of
American citizenship is the right to criticize public men and
measures--and that means not only informed and responsible criticism
but the freedom to speak foolishly and without moderation.'' See also
Mills v. Alabama, 384 U.S. 214 (1966): ``Thus the press serves and was
designed to serve as a powerful antidote to any abuses of power by
governmental officials and as a constitutionally chosen means for
keeping officials elected by the people responsible to all the people
whom they were selected to serve. Suppression of the right of the press
to praise or criticize governmental agents and to clamor and contend
for or against change . . . muzzles one of the very agencies the
Framers of our Constitution thoughtfully and deliberately selected to
improve our society and keep it free.'' See also European Court of
Human Rights, Ekin Association v. France--39288/98 [2001] ECHR 473 (17
July 2001): ``Freedom of expression constitutes one of the essential
foundations of a democratic society. Subject to paragraph 2 of Article
10, it is applicable not only to `information' or `ideas' that are
favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb. Such are
the demands of that pluralism, tolerance and broadmindedness without
which there is no `democratic society.' '' See also European Court of
Human Rights, Castells v. Spain--11798/85 [1992] ECHR 48 (23 April
1992): ``Freedom of the press affords the public one of the best means
of discovering and forming an opinion of the ideas and attitudes of
their political leaders. In particular, it gives politicians the
opportunity to reflect and comment on the preoccupations of public
opinion; it thus enables everyone to participate in the free political
debate which is at the very core of the concept of a `democratic
society.' '' See also Supreme Court of India, Secretary, Ministry of
Information and Broadcasting vs. Cricket Association of Bengal and
Others, (1995) 2 S.C.C. 161: ``In a democracy, people govern themselves
and they cannot govern themselves properly unless they are aware--aware
of social, political, economic and other issues confronting them. To
enable them to make a proper judgment on those issues, they must have
the benefit of a range of opinions on those issues. Right to receive
and impart information is implicit in free speech. This plurality of
opinions, views and ideas is indispensable for enabling them to make an
informed judgment on those issues to know what is their true interest,
to make them responsible citizens, to safeguard their rights as also
the interests of society and State.'' See also Supreme Court of India,
L.I.C. vs. Professor Manubhai D. Shah, (1992) 3 S.C.C. 637: ``Merely
because it is critical of the State Government is no reason to deny
selection and exhibition of the film.''
\98\ ``Inter-Agency Task Force Cracks Down on Political
Publications,'' CECC China Human Rights and Rule of Law Update, April
2006, 13. Ji Yanan, ``Increase the Force of the `Sweep Away Pornography
and Strike Down Illegal Publications' Campaign'' [Jiada
``saohuangdafei'' lidu], Guangming Daily (Online), 23 Feb 06.
\99\ ``Senior Censorship Agency Official Says Communist Party Must
Control News Media,'' CECC China Human Rights and Rule of Law Update,
January 2006, 16; ``Shi Feng: Create a Public Opinion Environment
Conducive to a Harmonious Society'' [Shi feng: wei hexie shehui jianshe
yingzao lianghao yulun huanjing], People's Daily (Online), 15 October
05.
\100\ Ji Yanan, ``Increase the Force of the `Sweep Away Pornography
and Strike Down Illegal Publications'' [Jiada ``saohuangdafei'' lidu],
Guangming Daily (Online), 23 February 06.
\101\ Radio, Film, and Television Propaganda Priorities for 2005
[2005 nian guangbo yingshi xuanchuan gongzuo yaodian], issued 22
February 05.
\102\ Circular Regarding the Printing and Promulgation of the
``Measures on the Recording of Important Topics of Books, Periodicals,
Audio/Visual Productions and Electronic Publications'' [Guanyu yinfa
``tushu, qikan, yinxiang zhipin, dianzi chubanwu zhongda xuanti beian
banfa'' de tongzhi], issued 10 October 97.
\103\ Sui Xiaofei and Qu Zhihong, ``China's Publishing Sector's
Glorious Development Must Move From Being a Big Country to a Great
Country.''
\104\ Regulations on the Administration of Publishing, art. 3;
Circular Regarding Further Strengthening the Administration of
Periodicals Relating to Current Affairs and Politics, General
Lifestyle, Information Tabloids, and Scientific Theory [Guanyu jinyibu
jiaqiang shishi zhengzhi lei, zonghe wenhua shenghuo lei, xinxi wenzhai
lei hei xueshu lilun lei qikan guanli de tongzhi], issued 28 June 00.
\105\ Circular Regarding Further Strengthening the Administration
of Periodicals Relating to Current Affairs and Politics, General
Lifestyle, Information Tabloids, and Scientific Theory.
\106\ Circular Regarding Further Strengthening the Administration
of Selection of Articles for Newspapers and Periodicals [Xinwen chuban
zongshu guanyu jiaqiang baokan zhaizhuan gaojian guanli de tongzhi],
issued 25 February 05. See also Circular Regarding Certain Problems
with Recent Publishing of Periodicals [Guanyu muqian qikan chuban
youguan wenti de tongzhi], issued 16 October 98.
\107\ Provisions Regarding Strengthening the Administration of
Publications Describing Major Party and National Leaders [Guanyu dui
miaoxie dang he guojia zhuyao lingdaoren de chubanwu jiaqiang guanli de
guiding], issued 5 May 90, art. 2.
\108\ Circular Regarding the Printing and Promulgation of the
``Measures on the Recording of Important Topics of Books, Periodicals,
Audio/Visual Productions and Electronic Publications'' [Guanyu yinfa
``tushu, qikan, yinxiang zhipin, dianzi chubanwu zhongda xuanti beian
banfa'' de tongzhi], issued 10 October 97. Circular Regarding
Strengthening and Improving the Work of Recording Important Topics
[Guanyu jiaqiang he gaijin zhongda xuanti beian gongzuo de tongzhi],
issued 9 March 99. Examples of ``important topic selections'' include
the work and life of Party and the government leaders, the history of
the PRC, the history of the People's Liberation Army, and foreign
relations, and religion. Circular Regarding Further Strengthening the
Administration of Relevant Publications [Guanyu jin yi bu jiaqiang dui
youguan chubanwu guanli de tongzhi], issued 24 August 98.
\109\ Circular Regarding Further Strengthening the Administration
of Relevant Publications, art. 1; Provisions Regarding Strengthening
the Administration of Publications Describing Major Party and National
Leaders, art. 3; Urgent Circular Regarding Reaffirming the
Strengthening of the Administration of Books Reflecting the Work and
Life Circumstances of the Major Leaders of the Party and the Nation
[Guanyu chongshen dui chuban fanying he guojia zhuyao lingdaoren
gongzuo he shenghuo qingkuang tushu jiaqiang guanli de jinji tongzhi],
issued 24 January 97, art. 3.
\110\ Guangdong Press and Publication Administration (Online),
``Responsible Person at the General Administration of Press and
Publication Book Office Reports on the Previous Year's National Book
Publishing Administration Work'' [Zongshu tushusi fuzeren tongbao
qunian quanguo tushuchuban guanli gongzuo], 24 February 05.
\111\ Provisions on the Administration of Newspaper Publishing;
Provisions on the Administration of Periodical Publishing.
\112\ Circular Regarding Restructuring Inspection and Examination
Measures for Important Revolution and Historical Material Movie and
Television Projects and Completed Films [Guanyu tiaozheng zhongda
geming he lishi ticai dianying, dianshiju lixiang ji wancheng pian
shencha banfa de tongzhi], issued 28 July 03.
\113\ Circular Regarding Publication of the ``Interim Measures on
the Administration of the Recording and Notification of Television
Program Film Production'' [Guangdianzongju guanyu yinfa ``dianshiju
paishe zhizuo bei'an gongshi guanli zanxing banfa'' de tongzhi], issued
6 April 06.
\114\ Provisions on the Administration of Television Dramas
[Dianshiju guanli guiding], issued 15 June 00, art. 39.
\115\ Ding Yang, `` `Sweep Away Pornography and Strike Down Illegal
Publications' Adopts Measures to Escort the Ship of the Two Holidays
and Two Meetings'' [``Sahuang dafei'' caiqu cuoshi huhang liangjie
lianghui], Guangming Daily (Online), 19 January 06; ``Authorities
Increase News and Political Censorship in Run-Up to NPC, CPPCC
Sessions,'' CECC China Human Rights and Rule of Law Update, May 2006,
13.
\116\ Circular Regarding Rectifying the Publishing Market and
Cultural Entertainment Market to Create a Good Atmosphere for New
Year's, Spring Festival, and the ``Two Meetings'' [Guanyu jinghua
chubanwu shichang ji wenhua yule shichang wei yuandan, chunjie he
quanguo ``liang hui'' zhaokai chuangzao lianghao wenhua huanjing de
tongzhi], issued 4 January 06.
\117\ Yuan Haizhen, ``Increase Supervision of Publications Market,
Create a Good Atmosphere for the Two Meetings'' [Jiaqiang chubanwu
shichang jianguan wei ``liang hui'' yingzao lianghao huanjing], Henan
Daily, reprinted in Xinhua (Online) 23 February 06.
\118\ ``Court Rejects Writer Zhang Lin's Appeal of Conviction For
Subversive Writings,'' CECC Human Rights and Rule of Law Update,
November, 2005, 3.
\119\ ``Authorities Arrest and Imprison Writers for Online Essays
Criticizing Government,'' CECC China Human Rights and Rule of Law
Update, September 2006, 2-3; ``Journalist Arrested For Posting Reports
About Crackdown On Christians,'' Reporters Without Borders (Online), 11
August 06.
\120\ ``Groups Petition Government to Review Constitutionality Of
Internet News Rules,'' CECC China Human Rights and Rule of Law Update,
July 2006, 6.
\121\ ``Two Mainland Web Portals Blocked,'' South China Morning
Post (Online), 20 June 06.
\122\ ``Government Shuts Down Web Site; Chinese Scholars and
Activists Respond,'' CECC Human Rights and Rule of Law Update,
September 2006, 12-13.
\123\ ``Authorities Close Polls Website for Third Time in Three
Months,'' Reporters Without Borders (Online), 3 August 06.
\124\ UDHR, art. 18 (guaranteeing ``freedom of thought, conscience
and religion''), ICCPR, art. 22, and ICCPR General Comment No. 22: The
Right to Freedom of Thought, Conscience and Religion (Art. 18), 30 July
93, item 4 of which defines freedom of religion and belief to include
``the freedom to prepare and distribute religious texts or
publications.''
\125\ State Council Information Office, White Paper on Freedom of
Religious Belief in China [Zhongguo de zongjiao xinyang ziyou
zhuangkuang], October 97.
\126\ Regulations on the Administration of Printing Enterprises
[Yinshuaye guanli tiaoli], issued 2 August 01, art. 31.
\127\ Ibid, art. 18.
\128\ Ibid.
\129\ See, e.g., Provisions on the Administration of Newspaper
Publication, art. 27 (requiring all newspapers to strictly abide by
``relevant regulations'' when publishing or reprinting articles
relating to ethnic religious affairs); Circular Regarding the Printing
and Promulgation of the ``Measures on the Recording of Important Topics
of Books, Periodicals, Audio/Visual Productions and Electronic
Publications,'' art. 3(v) (requiring that anyone seeking to publish on
``topics which deal with ethnic issues or religious issues'' must
register their intent to do so in advance with government authorities).
\130\ Sui Xiaofei and Qu Zhihong, ``China's Publishing Sector's
Glorious Development Must Move From Being a Big Country to a Great
Country,'' People's Daily (Online), 25 March 06.
\131\ ``Xinjiang Cracks Down on `Illegal' Religious Publications,''
CECC China Human Rights and Rule of Law Update, April 2006, 9; Wang
Lei, ``Xinjiang Uighur Autonomous Region Destroys 29 Tons of Illegal
Books'' [Xinjiang weiwu'er zizhiqu xiaohui 29 dun feifa tushu],
Tianshan Net (Online), 6 March 06.
\132\ ``Tibet `Sweep Away Pornography and Strike Down Illegal
Publications' Campaign Has Clear Results'' [Xizang ``saohuang dafei''
gongzuo chengxiao xianzhu], Xinhua (Online), 18 January 06.
\133\ ``Church Leaders Arrested, Laypeople Forced to Join Patriotic
Group,'' Union of Catholic Asian News (Online), 24 January 00.
\134\ ``Suppression of Wenzhou Underground Church Continues During
Holy Week and Easter,'' Union of Catholic Asian News (Online), 4 May
00.
\135\ ``Two Underground Priests Arrested,'' Asia News (Online), 28
October 05. UN Commission on Human Rights, Report of the Special
Rapporteur on Religious Intolerance, 13 February 01.
\136\ ``Beijing Court Jails House Church Minister for Giving Away
Bibles,'' CECC China Human Rights and Rule of Law Update, December
2005, 1.
\137\ ``Chinese Authorities Release House Church Filmmaker After
140 Days in Custody,'' CECC Human Rights and Rule of Law Update,
September 2006, 9.
\138\ ``Court Imprisons One Tibetan Writer, Party Officials Shut
Down Another's Blogs,'' CECC Human Rights and Rule of Law Update,
September 2006, 9.
\139\ ``Journalist Arrested for Posting Reports About Crackdown on
Christians,'' Reporters Without Borders (Online), 11 August 06;
``Urgent Announcement Regarding Independent Chinese Pen Center Member
Zan Aizong's Administrative Detention By Hangzhou PSB'' [Duli zhongwen
bihui jiu huiyuan zan aizong bei Hangzhou gonganju xingzheng kouliu de
jiji shengming], Independent Chinese PEN Center (Online), 11 August 06.
\140\ UDHR, art. 29; ICCPR art. 19(3).
\141\ ``State Council Appoints Long Xinmin as New Head of the
General Administration of Press and Publication'' [Guowuyuan renmian:
Long Xinmin wei xinwen chuban zongshu shuzhang tu], Xinhua (Online), 27
December 05.
\142\ Liu Yunshan, ``In Accordance With the Requirements of
Building a Socialist and Harmonious Society: Deepen, Broaden, and
Innovate Propaganda Ideological Work'' [Anzhao goujian shehuizhuyi
hexie shehui yaoqiu shenhua tuozhan chuangxin xuanchuan sixiang
gongzuo], Seeking Truth (Online), 1 October 05.
\143\ ``Shi Feng: Create a Public Opinion Environment Conducive to
a Harmonious Society'' [Shi feng: wei hexie shehui jianshe yingzao
lianghao yulun huanjing], People's Daily (Online), 15 October 05.
\144\ Chi Gangyi, Yu Xianting, and Li Hui, ``Comprehensively
Strengthen the Establishment of University Networks and Firmly Grasp
the Initiative in Online Political Ideological Education'' [Quanmian
jiaqiang gaoxiao xiaoyuanwang jianshe laolao zhangwo wangshang sixiang
zhengzhi jiaoyu zhudongquan], Guangming Daily (Online), 12 September
05.
\145\ See, e.g., ``Strengthen Public Sentiment Work, Safeguard the
Security of the Ruling Party's Governance'' [Jiaqiang yuqing xinxi
gongzuo, weihu dangde zhizheng anquan], Guangming Daily, 26 May 05, B4
(calling on Party cadres to ``strengthen the supervision and monitoring
of the Internet, cellular phones, and other new forms of media'');
``Party Propaganda Chief Calls for Increased Control Over the Media,''
CECC China Human Rights and Rule of Law Update, December 2005, 14; Liu
Yunshan, ``In Accordance With the Requirements of Building a Socialist
and Harmonious Society: Deepen, Broaden, and Innovate Propaganda
Ideological Work'' (noting that, while it remains necessary to continue
to conduct ``ideological education'' of workers, farmers,
intellectuals, soldiers, and cadres, Party propagandists must also
``expand the targets of propaganda ideology work'' to new groups).
\146\ Liu Yunshan, ``In Accordance With the Requirements of
Building a Socialist and Harmonious Society: Deepen, Broaden, and
Innovate Propaganda Ideological Work.''
\147\ Ibid.
\148\ Shi Fengyan, Xu Ying, and Zhou Honglei, ``College Student
Groups: An Effective Vehicle for Ideological and Political Education''
[Daxuesheng shetuan: sixiang zhengzhi jiaoyu de youxiao zaiti], Seeking
Truth (Online), 1 December 05.
\149\ Chi Gangyi, Yu Xianting, and Li Hui, ``Firmly Grasp the
Initiative in Online Political Ideological Education.'' For an example
of how this program was implemented, see Deng Wei, ``Tsinghua
University Sets Up `Red Web Site' '' [Daxuesheng hongse wangzhan:
chuanbo makesizhuyi de zhongyao zhendi], Seeking Truth (Online), 16
February 06.
\150\ ``As Chinese Students Go Online, Little Sister Is Watching,''
New York Times (Online), 9 May 06.
\151\ Professional Ethical Standards for China Radio and Television
Announcers and Hosts [Zhongguo guangbo dianshi boyinyuan zhuchiren
zhiye daode zhunze], issued 2 December 04; Professional Ethical
Standards for China Radio and Television Editors and Reporters
[Zhongguo guangbo dianshi bianji jizhe zhiye daode zhunze], issued 2
December 04.
\152\ Notice Regarding Strengthening the Supervision of Radio and
Television Discussion Programs [Guanyu jiaqiang guangbo dianshi
tanhualei jiemu guanlide tongzhi], issued 10 December 04.
\153\ Interim Provisions on the Administration of Those Employed as
News Reporters and Editors; ``Regulating News Reporting and Editorial
Personnel: Implementing a Real Name System When Publishing Articles''
[Xinwen caibian renyuan congye guifan: baodao kanfa shi yao shishi
shimingzhi], China News Net, reprinted in Xinhua (Online), 22 March 05;
``Xinhua Editorial: The Importance of Regulating the Behavior of Those
Engaged in News Reporting And Editing'' [Xinhua shiping: guifan xinwen
caibian renyuan xingweide zhongyao zhidu], Xinhua (Online), 22 March
05.
\154\ ``Government and Communist Party Move To Increase Regulation
of Reporters and Editors,'' CECC China Human Rights and Rule of Law
Update, June 2005, 7; Interim Implementation Rules for the
Administration of Those Employed as Radio and Television News Reporters
and Editors.
\155\ State Administration of Radio, Film, and Television, Circular
Regarding Authorizing the China Radio and Television Association's
``Self Discipline Agreement for Chinese Radio and Television Announcers
and Hosts'' [Guangdianzongju guanyu pizhuan Zhongguo guangbo dianshi
xiehui ``Zhongguo guangbo dianshi boyinyuan zhuchiren zilu gongyue'' de
tongzhi], issued 10 September 05.
\156\ Notice Regarding Correctly Administering Radio and Television
Live Broadcast Reports [Guangdianzongju guanyu qieshi zuo hao guangbo
dianshi xianchang zhibo baodao guanli de tongzhi], issued 10 September
05.
\157\ Liu Yunshan, ``In Accordance With the Requirements of
Building a Socialist and Harmonious Society: Deepen, Broaden, and
Innovate Propaganda Ideological Work.''
\158\ ``Shi Feng: Create a Public Opinion Environment Conducive to
a Harmonious Society'' [Shi feng: wei hexie shehui jianshe yingzao
lianghao yulun huanjing], People's Daily (Online), 15 October 05.
\159\ Supreme People's Court Interpretation Regarding Certain
Questions About the Specific Laws to be Used in Adjudicating Criminal
Cases of Illegal Publications [Zui gao renmin fayuan guanyu shenli
feifa chubanwu xingshi anjian juti yingyong falu ruogan wenti de
jieshi], issued 17 November 98.
\160\ Supreme People's Court Circular Regarding Striking Hard at
Illegal Publishing Activities [Zuigao renmin fayuan guanyu yanli daji
youguan feifa chubanwu fanzui huodong de tongzhi], issued 27 March 98.
\161\ ``Senior Official Claims Foreign Newspapers Raise Threat of
Color Revolution in China,'' CECC China Human Rights and Rule of Law
Update, May 2006, 13; Mure Dickie, ``Beijing Blocks Foreign
Newspapers,'' Financial Times (Online), 16 November 05.
\162\ The rules were known to a number of major publishers, but
never published. Western media outlets reported their existence in
April 2006, citing an unnamed GAPP official as their source. See, e.g.,
``GAPP Tightens Restrictions on Foreign Publications,'' CECC China
Human Rights and Rule of Law Update, May 2006, 13; ``China Curbs on
Foreign Magazines Take Quiet Effect,'' Reuters (Online), 7 April 06;
Geoffrey A. Fowler and Juying Qin, ``China Curbs Magazines from Foreign
Publishers,'' Wall Street Journal (Online), 7 April 06.
\163\ Interim Provisions on the Administration of Sino-Foreign
Joint and Cooperative Ventures in Radio and Television Program
Production Operating Enterprises [Zhongwai hezi, hezuo guangbo dianshi
jiemu zhizuo jingying qiye guanlin zanxing guiding], issued 28 October
05, art. 12.
\164\ ``New Regulations Surfaced: Foreign Invested Movie,
Television, and Media Corporations Can Only Participate in Joint
Ventures'' [Xin guiding chutai: waizi yingshi chuanmei zhineng kai
yijia hezi gongsi], Shanghai Morning Post, reprinted in People's Daily
(Online), 7 March 05; Circular Regarding Matters Relating to the
Implementation of the ``Interim Provisions on the Administration of
Sino-Foreign Investment and Cooperative Joint Venture Television
Program Production Enterprises'' Regulations [Guanyu shishi ``zhongwai
hezi, hezuo guangbo dianshi jiemu zhizuo jingying qiye guanli zanxing
guiding'' youguan shiyi de tongzhi], issued 25 February 05; Measures on
the Administration of Foreign Satellite Television Channel Reception
[Jingwai weixing dianshi pindao luodi guanli banfa], issued 18 June 04,
art. 12.
\165\ Measures for Administering the Release of News and
Information in China by Foreign News Agencies [Waiguo tongxunshe zai
Zhongguo jingnei fabu xinwen xinxi guanli banfa], issued 10 September
06, art. 4.
\166\ Ibid. The new rules repeal rules issued in 1996 allowing
licensed foreign news agencies to distribute financial information
directly to licensed customers. Ibid., art. 22; Methods for the
Exercise of Administration Over Publication in China of Economic
Information by Foreign News Agencies and Their Information Subsidiaries
[Waiguo tongxunshe jiqi suoshu xinxi jigou zai Zhongguo jingnei fabu
jingji xinxi de guanli banfa], issued 15 April 96.
\167\ Measures for Administering the Release of News and
Information in China by Foreign News Agencies, arts. 11, 12. Article 1
of the Measures say that the rules are intended ``to promote the
dissemination of news and information in a sound and orderly manner''
and a GAPP official has defended the new rules saying that they would
not affect the activities of foreign journalists in China. Ibid., art.
1; ``Xinhua's Measures Won't Lead to Monopoly,'' Xinhua (Online), 14
September 06.
\168\ Provisions for the Administration of Ground Satellite
Television Broadcast Reception Facilities [Weixing dianshi guangbo
dimian jieshou sheshi guanli guiding], issued 5 October 93; Measures
for the Administration of Foreign Satellite Television Channel
Reception, issued 18 June 04.
\169\ ``Government Regulators Block Foreign Access to China's Media
Market,'' CECC China Human Rights and Rule of Law Update, October 2005,
9; ``Six Departments Issue Regulations Restricting Imports of Cultural
Products'' [Liu bumen xiafa ``guanyu jiaqiang wenhua chanpin jinkou
guanli de banfa''], People's Daily (Online), 2 August 05 (discussing
the Measures Regarding Strengthening the Administration of the
Importation of Cultural Products, which froze approvals for new foreign
satellite television channels, and will ``increase control over content
censorship'' of imported television programs). See also ``Government
Regulators Block Foreign Access to China's Media Market,'' CECC China
Human Rights and Rule of Law Update, October 2005, 12. ``Five
Government Agencies Formulate `Certain Opinions Regarding the
Introduction of Foreign Investment into the Cultural Domain' '' [5
buwei zhiding ``guanyu wenhua lingyu yinjin waizi de ruogan yijian''],
Xinhua (Online), 4 August 05 (prohibiting foreign companies from
investing in news organizations or Web sites, radio or television
stations, and companies that produce or show films or radio or
television programs); State Administration of Radio, Film, and
Television Notice Regarding Further Strengthening the Administration of
Radio and Television Channels [Guangdianzongju guanyu jin yi bu
jiaqiang guangbo pindao guanli de tongzhi], issued 4 August 05
(stipulating that to preserve the government's ability ``to make final
decisions regarding the contents of propaganda,'' a controlling share
in radio and television stations must be in the hands of the
government, and non-government investors may not participate in
editorial decisions).
\170\ Circular Regarding Reiterating Rules on the Administration of
Television International News [Guangdianzongju guanyu chongshen dianshi
guojin xinwen guanli guiding de tongzhi], issued 11 April 06; ``SARFT
Relaxes Censorship of Fiction, Retains it for History, Politics, and
News,'' CECC China Human Rights and Rule of Law Update, May 2006, 9.
\171\ State Administration of Radio, Film, and Television, Circular
Regarding Further Regulating the Administration of Television
International News [Guojia guangbo dianying dianshi zongju guanyu jin
yi bu guifan dianshi guoji xinwen guanli de tongzhi], issued 3 April
02.
\172\ Zhao Huanxin, ``Regulation of Internet in Line with World
Norms,'' China Daily (Online), 15 February 06.
\173\ ``Internet Filtering in China in 2004--2005: A Country
Study,'' OpenNet Initiative (Online), 14 April 05.
Notes to Section V(b)--Rights of Criminal Suspects and Defendants
\1\ In December 2005, the Communist Party Central Committee and
State Council ordered stronger controls over society and called on
officials to both prevent and promptly ``strike'' against crime [see
Section VII(d)--Democratic Governance and Legislative Reform;
``Communist Party, State Council Order Stronger Controls Over
Society,'' CECC China Human Rights and Rule of Law Update, January
2006, 14-16; Sun Chunying and Zhang Xuefeng, ``Committee for
Comprehensive Management of Public Security Spokesman Answers Questions
From Press on Opinion Carrying Out Stable and Secure Development''
[Zhongyang zongzhiban fuzeren jiu guanyu kaizhan pingan jianshe de
yijian da jizhe], Legal Daily, reprinted in National People's Congress
(Online), 5 December 05]. Politburo member and State Councilor Luo Gan
spoke at a national conference on December 5 and 6, 2005, and called
for a ``harsh crackdown'' on criminal activities to create a sound
social environment for implementing the 11th Five-Year Program and
building a ``harmonious society.'' ``Senior official Calls for Harsh
Crackdown on All Crimes,'' People's Daily (Online), 7 December 05.
Since early 2006, the Supreme People's Court and Ministry of Public
Security have also repeatedly called for application of ``Strike Hard''
campaigns as a measure to guard against certain categories of crime and
to safeguard public order. ``People's Courts Will Continue to Uphold
`Strike Hard' Policy in Accordance With Law'' [Renmin fayuan jiang jixu
jianchi yifa ``yanda'' fangzhen], Xinhua (Online), 5 January 06;
``Ministry of Public Security Emphasizes Need to `Strike Hard' Against
Terrorist Criminal Activities, Protect State Security'' [Gonganbu
qiangdiao yao yanda kongbu fanzui huodong weihu guojia anquan], Xinhua
(Online), 26 January 06; ``Ministry of Public Security Urges Use of
`Strike Hard' to Counter Social Unrest,'' CECC China Human Rights and
Rule of Law Update, March 2006, 5-6; Supreme People's Court Work Report
[Zuigao renmin fayuan gongzuo baogao], 20 March 06 [hereinafter SPC
Work Report]; Ministry of Public Security (Online), ``Ministry of
Public Security Announces First Quarter 2006 Nationwide Public Security
Situation (Direct Feed Transcript)'' [Gonganbu tongbao 2006 nian di yi
jidu shehui zhi'an xingshi (tuwen zhibo)], 11 April 06.
\2\ ``Officials Ban Dozens of Papers, Seize Thousands of Political
Publications, in 2005,'' CECC China Human Rights and Rule of Law
Update, February 2006, 6-7; ``Inter-Agency Task Force Cracks Down on
Political Publications,'' CECC China Human Rights and Rule of Law
Update, April 2006, 13-14; ``Censorship Task Force Meets to Discuss
2006 Spring Campaign,'' CECC China Human Rights and Rule of Law Update,
July 2006, 13.
\3\ ``Xinjiang Continues Crackdown on Separatism, Terrorism, and
Religious Extremism,'' CECC China Human Rights and Rule of Law Update,
March 2006, 15; Han Xiaoyi, ``An Iron Fist to Strike Hard Against
`Three Forces' of Splittist Activity'' [Tiewan yanda ``san gu shili''
fenlie huodong], Tianshan Net (Online), 26 June 06.
\4\ ``Lhasa Conference Considers Judicial Role in Protecting
Qinghai-Tibet Railway,'' CECC China Human Rights and Rule of Law
Update, July 2006, 12-13.
\5\ One scholar has written that the Communist Party rules by
force, and that ``police play a critical role in maintaining social
order and political stability under the [Party's] rule.'' Fu Hualing,
``Zhou Yongkang and the Recent Police Reform in China,'' 38 Australian
and New Zealand Journal of Criminology 242 (2005). Furthermore,
``[w]henever the [Party] perceives that crime and disorder are posing
threats to social stability and challenging the Party's legitimacy, it
will mobilize the police to act swiftly and harshly to combat these
challenges, disregarding most of the legal requirements developed by
the routine system.'' Ibid., 243.
\6\ ``Power Plant Construction Continues After Government
Suppresses Villager Protests in Shanwei,'' CECC China Human Rights and
Rule of Law Update, January 2006, 4-5.
\7\ Ibid. Chinese legal advocates Gao Zhisheng and Guo Feixiong
expressed outrage over proposals to allow further PAP intervention in
mass incidents. Gao Zhisheng and Guo Feixiong, ``Proposal to Establish
a `Shanwei Shooting Incident Civilian Fact-Finding Committee' ''
[Jianyi chengli ``Shanwei kaiqiang shijian zhenxiang minjian diaocha
weiyuanhui''], Boxun (Online), 11 January 06. International media and
NGO sources that reported on the December 6 incident provided a higher
death count than the official one and criticized the government's use
of violence. Both Human Rights Watch and Amnesty International have
called for an independent investigation into the December 6 incident.
Human Rights Watch (Online), ``China: Dongzhou Killings Need
Independent Investigation,'' 15 December 05; Amnesty International
(Online), ``China: Police fire on crowd, killing four,'' 7 December 05.
On December 20, 2005, a UN spokesperson reported that Philip Alston,
the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, had written to the Chinese government to request additional
information about the Shanwei land dispute and the government's
response. Stephanie Nebehay, ``U.N. Sleuth Asks China About Protest
Shootings,'' Reuters (Online), 20 December 05.
\8\ ``9 Villagers in the Honghai Bay Incident in Shanwei Are
Arrested'' [Shanwei Honghai wan shijian 9 cunmin bei bu], Ta Kung Pao
(Online), 13 December 05. Responsibility for administrative management
and command of PAP troops is shared by local public security bureaus
and the Central Military Commission. In addition, each director of a
local public security bureau simultaneously serves as first political
commissar of the PAP troops at the same level. State Council, Central
Military Commission Decision on Adjusting the Leadership and Management
Systems of China's People's Armed Police [Guowuyuan, zhongyang junwei
guanyu tiaozheng Zhongguo renmin wuzhuang jingcha budui lingdao guanli
tizhi de jueding], issued 3 May 95, para. 1.
\9\ ``Gov't calls for more contribution by armed police,'' Xinhua
(Online), 5 January 06; Wu Shuangzhan and Sui Mingtai, ``Working Hard
to Construct a Politically Reliable, Mighty, and Civilized Army'' [Nuli
jianshe zhengzhi kekao de weiwu zhishi wenming zhishi], Seeking Truth
(Online), 1 January 06. PAP Commander Wu Shuangzhan and Political
Commissar Sui Mingtai wrote that: ``The reality of the complex struggle
against enemies requires that in resolutely striking at the destructive
activities of enemy forces, [the PAP] bring into full play our function
as a tool of state dictatorship.'' Ibid. Wu and Sui further emphasized
that ``Taiwan independence,'' ``Tibetan independence,'' ``East
Turkistan,'' ``democracy movement,'' and ``Falun Gong'' enemy forces
have ``continually varied their techniques of carrying out disturbances
and destruction, directly threatening our nation's security and social
stability.'' Ibid.
\10\ Wang Pan, ``Individuals Responsible for Serious Violation of
Law in the Honghai Bay Development Zone, Shanwei Incident are Dealt
With'' [Shanwei Honghai wan kaifaqu yanzhong weifa shijian zeren ren
shoudao chuli], Xinhua (Online), 24 May 06.
\11\ Ibid.; ``Relevant Individuals Responsible for Honghai Bay,
Shanwei Incident in Guangdong Sentenced'' [Guangdong Shanwei Honghai
wan shijian zhong youguan zeren ren bei panxing], Xinhua (Online), 25
May 06.
\12\ Maintaining public order is one major objective of the
Criminal Law, and actions that ``disturb public order'' are criminally
punishable under numerous provisions. PRC Criminal Law, enacted 1 July
79, amended 14 March 97, 25 December 99, 31 August 01, 29 December 01,
28 December 02, 28 February 05, 29 June 06, art. 2; ibid., part 2, ch.
6, sec. 1.
\13\ ``Wen Jiabao Airs Views on China's Rural Issues,'' Xinhua, 19
January 06 (Open Source Center, 20 January 06); Wei Ran, ``Wen Jiabao
Cautions Mistakes Cannot be Made in Land Issues'' [Wen Jiabao jinggao
tudi shang bu neng fan cuowu], Voice of America (Online), 21 January
06; ``Chinese PM warns on rural unrest,'' BBC (Online), 20 January 06.
\14\ Ministry of Public Security, ``Ministry of Public Security
Announces First Quarter 2006 Nationwide Public Security Situation
(Direct Feed Transcript).''
\15\ ``Ministry of Public Security Emphasizes Need to `Strike Hard'
Against Terrorist Criminal Activities,'' Xinhua.
\16\ Ministry of Public Security (Online), ``Ministry of Public
Security Convenes a News Conference to Announce 2005 Nationwide Status
of Public Security and Fires'' [Gonganbu zhaokai xinwen fabuhui tongbao
2005 nian quanguo shehui zhi'an xingshi ji huozai xingshi], 20 January
06.
\17\ CECC, 2005 Annual Report, 11 October 05, sec. II.
\18\ ``Beijing Officials Report Increase in Fines and Detentions
Under New Public Security Law,'' CECC China Human Rights and Rule of
Law Update, May 2006, 7-8. See also infra, ``Administrative
Detention,'' and accompanying notes.
\19\ Ministry of Public Security (Online), ``Ministry of Public
Security Convenes Press Conference to Announce the Status of
Preparations for Implementing the `Public Security Administration
Punishment Law' '' [Gongan bu zhaokai xinwen fabuhui tongbao ``zhi'an
guanli chufa fa'' shishi zhunbei qingkuang], 28 February 06.
\20\ Fu, ``Zhou Yongkang and the Recent Police Reform in China,''
242 (stating that the procuratorates and the courts exercise only
``limited supervisory powers'' over the police).
\21\ PRC People's Police Law, enacted 28 February 95, arts. 42-44.
\22\ Ibid., art. 47; Regulations on Public Security Agency
Supervision [Gongan jiguan ducha tiaoli], issued 4 June 97, art. 2.
\23\ ``Police affairs supervision examines and corrects 330,000
cases of unjust enforcement of law over five years'' [Jingwu ducha wu
nian chajiu zhifa bugong wenti 33 wan jian], Legal Daily (Online), 28
February 06.
\24\ Ibid.
\25\ Wang Shu, ``During Nine-Year Span, Over 10,000 People's Police
Who Breached Discipline Were Suspended'' [9 nian nei yu wan weiji
minjing bei chu tingzhi], Beijing News (Online), 15 February 06.
\26\ Chen Peng and Liu Yihui, ``3 Hunan Public Security Cadres Who
Served as `Cover' for Criminal Forces are Sentenced'' [Hunan 3 ming
gongan ganbu chongdang hei e shili ``baohu san'' bei panxing], Xinhua,
reprinted in People's Daily (Online), 16 April 06.
\27\ ``Supreme People's Procuratorate Recognizes Continuing Problem
of Extended Detention,'' CECC China Human Rights and Rule of Law
Update, July 2006, 11-12; Lin Shiyu, ``Consolidated Work of Correcting
Extended Detention Has Been Effective; 96.2 Percent Drop in New Cases
of Extended Detention Throughout the Nation Last Year'' [Jiuzheng
chaoqi jiya gonggu gongzuo you chengxiao; quanguo qunian xin fasheng
chaoqi jiya xiajiang 96.2%], Procuratorial Daily (Online), 21 May 06;
``Suspects' Questioning to Be Taped,'' Xinhua (Online), 18 January 06.
See also infra, ``Arbitrary Detention in the Formal Criminal Process,''
``Torture and Abuse in Custody,'' and accompanying notes.
\28\ ``China Details New Laws of Official Abuse, Torture,'' Xinhua
(Online), 26 July 06; Supreme People's Procuratorate Provisions on the
Criteria for Filing Dereliction of Duty and Rights Infringement Cases
[Zuigao renmin jianchayuan guanyu duzhi qinquan fanzui anjian li'an
biaozhun de guiding], issued 29 December 05, sec. 2.
\29\ ``Provincial Procuratorates Investigate Job-Related Crimes,
Retrieve Over 21 Million in Economic Losses'' [Sheng jiancha jiguan
zhencha zhiwu fanzui wanhui jingji sunshi 2,100 duo wan], Hainan News
Network, reprinted in Hainan Provincial Government (Online), 24 January
06; Lan Jian, ``Respectable Sichuan Woman Accused of Prostitution and
Beaten to Death; Husband Receives 270,000 in Compensation'' [Sichuan
liangjia funu bei zhi maiyin zao ousi zhangfu ling 27 wan peichang],
China Court Net (Online), 8 June 06; ``Reeducation Through Labor
Prisoner Executed for Abusing to Death Fellow Inmate'' [Laojiao renyuan
nue si tongban bei zhixing sixing], Beijing News (Online), 7 July 06.
\30\ Lan Jian, ``Respectable Sichuan Woman Accused of Prostitution
and Beaten to Death.''
\31\ ``Case of Respectable Sichuan Woman [Accused of] Prostitution
Goes to Trial'' [Sichuan liangjia funu maiyin an kaiting], Xinhua
(Online), 29 April 04.
\32\ Gao Yifei, ``Prime Culprit in Prison Abuse Sentenced to Death,
Reflecting Sanctity of Laws'' [Nue yin zhufan bei pan sixing tixian le
falu zunyan], Guangming Daily Observer (Online), 7 July 06.
\33\ Guo Hongping, ``Fighting Dereliction of Duty and Rights
Infringement: How Many Case Leads are Waiting to be Unearthed? '' [Fan
duzhi qinquan: duoshao anjian xiansuo dai fajue?], Procuratorial Daily
(Online), 11 July 06.
\34\ China has signed, but has not yet ratified, the ICCPR. The
Chinese government has committed itself to ratifying, and thus bringing
its laws into conformity with, the ICCPR and reaffirmed its commitment
as recently as April 13, 2006, in its application for membership in the
UN Human Rights Council. China's top leaders have previously stated on
three separate occasions that they are preparing for ratification of
the ICCPR, including in a September 6, 2005, statement by Politburo
member and State Councilor Luo Gan at the 22nd World Congress on Law,
in statements by Chinese Premier Wen Jiabao during his May 2005 Europe
tour, and in a January 27, 2004 speech by Chinese President Hu Jintao
before the French National Assembly.
\35\ UDHR, adopted and proclaimed by General Assembly resolution
217 A (III) of 10 December 48, arts. 9-10; ICCPR, adopted by General
Assembly resolution 2200A (XXI) of 16 December 66, entry into force 23
March 76, art. 9; infra, ``Arbitrary Detention,'' and accompanying
notes.
\36\ ``Chinese Authorities Crack Down on Activists Before U.S.
President's Visit,'' CECC China Human Rights and Rule of Law Update,
December 2005, 3; ``UN Special Rapporteur on Torture Concludes Two-Week
Visit to China,'' CECC China Human Rights and Rule of Law Update,
January 2006, 12-13; Manfred Nowak, Report of the Special Rapporteur on
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Mission to China, Advance Edited Version, 10 March 06, para. 10
[hereinafter Nowak Report].
\37\ ``Li Jinping Detained Twice for Attempting to Commemorate Zhao
Ziyang's Death,'' CECC China Human Rights and Rule of Law Update,
February 2006, 15; ``Authorities Control Commemorations for Zhao Ziyang
and Hu Yaobang,'' CECC China Human Rights and Rule of Law Update, March
2006, 15-16.
\38\ ``Official Discloses Use of Mass Roundups During NPC, CPPCC
Sessions,'' CECC China Human Rights and Rule of Law Update, April 2006,
5.
\39\ ``Ministry of Public Security Announces the Status of
Preventing Major Public Security Disasters and Accidents, Ensuring
Public Security Supervision'' [Gonganbu tongbao yufang zhongda zhi'an
zaihai shigu, baozhang gonggong anquan ducha qingkuang], China News Net
(Online), 2 March 06.
\40\ Crimes that ``endanger state security'' are listed in Part 2,
Chapter 1, and those that ``disturb public order'' are listed in Part
2, Chapter 6, Section 1 of the Criminal Law.
\41\ UN Working Group on Arbitrary Detention, Report of the Working
Group on Arbitrary Detention, Mission to China, Addendum, 29 December
04, para. 23 [hereinafter UNWGAD Report].
\42\ Nowak Report, para. 35.
\43\ Ibid., para. 34.
\44\ ``China State Security Trials `Find 99 Pct Guilty,' '' Reuters
(Online), 21 February 06.
\45\ PRC Criminal Law, art. 103.
\46\ Ibid., art. 105.
\47\ In an article published in June 2006, Politburo member and
State Councilor Luo Gan called for forceful measures against those who
``get involved and take advantage of conflicts among the people to
manufacture disturbances'' or who ``engage in sabotage activities under
the pretense of `rights defense.' '' Luo Gan, ``Deeply Launch Education
in the Notion of Socialist Rule of Law; Conscientiously Strengthen the
Ideology of Political and Legal Ranks and Political Construction''
[Shenru kaizhan shehui zhuyi fazhi linian jiaoyu qieshi jiaqiang
zhengfa duiwu sixiang zhengzhi jianshe], Seeking Truth (Online), 16
June 06.
\48\ PRC Criminal Law, art. 290.
\49\ Ibid., arts. 290, 291. Article 290 makes it a crime to gather
people to ``assault a State organ, making it impossible for the State
organ to conduct its work.'' Article 291 makes it a crime to gather
people to ``resist or obstruct public security administrators of the
State from carrying out their duties according to law.''
\50\ Ibid., art. 292.
\51\ Ibid., art. 293.
\52\ Ministry of Public Security, ``Ministry of Public Security
Convenes a News Conference to Announce 2005 Nationwide Status of Public
Security and Fires.''
\53\ ``Court Sentences Shaanxi Investor Feng Bingxian to Three
Years Imprisonment,'' CECC China Human Rights and Rule of Law Update,
February 2006, 16-17.
\54\ ``Procuratorate Indicts Feng Bingxian and Three Other Shaanxi
Oil Investors,'' CECC China Human Rights and Rule of Law Update,
December 2005, 11.
\55\ Ibid.
\56\ Ibid.; ``Draft Property Law Enters Fourth Deliberation
Process'' [Wuquanfa cao'an jinru si shen chengxu], Legal Daily
(Online), 24 October 05.
\57\ PRC Constitution, art. 13 (``the lawful private property of
citizens is not to be violated'').
\58\ See supra, ``Social Unrest and Coercive Use of the Police
Power,'' and accompanying notes.
\59\ ``Local Officials Suppress Citizen Effort to Remove Village
Committee Head in Guangdong Province,'' CECC China Human Rights and
Rule of Law Update, November 2005, 11.
\60\ ``Guangzhou Officials Formally Arrest Peasant Rights Activist
Guo Feixiong,'' CECC China Human Rights and Rule of Law Update,
November 2005, 6-7; Freedom in China, Staff Roundtable of the
Congressional Human Rights Caucus, 3 May 06, Statement of Guo Feixiong.
Guo was released in late December 2005, but authorities took him from
his home in Guangzhou on September 14, 2006, and have placed him in
criminal detention based on accusations of illegal operation of a
publishing business. ``Guangzhou Police Achieve Results in Launching
`Anti-Piracy Operation' '' [Guangzhou jingfang kaizhan ``fan daoban
xingdong'' qude chengxiao], Guangzhou Daily (Online), 15 September 06;
``China Detains Top Guangdong Rights Lawyer,'' Radio Free Asia
(Online), 15 September 06.
\61\ ``Guangdong Public Security Bureau Blames Mass Incidents on
Rights Defender Activities,'' CECC China Human Rights and Rule of Law
Update, April 2006, 7-8; ``Guangdong Clamps Down on Outside Forces
Getting Involved in Rights Protection and Rejects Politicizing of
Issues, Inciting Mass Disturbances'' [Yue yanfang jingwai shili chashou
weiquan chi jiang wenti zhengzhihua shandong qunzhong saoluan], Ming
Pao Daily (Online), 24 February 06.
\62\ The Commission's Political Prisoner Database includes profiles
on more than 500 current and 3,000 past political prisoners based on
available information. See infra, ``Political Prisoner Database,'' and
accompanying notes. Thousands of political prisoners are detained in
China's reeducation through labor system. See infra, ``Administrative
Punishment,'' and accompanying notes.
\63\ A Global Review of Human Rights: Examining the State
Department's 2004 Annual Report, Hearing of the Subcommittee on Africa,
Global Human Rights, and International Operations, Committee on
International Relations, U.S. House of Representatives, 17 March 05,
Written Statement Submitted by Michael Kozak, Assistant Secretary of
State for Democracy, Human Rights, and Labor, U.S. Department of State,
41, 54.
\64\ ``China State Security Trials `Find 99 Pct Guilty,' ''
Reuters; John Kamm, Remarks on Crimes Without Victims, Prisoners
Without Names, Foreign Correspondents' Club of Hong Kong, 21 February
06 (reporting early release or parole for 30 percent of China's 1.2
million prisoners, including only three known prisoners convicted of
state security crimes).
\65\ Human Rights Watch (Online), ``China: Political Prisoner
Exposes Brutality in Police-Run Mental Hospital,'' 2 November 05;
``Shenzhen Public Security Authorities Release Activist and Journalist
Liu Shui,'' CECC China Human Rights and Rule of Law Update, December
2005, 13; ``Guangzhou Officials Release Activist Guo Feixiong,'' CECC
China Human Rights and Rule of Law Update, February 2006, 12; ``Anti-
Corruption Reporter Jiang Weiping Released from Prison One Year
Early,'' CECC China Human Rights and Rule of Law Update, February 2006,
18; ``Falun Gong Practitioner Charles Lee Released, Expelled to the
United States,'' CECC China Human Rights and Rule of Law Update,
February 2006, 14; ``Liaoyang Labor Activist Xiao Yunliang Released
From Prison 24 Days Early,'' CECC China Human Rights and Rule of Law
Update, March 2006, 4; ``Authorities Release One 1989 Tiananmen
Democracy Protester, Detain Another,'' CECC China Human Rights and Rule
of Law Update, March 2006, 6; ``Cai Lujun, Imprisoned for Posting
Internet Articles, Released at End of Sentence,'' CECC China Human
Rights and Rule of Law Update, April 2006, 17; ``China Democracy Party
Member Tong Shidong Released,'' CECC China Human Rights and Rule of Law
Update, April 2006, 14; ``Internet Writer Luo Changfu Released After
Serving Three Years for Subversion,'' CECC China Human Rights and Rule
of Law Update, April 2006, 18; ``Authorities Release Shanghai Lawyer
Zheng Enchong, Restrict His Speech and Movement,'' CECC China Human
Rights and Rule of Law Update, July 2006, 2-3; Dui Hua (Online), ``Last
Known Female Political Prisoner in TAR Released Early,'' 28 June 06;
Cardinal Kung Foundation (Online), ``An Underground Catholic Bishop
Released After More Than 10 Years in Prison,'' 25 August 06.
\66\ A Global Review of Human Rights, Written Statement Submitted
by Michael Kozak, 40, 54.
\67\ Nowak Report, para. 60; Bureau of Democracy, Human Rights, and
Labor, U.S. Department of State, Country Reports on Human Rights
Practices--2005, China (includes Tibet, Hong Kong, and Macau), 8 March
06, sec. 1.e.
\68\ UN Commissioner for Human Rights, Fact Sheet #26, the Working
Group on Arbitrary Detention. Examples of the first category include
individuals who are kept in detention after the completion of their
prison sentences or despite an amnesty law applicable to them, or in
violation of domestic law or relevant international instruments. The
rights and freedoms protected under the second category include those
in Articles 7, 10, 13, 14, 18, 19, and 21 of the UDHR, and in Articles
12, 18, 19, 21, 22, 25, 26, and 27 of the ICCPR. Ibid.
\69\ The U.S. State Department characterized house arrest as
``complete isolation in one's own home or another location under lock
and guard'' and noted that ``[n]o publicly available laws or
regulations governed conditions for house arrest.'' U.S. Department of
State, Country Reports on Human Rights Practices--2005, China, sec.
1.d.
\70\ ``Population Planning Official Confirms Abuses in Linyi City,
Shandong Province,'' CECC China Human Rights and Rule of Law Update,
October 2005, 2; Philip P. Pan, ``Rural Activist Seized in Beijing,''
Washington Post (Online), 7 September 05.
\71\ PRC Criminal Procedure Law [hereinafter CPL], enacted 1
January 79, amended 17 March 96, art. 58; Chinese Human Rights
Defenders (Online), ``Activist Chen Guangcheng's House Arrest Exceeds
Legal Limits, with Domestic Remedies Ineffective, CRD Submits Case to
UN,'' 9 March 06.
\72\ Chinese Human Rights Defenders, ``Activist Chen Guangcheng's
House Arrest Exceeds Legal Limits.''
\73\ Linyi authorities formally arrested Chen on June 21, tried him
on August 18, and sentenced him to four years and three months'
imprisonment on August 24. ``Authorities Sentence Chen Guangcheng After
Taking His Defense Team Into Custody,'' CECC China Human Rights and
Rule of Law Update, September 2006, 4-5; ``Authorities Formally Arrest
Legal Advocate Chen Guangcheng,'' CECC China Human Rights and Rule of
Law Update, July 2006, 2; Maureen Fan, ``Chinese Rights Activist Stands
Trial After Police Detain Defense Team,'' Washington Post (Online), 19
August 06.
\74\ ``Authorities Postpone Trial, Target Relatives and Neighbors
of Chen Guangcheng,'' CECC China Human Rights and Rule of Law Update,
August 2006, 1-2; ``Authorities Obstruct Publicity and Legal Defense
Efforts in Chen Guangcheng Case,'' CECC China Human Rights and Rule of
Law Update, August 2006, 4-5; Steven Ertelt, ``China Police Take Chen
Guangcheng's Wife, Allow Thugs to Beat Supporter,'' LifeNews (Online),
11 July 06; ``China Formally Arrests Blind Shandong Activist,'' Radio
Free Asia (Online), 21 June 06; Yi Ming, ``Central Government Should
Guarantee That the Human Rights of Chen Guangcheng and His Lawyers are
Safeguarded'' [Zhongyang zhengfu ying quebao Chen Guangcheng ji qi
lushi de renquan dedao baozhang], Empowerment and Rights Institute,
reprinted in Chinese Human Rights Defenders (Online), 24 June 06;
Chinese Human Rights Defenders (Online), ``AIDS Activist Released,
Blind Activist under Illegal Detention, and More,'' 30 March 06;
Josephine Ma, ``Family of Blind Activist Detained Ahead of Press
Conference in Beijing,'' South China Morning Post, 20 June 06 (Open
Source Center, 20 June 06); Gillian Wong, ``Stay Home, Friends of
Activist Told,'' Associated Press (Online), 20 June 06.
\75\ CPL, art. 64 (establishing an exception to this requirement
``in circumstances where such notification would hinder the
investigation or there is no way of notifying them''). The maximum
period of detention prior to approval of a formal arrest is 37 days
after taking into account extensions permitted by law. Ibid., art. 69.
\76\ Chris Buckley and Benjamin Kang Lim, ``Released Chinese
Dissident Plans to Sue,'' Reuters (Online), 29 March 06.
\77\ Alexa Olesen, ``U.N. Appeals to China Over AIDS Activist,''
Associated Press (Online), 28 February 06.
\78\ Nowak Report, note 34.
\79\ Ibid.
\80\ ``Consolidated Work of Correcting Extended Detention Has Been
Effective; 96.2 Percent Drop in New Cases of Extended Detention
Throughout the Nation Last Year,'' Procuratorial Daily.
\81\ In June 2005, Beijing police claimed that they found new
evidence of fraud against Zhao, so that they could hold him beyond the
seven-month time limit on investigative detention. ``Supreme People's
Procuratorate Recognizes Continuing Problem of Extended Detention,''
CECC China Human Rights and Rule of Law Update, July 2006, 11-12;
``Beijing Court Schedules Trial of New York Times Researcher Zhao Yan
for June 8,'' CECC China Human Rights and Rule of Law Update, June
2006, 2-3. In practice, with no limit on the number of ``new crimes''
that police can assert under Article 128 of the CPL, suspects can be
held in pretrial detention for years. Under a variety of legal
exceptions and detention extension provisions such as Articles 69, 124,
126, 127, and 140 of the CPL, a suspect's pretrial detention can be
extended for more than seven months even without evidence of new
crimes.
\82\ ``Beijing Court Schedules Trial of New York Times Researcher
Zhao Yan for June 8,'' CECC China Human Rights and Rule of Law Update,
June 2006, 2-3; Jim Yardley, ``China Moves to Put Jailed Times
Researcher on Trial,'' New York Times (Online), 23 December 05. A
Beijing court acquitted Zhao of disclosing state secrets on August 25,
2006, but sentenced him to three years' imprisonment for fraud.
``Beijing Court Sentences Journalist Zhao Yan to 3 Years'
Imprisonment,'' CECC Human Rights and Rule of Law Update, September
2006, 1-2.
\83\ ``Beijing Court Schedules Trial of New York Times Researcher
Zhao Yan for June 8,'' CECC China Human Rights and Rule of Law Update,
June 2006, 2-3; Jim Yardley, ``Lawyers for Jailed Aide for the Times
Press China for His Release,'' New York Times (Online), 22 March 06.
\84\ ``Beijing Court Schedules Trial of New York Times Researcher
Zhao Yan for June 8,'' CECC China Human Rights and Rule of Law Update,
June 2006, 2-3; ``A Dark Signal From China,'' New York Times (Online),
21 May 06.
\85\ Shen Hua, ``Beijing Procuratorate Resumes Prosecution Against
Zhao Yan'' [Beijing jianchayuan dui Zhao Yan huifu qisu], Radio Free
Asia (Online), 15 May 06.
\86\ UN Commission on Human Rights, Opinions Adopted by the Working
Group on Arbitrary Detention, Opinion No. 33/2005, 19 October 05, 88-
90; ``Supreme People's Procuratorate Recognizes Continuing Problem of
Extended Detention,'' CECC China Human Rights and Rule of Law Update,
July 2006, 11-12.
\87\ ICCPR, arts. 9(3) and 9(4).
\88\ UNWGAD Report, para. 32.
\89\ ``Consolidated Work of Correcting Extended Detention Has Been
Effective; 96.2 Percent Drop in New Cases of Extended Detention
Throughout the Nation Last Year,'' Procuratorial Daily; ``Supreme
People's Procuratorate Recognizes Continuing Problem of Extended
Detention,'' CECC China Human Rights and Rule of Law Update, July 2006,
11-12.
\90\ ``Consolidated Work of Correcting Extended Detention Has Been
Effective; 96.2 Percent Drop in New Cases of Extended Detention
Throughout the Nation Last Year,'' Procuratorial Daily; ``Supreme
People's Procuratorate Recognizes Continuing Problem of Extended
Detention,'' CECC China Human Rights and Rule of Law Update, July 2006,
11-12. In 2003, the SPP passed regulations that prohibit the abuse of
legal procedures to disguise the extended detention of a criminal
suspect. Several Provisions from the Supreme People's Procuratorate
Regarding the Prevention and Correction of Extended Detention in
Procuratorial Work [Zuigao renmin jianchayuan guanyu zai jiancha
gongzuo zhong fangzhi he jiuzheng chaoqi jiya de ruogan gui-ding],
issued 24 September 03, para. 1.
\91\ UDHR, arts. 10, 11(1), ICCPR, arts. 9(4), 14.
\92\ Ministry of Public Security, ``Ministry of Public Security
Convenes a News Conference to Announce 2005 Nationwide Status of Public
Security and Fires;'' Ministry of Public Security (Online), ``Ministry
of Public Security Announces 2004 Status of Nation's Public Security
Agencies' Strike Against Crime and Safeguarding of Public Order''
[Gonganbu tongbao 2004 nian quanguo gongan jiguan daji xingshi fanzui
weihu zhehui zhi'an qingkuang], 7 February 05.
\93\ See, e.g., the broad-ranging and vaguely worded lists of
offenses in the Trial Measures on Reeducation Through Labor [Laodong
jiaoyang shixing banfa], issued 21 January 82, art. 10; Provisions on
Public Security Agencies' Handling of Reeducation Through Labor Cases
[Gongan jiguan banli laodong jiaoyang anjian guiding], issued 12 April
02, art. 9; PRC Public Security Administration Punishment Law, enacted
28 August 05, chs. 2-3.
\94\ Wu Yihuo and Hong Jun, ``Too Few Administrative Law
Enforcement Cases Transferred to Judicial Organs--Relevant Anhui
Research Reveals Information: Three Major Factors Influence Effective
Links Between Administrative Law Enforcement and Criminal Law
Enforcement'' [Xingzheng zhifa anjian yisong sifa jiguan taishao, Anhui
youguan yanjiuban touchu xinxi: san da yinsu yingxiang xingzheng zhifa
yu xingshi zhifa youxiao xianjie], Procuratorial Daily (Online), 31
January 05.
\95\ Various analysts estimate that between 2 percent and 10
percent of those sentenced to reeducation through labor are political
detainees. Veron Mei-Ying Hung, ``Reassessing Reeducation Through
Labor,'' 2 China Rights Forum 35 (2003); Randall Peerenboom, ``Out of
the Frying Pan and Into the Fire,'' 98 Northwestern University Law
Review 991, 1000-01 and accompanying notes (2004); Jim Yardley, ``Issue
in China: Many in Jails Without Trial,'' New York Times (Online), 9 May
05.
\96\ Trial Measures on Reeducation Through Labor, art. 10;
Provisions on Public Security Agencies' Handling of Reeducation Through
Labor Cases, art. 9; PRC Public Security Administration Punishment Law,
chs. 2-3.
\97\ PRC Criminal Law, ch. 3, sec. 1-3.
\98\ Nowak Report, para. 64. Article 10.3 of the ICCPR provides
that, ``The penitentiary system shall comprise treatment of prisoners
the essential aim of which shall be their reformation and social
rehabilitation.'' In response to characterization of forced reeducation
as a form of inhuman or degrading treatment, Chinese authorities have
maintained that RTL helps transition detainees back into society.
\99\ UNWGAD Report, paras. 40, 41. As of March 1, 2006, the Public
Security Administration Punishment Law has replaced the Regulations on
Public Security Administration Punishment mentioned in the UNWGAD
Report.
\100\U.S. Department of State, Country Reports on Human Rights
Practices--2005, China, sec. 1.d.
\101\ Ibid.
\102\ Nowak Report, para. 63; State Council Decision on the
Question of Reeducation Through Labor [Guowuyuan guanyu laodong
jiaoyang wenti de jueding], issued 3 Aug 57, para. 2; ``Last year's
rate of resettling those released from prison or reeducation through
labor near 90 percent'' [Xingshi jiejiao renyuan qunian anzhilu jin
jiucheng], China Legal Publicity (Online), 3 March 06; Yardley, ``Issue
in China: Many in Jails Without Trial.''
\103\ Nowak Report, para. 62.
\104\ ``Security Laws Tackle Most Sensitive Issues,'' China Daily
(Online), 2 March 06.
\105\ PRC Public Security Administration Punishment Law, art. 27.
\106\ Ibid., art. 55.
\107\ Ministry of Public Security, ``Ministry of Public Security
Convenes Press Conference to Announce the Status of Preparations for
Implementing the `Public Security Administration Punishment Law.' ''
\108\ PRC Public Security Administration Punishment Law, art. 116.
\109\ Under Chinese law, punishments that involve a restriction on
personal liberty may only be established by national law. PRC
Legislation Law, enacted 15 March 00, art. 8(v); PRC Administrative
Punishment Law, enacted 17 March 96, arts. 9, 10.
\110\ CPL, art. 12.
\111\ PRC Constitution, art. 37.
\112\ Freedom House (Online), 2005 China Country Report. In its
December 2004 report, the UNWGAD found, ``The operation of the laws
governing decision-making on placement in a [reeducation] through
[labor] camp is, however, highly problematic. From reliable sources,
including interviews with persons affected, it is clear that in the
overwhelming majority of cases, a decision on placement in a
[reeducation] center is not taken within a formal procedure provided by
law. The commission vested with power to take this decision in practice
never or seldom meets, the person affected does not appear before it
and is not heard, no public and adversarial procedure is conducted, no
formal and reasoned decision on placement is taken (or issued for the
person affected). Thus, the decision-making process completely lacks
transparency. In addition, recourse against decisions are [sic] often
considered after the term in a center has been served.'' UNWGAD Report,
para. 58.
\113\ UNWGAD Report, paras. 16, 45; ICCPR, arts. 9, 14.
\114\ In 2003, 127 NPC delegates raised the issue of reforming RTL.
At the 2004 NPC plenary session, this number increased to 420, or
approximately one-tenth of the entire NPC body. NPC delegates at the
2005 plenary session submitted six motions to expedite RTL reform, and
in January 2006, the NPC Standing Committee added the draft law for
reforming RTL to its legislative plan for 2006. Gao Yifei, ``Why NPC
Delegates Propose Reforming the Reeducation Through Labor System''
[Renmin daibiao weihe tiyi gaige laojiao zhidu], Boxun (Online), 29
April 06.
\115\ Liao Weihua, ``Reeducation Through Labor System Faces Change;
Law on Correction of Unlawful Acts To Be Formulated'' [Laojiaozhi
mianlin biangai jiang zhiding weifa xingwei jiaozhifa], Beijing News,
reprinted in Xinhua (Online), 2 March 05.
\116\ Ibid.
\117\ ``Reeducation Through Labor `Changes Names' '' [Laojiao
``gengming''], China Business View (Online), 4 March 05.
\118\ Nowak Report, para. 33; U.S. Department of State, Country
Reports on Human Rights Practices--2005, China, sec. 1.d.
\119\ Gao, ``Why NPC Delegates Propose Reforming the Reeducation
Through Labor System.''
\120\ UNWGAD Report, paras. 56, 73. Individuals can appeal under
the APL for a reduction in, or suspension of, a RTL sentence, but these
appeals are rarely successful. U.S. Department of State, Country
Reports on Human Rights Practices--2005, China, sec. 1.d; Hung,
``Reassessing Reeducation Through Labor,'' 37-38.
\121\ UNWGAD Report, para. 64.
\122\ U.S. Department of State, Country Reports on Human Rights
Practices--2005, China, sec. 1.d.
\123\ Human Rights in China (Online), ``Petitioner Liu Xinjuan Sent
to Psychiatric Hospital, Petitioner Xu Zhengqing Loses Appeal on 3-Year
Sentence,'' 20 January 06; Shanghai Places Petitioners Under House
Arrest and Detention, Even Sends Them to Psychiatric Hospitals''
[Shanghai jiang shangfangzhe ruanjin juliu shenzhi songjin jingshen
bing yuan], Radio Free Asia (Online), 28 February 06; Human Rights in
China (Online), ``Petitioner Liu Xinjuan Forcibly Admitted to Mental
Hospital for the Fifth Time,'' 22 June 06.
\124\ Robin Munro, A Question of Criminal Madness: Judicial
Psychiatry and Political Dissent in the People's Republic of China, 13,
322-43, September 2004 (doctoral thesis on file with the Commission);
Human Rights Watch, ``China: Political Prisoner Exposes Brutality in
Police-Run Mental Hospital.''
\125\ Robin Munro, A Question of Criminal Madness; Georg Blume,
``Electroshocks Against the Freedom Virus'' [Elektroschocks gegen das
Virus Freiheit], Die Zeit (Online), 3 November 05.
\126\ For a description of sometimes arbitrary and brutal treatment
in these institutions, see Robin Munro, A Question of Criminal Madness.
\127\ Ya Wei, ``Confined to Psychiatric Institute for Many Years,
Chinese Dissident Wang Wanxing is Released'' [Duo nian bei guan
jingshen bing yuan Zhongguo yijianzhe huoshi], Voice of America
(Online), 2 November 05.
\128\ Blume, ``Electroshocks Against the Freedom Virus.''
\129\ Nowak Report, para. 45; Office of the UN High Commissioner
for Human Rights (Online), ``Special Rapporteur on Torture Highlights
Challenges at End of Visit to China,'' 2 December 05; ``UN Special
Rapporteur on Torture Concludes Two-Week Visit to China,'' CECC China
Human Rights and Rule of Law Update, January 2006, 12-13.
\130\ Nowak Report, para. 42.
\131\ Ibid., paras. 43-44.
\132\ Ibid., para. 45.
\133\ Shanghai businessman Du Ronglin, an active petitioner against
forced eviction, died two days after his release from detention on
March 17, 2006. According to a medical report from the hospital that
notified Du's family of his death, the cause of death was internal
bleeding in his brain and abdomen, resulting from external impact. Du
previously wrote in a letter that he had been beaten in the head and
stomach. ``Man Dies After Torture in Custody: Rights Group,'' South
China Morning Post (Online), 12 April 06; Chinese Human Rights
Defenders (Online), ``Internet Writer Trial Set to Open, Disappeared
Hunger Striker Resurfaces,'' 9 April 06.
\134\ PRC Criminal Law, arts. 247, 248. A ``judicial officer'' is
defined as one who ``exercises the functions of investigation,
prosecution, adjudication, and supervision and control.'' Ibid., art.
94. The Special Rapporteur on Torture notes that the Supreme People's
Procuratorate, which directly handles all investigations of torture,
restricts application of both Articles 247 and 248 so that law
enforcement officials are prohibited from acting or punishable for
abuses in just a small number of enumerated cases. Nowak Report, para.
16. New regulations effective July 2006 expand the number of punishable
scenarios from five to eight (in cases of coercing a confession under
torture) and from five to seven (in cases of acquiring evidence through
the use of force and prisoner maltreatment). Supreme People's
Procuratorate Provisions on the Criteria for Filing Dereliction of Duty
and Rights Infringement Criminal Cases, sec. II, paras. 3-5.
\135\ The Chinese government ratified the CAT in 1988. In addition,
Article 5 of the UDHR states: ``No one shall be subjected to cruel,
inhuman or degrading treatment or punishment.''
\136\ Nowak Report, para. 17.
\137\ Office of the UN High Commissioner for Human Rights (Online),
Declaration and Reservations to the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, 23 April 04.
By contrast, the United States has declared that it recognizes the
competence of the Committee against Torture.
\138\ Nowak Report, paras. 53-57.
\139\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, International Religious Freedom Report--2005, China (includes
Tibet, Hong Kong, and Macau), 8 November 05, sec. 2; China Aid
Association (Online), ``An Open Letter to President Bush from South
China Church,'' 18 November 05; ``Videotaped Testimony of Three
Tortured Sisters of the South China Church'' [San wei shou kuxing de
Huanan jiaohui jiemei luxiang jianzheng], Boxun (Online), 8 April 06.
\140\ U.S. Department of State, International Religious Freedom
Report--2005, China, sec. 2; ``Videotaped Testimony of Three Tortured
Sisters of the South China Church,'' Boxun. See also China Aid
Association, ``An Open Letter to President Bush from South China
Church.''
\141\ Christian Solidarity Worldwide (Online), ``China: Current
Developments and Cases of Concern,'' 9 November 05; ``An Open Letter to
President Bush from South China Church.''
\142\ ``Foreign Ministry Spokesman Qin Gang's Press Conference on 6
December 2005,'' Ministry of Foreign Affairs (Online), 7 December 05.
\143\ In March 2006, the All China Lawyers Association Defense
Lawyer Web site included the wrongful convictions of Nie Shubin and She
Xianglin among its list of 2005's top criminal cases. ``Of Interest:
2005's Major Criminal Cases'' [Guanzhu: 2005 zhongda xingshi anjian],
Defense Lawyer Net (Online), 28 March 06. For an analysis of the Nie
and She cases, see CECC, 2005 Annual Report, sec. III(b).
\144\ Liu Dehua, ``Statements That Have Been Coerced Cannot Serve
as Evidence,'' [Bi chu lai de kougong bu neng zuowei zhengju],
Procuratorial Daily (Online), 13 April 05; ``Sichuan High People's
Court, Procuratorate, and Public Security Bureau Issue Joint Document
Strictly Prohibiting Coerced Confessions Under Torture'' [Sichuan
gaoyuan jiancha gonganting lianhe fawen yanjin xingxun bigong], Chengdu
Economic Daily, reprinted in Defense Lawyer Net (Online), 21 April 05.
\145\ Under current Chinese law and judicial interpretations,
judges have the discretion to exclude illegally obtained evidence, and
such evidence may not form the basis for a judgment. However, they are
not required to exclude such evidence. Supreme People's Court
Interpretation on Several Issues Regarding Implementation of the PRC
Criminal Procedure Law [Zuigao renmin fayuan guanyu zhixing ``Zhonghua
renmin gongheguo xingshi susong fa'' ruogan wenti de jieshi], issued 29
June 98; Nowak Report, para. 37.
In December 2005, Hebei province mandated punishment for officials
who use illegal means to acquire evidence and prohibited the use of
such evidence as a basis for arrests, prosecutions, or criminal
verdicts in that province. ``Hebei Provincial Government Issues Opinion
Prohibiting Torture to Obtain Evidence,'' CECC China Human Rights and
Rule of Law Update, February 2006, 3. Liu Ruichuan, president of the
Hebei provincial high court, acknowledged that the opinion comes in the
wake of law enforcement abuses that led to wrongful conviction cases
such as Nie Shubin's in Hebei. ``Concern and Progress: 2005 Inventory
of `Hebei Progress on Rule of Law' '' [Guanghuai yu jinbu--2005 ``Hebei
fazhi jincheng'' niandu jingdian pandian], Yanzhao Metropolis Daily
(Online), 27 December 05. The Hebei opinion does not require the
exclusion of illegally acquired evidence at trial.
\146\ ``Suspects' Questioning to Be Taped,'' Xinhua; Xiao We,
``Dividing Into Three Steps Implementation of Synchronized Audio and
Video Taping During Interrogation'' [Fen san bu tuixing xunwen
quancheng tongbu luyin luxiang], Procuratorial Daily (Online), 18
January 06.
\147\ ``Chinese Legislator Proposes Taping Police Interrogations to
Prevent Torture,'' Xinhua (Online), 6 March 06.
\148\ ``MPS Supports Taping Interrogations, But Has No Plans for
Nationwide Implementation,'' CECC China Human Rights and Rule of Law
Update, June 2006, 7; Ministry of Public Security, ``Ministry of Public
Security Announces First Quarter 2006 Nationwide Public Security
Situation (Direct Feed Transcript).''
\149\ ``Ministry of Justice Issues Prohibitions to Restrain Prison
and RETL Police Abuses,'' CECC China Human Rights and Rule of Law
Update, April 2006, 4.
\150\ ``Beijing Prison Police Will Implement Six Prohibitions Next
Year'' [Beijing jianyu jingcha mingnian shishi liu tiao jinling],
Xinhua (Online), 15 December 05.
\151\ Mo Shaoping, Remarks on Legislative and Implementation
Problems in China's Criminal Law, George Washington University Law
School, 13 October 05; Qin Xudong, ``Who Will Protect the Lawyers? ''
[Shei lai baohu lushi], 21st Century Business Herald (Online), 18 April
06.
\152\ CPL, arts. 33, 34; Regulations on Legal Aid [Falu yuanzhu
tiaoli], issued 16 July 03, art. 12.
\153\ CPL, art. 34; Regulations on Legal Aid, arts. 11-13. The SPC
reported that it appointed pro bono legal defense to 117,407 criminal
suspects meeting conditions for legal aid in 2005. SPC Work Report, 20
March 06.
\154\ ``Central Government Expands Provision of Legal Aid in
Criminal Cases,'' CECC China Human Rights and Rule of Law Update,
December 2005, 5-6; Provisions on Legal Aid Work in Criminal Litigation
[Guanyu xingshi susong falu yuanzhu gongzuo de guiding], issued 28
September 05, art. 4.
\155\ Ibid. Article 151(2) of the CPL previously required
appointment of pro bono legal defense only at the indictment stage,
after receipt of a bill of prosecution from the procuratorate.
\156\ ``NPC Delegate Zhang Yan Proposes Elimination of Criminal Law
Article 306'' [Zhang Yan daibiao jianyi feichu xingfa di san bai ling
liu tiao], Legal Daily (Online), 9 March 06; Mo Shaoping, Remarks on
Legislative and Implementation Problems in China's Criminal Law.
\157\ CPL, art. 96.
\158\ CECC Staff Interviews; UNWGAD Report, paras. 35-38; Xu Zhusi,
``It Is Difficult to Be a Chinese Criminal Lawyer; Mo Shaoping Analyzes
Reasons'' [Zhongguo xingshi lushi nan zuo Mo Shaoping pouxi yuanyin],
Epoch Times (Online), 13 October 05.
\159\ UNWGAD Report, para. 36. Article 96 of the CPL provides: ``If
a case involves [s]tate secrets, the criminal suspect shall have to
obtain the approval of the investigation organ for appointing a
lawyer.''
\160\ ``Court Sentences Xu Wanping to 12 Years Imprisonment for
Inciting Subversion,'' CECC China Human Rights and Rule of Law Update,
February 2006, 17-18.
\161\ ``Authorities in Jiangsu Arrest Writer Yang Tianshui on
Suspicion of Subversion,'' CECC China Human Rights and Rule of Law
Update, March 2006, 19-20.
\162\ Ibid. Yang's lawyer stated: ``Public security typically uses
[the excuse of state secrets]. Actually, in many cases the issue
doesn't exist, but under present conditions it is not even possible to
verify whether a case involves state secrets.'' ``Special Interview:
Defense Lawyer Li Jianqiang Discusses Case of Yang Tianshui''
[Zhuanfang: bianhu lushi Li Jianqiang tan Yang Tianshui an], Epoch
Times (Online), 11 February 06. See also ``Defending Political Cases Is
Too Difficult,'' Deutsche Welle (Online), 21 April 06.
\163\ ``Scholars Complete Working Draft of Revised Criminal
Procedure Law,'' CECC China Human Rights and Rule of Law Update,
February 2006, 17-18; ``Behind the Criminal Procedure Law's Two
Revisions Over 10 Years: Witnesses Must Appear to Testify in Court''
[Xingshi susong fa shi nian liang ci xiugai beihou: zhengren bixu
chuting zuo zheng], CRI (Online), 11 October 05.
\164\ Under Article 36 of the CPL, the defense may not examine and
duplicate official materials related to the case until after the case
is transferred to the procuratorate for prosecution.
\165\ CECC Staff Interview; Xu Zhusi, ``It Is Difficult to Be a
Chinese Criminal Lawyer.'' See also, e.g., UNWGAD Report, para. 35.
\166\ CPL, art. 37.
\167\ ``Authorities Obstruct Publicity and Legal Defense Efforts in
Chen Guangcheng Case,'' CECC China Human Rights and Rule of Law Update,
August 2006, 4-5.
\168\ Josephine Ma, ``Activist's Lawyer Attacked in Village,''
South China Morning Post (Online), 28 June 06; Ding Xiao, ``Lawyers
Take Risks to Videotape in Linyi, Expose Official and Police
Persecution of Chen Guangcheng'' [Lushi Linyi maoxian luxiang jie guan
jing pohai Chen Guangcheng], Radio Free Asia (Online), 28 June 06.
\169\ CPL, art. 37.
\170\ Xu Zhusi, ``It Is Difficult to Be a Chinese Criminal
Lawyer;'' Liang Shubin and Cao Jiyang, ``What Does a Witness'
Unwillingness to Testify Demonstrate? '' [``Zhengren bu yuan zuo
zheng'' shuoming le shenme?], Legal Daily (Online), 6 April 06. At
least one Supreme People's Court judge has suggested legislative reform
that will provide economic compensation and witness protection to
witnesses appearing in court. Wu Jing, ``In Some Basic People's Courts,
Less Than 1 Percent of Witnesses Appear in Court'' [Yi xie jiceng
fayuan zhengren chuting lu bu zu 1 percent], People's Daily (Online), 1
June 06.
\171\ Under the CPL, ``the testimony of a witness may be used as
the basis in deciding a case only after the witness has been questioned
and cross-examined in the courtroom by both sides.'' CPL, art. 47.
\172\ ``Scholars Complete Working Draft of Revised Criminal
Procedure Law,'' CECC China Human Rights and Rule of Law Update,
February 2006, 17-18; ``Behind the Criminal Procedure Law's Two
Revisions Over 10 Years,'' CRI.
\173\ CECC Staff Interviews.
\174\ ``Henan Justice Bureau Bans Lawyers From Using Media in
Sensitive Cases,'' CECC China Human Rights and Rule of Law Update, June
2006, 5-6; ``ACLA, Justice Bureau Opinions Restrict Lawyer Involvement
in Sensitive, Mass Cases,'' CECC China Human Rights and Rule of Law
Update, June 2006, 4-5.
\175\ Huo Shiming, ``Shenyang Lawyers Must Seek Advisory Opinions
When Taking on Sensitive Cases,'' [Shenyang lushi chengban mingan
anjian xu qingshi], Legal Daily (Online), 20 April 06.
\176\ UNWGAD Report, para. 38. Over 300 lawyers are currently
estimated to be in custody under Article 306. ``Defending Political
Cases Is Too Difficult,'' Deutsche Welle.
\177\ According to one prominent Beijing lawyer, over 80 percent of
the 500 lawyers taken into custody between 1997 and 2002 have been
cleared of wrongdoing. Mo Shaoping, Remarks on Legislative and
Implementation Problems in China's Criminal Law.
\178\ ``NPC Delegate Zhang Yan Proposes Elimination of Criminal Law
Article 306,'' Legal Daily.
\179\ ``Hong Kong Newspaper Highlights Government Repression of
Lawyers,'' CECC China Human Rights and Rule of Law Update, June 2006,
3-4. See also supra, ``Political Crimes,'' and accompanying notes;
``Lawyer Fighting for Oil Investors Gets 1-Year Bail,'' South China
Morning Post (Online), 23 September 05; ``Lawyers Pushed Out of
Oilfield Struggle in Shaanxi,'' South China Morning Post (Online), 25
September 05; Philip P. Pan, ``China Shutters Prominent Lawyer's
Firm,'' Washington Post (Online), 6 November 05; Joseph Kahn, ``Rebel
Lawyer Takes China's `Unwinnable' Cases,'' New York Times (Online), 12
December 05; ``China Fires Lawyers Linked With Taishi Village
Standoff,'' Radio Free Asia (Online), 14 December 05.
\180\ See supra, ``Arbitrary Detention in the Formal Criminal
Process,'' and accompanying notes.
\181\ ``Hong Kong Newspaper Highlights Government Repression of
Lawyers,'' CECC China Human Rights and Rule of Law Update, June 2006,
3-4; ``Three Rights Defenders Not Allowed to Participate in U.S.
Forum'' [San wei weiquan renshi bei ju fu Mei canjia luntan], Radio
Free Asia (Online), 2 May 06 (discussing Fan Yafeng, Gao Zhisheng, and
Zhang Xingshui).
\182\ ``Beijing Officials Order Gao Zhisheng to Shut Down His Law
Firm,'' CECC China Human Rights and Rule of Law Update, December, 2005,
11-12; ``Human Rights Defenders Launch Hunger Strike to Protest
Government Oppression,'' CECC China Human Rights and Rule of Law
Update, March, 2006, 3-4; ``Hong Kong Newspaper Highlights Government
Repression of Lawyers,'' CECC China Human Rights and Rule of Law
Update, June 2006, 3-4; ``Three Rights Defenders Not Allowed to
Participate in U.S. Forum,'' Radio Free Asia; Pan, ``China Shutters
Prominent Lawyer's Firm;'' Kahn, ``Rebel Lawyer Takes China's
`Unwinnable' Cases.''
\183\ ``Hong Kong Newspaper Highlights Government Repression of
Lawyers,'' CECC China Human Rights and Rule of Law Update, June 2006,
3-4. See also supra, ``Political Crimes,'' and accompanying notes.
\184\ ``Chinese Defense Lawyer Guo Guoting Arrives in Canada,''
CECC China Human Rights and Rule of Law Update, June 2005, 4-5; ``Hong
Kong Newspaper Highlights Government Repression of Lawyers,'' CECC
China Human Rights and Rule of Law Update, June 2006, 3-4; Bill
Savadove, ``Justice Remains Shanghaied in City's Law Courts,'' South
China Morning Post (Online), 7 February 06 (reporting Guo's flight to
Canada); ``Radio France Internationale: Guo Guoting, a Renowned Chinese
Lawyer, Published his Resignation from the Chinese Communist Party,''
Clear Harmony (Online), 16 June 05 (reporting Guo's house arrest and
arrival in Canada); ``Lawyer for Several Journalists and
Cyberdissidents Banned from Practicing for One Year,'' Reporters
Without Borders (Online), 4 March 05 (reporting suspension of Guo's law
license).
\185\ ``Hong Kong Newspaper Highlights Government Repression of
Lawyers,'' CECC China Human Rights and Rule of Law Update, June 2006,
3-4; Gao Zhisheng, ``Following Last Week's Raid, Police of Beijing
Again Illegally Raided Church of Ark Today,'' China Aid Association
(Online), 15 January 06 (detailing raid of house church and physical
attack on Li Baiguang).
\186\ ``Hong Kong Newspaper Highlights Government Repression of
Lawyers,'' CECC China Human Rights and Rule of Law Update, June 2006,
3-4; Jiang Tianyong, ``When Lawyer Li Heping and I Met With Gao
Zhisheng, We Were Illegally Obstructed by Plainclothes Officers''
[Jiang Tianyong: wo yu Li Heping lushi huijian Gao Zhisheng bei bianyi
jingcha feifa zunao], Boxun (Online), 10 March 06.
\187\ ``Human Rights Defenders Launch Hunger Strike to Protest
Government Oppression,'' CECC China Human Rights and Rule of Law
Update, March 2006, 3-4; ``Hong Kong Newspaper Highlights Government
Repression of Lawyers,'' CECC China Human Rights and Rule of Law
Update, June 2006, 3-4; Xu Zhiyong, ``Encountering the Linyi
Government's Thuggish Criminal Syndicate'' [Xu Zhiyong: zaoyu Linyi
zhengfu liumang heishehui], Boxun (Online), 7 October 05.
\188\ ``Hong Kong Newspaper Highlights Government Repression of
Lawyers,'' CECC China Human Rights and Rule of Law Update, June 2006,
3-4; ``Three Rights Defenders Not Allowed to Participate in U.S.
Forum,'' Radio Free Asia.
\189\ ``Authorities Impose Special Procedures on Release of
Shanghai Lawyer Zheng Enchong,'' CECC China Human Rights and Rule of
Law Update, June 2006, 7-8; ``Authorities Release Shanghai Lawyer Zheng
Enchong, Restrict His Speech and Movement,'' CECC China Human Rights
and Rule of Law Update, July 2006, 2-3; ``Hong Kong Newspaper
Highlights Government Repression of Lawyers,'' CECC China Human Rights
and Rule of Law Update, June 2006, 3-4; Amnesty International (Online),
``China: Jailed Lawyer Beaten After Asking for Piece of Paper,'' 20
December 05.
\190\ ``Prominent Chinese Lawyers Call on Lawyers Association to
Investigate the Detention of Zhu Jiuhu,'' CECC China Human Rights and
Rule of Law Update, September 2005, 7-8; ``Hong Kong Newspaper
Highlights Government Repression of Lawyers,'' CECC China Human Rights
and Rule of Law Update, June 2006, 3-4; ``Zhu Jiuhu Has Returned to
Beijing, Suspected of Receiving Pressure, Journalists Await His Landing
in Vain'' [Zhu Jiuhu yi hui Beijing, yi shoudao yali, jiejizhe pukong],
Radio Free Asia (Online), 20 September 05; ``Open Appeal Concerning the
Case of Lawyer Zhu Jiuhu [Guanzhu Zhu Jiuhu lushi an de gongkai
huyushu], Epoch Times (Online), 22 August 05; Mure Dickie, ``Shaanxi
Arrests Highlight Doubts Over the Rule of Law in China,'' Financial
Times (Online), 20 August 05; Chinese Human Rights Defenders (Online),
``Urgent Appeal to the National People's Congress Standing Committee,
Et Al. Regarding the Rights Defense Case of Private Investors in Yulin,
Shaanxi'' [Jiu Shaanxi Yulin minying touzizhe weiquan an quanguo renda
changweihui (deng) jinji huyushu], 14 July 05.
\191\ ``China's Rights Defense Lawyers, Rule of Law Pioneers,''
Asia Weekly (Online), 25 December 05; ``Hong Kong Newspaper Highlights
Government Repression of Lawyers,'' CECC China Human Rights and Rule of
Law Update, June 2006, 3-4.
\192\ See supra, ``Political Crimes,'' and accompanying text.
\193\ Criminal courts of first instance found 844,717 suspects
guilty of crimes in 2005 and found only 2,162 defendants not guilty.
SPC Work Report, 20 March 06. Findings of guilt rose about 10 percent
from the 767,951 figure in 2004, while findings of not guilty dropped
about 28 percent from the 2,996 figure. Supreme People's Court Work
Report [Zuigao renmin fayuan gongzuo baogao], 8 March 05.
\194\ ``Tracking Miscarriage of Justice in the She Xianglin Wife
Murder Case: Court Vice President Provides New Explanations for the
Reasons Behind Miscarriage of Justice'' [She Xianglin sha qi yuanan
zhuizong: fayuan fu yuanzhang xin jie yuanan chengyin], Shanghai Daily
(Online), 9 April 05.
\195\ ``Public Security Bureau Compensates She Xianglin for
Wrongful Imprisonment,'' CECC China Human Rights and Rule of Law
Update, December 2005, 16.
\196\ ``Nie Shubin Miscarriage of Justice Murder Case Unresolved;
Public Calls for External Investigation to Guard Against `Compromising
[the Case]' '' [``Nie Shubin yuan sha an'' xuan erweijue fang ``gou
dui'' gongzhong yu yidi diaocha], Southern Weekend (Online), 29 March
05; ``Why Not Compensate Eight Years of Wrongful Imprisonment? '' [Ba
nian yuan yu weihe bu peichang], Legal Daily (Online), 18 April 05;
Joseph Kahn, ``Deep Flaws, and Little Justice, in China's Court
System,'' New York Times (Online), 20 September 05; ``14-Year
Miscarriage of Justice: Wife Murderer and `Liaoning's She Xianglin' Li
Huwei Receives State Compensation'' [14 nian sha qi yuanan ``Liaoning
She Xianglin'' Li Huwei huo guojia peichang], People's Daily (Online),
15 April 05; Mure Dickie, ``Miscarriage of Justice Puts Chinese Police
in Dock,'' Financial Times (Online), 10 June 05.
\197\ See, e.g., Zhang Guanghua, ``She Xianglin's Lawyer Says That
Lessons Should Be Drawn From Unjust Case'' [She Xianglin lushi cheng
ying cong yuanan xiqu jiaoxun], Voice of America (Online), 16 February
06.
\198\ Responses provided during interrogation may later be used as
evidence at trial, but a court cannot convict and sentence a defendant
``if there is only his statement but no evidence.'' CPL, arts. 46, 93.
\199\ ``Chongqing Court Exonerates Man Who Retracted Coerced
Confession,'' CECC China Human Rights and Rule of Law Update, April
2006, 13; Qin Liwen, ``After Two Years, Cao Hongbing Verdict Ultimately
Overturned and Not Guilty'' [Lishi liang nian Cao Hongbing zhong bei
gai pan wuzui], Legal Daily (Online), 2 March 06.
\200\ ``Coercion of Confessions by Torture Not Convenient to Use?
Beijing Handling of Cases Will Weaken Oral Statements, Strengthen
Evidence'' [Xingxun bigong bu hao shi le? Beijing ban an jiang ruo
kougong qiang zhengju], Beijing Youth Daily, reprinted in Xinhua
(Online), 14 February 06.
\201\ ``Defending Political Cases Is Too Difficult,'' Deutsche
Welle.
\202\ Ibid.; CECC Staff Interviews; Veron Mei-Ying Hung, ``Judicial
Reform in China: Lessons from Shanghai,'' 58 Carnegie Papers 10-11
(April 2005).
\203\ CPL, arts. 181, 185-86.
\204\ Under Chinese law, procuratorates may be required to pay
criminal compensation for wrongful arrest and prosecution if defendants
are found not guilty. PRC State Compensation Law, enacted 12 May 94,
art. 15. Procuratorates appealed 10,107 acquittals in 2005. Of these,
2,677 resulted in a change in the original judgment. SPC Work Report,
20 March 06.
\205\ In late 2005, Pastor Cai decided not to appeal his conviction
after Beijing court officials reportedly threatened him with an
increased prison term if he exercised that right. China Aid Association
(Online), ``Jailed Church Leader Forced to Withdraw Further Appeal; One
Defendant Decides to Continue Appeal,'' 16 November 05.
\206\ CPL, art. 180.
\207\ Ibid., art. 189.
\208\ ``Don't Allow the Wings of Justice to Break: Using Unjust
Cases to Look at Confessions Extorted Through Torture'' [Bie rang
zhengyi zheduan le chibang: cong mianan kan xingxun bigong], Legal
Daily (Online), 22 April 05; Liu Binglu, ``Misuse of Retrials Is a
Major Reason for Unjust Cases'' [Lanyong fahui chongshen shi zhi yuanan
zhuyin], Beijing News (Online), 4 April 05; Hung, ``Judicial Reform in
China,'' 17.
\209\ Leng Jilin, ``There Should Be Provisions on How Many Times a
Second Instance Court Can Return for Remand'' [Ying guiding er shen
fahui chongshen de cishu], Legal Daily, reprinted in Defense Lawyer Net
(Online), 15 May 06; ``Don't Allow the Wings of Justice to Break,''
Legal Daily; Liu Binglu, ``Misuse of Retrials Is a Major Reason for
Unjust Cases.''
\210\ Chinese sources note that the number of crimes punishable by
death increased from 28 under the 1979 Criminal Law to 68
(approximately one-quarter of the total number of crimes) under the
1997 Criminal Law. Xiong Qiuhong, ``Discussing the Defense of Death
Penalty Cases'' [Lun sixing anjian zhong de bianhu], Justice of China
(Online), 20 July 04; Lin Tao, ``Study on the Issues in Hearing and
Reviewing Death Penalty Cases'' [``Sixing'' anjian de shenli yiji fuhe
zhong de wenti yanjiu], China Legal Publicity (Online), 10 January 06.
At least one scholar has characterized 44 (approximately 65 percent) of
the crimes punishable by death as non-violent crimes. Jiang Anjie,
``Compilation of Viewpoints from the First Period Forum `Concerning
Death Penalty Reform' '' [``Guanzhu sixing gaige'' shouqi luntan
guandian huicui], China Legal Publicity (Online), 29 December 05
(quoting Professor Gao Mingxuan, Renmin University). See also Amnesty
International (Online), ``Death Penalty Developments in 2005,'' 20
April 06; ``China to Open More Death Penalty Cases to Public,''
Reuters, reprinted in China Daily (Online), 27 February 26.
\211\ ``PRC Foreign Ministry Spokesman Defends Keeping PRC
Execution Statistics Secret,'' Agence France-Presse, 5 February 04
(Open Source Center, 5 February 04).
\212\ Liu Renwen, a scholar at the Law Institute of the Chinese
Academy of Social Sciences, estimates that China carried out about
8,000 executions in 2005. Geoffrey York, ``China's Secret Execution
Rate Revealed,'' The Globe and Mail (Online), 28 February 06; Antoaneta
Bezlova, ``China to `Kill Fewer, Kill Carefully,' '' Asia Times
(Online), 31 March 06. In March 2004, an NPC delegate suggested that
Chinese courts issue death sentences for immediate execution in
``nearly 10,000 cases per year.'' ``41 Representatives Jointly Sign
Proposal for the Supreme People's Court to Take Back the Power of Death
Penalty Approval'' [41 daibiao lianming jianyi, zuigao renmin fayuan
shouhui sixing hezhun quan], China Youth Daily, reprinted in People's
Daily (Online), 10 March 04.
\213\ ``China's Supreme Court to Reclaim Death Penalty Review Right
from Lower Tribunals,'' Xinhua, reprinted in People's Daily (Online),
26 October 05. See also supra, ``Fairness of Criminal Trials and
Appeals,'' and accompanying notes.
\214\ ``Supreme People's Court Maps Future Judicial Reforms in
Five-Year Reform Program,'' CECC China Human Rights and Rule of Law
Update, February 2006, 7-9; ``SPC Incorporates Reform of Death Penalty
Review into New Five Year Program,'' CECC China Human Rights and Rule
of Law Update, December 2005, 2-3; Second Five-Year Reform Program for
the People's Courts (2004-2008) [Renmin fayuan di er ge wu nian gaige
gangyao (2004-2008)], issued 26 October 05, para. I.2; ``China's
Supreme Court to Reclaim Death Penalty Review Right from Lower
Tribunals,'' Xinhua. Although Articles 48 of the Criminal Law and 199
of the Criminal Procedure Law unequivocally require that all death
sentences must be approved by the SPC, authority for approving certain
death sentences shifted to provincial-level high courts beginning in
1980. For more information, see ``The Execution of Lobsang Dondrub and
the Case Against Tenzin Deleg: The Law, the Courts, and the Debate on
Legality,'' Congressional-Executive Commission on China, 10 February
03.
\215\ ``Death Penalty Review Power Will Be Consolidated and
Returned for Exercise by the Supreme People's Court'' [Sixing fuhe quan
jiang tongyi shougui zuigao fayuan xingshi], Xinhua (Online), 26
October 05; ``China's Supreme Court to Reclaim Death Penalty Review
Right From Lower Tribunals,'' Xinhua. A review of death penalty cases
in Beijing, Tianjin, and Hebei revealed a high rate of error among
lower courts. High courts found that in 90 percent of death penalty
cases that they remanded and overturned, the trial court's conclusions
on significant facts and evidence raised reviewable questions.
Conclusions on significant facts and evidence posed a problem in 50
percent of the cases that the SPC remanded or overturned. Liao Weihua,
``Hearings to be Conducted for All Second Instance Death Penalty Next
Year'' [Sixing an ershen mingnian xiabannian quan xu kaiting shen],
Beijing News (Online), 8 December 05.
\216\ ``Supreme People's Court Calls for Hearings in Death Penalty
Appeals,'' CECC China Human Rights and Rule of Law Update, December
2005, 2-3; Supreme People's Court Circular Regarding Further Improving
Open Court Session Work in Second Instance Death Penalty Cases [Zuigao
renmin fayuan guanyu jin yi bu zuo hao sixing ershen anjian kaiting
shenli gongzuo de tongzhi], issued 7 December 05, para. 2; Second Five-
Year Reform Program for the People's Courts (2004-2008), para. I.1.
\217\ Supreme People's Court Circular Regarding Further Improving
Open Court Session Work in Second Instance Death Penalty Cases, paras.
3-5.
\218\ ``Provincial High Courts Implement SPC Circular on Death
Penalty Hearings,'' CECC China Human Rights and Rule of Law Update,
March 2006, 6; Wu Chunping, ``Hainan High Court Conducts Hearings in
All Second Instance Death Penalty Cases'' [Hainan gaoyuan ershen sixing
anjian quanbu kaiting shenli], China Court Net (Online), 26 January 06;
Zong Bian, ``Since 1979, Beijing High Court Has Conducted Hearings in
All Second Instance Death Penalty Cases'' [Beijing gao yuan zi 1979
nian yilai sixing di ershen anjian quanbu kaiting shenli], China Court
Net (Online), 20 January 06.
\219\ ``Discussion Forum Convenes on `Supreme People's Court
Measures for Reclaiming the Power Over Death Penalty Review' ''
[``Zuigao renmin fayuan shouhui sixing fuhequan zhi duice'' yantaohui
zhaokai], 21st Century Business Herald (Online), 1 June 05.
\220\ ``SPC Takes Additional Steps to Reclaim Authority Over Death
Penalty Review,'' CECC China Human Rights and Rule of Law Update,
November 2005, 2; Xie Xiaodong, ``Supreme People's Court Expands the
Ranks to Prepare for War in Death Penalty Reviews'' [Zuigaofa kuo bian
beizhan sixing fuhe], Beijing News (Online), 3 November 05; Guo
Hengzhong, ``Two Expert-Level Grand Justices Wield the Seal of Death
Penalty Review Powers'' [Zhizhang sixing fuhequan shuaiyin de liang wei
zhuanjia xing dafaguan], Legal Daily (Online), 28 September 05.
\221\ He Chunzhong, ``Supreme People's Court Will Add 3 Criminal
Tribunals to Deal With Reclaiming the Death Penalty Review Power''
[Zuigao renmin fayuan jiang zengshe 3 ge xingting yingdui sixing
fuhequan shouhui], China Youth Daily (Online), 27 September 05.
\222\ Wu Chunping, ``Hainan High Court Conducts Hearings in All
Second Instance Death Penalty Cases;'' Zong Bian, ``Since 1979, Beijing
High Court Has Conducted Hearings in All Second Instance Death Penalty
Cases;'' ``Tianjin High Court Implements Hearings for Second Instance
Death Penalty Review Cases'' [Tianjin gaoyuan luoshi sixing di ershen
anjian kaiting gongzuo], China Court Net (Online), 23 January 06; Ni
Xiao, ``Shanghai High Court Conducts Hearings in All Second Instance
Death Penalty Cases'' [Shanghai gaoyuan sixing ershen an quan kaiting
shenli], Legal Daily (Online), 23 January 06.
\223\ Wang Doudou, ``Death Penalty Appeals Hearings Enter Their
Fortification Stage'' [Sixing ershen anjian kaiting jinru gongjian
jieduan], Legal Daily (Online), 29 May 06; ``China's Supreme Court to
Review All Death Penalty Cases,'' Xinhua, reprinted in China Daily
(Online), 3 April 06.
\224\ ``Organ Transplants: A Zone of Accelerated Regulation''
[Qiguan yizhi: jiakuai guizhi de didai], Caijing Magazine (Online), 28
November 05. The magazine reports that over 95 percent of organs
transplanted in China come from executed prisoners.
\225\ ``Health Official Denies Random Transplant of Organs From
Executed Criminals,'' Xinhua, reprinted in People's Daily (Online), 11
April 06; ``Organs Taken `With Consent of Prisoners,' '' Agence France-
Presse, reprinted in South China Morning Post (Online), 29 March 06.
\226\ ``British Transplantation Society Criticizes the Alleged Use
of Organs Without Consent from Prisoners Executed in the People's
Republic of China,'' The British Transplantation Society (Online), 19
April 06; David Matas and David Kilgour, Report into Allegations of
Organ Harvesting of Falun Gong Practitioners in China, 6 July 06.
\227\ World Health Organization, Guiding Principle 3, ``Guiding
Principles on Human Organ Transplantation,'' adopted May 1987.
\228\ ``Provisions Issued on Organ Transplants, Fail to Address
Executed Prisoners,'' CECC China Human Rights and Rule of Law Update,
May 2006, 10-11; Temporary Provisions on Human Organ Transplant
Clinical Practice Management [Renti qiguan yizhi jishu linchuang ying
yong guanli zanxing guiding], issued 27 March 06.
\229\ Temporary Provisions Regarding the Use of Corpses or Organs
from Executed Prisoners [Guanyu liyong sixing zuifan shiti qiguan de
zanxing guiding], issued 9 October 84, para. 3.
\230\ ``China Vows to Deepen Int'l Co-op in Fight Against
Corruption,'' Xinhua (Online), 14 June 06; ``Mekong Governments Taking
Concrete Actions Against Human Trafficking,'' Xinhua, reprinted in
People's Daily (Online), 13 May 06.
\231\ Zhou Yongkang Holds Talks With US Homeland Security Secretary
Michael Chertoff,'' Xinhua, 4 April 06 (Open Source Center, 4 April
06); ``China, US Release Statement on Anti-Corruption Issues,'' Xinhua
(Online), 29 June 06.
\232\ CECC Staff Interviews and Correspondence. For news reports on
some of these programs, see, e.g., ``China--Canada New Cooperation
Programme,'' International Centre for Criminal Law Reform and Criminal
Justice Policy (Online); ``The Present Situation and Prosperous Future
of China Clinical Legal Education,'' Global Alliance for Justice
Education (Online), 1 August 05; ``World Law Conference Convenes in
Beijing,'' China Daily, reprinted in China Internet Information Center
(Online), 5 September 05; ``Highlights of the 22nd World Congress on
Law'' [Er shi er jie shijie falu dahui jingcai liangdian], Legal Daily
(Online), 5 September 05; Jiang Anjie, ``How to Improve Procedures for
Death Penalty Review'' [Sixing fuhe chengxu ruhe wanshan], Legal Daily
(Online), 1 December 05; ``Third Session of Program Between Nanjing
Normal University Law School and University of Maryland to Cooperate in
Developing a Masters Degree in Criminal Justice (MCJ)'' [Nanjing shifan
daxue yu meiguo malilan daxue hezuo peiyang xingshi sifa xue shuoshi
(MCJ) xiangmu di san qi], Nanjing Normal University Law School
(Online), May 2006.
\233\ CECC Staff Interviews and Correspondence.
\234\ UN High Commissioner for Human Rights, ``Special Rapporteur
on Torture Highlights Challenges at End of Visit to China;'' ``UN
Special Rapporteur on Torture Concludes Two-Week Visit to China,'' CECC
China Human Rights and Rule of Law Update, January 2006, 12-13. See
also supra, ``Torture and Abuse in Custody,'' and accompanying notes.
\235\ UN High Commissioner for Refugees (Online), ``Statement to
Media by United Nations High Commissioner for Refugees Antonio
Guterres, on Conclusion of His Mission to the People's Republic of
China,'' 23 March 06; ``High Commissioner for Refugees Visits China,
Object to North Korean Repatriation,'' CECC China Human Rights and Rule
of Law Update, May 2006, 2-3.
\236\ ``China `More Aware' of Torture Use,'' BBC (Online), 22
November 05; ``Statement to Media by UN High Commissioner for Refugees
Antonio Guterres.''
\237\ UN High Commissioner for Human Rights, ``Special Rapporteur
on Torture Highlights Challenges at End of Visit to China;'' ``UN
Special Rapporteur on Torture Concludes Two-Week Visit to China,'' CECC
China Human Rights and Rule of Law Update, January 2006, 12-13. The
Ministry of Foreign Affairs ``denied Nowak's allegations that public
security officers had monitored his activities and tried to stop
torture victims from meeting with him.'' Louisa Lim, ``China Denies UN
Torture Findings,'' BBC (Online), 6 December 05.
\238\ United Nations (Online), ``General Assembly Elects 47 Members
of New Human Rights Council,'' 9 May 06.
\239\ These include the International Covenant on Economic, Social
and Cultural Rights; the Convention on the Elimination of All Forms of
Racial Discrimination; the Convention on the Elimination of All Forms
of Discrimination Against Women; the Convention on the Rights of the
Child; and the CAT. PRC Aide Memoire, reprinted in United Nations
(Online), 13 April 06.
\240\ Ibid.
\241\ ``China Vows to Further Contribute to Human Rights Course,''
Xinhua (Online), 10 May 06.
\242\ United Nations, ``General Assembly Elects 47 Members of New
Human Rights Council;'' Warren Hoge, ``New U.N. Rights Group Includes
Six Nations With Poor Records,'' New York Times (Online), 10 May 06;
Chen Xulong, ``Reforming Rights Protection,'' Beijing Review (Online),
11 May 06.
Notes to Section V(c)--Protection of Internationally Recognized
Labor Standards
\1\ ILO Declaration on Fundamental Principles and Rights at Work,
18 June 98, International Labour Organization, art. 2 [hereinafter ILO
Declaration].
\2\ CECC, 2005 Annual Report, 11 October 05, 37.
\3\ ``Fundamental ILO Conventions,'' International Labour
Organization (Online), 20 October 00.
\4\ 122 countries have ratified all of the fundamental conventions,
while 57 countries have not. Ratifications of the ILO Fundamental
Conventions, International Labour Organization (Online), 23 August 06.
The United States has ratified two of the eight ILO core conventions,
but even without ratification, the conventions already are largely
incorporated into U.S. law. The ILO Declaration ``[d]eclares that all
Members, even if they have not ratified the Conventions in question,
have an obligation arising from the very fact of membership in the
Organization to respect, to promote and to realize, in good faith and
in accordance with the Constitution, the principles concerning the
fundamental rights which are the subject of those Conventions, namely:
(a) freedom of association and the effective recognition of the right
to collective bargaining . . . .''
\5\ Ratifications of the ILO Fundamental Conventions, International
Labour Organization.
\6\ ``China: Forced Labor and Trafficking: the Role of Labour
Institution in Law Enforcement and International Cooperation,''
International Labour Organization (Online), August 2005.
\7\ PRC Labor Law [Zhonghua renmin gongheguo laodong fa], enacted 5
July 94, amended 10 October 01.
\8\ Trial Measures on Reeducation Through Labor [Laodong jiaoyang
shixing banfa], issued 21 January 82; Provisions on Public Security
Agencies' Handling of Reeducation Through Labor Cases [Gongan jiguan
banli laodong jiaoyang anjian guiding], issued 12 April 02; PRC Public
Security Administration Punishment Law, enacted 28 August 05.
\9\ ILO Convention (No. 105) Concerning the Abolition of Forced
Labour, 25 June 57, 320 U.N.T.S. 291; ILO Convention (No. 29)
Concerning Forced or Compulsory Labour, 28 June 30, 39 U.N.T.S. 55.
\10\ China has signed, but has not yet ratified, the ICCPR. The
Chinese government has committed itself to ratifying, and thus bringing
its laws into conformity with, the ICCPR and reaffirmed its commitment
as recently as April 13, 2006, in its application for membership in the
UN Human Rights Council. China's top leaders have previously stated on
three separate occasions that they are preparing for ratification of
the ICCPR, including in a September 6, 2005, statement by Politburo
member and State Councilor Luo Gan at the 22nd World Congress on Law,
in statements by Chinese Premier Wen Jiabao during his May 2005 Europe
tour, and in a January 27, 2004 speech by Chinese President Hu Jintao
before the French National Assembly.
\11\ Statement Made By China Upon Ratification of the ICESCR,
Office of the UN High Commissioner for Human Rights (Online), 27 March
01. Article 10 of China's Trade Union Law establishes the All-China
Federation of Trade Unions as the ``unified national organization,''
and Article 11 mandates that all unions must be approved by the next
higher-level union body, giving the ACFTU an absolute veto over the
establishment of any local union and the legal authority to block
independent labor associations. PRC Trade Union Law, enacted 3 April
92, amended 27 October 01, arts. 10, 11.
\12\ Trini Leung, ``ACFTU and Union Organizing,'' China Labour
Bulletin (Online), 26 April 02.
\13\ PRC Trade Union Law, art. 4.
\14\ ``Wang Zhaoguo Speaks at Presidium Meeting of All-China
Federation of Trade Unions,'' Xinhua, 4 July 05 (Open Source Center, 4
July 05); PRC Trade Union Law, art. 11.
\15\ PRC Trade Union Law, arts. 10, 11.
\16\ Constitution of the Trade Unions of the People's Republic of
China, adopted 24 October 98, art. 15.
\17\ Leung, ``ACFTU and Union Organizing.''
\18\ Hong Kong Liaison Office of International Free Labor Trade
Unions (Online), ``ACFTU and Trade Unions,'' March 2006.
\19\ Ibid.
\20\ Ibid.; ``Total Grassroots Union in China Total 1,174,000'' [Wo
guo jiceng gonghui shuliang da 117.4 wan], Xinhua (Online), 5 July 06.
\21\ ``China Plans to Unionize 60% of Foreign Firms,'' Asia Times
(Online), 1 April 06; Hai Tao, ``Chinese Government Plans to Pressure
Foreign Enterprises to Establish Unions'' [Zhongguo zhengfu jihua cu
waizi qiye sheli gonghui], Voice of America (Online), 25 July 06.
\22\ Hai Tao, ``Chinese Government Plans To Pressure Foreign
Enterprises To Establish Unions.''
\23\ ``Total Grassroots Union in China Total 1,174,000,'' Xinhua.
\24\ ``Foreign Firms Should Be Compelled to Unionize,'' China Daily
(Online), 6 July 06.
\25\ China Labor Bulletin (Online), ``Wal-Mart Unionisation Drive
Ordered by Hu Jintao in March--A Total of 17 Union Branches Now Set
Up,'' 15 August 06.
\26\ Ibid.
\27\ ``ACFTU and Trade Unions,'' Hong Kong Liaison Office of
International Free Labor Trade Unions (Online), March 06.
\28\ Alison Mailland, ``Reebok in China: Worker Elections in Two
Supplier Factories,'' Financial Times (Online), 12 December 02.
\29\ Nie Chunlin, ``New Political Atmosphere in Hubei, Direct
Election of 50,000 Union Heads by 2009,'' 21st Century Business Herald
(Online), 5 January 06.
\30\ Notice on Issuance of ``Opinion on Strengthening the Direct
Election Work of Grassroots Unions'' and ``Hubei Trial Measures on
Direct Elections of Union Heads'' [Guanyu yinfa ``Guanyu jiaqiang
jiceng gonghui zhuxi zhijie xuanju gongzuo de yijian'' he ``Hubei sheng
jiceng gonghui zhuxi zhijie xuanju shixing banfa'' de tongzhi], issued
7 July 05, art. 11(1), (3).
\31\ For additional information on Li's case, see the CECC
Political Prisoner Database, at http://ppd.cecc.gov.
\32\ Ibid.
\33\ Human Rights in China (Online), ``Jailed Labor Activists
Refused Medical Parole,'' 19 December 03; China Labour Bulletin
(Online), ``Chronology of Cases of Yao Fuxin and Xiao Yunliang,'' 2
November 05.
\34\ Labor Rights and Conditions in China, Staff Roundtable of the
Congressional-Executive Commission on China, 18 March 02, Testimony of
Mark Hankin, Coordinator for Program Development, the American Center
for International Labor Solidarity, AFL-CIO.
\35\ Simon Clarke, Chang-Hee Lee, and Qi Li, ``Collective
Consultation and Industrial Relations in China,'' 42 Brit. J.
Industrial Relations 235, 242 (2004).
\36\ PRC Trade Union Law, art. 20.
\37\ Provisions on Collective Contracts [Jiti hetong guiding],
issued 20 January 04.
\38\ Ronald C. Brown, ``China's Collective Contract Provisions: Can
Collective Negotiations Embody Collective Bargaining? '' 16 Duke J.
Comp. & Int'l L. 35, 36 (2006).
\39\ Clarke, ``Collective Consultation and Industrial Relations in
China,'' 242 (2004).
\40\ State Council Information Office, White Paper on China's
Employment Situation and Policies, April 2004; All-China Federation of
Trade Unions, 2005 ACFTU Blue Book on Upholding the Legal Rights and
Interests of Workers, 2 June 06; Interpreting the 2005 ACFTU Blue Book
on Upholding the Legal Rights and Interests of Workers'' [2005 Zhongguo
gonghui weihu zhigong hefa quanyi lanpishu shuju jiedu], Workers Daily,
reprinted in People's Daily (Online), 2 June 06; State Council
Information Office (Online), China Facts and Figures, 2004.
\41\ Information provided by U.S. Embassy Beijing.
\42\ Ibid.
\43\ PRC Labor Law, arts. 77-84; PRC Trade Union Law, arts. 20, 21.
\44\ PRC Labor Law, art. 80.
\45\ Ibid., art. 79.
\46\ ``Xinjiang People's Congress Representative Appeals for
Abolition of Labor Arbitration Procedure'' [Xinjiang renda daibiao huyu
quxiao laodong zhongcai qianzhi de falu chengxu], Xinhua (Online), 20
January 06.
\47\ PRC Labor Law, art. 81.
\48\ In some cases, the trade union officials have taken the side
of the employer rather than the employee. China Labour Bulletin
(Online), ``Courtroom Episode: Trade Union Official vs. Worker,'' 28
October 05.
\49\ SPC Judicial Interpretation on Several Questions Regarding the
Use of Law in Labor Dispute Cases [Zui gao fayuan guanyu shenli laodong
zhengyi anjian shiyong ruogan wenti de jieshi], issued 14 August 06,
art. 3.
\50\ ``Labor Arbitration Becomes More Professionalized'' [Laodong
zhongcai shitihua laodong zhengyi hao tiaojie], Xinhua (Online), 31
August 05.
\51\ Ibid.
\52\ Ministry of Labor and Social Security, reprinted by the PRC
Central Government (Online), ``Ministry of Labor and Social Security
Holds Press Conference on First Quarter of 2006 Work'' [Laodong he
shehui baozhang bu zhaokai 2006 nian di yi jidu xinwen fabuhui], 5 May
06.
\53\ Anhui Province Department of Labor and Social Security
(Online), ``Introduction to Anhui Arbitration Tribunals'' [Anhui sheng
laodong zhengyi zhongcaiyuan jieshao], 22 June 06.
\54\ PRC Labor Law, art. 83.
\55\ China Labour Bulletin (Online), ``Over 300,000 Labour Lawsuits
Filed in 2005, ACFTU Survey Says,'' 12 May 06; Information provided by
U.S. Embassy Beijing.
\56\ Ibid.
\57\ Ibid.
\58\ Ibid.
\59\ PRC Labor Contract Draft Law, issued 21 March 06; ``Draft Law
on Labor Contracts Made Public--Views Sought,'' Xinhua (Online), 21
March 06.
\60\ ``China's Legislature Receives 4,769 Suggestions on Draft
Labor Contract Law,'' Xinhua (Online), 27 March 06; Wang Ye,
``Contracts of Workers Covered by New Law,'' China Daily, 21 March 06
(Open Source Center, 21 March 06). The draft labor law includes 65
articles in seven chapters addressing: (1) general principles; (2)
agreement on a labor contract; (3) implementation and modification of a
labor contract; (4) cancellation and termination of a labor contract;
(5) legal responsibilities; and (6) supplementary materials. ``Draft of
the Labor Contract Law,'' Legal Daily; ``The Problem of Being Lax on
Workers, Strict on Employers Does Not Exist in Draft of Labor Contract
Law'' [Laodong hetong fa cao'an bu cunzai dui gongren kuan dui guzhu
yan de wenti], Procuratorial Daily (Online), 21 April 06.
\61\ ``Chinese Public Makes Over 190,000 Suggestions on Draft Labor
Contract Law,'' Xinhua, 21 April 06 (Open Source Center, 21 April 06).
\62\ Article 16 of the Labor Law states, ``A labor contract shall
be concluded where a labor relationship is to be established.'' Article
19 specifies that labor contracts ``shall be concluded in written
form.'' PRC Labor Law, arts. 16, 19.
\63\ ``China's Top Legislature Debates Contract Bill Protecting
Worker's Rights,'' Xinhua (Online), 28 December 05.
\64\ ``State Council Research Center Issues Report: China's Rural
Workers Are Experiencing Three Big Changes'' [Guowuyuan yanjiushi fabu
baogao: woguo nongmingong zheng fasheng san da bianhua], Xinhua,
reprinted by the PRC Central Government (Online), 16 April 06.
\65\ Information provided by U.S. Embassy Beijing.
\66\ ``Draft of the Labor Contract Law,'' Legal Daily (Online), 21
March 06.
\67\ Wang Ye, ``Contracts of Workers Covered by New Law.''
\68\ ``Compulsory Labor Contracts To Be Imposed on All Firms,''
Xinhua (Online), 20 January 06.
\69\ ``Firms Face Higher Costs Under New China Labour Law,''
Reuters (Online), 6 July 06; Meg Utterback, ``China's New Draft Labor
Contract Law: Help or Hindrance?,'' Thelen Reid & Priest LLP China
Watch (Online), 15 May 06.
\70\ Bill Savadove, ``Firms Say New Labour Law Is a Step
Backwards,'' South China Morning Post (Online), 21 March 06.
\71\ Utterback, ``China's New Draft Labor Contract Law: Help or
Hindrance?;'' PRC Labor Contract Draft Law, art.16.
\72\ Wang Weiming, ``Three Deficiencies with the Draft Labor
Contracting Law'' [Laodong hetong fa cao'an de san dian quehan], China
Youth Daily (Online), 31 March 06.
\73\ Leung, ``ACFTU and Union Organizing.''
\74\ PRC Trade Union Law, art. 6.
\75\ CECC Staff Interview.
\76\ ``ACFTU Works To Improve Legal Aid System,'' China Corporate
Social Responsibility (Online), 12 May 06; ``China Daily: Unions Launch
Campaign to Safeguard Migrant Workers,'' China Daily, 14 June 06 (Open
Source Center, 14 June 06); ``Communist Party, State Council Order
Stronger Controls Over Society,'' CECC China Human Rights and Rule of
Law Update, June 2006, 14-16.
\77\ ``ACFTU Works To Improve Legal Aid System,'' China Corporate
Social Responsibility.
\78\ CECC Staff Interview.
\79\ ``China's Legislature Receives 4,769 Suggestions on Draft
Labor Contract Law,'' Xinhua; ``ACFTU Collaborates with Government to
Launch Campaign to Promote Safety and Health for Migrant Workers''
[Quanzong deng lianhe tuichu ``Guanai nongmingong shengming anquan yu
jiankang tebie xingdong''], People's Daily (Online), 13 June 06;
``Workers Have the Right to Refuse to Work in Dangerous Environments''
[Qiye qiangling maoxian zuoye gongren you quan jujue], China Youth
Daily (Online), 14 June 06; ``Right to Refuse Dangerous Work,'' China
Daily (Online), 21 June 06.
\80\ Forced Labor in China, Staff Roundtable of the Congressional-
Executive Commission on China, 22 June 05, Testimony and Written
Statement Submitted by Harry Wu, Executive Director, Laogai Research
Foundation; Forced Labor in China, Testimony and Written Statement
Submitted by Gregory Xu, Falun Gong practitioner and researcher on the
treatment of Falun Gong practitioners in China. Mr. Wu described
conditions he saw in forced labor camps including prisoners working 12-
hour shifts and working in dangerous conditions. Mr. Xu described the
cases of several Falun Gong practitioners who were tortured while in
detention.
\81\ Ibid. Mr. Xu stated that Falun Gong practitioners were forced
to work at highly intensive jobs for far longer than eight hours a day,
and on occasion, continuously overnight.
\82\ PRC Labor Law, art. 96.
\83\ Ibid.
\84\ Ibid.
\85\ ``30 Forced Laborers `Fall' Into Yuncheng Brick Kiln''
[Qiangzhi laodong 30 duo ren ``diao'' jin Yuncheng zhuanyao moku],
Xinhua (Online), 29 March 06; ``78 Year-Old Mother Searches for Son,
Rescues 30 Migrant Workers in Illegal Brick Kiln'' [78 sui lao mu qian
li xun er, jiejiu hei zhuanyao 30 nongmingong], Tengxun Net (Online),
30 April 06; Ping Yunfei and Yang Shengquan, ``Migrant Workers from
Chongqing Reduced to `Indentured Laborers' in Shandong'' [Chongqing
mingong Shandong lun wei ``bao shen gong''], Chongqing Business Daily,
reprinted in Xinhua (Online), 15 May 06; ``Worker Reports Dingzhou
Indentured Labor Phenomenon, Goes Missing After Meeting with Local
Officials'' [Mingong jubao dingzhou baoshen gong xianxiang yu dangdi
guanyuan hou shi zong], Net Ease (Online), 5 July 05.
\86\ Combating Human Trafficking in China: Domestic and
International Efforts, Hearing of the Congressional-Executive
Commission on China, 6 March 06, Testimony and Written Statement
Submitted by Roger Plant, Head of Special Action Program to Combat
Forced Labor, International Labour Organization.
\87\ ``China: Forced Labor and Trafficking,'' International Labour
Organization.
\88\ 19 U.S.C. 1307 (1930).
\89\ Government Accountability Office (Online), ``Implementation of
the 1992 Prison Labor Memorandum of Understanding,'' 3 April 95, 16-18.
\90\ 22 U.S.C. 6961-6965 (2000).
\91\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, Country Reports on Human Rights Practices--2005, China
(includes Tibet, Hong Kong, and Macau), 8 March 06.
\92\ Harry Wu, Remarks on the Soviet Gulag and the Chinese Laogai:
Comparing the Two Systems of Oppression Conference, Freedom House
Conference, 5 May 06; Philip P. Pan, ``China's Prison Laborers Pay
Price for Market Reforms,'' Washington Post (Online), 14 June 01.
\93\ Ibid.
\94\ Forced Labor in China, Testimony and Written Statement
Submitted by Harry Wu; Pan, ``China's Prison Laborers Pay Price for
Market Reforms.''
\95\ CECC, 2005 Annual Report, 42.
\96\ China Labour Bulletin (Online), ``Survey Report on Child
Labour in China'' [Guanyu zhongguo tonggong xianxiang de shidi kaocha
baogao], 30 May 06; Dennis Cheung and Richard Welford, ``Is Child
Labour on the Increase in China?,'' CSR Asia Weekly (Online), 11
September 05.
\97\ ``Police Cracks Down on Child Kidnapping,'' Xinhua (Online), 1
June 06.
\98\ PRC Labor Law, arts. 15, 94.
\99\ Ibid, arts. 64-65.
\100\ Rules Banning the Use of Child Labor [Jinzhi shiyong tonggong
guiding], issued 1 October 02, arts. 4, 6.
\101\ Regulations on the Specific Scope of State Secrets and the
Level of Secrecy in Labor and Social Security Work [Laodong he shehui
baozhang gongzuo zhong guojia mimi ji juti fanwei de guiding], issued
17 January 00, art. 3.
\102\ China Labour Bulletin (Online), ``Survey Report on Child
Labour in China;'' Cheung and Welford, ``Is Child Labour on the
Increase in China? ''
\103\ ``600 Shaanxi Students Cheated Into Child Labor'' [Shaan xiao
pian 600 xuesheng fu yue zuo tonggong], Ta Kung Pao (Online), 12 April
06.
\104\ Stephen Frost, ``China View,'' CSR Asia Weekly (Online), 26
April 06.
\105\ China Labour Bulletin, ``Survey Report on Child Labour in
China.''
\106\ Ibid.
\107\ Cheung, ``Is Child Labour on the Increase in China? ''
\108\ PRC Constitution, art. 48; PRC Labor Law, art. 13; PRC Law on
the Protection of Interests and Rights of Women, enacted 3 April 92,
amended 28 August 05, arts. 24-25.
\109\ Rules on Collective Contracts, art. 14; Hong Kong Trade
Development Council (Online), ``New Regulations on Collective Contracts
Give Special Protection to Female Workers,'' 1 May 04.
\110\ State Council Information Office, ``China's Employment
Situation and Policies,'' Xinhua (Online), 26 April 04.
\111\ Wang Meiyan, ``Analysis of Gender Differences in Employment
Opportunities and Wages in China's Urban Labor Markets'' [Zhongguo
chengshi laodongli shichang nannu liang xing jiuye jihui he gongzi
chaju fenxi], China Net (Online), 16 March 06.
\112\ ``Chongqing District Employment Service: Redundant Women
Workers are Reemployed at the `Family Door' '' [Chongqing shequ jiuye
fuwu xiagang nugong ``jia menkou'' shixian zaijiuye], Xinhua (Online),
9 May 06; ``Jimunai County Provides Favorable Loans Amounting to 1.4
Million Yuan To Help 70 Redundant Woman Workers Find New Jobs''
[Jimunai xian wei 70 ming xiagang funu fafang zaijiuye daikuan 140 wan
yuan], Tianshan Net (Online), 31 May 06.
\113\ ``Revisions to Retirement Regulations Requiring Women To
Retire Before Men Suggested to NPC Standing Committee'' [Nannu tuixiu
butong nianling guiding xiang quanguo renda changweihui tiqi weixian
shencha jianyi shu], Women Watch-China (Online), 10 March 06; Temporary
Measures on Workers' Retirement and Resignation [Guowuyuan guanyu
gongren tuixiu tuizhi de zanxing banfa], issued 24 May 78.
\114\ ``Revisions to Retirement Regulations Requiring Women To
Retire Before Men Suggested to NPC Standing Committee,'' Women Watch-
China.
\115\ CECC Staff Interview.
\116\ PRC Constitution, art. 4.
\117\ PRC Labor Law, art. 12.
\118\ See, e.g., Mette Halskov Hansen, ``The Challenge of Sipsong
Panna in the Southwest,'' in Governing China's Multiethnic Frontiers,
ed. Morris Rossabi (Seattle: University of Washington Press, 2004), 61-
62.
\119\ U.S. Department of State, Country Reports on Human Rights
Practices--2005, China.
\120\ Edward Cody, ``Train 27, Now Arriving Tibet, in a `Great Leap
West,' '' Washington Post (Online), 4 July 06.
\121\ CECC Staff Interview.
\122\ ``Xinjiang Will Recruit Through Examination 700 Civil
Servants To Enrich Cadre Ranks in Southern Xinjiang'' [Xinjiang jiang
mianxiang shehui zhaokao 700 ming gongwuyuan chongshi nanjiang ganbu
duiwu], Xinjiang Daily, reprinted in Tianshan Net (Online), 7 April 05.
\123\ ``Civil Servant Recruitment in Xinjiang Favors Han Chinese,''
CECC China Human Rights and Rule of Law Update, August 2006, 6-7.
\124\ China Labour Bulletin (Online), ``Over 300,000 Labour
Lawsuits Filed in 2005, ACFTU Survey Says,'' 12 May 06; Information
provided by U.S. Embassy Beijing.
\125\ Qiao Jian and Jiang Ying, ``An Analysis of Labor Disputes and
Mass Incidents During Marketization,'' 297-314; ``Rise in Collective
Disputes Attributed to Weak Protections of Worker Rights,'' CECC China
Human Rights and Rule of Law Update, December 2005, 13-14.
\126\ Qiao Jian and Jiang Ying, ``An Analysis of Labor Disputes and
Mass Incidents During Marketization,'' 297-314.
\127\ Tim Johnson, ``Millions of Workers in China Aren't Getting
Paid,'' San Jose Mercury News (Online), 23 January 06.
\128\ Jiang Zhuqing, ``China to Shut Down 4,000 Mines by Dec. 31,''
China Daily (Online), 13 December 05; Fu Jing, ``Unions Launch Campaign
to Safeguard Migrant Workers,'' China Daily (Online), 14 June 06.
\129\ ``35,800 Firms Ordered to Close Over Safety Concerns,''
Xinhua (Online), 16 February 06.
\130\ ``Leaders Face Punishment Over Fatal Accidents,'' People's
Daily (Online), 16 February 06.
\131\ PRC Criminal Law, enacted 1 July 79, amended 14 March 97, 25
December 99, 31 August 01, 29 December 01, 28 December 02, 28 February
05, 29 June 06, arts. 134, 135, 139.
\132\ ``China Issues Safety in Production Plan for the 11th Five-
Year Program, Rigorously Investigates Malfeasance and Corrupt
Behavior'' [Zhongguo fabu anquan shengchan shiyi wu guihua yancha duzhi
fubai xingwei], Xinhua (Online), 27 August 06; ``More Needed To Be
Spent on Work Safety: State Councilor,'' Xinhua (Online), 7 July 06.
\133\ ``US$60B Fund To Reduce Workplace Accidents,'' China Daily,
30 August 06 (Open Source Center, 30 August 06).
\134\ Ministry of Health Circular on Implementing the ``State
Council Opinion on Resolving Rural Worker Problems'' [Weishengbu guanyu
guancheluoshi ``Guowuyuan guanyu jiejue nongminggong wenti de ruogan
yijian'' de tongzhi], issued 16 May 06.
\135\ ``Migrant Workers To Get Basic Healthcare,'' Xinhua (Online),
24 April 06.
\136\ ``Occupational Diseases Injure 200 Million Workers,'' Beijing
News (Online), 23 February 06.
\137\ Ibid.
\138\ ``China To Close Another 7,000 Mines Before '08,'' China
Daily (Online), 15 June 06; China Labour Bulletin (Online), ``63 Killed
and 26 Trapped in Three Separate Coal Mine Accidents,'' 17 July 06.
\139\ Experts have reported that the annual death rate in Chinese
mines may be as high as 20,000. China Labor Bulletin (Online), ``More
than 4,500 Officials Report Shares in Coal Mines With a Total
Investment of 650 Million Yuan,'' 11 March 05; China Labour Bulletin,
``63 Killed and 26 Trapped in Three Separate Coal Mine Accidents.''
\140\ ``Beijing Demands Mine-Safety Push,'' South China Morning
Post (Online), 15 January 06.
\141\ ``Nightmare for Safety Troubleshooter,'' South China Morning
Post (Online), 9 December 05.
\142\ ``Coal Mine Blast in the North Kills 23, Sickens 53,'' South
China Morning Post (Online), 2 February 06.
\143\ ``China Sets a Modest Goal in Cutting Coal Mine Deaths,''
Reuters, reprinted in China Daily (Online), 7 February 06.
\144\ ``Government Program to Shut Dangerous Coal Mines Proceeds
Slowly, Results Mixed,'' CECC China Human Rights and Rule of Law
Update, February 2006, 3-4.
\145\ ``China to Trim Down 10,000 Small Coal Mines By 2010,''
Xinhua (Online), 26 May 06.
\146\ ``China to Close All Small Coal Mines,'' Xinhua, reprinted in
China Daily (Online), 4 April 06.
\147\ Ibid.
\148\ ``7,000 Officials Retract Stakes from Mines,'' Xinhua
(Online), 20 January 06.
\149\ Joint Circular of the State Administration for Work Safety
and the State Administration for Coal Mine Safety on the Reissuance of
the ``State Council General Office Emergency Circular Regarding Firmly
Reorganizing and Closing Illegal Coal Mines and Those With Insufficient
Safe Production Conditions'' [Guojia anquan shengchan jiandu guanli ju
guojia meikuang anquan jiancha ju zhuanfa ``guowuyuan bangongting
guanyu jianjue zhengdun guanbi bu jubei anquan shengchan tiaojian he
feifa meikuang de jinji tongzhi''], issued 24 August 05, art. 3.
\150\ ``7,000 Officials Retract Stakes from Mines,'' Xinhua
(Online).
\151\ ``222 People Dealt With According to Law for Coal Mine
Accidents,'' Xinhua (Online), 23 December 05.
\152\ Provisions on Minimum Wage [Zui di gongzi guiding], issued 20
January 04.
\153\ Chow Chung-yan, ``Minimum Wages Up 17 Percent in Shenzhen to
Ease Social Unrest,'' South China Morning Post (Online), 1 June 06.
\154\ ``Guangdong Increases Minimum Salary Levels,'' People's Daily
(Online), 13 July 06; ``Shenzhen Raises Minimum Wage,'' China Daily,
reprinted in PRC Central People's Government (Online), 1 June 05.
\155\ Ministry of Labor and Social Security (Online), ``2005
Minimum Wage Standards for Each Province, Autonomous Region, and
Directly-Administered Municipality'' [2005 Nian ge sheng, zizhiqu,
zhixiashi, yue zui di gongzi biaozhun], 1 March 06.
\156\ ``Pay Workers Decent Wages,'' China Daily, reprinted in
Xinhua (Online), 9 May 06; Provisions on Minimum Wage, art. 10.
\157\ Ministry of Labor and Social Security, ``2005 Minimum Wage
Standards for Each Province, Autonomous Region, and Directly-
Administered Municipality.''
\158\ ``Pay Workers Decent Wages,'' China Daily.
\159\ ``Provinces Fail to Meet Minimum Pay Rules,'' South China
Morning Post (Online), 9 May 06.
\160\ Johnson, ``Millions of Workers in China Aren't Getting
Paid.''
\161\ Ibid.
\162\ Ibid.
\163\ ``State Council Report: Workers' Monthly Salary Mostly 500-
800 Yuan; Half of Rural Workers Do Not Get Paid on Time'' [Guowuyuan
baogao: Mingong yue xin duo zai 500-800 yuan ban shu nongmingong bu
neng anshi ling dao gongzi], Southern Metropolitan Daily (Online), 17
April 06.
\164\ Information provided by U.S. Embassy Beijing.
\165\ ``Government Helps Migrant Workers Get Unpaid Wages,''
People's Daily (Online), 27 January 06.
\166\ ``Shaanxi Employers Ordered to Pay Compensation for Delaying
Minimum Wage Payments,'' Legal Daily, reprinted in China Labour
Bulletin (Online), 13 June 06.
\167\ ``30 Firms Blacklisted for Defaulting Wages,'' Xinhua
(Online), 26 June 06.
\168\ Information provided by U.S. Embassy Beijing.
\169\ Working Conditions in China: Just and Favorable?, Staff
Roundtable of the Congressional-Executive Commission on China, 3
November 05, Testimony of Dan Viederman, Executive Director, Verite.
\170\ Ibid.
\171\ Ibid.
\172\ See, e.g., ``80 Percent of Private Firms Violate Employee
Rights,'' China Daily, 29 December 05 (Open Source Center, 29 December
05); Juliette Li, ``Maternity Insurance and Leave in China,'' CSR Asia
Weekly (Online), 3 May 06, 11.
\173\ ``80 Percent of Private Firms Violate Employee Rights,''
China Daily.
\174\ ``PRC Media Hail Pension Reform, Note Remaining Challenges,''
Open Source Center, 30 January 06 (Open Source Center, 30 January 06).
\175\ Ibid.
\176\ Nicholas Eberstadt, ``Growing Old the Hard Way,'' American
Enterprise Institute (Online), 18 April 06.
\177\``OSC Analysis 30 Jan: PRC Media Hail Pension Reform, Note
Remaining Challenges,'' Opens Source Center, 30 January 06.
\178\ ``Our Country's On-the-Job Injury Insurance Aims To Cover 140
Million People by 2010'' [Woguo gongshang baoxian lizheng 2010 nian
fugai 1.4 yi ren], Legal Daily (Online), 23 June 06.
\179\ ``State Will Take Compulsory Measures To Supervise and Urge
Enterprise Participation in On-the-Job Injury Insurance'' [Guojia jiang
caiqu qiangzhi shouduan ducu qiye canjia gongshang baoxian], China
Youth Daily (Online), 9 September 06.
\180\ ``Our Country's On-the-Job Injury Insurance Aims to Cover 140
Million People by 2010,'' Legal Daily.
\181\ ``Shanxi: Employing Units Must Provide Migrant Workers With
On-the-Job Injury Insurance'' [Shanxi: yongren danwei bixu ji
nongmingong jiaona gongshang baoxian], Xinhua (Online), 29 June 06.
\182\ ``State Will Take Compulsory Measures To Supervise and Urge
Enterprise Participation in On-the-Job Injury Insurance,'' China Youth
Daily.
\183\ CECC, 2005 Annual Report, 11 October 05, 41.
\184\ Information provided by the International Labor Bureau, U.S.
Department of Labor.
\185\ Ibid.
\186\ ``State Council Research Center Issues Report: China's Rural
Workers Are Experiencing Three Big Changes'' [Guowuyuan yanjiushi fabu
baogao: woguo nongmingong zheng fasheng san da zhuanbian], Xinhua,
reprinted by the PRC Central Government (Online), 16 April 06; ``
`Report on Rural Migrant Workers:' The Average Age of Migrant Workers
is 28.6 Years Old'' [Zhongguo nongmingong diaoyan baogao: nongmingong
pingjun nianling wei 28.6 sui], Xinhua, reprinted in China.org, 16
April 06. Between 50 and 80 million workers are also employed in rural
township and village enterprises. `` `Report on Rural Migrant Workers:'
The Average Age of Migrant Workers is 28.6 Years Old,'' Xinhua;
Information provided by U.S. Embassy Beijing.
\187\ ``State Council Research Center Issues Report: China's Rural
Workers Are Experiencing Three Big Changes,'' Xinhua.
\188\ Ibid.
\189\ Ibid.
\190\ ``70 Percent of Migrant Workers Receive No Compensation for
Overtime,'' Beijing News (Online), 2 May 06.
\191\ Ministry of Health Circular on Implementing the ``State
Council Opinion on Resolving Rural Worker Problems.''
\192\ ``Communist Party, State Council Set Rural Reform Goals for
2006,'' CECC China Human Rights and Rule of Law Update, April 2006, 8.
\193\ ``Beijing Scraps Regulation on Managing Migrants'' [Beijing
feizhi wailai renyuan guanli tiaoli], Beijing News (Online), 26 March
05; ``Labor Ministry Officials Remove Regulatory Barrier to Migrants
Seeking Work in Cities,'' CECC China Human Rights and Rule of Law
Update, November 2005, 3.
\194\ ``Allowing Rural Workers To Participate in Worker
Compensation Programs Becomes an Issue of Concern'' [Canjia gongshang
baoxian nongmingong cheng zhongdian], Beijing News (Online), 8 April
06; ``Communist Party, State Council Order Stronger Controls Over
Society,'' CECC China Human Rights and Rule of Law Update, June 2006,
14-16.
\195\ ``State Council Research Center Issues Report: China's Rural
Workers Are Experiencing Three Big Changes,'' Xinhua.
Notes to Section V(d)--Freedom of Religion
\1\ See, e.g., the Universal Declaration of Human Rights, adopted
and proclaimed by General Assembly resolution 217 A (III) of 10
December 48, art. 18; International Covenant on Civil and Political
Rights (ICCPR), adopted by General Assembly resolution 2200A (XXI) of
16 December 66, entry into force 23 March 76, art. 18. China has
signed, but has not yet ratified, the ICCPR. The Chinese government has
committed itself to ratifying, and thus bringing its laws into
conformity with, the ICCPR and reaffirmed its commitment as recently as
April 13, 2006, in its application for membership in the UN Human
Rights Council. China's top leaders have previously stated on three
separate occasions that they are preparing for ratification of the
ICCPR, including in a September 6, 2005 statement by Politburo member
and State Councilor Luo Gan at the 22nd World Congress on Law, in
statements by Chinese Premier Wen Jiabao during his May 2005 Europe
tour, and in a January 27, 2004 speech by Chinese President Hu Jintao
before the French National Assembly.
\2\ PRC Constitution, art. 36.
\3\ For examples of protections in Chinese law, see, e.g., the PRC
Regional Ethnic Autonomy Law, enacted 31 May 84, amended 28 February
01, art. 11, the PRC Education Law, enacted 18 March 95, art. 9, and
the PRC Labor Law, enacted 5 July 94, art. 12. Article 251 of the PRC
Criminal Law penalizes state officials who infringe on citizens' right
to freedom of religious belief. PRC Criminal Law, enacted 1 July 79,
amended 14 March 97, 25 December 99, 31 August 01, 29 December 01, 28
December 02, 28 February 05, 29 June 05.
\4\ See, e.g., Chinese Communist Party Central Committee,
Concerning Our Country's Basic Viewpoints and Policies on the Religion
Question During Its Socialist Period [Guanyu woguo shehuizhuyi shiqi
zongjiao wenti de jiben guandian he jiben zhengce], issued 31 March 82
(Document 19). This document recognized the ``complex'' nature of the
religious situation in China and stated that the Party's policy toward
religion is to ``respect and protect freedom of religious belief'' as a
long-term policy until religion extinguishes itself. For overviews of
this document and subsequent party policy, see, e.g., Beatrice Leung,
``China's Religious Freedom Policy: The Art of Managing Religious
Activity,'' 184 The China Quarterly 894, 903-13 (2005); Pitman B.
Potter, ``Belief in Control: Regulation of Religion in China,'' 174
China Quarterly 317, 319-24 (2003); Kim-Kwong Chan and Eric R. Carlson,
Religious Freedom in China: Policy, Administration, and Regulation
(Santa Barbara, CA: Institute for the Study of American Religion,
2005), 2-3, 18-19, 42-57.
\5\ See, e.g., Cheng Ming, ``One-Third of CPC Members Attend
Religious Activities,'' 1 November 05, 8-9 (Open Source Center, 24 May
06); Communist Party Committee Handan City People's Government State
Property Supervision Board of Management (Online), ``Communist Party
Members Cannot Believe in Religion'' [Gongchangdangyuan buneng xinyang
zongjiao], 13 March 06. While Party membership is not mandatory in
China, it can further career opportunities and social advancement.
Bureau of Democracy, Human Rights, and Labor, U.S. Department of State,
International Religious Freedom Report--2005, China (includes Tibet,
Hong Kong, and Macau), 8 November 05.
\6\ State Administration for Religious Affairs (Online), ``Fourth
Operation Office'' [Yewu sisi], last visited 5 September 06.
\7\ Some government documents have referred to the five religions
as China's ``main'' religions. In practice, the state has created a
regulatory system that institutionalizes only these five religions for
recognition and legal protection, even though neither the Constitution
nor national Chinese law restricts the definition of religion to these
five belief systems. See, e.g., State Council Information Office, White
Paper on Freedom of Religious Belief in China, 16 October 97 (stating
that China's ``main religions'' are Buddhism, Daoism, Islam,
Catholicism, and Protestantism). Officials told a visiting U.S.
delegation in August 2005 that they were considering at the national
level whether to allow some other religious communities to register to
establish organizations or religious activity venues, but no decisions
in this area have been reported. U.S. Commission on International
Religious Freedom (USCIRF), ``Policy Focus: China,'' 9 November 05, 4.
See also Human Rights Watch (Online), ``A Year After New Regulations,
Religious Rights Still Restricted, Arrests, Closures, Crackdowns
Continue,'' 1 March 06.
\8\ There is some limited tolerance outside this framework for some
ethnic minority and ``folk'' religious practices, as well as some
regional variation in the recognition of other religious groups. See,
e.g., discussions on regional variations in implementation of religious
policy and government policy toward folk religions, infra; ``Religious
Freedom for China's Orthodox Christians,'' infra; Kim-Kwong Chan,
``Religion in China in the Twenty-first Century: Some Scenarios,'' 33
Religion, State & Society, No. 2, 87, 92; and Putian City Licheng
District Ethnic and Religious Affairs Bureau (Online), ``Putian
Patriotic Religious Organizations'' [Putian zongjiao aiguo tuanti],
last visited 14 September 06.
\9\ See, e.g., Hebei Province Regulation on Religious Affairs
[Hebeisheng zongjiao shiwu tiaoli], issued 18 July 03, art. 2.
\10\ State Council Information Office, White Paper on Freedom of
Religious Belief in China.
\11\ Local religious regulations have specified that individuals
(and in some cases ``members of a family'') may carry out religious
activities at home or ``live a religious life'' at home, but none have
extended this to relatives and friends. See, e.g., Shanxi Province
Regulation on Religious Affairs [Shanxisheng zongjiao shiwu tiaoli],
issued 29 July 05, art. 22. One local regulation allows some limited
religious activity at home for participation by relatives and friends,
but it appears to limit activities to rites related to illness,
funerals, and memorials. Guangxi Zhuang Autonomous Region Temporary
Provisions on the Administrative Management of Religious Work [Guangxi
zhuangzu zizhiqu zongjiao shiwu xingzheng guanli zanxing guiding],
issued 22 March 94.
\12\ Local authorities' actions toward such ``house churches'' have
varied. In some places, local authorities have tolerated such services,
while in other places have shut them down. U.S. Department of State,
International Religious Freedom Report--2005, China. The government
reportedly has instructed registered Protestant organizations to hold
services at home, in response to the growth of such services by
unregistered groups. See ``Religious Freedom for China's Protestants,''
infra.
\13\ Leung, ``China's Religious Freedom Policy,'' 897. The
patriotic religious associations are ``mass organizations'' established
under the Communist Party.
\14\ See, e.g., ``Clear Tasks, Carrying Out Our Functions: Thoughts
on the Issue of Completely Bringing into Play the Functions of the
Islamic Associations'' [Mingque renwu luxing zhineng--guanyu chongfen
fahui yixie zuoyong wenti de sikao], 2 China Muslim, 25-27 (2005);
``Catholic Patriotic Association Leaders Deny Bishops Permission to
Attend Synod in Rome,'' CECC China Human Rights and Rule of Law Update,
October 2005, 7.
\15\ U.S. Commission on International Religious Freedom, ``Policy
Focus: China,'' 9 November 05, 4.
\16\ U.S. Department of State, International Religious Freedom
Report--2005, China.
\17\ PRC Constitution, art. 36.
\18\ Chinese laws and regulations have not provided an explicit
definition of this term. Article 36 of the Constitution does not
clearly define the scope of ``normal religious activity.'' It notes
only, ``No one may make use of religion to engage in activities that
disrupt public order, impair the health of citizens or interfere with
the educational system of the state.'' Some local regulations have
indicated what activities constitute ``religious activities'' but not
explicitly ``normal'' religious activities. See, e.g., Shanxi Province
Regulation on Religious Affairs, art. 20. It is unclear whether such
lists, which describe activities including Buddhist worship, Ramadan
observance, and baptism, are exclusive. While such an exclusive list
would at least provide citizens with more notice of what activities are
protected under law, this would also contravene international human
rights standards, which define religion to include a broad range of
practices beyond specific acts (like Ramadan or Buddhist worship).
General Comment No. 22: The Right to Freedom of Thought, Conscience and
Religion (Art. 18), 30 July 93, para. 4.
\19\ U.S. Department of State, International Religious Freedom
Report--2005, China.
\20\ Ibid. See also, ``Religious Freedom for China's Orthodox
Christians,'' infra.
\21\ The State Department reports that such folk practices ``are
tolerated to varying degrees as loose affiliates of Taoism, Buddhism,
or ethnic minority cultural practices.'' U.S. Department of State,
International Religious Freedom Report--2005, China.
\22\ It also refers to such activities simply as ``superstitions.''
Some activities related to ``superstitions'' or ``feudal
superstitions'' are penalized under the Criminal Law and administrative
regulations. See, e.g., PRC Criminal Law, art. 300; PRC Public Security
Administration Punishment Law, enacted 28 August 05, art. 27(1).
\23\ See, ``Government Persecution of Falun Gong,'' infra, for more
information. The government also has labeled some unregistered
religious groups as cults. See, e.g., ``UN Petition Submitted for
Jailed Ailing Church Leader; Medical Parole Appeal Filed by Family
Members,'' China Aid Association (Online), 6 March 06 (describing the
case of Pastor Gong Shengliang, whom authorities sentenced in a first-
instance trial for crimes including cult-related activities).
\24\ Provisions on the Management of the Religious Activities of
Foreigners within the PRC [Zhonghua renmin gongheguo jingnei waiguoren
zongjiao huodong guanli guiding], issued 31 January 94, art. 4.
\25\ See, e.g., China Development Brief (Online), ``NGOs: the
Diverse Origins, Changing Nature and Growing Internationalisation of
the Species,'' 31 December 04; China Development Brief (Online),
``Muslim Hands Reach Out to Gansu,'' 6 May 05.
\26\ Detailed Implementing Rules for the Provisions on the
Management of the Religious Activities of Foreigners Within the PRC
[Zhonghua renmin gongheguo jingnei waiguoren zongjiao huodong guanli
guiding shishi xize], issued 26 September 00, art. 17.
\27\ Regulation on Religious Affairs (RRA) [Zongjiao shiwu tiaoli],
issued 30 November 04.
\28\ Nailene Chou Wiest, ``Religious Groups Get More Room to
Move,'' South China Morning Post (Online), 20 October 04, (quoting
Zhang Xunmou, Policy and Law Department of SARA).
\29\ For a listing of national and local regulations as of 2005,
see Chan and Carlson, Religious Freedom in China, 27-42.
\30\ RRA, art. 2.
\31\ Ibid., art. 3.
\32\ See, e.g., RRA, arts. 8, 13-15, 27. Some provisions permit
certain acts in accordance with other regulations, such as Article 7,
which permits religious organizations to publish religious materials in
accordance with relevant national regulations. The relevant regulations
referred to require approval to publish religious materials. See, e.g.,
Regulation on the Administration of Printing Enterprises, arts. 7, 15,
18, 30-31; Provisions Regarding the Administration of Contracts to
Print Bible Texts [Guanyu chengjie ``shengjing'' yinshua de guanli
guiding], issued 22 November 94.
\33\ See, e.g., Hubei Province United Front Department (Online),
``Xiangfan City Makes Great Efforts in Study Sessions for the
Regulation on Religious Affairs'' [Xiangfanshi zhashi zhuahao zongjiao
shiwu tiaoli de xuexi peixun], 25 February 05; Shenzhen Luohu District
E-Government Affairs (Online), ``Luohu District Party Committee and
Government Adopt Multiple Steps to Practically Strengthen Religious
Work Under Their Jurisdiction'' [Luohuquwei, quzhengfu caiqu duoxiang
cuoshi qieshi jiaqiang xiaqu zongjiao gongzuo], 9 June 05.
\34\ See, e.g., Jilin Province Ethnic Affairs Commission and
Religious Affairs Bureau (Online), ``Provincial Religious Affairs
Bureau Launches a Circuit Study Tour at the Grassroots Level'' [Sheng
zongjiaoju shenru jiceng kaizhan xunhui jiaoxue], 18 April 06; Henan
Province Ethnic Affairs Commission and Religious Affairs Bureau
(Online), ``Zhengzhou Launches `Religious Work Enters the Community'
Activity'' [Zhengzhoushi kaizhan ``zongjiao gongzuo jinshequ''
huodong], 21 March 06.
\35\ Under Article 6 of the RRA, religious organizations must
register in accordance with the rules established under the Regulations
on the Registration and Management of Social Organizations [Shehui
tuanti dengji guanli tiaoli], issued 25 October 1998. In addition to
provisions within the RRA on the registration of venues for religious
activity, new Measures on the Examination, Approval, and Registration
of Venues for Religious Activity [Zongjiao huodong changsuo sheli
shenpi he dengji banfa], issued 21 April 05, also govern this process.
\36\ Management of Venues for Religious Activity [Zongjiao huodong
changsuo guanli tiaoli], issued 31 January 94 (repealed); Measures on
the Registration of Venues for Religious Activity [Zongjiao huodong
changsuo dengji banfa], issued 13 April 94 (repealed); Implementing
Measures on the Management of the Registration of Religious Social
Organizations [Zongjiao shehui tuanti dengji guanli shishi banfa],
issued 6 May 91. For registration requirements in local regulations,
see, e.g., Beijing Municipality Regulation on Religious Affairs
[Beijingshi zongjiao shiwu tiaoli], issued 18 July 02, amended 28 July
06, arts. 6, 18.
\37\ RRA, arts. 6, 12-15.
\38\ Regulations on the Registration and Management of Social
Organizations, art. 10.
\39\ RRA, art. 14(2).
\40\ General Comment No. 22: The Right to Freedom of Thought,
Conscience and Religion (Art. 18), para. 4.
\41\ RRA, art. 12.
\42\ See, e.g., Shanxi Province Regulation on Religious Affairs,
art. 22.
\43\ General Comment No. 22: The Right to Freedom of Thought,
Conscience and Religion (Art. 18), para. 4.
\44\ RRA, arts. 7, 21.
\45\ See, e.g., Regulations on the Administration of Printing
Enterprises, arts. 18, 30-31; Provisions Regarding the Administration
of Contracts to Print Bible Texts.
\46\ RRA, art. 27.
\47\ Ibid.
\48\ Ibid., arts. 38-46.
\49\ Ibid., art. 38. In addition to providing disciplinary
sanctions, this provision also states that where a crime has been
committed, criminal liability shall be investigated.
\50\ See, e.g., Ibid., arts. 40-45.
\51\ Ibid., art. 43. Article 1 of an earlier Circular of Provisions
on Self-Funded Pilgrimages [Guanyu zifei chaojin ruogan guiding de
tongzhi], issued 28 January 01 (partly annulled) states only that no
organization other than those authorized by the circular may organize
pilgrimages. Local regulations on religion do not mention restrictions
on pilgrimages or penalties for their organization, except for a 2001
amendment (not yet made public in China) to the 1994 Xinjiang Uighur
Autonomous Region Regulation on the Management of Religious Affairs,
which states that no organization or individual other than authorized
government organizations may organize pilgrimages. Human Rights Watch
and Human Rights in China (Online), ``Devastating Blows: Religious
Repression of Uighurs in Xinjiang,'' April 2005, 39, 87. Although the
RRA's articulation of which specific acts constitute violations of the
regulation promotes more transparency, it also may indicate new
national restrictions.
\52\ RRA, art. 34. See, e.g., Beijing Municipality Regulation on
Religious Affairs, art. 8.
\53\ RRA, art. 35.
\54\ Earlier local regulations have not stated this provision in
such clear terms. See, e.g., Jiangsu Province Regulation on Religious
Affairs [Jiangsusheng zongjiao shiwu tiaoli], issued 5 February 02,
art. 34 (stating only that donations received from abroad be handled in
accordance with national regulations); Beijing Municipality Regulation
on Religious Affairs, arts. 36, 39 (allowing organizations and venues
to receive contributions but not specifying that they may come from
overseas, and stating that donations received from abroad be handled in
accordance with national regulations).
\55\ RRA, art. 46.
\56\ See, e.g., Hebei Province Regulation on Religious Affairs,
arts. 2, 8. In some cases, the RRA refers to the national-level
association of a particular religion but does not use the patriotic
association's precise name or make reference to all the associations.
See, e.g., RRA, arts. 11, 27.
\57\ For example, some observers have suggested that the lack of
mention of five religions within the RRA may indicate that the
government will recognize more religious groups. See, e.g., Lauren
Homer, ``The New Regulation on Religious Affairs in China: A Legal
Analysis,'' presented at the Christian Leadership Exchange and Fuller
Theological Seminary Forum on China's Religious Regulations 2005
(Online), March 2005.
\58\ The RRA states only that the 1994 national Regulation on the
Management of Venues for Religious Activity is annulled. RRA, art. 48.
On April 21, 2005, the State Administration for Religious Affairs
issued new Measures on the Examination, Approval, and Registration of
Venues for Religious Activity.
\59\ RRA, arts. 6, 13-15. The wording of the local regulations
varies, but the requirements imposed generally track those in the
national regulation. Shanghai Municipality Regulation on Religious
Affairs [Shanghaishi zongjiao shiwu tiaoli], issued 30 November 95,
amended 21 April 05, arts. 7, 17; Henan Province Regulation on
Religious Affairs [Henansheng zongjiao shiwu tiaoli], arts. 7, 8, 16-
18; Zhejiang Province Regulation on Religious Affairs [Zhejiangsheng
zongjiao shiwu tiaoli], issued 6 December 97, amended 29 March 06,
arts. 9, 22-23; Shanxi Province Regulation on Religious Affairs, arts.
8-9, 12-13; Beijing Municipality Regulation on Religious Affairs, arts.
6, 18; Anhui Province Regulation on Religious Affairs [Anhuisheng
zongjiao shiwu tiaoli], issued 15 October 99, amended 29 June 06, art.
9. But see Anhui Province Regulation on Religious Affairs, art. 19.
Amendments to the Anhui regulation change only two provisions in the
original 1999 regulation. According to Article 19, which was unchanged
by the amendments, the establishment of a religious venue must be done
in accordance with the Regulation on the Management of Venues for
Religious Activity, which was annulled by the RRA. For an overview of
four of the new or amended regulations, see ``Zhejiang and Other
Provincial Governments Issue New Religious Regulations,'' CECC China
Human Rights and Rule of Law Update, June 2006, 9-10.
\60\ Henan Province Regulation on Religious Affairs, art. 2.
\61\ Compare the amended Shanghai Municipality Regulation on
Religious Affairs and the original Shanghai Municipality Regulation on
Religious Affairs, issued 30 November 95, art. 3.
\62\ Shanghai Municipality Regulation on Religious Affairs, amended
21 April 05, art. 27; Henan Province Regulation on Religious Affairs,
art. 21; Zhejiang Province Regulation on Religious Affairs, amended 29
March 06, art. 36; Shanxi Province Regulation on Religious Affairs,
art. 22; Beijing Municipality Regulation on Religious Affairs, art. 23;
Anhui Province Regulation on Religious Affairs, art. 28. The Zhejiang,
Henan, Beijing, and Anhui regulations permit citizens to ``live a
religious life'' (guo zongjiao shenghuo) within their homes, and the
Shanghai Municipality Regulation specifies that religious members of a
family may do so. In contrast, the Shanxi regulation uses different
language, stipulating in Article 22 that religious citizens may ``carry
out normal religious activities (jinxing . . . zhengchang zongjiao
huodong) within their own residence that are participated in by
religious members of a family.'' See also ``Zhejiang and Other
Provincial Governments Issue New Religious Regulations,'' 9-10.
\63\ See the amended Shanghai Municipality Regulation on Religious
Affairs, arts. 51-61 and the original Shanghai Municipality Regulation
on Religious Affairs, arts. 54-59.
\64\ Henan Province Regulation on Religious Affairs, art. 26.
Compare to the Shanghai Municipality Regulation on Religious Affairs,
amended 21 April 05, art. 60; Zhejiang Province Regulation on Religious
Affairs, amended 29 March 06, art. 49; Shanxi Province Regulation on
Religious Affairs, art. 34; Beijing Municipality Regulation on
Religious Affairs, art. 49; and Anhui Province Regulation on Religious
Affairs, art. 53. Article 51 of the original Zhejiang regulation
contained a similar provision to the one in the amended Zhejiang
regulation, but it applied only to state officials from religious
affairs bureaus, whereas Article 49 in the amended version applies to
all state officials acting in the course of religious work. See the
original Zhejiang Province Regulation on Religious Affairs, issued 6
December 97, art. 51.
\65\ State Administration for Religious Affairs (Online), ``China
Religious Culture Communication Association Established in Beijing''
[Zhonghua zongjiao wenhua jiaoliu xiehui zai jing chengli], 30 December
05; ``New Religious Exchange Association Disseminates Government Views
of Religion,'' China Human Rights and Rule of Law Update, February
2005, 11.
\66\ See the SARA Web site at www.sara.gov.cn. Although the Web
site provides citizens with another forum for access to religious
information, its content is limited. The Web site does not provide a
comprehensive posting of all local regulations on religion and provides
only select news. Web sites from local religious affairs bureaus are
often more thorough.
\67\ ``Why Are Religious People Still Buying Tickets To Enter Their
Own Places of Worship? '' [Zongjiao renshi jin ben zongjiao changsuo
weihe hai maipiao?], China Ethnicities News (Online), 7 February 06.
\68\ For example, Article 36 of the Constitution protects religious
activities that the state considers ``normal,'' that do not
``interfere'' with the state's educational system, and that are not
subject to ``foreign domination.'' Article 3 of the Regulation on
Religious Affairs requires religious citizens to ``abide by the
Constitution, laws, regulations and rules, and safeguard unification of
the country, unity of all nationalities and stability of society,'' and
not to engage in ``activities that harm State or public interests.''
\69\ Additional information about the Chinese government's and
Party's application of the Constitution and law is available in CECC
Annual Reports 2002-2005.
\70\ Tibetan Centre for Human Rights and Democracy (Online),
``China Recommences `Patriotic Education' Campaign in Tibet's Monastic
Institutions,'' 13 October 05. Teams of officials began conducting
patriotic education classes at Sera Monastery in April, at Taglung
Monastery and Gyabdrag Nunnery in June, at Drepung Monastery in
October, and at Shugsib Nunnery at an unspecified time. (Although the
patriotic education campaign began in April 2005, public reports were
not available until October. Unpublished information referred to
patriotic education activity at Gaden Monastery and Garu Nunnery.
Information is not available on whether or not the patriotic education
campaign affected all Lhasa area monastic institutions, or if the
campaign extended beyond the Lhasa area.)
\71\ Ibid. During the session at Sera, officials required the monks
to study six texts in preparation for examinations: ``Handbook of
History of Tibet,'' ``Handbook on Crushing the Separatists,''
``Handbook of Policies on Religion,'' ``Handbook on Law,'' ``Handbook
of Contemporary Policies,'' and ``Handbook on Ethics for the Masses.''
\72\ ``Zhang Qingli Becomes New Party Chief of Tibet,'' Xinhua
(Online), 29 May 06. The Party Central Committee appointed Zhang Qingli
Secretary of the TAR Party Committee on May 29, 2006, after appointing
him acting TAR Party secretary in November 2005. Between October 1999
and March 2005, Zhang held (at different times) senior positions in the
Xinjiang Uighur Autonomous Region (XUAR) that included deputy secretary
of XUAR Party Committee, Vice Chairman of the XUAR government, and
commander of the Xinjiang Production and Construction Corps (also known
as the Bingtuan).
\73\ Monks or nuns who administer a monastery or nunnery form the
Democratic Management Committee (DMC). DMC members must implement Party
policies on religion and ensure that monks and nuns obey government
regulations on religious practice.
\74\ ``Zhang Qingli Delivers Major Address at Opening of Party
Conference in Tibet,'' Tibet Daily, reprinted in Xinhua (Online), 16
May 06. (Some of the Party officials attending the meeting also hold
senior positions in the provincial government or people's congress. For
example, Party executive deputy secretary Jampa Phuntsog (Xiangba
Pingcuo) is Chairman of the TAR government, and Legchog (Lieque) is
Chairman of the TAR People's Congress.)
\75\ Regulation on Religious Affairs (RRA) [Zongjiao shiwu tiaoli],
issued 30 November 04.
\76\ ``Standing Committee of Tibet Autonomous Regional People's
Congress Holds Special Meeting to `Expose and Criticize Dalai Lama's
Separatist Group,' Calls for Steadfastness in Fighting Separatism,''
Sing Tao Daily, 10 June 06 (Open Source Center, 11 June 06). The
meeting took place ``a few days'' before Sing Tao published the
article.
\77\ ``Spiegel Interview With Tibet's Communist Party Chief: Dalai
Lama `Deceived His Motherland,' '' Spiegel Magazine (Online), 16 August
06.
\78\ Tibetan Centre for Human Rights and Democracy, ``China
Recommences `Patriotic Education' Campaign in Tibet's Monastic
Institutions.'' (No additional information about the reported
expulsions and detentions of the Sera monks in July 2005 is available.)
\79\ In Tibetan Buddhist monasteries and nunneries, a
``disciplinarian'' supervises monks and nuns who participate in
religious ceremonies or attend monastic assemblies.
\80\ ``Tibetan Monk Detained, Another Expelled, Amid Chinese
Crackdown,'' Radio Free Asia (Online), 18 November 05. (The report does
not specify whether the period of surveillance is ``residential
surveillance'' or ``public surveillance.'' The maximum period of
residential surveillance is six months (Criminal Procedure Law, Article
58), compared to a maximum period of two years of public surveillance
(PRC Criminal Law, Article 38).
\81\ Ibid. Tsering Dondrub ``disappeared'' immediately after the
prayer request, according to RFA, but police later detained him and
held him in the Lhasa PSB Detention Center (Gutsa). Tibetan Centre for
Human Rights and Democracy (Online), ``Human Rights Situation in Tibet,
Annual Report 2005,'' 21 February 06, 24. According to Tibetan Centre
for Human Rights and Democracy, police detained Tsering Dondrub because
they suspected him of putting up pro-independence posters. (No further
information about his case is available.)
\82\ Tibetan Centre for Human Rights and Democracy (Online), ``Monk
Dies Following Dispute with Patriotic Education Instructors,'' 8
November 05. Monks who discovered Ngawang Jangchub's body speculated
that he committed suicide. He apparently refused to comply with a
requirement to denounce the Dalai Lama as a ``splittist'' and pledge
loyalty to the Chinese government, and defended the Dalai Lama's role
as a Buddhist leader. In addition, he said that Tibet is not a
historical part of China.
\83\ Tibetan Centre for Human Rights and Democracy (Online), ``Five
Monks from Drepung Monastery in Lhasa Arrested After Conduct of
`Patriotic Reeducation' Campaign,'' 30 November 05.
\84\ Tibetan Centre for Human Rights and Democracy (Online), ``Mass
Silent Protest in Tibet's Drepung Monastery Following China's Continued
Implementation of `Patriotic Education,' '' 29 November 05. TCHRD
reported that ``more than four hundred monks sat on a peaceful
solidarity protest.'' ``Tibetan Monks Arrested, Monastery Closed Amid
Protests,'' Radio Free Asia (Online), 29 November 05. RFA reported that
``an unknown number of monks from Drepung monastery staged a rare
protest in which they gathered at the monastery cathedral courtyard and
sat in silence.''
\85\ ``Tibetan Monks Arrested, Monastery Closed Amid Protests,''
Radio Free Asia. A Drepung official confirmed that the monastery was
closed for two days, and said security officials, regular PSB officers,
and People's Armed Police ``conducted fire drills and completed the
annual inspection of cultural items'' in the monastery.
\86\ Tibetan Centre for Human Rights and Democracy, ``China
Recommences `Patriotic Education' Campaign in Tibet's Monastic
Institutions.'' According to the report, more than 40 of the 50 nuns at
Gyabdrag Nunnery (in Linzhou county) refused to pose for photographs
that they believed would be used for propaganda. Officials canceled
their enrollment permits and demanded that nunnery officials expel
them. (No additional information is available about the alleged 13
expulsions at Shugsib Nunnery, located in Qushui county.)
\87\ ``New Panchen Lama Enthroned at Ceremony, 8 December Events
Summarized,'' Xinhua, 8 December 95 (Open Source Center, 8 December
95). The enthronement ceremony in Rikaze (Shigatse) was on December 8,
1995. ``The ceremony was jointly presided over and monitored by Li
Tieying, the representative of the State Council and a State Councilor,
Gyalcan Norbu [Gyaltsen Norbu], special commissioner and chairman of
the Tibet Autonomous Regional People's Government, and Ye Xiaowen,
special commissioner and director of the State Council's Religious
Affairs Bureau.''
\88\ ``Tibet Marks Panchen Lama's Enthronement Anniversary,''
Xinhua (Online), 8 December 05. The report on the tenth anniversary of
the December 8, 1995, enthronement states that Gyaltsen Norbu ``became
the highest ranking figure in Tibetan Buddhism'' when he was enthroned
at age six, and that the past decade has seen him change from ``grow-up
[sic] from a child to the leader of Tibetan Buddhism.''
\89\ Tibetan Government-in-Exile, ``Chronology of Events
Surrounding Recognition of 11th Panchen Lama,'' 2002. The 10th Panchen
Lama (Lobsang Trinley Choekyi Gyaltsen, or Qoigyi Gyaincan) died on
January 28, 1989.
\90\ `` `Excerpts' of Li Ruihuan's Speech at the Third Meeting of
the Leading Group for Locating the Panchen Lama's Child Reincarnation
in Beijing on 10 November,'' Xinhua, 12 November 95 (Open Source
Center, 12 November 95).
\91\ State Council Information Office, ``Tibet--Its Ownership and
Human Rights Situation,'' People's Daily (Online), September 1992.
\92\ ``An Historical Study of the Communist Party of China's Theory
and Policy Concerning Religion,'' People's Daily, 14 November 03 (Open
Source Center, 14 November 03). The article cites a 1990 Party Central
Committee Circular on Enhancing United Front Work that said, ``We must
guide patriotic religious groups and persons to integrate love of
religion and love of country, to bring religious activities within the
scope of the constitution and law, and adapt to the socialist system.''
\93\ ``Tibet Marks Panchen Lama's Enthronement Anniversary,''
Xinhua.
\94\ ``11th Panchen Lama Vows to Serve Motherland,'' Xinhua
(Online), 15 December 05.
\95\ ``Panchen Lama Makes Rare Public Appearance,'' Associated
Press, reprinted in Yahoo! (Online), 13 April 06.
\96\ ``Panchen Lama Calls for Self-cultivation for World's
Harmony,'' Xinhua (Online), 13 April 06.
\97\ ``Harmony With the Environment Through Buddhism,'' Xinhua
(Online), 14 April 06. The Buddhist Association of China and the China
Religious Culture Communication Association jointly organized the
forum.
\98\ ``Dalai Lama's Presence at Buddhist Forum Disharmonious:
Official,'' Xinhua (Online), 12 April 06. Qi Xiaofei is the Vice
President of the China Religious Culture Communication Association,
according to the report.
\99\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, Country Reports on Human Rights Practices--2005, China
(includes Tibet, Hong Kong, and Macau), 8 March 06. ``The government
continued to refuse to allow access to Gendun Choekyi Nyima . . . and
his whereabouts were unknown. . . . All requests from the international
community to access the boy, in order to confirm his well-being, have
been refused.''
\100\ ``It Is Both Illegal and Invalid for the Dalai Lama to
Universally Identify the Reincarnated Soul Boy of the Panchen Lama,''
People's Daily, 1 December 95 (Open Source Center, 1 December 95).
\101\ UN Office of the High Commissioner for Human Rights,
Committee on the Rights of the Child (Online), ``Consideration of
Reports Submitted by States Parties Under Article 44 of the Convention:
Concluding Observations,'' 30 September 05.
\102\ UN Commission on Human Rights (Online), ``Summary of Cases
Transmitted to Governments and Replies Received,'' 27 March 06, 24-25.
The Special Rapporteur on Freedom of Religion or Belief sent a request
to the Chinese government for information about Gedun Choekyi Nyima on
June 9, 2005. The Chinese government provided a response on September
7, 2005.
\103\ ``Beijing Pledge on Next Dalai Lama,'' South China Morning
Post (Online), 19 July 05. Jampa Phuntsog, the deputy Party secretary
of the TAR, told reporters in Hong Kong, ``The choice [of reincarnated
lamas] has never been arranged by the Chinese Communist Party.''
\104\ Ibid.
\105\ ``Selection of 10th Panchen Lama Announced,'' Xinhua, 29
November 95 (Open Source Center, 29 November 95).
\106\ Ministry of Foreign Affairs (Online), ``Did Tibet Become an
Independent Country after the Revolution of 1911?,'' 15 November 00.
``In 1792 the Twenty-Nine Article Imperial Ordinance was issued. It
stipulated in explicit terms for the reincarnation of the Living
Buddhas in Tibet as well as the administrative, military and foreign
affairs.'' (The edict sought to impose Qing control over religious,
administrative, military, fiscal, commercial, and foreign affairs. The
edict demanded that the Amban, the ``Resident Official'' representing
the imperial court, would have equal status to the Dalai and Panchen
Lamas, and function as the supervisor of the Tibetan administration.)
\107\ Tibet Information Network, ``Search Party Abbot and Assistant
`Held Incommunicado' for 12 Days,'' 31 May 95. ``The ferocity of
Chinese anger at the Dalai Lama's pre-emptive announcement has taken
observers by surprise, but much of Beijing's claim to rule Tibet rests
on its right to appoint the Dalai Lama and the Panchen Lama. China had
no involvement in the selection of the 13th Dalai Lama, and its claim
to have had a hand in the selection of the current, 14th, Dalai Lama
was rubbished by Ngawang Ngapo Jigme, then the seniormost Tibetan
official in China, in a newspaper article in China in 1991.''
\108\ RRA, art. 27, translated on the Web site of China Elections
and Governance. ``The succession of living Buddhas in Tibetan Buddhism
shall be conducted under the guidance of Buddhism bodies and in
accordance with the religious rites and rituals and historical
conventions, and be reported for approval to the religious affairs
department of the people's government . . . .'' (At the December 1995
installation of Gyaltsen Norbu, his parents reportedly expressed
support for the policy of drawing lots from a golden urn to select the
Panchen Lama. They used wording similar to that which appears in
Article 27: ``We resolutely support the drawing of lots from the golden
urn in front of the statue of the Buddhist patriarch, who will choose
the soul boy. This conforms to religious ritual and historic
convention.'') ``Panchen Soul Boy Comes From Ordinary Family,'' Ta Kung
Pao, 11 December 95 (Open Source Center, 12 December 95).
\109\ The CECC Annual Report for 2005 referred to the period 2002-
2004 saying, ``About two-thirds of the Tibetan political prisoners
detained from 2002 onward are in Sichuan province, according to the
PPD. Half of them are monks.''
\110\ Based on PPD information current in August 2006, there were a
total of 14 cases of known political detentions of Tibetan monks and
nuns in Gansu and Qinghai provinces in 2005. In comparison, the largest
total for any of the years 2000-2004 was six.
\111\ Tibetan Centre for Human Rights and Democracy, ``China
Recommences `Patriotic Education' Campaign in Tibet's Monastic
Institutions.'' For example, as many as eight Sera monastery monks
reportedly detained in July 2005 remain unidentified. (In addition,
reports about disagreements between monks and nuns and patriotic
education officials at other Lhasa area monasteries and nunneries
remain vague.)
\112\ ``Buddhism Exam in Tibet,'' People's Daily (Online), 29 July
04. Preliminary examinations for the Geshe degree resumed on July 28,
2004.
\113\ Tibetan Government-in-Exile (Online), ``The Geshe Degree,''
last visited 30 August 06. The Geshe degree was established by the 5th
Dalai Lama in the 17th century. Of the four levels of Geshe, Lharampa
is the highest.
\114\ The Gelug tradition, established in the late 14th century, is
the largest of several traditions of Tibetan Buddhism that are
currently practiced. The Dalai Lama and Panchen Lama are the most
revered spiritual teachers of the Gelug.
\115\ China Tibet Information Center (Online), ``Six Tibetan Monks
Receive Geshe Lharampa,'' 28 June 05. Six monks received the Geshe
Lharampa degree on June 27, 2005. (The examinations apparently took
place during June, not during the traditional Monlam Chenmo period that
spans several days during the first lunar month.) ``China Exclusive:
Lamas Honored Highest Tibetan Buddhism Degree,'' Xinhua, 22 March 06
(Open Source Center, 22 March 06). Seven monks received the Geshe
Lharampa degree on March 22, 2006. (The monks reportedly passed
examinations during the Monlam Chenmo, the traditional period when the
examinations take place. Monlam Chenmo was March 11-15 in 2006.)
\116\ Tibetan Centre for Human Rights and Democracy (Online),
``Human Rights Situation in Tibet, Annual Report 2005,'' 21 February
06, 104. ``Due to a policy introduced by Chinese authorities,
applicants for the degree have to study six books on political thoughts
known as `Love Your Country, Love Your Religion' which are taught in
the `patriotic reeducation' campaign.''
\117\ The Gu-Chu-Sum Movement of Tibet, ``Tibetan Envoy
Newsletter,'' September 2004.
\118\ Ibid.
\119\ ``Buddhism Exam in Tibet,'' People's Daily. ``The exam has
been suspended for 16 years after a separatist group headed by Dalai
Lama took advantage of this religious event in 1988 to start a riot.''
(According to eyewitness accounts, the ``riot'' was a large, peaceful
pro-independence demonstration that developed during a religious
procession led by Jokhang Temple monks on March 5, 1988. People's Armed
Police suppressed the resulting confrontation with overwhelming force.)
\120\ The Catholic Church in China is divided into unregistered and
registered communities. This division resulted from the government's
formation of a ``patriotic'' Catholic community independent from the
Catholic Church in the rest of the world. In the late 1950s the Chinese
government established the Catholic Patriotic Association (CPA), a mass
organization under Party control, gave it control of all Church
property, and convinced a small group of bishops to register with and
subordinate themselves to the CPA. Since that time, the government has
worked to persuade and coerce Catholic clergy and laity to do the same.
The majority of the Catholic clergy refused to register with the CPA
and went ``underground.'' Yet it should be noted that in recent years
the Chinese government has permitted three ``underground'' bishops to
register with the SARA without registering with the CPA. Roman Malek,
``Normalization `de Jure' and `de Facto': Remarks on Sino-Vatican
Relations,'' Tripod (Online), Vol. 26, No. 141, Summer 2006. On the
situation of the Catholic Church in China today, see Betty Ann Maheu,
``The Catholic Church in China: Journey of Faith. An Update on the
Catholic Church in China: 2005,'' paper presented at the 21st National
Catholic China Conference, Seattle, Washington, 24 June 05 (available
at the Web site of the U.S. Catholic China Bureau).
The Hong Kong diocese's Holy Spirit Study Centre estimates that
there are 12 million Catholics in China. ``Estimated Statistics for
China's Catholic Church (October 2005),'' Tripod (Online), Vol. 25, No.
139, Winter 2005. Other foreign analysts give higher estimates. Sandro
Magister, ``The Bishop of Xi'an's Long March to Rome,'' L'espresso
(Online), 15 March 04 (12-15 million); ``China's Christians Suffer for
Their Faith,'' BBC (Online), 9 November 04 (15-20 million). The Chinese
government says there are slightly more than 5 million Catholics, but
excludes the unregistered community. ``Chinese Catholics Mourn for
Pope, Better Ties With Vatican Hoped,'' People's Daily (Online), 4
April 05.
\121\ Most detention reports for Catholic clerics originate from
the Cardinal Kung Foundation, a U.S. NGO which monitors religious
freedom for unregistered Chinese Catholics. In the past year two
detention reports have originated from AsiaNews, an Italian Catholic
news agency. ``Two Underground Priests Arrested,'' AsiaNews (Online),
28 October 05 (two priests detained in Zhejiang province);
``Underground Roman Catholic Bishop Jia Zhiguo Arrested Again in China;
Two Other Underground Priests of the Same Diocese Also Arrested,''
Cardinal Kung Foundation (Online), 9 November 05 (one bishop and two
priests detained in Hebei province); ``Underground Roman Catholic
Priest and Ten Seminarians Arrested,'' Cardinal Kung Foundation
(Online), 17 November 05 (one priest and ten seminarians detained in
Hebei province); ``Six Underground Roman Catholic Priests Arrested,''
Cardinal Kung Foundation (Online), 28 November 05 (six priests detained
in Hebei province); ``Underground Catholic Priest and Seven Deacons
Abducted,'' AsiaNews (Online), 7 December 05 (one priest and seven
deacons detained in Hebei province); ``An Underground Roman Catholic
Priest Arrested in Hebei; Another Underground Bishop Has Disappeared,''
Cardinal Kung Foundation (Online), 4 January 06 (one priest detained in
Hebei province--missing bishop was already in detention); ``Two
Underground Roman Catholic Priests Arrested in Hebei; Bishop Jia Zhiguo
is Still in Detention,'' Cardinal Kung Foundation (Online), 23 February
06 (two priests detained in Hebei province); ``Underground Bishop Jia
Zhiguo is Arrested Again,'' Cardinal Kung Foundation, 6 July 06 (one
bishop detained in Hebei province); ``Underground Catholic Bishop Yao
Liang is Arrested Again in China; Another Priest and Some 90 Catholics
Are Also Arrested,'' Cardinal Kung Foundation, 2 August 06 (one bishop,
one priest, 90 Catholic laypersons detained in Hebei province); ``Hebei
Priest Tortured and Bishop Arrested To Stop Pilgrimage,'' AsiaNews, 11
August 06 (one priest missing in Hebei province).
\122\ In October, there was one incident in Zhejiang; in November,
five incidents in Hebei; in December, one incident in Hebei; and in
February, one incident in Hebei. Regarding Hebei, see Xing Guofang, ``A
New Wave of Persecution Against Hebei Catholics,'' AsiaNews (Online),
27 September 05; Han Li, ``Persecution Strengthens Underground Church
in Hebei Province,'' AsiaNews (Online), 29 November 05.
\123\ ``Two Underground Priests Arrested,'' AsiaNews.
\124\ ``Church Destroyed in Fujian, Another To Follow Shortly,''
AsiaNews (Online), 4 September 06.
\125\ ``Underground Roman Catholic Bishop Jia Zhiguo Arrested Again
in China,'' Cardinal Kung Foundation.
\126\ Ibid; ``Bishop Jia of Zhengding Reportedly Released After
Five-Month Detention,'' Union of Catholic Asian News (Online), 25 April
06.
\127\ Bernardo Cervellera, ``A Vatican Delegation Goes to
Beijing,'' AsiaNews (Online), 27 June 06; ``Underground Bishop Jia
Zhiguo is Arrested Again,'' Cardinal Kung Foundation.
\128\ ``Re-Arrest of Bishop Su Zhimin, Underground Catholic Bishop
of Baoding, in Hebei Province, China,'' Cardinal Kung Foundation
(Online), 11 October 97.
\129\ ``An Underground Catholic Bishop Released After More Than 10
Years of Detention,'' Cardinal Kung Foundation (Online), 25 August 06;
``Monsignor Francis An Shuxin Released After 10 Years,'' AsiaNews
(Online), 26 August 06.
\130\ ``Uberfall auf Ordensschwestern in Xi'an und andere
`Harmoniebruche' '' [Attack on Nuns in Xi'an and Other ``Breaches of
Peace''], China heute. Informationen uber Religion und Christentum im
chinesischen, Vol. 24, No. 142, 2005, 198-200.
\131\ ``Xi'an: 16 Nuns Brutally Beaten for Having Defended a School
of the Diocese,'' AsiaNews (Online), 28 November 05. ``Nuns Beaten in
Xi'an: the Government Asks the Diocese to Pay for the School That It
Already Owns,'' AsiaNews (Online), 30 November 05; Philip P. Pan,
``Five Chinese Nuns Hospitalized After Land Dispute,'' Washington Post
(Online), 2 December 05; ``Nuns Beaten in Xi'an: 11 of 40 `Thugs' Under
Police Detention,'' AsiaNews (Online), 12 December 05. A government-
controlled Xi'an newspaper also reported the incident. ``November 23
Wuxing Jie Catholic Church: The Case of the Beaten Nun Has Been Broken
Open,'' Xi'an Evening News (Online), 8 December 05. In recent years,
some local Chinese officials have resorted to hiring ``thugs'' to
intimidate or beat activists, critics, lawyers, journalists, or
citizens who challenge corrupt practices. Paul Wiseman, ``Young Chinese
Make a Living Through Fists,'' USA Today (Online), 22 November 05.
\132\ ``Chinese Priests Brutally Beaten in Tianjin: Like the Nuns
of Xi'an,'' AsiaNews (Online), 19 December 05; ``The Priests of Taiyuan
Call for Justice After Attack,'' AsiaNews (Online), 19 December 05;
``Shanxi Catholics Appeal to Beijing to Get Church Property Back,''
AsiaNews (Online), 20 December 05; ``Priests Return to Shanxi;
Government Promises to Defend Church's Property Rights,'' AsiaNews
(Online), 2 January 06. A government-controlled Shanghai newspaper also
reported the incident. ``Church Land Dispute Solved,'' Shanghai Daily
(Online), 24 December 05.
\133\ Cervellera, ``Vatican Delegation Goes to Beijing.''
\134\ The relaxation of control is evident in the authorities
permitting the consecration of bishops who had, prior to their
consecration, secured Holy See approval. Carol Glatz, ``Hong Kong
Bishop Calls Ordinations `Breakthrough' in Chinese Affairs,'' Catholic
News Service (Online), 21 October 05; ``New Bishop of Suzhou First of
Several Ordinations Expected This Year,'' Union of Catholic Asian News
(Online), 21 April 06.
\135\ Anthony Lam, ``A Review of Catholic Real Estate Issues in
China,'' Tripod (Online), Vol. 26, No. 140, Spring 2006.
\136\ State Council Authorization of the Report by the Religious
Affairs Office, National Basic Construction Committee, and Other
Agencies Regarding Carrying Out Religious Groups' Real Property
Policies and Other Issues [Guowuyuan pizhuan zongjiao shiwuju, guojia
jiben jianshe weiyuanhui deng danwei guanyu luoshi zongjiao tuanti
fangchan zhengce deng wenti de baogao], issued 16 July 80.
\137\ Forum 18 (Online), ``The Economics of Religious Freedom,'' 16
August 06. See also the analyses in the reports of the news agency
AsiaNews (Online).
\138\ Lam, ``Review of Catholic Real Estate Issues in China;''
``Elderly Bishop Spends Birthday Attending to Church Property Duties,''
UCAN (Online), 26 June 06. ``Church Endures Economic Persecution as
Patriotic Association Tries to Seize Church Property,'' AsiaNews
(Online), 1 September 06.
\139\ ``Bishop With Papal Blessing,'' Beijing Review (Online), 11
May 06; ``Independent Ordination of Bishops Right Path for China,''
Xinhua (Online), 16 May 06. See also ``China Defends Ordination of
Catholic Bishops,'' Xinhua (Online), 6 May 06; ``Criticism on Bishops
Ordination Unfounded: FM,'' Xinhua (Online), 7 May 06; ``Ordination of
Bishops in Line With Rules: Chinese Catholics,'' Xinhua (Online), 12
May 06. For an account of official intimidation and manipulation in the
process of selecting bishops, see Zhen Yan, ``New Challenges Facing the
Catholic Church in Mainland China,'' Tripod (Online), Vol. 26, No. 141,
Summer 2006. CPA domination of the registered Catholic community has
extended beyond the selection of Catholic bishops and priests to
altering Catholic moral teaching. In 1995, the registered bishops
issued a pastoral letter approving the government's population planning
policy. ``Dignity and Responsibility of Women,'' Catholic
International, Vol. 7, No. 1, January 1996, 24-27. Insisting that the
Holy See lacks the authority to select bishops, the government does not
permit unregistered bishops to be buried as priests. ``No Solemn
Funeral Service for Mgr. Guo Wenzhi, Underground Bishop of Qiqihar,''
AsiaNews (Online), 30 June 06.
\140\ Ren Yanli, ``China and the Vatican Will Create a Win-Win
Situation by Improving Bilateral Ties,'' Ming Pao, 22 June 06 (Open
Source Center, 22 June 06) (authored by a Chinese academic); ``A New
Chinese Bishop Consecrated With Vatican Approval,'' AsiaNews (Online),
19 October 05; ``Government Approves New Bishop After Six Year Wait,''
Hong Kong Sunday Examiner (Online), 30 April 06.
\141\ ``Chinese Government Selects Catholic Bishops Over Holy See
Objections,'' CECC China Human Rights and Rule of Law Update, May 2006,
2; Anthony Lam, ``Unauthorized Ordinations An Obstacle to Sino-Vatican
Relations,'' Tripod (Online), Vol. 26, No. 141, Summer 2006.
\142\ ``Nine Bishops Take Part in Episcopal Ordination Lacking
Papal Mandate,'' Union of Catholic Asian News (Online), 1 May 06; ``New
Bishop Ordained in Anhui Without Pope's Permission,'' AsiaNews
(Online), 3 May 06; ``Zhan Silu, a Bishop Against Everything and
Against Everyone,'' AsiaNews (Online), 15 May 06.
\143\ ``Young Bishops Arrive in Beijing to Attend Government-
Organized Meeting,'' Union of Catholic Asian News (Online), 20 May 06;
``State Officials Say China Will Ordain More of Its Own Bishops,''
Union of Catholic Asian News (Online), 24 May 06.
\144\ ``Clandestinely Ordained Bishop Taken Away by Force,'' Union
of Catholic Asian News (Online), 14 September 06. ``Rome-Approved
Bishop Defies Ban,'' South China Morning Post (Online), 29 May 06;
Bernardo Cervellera, ``Beijing Has to Free Itself of the Ridiculous
Politics of the Patriotic Association,'' AsiaNews (Online), 29 May 06.
\145\ Betty Ann Maheu, ``The Catholic Church in China,'' America
(Online), 7 November 05; ``Estimated Statistics for China's Catholic
Church,'' Tripod (138 dioceses and 103 bishops, 64 registered, 39
unregistered); Jeroom Heyndrickx, ``Confrontation and Lack of Dialogue
Cause a New China-Vatican Conflict,'' Union of Catholic Asian News
(Online), 8 May 06; ``China to Defy Rome, Ordain Second Bishop in
Days,'' Reuters (Online), 2 May 06.
\146\ Maheu, ``Catholic Church in China.''
\147\ CECC Staff Interviews; Ibid.
\148\ CECC Staff Interview.
\149\ Hans Waldenfels, S.J., ``La Cina sta aprendo: Impressioni di
un viaggio'' [China Is Opening Up: Impressions from a Journey], La
Civilta Cattolica, No. 3278, 15 October 05, 186-196.
\150\ CECC Staff Interviews. In March 2004, a Vatican journal
stated that 49 of 79 registered bishops had been approved by the Holy
See. ``C'e un Risveglio Religioso in Cina? '' [Is There a Religious
Reawakening in China?], La Civilta Cattolica Vol. 155, No. 3689, 6
March 04. See also, Maheu, ``Catholic Church in China.''
\151\ ``Catholics Regret Over Vatican Decision,'' China Daily
(Online), 12 September 05; Bernardo Cervellera, ``Chinese Bishops
Invited to Rome: Government Has the Last Word,'' AsiaNews (Online), 12
September 05; ``Negotiations Still On for Chinese Bishops' Rome
Visit,'' AsiaNews (Online), 16 September 05.
\152\ CECC Staff Interview. Dorian Malovic, Le Pape Jaune: Mgr. Jin
Luxian, Soldat de Dieu en Chine Communiste [The Yellow Pope: Monsignor
Jin Luxian, Soldier of God in Communist China], (Paris, 2006), 255.
\153\ CECC Staff Interviews; China Church Quarterly (Online), nos.
64 (Fall 2005), 65 (Winter 2006). Verbiest Koerier/ Christenen en China
(Online), March 2006; China heute. ``First Catholic-Run Non-Profit
Organization Registered With Government,'' UCAN (Online), 3 August 06;
``La Riconciliazione Non e un'Utopia'' [Reconciliation Is Not a
Utopia], Mondo e Missione (Online), August-September 06 (Caritas groups
established in Beijing parishes).
\154\ Malek, ``Normalization `de Jure' and `de Facto': Remarks on
Sino-Vatican Relations.''
\155\ One analyst has pointed out that signs indicating that the
Chinese government was hardening its attitude toward the Holy See began
to accumulate in July and August of 2005. Cervellera, ``Beijing Has to
Free Itself of the Ridiculous Politics of the Patriotic Association.''
\156\ Ambrose Leung, ``Stay Out of Politics, Beijing Warns Cardinal
Zen,'' South China Morning Post (Online), 24 February 06; Ambrose
Leung, ``Cardinal Unfazed by Beijing Warning,'' South China Morning
Post (Online), 25 February 06. The government's warning led to an
exchange between CPA head Liu Bainian and Cardinal Zen; Ambrose Leung,
`` `Scaremonger' Is Denounced by Zen: Cardinal Says `Self-Proclaimed'
Catholic Spokesman Is Fearful of Sino-Vatican Ties,'' South China
Morning Post (Online), 10 March 06; ``Chinese Catholic Official Says
Hong Kong's Zen Bad for Ties With Vatican,'' Apple Daily (Online), 13
March 06; ``Joy in the Church, Fears in Beijing Over Msgr. Zen's
Nomination as Cardinal,'' AsiaNews (Online), 24 March 06; ``Gentle
Cleric's Stature Grows As He Risks Ire of China,'' New York Times
(Online), 8 July 06.
\157\ ``China, Vatican in Contact for Restoring Ties,'' People's
Daily (Online), 3 April 06.
\158\ ``Beijing's Bishop Is a Slap in the Vatican's Face,'' South
China Morning Post (Online), 1 May 06. ``Dichiarazione del Direttore
della Sala Stampa della Santa Sede, Dr. Joaquin Navarro-Valls, circa le
Ordinazioni Episcopali nella Cina Continentale'' [Declaration of the
Director of the Press Office of the Holy See, Dr. Joaquin Navarro-
Valls, Regarding the Episcopal Ordinations in Mainland China], Press
Office of the Holy See, 4 May 06; ``Usurping Proper Authority,'' Hong
Kong Sunday Examiner (Online), 14 May 06.
\159\ Bernardo Cervellera, ``A Vatican Delegation Goes to
Beijing,'' AsiaNews (Online), 27 June 06; Ambrose Leung, ``No Consensus
in Secret Beijing-Vatican Talks,'' South China Morning Post (Online),
21 July 06.
\160\ The Islamic Association encompasses a national-level
association and local associations at the provincial level and lower.
\161\ See, e.g., ``Clear Tasks, Carrying Out Our Functions:
Thoughts on the Issue of Completely Bringing into Play the Functions of
the Islamic Associations'' [Mingque renwu luxing zhineng--guanyu
chongfen fahui yixie zuoyong wenti de sikao], China Muslim, Vol. 2,
2005, 25-27; ``Strengthen Quality on the Inside, Cultivate Good Form on
the Outside, Lead Muslims of All Ethnicities to Establish a Socialist
Harmonious Society--Work Report from the 7th Session of the 3rd
Standing Committee of the Islamic Association of China'' [Nei qiang
suzhi wai shu xingxiang dailing gezu musilin gongjian shehuizhuyi he
hexie shehui--zai Zhongguo yixie qijie sanci changweihui huiyishang de
gongzuo baogao], China Muslim, Vol. 6, 2005, 7-11; ``Committee to
Spread True Koran,'' China Daily (Online), 24 April 01; ``Islamic
Association of China Islamic Affairs Steering Committee Holds Second
Meeting in Beijing'' [Zhongguo yisilanjiao jiaowuzhidao weiyuanhui
dierjie huiyi zai jing juxing], China Muslim, Vol. 6, 2005, 12.
\162\ Regulation on Religious Affairs (RRA) [Zongjiao shiwu
tiaoli], issued 30 November 04, art. 11.
\163\ RRA, art. 43.
\164\ ``China Exclusive: Chinese Muslims to Get Mecca Service,''
Xinhua, 13 May 06 (Open Source Center, 13 May 06).
\165\ ``Islamic Association of China Islamic Affairs Steering
Committee Holds Second Meeting in Beijing,'' China Muslim.
\166\ ``The Management Science of Chinese Mosques: Employing Mosque
Personnel'' [Zhongguo qingzhensi de guanli kexue: qingzhensi jiaozhi
renyuan pinren shanggang], China News Agency (Online), 12 May 06. See
also ``Islamic Congress Establishes Hajj Office, Issues New Rules,''
CECC China Human Rights and Rule of Law Update, June 2006, 12-13.
\167\ These groups are the Hui, Uighur, Kazak, Dongxiang, Kirgiz,
Salar, Tajik, Bonan, Uzbek, and Tatar.
\168\ State Ethnic Affairs Commission (Online), ``State Ethnic
Affairs Commission Opens First Consulting Work Group Meeting of the
Leading Group for Drafting `State Council Regulation on Managing Halal
Foods' '' [Guojia minwei zhaokai ``Guowuyuan qingzhen shipin guanli
tiaoli'' qizao gongzuo lingdao xiaozu diyici guwen gongzuo huiyi], 15
November 05.
\169\ Circular on Comprehensively Examining Publications Regarding
Islam [Guanyu quanmian jiancha sheji yisilanjiao de chubanwu de
tongzhi], issued 15 October 93; Dru Gladney, ``Islam in China:
Accommodation or Separatism,'' 174 China Quarterly 451, 461 (2003).
\170\ Circular of Provisions on Self-Funded Pilgrimages [Guanyu
zifei chaojin ruogan guiding de tongzhi], issued 28 January 01 (partly
annulled), art. 5.
\171\ Elisabeth Alles, ``Muslim Religious Education in China,'' 45
Perspectives Chinoises (Online) (January-February 2003); Will Religion
Flourish Under China's New Leadership? Staff Roundtable of the
Congressional-Executive Commission on China, 24 July 03, Testimony of
Dr. Jacqueline M. Armijo-Hussein, Assistant Professor, Department of
Religious Studies, Stanford University; Jackie Armijo, ``Islamic
Education in China,'' 9 Harvard Asia Quarterly (Online), (Winter 2006).
Armijo reports that, according to some of her informants, authorities
have not permitted independent Islamic colleges to be established in
recent years.
\172\ China Development Brief (Online), ``Local Resources,
Government, Are Keys to Sustainability for Muslim NGOs,'' 21 March 06.
\173\ One charity organization has established an office in Gansu.
Another organization, which supports projects in the XUAR, does not
have a direct presence there and works with local Chinese charity
organizations. See China Development Brief, ``Muslim Hands Reach Out to
Gansu'' (Online), 6 May 05; ``MH in China: 70 Kids have Cleft Lip
Correction,'' Muslim Hands Feedback 2004 (Online); CECC Staff
Correspondence.
\174\ The government's 2000 census listed Uighurs as 45.21 percent
of the XUAR population and the Han population as 40.57 percent, out of
a total population of 18.46 million. Statistics cited in Stanley Toops,
``Demographics and Development in Xinjiang after 1949,'' East-West
Center Washington Working Papers No. 1, May 2004, 1.
\175\ Xinjiang Uighur Autonomous Region Implementing Measures for
the Law on the Protection of Minors [Xinjiang weiwuer zizhiqu shishi
``weichengnianren baohufa'' banfa], issued 25 September 93, art. 14.
\176\ The national law on the protection of minors includes no such
provision. PRC Law on the Protection of Minors, enacted 4 September 91.
Other provincial-level regulations have dealt with aspects of religious
practice among minors but are not as restrictive as the XUAR measures.
See, e.g., Fujian Province Implementing Measures on the Law on the
Protection of Minors [Fujiansheng shishi ``Zhonghua renmin gongheguo
weichengnianren baohufa'' banfa], issued 21 November 94, amended 25
October 97, art. 33. See also Human Rights Watch and Human Rights in
China, ``Devastating Blows: Religious Repression of Uighurs in
Xinjiang,'' April 2005, 58.
\177\ The 2001 amendments, obtained by Human Rights Watch and Human
Rights in China, have not been made public. Human Rights Watch,
``Devastating Blows,'' 33-34.
\178\ Ibid., 33-42. This protection for normal religious activities
is stated in Article 36 of China's Constitution, as well as in national
and regional regulations on religion. See, e.g., RRA, art. 3.
\179\ Human Rights Watch, ``Devastating Blows,'' 31-32, 42-47.
\180\ Cited in Graham E. Fuller and Jonathan N. Lipman, ``Islam in
Xinjiang,'' in Xinjiang: China's Muslim Borderland, ed. S. Frederick
Starr (Armonk, NY: M.E. Sharpe, 2004), 331.
\181\ ``Teacher and 37 Students Detained for Reading Koran in
China,'' Agence-France Presse (Online), 15 August 05; Uyghur Human
Rights Project (Online), ``Three Detained in East Turkistan for
`Illegal' Religious Text,'' 3 August 05.
\182\ Human Rights Watch, ``Devastating Blows,'' 62-63; ``China
Cracks Down on Its Muslims,'' Agence France-Presse, reprinted in the
Washington Times and posted on the East Turkistan Information Center
Web site, 23 November 01; ``China Steps Up Religious Controls Over
Muslim Uyghurs,'' Radio Free Asia (Online), 17 November 04.
\183\ Authorities expelled a university student in 2001 after they
found her praying in her dorm room. ``China Cracks Down on Its
Muslims,'' Agence France-Presse.
\184\ ``China Bans Officials, State Employees, Children from
Mosques,'' Radio Free Asia (Online), 6 February 06. Will Religion
Flourish Under China's New Leadership?, Testimony of Dr. Jacqueline M.
Armijo-Hussein.
\185\ Human Rights Watch, ``Devastating Blows,'' 52, 55-57.
\186\ While the authorities permit authorized religious leaders and
some groups to take part in social programs, they ban meshrep, which
are small informal social gatherings with religious overtones that
traditionally discuss and address social issues such as drug abuse.
See, e.g., Jay Dautcher, ``Public Health and Social Pathologies in
Xinjiang,'' in Xinjiang: China's Muslim Borderland, 285-86; U.S.
Commission on International Religious Freedom (USCIRF), Policy Focus:
China, 9 November 05, 7.
\187\ USCIRF, Policy Focus: China, 6.
\188\ ``China Bans Officials, State Employees, Children from
Mosques,'' Radio Free Asia.
\189\ ``Chinese Communist Party Takes Strict Precautions Against
Separatist Activities at Mosques During Kurban'' [Zhonggong yanfang
xinjiang qingzhensi zai ku'erbangjie gao fenlie huodong], Central News
Agency, reprinted in Epoch Times (Online), 9 January 06.
\190\ ``Urumqi Strikes Against Illegal Activities in Minority
Language Publishing Market'' [Wulumuqishi daji minzu yuyan chubanwu
shichang feifa huodong], Tianshan Net (Online), 15 February 06.
\191\ ``Xinjiang Uighur Autonomous Region Destroys 29 Tons of
Illegal Books'' [Xinjiang weiwuer zizhiqu xiaohui 29 dun feifa tushu],
Tianshan Net (Online), 16 March 06.
\192\ ``Wang Lequan Points Out, Resolutely Resist the Use of
Religion to Carry Out Infiltration from Outside,'' Xinjiang Daily, 3
April 06 (Open Source Center, 3 April 06).
\193\ U.S. Department of State, Country Reports on Human Rights
Practices--2005, China.
\194\ ``Uighurs Face Extreme Security Measures; Official Statements
on Terrorism Conflict,'' CECC China Human Rights and Rule of Law
Update, May 2005, 12.
\195\ Ibid. See also U.S. Department of State, Country Reports on
Human Rights Practices--2005, China.
\196\ Human Rights Watch, ``Devastating Blows,'' 71-75.
\197\ The term is also referred to as the ``three forces.'' Chinese
sources list ``extremism'' as one of the three forces and use the term
to mean religious extremism. See, e.g., ``Establishing a Harmonious
Society Cannot Be Separated From an Environment of Good Social Order''
[Goujian hexie shehui libukai lianghao de shehui zhi'an huanjing],
Xinjiang Daily, reprinted in Tianshan Net (Online), 13 January 06.
\198\ See, e.g., Human Rights Watch, ``Devastating Blows,'' 14-21;
Nicolas Becquelin, ``Xinjiang in the Nineties,'' No. 44, The China
Journal, (July 2000), 65, 69. Becquelin and Human Rights Watch and
Human Rights in China pinpoint the 1990 Baren uprising as the ``turning
point'' for government policies in the XUAR. Becquelin notes unrest
also took place throughout the 1980s, although these are less
documented.
\199\ Human Rights Watch, ``Devastating Blows,'' 73.
\200\ State Administration for Ethnic Affairs (Online), ``Important
Meaning'' [Zhongyao yiyi], 13 July 04. See also Gardner Bovingdon,
``Autonomy in Xinjiang: Han Nationalist Imperatives and Uyghur
Discontent,'' East-West Center Washington 2004, Policy Studies 11, 44;
Becquelin, ``Xinjiang in the Nineties,'' 74-76; Stanley W. Toops, ``The
Demography of Xinjiang,'' in Xinjiang: China's Muslim Borderland, 247;
``Some Suggestions of the State Council on Continuing to Press Ahead
with the Development of the Western Region,'' Xinhua, 22 March 04 (Open
Source Center, 22 March 04).
\201\ See, e.g., Bovingdon, ``Autonomy in Xinjiang,'' 11, 29-30,
44; ``Xinjiang Will Recruit Through Examination 700 Civil Servants to
Enrich Cadre Ranks in Southern Xinjiang'' [Xinjiang jiang mianxiang
shehui zhaokao 700 ming gongwuyuan chongshi nanjiang ganbu duiwu],
Xinjiang Daily, reprinted in Tianshan Net (Online), 7 April 05; ``947
`Assist Xinjiang' Cadres Leave for North and South of the Tianshan''
[947 ming yuanjiang ganbu fenfu tianshan nanbei], Xinjiang Daily,
reprinted in Tianshan Net (Online), 1 September 05.
\202\ ``Xinjiang Focuses on Reducing Births in Minority Areas to
Curb Population Growth,'' CECC China Human Rights and Rule of Law
Update, April 2006, 15-16; ``Xinjiang Reports High Rate of Population
Increase,'' CECC China Human Rights and Rule of Law Update, March 2006,
16-17. The government did not acknowledge Han migration as the primary
cause of the region's population growth, but demographer Stanley Toops
has noted that Han migration since the 1950s is responsible for the
``bulk'' of the XUAR's high population growth in the past half-century.
Toops, ``Demographics and Development in Xinjiang after 1949,'' 1.
\203\ The government's language program, which it calls ``bilingual
education,'' focuses on transitioning students away from using minority
languages in school. See, e.g., ``Xinjiang Government Promotes Mandarin
Chinese Use Through Bilingual Education,'' CECC China Human Rights and
Rule of Law Update, January 2006, 17-18; ``Xinjiang Official Describes
Plan to Expand Use of Mandarin in Minority Schools,'' CECC China Human
Rights and Rule of Law Update, March 2006, 13; ``Craze for Studying
Mandarin on Rise in Artush'' [Atushi xingqi xue hanyu re], Xinjiang
Daily, 11 July 06.
\204\ ``Chinese Court Jails Uyghur Editor for Publishing Veiled
Dissent,'' Radio Free Asia (Online), 10 November 05.
\205\ See the CECC Political Prisoner Database for more information
on these cases.
\206\ ``Xinjiang Authorities Question Rebiya Kadeer's Son, Name Him
A Criminal Suspect,'' CECC China Human Rights and Rule of Law Update,
May 2006, 5-6; ``Rebiya Kadeer's Children Held in Custody, Beaten,''
CECC China Human Rights and Rule of Law Update, June 2006, 2.
\207\ ``Rebiya Kadeer's Sons Charged with State Security and
Economic Crimes,'' CECC China Human Rights and Rule of Law Update, July
2006, 3-4.
\208\ ``Rebiya Kadeer's Children Held in Custody, Beaten,'' CECC
China Human Rights and Rule of Law Update, June 2006, 2; Uyghur Human
Rights Project (Online), ``Rebiya Kadeer's Youngest Son `Confesses' to
Crimes under Torture,'' 6 July 06.
\209\ Uyghur Human Rights Project (Online), ``Two of Rebiya
Kadeer's Sons Arraigned, Trial Imminent,'' 12 July 06.
\210\ ``Rebiya Kadeer's Sons Charged with State Security and
Economic Crimes,'' CECC China Human Rights and Rule of Law Update, July
2006, 3.
\211\ Russian Orthodox Church claims that there are about 12,000
Chinese Orthodox, most of them Chinese citizens of Russian or mixed-
Russian descent. Most of them are located in northern China, Beijing,
or Shanghai. ``The Revival of the Orthodox Church in China Is in the
Hands of Our Lord,'' No. 15, Sobornost (Online), (April 2006);
``Keeping the Faith,'' South China Morning Post (Online), 28 March 05;
``About Orthodoxy in China: Interview with Archpriest Nikolai
Balashov,'' RIA Novosti (Online), 13 October 04.
\212\ In December 2005, Father Dionisy Pozdnyaev, a Russian
Orthodox priest in Hong Kong, met with SARA officials in Beijing. ``A
Priest of the Russian Orthodox Church Visited the Religious Affairs
Bureau of the People's Republic of China,'' Orthodoxy in China
(Online), 19 December 05. In May 2006, a senior SARA official met with
Russian Orthodox clerics in Moscow. ``Metropolitan Kyrill Met with
Delegation of PRC's Religious Affairs Bureau,'' Orthodoxy in China
(Online), 26 May 06. In July 2006, on the occasion of the World Summit
of Religious Leaders, Ye Xiaowen, Director of the SARA, met with
Russian Orthodox clerics in Moscow. According to the South China
Morning Post, ``Ye Xiaowen pledged to `resolve issues of concern' ''
but made it clear that a re-established Orthodox Church in China would
have to be self-governing, self-supporting, and self-propagating.
\213\ ``Zhejiang and Other Provincial Governments Issue New
Religious Regulations,'' CECC China Human Rights and Rule of Law
Update, June 2006, 9-10. The South China Morning Post reported that
SARA has established an office of Orthodox affairs, headed by Wang
Yanming. ``Visit Points to Revival of Orthodox Church,'' South China
Morning Post (Online), 7 July 06.
\214\ AsiaNews reported that the Russian Orthodox Church will build
a chapel in Beijing within the perimeter of the Russian Embassy, and
Northeast reported that a Russian Orthodox church will be rebuilt in
Harbin city, Heilongjiang province to house an exhibition of Russian
arts and crafts. ``Russian Orthodox Church To Be Set Up in Beijing
Shortly,'' AsiaNews (Online), 6 July 06; `` `Saint Nicholas Church' To
Be Recreated in Bingcheng'' [``Sheng nigula jiaotang'' jiang zaixian
bingcheng], Northeast (Online), 6 July 06.
\215\ ``China's Isolated Xinjiang Religious Minorities,'' Forum 18
(Online), 15 August 06.
\216\ CECC Staff Interview; ``Visit Points to Revival of Orthodox
Church,'' South China Morning Post; ``Russian Orthodox Church To Be Set
Up in Beijing Shortly,'' AsiaNews.
\217\ The China Aid Association, which monitors official treatment
of house church members, reported on June 25, 2006 that between May
2005 and May 2006, officials detained 1,958 house church members and
leaders. ``Persecution Report by Province in China Released Today,''
China Aid Association (Online), 25 June 06. For reports of torture and
abuse in 2005, see, ``China Torture and Abuse Report Released Today;
Attention on Religious Freedom in China Urged by US Rights
Organizations,'' China Aid Association (Online), 18 April 06. Regarding
the campaign against house church Protestants and others which began in
2002, see, David Murphy, ``Mass Appeal,'' Far Eastern Economic Review
(Online), 27 December 01; Sandro Magister, ``Lo Strano Ritiro
Spirituale di Jiang Zemin e Compagni'' [The Strange Spiritual Retreat
of Jiang Zemin and His Companions], L'espresso (Online), 15 January 02.
For earlier documents dating from 1999-2001, see, ``Report Analyzing
Seven Secret Chinese Government Documents,'' Freedom House (Online), 11
February 02; CECC, 2002 Annual Report, 2 October 2002.
\218\ ``24 House Church Leaders Missing After Police Raid; CAA
Releases the Defense Statement of Religious Group Leader Xu Shuangfu by
His Lawyers,'' China Aid Association (Online), 17 March 06.
\219\ ``House Church Pastor Detained in Hubei for Religious Study;
15 House Church Leaders Still Detained After Brutal Police Raid in
Henan; Prominent Rights Lawyers Intervene,'' China Aid Association
(Online), 21 March 06; ``5 Christians Receive Formal Arrest
Notifications from Xiaoshan Zhejiang Police, 3 Christians Suffer Broken
Ribs in Prison, Christian Reporter Fired,'' China Aid Association
(Online), 9 August 06.
\220\ ``Massive Arrest of Church Leaders including Americans in
Yunnan Province; CAA Issues Heartbreaking True Stories on Persecution
inside China,'' China Aid Association (Online), 19 April 06.
\221\ ``Persecution Report by Province in China Released Today,''
China Aid Association.
\222\ Ibid. 823 of 1,958 detentions between July 2005 and May 2006.
CECC Staff Interview; ``Six House Church Leaders Arrested in Henan;
Arrested Church Leaders in Hunan Drugged for Information,'' China Aid
Association (Online), 7 November 05; ``Registered Church Raided in
Henan; Prominent Musician in Beijing under House Arrest over Christian
Fears; Multiple Arrests of House Church Leaders Occurred in Xinjiang
and Shanxi,'' China Aid Association (Online), 10 March 06.
\223\ ``Nearly 50 House Church Leaders Arrested in Hebei; Some
Beaten,'' China Aid Association (Online), 20 October 05; ``Lawyer for
House Church Pastor Asked to Leave Beijing Before U.S. Presidential
Visit; One Well-Known House Church Leader Kidnapped in Beijing; Eight
More House Church Pastors and Believers Arrested,'' China Aid
Association (Online), 18 November 05; ``On Christmas Day, Christmas
Services Stopped in Xinjiang; House Church Leaders Arrested;
Persecution Against Beaten Christian Businessman Intensified,'' China
Aid Association (Online), 27 December 05; ``House Churches in Beijing
and Jilin Raided; Public Security Denied Jailed Beijing Pastor to Meet
with His Mother; Five Detained Church Leaders in Xinjiang Released,''
China Aid Association (Online), 16 January 06; ``Chinese Public
Security Bureau Close School with Mass Arrests in Anhui Province;
Government Crack Down on Independent House Church Movement
Intensified,'' China Aid Association (Online), 1 March 06.
\224\ ``Large House Church Destroyed in Zhejiang; Hundreds of
Christians Wounded and Arrested,'' China Aid Association (Online), 31
July 06; ``Zhejiang Officials Demolish House Churches, Beat and Detain
House Church Members,'' CECC China Human Rights and Rule of Law Update,
September 2006, 6.
\225\ ``Jailed Church Leader Sentenced to Three Years for Printing
Christian Literature,'' China Aid Association (Online), 8 November 05.
\226\ ``Beijing Pastor Forced to Withdraw Further Appeal; Only One
Defendant Decides to Appeal,'' China Aid Association (Online), 16
November 05.
\227\ ``Officials Arrest Third House Church Pastor for Giving Away
Bibles,'' CECC China Human Rights and Rule of Law Update, July 2006, 9.
\228\ ``Senior Chinese House Church Leader Arrested; More Churches
Raided Before Christmas,'' China Aid Association (Online), 10 December
04.
\229\ Timothy Chow, ``Chinese House Church Pastor Sentenced to 7.5
Years,'' Compass Direct (Online), 6 July 06; ``Prominent House Church
Leader Zhang Rongliang Sentenced to Seven and a Half Years in Prison;
Family Members Concerned About His Health; CAA Released Prosecution
Paper,'' China Aid Association (Online), 8 July 06.
\230\ ``Message from Pastor Gong Shengliang's Daughters Regarding
His Health,'' China Aid Association (Online), 27 March 06; ``Petition
for Medical Parole for Pastor Gong by Family Members,'' China Aid
Association (Online), 6 April 06; ``South China Church Senior Leader
Abused Again in Prison,'' China Aid Association (Online), 2 June 06.
\231\ ``House Church Members in Henan, Inner Mongolia, Jilin, and
Sichuan Accused of Cult Activities,'' CECC China Human Rights and Rule
of Law Update, September 2006, 7.
\232\ ``Three Controversial Religious Leaders Sentenced to Death;
One More House Church Leader Arrested in Sichuan,'' China Aid
Association (Online), 6 July 06; ``China Sentences Sect Members to
Death for Murders,'' Reuters (Online), 7 July 06.
\233\ Regulation on Religious Affairs [Zongjiao shiwu tiaoli],
issued 30 November 04, art.12.
\234\ For discussion of discouraged practices (including praying
for the sick), discouraged sermon subjects (including the redemptive
value of suffering, heavenly life, and the return of Christ at the end
of time), as well as of the occasional accommodation of denominational
differences within the TSPM, see, ``Three Self Patriotic Movement
Churches,'' OMF International (Online), undated. For discussion of the
theological directions in which the TSPM has applied pressure on its
members, see, Li Xihyuan, Theological Construction--or Destruction, An
Analysis of the Theology of Bishop K.H. Ting (Ding Guangxun)
(Streamwood, Illinois: Christian Life Press, 2003).
\235\ Ding Guangxun, ``A Call for Adjustment of Religious Ideas,''
Chinese People's Political Consultative News, 4 September 98, reprinted
in Li Xinyuan, Theological Construction--or Destruction, 109-111. For
further indications of the pressure to make Protestant theology conform
to state ideology, see Chinese Theological Review 19 (2005); ``Voices
in the Dark: Quotes from the Suffering Church,'' Compass Direct
(Online), 29 August 05.
\236\ Other aspects which ``theological construction'' would weaken
include belief in the centrality of salvation, the importance of faith,
and the divinity of Jesus. Chinese Theological Review 17-19 (2003-
2005).
\237\ Articles collected in the 2005 edition of Chinese Theological
Review do not propound ``theological construction'' as directly as
those in the 2004 and 2003 editions. The 2005 edition of Chinese
Theological Review acknowledges the opposition to the official
theological approach and asks for ``tolerance,'' in effect, for
``theological construction.''
\238\ ``Registered Church Raided in Henan; Prominent Musician in
Beijing Under House Arrest Over Christian Fears; Multiple Arrests of
House Church Leaders Occurred in Xinjiang and Shanxi,'' China Aid
Association.
\239\ Henan Regulation on Religious Affairs [Henan zongjiao shiwu
tiaoli], issued 30 July 05, art. 15. See also, ``Three Self Patriotic
Movement Churches,'' OMF International (Online), undated.
\240\ ``China's Isolated Xinjiang Religious Minorities,'' Forum 18
(Online), 15 August 06; ``Authorities Raid House Churches, Arrest 80,''
Compass Direct (Online), 28 July 06.
\241\ ``The Economics of Religious Freedom,'' Forum 18 (Online), 16
August 06.
\242\ Declaration on the Elimination of All Forms of Intolerance
and of Discrimination Based on Religion or Belief, art. 6(i).
\243\ ``Massive Arrest of Church Leaders Including Americans in
Yunnan Province; CAA Issues Heartbreaking True Stories on Persecution
inside China,'' China Aid Association (Online), 19 April 06; ``Multiple
Arrests Occurred in Shandong and Jiangsu; One South Korea Missionary
Expelled from China; Prominent Chinese Legal Scholar Banned to Go
Abroad,'' China Aid Association (Online), 16 May 06 (one Korean
expelled).
\244\ CECC Staff Interviews. ``Multiple Arrests Occurred in
Shandong and Jiangsu; One South Korea Missionary Expelled from China;
Prominent Chinese Legal Scholar Banned to Go Abroad,'' China Aid
Association. Regarding Zhang Rongliang's alleged travel and punishment,
see Chow, ``Chinese House Church Pastor Sentenced to 7.5 Years.''
\245\ See, e.g., ``Becoming a Believer,'' Beijing Review (Online),
1 June 06. Some observers consider that the Party fears Christianity
more than other religions. Gerolamo Fazzini, ``Cina. Se il Partito Teme
la Fede'' [China: If the Party Fears the Faith], Mondo e Missione
(Online), February 2006.
\246\ As an example of a theological statement produced by the
house church movement, see the ``Confession of Faith of the China House
Church Alliance,'' China Aid Association (Online), 10 February 06.
There are early signs of an emerging denominational consciousness,
sometimes developing over disagreements as to religious practices, and
the growing theological sophistication of the unregistered house
churches. CECC Staff Interviews. ``Threat of Denominationalism Requires
Vigilance,'' Amity News Service (Online), August 2004. On
evangelicalism and Pentecostalism in China, see David Aikman, Jesus in
Beijing: How Christianity Is Transforming China and Changing the Global
Balance of Power (Washington, D.C.: Regnery, 2003); Samuel Pearson,
``Jesus in Beijing: A Review Essay,'' Encounter LXV (Autumn 2004), 393-
402.
\247\ Jason Kindopp and Carol Lee Hamrin, eds., God and Caesar in
China: Policy Implications of Church-State Tensions (Washington, D.C.:
Brookings Institution, 2004), 137-139.
\248\ ``China Exclusive: China Launches Association to Promote
Outbound Religious Exchanges,'' Xinhua (Online), 30 December 05. Some
of the most prominent contacts in the last year were made in connection
with the Bible Ministry Exhibition which toured the United States in
the first six months of 2006. TSPM leaders spoke at a number of events
promoting the exhibit. ``Bible Ministry Exhibition of Church in China
to Be Held in US,'' Xinhua (Online), 18 April 06; ``Chinese Central
Government Launched Religious Propaganda Campaign in the US,'' China
Aid Association (Online), 20 May 06.
\249\ Regulation on Religious Affairs, arts. 35-37.
\250\ ``China's Prosperity Inspires Rising Spirituality,''
Christian Science Monitor (Online), 9 March 06.
\251\ Paul Hattaway, Brother Yun, Peter Xu Yongze, and Enoch Wang,
Back to Jerusalem: Three Chinese House Church Leaders Share Their
Vision to Complete the Great Commission (Carlisle, UK: Piquant, 2003),
13 (80-100 million); Gianni Criveller, ``Pechino nuova Antiochia? ''
[Beijing, the New Antioch?], Mondo e Missione (Online), July-August
2005 (less than 30 million); ``Millions All Over China Convert to
Christianity,'' Telegraph (Online), 3 August 05; ``Just How Many
Christians and Communists Are There in China? '' Ecumenical News
International (Online), 14 September 05; Caroline Fielder, ``The Growth
of the Protestant Church in China,'' paper presented at the 21st
National Catholic China Conference, Seattle, Washington, 27 June 05
(available at the Web site of the U.S. Catholic China Bureau). As to
estimates in official Chinese sources, see Ni Yanshuo, ``Religious
Training Remains Challenge in China,'' Beijing Review (Online), 2 June
06 (16 million Protestants in China).
\252\ ``China to Try New Maneuver to Wrestle with House Churches,''
China Information Center (Online), 9 March 06.
\253\ Fazzini, ``Cina. Se il Partito Teme la Fede'' [China: If the
Party Fears the Faith]; Wang Zhicheng, ``Communist Party in Crisis: 20
million Members Go to Church or Temple,'' AsiaNews (Online), 28
February 06; Gerolamo Fazzini, ``Non c'e Societa Senza Religione''
[There Is No Society Without Religion], Mondo e Missione (Online),
February 2006.
\254\ Fazzini, ``Cina. Se il Partito Teme la Fede'' [China: If the
Party Fears the Faith]; Magister, ``Twenty Million Communists at
Prayer.''
\255\ Ibid.
\256\ Angelo Lazzarotto, ``Religione Censurata a Meta'' [Religion
Censored Halfway], Mondo e Missione (Online), April 2006.
\257\ CECC Staff Interviews; You Bin, Wang Aiguo, and Gong Yukuan,
``Christianity in a Culture of Ethnic Pluralism: Report on Christianity
Among the Minorities of Yunnan,'' 19 Chinese Theological Review 100-124
(2005).
\258\ See the Web site of the Amity Foundation at
www.amityfoundation.org. The TSPM also encourages the church in
``participating in important social tasks to eliminate poverty.'' Wang
Peng, ``Koinonia and Ethical Thought in Paul's Epistles,'' 19 Chinese
Theological Review 81 (2005).
\259\ CECC Staff Interview.
\260\ ``The Economics of Religious Freedom,'' Forum 18 (Online), 16
August 06.
\261\ ``House Church Lawyers Promote Religious Freedom Through the
Rule of Law,'' CECC China Human Rights and Rule of Law Update, July
2006, 3; ``Yu Jie: Author Who Fights for Those Who Fear to Speak Out,''
AsiaNews (Online), 15 July 06; ``Christian Activists Visit
`Petitioners' Village in Beijing,'' AsiaNews (Online), 19 July 06;
``More Civic Activists Are Becoming Christian and Finding Support for
Their Causes in the Bible,'' Newsweek (Online), 24 July 06;
``Intellectuals and Religious Freedom,'' Forum 18 (Online), 2 August
06; David Aikman, ``A More Practical Approach,'' Christianity Today
(Online), 16 August 06.
\262\ Eric Eckholm, ``China Enacts Tough Law to Undercut Banned
Cult,'' New York Times (Online), 30 October 99.
\263\ ``Harbin Police Kill [Falun Gong Practitioner], Destroy
Corpse; Zhang Yanchao's Remains are Too Horrible to Look At'' [Ha'erbin
jing sha ren mieshi; Zhang Yanchao yiti canburenmu], Epoch Times
(Online), 25 April 06; ``20 Practitioners Kidnapped and Given
Injections; Xinjiang Falun Gong Calls for Investigation'' [20 wei
xueyuan zao banjia dazhen; Xinjiang falun gong huyu checha], Epoch
Times (Online), 24 April 06; ``Letter to the Media: With My Own Eyes I
Saw Two Female Falun Gong Practitioners Beaten to Death'' [Toushu: wo
qinyan kandao liang ming falun gong nu xueyuan bei guan si], Epoch
Times (Online), 24 April 06; Amnesty International, Report 2006: The
State of the World's Human Rights, 25 May 06; David Matas and David
Kilgour, Report into Allegations of Organ Harvesting of Falun Gong
Practitioners in China, 6 July 06; ``Mentally Ill Falun Gong
Practitioner Sentenced to 2.5 Years, Second Trial Upholds Original
Sentence,'' [Huan jingshenbing de Falun Gong renshi bei panxing liang
nian ban; ershen weichi yuanpan], Radio Free Asia (Online), 3 July 06.
\264\ Based on data in the CECC Political Prisoner Database.
\265\ ``List and Case Description of the 2932 Falun Gong
Practitioners Who Have Been Killed in the Persecution,'' Clear Wisdom
(Online), 3 June 06.
\266\ Manfred Nowak, Report of the Special Rapporteur on Torture
and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Mission
to China, Advance Edited Version, 10 March 06.
\267\ ``China Lashes Falun Gong Followers' Lies on Sujiatun
`Concentration Camp,' '' People's Daily (Online), 12 April 06; ``No One
Will Believe Falun Gong Followers' Lies: FM,'' Xinhua (Online), 29
March 06; U.S. Department of State (Online), Daily Press Briefing, 31
March 06.
\268\ Matas and Kilgour, ``Report into Allegations of Organ
Harvesting of Falun Gong Practitioners in China,'' 41: ``Based on what
we now know, we have come to the regrettable conclusion that the
allegations are true.''
\269\ China has signed, but not yet ratified, the ICCPR. The
Chinese government has committed itself to ratifying, and thus bringing
its laws into conformity with, the ICCPR and reaffirmed its commitment
as recently as April 13, 2006, in its application for membership in the
UN Human Rights Council. China's top leaders have previously stated on
three separate occasions that they are preparing for ratification of
the ICCPR, including in a September 6, 2005 statement by Politburo
member and State Councilor Luo Gan at the 22nd World Congress on Law,
in statements by Chinese Premier Wen Jiabao during his May 2005 Europe
tour, and in a January 27, 2004 speech by Chinese President Hu Jintao
before the French National Assembly.
\270\ International Covenant on Civil and Political Rights, adopted
by General Assembly resolution 2200A(XXI) of 16 December 66, entry into
force 23 March 76 [hereinafter ICCPR], art. 18. The official General
Comment 22 to Article 18 states, ``The right to freedom of thought,
conscience, and religion (which includes the freedom to hold beliefs)
in article 18(1) is far-reaching and profound; it encompasses freedom
of thought on all matters, personal conviction and the commitment to
religion or belief, whether manifested individually or in community
with others.''
\271\ UN Commission on Human Rights, Opinions Adopted by the
Working Group on Arbitrary Detention, Opinion No. 32/2005, 2 September
05 [hereinafter UNWGAD Opinions]; ``Student Imprisoned for Falun Gong
Activities Becomes Eligible for Parole,'' CECC China Human Rights and
Rule of Law Update, July 2006, 5; PRC Constitution, art. 36.
\272\ UNWGAD Opinions, Opinion No. 32/2005.
\273\ PRC Criminal Law, enacted 1 July 79, amended 14 March 97, 25
December 99, 31 August 01, 29 December 01, 28 December 02, 28 February
05, 29 June 06, art. 300. After Falun Gong practitioners staged a
demonstration involving 10,000 people outside the central government
leadership compound in Beijing, the National People's Congress Standing
Committee (NPCSC) issued Article 300 of the Criminal Law, which outlaws
organizing or using a cult to undermine implementation of the law. This
charge carries a penalty from three to seven years in prison, or, in
``serious'' cases, over seven years. Supreme People's Court Circular on
Thoroughly Implementing NPC ``Decision on Banning Cults, Guarding
Against and Punishing Cult Activities'' and ``Supreme People's Court/
Supreme People's Procuratorate Judicial Interpretation,'' [Zuigao
renmin fayuan guanyu guanche quanguo renda changweihui ``guanyu qudi
xiejiao zuzhi, fangfan he chengzhi xiejiao huodong de jueding'' he
``liang yuan'' sifa jieshi de tongzhi], issued 30 Oct 99. The Supreme
People's Court issued this circular to clarify that Article 300 would
be used against ``cults, especially Falun Gong.'' The NPCSC issued a
decision to articulate a need to separate the small number of
``criminal offenders'' who organize and use heretical sects to engage
in illegal activities from the majority of practitioners who are
``cheated'' into following the sect. The former should be punished
according to the Criminal Law, whereas the latter should receive
education, which is provided for under the administrative punishment
system. ``Student Imprisoned for Falun Gong Activities Becomes Eligible
for Parole,'' CECC China Human Rights and Rule of Law Update, July
2006, 5. National People's Congress Standing Committee Decision on
Banning Heretical Sects, Guarding Against and Punishing the Activities
of Heretical Sects [Quanguo renmin daibiao dahui changwu weiyuanhui
guanyu qudi xiejiao zuzhi, fangfan he chengzhi xiejiao huodong de
jueding], issued 30 October 99.
\274\ PRC Public Security Administration Punishment Law (PSAPL),
enacted 28 August 05, art. 27. At a February 2006 press conference,
public security officials asserted that Falun Gong practitioners are
subject to punishment under the PSAPL. Ministry of Public Security
(Online), ``Ministry of Public Security Convenes Press Conference to
Announce the Status of Preparations for Implementing the `Public
Security Administration Punishment Law' '' [Gongan bu zhaokai xinwen
fabuhui tongbao ``zhi'an guanli chufei fa'' shishi zhunbei qingkuang],
28 February 06. Article 27 of the PSAPL stipulates punishment for those
who organize heretical sects or secret societies or use superstitious
cults or qigong activities to disrupt public order or harm the health
of another. Those who violate this article are subject to 5 to 15 days
of detention and a fine of up to 1,000 yuan (US$125). ``Falun Gong
Practitioners to be Punished under New Administration Punishment Law,''
CECC China Human Rights and Rule of Law Update, May 2006, 6.
\275\ U.S. Department of State, Country Reports on Human Rights
Practices--2005, China; Human Rights Watch, ``China Uses `Rule of Law'
to Justify Falun Gong Crackdown,'' 9 November 99.
\276\ Supreme People's Court, Supreme People's Procuratorate
Interpretation on Some Questions of Which Concrete Laws to Use when
Dealing With the Crimes of Organizing and Using a Cult to Undermine
Implementation of the Law [Zuigao renmin fayuan zuigao renmin
jianchayuan guanyu banli zuzhi he liyong xiejiao zuzhi fanzui anjian
juti yingyong falu ruogan wenti de jieshi], issued 9 October 99.
\277\ ``Student Imprisoned for Falun Gong Activities Becomes
Eligible for Parole,'' CECC China Human Rights and Rule of Law Update,
July 2006, 5. Based on data available in the CECC Political Prisoner
Database.
\278\ Philip P. Pan, ``China Shutters Prominent Lawyer's Firm;
Rights Activist Had Refused To Disavow Letter Defending Religion, Falun
Gong,'' Washington Post (Online), 6 November 06.
\279\ Xin Fei, ``Exclusive Interview with Attorney Yang Zaixin--
Walk Along with Attorney Gao,'' Epoch Times (Online), 30 January 06.
\280\ ``China Condemns Falun Gong but Spares U.S. Criticism,''
Reuters (Online), 25 April 06.
\281\ ``Hebei Province To Distribute Free Anti-Cult Illustrated
Posters to Villages and City Districts [Hebei sheng jiang xiang nongcun
he chengshi shequ mianfei fafang fan xiejiao manhua guatu], China Anti-
Cult Net (Online), 2 March 06.
\282\ ``People's Daily Publishes 2005 Censorship Numbers,'' CECC
China Human Rights and Rule of Law Update, May 2006, 5.
\283\ 873 ``Information Network Security Has Aroused Worldwide
Concern,'' PLA Daily, 21 February 06 (Open Source Center, 21 February
06).
Notes to Section V(e)--Status of Women
\1\ PRC Constitution, art. 48.
\2\ PRC Law on the Protection of the Rights and Interests of Women,
enacted 3 April 92, amended 28 August 05, arts. 11, 39, 40, 46, 58,
respectively [hereinafter LPRIW]. Article 58 gives victims of sexual
harassment and domestic violence the right to seek redress under
administrative punishment regulations and also to bring a civil suit
against the harassers for damages.
\3\ ``Henan To Introduce Anti-Domestic Violence Regulation'' [Henan
jiang chutai fan jiating baoli fagui chengzhi shibao zhe], China Youth
Daily, reprinted in Xinhua (Online), 30 March 06. In March 2006, the
Henan province Local People's Congress proposed a regulation mandating
police response to domestic violence calls. ``Henan Has New Regulation:
Police Must Respond Quickly to Complaints of Domestic Violence'' [Henan
xin fagui: Jia-bao shouzhe qiujiu; jingcha xu xunsu chujing], China
Youth Daily (Online), 31 March 06. Shaanxi, Hainan, Chongqing,
Shenzhen, and Shanghai also have domestic violence regulations in
various stages of the legislative process. ``Xinjiang Three-Year Old
Girl Suffers Physical Abuse From Parents and has Both Feet Amputated--
Thoughts on Laws Difficult To Bring Into Operation; Suffering Caused by
Domestic Violence Won't Go Away'' [Xinjiang 3 sui nutong canzao fumu
nuedai zhi shuangzu jiezhi; fagui nan caozuo; jiating baoli tong nan
xiao], Legal Daily (Online), 19 January 06.
\4\ ``Xinjiang Three-Year Old Girl Suffers Physical Abuse From
Parents,'' Legal Daily; ``How Can Chinese Women Defend Their Own Rights
and Interests'' [Zhongguo funu ruhe weihu zishen quanyi], Radio Free
Asia (Online), 25 March 06 (quoting Song Meiya, editor of ``Women's
News''); ``Domestic Violence Cases Still a Thorny Issue for Courts To
Get Involved With'' [Sifa jieru jiating baoli yiran jishou], Legal
Daily (Online), 24 November 05. According to lawyer Chen Mei at China
Law School, there is no provision on domestic violence under the
criminal law, so if a woman wishes to bring a domestic violence case,
she must prove ``abuse'' (nuedai zui).
\5\ ``How Can Chinese Women Defend Their Own Rights and
Interests,'' Radio Free Asia (quoting Wu Qing, retired professor at
Beijing Foreign Language Institute).
\6\ ``Same Domestic Violence Accusation, Different Results in
Shanghai and Baotou Court Cases; Expert Calls for Unified Standard''
[Tongshi shou nuesha fu Shanghai Baotou pan butong zhuanjia: tongyi
biaozhun], Legal Daily (Online), 30 March 06.
\7\ ``Revisions to Retirement Regulations Requiring Women to Retire
Before Men Suggested to NPC Standing Committee'' [Nannu tuixiu butong
nian guiding quanguo renda changweihui tiqi weixian shencha jianyi
shu], Women Watch--China (Online), 10 March 06.
\8\ ``Revisions to Retirement Regulations Requiring Women to Retire
Before Men Suggested to NPC Standing Committee,'' Women Watch--China;
``Gender Retirement Issue to Go Before NPC'' [Nannu gongwuyuan tongling
tuixiu de tiaojian yijing jubei], China Woman (Online), 13 March 06.
Due to a 1978 regulation that contravenes the LPRIW, employers can
mandate that women retire five years before men, limiting their
opportunities for promotion and better pensions. The Center for Women's
Law and Legal Services of Peking University has consulted 118 women on
this issue since 1995, raised the issue before the NPC, and is awaiting
a response.
\9\ ``Women Sue Village Committees for Denying Them Land Rights,''
CECC China Human Rights and Rule of Law Update, July 2006, 8.
\10\ Ibid.; ``Seeking Equal Treatment with Men: 28 Hohhot Women Who
Married Out of Their Village Sue the Village Committee'' [Qiu yu
nanxing cunmin tong daiyu hu shi 28 wei chujia nu gao cunweihui],
Xinhua (Online), 15 May 06; ``Half the Sky Doesn't Mean Half the
Earth'' [Banbian tian debudao banbian di], China Youth Daily (Online),
22 May 06. Village regulations based on traditional social structures
that favor men trump national laws that protect women's property rights
in theory, but lack systematic implementing measures. ``Implement
Village Land Rights Equally for Men and Women: It Is the Responsibility
of Society'' [Shixian nongcun tudiquan nannu pingdeng shi quan shehui
de gongtong zeren], Women Watch--China (Online), 30 April 06.
\11\ Liaoning province increased 2006 funding for the Double
Learning, Double Emulation (shuangxue shuangbi) program, a successful
women's microfinance program. ``Liaoning Invests Heavily in Program to
Economically Empower Rural Women'' [Liaoning zheng toufang baiwan
bangzhu nongcun funu yinjin zhifu xiangmu], China Woman Paper (Online),
last visited 24 March 06. Provincial and city ACWF branches fund
shelters for victims of domestic violence. ``Domestic Violence and
Public Discussions: Why Do Many Shelters Not Help Enough? '' [Jiating
baoli nan yu renyan funu bihusuo weihe duo zao lengyu], Xinhua
(Online), 19 December 06.
\12\ ``Number of Rural Chinese Women in Abject Poverty Down to 12
Million,'' Xinhua, 11 April 06 (Open Source Center, 12 April 06).
\13\ ``Seventy Percent of Injured Women Don't Understand How To
Defend Their Rights; Related Departments Open Passageways'' [Qi cheng
shou shanghai funu bu dong weiquan youguan bumen pi tongdao], Yangzi
Wanbao (Online), 26 February 06. Police in Beijing have agreed to work
with district-level Women's Federations to ensure police response to
domestic violence complaints and gather evidence to convict offenders.
``Beijing Police to Interfere in Domestic Violence Cases: Police to
Respond to 100 Percent of Wife-Beating Cases'' [Beijing jingfang ganyu
jiating baoli da laopo shijian 100 percent chu jing], China Times
(Online), reprinted in Women Watch--China (Online), 22 February 06.
\14\ The women's rights activist is Guo Jianmei of the Center for
Women's Law and Legal Services of Peking University. ``A Lawsuit That
Overturned the `Home Village Regulations' on Women's Property Rights''
[Yi chang yinfa dianfu ``xiangtu guize'' de nongcun funu tudi quanyi
guansi], China Philanthropy Times, reprinted in Women Watch--China
(Online), 23 November 05.
\15\ CECC, 2005 Annual Report, 11 October 05, Section V(f)--Status
of Women.
\16\ ``First Women's Legal Aid Foundation Established'' [Shou xiang
funu falu yuanzhu jijin sheli], Beijing News, reprinted in Women
Watch--China (Online), 10 March 06.
\17\ ``Same Domestic Violence Accusation,'' Legal Daily (citing to
Peking University Law School professor Chen Xingliang). The expert is
China Law School domestic violence expert, lawyer Chen Mei. ``Domestic
Violence Cases Still a Thorny Issue for Courts To Get Involved With,''
Legal Daily (Online); ``Beijing Sexual Harassment Case Settled Out of
Court; Defendant Pays Plaintiff 6000 Yuan'' [Beijing xingsaorao diyi an
tingwai hexie beigao xiang mote peichang 6000 yuan], Beijing Morning
Times, reprinted in Women Watch--China (Online), 4 November 05; ``First
Sexual Harassment Lawsuit Since Amendment to Women's Law,'' CECC China
Human Rights and Rule of Law Update, December 2005, 16; ``Domestic
Violence and Public Discussions: Why Do Many Shelters Not Help Enough?
'' Xinhua (Online); ``A Lawsuit that Overturned the `Home Village
Regulations' on Women's Property Rights,'' China Philanthropy Times.
\18\ Center for Women's Law and Legal Services of Peking University
(Online), ``October 21-24, Center Participated in Chinese Women's NGO
Capacity Building Conference'' [10 yue 21 ri-24 ri, Zhongxin canjia
Zhongguo funu NGO nengli jianshe yantaohui], last visited 7 November
05. Participants included: Center for Women's Law and Legal Services of
Peking University, Shaanxi Research Association for Women and Family,
Henan District Education and Research Center, Rural Women, Maple
Women's Psychological Counseling Center, and Yunnan Xishuangbanna Women
and Children's Law and Health Counseling Center.
\19\ China Gender Equality and Women's Development Report [Zhongguo
xingbie pingdeng yu funu fazhan baogao], ed. Tan Lin (Beijing: Social
Sciences Academic Press, 2006), reprinted in China Net (Online).
\20\ Ibid.
\21\ Ibid. Employers prefer to hire men and women in a ratio of
7:3; college students graduate in a sex ratio of 5:5. ``Does `Gender
Ratio' Tolerance Have Limits Too? 7:3 Grips Women College Graduates''
[``Xingbiebi rongren'' ye you jixian? 7:3 qiazhu nu daxuesheng], Xinhua
(Online), 19 May 06. Epoch Times report suggests women increasingly
dominate higher education due to difficulties they have finding
employment. ``Employment Difficulties--Chinese Women Dominate Masters
and Ph.D. Programs'' [Jiuye kunnan Zhongguo nuxing chengba shuo-bo
qunti], Epoch Times (Online), 12 April 06.
\22\ China Gender Equality and Women's Development Report, ed. Tan
Lin. Women need higher education levels than men before they are
considered for white collar jobs.
\23\ Ibid.
\24\ ``Chongqing District Employment Service: Redundant Women
Workers Are Reemployed at the `Family Door' '' [Chongqing shequ jiuye
fuwu xiagang nugong ``jia menkou'' shixian zaijiuye], Xinhua (Online),
9 May 06; ``Jimunai County Provides Favorable Loans to Help Redundant
Woman Workers Find New Jobs'' [Jimunai xian wei 70 ming xiagang funu
fafang zaijiuye daikuan 140 wan yuan], Tianshan Net (Online), 31 May
06.
\25\ ``Poverty Alleviation Targets Gender Inequality,'' China Daily
(Online), 12 April 06.
\26\ ``55 Million Chinese Women Are Illiterate,'' South China
Morning Post (Online), 19 July 06.
\27\ Reasons parents keep girls out of school include high school
fees; a desire to keep girls at home to do household work; employment
opportunities as domestic workers; a sense that girl children are not
obligated to care for elderly parents and thus not worth educating;
remote household locations; and concerns over their daughters' safety.
World Bank, East Asia Environment and Social Development Unit, China
Country Gender Review, June 2002. On dangers that girls face from
teachers, see ``Fixing the Price of a Girl's Hymen'' [Wei shouhai younu
chunumo dingjia], Southern Metropolitan Daily (Online), 19 October 05.
\28\ China Gender Equality and Women's Development Report, ed. Tan
Lin.
\29\ ``Verite's China Labor Center: Providing Women Workers with
the Skills They Need.'' Date unknown. Cited in Human Trafficking in
China: Domestic and International Efforts, Hearing of the
Congressional-Executive Commission on China, 6 March 06, Testimony of
Wenchi Yu Perkins, Director, Anti-Trafficking and Human Rights Program,
Vital Voices.
\30\ ``Survey of Young Female Migrant Workers Reveals 70 Percent
Have Been Sexually Harassed'' [Hunan nianqing nuxing nongmingong
diaocha 7 cheng dagongmei zaoguo xingsaorao], Xinhua (Online), 15 May
06.
\31\ 86.72 percent of women are healthy; 7.69 percent have an
infectious disease, and 5.56 percent are handicapped. For men, the
statistics are 89.27 percent, 5.55 percent, and 5.16 percent,
respectively. China Gender Equality and Women's Development Report, ed.
Tan Lin.
\32\ ``Chinese Women's Health Situation.''
\33\ ``AIDS Is Most Severe in Yunnan; Women's Infection Rate
Increases'' [Yunnan aizibing yiqing zui yanzhong nuxing ganran zhe bili
dafu shangsheng], Eastday Net (Online), 16 February 06.
\34\ China Gender Equality and Women's Development Report, ed. Tan
Lin; ``Traditions Weigh on China's Women,'' BBC (Online), 19 June 06;
``Suicide Rampant Among China's Rural Women, City High-Flyers,'' Radio
Free Asia (Online), 30 August 06.
\35\ China Gender Equality and Women's Development Report, ed. Tan
Lin.
\36\ ``Last Year Public Security Saved 9,000 Abducted Women and
Children'' [Gongan jiguan qunian jiejiu bei guaimai funu ertong jin
9000 ren], Xinhua, reprinted in Procuratorate Daily (Online), 15
February 05.
\37\ Office to Monitor and Combat Trafficking in Persons, U.S.
Department of State, Trafficking in Persons Report--China, 5 June 06,
91.
\38\ Ibid.
\39\ ``Hengyang, Hunan Welfare Organization Officials Involved in
Trafficking Case, Judgment Announced'' [Hunan Hengyang bufen fuli jigou
shoumai bei guaimai ertong an yishen xuanpan], Xinhua (Online), 24
February 06; ``Main Defendant in 5/11 Inner Mongolia Baby Trafficking
Case Sentenced to Life Imprisonment'' [Nei Menggu ``5-11'' teda fanying
an zhufan bei pan wuqi tuxing], Xinhua (Online), 22 November 05. See
also ``Orphanage Probed Over Baby Charges Claim,'' China Daily
(Online), 19 April 06, for a case that involves a state welfare
organization official requiring large donations in return for illegal
adoptions.
\40\ PRC Criminal Law, enacted 1 July 79, amended 14 March 97, 1
October 97, 25 December 99, 31 August 01, 29 December 01, 28 December
02, arts. 240, 416. See also PRC Adoption Law, enacted 29 December 91,
art. 19 (forbids the sale of children for adoption); PRC Law on the
Protection of the Rights and Interests of Women, art. 39 (prohibits the
trafficking of women and children). Neither stipulates criminal
punishment for these crimes.
\41\ ``AFP Report Says Baby Trafficking in PRC's Rural Areas
`Widespread,' '' Agence France-Presse, 10 February 05 (Open Source
Center, 10 February 05).
\42\ Government reports state that the police handled nearly 2,000
cases of trafficking in the first 10 months of 2005, resulting in over
3,000 women rescued. Combating Human Trafficking in China, Testimony of
Ambassador John R. Miller, Director, Office to Monitor and Combat
Trafficking in Persons, U.S. Department of State; Trafficking in
Persons Report 2006, 92. According to Ministry of Public Security (MPS)
statistics, in 2005, the MPS docketed 2,884 cases of trafficking in
women and children. ``China to Set National Anti-Trafficking Action
Plan'' [Zhongguo jiang zhiding guojia fan renkou guaimai xingdong
jihua], Xinhua (Online), 12 July 06. In the first 10 months of 2004,
almost 9,000 women and children were rescued. U.S. Department of State,
Country Reports on Human Rights Practices--2005, China. China lacks
reliable information, however, on trafficking numbers and anti-
trafficking efforts.
\43\ UN Convention against Transnational Organized Crime, 8 January
01; Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children (commonly known as Palermo Protocol);
Protocol against the Smuggling of Migrants by Land, Sea, and Air.
\44\ PRC Labor Law. ``[C]urrent penal legislation on trafficking
covers only the trafficking of women and children. Article 240 of the
Penal Code provides for a heavy prison sentence, plus a fine, for those
persons abducting and trafficking women and children. The implication
is that several of the offenses covered by the definitional articles of
the Palermo `Trafficking Protocol' to the United Nations Convention
against Transnational Organized Crime (including forced labor or
services, slavery or practices similar to slavery) are not covered by
existing Chinese legislation.'' Combating Human Trafficking in China,
Testimony of Roger Plant, Head of Special Action Program to Combat
Forced Labor, International Labor Organization.
\45\ International Labor Organization (Online), Forced Labor and
Trafficking: the Role of Labor Institutions in Law Enforcement and
International Cooperation. The ILO Special Action Program to Combat
Forced Labor addresses law enforcement and capacity building among
different Chinese government departments.
\46\ International Labor Organization (Online), ``The Mekong Sub-
Region Project, Yunnan Province,'' 19 March 04.
Notes to Section V(f)--The Environment
\1\ State Council Information Office, White Paper on Environmental
Protection in China (1996-2005), People's Daily (Online), 5 June 06.
\2\ ``Analysis: Stability Concerns Drive China's Environmental
Initiatives,'' Open Source Center, 28 June 06; Ching-Ching Ni, ``China
Toughens Stance on Environmental Protection,'' Los Angeles Times
(Online), 22 February 06.
\3\ Elizabeth C. Economy, The River Runs Black: The Environmental
Challenge to China's Future (Ithaca, New York: Cornell University
Press, 2004), 24.
\4\ Ibid., 25.
\5\ ``Zhou Shengxian: If You Want To Be a Good Official, Don't
Cause Pollution'' [Zhou Shengxian: yao dang hao guan jiu bie gao
wuran], Beijing News (Online), 20 April 06.
\6\ State Council Information Office, White Paper on Environmental
Protection in China (1996-2005).
\7\ Andrew Baston, ``China Takes on Pollution,'' Wall Street
Journal, 6 June 06, A8.
\8\ ``China To Blacklist, Penalize Polluting Cities,'' Reuters,
reprinted in China Daily (Online), 25 October 05; ``China To Blacklist
Cities With Substandard Air Quality,'' Xinhua (Online), 24 October 05.
\9\ ``4 Projects Suspended for Violating Environmental Laws,''
Xinhua (Online), 25 October 05; ``Punishment Urged in Child Lead-
Poisoning Factory Case,'' Xinhua (Online), 19 October 05.
\10\ ``Let Criminal Law Have Free Reign in Environmental
Protection'' [Rang xingfa zai baohu huanjing zhong fahui geng da
zuoyong], China Court Net (Online), 15 September 05.
\11\ According to experts, ``China has some of the best
environmental laws in the world, but the sheer scale of development,
inadequate planning, corruption and poor enforcement often result in
uncontrolled pollution.'' David Lague, ``Toxic Flow Reaches Chinese
City; Oil Company Blamed,'' New York Times (Online), 24 November 05.
\12\ To help SEPA in its work, the central government plans to base
local officials' performance ratings on their ability to promote not
only economic development but also environmental protection. Ching-
Ching Ni, ``China Toughens Stance on Environmental Protection.''
\13\ Deng Weihua, Lin Wei, and Li Zebing, ``A Strange Circle of
Pollution Control--the Worse the Pollution, the Wealthier the
Environmental Protection Units'' [Zhiwu guaiquan: wuran yue zhong
huanbao bumen yue fu], Xinhua, reprinted in Legal Daily (Online), 12
July 05; Economy, The River Runs Black, 20-21.
\14\ Audra Ang, ``Chinese Clash With Police in Protest Over
Pollution,'' Associated Press, reprinted in Washington Post (Online),
22 August 05; Didi Kirsten Tatlow and Kristine Kwok, ``Police Break Up
Massive Riot in Zhejiang Province, Two Reportedly Killed,'' South China
Morning Post (Online), 12 April 05 (Open Source Center, 12 April 05);
Didi Kirsten Tatlow, ``The Government is on the Run in Village Where
Anti-Pollution Riot Occurred,'' South China Morning Post (Online), 13
April 05; ``Tensions Simmer Following `Bloody Riot' by Thousands in
China's Zhejiang,'' Agence France-Presse, 13 April 05 (Open Source
Center, 13 April 05).
\15\ Philip P. Pan, ``In Visit to Harbin, Chinese Leader Silent on
Spill Coverup,'' Washington Post (Online), 27 November 05; ``More on
Heilongjiang Province To Suspend Water Supply Due To Possible River
Contamination,'' Xinhua, 22 November 05 (Open Source Center, 22
November 05); Jennifer Turner and Kenji Otsuka, ``Reaching Across the
Water: International Cooperation Promoting Sustainable River Basin
Governance in China,'' Woodrow Wilson Center, May 2006, 17.
\16\ Jim Yardley, ``Spill in China Brings Danger, and Cover-Up,''
New York Times (Online), 26 November 05; Turner and Otsuka, ``Reaching
Across the Water,'' 17.
\17\ Yardley, ``Spill in China Brings Danger, and Cover-Up;'' Guo
Shipeng and Benjamin Kang Lim, ``China Officials Tried to Hush Up Toxic
Spill,'' Reuters (Online), 25 November 05.
\18\ Yardley, ``Spill in China Brings Danger, and Cover-Up.''
\19\ ``More on Heilongjiang Province To Suspend Water Supply Due to
Possible River Contamination,'' Xinhua, 22 November 05 (Open Source
Center, 22 November 05); ``Response to China Toxic Spill Shows `Lack of
Good Governance,' Expert Says,'' Radio Free Asia, 7 December 05,
reprinted in Broadcast Interview Source (Online), 14 December 05; Joe
McDonald, ``China Tries to Ease Anger at Toxic Spill,'' Associated
Press, reprinted in Lexis-Nexis (Online), 7 December 05; State
Environmental Protection Administration Circular on the Songhua Water
Pollution Incident [Huanbao zongju tongbao songhua jiang shuiwuran
qingkuang], issued 23 November 05; ``China's Environment Watchdog
Confirms `Major' Pollution in Songhua River,'' Xinhua, 23 November 05
(Open Source Center, 23 November 05); Turner and Otsuka, ``Reaching
Across the Water,'' 17.
\20\ Kim Hunter Gordon, ``Ssh, Don't Mention it to the Emperor,''
The Observer (Online), 4 December 05.
\21\ ``Response to China Toxic Spill Shows `Lack of Good
Governance,' Expert Says,'' Radio Free Asia (Online), 7 December 05,
reprinted in Broadcast Interview Source (Online), 14 December 05.
\22\ The central government vowed to discipline officials who
participated in the cover-up of the spill. For example, Xie Zhenhua,
the Minister of SEPA, was asked to resign due to what was perceived as
an ``inadequate initial response'' from SEPA. Turner and Otsuka,
``Reaching Across the Water,'' 17. In addition, the government issued
rules stating that officials would be punished in the future for
covering up accidents, failing to shut down polluting projects, or
canceling or reducing fees imposed on polluters. Potential punishments
range from disciplinary warnings to dismissal, although the penalty for
each offense was not stated. Ching-Ching Ni, ``China Toughens Stance on
Environmental Protection;'' Elaine Kurtenbach, ``Environmental Agency
Says Disasters Must Be Reported Within One Hour,'' Associated Press,
reprinted in South China Morning Post (Online), 7 February 06.
\23\ ``Xinhua: Emergency Response Plan To Increase PRC Ability To
Cope With Incidents,'' Xinhua, 8 January 06 (Open Source Center, 8
January 06).
\24\ Kurtenbach, ``Environmental Agency Says Disasters Must Be
Reported Within One Hour.''
\25\ ``Jilin City Has Yet to Publicly Announce News of Water
Pollution'' [Jilin shi wei gong kai fabu shuiwuran xiaoxi], China Youth
Daily (Online), 25 November 05.
\26\ Jason Dean, Geoffrey A. Fowler, and Juying Qin, ``China Media-
Law Draft Spurs Debate,'' Wall Street Journal (Online), 5 July 06;
Gillian Wong, ``China Defends Proposed Law To Fine Media for
Unauthorized Disaster Reporting,'' Associated Press (Online), 3 July
06; ``China Says Draft Law To Make Media `Responsible,' '' Reuters
(Online), 3 July 06; Jonathan Watts, ``China's Media Faces Fines for
Reporting Disasters,'' The Guardian (Online), 4 July 06; ``Draft Law
Directed at Sudden Incidents: Foreign Media is Worried About
Restrictions'' [Zhendui tufa shijian cao'an jingwai meiti you shou
xianzhi], Ming Pao Daily (Online), 5 July 06; ``Chinese Government Says
Objective Reporting on Disasters Not Affected by New Law,'' Xinhua
(Online), 3 July 06.
\27\ ``Public Can Help Environment,'' China Daily (Online), 27
February 06. Public participation is currently limited to the
assessment stage. Procedures for public input into environmental policy
making or enforcement have not been considered.
\28\ ``SEPA Chief: Emergency Environmental Incidents Can Be
Directly Reported to the State Bureau For Letters and Calls'' [Huanbao
zongju: tufa zhongda huanjing shixiang ke zhi bao guojia xinfang ju],
People's Daily (Online), 6 July 06; ``SEPA Issues New Measures on
Environmental Letters and Petitions,'' Legal Daily (Online), 6 July 06.
\29\ ``Public To Help Assess Impact on Environment,'' China Daily
(Online), 23 February 06.
\30\ ``PRC Government, NGOs Work To Deal With Environmental
Issues,'' Beijing Review, 20 January 06 (Open Source Center, 20 January
06); International Rivers Network Fact Sheet (Online), ``China's Nu
River: Dam Projects Threaten Magnificent World Heritage Site,''
Undated.
\31\ ``Burma: China Revives Salween River Dam Projects Despite
Protests,'' Shanland (Online), 6 October 05 (Open Source Center, 8
October 05); Jim Yardley, ``Seeking a Public Voice on China's `Angry
River,' '' New York Times (Online), 26 December 05.
\32\ Yardley, ``Seeking a Public Voice on China's `Angry River;' ''
``Call for Public Disclosure of Nujiang Hydropower Development's EIA
Report in Accordance With the Law,'' Three Gorges Probe News Service
(Online), 6 September 05.
\33\ Allison Moore and Adria Warren, ``The Double Edge of Legal
Advocacy in Environmental Public Participation in China: Raising the
Stakes and Strengthening Stakeholders,'' China Environment Series,
Issue 8, Woodrow Wilson Center, forthcoming 2006, 22-23.
\34\ Human Rights in China Press Release (Online), ``Three Gorges
Activist Faces Paralysis After Brutal Assault,'' 12 June 06; Human
Rights in China Press Release (Online), ``HRIC Welcomes German
Intervention in Case of Three Gorges Activist,'' 13 June 06; Alexa
Olesen, ``Chinese Activist Said Paralyzed by Assault,'' Associated
Press (Online), 14 June 06. ``Three Gorges Resettlement Activist
Paralyzed After Assault,'' CECC China Human Rights and Rule of Law
Update, July 2006, 10-11.
\35\ Human Rights in China (Online), ``Officials Conclude Self-
Inflicted Injury in Fu Xiancai Case,'' 26 July 06; ``Officials Conclude
Investigation, Increase Surveillance Over Activist Fu Xiancai,'' CECC
China Human Rights and Rule of Law Update, September 2006, 12.
\36\ Human Rights in China (Online), ``Environmental Activists
Detained in Hangzhou,'' 25 October 05; Human Rights in China (Online),
``Trial Date Set for Hangzhou Environmentalist,'' 11 May 06; Human
Rights in China (Online), ``News Update: Hangzhou Environmentalist Tan
Kai's Trial Granted Continuance,'' 22 June 06; Human Rights in China
(Online), ``Environmental Activist Sun Xiaodi Detained Again,'' 7 April
06; ``Activist Sun Xiaodi, Who Exposed Nuclear Pollution, Isolated From
All Sides'' [Jielu hewuran wei quanrenshi Sun Xiaodi shoudao ge fang
guli], Radio Free Asia (Online), 4 July 06.
\37\ Human Rights in China (Online), ``News Update: Hangzhou
Environmentalist Tan Kai's Trial Granted Continuance;''
``Environmentalist Tan Kai sentenced to 1.5-year term'' [Huanbao renshi
Tan Kai bei pan yi nian ban xingqi], Radio Free Asia (Online), 11
August 06.
\38\ ``Villager Tortured and Put on Trial for Protesting Air
Pollution,'' Chinese Rights Defenders Information Bulletin, 12 March
06.
\39\ Josephine Ma, ``Green Groups Fall Under Microscope,'' South
China Morning Post (Online), 18 August 05; Jing Xiaolei, ``Beijing
Review: PRC Government, NGOs Work To Deal With Environmental Issues,''
Beijing Review, 20 January 06 (Open Source Center, 20 January 06).
\40\ Ma, ``Green Groups Fall Under Microscope;'' Yardley, ``Seeking
a Public Voice on China's `Angry River.' ''
\41\ EPA Newsroom, 8 November 05.
\42\ ``Asia-Pacific Partnership on Clean Development and Climate,''
U.S. Department of State Press Release, 1 May 06; ``The Asia-Pacific
Partnership on Clean Development and Climate: Implementation, Action,
and Results,'' White House Press Release, 11 January 06.
\43\ U.S. Department of State (Online), ``Development Grants
Promote U.S.-China Environmental Cooperation,'' 25 May 06.
\44\ U.S. Department of State (Online), ``U.S., China to Partner
for Better Global Environment,'' 10 April 06.
\45\ ``USTDA Initiatives Promote Clean Energy and Air Quality in
China,'' United States Trade and Development Press Release, 24 May 06.
Notes to Section V(g)--Public Health
\1\ Government Work Report [Zhengfu gongzuo baogao], issued 15
March 06. The State Council adopted the plan on March 1, 2006, and an
outline of the plan was also published on December 31, 2005, in an
``Opinion Promoting the Construction of a New Socialist Countryside.''
``State Council Standing Committee Issues `Plan for Construction and
Development of Rural Health System' '' [Guowuyuan changwu hui shenyi
nongcun weisheng guihua], Xinhua (Online), 2 March 06. The joint
Opinion sets out key policy goals related to rural development for
2006, including refocusing investment priorities on rural areas,
addressing problems facing migrants, and advancing proposals for reform
to the land requisition system. Central Party Committee, State Council
Opinion on Promoting the Construction of a New Socialist Countryside
[Zhonggong zhongyang guowuyuan guanyu tuijin shehui zhuyi xin nongcun
jianshe de ruogan yijian], issued 31 December 05.
\2\ Government Work Report.
\3\ Ibid.; ``China Evaluates New Rural Medical Care System to
Insure Farmer's Health,'' Xinhua (Online), 29 March 06.
\4\ Government Work Report.
\5\ ``Social Security Expert Yang Lixiong--Society's Urban Rural
Disparity Stems From Social Security System'' [Shehui baozhang zhuanjia
Yang Lixiong--cheng xiang eryuan baozhang tizhi shi shehui yuanyin],
China Youth Daily (Online), 11 November 05.
\6\ CECC, 2005 Annual Report, 11 October 05, 72.
\7\ Ibid.
\8\ ``Social Security Expert Yang Lixiong--Society's Urban Rural
Disparity Stems From Social Security System,'' China Youth Daily.
\9\ David Blumenthal and William Hsiao, ``Privatization and its
Discontents--The Evolving Chinese Health Care System,'' New England
Journal of Medicine, Vol. 353, No. 11, 1165, (2005).
\10\ Ibid., 1166.
\11\ ``Residents of Chinese Cities Live on Average 12 Years Longer
than Those in Rural Areas--What Is the Cause? '' [Zhongguo da chengshi
ren jun shouming bi nongcun gao 12 nian- shi he yuanyin?], Beijing News
(Online), 18 November 05.
\12\ ``Facts and Figures: Widening Gap Between China's Urban, Rural
Areas,'' People's Daily (Online), 3 March 06.
\13\ Dr. Zhao Zhongwei, a professor at the Australian National
University, presented the results of a study entitled ``Establishing a
Harmonious Social Environment: Reducing China's Mortality Rate,
Successes and Challenges,'' at a November 16 forum in Beijing.
``Residents of Chinese Cities Live on Average 12 Years Longer than
Those in Rural Areas--What Is the Cause?,'' Beijing News.
\14\ Ministry of Health (Online), ``Ministry of Health Publishes
Statistics on Infectious Diseases in 2005'' [Weishengbu gongbu 2005
nian quanguo fading baogao chuanranbing yiqing], 10 February 06.
\15\ Ibid.
\16\ Ibid.
\17\ ``Doctors Not Up to Scratch on Hepatitis B,'' South China
Morning Post (Online), 29 September 05.
\18\ Ministry of Health (Online), ``Ministry of Health Publishes
`2006-2010 Plan on Hepatitis B Prevention and Control' '' [``2006-2010
nian quanguo yi xing bingduxing ganyan fangzhi guihua'' fabu], 13
February 06.
\19\ Ibid.; ``Government Issues Plan to Contain Hepatitis B,''
Xinhua (Online), 13 February 05.
\20\ Of 290 doctors specializing in infectious diseases surveyed,
only two-thirds were fully aware of proper hepatitis treatment
procedures. Of 334 doctors not specializing in infectious diseases
surveyed, four in five thought hepatitis B was congenital and could not
be effectively prevented--both false assumptions. ``Survey Shows PRC
Doctors Lack Knowledge on Hepatitis B,'' China Daily (Online), 29
September 05.
\21\ PRC Law on the Prevention and Control of Infectious Diseases,
enacted 29 February 89, amended 28 August 04, art. 16.
\22\ ``Survey Shows PRC Doctors Lack Knowledge on Hepatitis B,''
China Daily; ``Doctors Not Up to Scratch on Hepatitis B,'' South China
Morning Post.
\23\ ``Hepatitis Foundation Learns From AIDS Activism,'' China
Development Brief (Online), 16 February 06.
\24\ ``Student's Case of Alleged Hepatitis B Discrimination Goes on
the Record in Zhengzhou'' [Gaokao zhaosheng yigan qishi an zai
Zhengzhou lian], China Youth Daily (Online), 11 October 05.
\25\ In December 1987, China issued its first national set of
regulations on the prevention and control of HIV/AIDS. Ministry of
Health, Regulations on AIDS Prevention and Control [Aizibing fangzhi
tiaoli], issued 18 January 06.
\26\ Ibid.
\27\ The ``3 by 5'' initiative, launched by the UNAIDS program and
the World Health Organization in 2003, had a global target of providing
three million people living with HIV/AIDS in low- and middle-income
countries with antiretroviral treatment by the end of 2005. China had
set a goal of getting treatment to 30,000 HIV/AIDS carriers by the end
of 2005, but as of June 2005, only 15,500 carriers were receiving the
treatment. World Health Organization and UNAIDS, ``Progress on Global
Access to HIV Antiretroviral Therapy: A Report on 3 by 5 and Beyond,''
28 March 06, 72.
\28\ Regulations on AIDS Prevention and Control.
\29\ ``New Estimate in China Finds Fewer AIDS Cases,'' New York
Times (Online), 26 January 06.
\30\ Ibid.; ``HIV/AIDS in China: From High-Risk Groups to General
Population,'' People's Daily (Online), 27 January 06.
\31\ National Population and Family Planning Commission (Online),
``State Council Convenes Nationwide Teleconference on AIDS Prevention
and Control'' [Guowuyuan zhaokai quanguo aizibing fangzhi gongzuo
dianshi dianhua huiyi], 30 November 05; ``Local Officials Not Helping
AIDS Crisis,'' South China Morning Post (Online), 29 November 05.
\32\ ``Nation Vows To Protect Migrants Against HIV/AIDS,'' Xinhua
(Online), 29 November 05.
\33\ Ministry of Health (Online), ``Nationwide AIDS Education
Project for Migrant Workers Announced'' [Quanguo nongmingong yufang
aizibing xuanchuan jiaoyu gongcheng jiang qidong], 29 November 05. For
more information on central government efforts to construct a social
security network for migrants, see Section V(i)--Freedom of Residence
and Travel.
\34\ Beijing authorities forced two AIDS patients who had traveled
to the capital to present grievances to return to their homes in Henan
province. ``Local Officials Force AIDS Petitioners To Go Home,'' South
China Morning Post (Online), 1 December 05. Police also beat several
HIV carriers participating in a sit-in outside a hospital in Xingtai,
Hebei province. ``Police Beat Up HIV Carriers in Xingtai, Hebei''
[Hebei Xingtai aizibingdu ganranzhe zao jingfang bao da], Radio Free
Asia (Online), 15 November 05. Shanghai police locked down a hotel
where a group of hemophiliacs seeking compensation for being infected
with HIV by a tainted blood product were staying. Bill Savadove,
``Police Lock Victims of HIV Blunder in Hotel,'' South China Morning
Post (Online), 21 April 06.
\35\ ``National AIDS Meeting Opens--Activist Hu Jia Detained While
Presenting Petition'' [Quanguoxing aizibing huiyi bimen zhaokai--
zhuming huodongrenshi Hu Jia qingyuan beizhua], Radio Free Asia
(Online), 7 November 05.
\36\ Following his resignation, Hu stated that the Chinese
government ``is using soft methods to narrow the space NGOs can exist
in.'' ``China Activist Quits Amid Crackdown on NGOs,'' Reuters
(Online), 7 February 06.
\37\ China's Response to Avian Flu: Steps Taken, Challenges
Remaining, Staff Roundtable of the Congressional-Executive Commission
on China, 24 February 06, Written Statement Submitted by Dr. Bates
Gill, Freeman Chair in China Studies, Center for Strategic and
International Studies.
\38\ Central government authorities have taken a number of steps
since August 2005 to prevent the spread of avian flu. On August 19, the
Chinese Center for Disease Control and Prevention announced a
``National Plan for Monitoring Influenza and Human Avian Flu,'' which
recommended, among other steps, the formation of a National Information
Management System for Monitoring Influenza and Human Avian Flu.
National Plan for Monitoring Influenza and Human Avian Flu [Quanguo
liuganren qinliugan jiance shishi fangan], issued 19 August 05. On
September 28, the Ministry of Health announced a ``Flu Emergency
Preparedness Plan'' which recommended the establishment of an anti-
influenza leading working group, surveillance networks, laboratories,
and a flu and bird-flu database to address the potential for human-to-
human transmission of a mutated bird-flu virus. Flu Emergency
Preparedness Plan [Weishengbu yingdui liugan da liuxing zhunbei jihua
yu yingji yu an], issued 28 September 05. On October 13, the Ministries
of Health and Agriculture announced the establishment of a working
group to strengthen coordination between the two ministries to prevent
the transmission of diseases, such as avian flu and swine flu, from
animals to humans. Ministry of Health (Online), ``Ministries of Health,
Agriculture Form Working Group to Prevent Animal-Human Disease
Transmission'' [Weishengbu, nongyebu jianli ren xu gong huan
chuanranbing fangzhi hezuo jizhi], 13 October 05. On November 2, the
State Council appropriated 2 billion yuan (US$250 million) for the
establishment of an avian flu prevention fund, proposed the creation of
a nationwide avian flu command center, and recommended the development
of an epidemic information reporting system in order to strengthen
public awareness. ``Central Authorities Disburse 2 Billion Yuan for
Anti-Avian Flu Fund'' [Zhongyang bo 20 yi she qinliugan fangkong
jijin], Beijing News (Online), 4 November 05.
\39\ ``China Plans Billions of Poultry Vaccinations,'' New York
Times (Online), 16 November 05.
\40\ China's Response to Avian Flu, Written Statement Submitted by
Dr. Bates Gill.
\41\ In a June 15, 2006 article, the World Health Organization's
representative in China expressed concern that 18 of 19 human cases
reported on the mainland arose in places where no poultry outbreaks
were detected. Mary Ann Benitez, ``Alarm Over Poor Poultry
Surveillance,'' South China Morning Post (Online), 15 June 06; China's
Response to Avian Flu, Written Statement Submitted by Erika Elvander,
Office of Asia and the Pacific, Office of Global Health Affairs, U.S.
Department of Health and Human Services.
\42\ China's Response to Avian Flu, Written Statement Submitted by
Dr. John R. Clifford, Deputy Administrator for the Animal and Plant
Health Inspection Services' (APHIS) Veterinary Services program, U.S.
Department of Agriculture. The Ministry of Agriculture has not shared
any virus samples from infected poultry with the World Health
Organization since 2004, despite agreeing to do so in March 2006. The
genetic information contained in the samples could help develop a more
effective vaccine. Shai Oster, ``China Acknowledges Delay in Sharing
Bird-Flu Samples,'' Wall Street Journal (Online), 5 September 06;
``Beijing to Give WHO Bird Flu Samples,'' South China Morning Post
(Online), 23 March 06; ``Credit Dispute: How Academic Flap Hurt World
Effort on Chinese Bird Flu,'' Wall Street Journal (Online), 24 February
06.
\43\ China's Response to Avian Flu, Written Statement Submitted by
Erika Elvander.
\44\ Emergency Response Regulations for Major Epidemics of Animal
Diseases [Zhongda dongwu yiqing yingji tiaoli], issued 18 November 05,
Ch. 3, art. 17.
\45\ Ibid. Liaoning provincial officials arrested the head of
veterinary services in Badaohao township in November 2005, for
attempting to cover up the illnesses of chickens at local farms
following avian flu outbreaks. Provincial authorities also disciplined
seven other officials for dereliction of duty. Geoffrey York, ``Reforms
Critical for China To Win Bird-Flu Fight,'' Toronto Globe and Mail
(Online), 29 November 05. Five local officials in Dazhu county, Sichuan
province were fired in May 2006 for mishandling a January outbreak of
bird flu in poultry. ``Five Officials Fired for Mishandling Bird Flu
Outbreak in Poultry,'' South China Morning Post (Online), 12 May 04.
\46\ Ministry of Health (Online), April 25, 2006. The MOH issued a
statement warning authorities that cover-ups or delays could risk
spreading the disease. The statement said that some medical institutes
had ``failed to quickly report on pneumonia cases with unknown causes,
some local governments failed to urge their institutes to do their job
in time; some health authorities failed to respond quickly to reports,
and some pneumonia patients who had had contact with sick or dead
poultry were moved to other hospitals without guidance, risking the
spread of infectious diseases.'' Nicholas Zamiska, ``China Finds
Possible Cases of Bird Flu Go Unreported,'' Wall Street Journal
(Online), 26 April 06; ``Health Ministry Warns Against Cover Ups in
Pneumonia Report,'' Xinhua (Online), 26 April 06. World Health
Organization officials have also expressed concern about China's
practice of reporting only confirmed cases of bird flu in humans, and
have encouraged the Chinese government to act with greater
transparency. Nicholas Zamiska, ``WHO Questions China's Policy on
Reporting Bird-Flu Cases,'' Wall Street Journal (Online), 23 March 06.
\47\ Chris Buckley, ``China Responds to Bird Flu Under Shadow of
SARS,'' Reuters (Online), 10 November 05; Bill Savadove, ``Beijing
Playing Down Situation at Home,'' South China Morning Post (Online), 28
October 05; Josephine Ma, ``Beijing Tightens Control on Media
Reports,'' South China Morning Post (Online), 2 November 05.
\48\ Hu Shuli, ``Caijing Article Says Local Officials Not Open
About Avian Influenza,'' Finance Magazine, 31 October 05 (Open Source
Center, 15 November 05).
Notes to Section V(h)--Population Planning
\1\ ``Solving China's Population Problem by Focusing on People's
Overall Development'' [Yi ren de quanmian fazhan tongchou jiejue woguo
renkou wenti], Seeking Truth (Online), 28 April 06. The particular
circumstances under which women may bear a second child are governed by
provincial-level regulations. See PRC Population and Family Planning
Law of the People's Republic of China, enacted 29 December 01, art. 17.
\2\ John S. Aird, Slaughter of the Innocents: Coercive Birth
Control in China (Lanham, Maryland: AEI Press, 1990).
\3\ Human Rights in China: Improving or Deteriorating Conditions?,
Hearing of the Subcommittee on Africa, Global Human Rights and
International Operations, U.S. House of Representatives, 19 April 06.
\4\ ``Solving China's Population Problem by Focusing on People's
Overall Development,'' Seeking Truth.
\5\ Chinese authorities have admitted to the coercive nature of the
system of fines. Shanghai Municipal Government (Online), ``What are
Social Compensation Fees? '' [Shenme shi shehui fuyangfei?], Undated.
\6\ Measures for Collection of Social Compensation Fees [Shehui
fuyangfei zhengshou guanli banfa], issued 2 September 02, arts. 3, 7,
10, 14.
\7\ Beijing Methods for Managing the Collection of Social
Compensation Fees [Beijing shi shehui fuyangfei zhengshou guanli
banfa], issued 5 November 02, arts. 5-7, 10-12.
\8\ In Shandong, the fine is waived when the firstborn child is
``identified as disabled'' and permission to have a second child is
received. Shandong Province Methods for Managing the Collection of
Birth Control Social Compensation Fees [Shandongsheng jihua shengyu
shehui fuyangfei zhengshou guanli banfa], issued 1998, arts. 2-5, 8,
10, 17. Since a disabled child will, in most cases, require more state
assistance, this indicates that the primary purpose of the fine is
coercive and not to compensate the state for ``the corresponding
increase in social undertakings and public finances engendered by
having more than one child.'' Shanghai Municipal Government, ``What are
Social Compensation Fees? ''
\9\ ``Wuyang Court Specially Assigns Case Concerning Social
Compensation Fees Screening 15 Cases and Deciding on 10'' [Wuyang
fayuan zhuanxing zhixing shehui fuyangfei anjian shaixuan 15 anjie 10
an], China Court Net (Online), 29 May 06.
\10\ CECC Staff Interview; Human Rights Violations under China's
One-Child Policy, Hearing of the International Relations Committee,
U.S. House of Representatives, Testimony of John S. Aird, former Chief
of the China Branch and Senior Research Specialist on China at the
Bureau of the Census, 14 December 04.
\11\ Beijing Declaration and Platform for Action (1995), para. 17;
Cairo International Conference on Population and Development (1994),
Programme of Action of the International Conference on Population and
Development, para. 7.2. On the concept of ``illegal pregnancy'' and its
use in practice, see Elina Hemminki, et. al., ``Illegal Births and
Legal Abortions--The Case of China,'' Reproductive Health 2, no. 5
(2005).
\12\ PRC Population and Family Planning Law, art. 41; ``Calls for
Strict Birth Control Win Backup,'' Xinhua (Online), 8 March 06.
According to the U.S. State Department, although Chinese law requires
officials to get court approval to forcibly collect social compensation
fees, this is not always followed. Bureau of Human Rights, Democracy,
and Labor, U.S. Department of State, Country Reports on Human Rights
Practices--2005, China (includes Tibet, Hong Kong, and Macau), 8 March
06.
\13\ U.S. Department of State, Country Reports on Human Rights
Practices--2005, China (the 7 provincial-level governments that require
``termination'' of pregnancies are Anhui, Hebei, Heilongjiang, Hubei,
Hunan, Jilin, and Ningxia; the 10 that require unspecified ``remedial
measures'' are Fujian, Guizhou, Guangdong, Gansu, Jiangxi, Qinghai,
Sichuan, Shanxi, Shaanxi, and Yunnan).
\14\ Universal Declaration of Human Rights, art. 25; International
Covenant on Economic, Social, and Cultural Rights, arts. 10, 13. China
denies out-of-plan children basic health care, education, and the right
to marry, while it grants educational and financial privileges to the
child of parents who could have had two children according to the
policy but limited themselves to one, and a special pension to parents
who have a daughter but no son. Human Rights in China: Improving or
Deteriorating Conditions?, Testimony of Steven W. Mosher; ``Easing
Family Planning Rules Leads to Fewer Abortions and More Baby Girls,
Chinese Province Finds,'' UNFPA, 15 December 05 (discussing pensions
for those who have no sons but have daughters); Steven W. Mosher,
``China's One-Child Policy: Twenty-five Years Later,'' Human Life
Review 32, no. 2 (Winter 2006), 77f; Hemminki, ``Illegal Births and
Legal Abortions.'' In order to discourage the sex-selective abortion of
girls, officials have reduced school fees for girls. ``China's Gender
Imbalance Still Growing,'' CBS News (Online), 17 April 06.
\15\ Cairo International Conference on Population and Development
(1994), Programme of Action of the International Conference on
Population and Development, para. 7.12. In 2006, the government
announced national population targets of 1.37 billion for 2010 and 1.5
billion for 2020. ``China Pledges To Keep Its Population Below 1.37
Billion by 2010,'' Xinhua (Online), 6 January 06. The Chinese
government has set population targets through the mid-21st century.
State Council Information Office, White Paper on China's Population and
Development in the 21st Century, December 00. The NPFPC has denied
discrimination against ``out-of-plan'' children. ``Solving China's
Population Problem by Focusing on People's Overall Development,''
Seeking Truth.
\16\ PRC Population and Family Planning Law, art. 4 provides that
offiicials ``shall perform their administrative duties strictly in
accordance with law, and enforce the law in a civil manner, and they
may not infringe upon legitimate rights and interests of citizens.''
\17\ ``Hebei Falun Gong Practitioner Forced To Abort,'' Epoch Times
(Online), 26 December 05; ``Chongqing Family Planning Office Forces 25-
Year-Old Man To Be Sterilized,'' Boxun (Online), 3 January 06 (events
reported occurred in 2002); Heda Bayron, ``Experts: China's One-Child
Population Policy Producing Socio-Economic Problems,'' Voice of America
(Online), 7 March 06 (forced sterilization of a woman from Fujian).
\18\ ``Chinese Woman Fleeing Forced Abortion Dies in Hospital
Fall,'' Associated Press (Online), 1 July 06.
\19\ The official communications of Chinese authorities to local
family planning officials also allow the latter to understand that
local officials will not be punished for coercive measures. ``Human
Rights Violations under China's One-Child Policy,'' Testimony of John
S. Aird; Women's Rights and China's New Family Planning Law, Staff
Roundtable of the Congressional-Executive Commission on China,
Testimony of John S. Aird, 23 September 02; Hemminki, ``Illegal Births
and Legal Abortions;'' Hannah Beech, ``Enemies of the State?,'' Time
(Online), 12 September 05 (Beijing legal activist reports: ``One set of
bad population figures can stop an official from getting promoted'').
\20\ In 2006, two welfare workers were sentenced to terms of
probation and one welfare worker to a suspended jail sentence for
ordering hysterectomies on two mentally challenged girls living in a
girls' care home. The lawyer for one of the defendants argued that such
operations were common in China. ``Light Penalties for Forced
Hysterectomies in China,'' Reuters (Online), 6 July 06.
\21\ Human Rights in China: Improving or Deteriorating Conditions?;
China: Human Rights Violations and Coercion in One Child Policy
Enforcement, Hearing of the Committee on International Relations, U.S.
House of Representatives, 14 December 04.
\22\ Mosher, ``China's One-Child Policy,'' 88f.
\23\ Steven W. Mosher, ``The Passion and Mrs. Wong,'' Global Family
Life News, March-May 05, 3, 9f.
\24\ In recent years, authorities have subjected Mao Hengfeng, a
woman who has protested against the government's population planning
policy, to detention and torture. ``One-Child Policy Opponent
Tortured,'' Human Rights in China (Online), 5 October 04. ``Violence
Against Women,'' in 2005 Report, Amnesty International (Online)
(covering events from January to December 2004).
\25\ Officials detained over 100,000 people in ``population
schools'' where forced sterilizations and abortions were performed.
U.S. Department of State, Country Reports on Human Rights Practices--
2005, China. ``7,000 Forcibly Sterilised in Eastern China,'' Agence
France-Presse (Online), 12 September 05; Beech, ``Enemies of the State?
''
\26\ ``Activist Who Exposed Birth Control Abuses Jailed,'' South
China Morning Post (Online), 24 August 06 (officials convicted Chen on
charges of ``willfully damaging property and organizing a mob to
disturb traffic'').
\27\ National Population and Family Planning Commission of China
(Online), ``Comments of Yu Xuejun, spokesperson for NPFPC and Director
General of the NPFPC Department of Policy and Legislation on the
Preliminary Results of Investigating Family Planning Practices in Linyi
City of Shandong Province,'' 19 September 05. In 2003, the State Family
Planning Commission was renamed the National Population and Family
Planning Commission and given enlarged responsibilities for research on
population issues. Peng Xizhe, Director of the Institute of Population
Research at Fudan University, claimed that the renaming demonstrated
``the wider administrative and coordination functions assigned it by
the State Council.'' Peng Xizhe, ``Is It Time To Change China's
Population Policy? '' China: An International Journal 2, no.1 (2004),
135-49.
\28\ ``Forced Abortions in China,'' Telegraph (India) (Online), 24
October 05 (reporter discovers evidence that coercive abortions
continue in Linyi); Jonathan Watts, ``Under House Arrest: Blind
Activist Who Exposed Forced Abortions,'' Guardian (Online), 3 February
06.
\29\ PRC Population and Family Planning Law, art. 39.
\30\ Officials denied the accusations and said that some of the
children had been illegally adopted. ``United in Grief, Farmers Lament
Loss of Children `Stolen' by Officials,'' South China Morning Post
(Online), 21 March 06; ``Forced Removal of Children Should Not Be
Tolerated,'' South China Morning Post (Online), 22 March 06.
\31\ ``13 Officials in Shaanxi Punished for Family Planning
Failure,'' Xinhua (Online), 5 May 06.
\32\ ``Rich Men Challenge Family Planning Policy,'' China Daily
(Online), 16 December 05 (large families have become status symbols for
those who can afford to pay fines); ``Calls for Strict Birth Control
Win Backup,'' Xinhua (Online), 8 March 06.
\33\ ``Solving China's Population Problem by Focusing on People's
Overall Development,'' Seeking Truth.
\34\ ``Abortion Law Amendment To Be Abolished,'' Xinhua (Online),
26 June 06 (ratio 119:100); ``Over 1 Million Grassroot Organizations
Provided Family Planning Services in China,'' Xinhua (Online), 9
January 06 (male-female birth ratio of 119:100); U.S. Department of
State, Country Reports on Human Rights Practices--2005, China (male-
female birth ratio for second births is 152:100); Qu Jian Ding, Therese
Hesketh, ``Family Size, Fertility Preferences, and Sex Ratio in China
in the Era of the One Child Family Policy: Results from National Family
Planning and Reproductive Health Survey,'' British Medical Journal,
333, 371-373 (2006) (finding a sex ratio at birth of 123:100 for 1996
to 2001); Elaine Wu, ``Population Rises 3.2% over Past Five Years to
1.306 Billion,'' South China Morning Post (Online), 17 March 06
(experts believe the true population is tens of millions greater and
the male-female birth ratio even more lopsided than is reported).
China's population planning policy has also resulted in infanticide of
female infants, though the rate at which female infants are killed or
die of neglect is uncertain. U.S. Department of State, Trafficking in
Persons Report--2005, China.
\35\ In June and July 2006, the state-controlled Chinese press
reported a male-female birth ratio of 119:100. ``Abortion Law Amendment
To Be Abolished,'' Xinhua (Online). In August 2006, the Chinese Academy
of Social Sciences said the ratio had reached 121.2:100. ``Alarm
Sounded on Gender Imbalance,'' South China Morning Post (Online), 18
August 06; ``Selective Abortion Still Legal,'' South China Morning Post
(Online), 26 June 06 (the Chinese government had previously reported a
male-female birth ratio of 117:100); ``China's Gender Imbalance Still
Growing,'' CBS News (Online), 17 April 06 (Zhao Baige, Vice Minister of
the NPFPC, tells Lesley Stahl that even with all the incentives and
government programs, the sex ratio imbalance is getting worse);
``Serious Birth Gender Imbalance Inflicts 9 Chinese Regions,'' People's
Daily (Online), 25 August 04 (sex ratio imbalance is worsening in both
rural and urban areas). The sex ratio at birth was 108.5:100 in 1982,
110.9:100 in 1987, 111.3:100 in 1990, 115.6:100 in 1995, and 116.9:100
in 2000. Peng Xizhe, ``Is It Time To Change China's Population Policy?
'' China: An International Journal 2, no. 1 (2004). The state-run media
have reported a study claiming that several ethnic minorities have
male-female ratios ranging from 400:100 to 1,000:100, but attributes
this to minority women marrying or being trafficked outside their
ethnic groups. ``Poverty and Gender Imbalance Threaten Some Ethnic
Minorities,'' China.org (Online), 10 May 06 (referring to the Lahu, Wa,
Hani, and Lisu minorities).
\36\ PRC Population and Family Planning Law.
\37\ ``Criminal Law Amended for Gender Balance,'' China Daily
(Online), 26 December 05.
\38\ ``Solving China's Population Problem by Focusing on People's
Overall Development,'' Seeking Truth.
\39\ ``Lawmakers Resume Debate on Sex Identification,'' Xinhua
(Online), 25 April 06.
\40\ ``Abortion Law Amendment To Be Abolished,'' Xinhua (Online).
\41\ Andrew Yeh, ``China Retreats on Selective Abortion Law Plan,''
Financial Times (Online), 25 June 06.
\42\ ``Beijing Split Over Abortion Policy,'' Financial Times
(Online), 11 July 06.
\43\ ``North China Province Closes 201 Clinics Guilty of Gender
Selection,'' Xinhua (Online), 31 May 06; ``More Efforts Urged To Curb
Gender Imbalance,'' China Daily (Online), 11 July 06; ``Nation To
Launch Monitoring of Birth Gender Ratios,'' Xinhua (Online), 12 July
06; ``Hebei Worries Growing Gender Inequality,'' China Daily (Online),
13 July 06; ``China Not To Relax Fight Against Selective Abortions,''
Xinhua (Online), 1 August 06; ``Health Ministry Warns Against Abortion
Crimes,'' Xinhua (Online), 2 August 06; ``China's Rising Gender
Imbalance May Leave Millions of Men With No Wives,'' People's Daily
(Online), 12 August 06.
\44\ ``Gender Imbalance May Leave Millions of Men With No Wives,''
Xinhua (Online), 11 August 06.
\45\ ``Solving China's Population Problem by Focusing on People's
Overall Development,'' Seeking Truth. Some Chinese demographers agree.
Peng Xizhe, ``Is It Time To Change China's Population Policy? ''
\46\ ``China Has Not Relaxed Family Planning: Official,'' Xinhua
(Online), 1 May 06, which states: ``The government offers around 1,200
yuan (US$150) a year to rural couples who have only one child or two
daughters, as an acknowledgment of their contribution to the birth
control drive.'' See also ``China Focus: China Adopts More Human-
Centered Way in Poverty Reduction,'' Xinhua (Online), 27 October 05,
which states: ``Last year, the Chinese government began to adopt a new
policy of offering more than 600 yuan to couples above 60 years old who
have only one child or two daughters.'' See also ``More Rural Senior
Couples To Be Awarded for Practicing Family Planning Policy,'' Xinhua
(Online), 23 October 05, which states: ``A new family planning reward
policy is to be introduced in 23 provinces, municipalities and
autonomous regions across the country this year. According to the new
policy, rural couples with only one child or two daughters will be
eligible for a cash reward of no less than 600 yuan (US$72) each year
when they are 60 years old. The reward will last for the rest of their
lives.'' National Population and Family Planning Commission (Online),
``W. China Combines Family Planning with Poverty Alleviation,'' 10
November 05.
\47\ Ibid.
\48\ ``China Focus: Family Planning Policy--A Controversial Topic
in China,'' Xinhua (Online), 29 December 05; ``One-Child Policy
Questioned as Population Ages Rapidly,'' AsiaNews (Online), 2 January
06.
\49\ A senior official on the China National Committee on Aging has
stated that social services cannot meet the rising demands for medical
care and pensions for elderly people. ``China Focus: China Feels the
Pressure of Growing Elderly Population,'' Xinhua (Online), 23 February
06; National Population and Family Planning Commission (Online),
``Coping With Aging Society,'' 21 January 06; ``China's Aging
Population Will Create Losses for Existing Positive Economic
Development'' [Laolinghua jiang shi zhongguo jingji fazhan shiqu
xianyou youshi], China Youth Daily (Online), 21 August 06.
\50\ See, for example, the regulations of Shanghai and Jiangsu
provinces. Peng Xizhe, ``Is It Time To Change China's Population
Policy? ''
\51\ ``China Focus: Family Planning Policy--A Controversial Topic
in China'' Xinhua (Online), 29 December 05; Zhang Feng, ``Minister Says
One-Child Rule Will Remain in Coming Years,'' Beijing Daily (Online), 7
January 06 (Open Source Center, 7 January 06); National Population and
Family Planning Commission (Online), ``Coping With Aging Society;''
Larry Teo, ``China Is Worrying About Baby Shortage,'' Straits Times
(Online), 2 March 06 (characterizing NPFPC Minister Yu Xuejun as saying
``that two-children families are a more suitable option for China. But
he hastened to add that a sudden switch is not advisable . . .,'' and
characterizing a report by Chinese demographer Zeng Yi as suggesting
the phasing-in of a two-child policy over an eight-year period); ``One-
Child Policy Questioned as Population Ages Rapidly,'' AsiaNews
(Online), 2 January 06; ``China to Keep Family Planning Policy
Stable,'' Xinhua (Online), 23 April 06.
\52\ ``China to Keep Family Planning Policy Stable,'' Xinhua. The
official apparently referred to the coming of age of the generation
born after the 1984 permission for rural couples to have a second child
if the first was female. ``China Prepares for Fourth Baby Boom,'' China
Daily (Online), 3 May 06.
Notes to Section V(i)--Freedom of Residence and Travel
\1\ ``China's Household Registration System: Sustained Reform
Needed To Protect China's Rural Migrants,'' Topic Paper of the
Congressional Executive-Commission on China, 7 October 05, 1-3.
\2\ Ibid., 3.
\3\ Ibid., 2.
\4\ `` `Report on Rural Migrant Workers:' The Average Age of
Migrant Workers is 28.6 Years Old'' [Zhongguo nongmingong diaoyan
baogao: nongmingong pingjun nianling wei 28.6 sui], Xinhua, reprinted
in China Internet Information Center (Online), 16 April 06. Other
statistics list the total number of migrants as high as 140 million.
PRC Bureau of Statistics, 2004 National Statistical Report on Economic
and Social Development [2004 Nian guomin jingji he shehui fazhan tongji
gongbao], 28 February 05; ``Migrant Population Hits 140 Million,''
Associated Press (citing Xinhua), 6 January 05.
\5\ ``China's Household Registration System: Sustained Reform
Needed to Protect China's Rural Migrants,'' 4.
\6\ Ibid., 4-5.
\7\ Ibid., 7-10.
\8\ Tang Yaoguo, ``Hukou Reform Blocked by Local Governments,
Benefits Behind Hukou Are the Core of the Problem'' [Huji gaige shouzu
defang zhengfu hukou beihou liyi shi wenti genben], Outlook Weekly,
reprinted in Sohu (Online), 21 November 05; Zhao Jie, ``Opinion of
Ministry of Public Security on Hukou Reform Will Be Clear, Expert: Need
Large Hukou Reform'' [Gonganbu huji gaige yijian jiang mingliang zhuan
jia: yao da huji gaige], China Economic Net, reprinted in Xinhua
(Online), 24 November 05.
\9\ Supreme People's Court's Judicial Interpretation Regarding
Compensation Cases for Personal Injuries [Zui gao renmin fayuan guanyu
shenli renshen sunhai peichang anjian shiyong falu ruogan wenti de
jiejue], issued 4 December 03, art. 29.
\10\ PRC Election Law of the National People's Congress and Local
People's Congresses, [Zhonghua renmin gongheguo quanguo renmin daibiao
dahui he difang geji renmin daibiao dahui xuanju fa], enacted 1 July
79, amended 27 October 04, art. 12.
\11\ ``Compensation 120,000 Less Only Because of Rural Hukou''
[Zhiyin nongcun hukou peichang shao 12 wan], Beijing News (Online), 14
February 06; Guo Yuxiang and Lu Yilin, ``Migrant Worker Dies in City,
Hai'an Court Decision Uses Urban Resident Standard for Compensation''
[Jin cheng nongmingong siwang hai'an fayuan panjue jie chengzhen jumin
biaozhun peichang], China Court Net (Online), 16 February 06; Tang
Zhongming, ``Three Young Girls Killed in Car Accident, Because Hukou
`Same Fate, Different Price' [Compensation] Difference of 120,000''
[San shaonu zao chehuo yinwei hukou ``tongming butong jia'' xiangcha 12
wan], Youth Daily, reprinted in Procuratorial Daily (Online), 24 Jan
06.
\12\ ``Hukou Blamed for Discriminatory Compensation,'' China Daily,
reprinted in Xinhua (Online), 27 Jan 06.
\13\ `` `11.5' Program Series Forum'' [Shiyi wu guihua zhuti xilie
luntan], 21st Century Business Herald (Online), 17 October 05; Zhao
Xiao and Wang Benjian, ``Break Up of Two-Tiered Structure of Chinese
Real Estate Industry Needed for Healthy Development'' [Dapo eryuan
jiegou Zhongguo fangdichanye cai neng jiankang fazhan], Southern
Weekend (Online), 20 October 05; ``National Temporary Registered
Population 86,730,000, Merger Planned For Rural-Urban Hukou
Management'' [Quanguo dengji zanzhu renkou 8673 wan chengxiang huji
guanli ni tongyi], Legal Daily, reprinted in Xinhua (Online), 26
October 05.
\14\ Central Party Committee, State Council Opinion on Promoting
the Construction of a New Socialist Countryside [Zhonggong zhongyang
guowuyuan guanyu tuijin shehui zhuyi xin nongcun jianshe de ruogan
yijian], issued 31 December 05.
\15\ Ibid.
\16\ Press Conference on Building New Socialist Countryside,
Xinhua, reprinted in PRC Central People's Government (Online), 23
February 06.
\17\ ``General Offices of the CCP Central Committee and State
Council Reissuance of `Opinion on Deeply Carrying out Peaceful
Construction,' '' [Zhong ban, Guo ban zhuanfa ``Guanyu shenru kaizhan
ping'an jianshe de yijian], Xinhua, reprinted in PRC Central People's
Government (Online), 4 December 05; ``Government Calls for Building
Social Stability, Security,'' Xinhua (Online), 4 December 05.
\18\ Ministry of Justice (Online), Sun Chunying, ``County (City,
District) Key Points in Order to Establish Stability'' [Xian (shi, qu)
wei chuangjian ping'an zhongdian], 6 December 05.
\19\ For a detailed analysis of prior reform efforts, see the
Commission's topic paper: ``China's Household Registration System:
Sustained Reform Needed to Protect China's Rural Migrants.''
\20\ ``National Temporary Registered Population 86,730,000, Merger
Planned for Rural-Urban Hukou Management,'' Legal Daily; Wang Qiang,
``11 Provinces Begin Integrating Urban and Rural Hukou, Beijing
Temporarily Not Included'' [11 ge shengshi kaishi tongyi chengxiang
hukou beijing zan wei lieru qizhong], Beijing Evening News, reprinted
in Procuratorial Daily (Online), 28 October 05. For a partial list of
such efforts through the end of 2004, see the Freedom of Residence and
Travel page on the Commission's Web site.
\21\ Zhao Jie, ``Opinion of Ministry of Public Security on Hukou
Reform Will Be Clear, Expert: Need Large Hukou Reform.'' Some Chinese
and U.S. media incorrectly characterized the provincial reforms as
eliminating all legal distinctions between urban and rural residents.
Zheng Caixiong, Wu Yong and Guo Nei, ``Rural Dwellers to be Granted
Urban Rights,'' China Daily (Online), 2 November 05; Joseph Kahn,
``China to Drop Urbanite-Peasant Legal Differences'' New York Times
(Online), 3 November 2005.
\22\ ``National Temporary Registered Population 86,730,000, Merger
Planned for Rural-Urban Hukou Management,'' Legal Daily. Many provinces
and municipalities that have adopted similar criteria have interpreted
them strictly to exclude low-income migrant workers, even those that
have been resident in urban areas for many years. ``China's Household
Registration System: Sustained Reform Needed to Protect China's Rural
Migrants,'' 4-5.
\23\ ``National Temporary Registered Population 86,730,000, Merger
Planned for Rural-Urban Hukou Management,'' Legal Daily; Central Party
Committee, State Council Opinion on Promoting the Construction of a New
Socialist Countryside.
\24\ State Council Office Notice Regarding Improving Employment
Prospects for Migrants in Urban Areas [Guowuyuan bangongting guanyu jin
yi bu zuo hao gaishan nongmin jincheng jiuye huanjing gongzuo de
tongzhi], issued 27 December 04.
\25\ Ministry of Labor and Social Security (Online), Migrants
Rights Handbook (2005 edition) [Nongmingong weiquan shouce (2005)],
``Migrant Workers Need Not Obtain Work Registration Card'' [Nongmingong
waichu wugong wuxu ban jiuye zhengka le], Xinhua (Online), 26 September
05.
\26\ ``Beijing Eliminates Regulations on the Management of
Migrants'' [Beijing feizhi wailai renyuan guanli tiaoli], Beijing News
(Online), 26 March 05.
\27\ ``National Temporary Registered Population 86,730,000, Merger
Planned for Rural-Urban Hukou Management,'' Legal Daily.
\28\ Central Party Committee, State Council Opinion on Promoting
the Construction of a New Socialist Countryside.
\29\ ``Amended Compulsory Education Law Would Assure Migrant
Children the Right to Attend School'' [``Yiwu jiaoyufa'' xiuding cao'an
baozhang liudong renkou zinu shangxue], CCTV (Online), 1 May 06. Note
that this is a codification of a prior State Council directive, rather
than an entirely new policy. ``China's Household Registration System:
Sustained Reform Needed to Protect China's Rural Migrants.''
\30\ Ministry of Health (Online), ``Nationwide AIDS Education
Project Announced for Rural Migrant Workers'' [Quanguo nongmingong
yufang aizibing xuanchuan jiaoyu gongcheng jiang qidong], 29 November
05; ``Migrant Workers to Get Basic Job Healthcare'' Xinhua, (Online),
24 April 06; ``Health of Migrants Goes Under Microscope'' South China
Morning Post (Online), 26 April 06; ``PRC: Health Official Says Migrant
Children Due Same Inoculations as Urban Peers,'' Xinhua (Online), 10
April 06; ``Migrant Children Eligible for Free Vacination: Province
Health Department: Treat Migrant Children Equally Without
Discrimination'' [Liudong ertong ye keyi mianfei mianyi jiezhong: sheng
weisheng ting: dui wailai liudong ertong yi shi tong ren], Southern
Daily (Online), 25 April 06.
\31\ Tang Yaoguo, ``Hukou Reform Blocked by Local Governments,
Benefits Behind Hukou Are the Core of the Problem;'' Zhao Jie,
``Opinion of Ministry of Public Security on Hukou Reform Will Be Clear,
Expert: Need Large Hukou Reform.''
\32\ ``Population Approaching Limit, Shenzhen to Control Migrant
Population'' [Renkou bijin jixian Shenzhen jiang kongzhi wailai
renkou], Beijing News (Online), 31 July 05; Shenzhen Municipal
Government (Online), ``Shenzhen Population Management `1+5' Document to
be Published and Implemented in the Near Future'' [Wo shi renkou guanli
``1+5'' wenjian jiang yu jinqi banbu shishi], 1 August 05.
\33\ ``Looking at China's Urbanization from the Standpoint of
Beijing Resident's Calls for Limiting Migrants,'' [Cong Beijing shimin
huyu xianzhi wailai renkou kan woguo de chengshihua], Sina, reprinted
in News.fiji.com, 15 August 05; ``The `Proposal on Reducing the Number
of Migrants to Beijing' Leads to Controversy'' [`Jianshao waidiren ru
jing jianyi' yin zhengyi], Southern Metropolitan Daily (Online), 10
August 05.
\34\ Zhao Jie, ``Opinion of Ministry of Public Security on Hukou
Reform Will Be Clear, Expert: Need Large Hukou Reform.''
\35\ ``No Uniform Standard To Be Required for Rural Hukou Reform''
[Nongcun huji gaige bu zuo tongyi guiding], Ta Kung Pao (Online), 23
February 06.
\36\ ``Farmers Who Enter Cities and See a Doctor Can Be
Reimbursed'' [Nongmin jincheng kanbing ke xiangshou baoxiao], Beijing
News (Online), 23 August 05.
\37\ ``Henan High People's Court Leads Way In Declaring `The Same
Price For The Same Fate' In Cases of Death Compensation'' [Henan
gaoyuan shuaixian guiding chengxiang peichang biaozhun `tongming
tongjia'], Xinhua (Online), 23 June 06.
\38\ Yu Yiyong and Wen Sanqing ``The Phenomena of `Same Fate,
Different Price' Tests Legal Fairness in Personal Injury Cases''
[Renshen sunhai peichang `tongming bu tong jia' kaowen falu gongping],
Sichuan Daily, reprinted in Sichuan Online, 21 April 06.
\39\ The Supreme People's Court is currently accepting suggestions
for a new judicial interpretation on compensation for accidental injury
and death. The Guangxi regional government's Legislative Affairs Office
(LAO) is considering new legislation on accidental injury and death
compensation. The Guangxi LAO is deliberating whether or not to apply
urban compensation standards for all who are injured or killed in
traffic accidents, or whether to limit urban compensation amounts to
urban residents and rural residents who have lived in urban areas for
one or more years and have a ``stable place of residence.'' The
Chongqing High People's Court is currently soliciting comments on a
draft guiding opinion that stipulates that rural hukou holders who are
disabled or killed in a traffic accident may be compensated according
to urban standards if they meet certain criteria on income, ownership
of housing, or length of residence in an urban area. ``Henan To Use
Same Compensation Standards for Urban Residents, Qualified Migrants,''
CECC China Human Rights and Rule of Law Update, September 2006, 16.
\40\ Zhang Peiyan, ``China Economic Times: Hoping That Rural
Migrant Workers Will Not Again Be `Observers' of Their Rights''
[Zhongguo jingji shibao: qidai nongmingong bu zai shi quanli
pangtingsheng], China Economic Times, reprinted in People's Daily
(Online), 17 January 06.
\41\ ``Shenyang to Start Using New `Temporary Residence Permit'
System, Resuming 29 Months After Cancelling It'' [Shenyang jiang qiyong
xin ``zanzhuzheng'' quxiao zanzhuzheng 29 yue hou huifu], Xinhua,
reprinted in Procuratorial Daily (Online), 14 December 05. Temporary
residence requirements are the source of many migrant complaints
regarding police corruption and abuse. ``Riot Erupts in Guiyang After
Migrant is Beaten,'' CECC China Human Rights and Rule of Law Update,
August 2006, 3-4.
\42\ PRC Law on Passports [Zhonghua renmin gongheguo huzhao fa],
enacted 29 April 06, art. 26.
\43\ Ibid., art. 13. Article 13(4) has been interpreted to mean
that prisoners such as Tibetan nun Phuntsog Nyidron and journalist
Jiang Weiping can be denied a passport after their release from prison,
if they are additionally subject to deprivation of political rights.
John Kamm, Remarks on Crimes Without Victims, Prisoners Without Names,
Foreign Correspondents' Club of Hong Kong, 21 February 06. However, the
Criminal Law does not include the right to travel or obtain passports
as one of the enumerated ``political rights'' that can be deprived. PRC
Criminal Law, enacted 1 July 79, amended 14 March 97, 25 December 99,
31 August 01, 29 December 01, 28 December 02, 28 February 05, 29 June
06, art. 54.
\44\ Ibid., art. 13(7).
\45\ PRC Regulations on Passports and Visas [Zhonghua renmin
gongheguo huzhao, qianzheng tiaoli], issued 13 May 80, art. 4.
\46\ ``Two Rights Lawyers Denied Passports For Defense In Wang
Wenyi Case'' [Wei Wang Wenyi an bianhu de liangwei weiquan lushi huzhao
jujue], Radio Free Asia (Online), 21 June 06.
\47\ Open Forum on Human Rights and the Rule of Law in China, Staff
Roundtable of the Congressional-Executive Commission on China, 9
December 02, Written Statement of Christina Fu, spouse of Yang Jianli;
Jerome Cohen and Jared Genser, ``Tyranny in China: The Ongoing Quest to
Free Yang Jianli,'' Washington Times (Online), 25 April 03.
\48\ See CECC Political Prisoner Database.
Notes to Section VI--Political Prisoner Database
\1\ Users may search for prisoners by name, using either the Latin
alphabet or Chinese characters. Users may construct queries to include
personal information (ethnic group, sex, age, occupation, religion), or
information about imprisonment (current status of detention, place of
detention, prison name, length of sentence, legal process).
\2\ The Tibet Information Network (TIN) ceased operations in
September 2005.
Notes to Section VII(a)--Development of Civil Society
\1\ Building a ``Harmonious Society'' in China: Non-Governmental
and Faith-Based Organizations as Agents of Social Change and Stability,
26 September 05, Oral Statements of He Daofeng, Vice President and
Executive Director of the China Foundation for Poverty Alleviation; Qiu
Zhonghui, General Secretary, Amity Foundation; Chen Taiyong, China
Director, Heifer International. According to Ministry of Civil Affairs
(MOCA) statistics, the number of registered social organizations
increased from 153,000 in 2004 to 169,533 in 2006, non-governmental,
non-commercial enterprises (NGNCEs) increased from 135,000 to 146,432,
and foundations from 936 to 1035. ``Ministry of Civil Affairs Releases
2004 Statistical Report on the Development of Civil Affairs Work''
[Minzheng bu gongbu 2004 nian minzheng shiye fazhan tongji baogao],
Xinhua (Online), 11 May 05; Ministry of Civil Affairs (Online),
``Ministry of Civil Affairs Releases First Quarter 2006 Statistical
Report on the Development of Civil Affairs Work'' [Minzheng bu gongbu
2006 nian diyi jidu minzheng shiye fazhan tongji baogao], 21 April 06;
``Inspiration From an `Alternative Form of Defending Rights',''
Liaowang, 16 May 05, (Open Source Center, 19 Aug 05).
\2\ CECC, 2005 Annual Report, 11 October 05, 81.
\3\ ``Ministry of Civil Affairs Releases 2004 Statistical Report on
the Development of Civil Affairs Work,'' Xinhua; Ministry of Civil
Affairs, ``Ministry of Civil Affairs Releases First Quarter 2006
Statistical Report on the Development of Civil Affairs Work;'' Zhao
Ling and Dong Shuhua, ``New Regulations on Social Organizations to be
Issued This Year: Civil Society Organizations to Receive Appropriate
Encouragement'' [Xin shetuan tiaoli nian nei chutai: minjian zuzhi
jiang huo shidu guli], Southern Weekend (Online), 18 May 05.
\4\ ``China Encourages NGO's Participation in Fight Against AIDS,''
Xinhua (Online), 22 March 06; ``Six NGOs in China To Receive State
Funding for Poverty Relief,'' China Daily, 22 February 06, (Open Source
Center, 22 February 06).
\5\ ``Chinese NGO's Wish to be Helpful to Government,'' Xinhua,
reprinted in People's Daily (Online), 7 May 06.
\6\ ``Government Changes Needed To Clarify NGO's Role in China,''
Beijing Review (Online), 31 March 06; ``Six NGOs in China To Receive
State Funding for Poverty Relief,'' China Daily (Online), 22 February
06.
\7\ Regulations on the Registration and Management of Social
Organizations [Shehui tuanti dengji guanli tiaoli], issued 25 October
98, art. 6; Temporary Regulations on the Registration and Management of
Non-Governmental, Non-Commercial Enterprises [Mingong feiqiye danwei
dengji guanli zanxing tiaoli], issued 25 September 98, art. 5.
\8\ The 2004 annual MOCA review of approved national social
organizations lists their corresponding sponsor organizations and
illustrates the Party and government links with Chinese civil society
organizations. Ministry of Civil Affairs (Online), Report on the 2004
Annual Review of National Social Organizations [2004 niandu quanguoxing
shehui tuanti nianjian jieguo gonggao], 3 May 05. See also Ministry of
Civil Affairs Circular Regarding Who May Serve as a Sponsor
Organization [Minzheng bu guanyu chongxin shehui tuanti yewu guanli
danwei de tongzhi], issued February 00, art. 4.
\9\ Article 20 of the UDHR and Article 5 of the Declaration on the
Right and Responsibility of Individuals, Groups, and Organs of Society
to Promote and Protect Universally Recognized Human Rights and
Fundamental Freedoms also generally guarantee the freedom of
association and assembly.
\10\ Ministry of Civil Affairs Temporary Measures on the
Suppression of Illegal Civil Society Organizations, issued 6 April 00,
art. 2; The Societies Registration Act, issued 1860, arts. 1-3; The
Johns Hopkins University Center for Civil Society Studies, ``Defining
the Nonprofit Sector: South Korea,'' 2002, 6, 16. The European Court of
Human Rights (ECHR) has interpreted language in Article 11 of the
European Convention on the Protection of Human Rights and Fundamental
Freedoms that is nearly identical to Article 22 of the ICCPR as
endowing citizens with ``the right to form a legal entity in order to
act collectively in a field of mutual interest.'' Sidiropolous v.
Greece, ECHR (57/1997/841/1047) (Chamber decision, July 10, 1998), 19.
It has barred states from refusing legal status to groups absent a
specific showing that the association seeking registration would
threaten territorial integrity, national security, or public order.
Ibid, 20. It has also barred efforts by states to dissolve associations
or political parties absent similar findings. See, e.g., The United
Communist Party of Turkey v. Turkey--19392/92 [1998] ECHR 1 (30 January
1998), which states that, in relation to the ``democratic society''
clause, ``there can be no democracy without pluralism.'' The U.S.
Supreme Court has upheld against constitutional challenge government
registration schemes imposing criminal penalties on Communist
organizations that are found ``under the direction, domination, or
control of certain foreign powers'' and fail to register. Unlike
existing Chinese law, these registration schemes do not deny legal
status to organizations. In addition, in upholding these schemes, the
Supreme Court specifically noted that the relevant legislation required
that government findings ``be made after full administrative hearing,
subject to judicial review which opens the record for the reviewing
court's determination whether the administrative findings as to fact
are supported by the preponderance of the evidence.'' Communist Party
of the United States v. Subversive Activities Control Board, 367 U.S.
1, 86-7 (1961).
\11\ Regulations on the Registration and Management of Social
Organizations, arts. 11(2), 35; OSCE, ``Freedom of Association: The
Question of NGO Registration (1998),'' 11; The Societies Act, enacted
1966, arts 9(3), 14.
\12\ Yang Shi, ``2768 Groups: Getting to the Bottom of
Environmental NGOs'' [2768 jia: Mo di huanbao NGO], 21st Century
Business Herald (Online), 25 April 06.
\13\ Ibid.
\14\ Ibid.
\15\ ``Official: China to Further Support Charities by Tax
Exemption Policies,'' Xinhua, 17 June 05 (Open Source Center, 17 June
05); Jiang Yanxin, ``China May Legislate on Charitable Contributions''
[Shankuan zhipei youwang lifa], Beijing News (Online), 22 November 05.
\16\ Trial Regulations on Enterprise Income Tax [Zhonghua renmin
gongheguo qiye suodeshui zanxing tiaoli], issued 13 December 93, art.
6(4) (specifying the 3 percent cap); Ministry of Finance Circular on
Distributing the ``Implementation Details for the Trial Regulations on
Enterprise Income Tax'' [Caizheng bu guanyu yinfa ``Zhonghua renmin
gongheguo qiye suodeshui zanxing tiaoli shishi xize'' de tongzhi],
issued 4 February 94, art. 12 (designating the Chinese Red Cross, All-
China Foundation for the Elderly, Project Hope, five other groups, and
``other non-profit, public-interest organizations allowed to be
established by the Ministry of Civil Affairs). Tax authorities have
periodically approved other organizations as authorized recipients of
tax-deductible contributions. See Ministry of Finance and State
Administration of Taxation Circular on Tax Policy Regarding
Contributions To China's Foundation for Work With the Elderly and Seven
Other Work Units [Caizheng bu guojia shuiwu ju guanyu zhongguo laoling
shiye fazhan jijinhui deng 8 jia danwei juanzeng suodeshui zhengce
wenti de tongzhi], issued 6 June 06; State Tax Administration Circular
Regarding Tax-Exempt Contributions to the Chinese Association For the
Promotion of Ethnic Unity [Guojia shuiwu ju guanyu nashui ren tongguo
zhonghua minzu tuanjie jinbu xiehui gongyi jiuji juanzeng shuiqian
kouhe wenti de tongzhi], issued 21 May 04.
\17\ Circular of the General Offices of the Communist Party Central
Committee and State Council on Strengthening the Management of Civil
Society Organizations [Zhonggong zhongyang bangongting guowuyuan
bangongting guanyu jinyibu jiaqiang minjian zuzhi guanli gongzuo de
tongzhi], issued 1 November 99, art. 2.
\18\ Ibid., para. 7; Central Party Circular on Problems Related to
the Creation of Party Organizations in Social Organizations [Zhonggong
zhongyang zuzhi bu, minzheng bu guanyu zai shehui tuanti zhong jianli
dang zuzhi you guan wenti de tongzhi], issued 1998, art. 1.
\19\ Circular of the General Offices of the Communist Party Central
Committee and State Council on Strengthening the Management of Civil
Society Organizations; Circular of the General Offices of the Communist
Party Central Committee and State Council on Strengthening the
Management of Social Organizations and Non-Governmental, Non-Commercial
Enterprises, issued 28 August 96; CECC, 2005 Annual Report, 83.
\20\ See the Commission's Political Prisoner Database. Chinese
authorities released Tong Shidong on March 9, 2006, at the expiration
of his sentence. Qin Yongmin, Xu Wei, Jin Haike, Yang Zili, and Zhang
Honghai remain imprisoned.
\21\ Yang Shi, ``2768 Groups: Getting to the Bottom of
Environmental NGOs.''
\22\ ``Farmer Cooperatives: Urgently Awaiting Resolution of the
Difficult Question of Their `Black Status' '' [Nongmin hezuo jidai
pojie ``heihu'' nanti], Beijing News (Online), 8 March 06.
\23\ Chen Xiangyang, ``PRC: Journal Views NGO Challenges to China,
Warns of Western Infiltration Through NGOs,'' China Economic Daily, 26
May 05 (Open Source Center, 27 May 05).
\24\ CECC Staff Interview.
\25\ ``Investigation Sends Chill Through Activist Groups,''
Associated Press, reprinted in South China Morning Post (Online), 31
August 06.
\26\ ``China Activist Quits Amid Crackdown on NGOs,'' Reuters
(Online), 7 February 06.
\27\ ``Investigation Sends Chill Through Activist Groups,''
Associated Press.
\28\ Liao Hong, ``Speech at the Forum of Evaluating the Work of
Some Provincial and Municipal Civil Society Organizations'' [Zai bufen
shengshi minjian zuzhi pinggu gongzuo zuotanhui shangde jianghua],
China NPO Network (Online), 28 March 06.
\29\ ``Ministry of Civil Affairs To `Rate' Domestic NGOs''
[Minzhengbu jiang gei minjian zuzhi `dafen'], Beijing News (Online), 31
August 05.
\30\ Liao Hong, ``Speech at the Forum of Evaluating the Work of
Some Provincial and Municipal Civil Society Organizations.''
\31\ Ministry of Civil Affairs (Online), ``Jiangxi Provincial Civil
Affairs Department Positively Guides and Helps Civil Society
Organizations To Raise Their Overall Quality'' [Jiangxi sheng
minzhengting jiji yindao bangzhu minjian zuzhi tigao zhengti suzhi], 15
March 06.
\32\ ``Ministry of Civil Affairs To `Rate' Domestic NGOs,'' Beijing
News; Liao Hong, ``Speech at the Forum of Evaluating the Work of Some
Provincial and Municipal Civil Society Organizations.''
\33\ Ministry of Civil Affairs (Online), ``Number of Social
Organizations Reaches 289,000, Regulating Their Development Has Become
an Urgent Task'' [Minjian zuzhi dadao 28.9 wan guifan fazhan cheng
poqie renwu], 31 August 05.
\34\ Guo Xiaojun, ``NGOs May Not Require a Sponsor Organization In
Order To Register'' [NGO zhuce you wang wu xu zhuguan danwei], Beijing
News (Online), 18 October 04; ``Three Chinese Think Tanks Advise on
Civil Society Legislation; Is the Spring for Grassroots NGOs Coming? ''
[Sandazhiku jianyan shehui guanli lifa, caogen NGO de chuntian
lailin?], 21st Century Business Herald (Online), 29 November 04.
\35\ ``Beijing Review Profiles Development, Social Role of NGOs in
China,'' Beijing Review, 1 July 05 (Open Source Center, 1 July 05).
\36\ Ibid.; ``New Regulations on Social Organizations To Be
Released This Year, Non-Governmental Groups to Receive Moderate
Support'' [Xinshetuan tiaoli niannei chutai, minjian zuzhi jiang huo
shidu guli], Southern Daily (Online), 19 May 05.
\37\ Ibid.
\38\ The 2004 Regulations on Foundations created a channel for
foreign foundations to register representative offices in China.
Regulations on the Management of Foundations [Jinjinhui guanli tiaoli],
issued 8 March 04, art. 13. This contrasts with the corresponding 1998
regulations governing social organizations and NGNCEs. Some foreign
NGOs have registered as for-profit corporations, some have obtained
specific individual approval for their activities, and others operate
without any official registration. CECC Staff Interview.
\39\ Carl Minzner, ``New Chinese Regulations on Foundations,'' 2
International Journal of Civil Society Law 110 (April 2004).
\40\ ``Farmer Cooperatives: Urgently Awaiting Resolution of the
Difficult Question of Their `Black Status,' '' Beijing News; CECC Staff
Interview, Karla Simon, Professor of Law, Catholic University of
America.
\41\ ``Farmer Cooperatives: Urgently Awaiting Resolution of the
Difficult Question of Their `Black Status,' '' Beijing News.
\42\ CECC, 2005 Annual Report, 82; ``Rural Cooperative
Organizations Obtain Legal Status'' [Nongmin hezuo zuzhi shouhuo faren
shenfen], Beijing News (Online), 10 May 05.
\43\ Central Party Committee, State Council Opinion on Promoting
the Construction of a New Socialist Countryside [Zhonggong zhongyang
guowuyuan guanyu tuijin shehui zhuyi xin nongcun jianshe de ruogan
yijian], issued 31 December 05.
\44\ ``Farmer Cooperatives: Urgently Awaiting Resolution of the
Difficult Question of Their `Black Status,' '' Beijing News.
Notes to Section VII(b)--Institutions of Democratic Governance and
Legislative Reform
\1\ State Council Information Office, White Paper on Building of
Political Democracy in China, Xinhua (Online), 19 October 05.
\2\ ``Jiangxi Party Authorities Support Judicial Independence, But
Under Party Control,'' CECC China Human Rights and Rule of Law Update,
February 2006, 12.
\3\ Notice on Reissuance of Implementing Opinion on Zhejiang
Province, City, County, and Township Organizational Reform [Guanyu
yinfa `Zhejiang sheng shi xian xiang jigou gaige shishi yijian' de
tongzhi], issued 2 March 01, art. 3(3); Standing Committee of Jinan
People's Congress (Online), [Jinan] Report Regarding the Turnover
Election Work Situation During 2002 for the City's Town and Township
Local People's Congresses [Guanyu 2002 nian quan shi xiang zhen renda
huanjie xuanju gongzuo anpai qingkuang de huibao], 27 November 01, art.
4; Taizhou Government (Online), Taixing Launches Comprehensive Town and
Township Reforms, Personnel of Public Institutions To Be Reduced by 502
[Taixing qidong xiangzhen zonghe peitao gaige jiguan shiye danwei
bianzhi jiang jianshao 502 ming], 17 October 05.
\4\ CECC, 2005 Annual Report, 11 October 05, 93-94.
\5\ PRC Constitution, art. 25. Party congresses meet only once
every five years. Ibid., art. 24.
\6\ Political Change in China? Public Participation and Local
Governance Reforms, Staff Roundtable of the Congressional-Executive
Commission on China, 15 May 06, Written Statement Submitted by Joseph
Fewsmith, Director of East Asian Studies Program and Professor of
International Relations and Political Science, Boston University.
\7\ China has signed, but has not yet ratified, the ICCPR. The
Chinese government has committed itself to ratifying, and thus bringing
its laws into conformity with, the ICCPR and reaffirmed its commitment
as recently as April 13, 2006, in its application for membership in the
UN Human Rights Council. China's top leaders have previously stated on
three separate occasions that they are preparing for ratification of
the ICCPR, including in a September 6, 2005, statement by Politburo
member and State Councilor Luo Gan at the 22nd World Congress on Law,
in statements by Chinese Premier Wen Jiabao during his May 2005 Europe
tour, and in a January 27, 2004 speech by Chinese President Hu Jintao
before the French National Assembly.
\8\ ``White Paper on Building of Political Democracy in China,'' 19
October 05. ``The CPC's leadership and rule is an objective requirement
of the country's development and progress. . . . The CPC's leadership
and rule is needed for safeguarding China's unification and keeping
Chinese society harmonious and stable. . . . The CPC's leadership and
rule is needed for making the state power stable.'' Ibid.
\9\ Shi Jiangtao, ``One Campaign `Won't End Protests','' South
China Morning Post (Online), 8 July 05; ``Central Organization
Department Introduces the Situation of the Advanced Education Campaign
for Communist Party Members'' [Zhongzubu jieshao baochi gongchan
dangyuan xianjinxing jiaoyu huodong qingkuang], Xinhua, reprinted in
PRC Central People's Government (Online), 7 July 05.
\10\ Political Change in China? Public Participation and Local
Governance Reforms, Written Statement Submitted by Joseph Fewsmith.
Party regulations vest Party committees with control over elections.
Communist Party Regulations on the Work of Grassroots Rural
Organizations [Zhongguo gongchang dang nongcun jiceng zuzhi gongzuo
tiaoli], issued February 99, arts. 8, 9.
\11\ Wang Mei, ``In Nine Years, Almost 10,000 Police Have Been
Suspended For Disciplinary Violations'' [9 Nian nei yu wan wei ji
minjing bei chu ting zhi], Beijing News (Online), 15 February 06.
\12\ Philip Pan, ``Chinese Peasants Attacked in Land Dispute,''
Washington Post (Online), 15 June 05; ``Local Party Secretary Receives
Life Sentence for Authorizing Villager Shootings,'' CECC China Human
Rights and Rule of Law Update, March 2006, 12.
\13\ Ministry of Public Security (Online), ``Public Order Stable
Throughout China During 2005, Serious Violent Crimes Show Clear
Decline'' [2005 nian quanguo shehui zhi'an wending yanzhong baoli
fanzui mingxian xia jiang], 19 January 06.
\14\ ``Rise in Collective Disputes Attributed to Weak Protections
of Worker Rights,'' CECC China Human Rights and Rule of Law Update,
December 2005, 13.
\15\ CECC, 2005 Annual Report, 97.
\16\ ``State and Party-Run Web Sites Publish Op-Ed Critical of
Local Censorship,'' CECC China Human Rights and Rule of Law Update,
March 2006, 17.
\17\ Kim Hunter Gordon, ``Ssh, Don't Mention It to the Emperor,''
The Observer, 4 December 05; ``Wen Jiabao Writes to Russian Premier
Regarding Songhua Incident'' [Wen Jiabao jiu songhua jiang shijian zhi
xin e zongli], Beijing News (Online), 7 December 05.
\18\ ``Chinese Government Increases Censorship by Restricting
`Extra-Territorial' Reporting,'' CECC China Human Rights and Rule of
Law Update, July 2005, 2.
\19\ ``White Paper on Building of Political Democracy in China,''
19 October 05.
\20\ See infra, (notes 24-29, 33-45) and accompanying text.
\21\ Ibid.
\22\ Political Change in China? Public Participation and Local
Governance Reforms, Written Statement Submitted by Xie Gang, Former
Senior Program Officer, Law and Governance Programs, Asia Foundation.
\23\ ``Communist Party, State Council Order Stronger Controls Over
Society,'' CECC China Human Rights and Rule of Law Update, January
2006, 14; ``General Offices of the CCP Central Committee and State
Council Reissuance of `Opinion on Deeply Carrying Out Peaceful
Construction' '' [Zhong ban, Guo ban zhuanfa ``Guanyu shenru kaizhan
pingan jianshe de yijian''], Xinhua, reprinted in PRC Central People's
Government (Online), 4 December 05. Chen Jiping, general office
director of the Committee for Comprehensive Management of Public
Security, called for the implementation of similar social order
measures in a December 27, 2004 interview. ``Central Committee for the
Comprehensive Management of Public Security Responds to Journalists
Questions Regarding Deepening Peaceful Construction'' [Zhongyang
zongzhiban fuzeren jiu guanyu kaizhan pingan jianshe de yijian da
jizhe], Legal Daily, reprinted in PRC Central People's Government
(Online), 5 December 05.
\24\ ``News Department Holds Press Conference on the Situation of
Promoting Rural Advanced Education'' [Xinwen ban jiu tuijin nongcun
xianjin jiaoyu huodong qingkuang juxing fabuhui], China Net, reprinted
in PRC Central People's Government (Online), 1 March 06.
\25\ Ibid.
\26\ Central Party Committee, State Council Opinion on Promoting
the Construction of a New Socialist Countryside [Zhonggong zhongyang
guowuyuan guanyu tuijin shehui zhuyi xin nongcun jianshe de ruogan
yijian], issued 31 December 05. Village committees (VCs) are the lowest
level of governance in Chinese rural and urban areas, underneath
township (xiang/zhen) or street committees (jiedaochu). VCs and RCs
serve as tools of top-down social control. They keep tabs on local
residents, provide information to local police, and monitor compliance
with government policies such as birth control and taxation
requirements. However, VCs and RCs also operate as community
institutions addressing local needs. They provide basic social
services, mediate civil disputes, and offer a forum for residents to
address local problems. CECC, 2005 Annual Report, 91, endnote 15.
\27\ Communist Party Central Committee Opinion on Strengthening the
Work of the Chinese People's Political Consultative Conference
[Zhonggong zhongyang guanyu jiaqiang renmin zhengxie gongzuo de
yijian], issued 8 February 06; ``Party Calls for Stronger National
Consultative Body To Enhance Party Governance,'' CECC China Human
Rights and Rule of Law Update, May 2006, 8-9. ``White Paper on Building
of Political Democracy in China,'' 19 October 05. Party directives
issued in 2004 and 2005 also directed Party officials to strengthen the
role of the CPPCC and the National People's Congress, to help the
public participate more in the legislative process, to make it easier
for delegates to comment on legislative issues, and to assist in the
oversight of government operations.
\28\ Pan Haitao, ``Li Junru: The Chinese People's Political
Consultative Conference Offers Unique Advantages in Responding to the
`Color Revolutions' '' [Li Junru: yingdui ``caise geming'' zhongguo
zhengxie juyou dute youshi], China Net (Online), 10 March 06.
\29\ ``Units the CPPCC is Composed of,'' China Net (Online), 20 May
03.
\30\ Pan Haitao, ``Li Junru: The Chinese People's Political
Consultative Conference Offers Unique Advantages in Responding to the
`Color Revolutions'.''
\31\ Communist Party Central Committee Opinion on Strengthening the
Work of the Chinese People's Political Consultative Conference.
\32\ Ibid., art. 1.
\33\ Ibid., art. 5.
\34\ Ibid. The Opinion calls for Party members to respect the right
of non-Party CPPCC members to participate in discussions and proposals
about major government decisions, proposes a ``relatively larger''
number of non-Party members in the CPPCC, and recommends a ``certain
number'' of non-Party members in CPPCC leadership positions.
\35\ Audra Ang, ``Chinese Advisors May Tackle Rural Unrest,''
Associated Press, reprinted in Guardian (Online), 2 March 06; Luo
Qiping, Wang Shengke, and Zhang Liwei, ``No. 5 Document and New Space
for the CPPCC'' [Wu hao wenjian yu zhengxie xin kongjian], 21st Century
Business Herald (Online), 6 March 06.
\36\ National Policy Foundation [Guogai yanjiu baogao], Communist
China Reform of Party-Government Relations [Zhonggong zhengfu dangzheng
guanxi gaige], issued 31 March 03; China's State Control Mechanisms and
Methods, Hearing of the U.S.-China Security and Economic Review
Commission, 11 April 02, Written Statement Submitted by Richard Baum,
Director, UCLA Center for Chinese Studies.
\37\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, Country Reports on Human Rights Practices--2005, China
(includes Tibet, Hong Kong, and Macau), 8 March 06; Ministry of Civil
Affairs Notice Regarding Carrying Out Election Work for the 2005
Villager Committee Elections [Minzheng bu guanyu zuohao 2005 nian
cunmin weiyuanhui huanjie xuanju gongzuo de tongzhi], issued 18 January
05, art. 2.
\38\ Central Party Committee Decision on Strengthening the Party's
Ruling Capacity [Zhonggong zhongyang guanyu jiaqiang dang de zhizheng
nengli jianshe de jueding], issued 19 September 04, art. 5(5). The
Decision links this practice with the goal of reducing the numbers of
government officials. Ibid.
\39\ ``Anhui Province Expands Merger of Party and Government
Posts,'' CECC China Human Rights and Rule of Law Update, November 2005,
13.
\40\ Media reports depict the program as requiring township Party
secretaries to serve as township heads. Ibid.; Fan Lixiang, ``In Anhui
Experiment, The Burden of the Township Head and Party Secretary Is
Carried By the Same Person'' [Anhui shidian xiangzhenzhang dangwei
shuji yi bang tiao], 21st Century Business Herald, 19 October 05. The
text of the underlying Party and government directive uses the term
``promotes.'' Opinion of the General Offices of the Anhui Provincial
Party Committee and Anhui Provincial Government Regarding Deepening
Comprehensive Rural Reform and Constructing New Experimental Grassroots
Work Mechanisms [Zhonggong Anhui sheng wei bangongting Anhui sheng
renmin zhengfu bangongting guanyu kaizhan nongcun zonghe gaige shidian
jianli nongcun jiceng gongzuo xin jizhi de yijian], issued 27 June 05,
art 2(2).
\41\ Fan Lixiang, ``In Anhui Experiment, the Burden of the Township
Head and Party Secretary Is Carried by the Same Person.''
\42\ ``Anhui Province Expands Merger of Party and Government
Posts,'' CECC China Human Rights and Rule of Law Update, November 2005,
13. The Anhui program may represent an experiment that Chinese
officials are considering expanding on a larger scale to handle the
financial pressures on local government generated by the abolition of
the agricultural tax. Authorities designated Anhui province as an
experimental province for agricultural tax reform prior to the rest of
the country. Anhui authorities abolished the agricultural tax in 2004,
and began experimenting with government restructuring at the same time.
Ibid. The 2005 Anhui efforts to reduce the numbers of government
officials resemble calls made in 2006 by Chinese central authorities
for a reduction in the number of township and town government personnel
between 2006 and 2011 as part of rural reform goals, in conjunction
with the central government's abolition of the agricultural tax in
2006. Central Party Committee, State Council Opinion on Promoting the
Construction of a New Socialist Countryside, art. 24.
\43\ Maria Edin, ``State Capacity and Local Agent Control in China:
CCP Cadre Management from a Township Perspective,'' 173 China Quarterly
35, 38-40 (2003).
\44\ Relevant Opinions of the General Office of the State Council
on Promoting the Use of Administrative Enforcement Responsibility
Systems [Guowuyuan bangongting guanyu tuixing xingzheng zhifa zerenzhi
de ruogan yijian], issued 27 July 05.
\45\ ``State Council Emphasizes Implementation of Responsibility
Systems, Rooting Out Use of Intellectual Property To Carry Out Local
Protectionism'' [Guowuyuan qiangdiao luoshi zerenzhi yanchu zhishi
canquan gao difang baohu], China Court Net (Online), 26 April 06.
\46\ Qie Jianrong, ``Nine Ministries Join Together To Halt Illegal
Mines'' [Jiu bumen lianhe zhengdun weifa caikuang], Legal Daily
(Online), 3 April 06.
\47\ Shen Ying, ``To Serve As an Official, One Must Pass the
Environmental Barrier'' [Dang guan yao guo huanbao guan], Southern
Weekend (Online), 29 September 05.
\48\ ``Central Committee for the Comprehensive Management of Public
Security Responds to Journalists Questions Regarding Deepening Peaceful
Construction'' [Zhongyang zongzhiban fuzeren jiu guanyu kaizhan pingan
jianshe de yijian da jizhe], Legal Daily, reprinted in PRC Central
People's Government (Online), 5 December 05. The language resembles a
December 27, 2004 statement made by Chen Jiping, general office
director of the Central Committee for the Comprehensive Management of
Public Security, who asserted that all levels of the Chinese
bureaucracy need to construct cadre responsibility systems that make
the maintenance of public order a key component of their official
performance evaluations. ``Communist Party, State Council Order
Stronger Controls Over Society,'' CECC China Human Rights and Rule of
Law Update, January 2006, 14.
\49\ Electoral reforms began in the 1980s involving village and
residents' committee (VC and RC) and local people's congress (LPC)
elections. Party authorities have ensured that these reforms, as with
those discussed in the text, have remained limited and do not challenge
core principles of Party control. CECC, 2005 Annual Report, 91-94.
\50\ Official efforts to allow a limited degree of public
participation and transparency to improve governance have occurred in
other fields as well. Regarding the use of open hearings in the
criminal justice system, see Section V(b)--Rights of Criminal Suspects
and Defendants. On the use of people's assessors in the regular
judicial system, see CECC, 2005 Annual Report, 88.
\51\ Political Change in China? Public Participation and Local
Governance Reforms, 15 May 06, Written Statement Submitted by Joseph
Fewsmith, Director of East Asian Studies Program and Professor of
International Relations and Political Science, Boston University.
\52\ Ibid.
\53\ ``General Offices of the CCP Central Committee and State
Council Reissuance of `Opinion on Deeply Carrying out Peaceful
Construction.' ''
\54\ Regulations on the Selection of Leading Party and Government
Cadres (Tentative) [Dang zheng lingdao ganbu xuanba renyong gongzuo
zanxing tiaoli], issued 9 February 95, arts. 10(6), 15; Regulations on
the Selection of Leading Party and Government Cadres [Dang zheng
lingdao ganbu xuanba renyong gongzuo tiaoli], issued 9 July 02, art.
12(6).
\55\ Regulations on the Selection of Leading Party and Government
Cadres (Tentative), art. 9; Regulations on the Selection of Leading
Party and Government Cadres, art. 17.
\56\ ``News Department Holds Press Conference on the Situation of
Promoting Rural Advanced Education'' [Xinwen ban jiu tuijin nongcun
xianjin jiaoyu huodong qingkuang juxing fabuhui], China Net, reprinted
in PRC Central People's Government (Online), 1 March 06.
\57\ Regulations on the Selection of Leading Party and Government
Cadres, arts. 13-17, 35-36.
\58\ Wang Xingxia and Zhang Xi, ``Zhuzhou: First Case of Public
Nomination, Direct Election for Township Party Leaders'' [Zhuzhou:
shouci gongtui zhixuan xiangzhen dangwei banzi], Xiaochen Chenbao,
reprinted in Xinhua (Online), 27 February 06.
\59\ CECC, 2005 Annual Report, 92.
\60\ Meng Nuo, ``China's Highest Legislative Authority Holds
Hearing for the First Time'' [Zhongguo zui gao lifa jiguan shouci
juxing tingzhenghui], Xinhua (Online), 27 September 06.
\61\ PRC Environmental Impact Assessment Law [Huanjing yingxiang
pingjia fa], issued 28 October 02, arts. 11 and 21.
\62\ PRC Administrative Licensing Law [Xingzheng xuke fa], issued
27 August 03, art. 19.
\63\ Trial Measures on Public Participation in Environmental Impact
Assessments [Huanjing yingxiang pingjia gongzhong canyu zanxing banfa],
issued 14 February 06; Xu Yuanfeng, ``Shenyang Releases First
Government Measures, Guarantees Public Participation in Environmental
Protection'' [Shenyang shuaixian chutai zhengfu guizhang banfa,
baozhang gongzhong canyu huanbao], People's Daily (Online), 22 December
05.
\64\ Allison Moore and Adria Warren, ``The Double Edge of Legal
Advocacy in Environmental Public Participation in China: Raising the
Stakes and Strengthening Stakeholders,'' China Environment Series,
Issue 8, Woodrow Wilson Center, forthcoming 2006.
\65\ Ibid.
\66\ Jim Yardley, ``Seeking a Public Voice on China's `Angry
River,' '' New York Times (Online), 26 December 05.
\67\ ``Three Gorges Project Given Go Ahead for Construction,''
China Daily (Online), 18 April 05.
\68\ Joint Notice of the General Offices of the Party Central
Committee and State Council Regarding Promoting Systems of Openness of
Political Affairs In All Town and Township Political Institutions
[Zhonggong zhongyang bangongting, guowuyuan bangongting guanyu zai
quanguo xiangzhan zhengquan jiguan quanmian tuixing zhengwu gongkai
zhidu de tongzhi], issued 6 December 00.
\69\ Opinion of the General Offices of the Central Committee and
the State Council Regarding Taking Further Steps To Promote
Transparency in Political Affairs [Zhonggong zhongyang bangongting,
guowuyuan bangongting guanyu jinyibu tuixing zhengwu gongkai de
yijian], issued 24 March 05.
\70\ CECC Staff Interview. Xu Ming and Wei Yongzheng, ``Looking at
Open Government Systems from the Perspective of New Regulations'' [Cong
difang xin gui kan zhengfu xinxi gongkai zhidu de jianli], China Daily
(Online), 15 February 06.
\71\ ``Limited Political Reforms in One Zhejiang County Help Check
Local Abuses,'' CECC China Human Rights and Rule of Law Update,
February 2006, 10. Wuyi officials cited a central policy document on
increasing transparency in village affairs as giving them the authority
to implement these policies. Ibid.; Joint Opinion of the General
Offices of the Central Party Committee and the State Council on
Perfecting Systems of Transparency and Democratic Governance [Zhonggong
zhongyang bangongting guowuyuan ban gongting guanyu jianquan he wanshan
cunwu gongkai he minzhu guanli zhidu de yijian], issued 22 June 04.
\72\ ``Limited Political Reforms in One Zhejiang County Help Check
Local Abuses,'' CECC China Human Rights and Rule of Law Update,
February 2006, 10.
\73\ Ibid.; Li Liang, ``Zhejiang Wuyi: Separation of Powers to
Govern a Village'' [Zhejiang wuyi: fen quan zhi cun], Southern Weekend
(Online), 19 May 05.
\74\ Zou Shengwen and Yang Weihan, ``National People's Congress
Standing Committee Sets Legislative Plan For Next Year, Will Review 39
Draft Laws'' [Quanguo renda changweihui queli mingnian lifa jihua jiang
anpai shenyi 39 jian falu caoan], Xinhua, reprinted on the National
People's Congress Web site (Online), 28 December 05.
\75\ ``Ministry Proposes Revisions to the Laws on Villagers and
Residents Committees,'' CECC China Human Rights and Rule of Law Update,
December 2005, 7.
\76\ Communist Party Regulations on the Work of Grassroots Rural
Organizations [Zhongguo gongchang dang nongcun jiceng zuzhi gongzuo
tiaoli], issued February 99, arts. 8-9. Party control of VCs is also
highlighted in the joint 2005 Party and State Council Opinion, which
calls for strengthening village autonomous institutions (including
elected VCs) that are ``brimming with vitality,'' but ``under village
Party leadership.'' ``General Offices of the CCP Central Committee and
State Council Reissuance of `Opinion on Deeply Carrying Out Peaceful
Construction.' ''
\77\ Li Lihua, ``The Party Branch Secretary Should Play a Core
Leadership Role in Village Committee Elections'' [Dang zhibu yao zai
cunweihui huanjie zhong zuo hexin], China Elections and Governance Web
site (Online), 20 March 06.
\78\ PRC Organic Law on Village Committees, enacted 4 November 98,
art. 16.
\79\ Local Officials Suppress Citizen Effort to Remove Village
Committee Head in Guangdong Province, CECC China Human Rights and Rule
of Law Update, November 2005, 11.
\80\ Ibid.; Edward Cody, ``In Chinese Uprisings, Peasants Find New
Allies,'' Washington Post (Online), 26 November 05.
\81\ ``Activists, Lawyers Denounce Results of Taishi LPC
Election,'' CECC China Human Rights and Rule of Law Update, June 2006,
9; Leu Siew Ying, ``New Setback in Taishi's Struggle for Democracy,''
South China Morning Post (Online), 29 March 06.
Notes to Section VII(c)--Access to Justice
\1\ The accompanying general comment notes that this language does
not necessarily require a judicial remedy, but that ``[i]n relation to
civil and political rights, it is generally taken for granted that
judicial remedies for violations are essential'' and ``[a]dministrative
remedies should be accessible, affordable, timely, and effective. An
ultimate right of judicial appeal from administrative remedies . . .
would also often be appropriate.'' General Comment No. 9.
China has signed, but has not yet ratified, the ICCPR. The Chinese
government has committed itself to ratifying, and thus bringing its
laws into conformity with, the ICCPR and reaffirmed its commitment as
recently as April 13, 2006, in its application for membership in the UN
Human Rights Council. China's top leaders have previously stated on
three separate occasions that they are preparing for ratification of
the ICCPR, including in a September 6, 2005, statement by Politburo
member and State Councilor Luo Gan at the 22nd World Congress on Law,
in statements by Chinese Premier Wen Jiabao during his May 2005 Europe
tour, and in a January 27, 2004 speech by Chinese President Hu Jintao
before the French National Assembly.
\2\ ``Supreme People's Court Maps Future Judicial Reforms in Five
Year Reform Program,'' CECC China Human Rights and Rule of Law Update,
February 2006, 7-9.
\3\ Zong Bian, ``Central Political and Legal Affairs Committee
Issues Circular Calling For Increased Attention To Resolving the
Problem of Enforcement of Court Decisions'' [Zhongyang zhengfawei
tongzhi yaoqiu jiada lidu qieshi jiejue zhixing nan], China Court Net
(Online), 23 January 06. Similarities between the circular and an
October joint Party and State Council opinion suggest that they are
part of a coordinated effort. The circular also directs local Party
committees for the comprehensive management of public security to
coordinate efforts at enforcing court judgments and to include the
quality of enforcement work in the responsibility systems used to
evaluate the performance of local officials. The national Political and
Legislative Affairs Committee and the Committee for Comprehensive
Management of Public Security prepared a December 2005 Party and State
Council joint opinion to stem social unrest and to reduce the number of
``mass incidents'' such as riots, demonstrations, or collective
petitions directed at government authorities. ``Communist Party, State
Council Order Stronger Controls Over Society,'' CECC China Human Rights
and Rule of Law Update, January 2006, 14-15. The Political and
Legislative Affairs Committee circular directive to coordinate with the
local CCMPS branches suggests that this enforcement campaign may be a
specific effort to implement the earlier joint opinion.
\4\ ``Supreme People's Court Maps Future Judicial Reforms in Five
Year Reform Program,'' CECC China Human Rights and Rule of Law Update,
February 2006, 7-9.
\5\ Ibid.
\6\ PRC Constitution, art. 104.
\7\ CECC, 2005 Annual Report, 11 October 05, 81.
\8\ Second Five-Year Reform Program for the People's Courts (2004-
2008) [Renmin fayuan di er ge wu nian gaige gangyao (2004--2008)],
issued 26 October 05.
\9\ CECC, 2005 Annual Report, 81.
\10\ ``Beijing No. 1 Intermediate People's Court Abolishes
Responsibility System for Wrongly Decided Cases, Believes It Impedes
Fairness'' [Beijing di yi zhongji fayuan quxiao cuo'an zhuijiu zhi
renwei you'ai gongping], The First, reprinted in Xinhua (Online), 21
November 05.
\11\ Ibid.; ``Beijing Court Announces Reform of Judicial
Disciplinary System,'' CECC China Human Rights and Rule of Law Update,
January 2006, 3.
\12\ ``Beijing No. 1 Intermediate People's Court Abolishes
Responsibility System for Wrongly Decided Cases, Believes It Impedes
Fairness,'' The First.
\13\ Decision of the Jiangsu Party Committee on Further
Strengthening the Work of the Courts and Procuratorate [Guanyu jinyibu
jiaqiang fayuan jianchayuan gongzuo jueding], issued 12 August 04;
Decision of the Yancheng City Party Committee on Further Strengthening
the Work of the Courts and Procuratorate [Guanyu jinyibu jiaqiang
fayuan jianchayuan gongzuo jueding], issued 4 November 04.
\14\ Jiangxi High People's Court (Online), ``Party Committee Issues
`Decision on Taking Further Steps To Strengthen the Work of Courts and
Procuratorates' '' [Sheng wei xia fa ``guanyu jin yi bu jiaqiang fayuan
jianchayuan gongzuo de jueding'']; ``Jiangxi Party Authorities Support
Judicial Independence, but Under Party Control,'' CECC China Human
Rights and Rule of Law Update, February 2006, 12.
\15\ ``Supreme People's Court Maps Future Judicial Reforms in Five
Year Reform Program,'' CECC China Human Rights and Rule of Law Update,
February 2006, 7-9; Second Five-Year Reform Program for the People's
Courts (2004-2008). These reform plans parallel those announced in
earlier SPC work reports and media analysis. See CECC, 2005 Annual
Report, 87-88.
\16\ ``Supreme People's Court Comes Out With Judicial
Interpretation Promoting Reform of Adjudicatory Supervision'' [Zuigaofa
ni chutai sifa jieshi tuidong shenpan gaige], Defense Lawyer (Online),
28 November 05.
\17\ ``Justice Ministry Takes Steps To Improve the Independence of
Expert Factual Determinations,'' CECC China Human Rights and Rule of
Law Update, November 2005, 12.
\18\ ``The Rise In Youth Crime Is Startling'' [Weichengnianren
fanzui sheng fu jingren wo guo yunniang jian shaonian fayuan ping],
Xinhua (Online), 13 March 05.
\19\ Ningbo City Party Committee Decision Regarding the
Construction of a Ningbo Ruled By Law [Zhonggong Ningbo shiwei yu
jianshe fazhi Ningbo de jueding], issued 27 April 06; Henan Provincial
Party Committee and Henan Provincial Government Circular Regarding the
``Program for the Construction of a Peaceful Henan'' [Henan shengwei
shengzhengfu guanyu ``Pingan Henan jianshe gangyao'' de tongzhi],
issued 26 April 06.
\20\ Ministry of Justice (Online), Wu Aiying, ``Provide Strong and
Effective Legal Guarantees to Build a Harmonious Socialist Society''
[Wei goujian shehuizhuyi hexie shehui tigong qiang you li de falu
baozhang], 8 February 06.
\21\ Ministry of Justice (Online), ``Introduction to Judicial
Administration Work'' [Sifa xingzheng gongzuo jieshao], 24 March 03;
CECC, 2005 Annual Report, 75-78.
\22\ Li Qing and Huang Hun, ``Construction of Local Judicial
Bureaus Moves Into High Tide, Every Level of Government and Every Area
Experience Success'' [Sifa suo jianshe xian gaochao ge de ge ji jun you
gaozhao], Legal Daily (Online), 16 May 05.
\23\ ``Standing Committee of the State Council Reviews and Approves
in Principle the `Construction Plan for West-Central China Area Basic-
Level Police Stations, Town and Township Judicial Offices and People's
Courts' '' [Guowuyuan changwuhuiyi shenyi bing yuanze tongguo
``zhongxibu diqu jiceng paichusuo, xiangzhen sifasuo, renmin fating
jianshe guihua''], Department of Guiding Grassroots Work (Online), 7
February 06.
\24\ ``Ministry of Justice Sets `Four Targets' for Serving the
Construction of the Socialist Countryside'' [Sifabu ding ``sixiang
renwu'' fuwu shehui zhuyi xin noncun jianshe], Xinhua (Online), 5 May
06.
\25\ Consultations increased from 1.9 million in 2003 to 2.66
million in 2005. ``In One Year Over 430,000 People Assisted by China's
Legal Aid System'' [Yi nian yuanzhu 43 wan duoming qunzhong wo guo falu
yuanzhu zhidu jiancheng tixi], Xinhua (Online), 1 January 06; CECC,
2005 Annual Report, 76-77.
\26\ Ministry of Justice (Online), ``All-China Environmental
Federation to Provide Legal Aid to Pollution Victims'' [Zhonghua
huanbao lianhehui biaoshi wei wuran shouhaizhe tigong falu yuanzhu], 24
July 05.
\27\ Shanghai Municipality Decisions on Legal Aid [Shanghai shi
falu yuanzhu ruogan guiding], issued 9 May 06, art. 5. Article 6
provides that applicants seeking legal aid may obtain a statement
proving economic need either from authorities in their place of hukou
registration or actual place of residence. This appears to allow
migrant applicants greater access to legal assistance in their actual
place of residence. Provincial regulations issued before the 2003
National Regulations on Legal Aid had made access to legal aid
conditional on local hukou status. CECC, 2004 Annual Report, 63.
\28\ 2006 Report on the Policy for Development of China's Legal
Profession [2006 nian Zhongguo lushi ye fazhan zhengce baogao], issued
16 January 06; ``ACLA, Justice Bureau Opinions Restrict Lawyer
Involvement in Sensitive, Mass Cases,'' CECC China Human Rights and
Rule of Law Update, June 2006, 4-5.
\29\ Guiding Opinion of the All China Lawyers Association Regarding
Lawyers Handling Cases of a Mass Nature [Zhonghua quanguo lushi xiehui
guanyu lushi banli qunti xing anjian zhidao yijian], issued 20 March
06, sec. I(1); ``ACLA, Justice Bureau Opinions Restrict Lawyer
Involvement in Sensitive, Mass Cases,'' CECC China Human Rights and
Rule of Law Update, June 2006, 4-5.
\30\ Guiding Opinion of the All China Lawyers Association Regarding
Lawyers Handling Cases of a Mass Nature, sec. III(2)-(3).
\31\ Ibid., sec. I(2)-(3).
\32\ Ibid., sec. IV(8).
\33\ ``ACLA, Justice Bureau Opinions Restrict Lawyer Involvement in
Sensitive, Mass Cases,'' CECC China Human Rights and Rule of Law
Update, June 2006, 4-5; ``Henan Justice Bureau Bans Lawyers From Using
Media in Sensitive Cases,'' CECC China Human Rights and Rule of Law
Update, June 2006, 5-6; ``Henan Justice Bureau Establishes a Rule for
Lawyers: No Stirring Up of Sensitive Cases'' [Henan sifating wei lushi
ding ``guiju'' mingan anjian jin chaozuo], Henan Daily, reprinted in
Xinhua (Online), 10 April 06.
\34\ ``ACLA, Justice Bureau Opinions Restrict Lawyer Involvement in
Sensitive, Mass Cases,'' CECC China Human Rights and Rule of Law
Update, June 2006, 4-5; ``Shenyang Lawyers Must Seek Advisory Opinions
When Handling Sensitive Cases'' [Shenyang lushi chengban mingan anjian
xu qingshi], Legal Daily (Online), 19 April 06.
\35\ PRC Constitution, arts. 62, 67, 128.
\36\ Working Procedures for the Filing and Review of Judicial
Interpretations [Sifa jieshi beian shencha gongzuo chengxu], issued 16
December 05; ``NPC Standing Committee Establishes Constitutional Review
System for Regulations and Judicial Explanations'' [Renda changweihui
jianli fagui he sifa jieshi beian shencha zhidu], Xinhua (Online), 19
December 05.
\37\ CECC Staff Interview.
\38\ ``The NPC Revises Constitutional Review Procedures, Review
Processes Should Draw Lessons from Foreign Countries' Experiences''
[Renda xiuding weixian shencha chengxu shencha caozuo xu jiejia waiguo
jingyan], Southern Metropolitan News (Online), 21 December 05;
``Constitutional Review and the Strengthening of Judicial Power''
[Hexianxing shencha yu sifaquande qianghua], China Social Science, Vol.
2, 2002; Zhu Xiaoqing, ``Legal Research Must Be Based on China's
Situation'' [Faxue yanjiu ya lizu yu zhongguo shiji], Seeking Truth, 16
March 06.
\39\ ``NPC Explains Constitutional Review System, Any Citizen Can
Petition for Constitutional Review'' [Renda jie weixian shenchazhi,
renhe gongmin ke tiqing weixian shencha], Beijing News, reprinted in
Xinhua (Online), 2 December 04; ``My Country Implements the
Constitution by NPC Supervision, Constitution Still Cannot Be the Basis
of Litigation'' [Wo guo you renda jiandu xianfa shishi, xianfa reng
buneng chengwei susong genju], People's Daily (Online), 1 December 04.
\40\ See Zhu Xiaoqing, ``Legal Research Must be Based on China's
Situation,'' which states: ``We absolutely may not use `the
Constitution may be studied and amended' as an excuse to wittingly or
unwittingly take the constitutional systems of certain Western
countries as our example, or to question or censure our country's
constitutional system.''
\41\ Ibid.; Cheng Xiangqing, ``A Discussion of Perfecting National
People's Congress Supervision System'' [Lun wanshan renda jiandu
zhidu], People's Daily (Online), 15 July 04.
\42\ Zhu Xiaoqing, ``Legal Research Must be Based on China's
Situation.''
\43\ PRC Legislation Law, enacted 15 March 00, art. 90.
\44\ ``New NPC Body to Address Law Conflicts,'' China Daily
(Online), 21 June 04. China's state-run media has said this system is
justified because ``the issues raised by the State Council and the
other five types [of government agencies] are more important,'' and
because the large number of proposals that could be submitted by
average citizens necessitated a ``filtering procedure'' before they
were forwarded to the NPCSC. ``National People's Congress Standing
Committee Clarifies Constitutional Review Procedure'' [Quanguo renda
mingque weixian shencha chengxu], Beijing News (Online), 20 December
05. One Chinese scholar, however, has characterized this ``government
first, citizens second'' approach as ``giving one the feeling that the
state is above the people, more important than the people, and seems
inconsistent with nature of a socialist country.'' Wang Zhenmin,
``China's Constitutional Review System'' [Zhongguo weixian shencha
zhidu] (Beijing: China Law and Politics University Publishing, 2004),
130.
\45\ Working Procedures for the Filing and Review of Administrative
Rules, Local Rules, Autonomous Region and Special Purpose Regulations,
and Special Economic Zone Rules [Xinzheng faqui, difangxing fagui,
zizhi tiaoli he danxing tiaoli, jingji tequ fagu beian shencha gongzuo
chengxu], issued 16 October 00.
\46\ Ding Aiping and Fei Zhiming, ``Constitutional Review Takes a
Big Step Forward'' [Weixian shencha you xiang qian mai chule yi bu],
Democracy and Legal System Times (Online), 17 April 06. See also, Luo
Jing, ``The Structure and Weaknesses of China's Press Legal System''
[Woguo xinwen lingyu falu tixide goucheng yu quexian], The Journalist
Monthly (Online), 1 February 06, which says that the absence of means
for redress is the reason no cases have been filed by ``people suing
the government'' in the area of media control, and that even if someone
wished to file such a law suit, there is no law on which such a suit
could be based; ``Chinese Media, Scholars Criticize Lack of Legal
Protections for Journalists,'' CECC China Human Rights and Rule of Law
Update, March 2006, 15.
\47\ ``Groups Petition Government To Review Constitutionality Of
Internet News Rules,'' CECC China Human Rights and Rule of Law Update,
July 2006, 6.
\48\ See ``Legal Expert: Improve Legislative Filing and Review,
Safeguard the Unity of the Nation's Legal System'' [Faxue zhuanjia:
wanshan fagui beian shencha weihu guojia fazhi tongyi], China Youth
Daily (Online), 22 December 05, which quotes Cai Dingjian as saying:
``Currently our country's local protectionism and departmental
protectionism commonly causes a lack of unity laws and regulations, and
legislative conflicts lead to citizens' rights suffering harm.'' See
also Tong Dahuan, ``How To Realize `Procedural Rule by Law' ''
[``Chengxu fazhi'' ruhe shixian], China Economic Times (Online), 22
December 05; ``Heilongjiang's Compulsory Marriage Examination is Not
Illegal,'' [Heilongjiang qianzhi hun jian bing bu weifa], Procuratorate
Daily (Online), 1 August 05, 5 (citing Tai Qianhong: ``Furthermore it
is difficult bring about social groups and citizens submitting
suggestions, and this is also significantly related to the fact that
the current constitutional review mechanism is imperfect, and
procedures are difficult to operate.''); Cheng Xiangqing, ``A
Discussion of Perfecting National People's Congress Supervision
System'' (``[O]ur nation's constitutional supervision duty has never
been effectively exercised. One reason for this is that the
constitutional review mechanisms and procedures continues to need
improvement.''); ``Several Problems with the National People's
Congress' Constitutional Review Procedures'' [Guanyu quanguo
rendachangweiyuanhui fagui beian shencha gongzuode jige wenti],
People's Daily (Online), 15 July 04.
\49\ ``I think they should conclude each case with a formal written
judgment supported by adequate reasons, instead of solving the problem
behind close doors.' '' ``New NPC Body to Address Law Conflicts,''
China Daily (Online) (quoting Wang Zhenmin); Sun Ruizhuo, ``Three
Suggestions Regarding the `Constitutional Review' Procedure'' [Dui
``weixian shencha'' chengxu de san dian jianyi], Da He Bao, reprinted
in People's Daily (Online), 21 December 05; ``Legal Expert: Improve
Legislative Filing and Review, Safeguard the Unity of the Nation's
Legal System'' (citing Cai Dingjian as suggesting that the government
tell the citizens within a fixed time whether or not an application for
review has been accepted, whether or not they are launching a review,
the specific process of the review, or if it is rejected, the reason
for not accepting it); Tong Dahuan, ``How to Realize `Procedural Rule
by Law,' '' China Economic Times.
\50\ ``National People's Congress Standing Committee Clarifies
Constitutional Review Procedures,'' Beijing News (Online), (citing
Jiang Mingan, director of the Beijing University Constitutional and
Administrative Law Research Center).
\51\ ``Constitutional Law Expert: Establishing a Constitutional
Review Agency is an Important Step'' [Xianfa xue quanwei zhuanjia:
chengli weixian shencha jigou shi zhongda jinbu], China Youth Daily
(Online), reprinted in the People's Daily (Online), 22 June 04, quoting
Han Dayuan, China People's University Law School Vice Dean, Chinese
Academy of Social Sciences Constitutional Law Association Vice-
President:
[T]he general consensus with our country's constitutional community
is that the National People's Congress Standing Committee should
establish a dedicated Constitutional Commission, with rank at least
equal to that of the NPC's specialist commission, and appoint
authoritative legal scholars, experienced judges, and experienced
lawyers to the specialist committee to serve as review commissioners.
It would then directly review whether laws and regulations were
unconstitutional or illegal, and report directly to the NPC Standing
Committee, after which review procedures would be launched, and this
method is relatively more suited to our country's situation.See also,
``Experts Suggest The National People's Congress Establish a
Constitutional Commission'' [Zhuanjia jianyi quanguo renda zengshe
xianfaweiyuanhui], China Youth Daily, reprinted in Xinhua (Online), 3
December 05.
\52\ PRC Legislation Law, arts. 90 and 91.
\53\ ``Beneath the conflict of legislation lies the conflict of
interests of different departments and local administrations and, in a
word, power distribution.'' ``New NPC Body to Address Law Conflicts,''
(quoting Wang Zhenmin); Cai Dingjian, ``China Takes a Step Forward in
Constitutional Review'' [Zhongguo xian weixian maijin], Southern
Weekend (Online), 22 December 05 (saying China's legal system is
characterized by local and departmental protectionism);
``Heilongjiang's Compulsory Marriage Examination is Not Illegal,''
Procuratorate Daily (Online) (quoting Tai Qianhong: ``[S]tate agencies
rarely submit suggestions for reviewing laws and regulations, and this
is because a given state agency is often the law enforcement entity,
and the law or regulation is often connected with their own
interests.''); Fu Dalin, ``Using Openness and Gamesmanship to Prevent
`Legislative Balkanization' '' [Yi gongkai he boyi fangzhi ``lifa
geju''], Guangming Daily (Online), 28 March, 06:[S]ituations arise
where there are fights between legal standards. Looking into the
reason, it is basically because it is very easy for agencies to
influence the legislative process, and when legislating some
administrative agencies ``fight for what is in their interests, oppose
what is against their interests, drag their feet in what is in others'
interests, and refuse anything that divides their interests,'' this
creates a situation of administrative legislation separatism that is
unjust and unharmonious.
\54\ ``Legal Expert: Improve Legislative Filing and Review,
Safeguard the Unity of the Nation's Legal System,'' China Youth Daily
(Online), quoting Cai Dingjian:[O]ur country's legislative filing and
review system primarily reviews whether local regulations and
administrative regulations conflict with the Constitution and laws. . .
. It is related to a constitutional review system, but it has a major
difference, as the core of modern constitutional review systems will
resolve whether the laws formulated by national legislative bodies are
unconstitutional, and it safeguards the authority of law and the rights
of citizens. Legislative filing and review systems do not include
reviewing problems of NPC formulated laws conflicting with the
Constitution. . . .
\55\ Zhang Qianfan, ``A Symbol of the Beginning of China's
Constitutional Government Era'' [Zhongguo xianzheng shidai kaishi de
biaozhi], Legal Daily (Online), 28 June 04; ``Constitutional Law
Expert: Establishing a Constitutional Review Agency Is an Important
Step,'' China Youth Daily (Online), (quoting Han Dayuan: ``the
Legislation Review and Filing Office is an agency subordinate to the
Legislative Affairs Commission, and does not have any practical
authority to rescind unconstitutional or illegal laws and
regulations.''); ``National People's Congress Standing Committee
Clarifies Constitutional Review Procedures,'' Beijing News (Online)
(citing Jiao Hongchang).
\56\ PRC Administrative Reconsideration Law, enacted 29 April 99,
art. 17; PRC Administrative Procedure Law, enacted 4 April 89, art. 11.
\57\ Compare original Legislation Procedures article 13 (``After
legislative review work has been completed, the NPCSC General Office
shall be responsible for notifying in writing the work unit or
individual who raised the review request or review proposal'') with
amended Legislation Procedures article 14 (``After legislative review
work has been completed, the NPCSC General Office may, as necessity
dictates, notify in writing the government agencies or social
organization, business enterprise, organization, or citizen who raised
the review request or review proposal.'')
\58\ Ding Aiping and Fei Zhiming, ``Constitutional Review Takes a
Big Step Forward'' (``Even though unconstitutional and illegal laws and
regulations are commonplace, the National People's Congress and its
Standing Committee has yet to rescind a single law or regulation. Soon
after three academics petitioned regarding the Sun Zhigang incident,
the State Council abolished the custody and repatriation measures, but
it did not begin constitutional review procedures, nor did it provide
any feedback to the public or the petitioners regarding the
situation.'').
\59\ For example, officials have said that Chinese legislators
replaced earlier regulations with the Public Order Administration
Punishment Law to comply with the requirements of the Legislation Law.
PRC Public Security Administration Punishment Law, issued 28 August 05;
``National People's Congress Legislative Affairs Commission Report on
the Results of the Consideration of the `Draft People's Republic of
China Public Order Administration Punishment Law' '' [Quanguo renda
faluweiyuanhui guanyu ``zhonghua renmin gongheguo zhi'an guanli chufa
fa (cao'an)'' shenyi jieguode baogao], enacted 28 August 05.
\60\ Liu Wuhou, ``Hoping That Constitutional Review Procedures Will
Commence as Soon as Possible,'' [Qidai weixian shencha chengxu jinkuai
qidong], Jiangnan Times, reprinted in People's Daily (Online), 23
December 05; Liao Weihua, ``Experts Suggest Establishing a Special
Constitutional Committee'' [Zhuanjia jianyi she xianfa zhuanmen
weiyuanhui], Beijing News (Online), 21 September 04.
\61\ The 2005 amendment to Legislative Procedures added the phrase
`` . . . in order to safeguard the unity of the nation's legal
system.'' See also, ``Legal Expert: Improve Legislative Filing and
Review, Safeguard the Unity of the Nation's Legal System,'' China Youth
Daily (Online) (quoting Cai Dingjian: ``[I]ts primary goal is to
safeguard the unity of the nation's legal system.'').
\62\ PRC Constitution, arts. 62, 67; PRC Legislation Law, arts. 90-
91; Cheng Xiangqing, ``A Discussion of Perfecting National People's
Congress Supervision System'' (``Our country's system differs from the
three powers separation implemented in Western countries, in that we
implement a system whereby all power belongs to the people through the
People's Congress. . . . Our country's Constitution stipulates that the
sacred duty of supervising the implementation of the Constitution lies
only with the National People's Congress and its Standing
Committee.'').
\63\ China's leaders have nevertheless acknowledged that
unrestrained power leads to abuse and corruption, and that mechanisms
are required to ensure citizens have a means to achieve redress of
violations of their constitutional and legal rights. See, e.g., Zhu
Xiaoqing, ``Legal Research Must Be Based on China's Situation''
(``[E]very country believes that, if power is not subject to restraint
and supervision, it must lead to corruption''); Cheng Xiangqing, ``A
Discussion of Perfecting National People's Congress Supervision
System'' (``History, both ancient and modern, foreign and domestic,
proves that if those who hold power are not restrained, they will
necessarily abuse their authority and become corrupt.''); Hu Jintao,
``Speech in the Capital Commemorating the Twentieth Anniversary of the
Promulgation and Implementation of the Constitution'' [Zai shoudu gejie
jinian zhonghua renmingongheguo xianfa gongbu shixing ershi zhou nian
dahui de yanjiang], Guangming Daily (Online), 4 December 02 (``As a
result of problems with flawed laws and systems and the ill-adapted
quality of law enforcement personal, there remain many problems of laws
not being complied with, laws not being strictly enforced, and
violations of law not being prosecuted, and there continues to exist
some unconstitutional situations at different levels. We must
expeditiously study and implement constitutional supervision mechanisms
and further clarify constitutional supervision procedures in order to
redress all violations of the Constitution.'').
\64\ Ding Aiping and Fei Zhiming, ``Constitutional Review Takes A
Big Step Forward.''
\65\ Under the national Regulations on Letters and Visits (RLV),
citizens may ``give information, make comments or suggestions, or lodge
complaints'' to xinfang (letters and visits) bureaus of local
governments and their departments. Regulations on Letters and Visits
[Xinfang tiaoli], issued 10 January 05, arts. 3, 6. The Law on
Administrative Supervision allows citizens to file complaints of
illegal behavior of government officials with Ministry of Supervision
(MOS) officials. PRC Law on Administrative Supervision, enacted 9 May
97, art. 6. Party discipline bureaus handle similar accusations
regarding Party members' violation of Party discipline. Regulations on
Intra-Party Supervision [Dangnei jiandu tiaoli], issued 17 February 04,
arts. 8, 25-26. None of the above channels allows citizens to challenge
the underlying legality of regulations.
\66\ PRC Administrative Reconsideration Law, enacted 29 April 99,
arts. 6, 14. The Chinese administrative law system speaks in terms of
``concrete'' acts, which refer to actions by a government official or
agency against a specific target with regard to a specific matter.
``Abstract'' acts refer to universally binding documents issued by
administrative agencies to regulate behavior.
\67\ Ibid., art. 14; PRC Administrative Procedure Law, arts. 2, 11.
\68\ PRC State Compensation Law, enacted 12 May 94, art. 9.
\69\ Shaanxi Provincial Party Disciplinary Commission and Bureau of
Supervision (Online), ``Record of Jinhua Open Hearing of Party and
Government Disciplinary Violations'' [Jinhua gongkai shenli dangji
zhengji anjian jishi], 24 March 05.
\70\ Defined as ``regulatory documents below the level of rules''
[Guizhang yixiade guifanxing wenjian]. See National People's Congress
(Online), ``Explanation Regarding the Administrative Reconsideration
Law of the People's Republic of China'' [Zhonghua renmin gongheguo
xingzheng fuyi fa shiyi], 18 October 00. ``Rules'' are defined in
article 2 of the Regulation for Filing Local and Administrative Rules
[Fagui guizhang bei'an tiaoli], issued 14 December 01, as ``Those rules
[guizhang] formulated by State Council ministries and commissions, the
People's Bank of China, the Auditing Administration, and subordinate
agencies having executive administration capacity in accordance with
laws and State Council's administrative regulations [xinzheng fagui],
decisions, and orders within the scope of their authority pursuant to
the Regulation on the Procedures for the Formulation of Rules. Article
6 of the Regulation on the Procedures for the Formulation of Rules
[Guizhang zhiding chengxu tiaoli], issued 16 November 01, states that
the names of rules generally include ``provisions'' [guiding] and
``measures'' [banfa], but not ``regulations'' [tiaoli].
\71\ PRC Administrative Reconsideration Law, art. 7.
\72\ National People's Congress, ``Explanation Regarding the
Administrative Reconsideration Law.''
\73\ Legislative Affairs Office of the State Council (Online),
``2005 Analytical Report on Administrative Reconsideration and
Administrative Litigation in Hubei Province'' [2005 nian Hubei sheng
xingzheng fuyi ji xingzheng yingsu qingkuang fenxi de baogao], 29 March
06.
\74\ Ibid.
\75\ 2006 Supreme People's Court Work Report, 11 March 06; 1995 Law
Yearbook of China [1995 Zhongguo falu nianjian] (Beijing: China Law
Yearbook Press, 1995), 958.
\76\ Provisions on the Administration of Internet News Information
Services [Hulianwang xinwen xiaoxi fuwu guanli guiding], issued 25
September 05.
\77\ The groups claimed that the Provisions granting the SCIO the
authority to license Web sites violated article 35 of the Constitution,
and various provisions of the PRC Administrative Licensing Law, issued
27 August 03. ``Petition on Behalf of the Aegean Sea Web Site Et. Al.
to Repeal Rules on the Administration of Internet News Information
Services'' [Aiqinhai shijian weixian shencha shenqing daibiao tuan
deng], Signature Net, issued 28 March 06.
\78\ Decision of the State Council Establishing Administration
Examination and Approval Matters That Must Remain Subject to
Administrative Licensing [Guowuyuan dui quexu baoliu de xingzheng
shenpi xiangmu sheding xingzheng xuke de jueding daohang], issued 29
June 04.
\79\ PRC Administrative Reconsideration Law, art. 5.
\80\ PRC Administrative Procedure Law, art. 12(2) states that
``people's courts shall not accept actions initiated by citizens, legal
persons or other organizations concerning any of the following matters:
administrative rules and regulations, or decisions and orders with
general binding force formulated and promulgated by administrative
organs.'' PRC Administrative Reconsideration Law, art. 7 stipulates
that ``rules of departments and commissions under the State Council,
and local people's governments'' are excluded from administrative
reconsideration review.
\81\ PRC Administrative Procedure Law, arts. 52 and 53 state that,
in adjudicating administrative disputes, people's courts shall ``rely
upon'' national laws and State Council and local regulations, and shall
``refer to'' the rules of State Council ministries, commissions, and
local governments.
\82\ Wang Zhenmin, ``China's Constitutional Review System'' (``But
if the Legislation Law is strictly implemented, [Article 90] in fact
clearly negates the constitutional review power of the Supreme People's
Courts and the lower level courts, and requires that, if the Supreme
People's Court runs into a situation where a rule or regulation is
unconstitutional, it must temporarily suspend adjudication proceedings
and apply to the NPCSC to undertake constitutional review of the rule
or regulation . . . .'').
\83\ CECC, 2005 Annual Report, 95-98; Carl Minzner, ``Xinfang: An
Alternative to Formal Chinese Legal Institutions,'' 42 Stanford Journal
of International Law 103, 115-6 (2006).
\84\ Regulations on Letters and Visits, arts. 3, 6.
\85\ CECC, 2005 Annual Report, 95.
\86\ ``The Growth of Xinfang Cases Has Been Turned Back'' [Wo guo
xinfang zongliang chixu pansheng shitou huo ezhi shangfang geng quxiang
lixing], China National Radio (Online), 29 April 06.
\87\ SPC Work Report, 11 March 06. Note that since 2005, the SPC
work report has included ``executed'' (zhixing) cases in its annual
computations of judicial cases, raising the total numbers of cases
handled by the Chinese judiciary by 2 million a year. CECC, 2005 Annual
Report, 177, endnote 9.
\88\ Zhou Zhanshun, Director of the State Bureau of Letters and
Calls stated in a 2003 interview that the total number of petitions
received had risen regularly since 1993. ``Director of the State Bureau
for Letters and Calls: 80 Percent of Petitioners Are Justified,''
Outlook, reprinted in the China Internet Information Center (Online),
20 November 03. In 2006, Chinese authorities noted that the total
number of petitions had declined in 2005 for the first time in 12
years. ``The Growth of Xinfang Cases Has Been Turned Back,'' China
National Radio.
\89\ SPC Work Report, 11 March 06.
\90\ ``In the Past Three Months, Public Security Organs Have
Resolved 163,000 Xinfang Problems from the Masses'' [Guoqu 3 ge yue
gongan jiguan jiejue qunzhong xinfang wenti 16.3 wan qi], People's
Daily (Online), 18 August 06.
\91\ Provisions on the Letters and Visits Work of Public Security
Agencies [Gongan jiguan xinfang gongzuo guiding], issued 18 August 05,
arts. 8, 38(5).
\92\ ``Communist Party, State Council Order Stronger Controls Over
Society,'' CECC China Human Rights and Rule of Law Update, January
2006, 14-15. Party leaders have set a 2006 goal to decrease the number
of ``mass incidents'' such as strikes, marches, demonstrations, or
collective petitions directed at government authorities. Ibid.
\93\ ``Communist Party, State Council Order Stronger Controls Over
Society,'' CECC China Human Rights and Rule of Law Update, January
2006, 14-15.
\94\ ``The Growth of Xinfang Cases Has Been Turned Back,'' China
National Radio; ``In the Past Three Months, Public Security Agencies
Have Resolved 163,000 Xinfang Problems of the Masses,'' People's Daily.
\95\ ``The Growth of Xinfang Cases Has Been Turned Back,'' China
National Radio. Official statistics also report a 20.7 percent decline
in the number of collective petitions to national xinfang authorities
and a 22.5 percent decrease in the number of collective petitioners
approaching provincial xinfang authorities. Ibid. Chinese courts
recorded a 5 percent decline in the total number of petitions in 2005.
SPC Work Report, 11 March 06.
\96\ Reports state that authorities closed out 92.6 percent of
those received, and successfully resolved more than 90 percent of the
conflicts examined. ``A Look Back at the New Xinfang Regulations''
[``Xinfang tiaoli'': changtong youxu kai yanlu wushi gaoxiao jie min
you], People's Daily (Online), 2 May 06.
\97\ Zhao Ling, ``Xinfang Reform Triggers Controversy'' [Xinfang
gaige yinfa zhengyi], Southern Weekend (Online), 18 November 04.
\98\ Provisions on the Letters and Visits Work of Public Security
Agencies, arts. 8, 38(5).
\99\ Regulations on Letters and Visits, art. 6.
\100\ For example, the xinfang responsibility system adopted in
February 2006 by the Ningnan county government in Sichuan province
provides that local authorities receive a warning if 10 or more
petitioners from their jurisdiction collectively petition provincial or
higher authorities, if 20 or more petitioners collectively petition
prefectural authorities, or if 30 or more petitioners do so at the
county level. If petitioners present three or more collective petitions
within a year to provincial or national officials, local officials lose
eligibility for promotion or other awards. Ningnan County Party and
Government Xinfang Responsibility System [Zhonggong ningnan xian wei
ningnan xian renmin zhengfu guanyu luoshi xinfang gongzuo zeren zhi he
zeren zhuijiu zhi de shishi yijian], issued 27 February 06. See also
Implementation Details For The Municipal 2005-2007 Xinfang Evaluation
System [Guanyu yinfa ``2005-2007 nian quan shi jijian jiancha xinfang
jubao gongzuo mubiao guanli kaoping xize'' de tongzhi], issued 2 August
05; Lujiang County Trial Regulation on Implementing Xinfang
Responsibility System [Lujiang xian shixing xinfang gongzuo guocuo
zeren zhuijiu zhi de zanxing guiding], issued 9 December 05.
\101\ Minzner, ``Xinfang: An Alternative to Formal Chinese Legal
Institutions,'' 156-58, 172-74.
\102\ Human Rights Watch, ``China: Rampant Violence and
Intimidation Against Petitioners,'' 8 December 05.
\103\ Human Rights Watch, `` `We Could Disappear at Any Time'--
Retaliation and Abuses Against Chinese Petitioners,'' December 2005,
47.
\104\ ``Ministry of Public Security Issues Notice Regarding the
Situation of Preventing Serious Public Security Incidents, and Ensuring
the Supervision of Public Security'' [Gonganbu tongbao yufang zhongda
zhi'an zaihai shigu, baozhang gonggong anquan ducha qingkuang], China
Internet Information Center (Online), 2 March 06. See also ``Official
Discloses Use of Mass Roundups During NPC, CPPCC Sessions,'' CECC China
Human Rights and Rule of Law Update, April 2006, 5. At the same time,
Chinese authorities raided an area in Beijing where petitioners live
and detained more than 400 people. Ibid.
\105\ ``U.S. NGO Reports That Official Abuse of Petitioners Is
Rampant in China,'' CECC China Human Rights and Rule of Law Update,
January 2006, 7-8.
\106\ ``Supreme People's Court To Strengthen Handling of Citizen
Petitions by Trial Judges,'' CECC China Human Rights and Rule of Law
Update, December 2005, 6.
\107\ The 2005 Regulations on Letters and Visits require county-
level and township governments to establish ``leadership reception
days'' where petitioners may individually approach government leaders
regarding the resolution of their grievances. Regulations on Letters
and Visits, art. 10. The regulations also require local governments to
adopt responsibility systems that make officials' success in handling
these petitions a component of their regular performance evaluations.
Ibid, art. 7.
\108\ ``Supreme People's Court to Strengthen Handling of Citizen
Petitions by Trial Judges,'' CECC China Human Rights and Rule of Law
Update, December 2005, 6.
Notes to Section VII(d)--Commercial Rule of Law and the Impact of
the WTO
\1\ U.S. Department of State (Online), ``U.S.-China Trade Lacks
`Balance in Opportunity,' Official Says,'' 4 April 06.
\2\ English, French, and Spanish. Includes all laws, regulations,
and measures pertaining to or affecting trade in goods, services,
trade-related aspects of intellectual property rights, or the control
of foreign exchange.
\3\ World Trade Organization, Report of the Working Party on the
Accession of China, WT/MIN(01)/3, 10 November 01, para. 334.
\4\ Ibid., para. 332; World Trade Organization, Protocol on the
Accession of the People's Republic of China, WT/L/432, 23 November 01,
para. 2(C)2.
\5\ Ibid.
\6\ U.S. Department of State, ``U.S.-China Trade Lacks `Balance in
Opportunity,' Official Says,'' 4 April 06.
\7\ World Trade Organization, Committee on Import Licensing: Report
to the Council for Trade in Goods on China's Transitional Review, G/
LIC/14, 2 November 05. para. 3.10 (citing the representative of China
as saying that, while all the procedures and requirements relating to
TRQ administration were available on the Ministry of Commerce and
National Development and Reform Commission Web sites, owing to huge
resource restraints and language difficulties it was difficult for his
authorities to have all procedures and requirements in English and make
them available on the Web sites).
\8\ Coalition of Service Industries, Letter to USTR and Department
of Commerce Regarding 2006 JCCT Plenary, 21 March 06; CECC Staff
Interview.
\9\ Circular Regarding Further Carrying Out the Work Relating to
Implementing Transparency Provisions of China's World Trade
Organization Protocol [Guanyu jinyibu zuohao luxing wo guo jiaru shijie
maoyi zuzhi yidingshu toumingdu tiaokuan xiangguan gongzuo de tongzhi],
issued 30 March 06. When China acceded to the WTO, it stated that the
``full listing of official journals'' was as follows: Gazette of the
Standing Committee of the National People's Congress of the People's
Republic of China; Gazette of the State Council of the People's
Republic of China; Collection of the Laws of the People's Republic of
China; Collection of the Laws and Regulations of the People's Republic
of China; Gazette of MOFTEC of the People's Republic of China;
Proclamation of the People's Bank of the People's Republic of China;
and Proclamation of the Ministry of Finance of the People's Republic of
China. World Trade Organization, Report of the Working Party on the
Accession of China, Schedule CLII, Part II--Schedule of Specific
Commitments on Services List of Article II MFN Exemptions, WT/MIN(01)/
3/Add.2, 10 November 01, para. 330. MOFCOM first began issuing the
Bulletin in November 2002.
\10\ MOFCOM has made its Gazette available at the following URL:
http://www.mofcom.gov.cn/static/column/b/g.html/1.
\11\ Hearing of the U.S.-China Economic and Security Review
Commission, 5 February 04, Testimony of James J. Jochum, Assistant
Secretary of Commerce for Import Administration.
\12\ Agreement on Subsidies and Countervailing Measures, 15 April
94; Marrakesh Agreement Establishing the World Trade Organization,
arts. 25.1 and 25.9.
\13\ U.S. Department of State, ``U.S.-China Trade Lacks `Balance In
Opportunity,' Official Says,'' 4 April 06.
\14\ World Trade Organization, Committee on Subsidies and
Countervailing Measures--Subsidies: China Notification Pursuant to
Article XVI:1 of the GATT 1994 and Article 25 of the SCM Agreement, G/
SCM/N/123/CHN, 13 April 06.
\15\ ``Senior Official Credits WTO Accession for Advancing
Transparency,'' CECC China Human Rights and Rule of Law Update,
November 2005, 8; ``Giving the Public Open Access,'' Beijing Review
(Online), 13 October 05.
\16\ ``Changzhou City Government Adopts WTO-Inspired Transparency
Measure,'' CECC China Human Rights and Rule of Law Update, January
2006, 8; ``Changzhou: No Effect for Unpublicized Laws'' [Changzhou: bu
gongbu de zhengce guifan bu neng shengxiao], Legal Daily (Online), 8
December 05; Circular Regarding the Program To Submit Proposals to the
City Government's 2006 Plan for Drafting Regulatory Documents [Guanyu
baosong shi zhengfu 2006 nian zhiding guifanxing wenjian jihua jianyi
xiangmu de tongzhi], issued 7 November 05.
\17\ ``China Clamped Down on Rampant Piracy Last Year,'' Xinhua
(Online), 10 March 06.
\18\ Office of the U.S. Trade Representative, 2006 National Trade
Estimate Report on Foreign Trade Barriers, 31 March 06.
\19\ Office of the U.S. Trade Representative, 2006 Special 301
Report, 28 April 06.
\20\ U.S. Department of State, ``U.S. Boosting IPR Enforcement in
China, Commerce Official Says,'' 10 March 06.
\21\ ``China's Piracy Crackdown Praised,'' Reuters (Online), 30
March 06.
\22\ ``China Vows To Bar Software Piracy,'' International Herald
Tribune (Online), 27 March 06. See also, ``US-China Meet Could Yield
Some Progress on Piracy,'' Reuters (Online), 11 April 06. A Chinese
government-backed study claimed that only 26 percent of the software
packages installed on computers in China in 2005 were illegal, pirated
copies. ``Twenty-six Percent of China's Software Illegal,'' China Daily
(Online), 18 May 06.
\23\ Office of the U.S. Trade Representative, 2006 Special 301
Report, 28 April 06.
\24\ Motion Picture Association of America, Inc., ``Comprehensive
Snapshot of Film Theft Provides International Anti-Piracy Roadmap,'' 3
May 06.
\25\ ``Hollywood Urges China Reforms Before Olympics,'' Reuters
(Online), 13 December 05.
\26\ Office of the U.S. Trade Representative, 2006 National Trade
Estimate Report on Foreign Trade Barriers, 31 March 06.
\27\ Office of the U.S. Trade Representative, China Top-to-Bottom
Review, 1 February 06.
\28\ Office of the U.S. Trade Representative, 2005 Report to
Congress on China's WTO Compliance, 11 December 05.
\29\ ``China Results Mixed in Antipiracy Efforts,'' Variety
(Online), 26 October 05.
\30\ ``Ministry of Public Security Targets Intellectual Property
Infringement with Remarkable Success'' [Quanguo gongan jiguan daji
qinfan zhishi chanquan fanzui chengxiao xianzhu], Xinhua (Online), 15
November 05; ``Major Headway Made in IPR Protection,'' China Daily
(Online), 28 March 06.
\31\ World Trade Organization, Report to the General Council by the
Chair, Council for Trade-Related Aspects of Intellectual Property
Rights, IP/C/39, 21 November 05, para. 8.
\32\ ``Ministry of Public Security: Inspection Reveals 200 Illegal
Optical Disc Production Lines Are from United States and Europe''
[Gonganbu: chahuo de 200 tiao feifa guangpan shengchanxian jun laizi
Oumei], People's Daily (Online), 17 November 05.
\33\ ``US Exaggerates IPR Violations: Experts,'' Xinhua (Online), 4
March 06.
\34\ State Council Information Office (Online), ``State Council
Information Office Holds Press Conference To Discuss Strengthening of
Intellectual Property Rights Administrative Law Enforcement'' [Guo
xinban jiu jiaqiang zhishi chanquan xingzheng zhifa deng qingkuang
juxing fabuhui], 27 March 06 (quoting Gong Zheng, deputy director of
the General Administration of Customs).
\35\ According to China's state-run media, Chinese authorities
destroyed 106 million pirated discs and books in 2005. ``Major Headway
Made in IPR Protection,'' China Daily (Online), 28 March 06. Between
September 2004 and September 2005 Chinese authorities handled over
50,000 infringement cases with fines of up to 376 million yuan
(US$46.36 million). During that period authorities seized over 50
million illegal audio-visual products and 19,000 illegal businesses
were closed down, in addition to handling 3,176 cases of counterfeit
patents. ``Chinese State Council IP Office Director Touts China's IP
Protection Effort,'' Xinhua (Online), 3 November 05.
\36\ ``United States and China Conclude Annual Bilateral Trade
Meeting,'' CECC Human Rights and Rule of Law Update, May 2006, 14. In
April 2006, the Ministry of Information Industry, National Copyright
Administration, and Ministry of Commerce jointly issued a circular
requiring all computers manufactured and sold in China to have
legitimate copies of an operating system installed before they reach
consumers. Circular Regarding Certain Issues Relating to the Pre-
installation of Computer Operating System Software [Guanyu jisuanji yu
zhuang zhengban caozuo xitong ruanjian youguan wenti de tongzhi],
issued 6 April 06. Between January and April 2006, the government
investigated 48 optical disc-copying enterprises, and found 14 were
operating illegally. It rescinded six licenses and ordered eight
enterprises to shut down and ``make adjustments.'' ``China Punishes 14
Companies for Illegal Disc Copying,'' People's Daily (Online), 27 March
06.
\37\ Examples include: Trademark Examination Rules [Shangbiao
pingshen guize], issued 26 September 05; Interpretation of Relevant
Issues of Handling Criminal Cases of Infringing Upon Copyright
Concerning Audio-visual Fixation [Guanyu banli qinfan zhuzuoquan
xingshi anjian zhong sheji luyin luxiang zhipin you guan wenti de
pifu], issued 13 October 05; Working Plan for Regional Punishment
Campaign To Strike Hard Against Illegal Piracy Conduct [Yanli daji
qinquan daoban weifa fanzui huodong quyuxing zhengzhi xingdong gongzuo
fangan], issued 28 October 05; Regulations on the Administration of
Entertainment Venues [Yulechangsuo guanli tiaoli], issued 29 January 06
(banning pirated products for commercial use in these places); Measures
on the Resolution of Domain Name Disputes [Yuming zhengyi jiejue
banfa], issued 14 February 06. In November 2005, the State Intellectual
Property Office announced that it had commenced work on the third
amendment to China's Patent Law. ``Patent Law Reform Set in Motion,''
China Daily (Online), 24 November 05.
\38\ Ministry of Commerce (Online), ``China's Action Plan on IPR
Protection 2006'' [2006 Zhongguo baohu zhishi chanquan xingdong jihua],
8 March 06.
\39\ Regulation on the Protection of Network Information
Broadcasting Rights [Xinxi wangluo chuanboquan baohu tiaoli], issued 10
May 06; ``China Vows To Better Protect Copyright on Internet,'' Xinhua
(Online), 31 May 06.
\40\ ``Vice Premier, Senior Official Say China Moving to Join WIPO
Internet Treaties,'' CECC Human Rights and Rule of Law Update, May
2006, 14; ``Liu Binjie: China To Enter Into WTO Internet Treaties in
Second Half of Year'' [Liu Binjie: Zhonguo jiangyu xiabannian jiaru
guoji hulianwang gongyue], Xinhua (Online), 12 April 06; U.S.
Department of Commerce, Press Conference with Gutierrez and Wu Yi at
the Annual Meeting of the U.S.-China Joint Commission on Commerce and
Trade, 11 April 06.
\41\ ``Supreme Court Publicizes and Seeks a Review of Four Draft
Interpretations'' [Zuigaofa jiu si ge sifa jieshi gao gongkai zhengqiu
yijian], Xinhua (Online), 21 November 05. See Interpretation Regarding
Certain Laws To Be Used in Adjudicating Disputes Relating to Music
Television Copyright Civil Disputes (Draft for Comment) [Guanyu shenli
sheji yinyue dianshi zhuozuoquan minshi jiufen anjian sheyong falu
ruogan wenti de jieshi (zhengqiu yijian gao)], issued 18 November 05;
Interpretation Regarding Certain Laws To Be Used in Adjudicating
Disputes Relating to Unfair Competition Civil Disputes (Draft for
Comment) [Guanyu shenli bu zhengdang jingzheng minshi jiufen anjian
sheyong falu ruogan wenti de jieshi (zhengqiu yijian gao)], issued 18
November 05; Interpretation Regarding Certain Laws To Be Used in
Adjudicating Disputes Relating to Intellectual Property Rights
Conflicts Civil Disputes (Draft for Comment) [Guanyu shenli sheji
zhishi chanquan quanli chongtu minshi jiufen anjian sheyong falu ruogan
wenti de jieshi (zhengqiu yijian gao)], issued 18 November 05; and
Interpretation Regarding Certain Laws To Be Used in Adjudicating
Disputes Relating to Plant Variety Rights Infringement Disputes (Draft
For Comment) [Guanyu shenli qinfan zhiwu xinpin zhong quan jiufen
anjian sheyong falu ruogan wenti de jieshi (zhengqiu yijian gao)],
issued 18 November 05. The comment period concluded in March 2006.
``SPC Strengthens Judicial Interpretation Work in Intellectual Property
Adjudication'' [Zuigao fayuan jiaqiang zhishi chanquan shenpan sifa
jieshi gongzuo], China Court Net (Online), 10 March 06.
\42\ Office of the U.S. Trade Representative, 2006 Special 301
Report, 28 April 06.
\43\ Office of the U.S. Trade Representative, The U.S.-China Joint
Commission on Commerce and Trade (JCCT), Outcomes On Major U.S. Trade
Concerns, 11 July 05.
\44\ ``Major Headway Made in IPR Protection,'' China Daily
(Online), 28 March 06.
\45\ Office of the U.S. Trade Representative, 2006 Special 301
Report, 28 April 06.
\46\ PRC Criminal Law, enacted 1 July 79, amended 14 March 97, 1
October 97, 25 December 99, 31 August 01, 29 December 01, 28 December
02, arts. 213--20. U.S. Chamber of Commerce, The AmCham-China White
Paper: American Business in China, 16 May 05, 48 (``The most glaring
deficiency in the current IPR regime is the one key law not revised
when China joined the WTO-- its criminal code. This should be revised
to provide stronger protection, enhanced penalties and further
clarification of standards.'').
\47\ Office of the U.S. Trade Representative, 2006 Special 301
Report, 28 April 06. See also, ``IPR Protection in 2005,'' China Daily
(Online), 28 March 06.
\48\ Agreement on Trade-Related Aspects of Intellectual Property
Rights, Marrakesh Agreement Establishing the World Trade Organization,
15 April 94, art. 61.
\49\ ``IPR Judicial System in Need of Review, Says Legal Expert,''
China Daily (Online), 16 February 06.
\50\ Office of the U.S. Trade Representative, 2006 Special 301
Report, 28 April 06.
\51\ See, e.g., ``First Instance Court Decision Made on Major
Intellectual Property Rights Violation Case of `Counterfeiting the
Registered Trademark of the American Cisco Technology, Inc.' ''
[``Jiamao Meiguo sike gongsi zhuce shangbiao an'' yi shen panjue],
Xinhua (Online), 29 August 05; Ministry of Commerce, 2005-2006 Awards
for Best Cases of IPR Protection [2005-2006 niandu zhishi chanquan
baohu zuijia anli jiang], 12 April 06.
\52\ ``U.S. Companies to Test China's Criminal IPR Enforcement
Regime,'' Inside U.S.-China Trade (Online), 21 September 05.
\53\ Interpretation Concerning Certain Questions of Using the
Criminal Law To Handle Violations of Intellectual Property Rights
[Guanyu banli qinfan zhishichanquan xingshi anjian juti yingyong falu
ruogan wenti de jieshi], issued 8 December 04.
\54\ Office of the U.S. Trade Representative, 2006 Special 301
Report, 28 April 06.
\55\ U.S. Chamber of Commerce, China's WTO Implementation and Other
Issues of Importance to American Business in the U.S.-China Commercial
Relationship, September 05, 36.
\56\ World Trade Organization, Communication from the United States
to China, Council for Trade-Related Aspects of Intellectual Property
Rights, IP/C/W/453, 5 October 05.
\57\ World Trade Organization, Report to the General Council by the
Chair, Council For Trade-Related Aspects of Intellectual Property
Rights, IP/C/39, 21 November 05.
\58\ Opinion Regarding the Timely Transfer of Cases in
Administrative Enforcement That Are Suspected of Involving Crimes
[Guanyu zai xingzheng zhifa zhong jishi yisong shexian fanzui anjian de
yijian], issued 27 March 06.
\59\ Ibid.; Temporary Provisions Regarding Strengthening Linkages
and Cooperation During Striking Criminal Copyright Violation Work
[Guanyu zai daji qinfan zhuzuoquan weifa fanzui gongzuo zhong jiaqiang
xianjie peihe de zanxing guiding], issued 20 March 06; Temporary
Provisions Regarding Strengthening Linkages and Cooperation During
Striking Criminal Trademark Exclusivity Violation Work [Guanyu daji
qinfan shangbiao zhuanyongquan weifa fanzui gongzuo zhong jiaqiang
xianjie peihe de zanxing guiding], issued 13 January 06; and Temporary
Provisions Regarding Strengthening Intellectual Property Law
Enforcement Cooperation [Guanyu jiaqiang zhishi chanquan zhifa xiezuo
de zanxing guiding], issued 24 March 06. The agencies were the Ministry
of Supervision, State Administration of Industry and Commerce, National
Copyright Administration, and General Administration of Customs.
\60\ Office of the U.S. Trade Representative, 2006 Special 301
Report, 28 April 06.
\61\ Ibid.; ``Legal Experts Say IPR Judicial System in Need of
Review,'' China Daily (Online), 16 February 06; ``Piracy Has No Place
in China's Hi-Tech Dream,'' South China Morning Post (Online), 12
January 06.
\62\ ``Starbucks Wins China Trademark Fight,'' Associated Press,
reprinted in International Herald Tribune (Online), 2 January 06. See
also, ``Hennessy Wins China Piracy Case,'' BBC (Online), 30 November
05.
\63\ ``Viagra Ruling in Beijing Lifts Foreign Firms' Hopes,'' Wall
Street Journal (Online), 5 June 06. Twelve Chinese drug companies
appealed the verdict. ``Chinese Firms Appeal Ruling Over Viagra,''
China Daily (Online), 20 June 06.
\64\ ``Fight on Piracy Is for China's Own Good, Says Official,''
Reuters (Online), 23 February 06.
\65\ ``Yearender: China To Strengthen IPR Protection To Encourage
Innovation,'' Xinhua, reprinted in People's Daily (Online), 27 December
05.
\66\ Organization for Economic Co-operation and Development, ``OECD
Finds That China Is Biggest Exporter of Information Technology Goods in
2004, Surpassing US and EU,'' 12 December 05. Includes computers,
mobile phones, and digital cameras.
\67\ ``China Overtakes U.S. As Tech Supplier,'' International
Herald Tribune (Online), 12 December 05 (stating that ``Figures from
the Chinese Ministry of Commerce show that companies that had received
overseas investment accounted for almost 90 percent of 2004 exports of
high technology products.''). See also ``Learning from China's Export
Boom,'' Business Week, 19 January 06 (Roughly 60 percent of exports are
made by foreign-invested enterprises, and the percentage progressively
rises with the technology level.).
\68\ ``First Chinese IT Company with Independent IPR Appears on
NASDAQ,'' Xinhua, reprinted in People's Daily (Online), 11 November 05.
\69\ ``A Realistic View Into the IPR Issue: Comment,'' People's
Daily (Online), 29 March 06; ``China To Continue Efforts in Combating
Piracy, FM Spokesman,'' Xinhua, reprinted in People's Daily (Online),
23 February 06.
\70\ Intellectual Property Protection as Economic Policy: Will
China Ever Enforce Its IP Laws?, Staff Roundtable of the Congressional-
Executive Commission on China, 16 May 05, Testimony of Daniel C.K.
Chow. See also, ``Copyright Forum Hears of Advances and Failures,''
South China Morning Post (Online), 27 April 06 (quoting Yan Xiaohong,
deputy commissioner of the National Copyright Administration, as
saying: ``Local protectionism has resulted in rampant piracy and
counterfeiting, which tainted the country's international image.'').
\71\ Regulations on the Protection of the Olympic Symbol [Aolinpike
biaozhi baohu tiaoli], issued 4 February 02.
\72\ ``Yes, Beijing Can Stop Counterfeiters,'' Newsweek (Online),
10 January 06. Another example is the Chinese government's repression
of the Falun Gong spiritual movement. Before the state banned Falun
Gong in 1999, the spiritual group's materials were found throughout
China. Since the crackdown, the only publicly available materials in
China that discuss Falun Gong are anti-Falun Gong materials published
by the government.
\73\ International Trade Commission, Recent Trends in U.S. Services
Trade: 2006 Annual Report, June 06.
\74\ Ibid.
\75\ ``China's Banking Industry Enters Global Integration,'' China
Daily (Online), 20 December 04.
\76\ World Trade Organization, Report of the Working Party on the
Accession of China, Schedule CLII, Part II--Schedule of Specific
Commitments on Services List of Article II MFN Exemptions, WT/MIN(01)/
3/Add.2, 10 November 01.
\77\ Ibid.
\78\ The schedule required the Chinese government to permit foreign
banks to conduct local currency business in Shantou, Ningbo, Shenyang,
and Xi'an by December 2005. The government opened the latter two cities
in December 2004, and the former two and Harbin, Changchun, Lanzhou,
Yinchuan and Nanning in December 2005. World Trade Organization,
Secretariat Report--Trade Policy Review: China, WT/TPR/S/161, 28
February 06, para. 179.
\79\ Public Notice Regarding Further Opening Up China's Banking
Industry [Guanyu jin yi bu duiwai kaifang yinhangye xiangguan shixiang
de gonggao], issued 8 December 05, art. 2.
\80\ Office of the U.S. Trade Representative, 2006 National Trade
Estimate Report on Foreign Trade Barriers, 31 March 06.
\81\ Measures Governing Foreign Debts of Domestic Foreign Funded
Banks [Jingnei waizi yinhang waizhai guanli banfa], issued 27 May 04;
Robert Vastine (President of the Coalition of Service Industries),
Statement to the Trade Policy Staff Committee, U.S. Trade
Representative, 14 September 05.
\82\ PRC Commercial Bank Law, issued 10 May 95, amended 27 December
03, art. 13.
\83\ Detailed Rules for the Implementation of the Regulations on
the Administration of Foreign-funded Financial Institutions [Waizi
jinrong jigou guanli tiaoli shishi xize], issued 26 July 04, arts. 31-
36.
\84\ Regulations on the Administration of Financial Institutions
with Foreign Investment [Waizi jinrong jigou guanli tiaoli], issued 12
December 01, arts. 6 and 8. US$20 billion in the case of foreign bank
branch.
\85\ Ibid., art. 6. The Chinese government has stated it will waive
the representative office requirement for foreign banks that directly
apply for the establishment of operational branches in western China
(Shaanxi, Gansu, Qinghai, Sichuan, Yunnan, and Guizhou provinces,
Chongqing municipality, and the Ningxia Hui, Xinjiang Uighur, and Tibet
Autonomous Regions). ``China Announces New Policies to Encourage
Foreign Banks to Enter Western Regions,'' Xinhua, reprinted in People's
Daily (Online), 22 September 05.
\86\ Detailed Rules for the Implementation of the Regulations on
the Administration of Foreign-Funded Financial Institutions, arts. 31.
\87\ PRC Commercial Bank Law, arts. 19-20.
\88\ Detailed Rules for the Implementation of the Regulations on
the Administration of Foreign-Funded Financial Institutions, art. 17.
\89\ Regulations on the Administration of Financial Institutions
with Foreign Investment, art. 7. US$20 billion in the case of a foreign
bank branch.
\90\ Measures on the Administration of Foreign Financial
Institutions Taking Equity Stakes in Chinese Invested Financial
Institutions [Jingwai jinrong jigou touzi rugu zhong zijin jinrong
jigou guanli banfa], 8 December 03, arts. 8 and 9.
\91\ ``Citigroup Expected To Land China Deal,'' New York Times
(Online), 31 December 05.
\92\ ``China Cap on Foreign Investment in Banks May Change Soon--
Central Huijin,'' Forbes (Online), 22 June 06; ``China May Raise Caps
on Banks,'' Wall Street Journal (Online), 23 June 06; ``China Govt
Official: Studying Easing Bank Investment Cap,'' Wall Street Journal
(Online), 21 April 06. But see also, ``China Bank Investment Caps To
Stay: Regulator,'' Reuters (Online), 21 April 06; ``Official: Opening
up Further to Foreign Banks To Have `Big Impact' on PRC Banks,'' China
Daily (Online), 9 March 06 (citing Shi Jiliang, Vice Chairman of the
China Banking Regulatory Commission, as saying that China will continue
to limit foreign banks' investment to two domestic banks because
strategic investors ``do not need too many partners,'' and that current
restrictions on foreign investment in local banks are appropriate and
will probably not be changed before the end of 2006).
\93\ ``China CBRC Says Guandong Devt Deal Will Not Be Exempt from
Foreign Stake Rules,'' Forbes (Online), 19 April 06.
\94\ ``Foreign Investors' Bank Bid Left Hanging,'' China Daily
(Online), 25 April 06.
\95\ ``Hope for a Breakthrough in the Guangdong Development Bank
Reorganization Deadlock,'' Ta Kung Pao (Online), 12 July 06.
\96\ Office U.S. Trade Representative, 2005 Report to Congress on
China's WTO Compliance, 11 December 05.
\97\ World Trade Organization, Report of the Working Party on the
Accession of China, Schedule CLII, Part II --Schedule of Specific
Commitments on Services List of Article II MFN Exemptions, WT/MIN(01)/
3/Add.2, 10 November 01.
\98\ Office of the U.S. Trade Representative, 2004 Report to
Congress on China's WTO Compliance, 11 December 04.
\99\ Public Notice Regarding Implementation of WTO Accession
Commitments [Guanyu luxing rushi chengnuo de gonggao], issued 11
December 04.
\100\ Ibid.
\101\ World Trade Organization, Secretariat Report--Trade Policy
Review: China, WT/TPR/S/161, 28 February 06, para. 190.
\102\ Regulation on the Administration of Foreign-Funded Insurance
Companies [Waizi baoxian gongsi guanli tiaoli], issued 5 December 01.
\103\ U.S. Department of State (Online), Jon Shaffer, ``Huge
Unrealized Opportunities Remain in China's Services Sectors,'' 6 May
05.
\104\ ``China Approves 40 Overseas Insurers,'' Xinhua (Online), 2
March 06.
\105\ ``AIA Receives Approvals To Conduct Group Insurance Business
in China,'' American International Group Press Release, 26 May 06;
``AIG Subsidiaries Receive Approvals from Chinese Regulators for
Guangdong and Jiangsu Provincial Expansion,'' American International
Group Press Release, 15 May 06.
\106\ ``Schumer Delays Schwab USTR Confirmation Over China Trade
Complaint,'' China Trade Extra (Online), 26 May 06.
\107\ Jon Shaffer, ``Huge Unrealized Opportunities Remain in
China's Services Sectors.''
\108\ Rules for Establishment of Securities Companies with Foreign
Equity Participation [Waizi cangu zhengquan gongsi jianli guize],
issued 1 June 02, art. 10; Measures for the Administration of
Securities Investment Fund Management Companies [Zhengquan touzi jijin
guanli gongsi guanli banfa], issued 12 August 04, art. 10; Circular
Regarding Certain Questions Regarding the Implementation of the
``Measures for the Administration of Securities Investment Fund
Management Companies'' [Guanyu shishi ``Zhengquan touzi jijin guanli
gongsi guanli banfa'' ruogan wenti de tongzhi], issued 21 September 04,
art. 1(7).
\109\ Rules for Establishment of Securities Companies with Foreign
Equity Participation [Waizi cangu zhengquan gongsi jianli guize],
issued 1 June 02, art. 5.
\110\ ``Joint Venture Securities Companies Enter the A-Share
Business'' [Hezi quanshang jieru A gu yewu], Shanghai Securities
Report, reprinted in State Council Information Office (Online), 13
December 02; Office of the U.S. Trade Representative, 2005 National
Trade Estimate Report on Foreign Trade Barriers, 30 March 05.
\111\ World Trade Organization, Report of the Working Party on the
Accession of China, Schedule CLII, Part II--Schedule of Specific
Commitments on Services List of Article II MFN Exemptions, WT/MIN(01)/
3/Add.2, 10 November 01.
\112\ Securities and Exchange Commission (Online), ``SEC and CSRC
Announce Terms of Reference for Enhanced Dialogue,'' 2 May 06.
\113\ Transparency International, Corruption Perceptions Index
2005, 18 October 05.
\114\ At a December 2005 meeting of Asian and European prosecutors
in Shenzhen, Deputy Procurator General Wang Zhenchuan said that
procuratorates nationwide prosecuted and punished 50,000 corrupt
officials from 2003 to 2005. ``50,000 Officials Punished in Anti-
Corruption Campaign,'' Xinhua (Online), 11 December 05. In 2005,
Chinese news media reported on ``China's biggest political scandal,''
in which more than 260 government officials were alleged to have
connections with Ma De, a senior official in Heilongjiang province
convicted in July 2005 for taking bribes. ``Official on Trial for
Selling High-level Jobs,'' China Daily (Online), 23 March 05.
\115\ An inter-governmental body established by the G-7 nations in
1989 to develop and promote national and international policies to
combat narcotics trafficking-related money laundering and terrorist
financing.
\116\ ``China Ratifies UN Convention against Corruption,'' Xinhua
(Online), 27 October 05.
\117\ ``Government Considering New Anti-Money Laundering
Regulations to Address Corruption, Improve Commercial Environment,''
CECC Human Rights and Rule of Law Update, June 2006, 16-17; ``New Rules
against Money Laundering Proposed,'' Xinhua (Online), 13 April 06;
Anti-Money Laundering Provisions for Insurance Financial Organizations
(Draft for Soliciting Opinions) [Baoxianye jinrong jigou fan xiqian
guiding (zhengqiu yijian gao)], issued 12 April 06; Anti-Money
Laundering Provisions for Securities and Commodities Financial
Organizations (Draft for Soliciting Opinions) [Zhengquan, qihuoye
jinrong jigou fan xiqian guiding (zhengqiu yijian gao)], issued 12
April 06. Anti-Money Laundering Provisions for Banking and Financial
Organizations (Draft for Soliciting Opinions) [Yinhangye jinrong jigou
fan xiqian guiding (zhengqiu yijian gao)], issued 12 April 06.
\118\ Measures on Implementing the Items Subject to Administrative
Licensing for China-Funded Commercial Banks [Zhongzi shangye yinhang
xingzheng xuke shixiang shishi banfa], issued 12 January 06, art. 7(4).
See also, ``China Sets New Bank Rules,'' Wall Street Journal (Online),
24 February 06.
\119\ World Trade Organization, Report of the Working Party on the
Accession of China, Schedule CLII, Part II--Schedule of Specific
Commitments on Services List of Article II MFN Exemptions, WT/MIN(01)/
3/Add.2, 10 November 01.
\120\ World Trade Organization, Report of the Working Party on the
Accession of China, Schedule CLII, Part II--Schedule of Specific
Commitments on Services List of Article II MFN Exemptions, WT/MIN(01)/
3/Add.2, 10 November 01; Office of the U.S. Trade Representative, 2006
National Trade Estimate Report on Foreign Trade Barriers, 31 March 06,
133.
\121\ For example, the Measures on the Administration of Foreign-
Invested Book, Magazine, and Newspaper Distribution Enterprises
[Waishang tuozi tushu, baozhi, qikan fenxiao qiye guanli banfa], issued
17 March 03; and the Measures on the Management of Foreign Investment
in the Commercial Sector [Waishang touzi shangye lingyu guanli banfa],
issued 16 April 04.
\122\ For example, the Measures on the Administration of the
Subscription of Imported Publications [Ding hu ding gou jinkou chubanwu
guanli banfa], issued 31 December 04; Certain Opinions Regarding the
Introduction of Foreign Investment Into the Cultural Domain [Guanyu
wenhua lingyu yinjin waizi de ruogan yijian], issued 6 July 05. See,
Office of the U.S. Trade Representative, 2005 Report to Congress on
China's WTO Compliance, 11 December 05; ``Moving Forward on
Distribution,'' China Business Review (Online), September-October 2005.
\123\ Catalogue for the Guidance of Foreign Investment Industries
[Waishang touzi chanye zhidao mulu], issued 30 November 04, Part
3(VIII)(2). It also included in the ``prohibited'' category news
agencies and television program production.
\124\ Office of the U.S. Trade Representative, 2005 Report to
Congress on China's WTO Compliance, 11 December 05.
\125\ Decision of the State Council Establishing Administration
Examination and Approval Matters That Must Remain Subject to
Administrative Licensing [Guowuyuan dui xu baoliu de xingzheng shenpi
xiangmu sheding xingzheng xuke de jueding daohang], issued 29 June 04.
\126\ U.S. Chamber of Commerce, The AmCham-China White Paper:
American Business in China, 16 May 05, 126; Office of the U.S. Trade
Representative, 2006 National Trade Estimate Report on Foreign Trade
Barriers, 31 March 06, 133.
\127\ Measures for Administering the Release of News and
Information in China by Foreign News Agencies [Waiguo tongxunshe zai
zhongguo jingnei fabu xinwen xinxi guanli banfa], issued 10 September
06.
\128\ Michael Connolly, ``Beijing Curbs Media to Protect Their
Rights?, '' Wall Street Journal (Online), 11 September 06.
\129\ U.S. Chamber of Commerce, China's WTO Implementation and
Other Issues of Importance to American Business in the U.S.-China
Commercial Relationship, September 2005, 39.
\130\ World Trade Organization, WTO Communication from the United
States to China, Council for Trade-Related Aspects of Intellectual
Property Rights, IP/C/W/453, 5 October 05.
\131\ World Trade Organization, Report to the General Council by
the Chair, Council for Trade-related Aspects of Intellectual Property
Rights, IP/C/39, 21 November 05.
\132\ The Internet in China: A Tool for Freedom or Suppression?,
Hearing of the Committee on International Relations, U.S. House of
Representatives, Testimony of Elliot Schrage, Vice President, Global
Communications and Public Affairs, Google Inc., 15 February 06.
\133\ Ibid., Testimony of Jack Krumholtz, Associate General Counsel
and Managing Director, Federal Government Affairs, Microsoft
Corporation.
\134\ Ibid., Testimony of Michael Callahan, Senior Vice President
and General Counsel, Yahoo!.
\135\ ``Murdoch Says News Corp. Has Hit `Brick Wall' in China,''
Bloomberg News (Online), 19 September 05.
\136\ ``Government Regulators Block Foreign Access to China's Media
Market,'' CECC Human Rights and Rule of Law Update, October 2005, 9;
``New SARFT Rules Further Restrict Cooperation and Interaction Between
Domestic Radio and Television Stations and Foreign Counterparts,'' CECC
Human Rights and Rule of Law Update, August, 2005, 4; Notice Regarding
Further Strengthening the Administration of Radio and Television
Channels [Guanyu jin yi bu jiaqiang guangbo dianshi pindao guanli de
tongzhi], issued 4 August 05 (stipulating that to preserve the
government's ability ``to make final decisions regarding the contents
of propaganda,'' and that ``controlling shares in radio and television
stations must be in the hands of the government, and non-government
investors may not participate in editorial decisions.''); Certain
Opinions Regarding the Introduction of Foreign Investment into the
Cultural Domain [Guanyu wenhua lingyu yinjin waizi de ruogan yijian],
issued 6 July 05; ``Five Government Agencies Formulate the `Certain
Opinions Regarding the Introduction of Foreign Investment Into the
Cultural Domain' '' [5 bu wei zhiding ``guanyu wenhua lingyu yinjin
waizi de ruogan yijian''], Xinhua (Online), 4 August 05 (stating that
the ``Certain Opinions'' document ``prohibits foreign businesses from
investing in businesses that engage in book, magazine, or newspaper
publishing, distribution, or importation, businesses that publish,
produce, distribute, or import audio-visual products and electronic
publications, as well as businesses that utilize information networks
to launch audio-visual programming services, news Web sites, and
Internet publishing.'').
\137\ ``New Rules Issued: Foreign-Invested Film and Television
Media May Only Open One Joint Venture Company'' [Xin guiding chutai:
waizi yingshi chuanmei zhi neng kai yi jia hezi gongsi], People's Daily
(Online), 7 March 05; Notice Regarding Matters Relating to the
Implementation of the ``Temporary Provisions on the Administration of
Sino-Foreign Investment and Cooperative Joint Venture Television
Program Production Enterprises'' [Guanyu shishi ``zhongwai hezi, hezuo
guangbo dianshi jiemu zhizuo jingying qiye zanxing guiding'' youguan
shiyi de tongzhi], issued 7 March 05. For additional examples, see
Section III(a)--Special Focus for 2006: Freedom of Expression.
\138\ ``Media Executives Court China, But Still Run Into
Obstacles,'' New York Times (Online), 29 August 05.
\139\ ``News Corp. Sells Phoenix TV Stake to China Mobile,''
Washington Post (Online), 8 June 06. News Corp. had been distributing
the National Geographic Channel, a music channel, and other programming
to local cable television companies without government permission.
\140\ Certain Decisions Regarding Non-Public Investment in Cultural
Industries [Guowuyuan guanyu feigongyou ziben jinru wenhua chanye de
ruogan jueding], issued 13 April 05 (prohibiting the importation of
newspapers, magazines, movies, and television shows); Circular
Regarding Promulgation of the ``Provisions on the Administration of
Radio, Film, and Television Systems' Local Foreign Affairs Work''
[Guanyu yinfa ``guangbo yingshi xitong difang waishi gongzuo guanli
guiding'' de tongzhi], issued 7 July 05 (prohibiting television and
radio stations from leasing their channels to foreign companies, and
from cooperating with foreign companies in station operations);
Measures Regarding Strengthening the Administration of the Importation
of Cultural Products [Guanyu jiaqiang wenhua chanpin jinkou guanli de
banfa], issued 28 April 05 (freezing approvals for new foreign
satellite television channels). See, e.g., ``China Exclusive: China
Issues Regulations to Protect Cultural Security,'' People's Daily
(Online), 12 August 05; ``Policies in the Cultural Area Are
Continuously Issued Promoting the Health Development of the Culture
Sector'' [Wenhua lingyu xiangguan zhengce luxu chutai cujin wenhua
chanye jiankang fazhan], Xinhua (Online), 21 August 05. Also in late
2005, the GAPP issued an internal rule limiting approvals for the
introduction of foreign magazines to science and technology
publications. ``GAPP Tightens Restrictions on Foreign Publications,''
CECC Human Rights and Rule of Law Update, May 2006, 13; Geoffrey A.
Fowler and Juying Qin, ``China Curbs Magazines from Foreign
Publishers,'' Wall Street Journal (Online), 7 April 06.
\141\ World Trade Organization, Report of the Working Party on the
Accession of China, Schedule CLII, Part II --Schedule of Specific
Commitments on Services List of Article II MFN Exemptions, WT/MIN(01)/
3/Add.2, 10 November 01.
\142\ Ibid.
\143\ U.S. Department of Commerce, ``The U.S.-China Joint
Commission on Commerce and Trade (JCCT) Outcomes on U.S. Requests,'' 11
April 06.
\144\ ``China's Government Procurement Market Will Open'' [Zhongguo
zhengce caigou shichang jijiang duiwai kaifang], Economic Information
Daily, reprinted in China Finance and Economy News (Online), 3 August
05.
\145\ ``Drafter Predicts: Government Procurement To Open Up to
Foreign Companies in Four Years'' [Qicaozhe yuce: Zhongguo zhengfu
caigou 4 nian hou kaifang], Beijing Business Today (Online), 27 April
06.
\146\ ``Industry Expert Expects Procurement Market To Remain Closed
Four More Years,'' CECC Human Rights And Rule Of Law Update, June 2006,
17.
\147\ ``There Exists a Phenomenon in Government Procurement Where
There Is Law But It Is Not Being Obeyed'' [Zhengfu caigou cunzai you fa
bu yi fa xianxiang jianguan gongzuo jidai jiaqiang], Xinhua (Online),
30 November 05.
\148\ ``Government Procurement: Who Has Market Opportunity? ''
[Zhengfu caigou: shichang jihui luo shei jia?], People's Daily
(Online), 4 July 02.
\149\ ``Ministry of Finance Launches Project to Combat Bribery in
Government Procurement and Commercial Enterprises'' [Caizhengbu qidong
zhengfu caigou lingyu shangye huilu zhuanxiang zhili gongzuo], Xinhua
(Online), 1 April 06.
\150\ ``Ministry of Finance Begins Accepting Reports of Commercial
Bribery in Government Procurement'' [Caizhengbu kaishi shouli zhengfu
caigou lingyu shangye huilu jubao], Xinhua (Online), 21 April 06.
\151\ U.S. Senate Finance Committee, Testimony of Karan K. Bhatia,
Deputy U.S. Trade Representative, 29 March 06.
\152\ World Trade Organization, Secretariat Report--Trade Policies
and Practices by Measure, WT/TPR/S/161, 28 February 06, para. 4; World
Trade Organization, Secretariat Report--Contents and Summary
Observations, WT/TPR/S/161, 28 February 06, para 12.
\153\ These two bans ended in late 2004, except for cherries from
California. Office of the U.S. Trade Representative, 2006 National
Trade Estimate Report on Foreign Trade Barriers, 31 March 06.
\154\ The maximum residual level has not been enforced yet. Office
of the U.S. Trade Representative, 2006 National Trade Estimate Report
on Foreign Trade Barriers, 31 March 06. World Trade Organization
members may avoid a claim that their phytosanitary measure lacks a
scientific basis if they rely on an international standard. World Trade
Organization Agreement on the Application of Sanitary and Phytosanitary
Measures, arts. 3.1 and 3.3.
\155\ World Trade Organization, Secretariat Report--Contents and
Summary Observations, WT/TPR/S/161, 28 February 06, para 85.
\156\ Ibid.
\157\ Office of the U.S. Trade Representative, 2006 National Trade
Estimate Report on Foreign Trade Barriers, 31 March 06.
\158\ Administrative Measures for the Entry-Exit Inspection and
Quarantine for Grains and Feed Stuff, 4 December 01.
\159\ Administrative Measures for Entry for Animal and Plant
Quarantine [Jinjing dongzhiwu jianyi shenpi guanli banfa], issued 2
August 02.
\160\ World Trade Organization, Questions from the United States to
China, World Trade Organization Committee on Import Licensing, G/lic/q/
chn/16, 16 August 05, para. 3.
\161\ Office of the U.S. Trade Representative, 2006 National Trade
Estimate Report on Foreign Trade Barriers, 31 March 06.
\162\ In June 2004, the General Administration of Quality
Supervision, Inspection and Quarantine issued Public Notice 2004[73]
[Guojia zhiliang jiancha yancha zongju gonggao 2004 nian di 73 hao],
which extended the period of validity for quarantine permits from three
months to six months.
\163\ American Chamber of Commerce in China, 2006 White Paper, 74.
\164\ Ibid., 76; Office of the U.S. Trade Representative, 2006
National Trade Estimate Report on Foreign Trade Barriers, 31 March 06.
\165\ American Chamber of Commerce in China, 2006 White Paper, 76.
\166\ Ibid., 74; Office of the U.S. Trade Representative, 2006
National Trade Estimate Report on Foreign Trade Barriers, 31 March 06.
\167\ World Trade Organization, Questions from the United States to
China, World Trade Organization Committee on Import Licensing, G/lic/q/
chn/16, 16 August 05, para. 3.
\168\ U.S.-China Economic Relations, Hearing of the Senate Finance
Committee, Testimony of Gary Joachim, Vice President, American Soybean
Association, 29 March 06.
\169\ U.S. Department of Commerce, The U.S.-China Joint Commission
on Commerce and Trade (JCCT) Outcomes on U.S. Requests, 11 April 06.
\170\ Office of the U.S. Trade Representative, 2005 Report to
Congress on China's WTO Compliance, 11 December 05.
\171\ Ministry of Agriculture Public Notice Number 678 [Nongyebu
gonggao di 678 hao], issued 29 June 06 (provided that it has been
stripped of spines, brains, and other parts).
\172\ ``U.S.: No Deal on Beef Trade with China,'' Business Week
(Online), 30 June 06; ``U.S. Says China Announcement on Beef Market
Opening Is Meaningless,'' Inside U.S.-China Trade (Online), 5 July 06.
\173\ ``U.S., China Cite Progress on Beef, GPA, Subsidies; But
Questions Remain,'' Inside U.S.-China Trade (Online), 12 April 06;
``U.S. Considering Next Steps in Bid to Open China's Beef Market,''
Inside U.S.-China Trade (Online), 12 July 06; Office of the U.S. Trade
Representative, 2005 Report to Congress on China's WTO Compliance, 11
December 05.
\174\ Office of the U.S. Trade Representative, 2006 National Trade
Estimate Report on Foreign Trade Barriers, 31 March 06.
\175\ Ibid.
\176\ Office of the U.S. Trade Representative, 2005 Report to
Congress on China's WTO Compliance, 11 December 05.
\177\ American Chamber of Commerce in China, ``White Paper 2006,''
76; Office of the U.S. Trade Representative, 2006 National Trade
Estimate Report on Foreign Trade Barriers, 31 March 06.
\178\ Office of the U.S. Trade Representative, 2005 Report to
Congress on China's WTO Compliance, 11 December 05.
\179\ U.S. Department of Agriculture (Online), ``Johanns Signs
Agreement With China on Food Safety and Plant and Animal Health,'' 13
April 06.
\180\ American Soybean Association, ``ASA and Chinese Officials
Sign Agreement in Washington D.C.,'' 11 April 06.
\181\ World Trade Organization, Request for Consultations by the
United States: China--Measures Affecting Imports of Automobile Parts,
WT/DS340/1, 3 April 06.
\182\ World Trade Organization, Request for Consultations by
Canada: China--Measures Affecting Imports of Automobile Parts, WT/
DS342/1, 19 April 06.; World Trade Organization, Request for
Consultations by the European Communities: China--Measures Affecting
Imports of Automobile Parts, WT/DS339/1, 3 April 06.
\183\ The request also notes that Chinese regulations appear to
assess tariffs on certain specified parts and assemblies as though they
are complete vehicles. According to the request, these appear to be
inconsistent with the Article 2 of the TRIMs Agreement, Articles II and
III of the GATT 1994, Article 3 of the SCM Agreement; and China's
Protocol on the Accession. The request cited the following rules as
providing for the aforementioned treatment: Auto Industry Development
Policy [Qiche chanye fazhan zhengce], issued 21 May 04; Management
Measures for Imports of Auto Parts Having the Characteristics of a
Complete Automobile [Goucheng zhengche tezheng de qiche lingbujian
jinkou guanli banfa], issued 28 February 05; and Rules for Determining
Whether Imported Automotive Parts and Components Constitute Complete
Vehicles [Jinkou qiche lingbujian goucheng zhengche tezheng heding
guize], issued 28 March 05.
\184\ ``Nation Agrees To Hold Talks on Auto Parts,'' China Daily
(Online), 10 April 06.
\185\ ``China Becomes Victim of Trade Protectionism,'' China Daily
(Online), 10 April 06.
\186\ ``Consultation Over Auto Parts Tariffs May Continue,'' Xinhua
(Online), 16 June 06; ``U.S. To Move Quickly Toward WTO Auto Parts
Case,'' ChinaTradeExtra (Online), 7 June 06.
\187\ ``U.S. Department of State, ``Trade Dispute Panel Sought on
Auto Parts Exports to China,'' 15 September 06.
\188\ Steel Industry Development Policy [Gangtie chanye fazhan
zhengce], issued 20 July 05.
\189\ Office of the U.S. Trade Representative, 2006 National Trade
Estimate Report on Foreign Trade Barriers, 31 March 06.
\190\ ``NDRC Issues Steel Industry Development Policy,'' CECC Human
Rights and Rule of Law Update, August 2005, 8; Office of the U.S. Trade
Representative, 2005 Report to Congress on China's WTO Compliance, 11
December 05. The policy encourages domestic enterprises to ``use
domestic facilities and technology'' while importing only ``equipment
and technology that cannot be made domestically or for which domestic
supply is unable to satisfy the requirements.'' Steel Industry
Development Policy, art. 18. The policy prohibits foreign control over
domestic steel enterprises and restricts foreign investment in the
steel industry. Steel Industry Development Policy, art. 23. Foreign
companies wishing to invest in the domestic steel industry must have
produced either 10 million tons of steel or 1 million tons of high-
alloy specialty steel during the previous year. Ibid. If the foreign
company can fulfill these requirements it may invest in existing
Chinese steel facilities, but may not create new ones.
\191\ Office of the U.S. Trade Representative, 2005 Report to
Congress on China's WTO Compliance, 11 December 05. See also, ``Report
of the Working Party on the Accession of China,'' WT/MIN(01)/3, para.
46.
\192\ Congressional Steel Caucus Hearing, Statement by Timothy
Stratford, Assistant U.S. Trade Representative for China Affairs, 14
June 06.
\193\ Office of the U.S. Trade Representative, 2005 Report to
Congress on China's WTO Compliance, 11 December 05. See also, Report of
the Working Party on the Accession of China, WT/MIN(01)/3, para. 49.
\194\ Office of the U.S. Trade Representative, 2005 Report to
Congress on China's WTO Compliance, 11 December 05.
\195\ World Trade Organization, Questions from the United States to
China, Committee on Import Licensing, G/LIC/Q/CHN/16, 16 August 05.
\196\ World Trade Organization, Minutes of the Meeting Held on 28
September 05, Committee on Import Licensing, G/LIC/M/22, 2 November 05.
\197\ World Trade Organization, 2005 Transitional Review Mechanism,
for the Council for Trade-Related Investment Measures, Committee on
Trade-Related Investment Measures, G/L/751, 24 October 05.
\198\ World Trade Organization, Minutes of the Meeting Held on 28
September 05, Committee on Import Licensing, G/LIC/M/22, 2 November 05.
The organizations were the China Steel Industry Association and the
Commercial Chamber for Metals, Minerals and Chemicals Importers and
Exporters.
\199\ Protocol on the Accession of the People's Republic of China,
World Trade Organization Document WT/L/432 (23 November 01), para. 5;
``Report of the Working Party on the Accession of China, Schedule CLII,
Part II--Schedule of Specific Commitments on Services List of Article
II MFN Exemptions,'' WT/MIN(01)/3/Add.2, 10 November 01.
\200\ PRC Foreign Trade Law, issued 1 July 04.
\201\ Office of the U.S. Trade Representative, 2005 Report to
Congress on China's WTO Compliance, 11 December 05.
\202\ Measures on the Management of Foreign Investment in the
Commercial Sector [Waishang touzi shangye lingyu guanli banfa], issued
16 April 04.
\203\ Circular Regarding Certain Issues with Foreign-Invested Non-
Commercial Enterprises Expanding the Scope of Retail Operations [Guanyu
waishang touzi fei shangye qiye zengjia fenxiao jingying fanwei youguan
wenti de tongzhi], issued 2 April 05.
\204\ Circular Regarding Issues Regarding the Administration of
Trade in Bonded Zones and Bonded Logistic Parks [Guanyu baoshui qu ji
baoshui wuliu yuanqumaoyi guanli youguan wenti de tongzhi], issued 28
July 05. See also, ``Moving Forward on Distribution,'' China Business
Review, September-October 05.
\205\ Circular Regarding Certain Issues with Foreign-Invested Non-
Commercial Enterprises Expanding the Scope of Retail Operations;
Ministry of Commerce (Online), ``Ministry of Commerce Promulgates Set
of Provisions on the Handling Procedures for Establishing the Scope of
Projects for Foreign-Invested Commercial Enterprises'' [Shangyebu banbu
sheli waishang touzi shangye lingyu xiangmu banli chengxu deng xilie
guiding], 5 August 05.
\206\ Regulation on the Administration of Direct Selling [Zhixiao
guanli tiaoli], issued 23 August 05.
\207\ Office of the U.S. Trade Representative, 2005 Report to
Congress on China's WTO Compliance, 11 December 05; ``Companies Hope
Direct Sales Approval for Avon Leads to Others,'' Inside US-China Trade
(Online), 8 March 06.
\208\ ``Avon Grabs China's First License for Direct Sales,''
Xinhua, reprinted in People's Daily (Online), 5 March 06.
\209\ U.S. Department of Commerce, Remarks as Prepared by Commerce
Secretary Carlos Gutierrez on Behalf of the U.S. Delegation, 11 April
06.
\210\ World Trade Organization, Agreement on Technical Barriers to
Trade, arts. 2.2 and 2.4.
\211\ World Trade Organization, Minutes of the Meeting of 2
November 2005, Committee on Technical Barriers to Trade, G/TBT/M/37, 22
December 05.
\212\ World Trade Organization, Secretariat Report--Trade Policies
and Practices by Measure, WT/TPR/S/161, 28 February 06, para. 4.
\213\ U.S. Trade and Development Agency, USTDA Initiative Promotes
U.S.-China Cooperation in Industrial Standards Policy and Regulatory
Development, 23 May 06.
\214\ Office of the U.S. Trade Representative, 2006 National Trade
Estimate Report on Foreign Trade Barriers, 31 March 06.
\215\ Ibid.
\216\ Office of the U.S. Trade Representative, 2005 National Trade
Estimate Report on Foreign Trade Barriers, 30 March 05.
\217\ Ibid.
\218\ ``ISO Votes Down China Encryption System,'' Associated Press,
reprinted in China Daily (Online), 14 March 06.
\219\ ``China Resolved to Use Home-Grown WLAN Security
Technology,'' Xinhua (Online), 13 March 06.
\220\ ``China Appeals to ISO Against Intel-Dominated Wireless
Encryption Standard,'' Xinhua, reprinted in People's Daily (Online), 29
May 06.
\221\ ``Chinese WAPI Delegation Quits Prague Meeting,'' Xinhua,
reprinted by the Ministry of Commerce (Online), 9 June 06.
Notes to Section VIII--Tibet
\1\ ``Tibet Sees Record High Per Capita GDP in 2005,'' Xinhua
(Online), 13 January 06. Jampa Phuntsog (Xiangba Pingcuo) told
reporters that the TAR GDP grew to 25.04 billion yuan in 2005, an
increase of more than 12 percent for the fifth consecutive year.
\2\ Office of the Special Coordinator for Tibetan Issues, U.S.
Department of State, Report on Tibet Negotiations, April 2006. U.S.
policy urges China to ``respect the unique religious, linguistic, and
cultural heritage of its Tibetan people and to respect fully their
human rights and civil liberties.'' Bureau of Democracy, Human Rights,
and Labor, U.S. Department of State, Country Reports on Human Rights
Practices--2005, China (includes Tibet, Hong Kong, and Macau), 8 March
06. The report observes, ``The preservation and development of the
unique religious, cultural, and linguistic heritage of Tibetan areas
and the protection of Tibetan people's fundamental human rights
continued to be of concern.'' See also, CECC, 2003 Annual Report, 2
October 02; Teaching and Learning Tibetan: The Role of Tibetan Language
in Tibet's Future, Staff Roundtable of the Congressional-Executive
Commission on China, 7 April 03.
\3\ Steven Marshall and Susette Cooke, Tibet Outside the TAR:
Control, Exploitation and Assimilation: Development with Chinese
Characteristics (Washington D.C.: self-published CD- ROM, 1997), Table
7. The 13 Tibetan autonomous areas include the provincial-level Tibet
Autonomous Region (TAR), with an area of 1.2 million square kilometers
(463,320 square miles), as well as 10 Tibetan autonomous prefectures
(TAP) and two Tibetan autonomous counties (TAC) located in Qinghai,
Gansu, Sichuan, and Yunnan provinces. Qinghai province: Yushu TAP,
197,791 square kilometers (76,367 square miles); Guoluo (Golog) TAP,
78,444 square kilometers (30,287 square miles); Huangnan (Malho) TAP,
17,901 square kilometers (6,912 square miles); Hainan (Tsolho) TAP,
41,634 square kilometers (16,075 square miles); Haibei (Tsojang) TAP,
52,000 square kilometers (20,077 square miles); Haixi (Tsonub) Mongol
and Tibetan AP, 325,787 square kilometers (125,786 square miles). Gansu
province: Gannan (Kanlho) TAP, 45,000 square kilometers (17,374 square
miles); Tianzhu (Pari) TAC, 7,150 square kilometers (2,761 square
miles). Sichuan province: Ganzi (Kardze) TAP, 153,870 square kilometers
(59,409 square miles); Aba (Ngaba) Tibetan and Qiang AP, 86,639 square
kilometers (33,451 square miles); Muli (Mili) TAC, 11,413 square
kilometers (4,407 square miles). Yunnan province: Diqing (Dechen) TAP,
23,870 square kilometers (9,216 square miles). The Table provides areas
in square kilometers; conversion to square miles uses the formula
provided on the Web site of the U.S. Geological Survey (USGS): one
square kilometer = 0.3861 square mile. Based on data in the Table, the
10 TAPs and two TACs have a total area of approximately 1.04 million
square kilometers (402,000 square miles). The TAR and the Tibetan
autonomous prefectures and counties are contiguous and total
approximately 2.24 million square kilometers (865,000 square miles).
Xining city and Haidong prefecture, located in Qinghai province, have a
total area of 20,919 square kilometers (8,077 square miles) and are not
Tibetan autonomous areas.
\4\ Office of the Special Coordinator for Tibetan Issues, U.S.
Department of State, Report on Tibet Negotiations, April 2006. The
Report is mandated by Section 611 of the Foreign Relations
Authorization Act, 2003. See, Committee on International Relations
(Online), U.S. House of Representatives, ``Survey of Activities, Week
of April 17, 2006,'' last visited 6 September 06. The Survey of
Activities lists receipt of the Report on Tibet Negotiations by the
Committee on International Relations on April 14, 2006.
\5\ Ibid. ``Encouraging substantive dialogue between Beijing and
the Dalai Lama is an important objective of this Administration. The
United States encourages China and the Dalai Lama to hold direct and
substantive discussions aimed at resolution of differences at an early
date, without preconditions.''
\6\ Ibid.
\7\ Tibetan Government-in-Exile (Online), ``Education Will Help
Tibetans to Fight for Their Rights,'' 17 January 06. The Dalai Lama led
an 11-day teaching known as the Kalachakra.
\8\ Tibetan Government-in-Exile (Online), ``The Middle-Way
Approach: A Framework for Resolving the Issue of Tibet,'' last visited
30 August 06. The explanation of the Middle-Way Approach lists eight
``important components.'' The first three are: (1) Without seeking
independence for Tibet, the Central Tibetan Administration strives for
the creation of a political entity comprising the three traditional
provinces of Tibet; (2) Such an entity should enjoy a status of genuine
national regional autonomy; (3) This autonomy should be governed by the
popularly-elected legislature and executive through a democratic
process.
\9\ Tibetan Government-in-Exile, ``Education Will Help Tibetans to
Fight for Their Rights.''
\10\ International Campaign for Tibet (Online), ``The Kalachakra in
India: Dalai Lama Tells Tibetans From Tibet They Are Key to Future,''
11 January 06. ``The Dalai Lama opened the Kalachakra teachings this
week in Amravati, India, with a powerful statement urging Tibetans from
inside Tibet to tell Tibetans when they return about the importance of
the `Middle Path' approach towards a genuine autonomy for Tibet.''
\11\ Tibetan Government-in-Exile (Online), ``Statement by Special
Envoy Lodi Gyari, Head of the Delegation Sent by His Holiness the Dalai
Lama to China,'' 25 February 06. Special Envoy Lodi Gyari and Envoy
Kelsang Gyaltsen traveled with two senior aides, Sonam N. Dagpo and
Bhuchung K. Tsering. The delegation visited China from February 15 to
23, 2006.
\12\ In addition to serving as the Dalai Lama's Special Envoy, Lodi
Gyari is the Executive Chairman of the International Campaign for Tibet
(ICT). According to the ICT mission statement, ICT ``promotes self-
determination for the Tibetan people through negotiations between the
Chinese government and the Dalai Lama.'' The ICT Web site describes
Tibet as an ``occupied'' country of 2.5 million square kilometers
(965,000 square miles) with Lhasa as its capital.
\13\ The envoys traveled to China in September 2002, May-June 2003,
and September 2004. (In addition to visiting Beijing and other major
Chinese cities, they visited Lhasa in 2002, Dechen (Deqen) Tibetan
Autonomous Prefecture (Yunnan province) in 2003, and Kardze (Ganzi) TAP
(Sichuan province) in 2004. They met with Chinese officials in Bern,
Switzerland in late June to early July 2005.)
\14\ The Tibetan government-in-exile's representation of Tibet
exceeds the total area of Chinese-designated Tibetan autonomy by about
100,000 square miles. Aside from pockets of long-term Tibetan
settlement in Qinghai, most of that is made up of autonomous
prefectures or counties allocated to other ethnic groups. These include
the Nu, Lisu, Bai, and Naxi in Yunnan Province; the Yi and Qiang in
Sichuan Province; the Hui, Kazak, Mongol, and Yugur in Gansu Province;
the Hui, Tu, Salar, and Mongol in Qinghai Province; and, according to
some maps, Mongol in Xinjiang. Substantial Han Chinese populations are
also included, some established for centuries.
\15\ ``Spokesman: Differences on Tibet's Definition Persist Between
China, Dalai Lama,'' Associated Press, reprinted in Phayul (Online), 8
July 05.
\16\ The Dalai Lama has made a statement on the anniversary of the
1959 Lhasa uprising on March 10 of every year that he has lived in
exile, beginning in 1960.
\17\ Office of His Holiness the Dalai Lama (Online), ``Statement of
His Holiness the Dalai Lama on the Forty-Seventh Anniversary of the
Tibetan National Uprising Day, 10 March 2006,'' 10 March 06. The Dalai
Lama listed the unique characteristics of Tibetans: ``Tibetans--as one
of the larger groups of China's 55 minority nationalities--are distinct
in terms of their land, history, language, culture, religion, customs,
and traditions.''
\18\ Ibid.
\19\ The China-Dalai Lama Dialogue: Prospects for Progress, Staff
Roundtable of the Congressional-Executive Commission on China, 13 March
06, Written Statement and Testimony of Tashi Wangdi, Representative of
His Holiness the Dalai Lama to the Americas.
\20\ Tibetan Government-in-Exile (Online), ``Statement of the
Kashag on the 47th Anniversary of the Tibetan People's Uprising Day, 10
March 2006,'' 10 March 06.
\21\ Ibid. ``[T]oday [Tibetans] are either scattered or live in
these areas with a majority nationality. Therefore, [they] are reduced
to minority [status] in their own areas, [and] it is not possible to
protect their unique characteristics. . . . Therefore, if things go in
this direction it would be nothing but similar to the system of `divide
and rule' practised under imperialism.''
\22\ The Dalai Lama explained in an interview with the Voice of
America Mandarin Service on September 11, 2003, that the existing areas
of Tibetan autonomy should be joined together to form a single
administrative area. International Campaign for Tibet (Online), ``Dalai
Lama Explains His Position on China's Preconditions on Negotiations on
Tibet,'' 15 September 03. Transcript of Voice of America Mandarin
Service interview with the Dalai Lama conducted by Zhang Jing, 11
September 03. Responding to a question about his concept of the
``Tibet'' that should have genuine autonomy, the Dalai Lama responded,
in part, ``But since I'm asking for a certain right which the
Constitution of the People's Republic of China provided, within that
[constitutional right], [I'm asking that] they be joined from small
pieces, like autonomous regions, autonomous districts, autonomous
prefectures, like that. So instead of many small, small autonomies, the
self-administration, actually, as far as work is concerned, or
effectiveness, is concerned, is more difficult. So a broader
administration could be more effective.''
\23\ ``Dalai Lama's Demands Are Obstacle to Talks: China,''
Reuters, reprinted in Washington Post (Online), 26 May 06; ``Dalai
Returning to China--Experts Are Not Optimistic About It,'' Wen Wei Po,
27 May 06 (Open Source Center, 30 May 06). Wen Wei Po reported the same
remarks by Lhagpa Phuntsog: ``Dalai's proposal of building a great
Tibet region and his demand of implementing a high degree of autonomy
in Tibet are not in accord with the history of Tibet, China's
Constitution, and the law governing regional national autonomy.''
\24\ ``Tibet No Longer a Chink in Bilateral Ties: China,'' Indo-
Asian News Service (IANS), reprinted in Phayul (Online), 28 October 05.
\25\ ``Dalai's Return Based on What He Says and Does,'' Wen Wei Po,
5 July 06 (Open Source Center, 7 July 06). ``Wu pointed out that at
present, the Dalai Lama's continual launching of anti-Chinese political
activities has undermined the peace and stability of Tibet. He [Dalai
Lama] stated clearly that if he returned, the central government must
accept two conditions: to build a great Tibet region, and to hold
democratic elections in Tibet--and that seems to be definitely
impossible.''
\26\ Tibetan Government-in-Exile, ``The Middle-Way Approach: A
Framework for Resolving the Issue of Tibet.'' The Dalai Lama's Middle
Way Approach calls for ``the creation of a political entity comprising
the three traditional provinces of Tibet,'' for the political entity to
``enjoy a status of genuine national regional autonomy,'' and that
``autonomy should be governed by the popularly-elected legislature and
executive through a democratic process.''
\27\ ``Dalai's Return Based on What He Says and Does,'' Wen Wei Po.
``He added that in recent years under the CPC leadership Tibetans enjoy
a standard of living just as prosperous as `the blossoming of sesame
seeds,' and thus they are reluctant to see the Dalai Lama return.''
\28\ ``Central Government Opens Door to Communicate with Dalai
Lama: Says Tibetan Autonomous Regional Chairman,'' Xinhua (Online), 14
March 06. ``For many years, the Chinese central government has made
great efforts and showed sincerity to help facilitate negotiations,
Qiangba Punco [Jampa Phuntsog] told Xinhua in an exclusive interview in
Beijing. But the talks between the two sides have not achieved results.
The responsibility for this totally rests with the Dalai Lama side for
their failure to truly recognize the situation, Qiangba Punco said. . .
. Judging from the communication between the central government and the
Dalai Lama, it is obvious that although the Dalai Lama has been
changing his tactics, he has not changed his `Tibet independence'
stance and his efforts to split the motherland, Qiangba Punco said.''
\29\ Ministry of Foreign Affairs (Online), ``Foreign Ministry
Spokesman Qin Gang's Regular Press Conference on 14 September 2006,''
15 September 06; ``China Strongly Opposes U.S. Awarding Congressional
Gold Medal to Dalai Lama,'' Xinhua, reprinted in People's Daily
(Online), 15 September 06.
\30\ The U.S. Senate passed S.2784, the Fourteenth Dalai Lama
Congressional Gold Medal Act, on May 25, 2006. The U.S. House of
Representatives passed its companion legislation (H.R.4562) on
September 13, 2006.
\31\ Ministry of Foreign Affairs (Online), ``Foreign Ministry
Spokesperson Qin Gang's Press Conference on 16 February 2006,'' 16
February 06.
\32\ ``China Says No Progress in Talks with Dalai Lama,'' Reuters
(Online), 6 March 06.
\33\ Regional Ethnic Autonomy Law [hereinafter REAL], enacted 31
May 84, amended 28 February 01, Preamble.
\34\ REAL, art. 7: ``Institutions of self-government in ethnic
autonomous areas shall place the interests of the state as a whole
above all else and actively fulfill all tasks assigned by state
institutions at higher levels.''
\35\ China's Regional Ethnic Autonomy Law: Does it Protect Minority
Rights?, Staff Roundtable of the Congressional-Executive Commission on
China, 11 April 05, Written Statement and Testimony of David L.
Phillips, Senior Fellow, Council on Foreign Relations. Phillips told
the roundtable that a study of Tibetan autonomy laws and regulations
that he co-authored in 2004 considered ``a compilation of 161 laws and
regulations concerning autonomy arrangements in the ethnic Tibetan
areas of [the Tibet Autonomous Region, and Sichuan, Qinghai, Gansu, and
Yunnan provinces].'' Theodore C. Sorenson and David L. Phillips, Legal
Standards and Autonomy Options for Minorities in China: The Tibetan
Case (Cambridge, Mass.: Harvard University, Belfer Center for Science
and International Affairs, 2004), 45. The report lists seven areas of
concern about the practice of ethnic minority rights of Tibetans in
China: basic freedoms, access to information, economy, religion,
education, healthcare, and environment. The report states,
``Shortcomings in implementation of laws on autonomy and ethnic
minority rights give rise to the above concerns. Faulty implementation
[of laws and regulations] negates the value of legislation and erodes
the rule of law.''
\36\ Yash Ghai, ``China's Constitution: Which Model of Autonomy for
Tibet? '' South China Morning Post (Online), 3 March 06. Professor Ghai
is an honorary professor at the University of Hong Kong. (His remark
refers to provisions for regional ethnic autonomy under Chapter III,
Section 6, of the Constitution.)
\37\ State Council Information Office, White Paper on Regional
Autonomy for Ethnic Minorities in China, Xinhua (Online), 28 February
05. The White Paper states in its conclusion, ``The practice of more
than half a century has proved that the system and practice of China's
regional ethnic autonomy have been immensely successful. Regional
ethnic autonomy is a correct solution to the issue of ethnic groups in
China, and is in keeping with China's actual conditions and the common
interests of all ethnic groups.''
\38\ ``CPC Central Committee Politburo Holds Meeting to Look Into
Further Doing a Good Job in Tibet Work in the New Century and New
Stage; CPC Central Committee General Secretary Hu Jintao Chairs
Meeting,'' Xinhua, 26 August 05 (Open Source Center, 26 August 05).
\39\ The China-Dalai Lama Dialogue: Prospects for Progress, Written
Statement and Testimony of Sonam Wangdu, Chairman, United States Tibet
Committee.
\40\ Ibid.
\41\ Tibetans living outside of China generally do not face
imprisonment for peacefully advocating Tibetan independence. The U.S.
Department of State Bureau of Democracy, Human Rights, and Labor,
Country Reports on Human Rights Practices--2005, China (includes Tibet,
Hong Kong, and Macau), however, observes that the Tibetan community in
Nepal faces restrictions on the freedom of assembly, including a ban on
celebrating Tibetan Democracy Day. Inside China, Tibetans who
peacefully advocate Tibetan independence could face imprisonment under
Article 103 of the Criminal Law, which sets out punishment for persons
who ``organize, plot or carry out the scheme of splitting the State or
undermining unity of the country,'' as well as for someone who
``incites others to split the State or undermine unity of the
country.''
\42\ Tibetan Youth Congress (Online), ``About Us,'' site last
visited 31 August 06. According to the TYC Web site, the TYC is the
largest and most active Tibetan NGO in exile.
\43\ Liu Yuxiang and Wu Kun, ``Analysis on Threats of Violent Acts
of Terror Presently Facing Sichuan Province,'' Policing Studies, No. 2,
10 February 04 (Open Source Center, 17 May 04). The authors claim that
TYC members ``have repeatedly engineered violent terrorist activities
both inside and outside Sichuan, such as bomb attacks, assassinations,
and arson.''
\44\ Ibid. In the same article, the authors modify their
description, saying, ``At present, violent terrorist organizations such
as the TYC are still at a lower level in general and have not yet
evolved into a terrorist organization with international leverage.''
\45\ Chen Fan, ``Lies Do Not Hold Water,'' China's Tibet (Online),
No. 4, 2005.
\46\ ``Dalai Lama Rejects Tibetan Buddhist Praise of China,''
Reuters (Online), 29 December 05.
\47\ The China-Dalai Lama Dialogue: Prospects for Progress, Written
Statement and Testimony of Tseten Wangchuk, senior broadcaster, Voice
of America, Tibetan language service.
\48\ Li Dezhu, ``Large-Scale Development of Western China and
China's Nationality Problem,'' Seeking Truth, 15 June 00 (Open Source
Center, 15 June 00). Li Dezhu (Li Dek Su) addresses the social and
ethnic implications of the program that Jiang Zemin launched in 1999.
Li states that the program is intended to ``accelerate economic and
social development of the western region and the minority nationality
regions in particular.''
\49\ Ibid.
\50\ Ibid. ``In carrying out the strategy of large-scale western
development, development of the west will be greatly accelerated and
human talent will flow westward if the country favors the western
regions in policy and capital. . . . In keeping with the increased
population flow of the various ethnic groups, 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, and should draw a high level of attention.''
\51\ REAL, art. 20. ``If a resolution, decision, order or
instruction of a state organ at a higher level does not suit the actual
conditions in an ethnic autonomous area, an autonomous agency of the
area may report for the approval of the state organ at the next higher
level to either implement it with certain alterations or cease
implementing it altogether. The next higher level state agency must
give its decision within sixty days of receiving the report.''
\52\ Li Dezhu, ``Large-Scale Development of Western China and
China's Nationality Problem.''
\53\ State Council, ``Some Suggestions of the State Council on
Continuing to Press Ahead with the Development of the Western Region,''
Xinhua, 22 March 04 (Open Source Center, 29 March 04).
\54\ ``Law on Western Development in Pipeline,'' China Daily
(Online), 14 March 06. Vice Minister Wang Jinxiang said the Legislative
Affairs Office of the State Council was working on the 14th version of
the bill, and that it will be the first time a law is created for the
development of a single region. The law is based on the experience of
the U.S., Japan, Canada, Germany, and France in promoting the
development of their poor regions, according to the report.
\55\ ``Masses of All Ethnic Groups in Tibet Hold a Rally to
Celebrate the 40th Founding Anniversary of the Tibet Autonomous Region;
Hu Jintao Writes a Congratulatory Inscription; Jia Qinglin Attends and
Addresses the Rally,'' Xinhua, 1 September 05 (Open Source Center, 4
September 05).
\56\ ``A Cadres Meeting Was Held To Mark the 40th Anniversary of
the Founding of the Tibet Autonomous Region,'' Xinhua, 31 August 05
(Open Source Center, 7 September 05).
\57\ Ibid.
\58\ TibetInfoNet (Online), ``Detentions Before 40th Anniversary of
TAR,'' 8 September 05. According to the report, details are not
available about nine of the detainees or the reasons that security
officials detained them. State Security Bureau ransacked Sonam Gyalpo's
home on August 28 and found photos of the Dalai Lama, video cassettes
of the Dalai Lama conducting Buddhist teaching, and other books and
printed matter.
\59\ Human Rights Watch (Online), ``Tibet: Monk Spirited Away by
Security Forces,'' 17 September 05. According to the report, a
confidential Human Rights Watch source characterized the detention as
``politically motivated.''
\60\ TibetInfoNet (Online), ``Detentions Before 40th Anniversary of
TAR,'' 8 September 05.
\61\ ``Report on the Outline of The 10th Five-Year Plan for
National Economic and Social Development by Chinese Premier Zhu Rongji
at the Opening of the Fourth Session of the Ninth National People's
Congress at the Great Hall of the People in Beijing,'' China Central
Television, 5 March 01 (Open Source Center, 5 March 01). Premier Zhu
said, ``During the Tenth Five-Year Plan period, we need to place
emphasis on key projects for a good beginning to the program. . . . We
must focus on a number of major projects of strategic significance,
such as the transmission of natural gas and electricity from western to
eastern regions and the planned Qinghai-Tibet Railway.'' State Council
Office of Western Region Development, ``Implementation Opinions
Concerning Policies and Measures Pertaining to the Development of the
Western Region,'' Xinhua, 20 December 01 (Open Source Center, 15
January 01). ``Resources must be concentrated on the construction of a
host of major projects that impact the development of the western
region as a whole, such as the ``West China-East China Gas Pipeline
Project,'' the ``West China-East China Power Transmission Project,''
the Qinghai-Tibet Railway, major state highways, and the proper
exploitation, conservation, and utilization of water resources.''
\62\ ``Qinghai-Tibet Railway Ready for Operation on July 1,''
Xinhua (Online), 29 June 06. Zhu Zhensheng, the vice director of an
office managing the railway, said that the railway startup is one year
ahead of schedule due to ``good construction, environment, and safety
conditions.'' Guo Aibing, ``Full Steam Ahead for World's Highest
Railway,'' China Daily (Online), 8 November 01. The article, published
in the year when railway construction started, reports that completion
was due in 2007. ``US$660m Poured into Qinghai-Tibet Railway,'' China
Daily (Online), 1 December 04. The article reports that increased
funding ``was needed to ensure the rail link could open to the public
on schedule in 2007.'' ``Tibet Rail Construction Completed,'' China
Daily (Online), 15 October 05. The article indicated that commercial
passenger service would begin early in 2007, saying, ``Once signaling
and track testing is completed in the next 15 months, it will be
possible to travel from Beijing to Lhasa in 48 hours.''
\63\ ``Tibetans in Tibet Speak Against Qinghai-Tibet Railway,''
Phayul (Online), 29 June 06. A Phayul representative interviewed seven
recently arrived Tibetan refugees about Tibetan views about the
railway. They expressed concerns about increased ethnic Han migration,
the loss of farm of grazing land, natural resource exploitation, and
adverse effects on the environment and Tibetan culture. ``Tibet Braces
for Wave of Newcomers as Rail Link Opens,'' Radio Free Asia (Online),
30 June 06. The article reports the concerns of NGOs based outside of
China. International Campaign for Tibet (Online), ``Political
Repression Intensifies as Tibet Railway Opens,'' 30 June 06. The report
provides information about the railway's construction, and Chinese and
Tibetan views on the railway's potential impact on Tibetan culture.
\64\ ``Hu Jintao's Speech at a Rally To Celebrate Putting the
Qinghai-Tibet Railway Into Service on 1 July 2006,'' Xinhua, 1 July 06
(Open Source Center, 01 July 06).
\65\ ``China Arranges First Five Scheduled Trains to Tibet,''
Xinhua (Online), 5 May 06. Deputy General Manager Ma Baocheng of the
Qinghai-Tibet Railway Company announced on May 5, 2006, that the first
five trains to Lhasa would depart from Beijing, Shanghai, Guangzhou,
Chengdu, and Xining, and that they were all sold out. ``Tibetan Railway
Ticket Price Confirmed,'' China Tibet Information Center (Online), 26
June 06. ``[S]ources from the 8th conference of the leading group for
Qinghai-Tibet Railway construction'' announced that the scheduled
railway service would link Lhasa with Beijing, Chengdu, Chongqing,
Lanzhou, and Xining. The report did not explain why Shanghai and
Guangzhou departures were not included as part of initial operations.
\66\ ``Tibetan Legislator Calls Railway `Road to Heaven' for
Tibetans,'' Xinhua (Online), 6 July 06.
\67\ ``Tibet's New Railway To Extend to Xigaze Next Year:
Official,'' Xinhua (Online), 9 August 06. Yu Yungui, a senior official
in the Rikaze (Shigatse) prefectural government in the TAR, said that
the 270 kilometer (170 mile) extension is expected to take three years.
\68\ ``Dalai Lama: Rail Link `Cultural Genocide','' Associated
Press, reprinted in Washington Post (Online), 12 September 05.
Referring to the Qinghai-Tibet railway, then under construction, the
Dalai Lama told reporters in Idaho, ``Some kind of cultural genocide is
taking place. In general, a railway link is very useful in order to
develop, but not when politically motivated to bring about demographic
change.'' ``China Opens World's Highest Railway to Tibet,'' Agence
France-Presse, reprinted in Yahoo! (Online), 1 July 06. Thupten
Samphel, a spokesman for the Tibetan government-in-exile indicated that
the Dalai Lama conditionally supports the railway. Samphel told
reporters, ``If there is no political motivation and no hidden
political agenda, the railway will be good for Tibet. This is why his
holiness the Dalai Lama has declared his support for the project.''
\69\ ``People Should Have a More Worldly Eye on Tibet Railway,''
Xinhua (Online), 1 July 06.
\70\ ``Railway Makes Room for Tibetan Culture: Experts,'' Xinhua
(Online), 1 July 06.
\71\ ``Tibet Tourism Impact Fears Rejected,'' South China Morning
Post (Online), 6 July 06. In addition to naming Wu Yingjie as the Vice
Chairman of the TAR government, the article describes Wu as the
region's ``propaganda chief.''
\72\ ``Railway Won't Bring Influx of Settlers to Tibet: Official,''
Xinhua (Online), 12 July 06.
\73\ Tabulation on China's Nationality: Data of 1990 Population
Census, Department of Population Statistics of State Statistical Bureau
and Economic Department of State Nationalities Affairs Commission
(Beijing: China Statistical Press, May 1994), Table 2-1. Tabulation on
Nationalities of 2000 Population Census of China, Department of
Population, Social, Science and Technology Statistics, National Bureau
of Statistics, and Department of Economic Development, State Ethnic
Affairs Commission (Beijing: Ethnic Publishing House, September 2003),
Table 10-1. According to census data, Han population in the TAR
increased from 80,837 in 1990, to 158,570. Bureau of Human Rights,
Democracy, and Labor, U.S. Department of State, Country Reports on
Human Rights Practices--2005, China (includes Tibet, Hong Kong, and
Macau), 8 March 06. According to the report, the Chinese 2000 census
does not provide a complete count of ethnic Han in the TAR: ``However,
TAR census figures did not include a large number of long-term Han
residents, such as cadres, skilled workers, unskilled laborers,
military and paramilitary troops, and their dependents.''
\74\ ``Qinghai-Tibet Railroad No Harm to Environment,'' China Daily
(Online), 06 July 06.
\75\ ``Qinghai-Tibet Railway to Transport 4,000 More Tourists Each
Day,'' Xinhua (Online), 21 May 06.
\76\ ``Qinghai-Tibet Railway to Bring More Visitors to Tibet,''
China News Service (Online), 22 May 06.
\77\ Cao Deshung, ``Tibet Rail Construction Completed,'' China
Daily (Online), 15 October 05.
\78\ ``Frozen Soil Thawing Faster, Endangering Qinghai-Tibet
Railway,'' Xinhua (Online), 5 February 06.
\79\ ``Experts at the Chinese Academy of Sciences Are Concerned
That Disaster Could Strike Ten Years from Now'' [Dongtu tui rong jiang
weixie qing zang tielu anquan], Beijing News (Online), 22 January 06.
\80\ ``Frozen Soil Thawing Faster, Endangering Qinghai-Tibet
Railway,'' Xinhua.
\81\ ``New Height of World's Railway Born in Tibet,'' Xinhua
(Online), 24 August 05: ``About 550 kilometers of the railway runs on
frozen earth.''
\82\ ``Conference Opens on Judicial Response to Opening of Qinghai-
Tibet Railroad,'' China Court Net (Online), 16 June 06.
\83\ Under the Criminal Law, acts of sabotage against trains and
railways are crimes under Articles 116, 117, and 119, and gathering
crowds to disturb order at railway stations, along railway lines, or to
harm or obstruct business operation are crimes under Articles 290 and
291.
\84\ ``Conference Opens on Judicial Response to Opening of Qinghai-
Tibet Railroad,'' China Court Net (Online).
\85\ Ibid.
\86\ PRC State Council, ``Some Suggestions of the State Council on
Continuing To Press Ahead with the Development of the Western Region.''
The paper states that the success of GWD depends on sending a
substantial number of personnel to live and work in the western region:
``The key to the great development of the West is qualified personnel,
especially leading cadres and high-level professionals. . . . Each year
we should select a fairly large number of cadres at the appropriate
levels and send them to the Western region to work among leading groups
above the county level. . . . We need to establish a system that
regularly sends scientific, technical, educational, public health, and
cultural personnel and other professionals to the Western region to
support work in the rural areas.'' The paper advises that the
government must establish ``regional economic growth nodes'' that will
``promote the development of an entire area.''
\87\ ``Tibet Rail Construction Completed,'' China Daily (Online),
15 October 05. ``The gigantic project, which involves an investment of
33 billion yuan (US$4.7 billion), is part of the nation's efforts to
build up the underdeveloped western regions. . . . The line is expected
to attract tourists, traders and ethnic Chinese settlers who currently
have to take either expensive flights to Lhasa or bone-shaking bus
rides.''
\88\ Provisions of the State Council for Implementing the Law on
Regional Ethnic Autonomy of the People's Republic of China, issued 11
May 05, art. 29.
\89\ Ibid.
\90\ ``Responsible Comrades from the Organization Department of the
CPC Central Committee, the Ministry of Personnel, and the Ministry of
Education Answer Reporter's Questions on Guiding and Encouraging
Graduates of Schools of Higher Learning To Seek Employment in Grass-
Roots Areas,'' Xinhua, 13 July 05 (Open Source Center, 22 July 05).
``While continuing to carry out the `plan for encouraging university
students to serve the western region voluntarily,' the `Opinions' have
clearly demanded that in the next five years starting from 2005, a
certain number of graduates of schools of higher learning will be
recruited every year and organized to carry out the work of supporting
education, supporting agriculture, supporting medical care, and
assisting the poor in towns and townships. After serving for two to
three years, they will be assisted by relevant departments to
independently choose their career in the market.'' (``Opinions on
Guiding and Encouraging Graduates of Schools of Higher Learning to Seek
Employment in Grassroots Areas'' explains that the government will not
rely solely on volunteers, but will recruit graduates to work in the
GWD region.)
\91\ Ibid.
\92\ Tabulation on China's Nationality: Data of 1990 Population
Census, Table 2-1. Tabulation on Nationalities of 2000 Population
Census of China, Table 10-1. According to census data, Han population
decreased in 10 areas of Tibetan autonomy (listed in order of size of
decrease): Guoluo prefecture (Qinghai), -25.0 percent; Hainan
prefecture (Qinghai), -22.7 percent; Haibei prefecture (Qinghai), -20.2
percent; Huangnan prefecture (Qinghai), -19.2 percent; Yushu prefecture
(Qinghai), -16.9 percent; Muli county (Sichuan), -16.1 percent; Aba
prefecture (Sichuan), -14.3 percent; Haixi prefecture (Qinghai), -9.0
percent; Ganzi prefecture (Sichuan), -7.9 percent; Tianzhu county
(Gansu), -0.9 percent.
\93\ Census day was July 1 in 1990, and November 1 in 2000. The
population of transient Han workers and vendors in Tibetan areas peaks
during summer and is declining by November, undermining the reliability
of direct comparison of 1990 and 2000 data.
\94\ The national census uses a method of enumeration that attempts
to record more of the population as present in the locations where they
actually are, rather than at the location recorded on their permanent
residence registration certificates. Provincial annual statistical
yearbooks instead rely on data compiled by the Public Security Bureau
(PSB).
\95\ Tabulation on Nationalities of 2000 Population Census of
China, Table 10-1.
\96\ Tibet Statistical Yearbook 2005 (Beijing: China Statistics
Press, 2005), Table 3-4, ``Population Nationality,'' 33. The Yearbook
reports that there were 93,306 Han in the TAR in 2004, the most recent
year for which data were reported. The figure is substantially lower
than the number of Han reported in the TAR by the 2000 census.
\97\ Ma Rong (Professor and Chair, Department of Sociology, Peking
University) and Tanzen Lhundup (Research Fellow and Vice Director,
Institute of Social Economic Development, Chinese Center for
Tibetological Studies), ``Temporary Migrants in Lhasa in 2005,''
unpublished conference paper, Section IV(4.5). The authors surveyed
1,470 migrants: 68.1 percent of them had arrived in Lhasa in the period
2000-2005, and 72.5 percent of them had been in Lhasa for more than one
year. Ibid., Section IV(4.6). Of the 1,470 migrants, the Tibetan total
is 235 and the Hui total is 163. (The paper does not state a total
number of Han migrants surveyed.) Ibid., Section IV(4.8). Education
levels are known for 965 Han migrants. (The paper provides ethnicity
for 1,363 of the 1,470 migrants. Because none of the remaining 107
migrants are Tibetan or Hui, it is likely that most of them are Han.)
\98\ Ibid., Section IV(4.1). 11,185 temporary migrants applied for
a ``Temporary Residence Certificate'' in 2000. In 2005, 52,812 migrants
registered with the Lhasa Urban District PSB, while [migrants] renting
apartments numbered 69,924. ``It is clear that a large number of
temporary migrants did not apply for a ``certificate'' or report their
``renting'' activities. The real number [of migrants] is much larger.''
The Lhasa PSB estimated that the number of temporary migrants in Lhasa
varied between 100,000 and 200,000, according to the paper.
\99\ Ibid., Section IV(4.1).
\100\ See CECC, 2005 Annual Report, 11 October 05, Section VI--
Tibet--Culture, Development, and Demography, for more information about
Tibetan educational levels.
\101\ Tabulation on Nationalities of 2000 Population Census of
China, Table 2-3. Based on 2000 census data for persons aged 15 and
over, the rate of illiteracy of Tibetans (47.55 percent) is 5.24 times
higher than China's national average (9.08 percent), and 5.53 times
higher than the rate of illiteracy for Han (8.60 percent). Tabulation
on the 2000 Population Census of the People's Republic of China
(Beijing: China Statistics Press, August 2002), Table 2-2. Based on
2000 census data, of 1,061,196,336 Han aged six and over, 93,677,240
(8.83 percent) reached senior middle school. Of 4,791,241 Tibetans aged
six and over, 81,366 (1.70 percent) reached senior middle school. Based
on the data, Han reached senior middle school at 5.19 times the rate of
Tibetans.
\102\ Ma Rong and Tanzen Lhundup, ``Temporary Migrants in Lhasa in
2005,'' Section IV(4.8), Table 14.
\103\ Ibid., Section IV(4.8), Table 14.
\104\ Ibid. The survey sample included 1,470 temporary migrants.
Table 14 provides data on educational level and ethnicity for 1,373
participants: 965 Han, 235 Tibetan, 146 Hui, and 27 other. In section
4.6, ``Religion and Political Status of Temporary Migrants,'' the
report states that 235 Tibetans and 163 Hui were included in the
survey. (The paper does not state a total number of Han surveyed. It is
likely that many of the 97 participants not accounted for in Table 14
are Han since the report specifies the total number of Tibetan and
Hui.)
\105\ The disparity between urban and rural education that
adversely affects rural Tibetans is consistent with a nationwide
problem in China. Levels of Tibetan educational attainment in cities,
towns, and rural areas are, however, lower than national averages. See
CECC, 2005 Annual Report, 11 October 05, Section VI--Tibet--Culture,
Development, and Demography, for more information about Tibetan
educational levels.
\106\ Tabulation on Nationalities of 2000 Population Census of
China. Table 2-1a shows that 8,845 of 137,545 TAR Tibetans aged six and
over, and classified as ``city'' residents, reached senior middle
school as their highest level of educational attainment; Table 2-1b
shows that 5,400 of 211,990 TAR Tibetans aged six and over, and
classified as ``town'' residents, reached senior middle school; Table
2-1c shows that 5,999 of 1,808,859 TAR Tibetans aged six and over, and
classified as ``rural'' residents, reached senior middle school. Based
on these figures, 14,245 of the 349,535 Tibetans (4 percent) aged six
and over who were residents of towns and cities reached senior middle
school, compared to 5,999 of the 1,808,859 Tibetans (0.33 percent) aged
six and over who were rural residents.
\107\ Ibid. Based on the data in Tables 2-1a, 2-1b, and 2-1c, there
were 5.18 times as many rural Tibetans aged six and over as there were
town and city Tibetans.
\108\ ``Milestone in Tibet's Reform, Development, and Stability,''
People's Daily, 19 July 01 (Open Source Center, 19 July 01).
\109\ ``Tibetans Report Income Rises,'' Xinhua, 31 January 06 (Open
Source Center, 31 January 06).
\110\ ``A Cadres Meeting Was Held To Mark the 40th Anniversary of
the Founding of the Tibet Autonomous Region,'' Xinhua, 31 August 05
(Open Source Center, 7 September 05). Jia Qinglin listed priorities for
the TAR that include improving income and living conditions for farmers
and herdsmen, and improving education and healthcare for all TAR
residents. ``Tibet to Improve Rural School Conditions,'' China Radio
International (Online), 4 May 03.
\111\ ``More Nomadic Tibetan Herders Settle Down,'' Xinhua
(Online), 2 September 04. The program was one of the ``numerous key
aiding-Tibet projects'' established by the Fourth Forum on Work in
Tibet, held by the Communist Party Central Committee in June 2001 in
Beijing.
\112\ Hamish McDonald, ``China Anxious To Prove Settled Life is
Better for Tibetan Nomads,'' Sydney Morning Herald (Online), 5 October
05. ``A Qinghai official, Wang Zeshan, said about 10,000 nomadic
households--or about 60,000 people--Mongols and Kazaks as well as
Tibetans, had been settled in this way, which he said was 89.2 percent
of the nomad population before the scheme started three years ago.''
\113\ CECC Staff Interviews. The nomad families lived in Gannan
(Kanlho) TAP and Tianzhu (Pari) Tibetan Autonomous County.
\114\ Development Projects in Tibetan Areas of China: Articulating
Clear Goals and Achieving Sustainable Results, Staff Roundtable of the
Congressional-Executive Commission on China, 19 March 04, Testimony of
Daniel J. Miller, Agriculture Development Office, U.S. Agency for
International Development, 3. Miller pointed out, for example, that in
the past 20 years, the government had achieved agricultural and rural
growth, reduced poverty, and addressed environmental and natural
resource degradation issues.
\115\ Ibid., 3. Miller noted the transformation that has taken
place because of nomad settlement, privatization and fencing of
rangelands, and infrastructure development. But, according to Miller:
``Government development programs have generally taken a top-down
approach and, despite many of their good intentions, have often been
hampered because Tibetan farmers and nomads were not involved in both
the design and implementation of activities. Many of the government's
efforts have also been not as effective because of faulty assumptions
that have been made about poverty and Tibetans' traditional
agricultural and livestock production practices.''
\116\ CECC Annual Reports for 2002-2005 provided the number of
Tibetan political prisoners detained or imprisoned, according to then-
current information: 2002 (fewer than 200 prisoners); 2003
(approximately 150 prisoners); 2004 (approximately 145 prisoners); 2005
(approximately 120 prisoners). Data for 2002-2004 are based on Tibet
Information Network (TIN) reports. Data for 2005 was drawn from the
CECC Political Prisoner Database (PPD).
\117\ Steven D. Marshall, In the Interests of the State: Hostile
Elements III--Political Imprisonment in Tibet 1987-2001 (London: Tibet
Information Network, 2002), 3. There were nearly 700 known or likely
Tibetan political prisoners by the end of 1995.
\118\ See CECC, 2005 Annual Report, 11 October 05, Section VI--
Tibet--Tibetan Culture and Human Rights, for discussion of how Tibetans
use of literature to lament cultural loss and advocate ethnic
ambitions.
\119\ Tibetan Government-in-Exile (Online), ``Education Will Help
Tibetans to Fight for Their Rights,'' 17 January 06. An estimated
90,000 persons attended the January 5-15 Kalachakra teaching. About
9,000 attendees were Tibetans who traveled from Tibetan areas of China.
\120\ Wildlife Trust of India (Online), ``Tibetans at Kalachakra
Vow for Wildlife Protection,'' 17 January 06.
\121\ TibetInfoNet (Online), ``Tibetans Burn Animal Skins in
Rebkong,'' 10 February 06. The report provides information about
burning fur at Rongbo Monastery in Tongren (Rebgong), the capital of
Huangnan (Malho) TAP in Qinghai province, and the role of the
organizer, Tseten Gyal. The incident was apparently the first of its
kind. ``Tibetans Swear Off Endangered Furs After Dalai Lama Appeal,''
Radio Free Asia (Online), 13 February 06. The article provides
additional detail about the incident organized by Tseten Gyal in
Tongren (Rebgong). TibetInfoNet (Online), ``Burning of Wildlife Skins
Prohibited as Tensions Rise in Rebkong,'' 14 February 06. According to
the report, local authorities in Tongren banned fur-burning and the
``situation'' in the area was ``tense.'' ``Tibetan Youths Detained Over
Anti-Fur Campaign,'' Radio Free Asia (Online), 21 February 06. The
article reports on organized fur-burning in Aba (Ngaba) and Ruo'ergai
(Dzoege) counties in Aba Tibetan and Qiang Autonomous Prefecture,
Sichuan province. TibetInfoNet (Online), ``Accounts of Wildlife Skins
Burning,'' 17 March 06. The report provides details of fur-burning in
Aba and Ruo'ergai (Dzoege) counties in Aba prefecture, Sichuan
province. TibetInfoNet (Online), ``Fur Burning Incidents in Gansu,'' 29
March 06. The report provides a detailed account of fur-burning in
Hezuo (Tsoe), the capital of Gannan (Kanlho) TAP in Gansu.
\122\ ``Tibetans Swear Off Endangered Furs After Dalai Lama
Appeal,'' Radio Free Asia. According to the report, a source told RFA,
``Soon after [fur-burning activity on February 8] national security
officials and local public security officials confronted [Tseten Gyal]
and demonstrated their dislike. That very night he was taken to the
public security bureau office and interrogated for a long time.''
Officers asked him repeatedly if he had any ``political motives'' for
the campaign, according to the report. (The account provides further
information establishing that Tseten Gyal was released.) ``Tibetan
Youths Detained Over Anti-Fur Campaign,'' Radio Free Asia. The article
reports the detention of eight men in February who organized fur-
burning at Kirti Monastery in Aba county. Authorities interrogated the
men, but none of them were ``punished or beaten,'' according to the
account, and the men denied that the fur-burning was done ``under
outside influence'' (a term Chinese officials often use to refer to the
Dalai Lama). Authorities permitted relatives to visit the detainees.
(According to subsequent, unpublished information, all of them were
released after an unspecified period of time.)
\123\ TibetInfoNet (Online), ``Fur Burning Incidents in Gansu,'' 29
March 06. (The event took place in Gannan TAP.) According to the
report, the organizers, some of whom were local government staff,
initially planned to conduct the event on March 10. The date coincides
with the anniversary of the 1959 Lhasa Uprising, and the organizers
were concerned that a public gathering that day would be ``politically
sensitive'' and a ``potential deterrent'' to attendees. They
rescheduled it for March 14, a date coinciding with a Tibetan Buddhist
festival on which Tibetans customarily make offerings at monasteries.
The organizers staged the event at Kharguthog Monastery in Hezuo (the
capital of Gannan TAP) because they thought the monastic site would be
less likely to embarrass the authorities.
\124\ Ibid. According to the TibetInfoNet report, ``While the furs
were burning, some people were seen chanting prayers for the Dalai
Lama, while others shot videos and stills of the scene with the express
intention of letting the outside world know about the event. The
general consensus in Tsoe is that the main purpose of the event was to
please the Dalai Lama, and people asked that reports about the event be
communicated to him.''
\125\ Ibid.
\126\ According to PPD data current in August 2006, there were 59
known cases of political imprisonment of Tibetans in Sichuan province
in 2001-2004 compared to 46 in the TAR. One case of Tibetan political
imprisonment is recorded in Sichuan in 2000.
\127\ Free Tibet Campaign (Online), ``Four Monks and Nuns Arrested
for Displaying Dalai Lama Poster,'' 30 January 06. According to the
report, the posters ``called for the independence of Tibet, for the
Chinese authorities to enter into negotiations, and reportedly said
that China should not host the 2008 Olympics until the Tibet question
is peacefully resolved.'' Security officials detained the monks and
nuns in May 2005.
\128\ On September 27, 1987, 21 monks from Drepung Monastery staged
a peaceful protest march in Lhasa, calling for Tibetan freedom.
Security officials detained all of them. It was the first Tibetan
political protest in China in the post-Cultural Revolution period that
was internationally reported. A few days earlier, on September 21, the
Dalai Lama introduced his Five Point Peace Plan in a speech before the
U.S. Congressional Human Rights Caucus in Washington, D.C. Reports at
the time did not portray the September 27 political protest in Lhasa to
be a consequence of the Dalai Lama's address in Washington. According
to a report (``Fall of a Nation'') available on the Web site of the
Tibetan government-in-exile, Chinese authorities in Lhasa began an
anti-Dalai Lama campaign after he spoke to the Congress, and staged
mass political rallies and a public sentencing that caused widespread
resentment among Tibetans.
\129\ The Dui Hua Foundation (Online), ``Dui Hua Welcomes Phuntsog
Nyidron's Arrival in the United States,'' 15 March 06.
\130\ According to information available in the CECC PPD, Phuntsog
Nyidron, a nun at Mechungri Nunnery, was detained on October 14, 1989
and sentenced to nine years' imprisonment for ``counterrevolutionary
propaganda and incitement'' the following November. In September 1993,
she was convicted along with 13 other nuns for committing additional
counterrevolutionary crime and sentenced to an additional eight years
after the nuns secretly recorded songs on a cassette tape that was
smuggled out of the prison. She received a one-year sentence reduction
for good behavior in March 2001. The remainder of her sentence was
commuted on February 26, 2004 and she was released from prison.
\131\ Lhasa Municipal Intermediate People's Court, Criminal Court
Judgment, No. 52 (2000). Bangri Chogtrul (also known as Bangri Tsamtrul
or Jigme Tenzin Nyima) was sentenced to life imprisonment on September
26, 2000, on charges of ``attempting to split the country.''
\132\ The Dui Hua Foundation (Online), ``Clemency Granted to
Tibetan Monk, Labor Activist,'' 28 February 06. The Lhasa Intermediate
People's Court commuted Bangri Chogtrul's sentence from life
imprisonment to 19 years on July 31, 2003, and further reduced the
sentence by 1 year on November 17, 2005. His 18-year sentence will
expire on July 30, 2021.
\133\ The Dui Hua Foundation (Online), ``Last Known Female
Political Prisoner in TAR Released Early,'' 28 June 06.
\134\ UN Commission on Human Rights (Online), ``Report of the
Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Manfred Nowak: Mission to China,'' 10 March 06
[hereinafter Nowak Report]. ``The Special Rapporteur was informed that
Qushui prison is for very serious crimes (i.e. sentences of over 15
years), and holds the principal criminal actors while accessories are
held in Drapchi.'' PRC Criminal Law, art. 25. ``A joint crime refers to
an intentional crime committed by two or more persons jointly.'' PRC
Criminal Law, art. 26. ``A principal criminal refers to any person who
organizes and leads a criminal group in carrying out criminal
activities or plays a principal role in a joint crime.''
\135\ International Campaign for Tibet, ``New Prison in Lhasa:
Increased Surveillance for Political Prisoners, `Oppressive' Cell-
blocks,'' 20 January 06. According to the ICT report, ``at least 25
political prisoners'' were transferred from TAR Prison (Drapchi) to
Qushui Prison in summer 2005. The figure concurs with CECC staff
analysis of likely transferees.
\136\ CECC, Annual Report 2005, 112. Jigme Gyatso was sentenced in
1996 to 15 years' imprisonment for counterrevolution. Chinese officials
told a UN Working Group on Arbitrary Detention (UNWGAD) delegation in
September 2004 that he was guilty of ``planning to found an illegal
organization and seeking to divide the country and damage its unity.''
Another UNWGAD opinion on the case found that ``there is nothing to
indicate that the `illegal organization' . . . ever advocated violence,
war, national, racial, or religious hatred, and that Jigme Gyatso was
``merely exercising the right to freedom of peaceful assembly with
others in order to express opinions.''
\137\ Tibetans often add the honorific ``Rinpoche'' after Bangri
Tsogtrul's name, signifying his status as a reincarnated lama.
\138\ According to information available in the CECC PPD, monk
Lobsang Tsultrim of Drongsar Monastery was one of three monks detained
in 1995 for removing signboards on a government office building and
damaging them, and putting up posters opposing China's rule of Tibet
and supporting the legitimacy of the boy the Dalai Lama recognized as
the Panchen Lama. The Changdu Intermediate People's Court sentenced the
monks to imprisonment on charges of inciting counterrevolutionary
propaganda.
\139\ Nowak Report. ``In one incident in March 2004, [Jigme Gyatso]
yelled out, `Long live the Dalai Lama,' for which he was kicked and
beaten, including with electric batons. The electric batons were used
on his back and chest with painful effect, and ceased once the Chief of
Police came and stopped it. After this incident his sentence was
extended for an additional two years.''
\140\ Ibid. According to the prisoner interviews, Qushui Prison's
cells are hotter in summer and colder in winter than those in TAR
Prison, and are poorly lit and ventilated.
Notes to Section IX--North Korean Refugees in China
\1\ Bill Powell, ``Long Walk to Freedom,'' Time Magazine (Online),
23 April 06; U.S. Committee for Refugees and Immigrants (Online),
``World Refugee Survey 2006,'' China section, 14 June 06. In August
2005, Chinese authorities detained seven North Koreans seeking asylum
in a South Korean international school in Yantai and repatriated them
in September. For the two years before the incident, North Korean
refugees had been largely successful in seeking asylum on international
school grounds in China. Park Song-wu, ``China Hands Over 8 NK
Refugees,'' Korea Times (Online), 11 October 05; ``China Changes Tack
on Asylum,'' Seoul JoongAng Daily (Online), 11 October 05.
\2\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, Country Reports on Human Rights Practices--2005, China
(includes Tibet, Hong Kong, and Macau), 8 March 06. More than one-third
of the 65 North Korean refugees in Yanbian interviewed by Refugees
International in 2003 and 2004 had been repatriated at least once, and
14 percent had been repatriated multiple times. Joel Charny, ``Acts of
Betrayal: The Challenge of Protecting North Koreans in China,''
Refugees International, April 2005, 11.
\3\ Life Funds for North Korean Refugees (Online), ``Mother of 5-
year-old Repatriated to North Korea,'' 1 March 06; Joel Charny, ``North
Korean Asylum Seekers in China Face Heightened Risk of Deportation,''
Refugees International (Online), 27 August 04. In June 2004, public
notices posted throughout Yanji asked residents to be on the lookout
for illegal North Korean migrants and to turn in any to local police
for deportation. Charny, ``Acts of Betrayal,'' 9.
\4\ Convention relating to the Status of Refugees, 28 July 51 by
the United Nations Conference of Plenipotentiaries on the Status of
Refugees and Stateless Persons convened under General Assembly
resolution 429 (V) of 14 December 50, art. 33. China acceded to the
Convention on September 24, 1982.
\5\ Democratic People's Republic of Korea Ministry of State
Security, People's Republic of China Ministry of Public Security,
Mutual Cooperation Protocol for the Work of Maintaining National
Security and Social Order in the Border Area, Rescue the North Korean
People Urgent Action Network (RENK), 12 August 86. The protocol commits
each side to treat as illegal those border crossers who do not have
certificates, except in cases of ``calamity or unavoidable factors.''
According to James Seymour, RENK obtained and translated the document
in December 2002. Seymour writes that ``this document cannot be
authenticated, but it does not seem implausible.'' James Seymour,
``China: Background Paper on the Situation of North Koreans in China,''
commissioned by the UNHCR, Protection Information Section, January
2005, 13.
\6\ Seymour, ``China: Background Paper on the Situation of North
Koreans in China,'' 5.
\7\ Ministry of Foreign Affairs (Online), ``Foreign Ministry
Spokesperson Qin Gang's March 21, 2006 Press Conference'' [2006 nian 3
yue 21 ri waijiaobu fayanren Qin Gang zai liexing jizhehui shang da
jizhe wen], 21 March 06. The UNHCR distinguishes between refugees and
economic migrants by defining the latter as someone who ``leaves a
country voluntarily to seek a better life. Should he or she elect to
return home they would continue to receive the protection of their
government.'' UNHCR, ``The 1951 Refugee Convention: Questions &
Answers,'' July 2003, 10.
\8\ Convention relating to the Status of Refugees, art. 1.
\9\ The UN Special Rapporteur on Human Rights in North Korea,
``Question of the Violation of Human Rights and Fundamental Freedom in
any Part of the World: Situation of Human Rights in the Democratic
People's Republic of Korea,'' 10 January 05, 13.
\10\ DPRK Penal Code, amended 2004, arts. 233, 62. For an English
translation of the quoted sections of these articles, see Norma Kang
Muico, ``An Absence of Choice: The Sexual Exploitation of North Korean
Women in China,'' Anti-Slavery International, 9 November 05, 2.
Sometime during and after the 1995-1998 famine, the North Korean
government began to distinguish between repatriated North Koreans who
sought political refugee status in China and those who simply crossed
the border in search of food or employment. The government seems to
have reduced the standard sentence for those in the latter category to
less than six months. Charny, ``Acts of Betrayal,'' 12.
\11\ Liberty in North Korea (Online), ``LiNK Team Returns From
China,'' 6 December 05.
\12\ Charny, ``Acts of Betrayal,'' 2.
\13\ Combating Human Trafficking in China: Domestic and
International Efforts, Hearing of the Congressional-Executive
Commission on China, 6 March 06, Testimony and Written Statement
Submitted by Abraham Lee, Director of Public Relations, Crossing
Borders; Muico, ``An Absence of Choice,'' 10.
\14\ Muico, ``An Absence of Choice,'' 12.
\15\ North Korea: Human Rights Update and International Abduction
Issues, Joint Hearing of the Subcommittee on Africa, Global Human
Rights and International Operations and Subcommittee on Asia and the
Pacific, Committee on International Relations, U.S. House of
Representatives, 27 April 06, Testimony and Written Statement Submitted
by Jay Lefkowitz, Special Envoy for Human Rights in North Korea, U.S.
Department of State.
\16\ Joel Charny points out that although the most common estimate
of North Koreans in China is 100,000 to 300,000, the estimate is
``problematic'' given the lack of publicly available data and the fact
that many North Koreans in China move back and forth across the border
seeking temporary employment rather than political asylum. Charny,
``Acts of Betrayal,'' 5.
\17\ Mikyoung Kim, ``Beijing's Hot Potato: North Korean Refugees
and Human Rights Debates,'' Association for Asian Research (Online), 16
March 05.
\18\ Office to Monitor and Combat Trafficking in Persons, U.S.
Department of State, 2006 Trafficking in Persons Report, 5 June 06.
\19\ Combating Human Trafficking in China, Written Statement and
Testimony of Wenchi Yu Perkins, Director, Anti-Trafficking and Human
Rights Program, Vital Voices, Written Statement and Testimony of
Abraham Lee.
\20\ Ibid.; Life Funds for North Korean Refugees (Online), ``Speech
to Joint Session of NGOs and Lawmakers of 4 Nations,'' 1 Aug 05.
According to Norma Kang Muico, ``[t]raffickers seek out North Korean
women to exploit at river crossings, train stations, or markets.''
Muico, ``An Absence of Choice,'' 3. In addition to the high number of
trafficked North Korean women in China, many women are trafficked
multiple times, escaping only to be caught again. Combating Human
Trafficking in China, Written Statement and Testimony of Abraham Lee.
\21\ Muico, ``An Absence of Choice,'' 3, 5, 6. Traffickers rely on
deception and coercion to force North Korean women into marriage or
prostitution. Combating Human Trafficking in China, Written Statement
and Testimony of Abraham Lee. There is a considerable market for wives
in the Yanbian Autonomous Region, where the male-female ratio among the
unmarried age group after schooling is 14:1. Charny, ``Acts of
Betrayal,'' 11.
\22\ Most of these children do not have access to education because
they are not Chinese citizens. The Chinese government does not
recognize Chinese-North Korean marriages and does not grant citizenship
to children born from these marriages. Charny, ``Acts of Betrayal,''
11; Life Funds for North Korean Refugees (Online), ``Border Report
January 2006,'' January 2006.
\23\ Life Funds for North Korean Refugees (Online), ``Interview
with Our Local Staff Members in China,'' January 2006.
\24\ ``State Councilor: China To Continue Strengthening Cooperation
With UNHCR,'' People's Daily (Online), 23 March 06.
\25\ ``Foreign Ministry Spokesperson Qin Gang's March 21, 2006
Press Conference.''
\26\ ``The State Council's Legislative Plan for 2006'' [Guowuyuan
2006 nian lifa jihua], Eastday (Online), 30 March 06.
\27\ UNHCR (Online), ``Statement to Media by UN High Commissioner
for Refugees Antonio Guterres, on Conclusion of His Mission to the
People's Republic of China,'' 23 March 06.
\28\ Article III(5) United Nations (United Nations High
Commissioner for Refugees) and China, Agreement on the Upgrading of the
UNHCR Mission in the People's Republic of China to UNHCR Office in the
People's Republic of China, UNTS Vol. 1898/1899, I-3237, 1 December 95,
61-71. Excerpted text available at: North Korea: Human Rights,
Refugees, and Humanitarian Challenges, Hearing of the Subcommittee on
Asia and the Pacific, Committee on International Relations, U.S. House
of Representatives, 28 April 04, Written Statement Submitted by Tarik
M. Radwan, Assistant Professor of Law, Handong International Law
School, Pohang, Korea, and Advocate with Jubilee Campaign.
\29\ Bureau of Population, Refugees, and Migration, U.S. Department
of State, The Status of North Korean Asylum Seekers and the U.S.
Government Policy Towards Them, 11 March 05.
\30\ Benjamin Kang Lim, ``Women Most Vulnerable of North Korean
Refugees,'' Reuters, posted on the Crossing Borders Web site, 27 July
05.
\31\ White House (Online), ``Statement on China's Treatment of Kim
Chun-hee,'' 30 March 06; ``High Commissioner for Refugees Visits China,
Objects to North Korean Repatriation,'' CECC China Human Rights and
Rule of Law Update, May 2006, 2-3.
\32\ ``The Lucky Ones,'' Wall Street Journal (Online), 4 August 06.
In 2005, the Chinese government allowed several hundred North Koreans
to travel to South Korea after they had sought refuge at diplomatic
compounds or international schools in China. Nevertheless, most North
Koreans hiding in China who wish to seek asylum have to travel to a
third country to seek asylum or resettlement as refugees. In May 2006,
six refugees arrived in the United States as the first North Koreans to
be granted asylum under the North Korean Human Rights Act of 2004. The
six North Koreans had traveled secretly through China to a Southeast
Asian country to seek refuge in a U.S. Embassy. U.S. Department of
State, Country Reports on Human Rights Practices--2005, China; Melanie
Kirkpatrick, ``The New Underground Railroad,'' Wall Street Journal
(Online), 12 May 06.
\33\ The Plight of North Korean Migrants in China: A Current
Assessment, Staff Roundtable of the Congressional-Executive Commission
on China, 19 April 04, Written Statement Submitted by Kim Sang Hun,
activist on behalf of North Korean refugees.
\34\ David Chircop, ``Everett Pastor Out of Chinese Prison,''
Everett Daily Herald (Online), 21 Aug 06.
\35\ David Chircop, ``Everett Missionary Hopes to Shine a Light on
China,'' Everett Daily Herald (Online), 23 Aug 06.
\36\ ``Fifteen South Koreans Detained in China for Aiding N.K.
Defectors,'' Yonhap News (Online), 23 September 05.
\37\ U.S. Committee for Refugees and Immigrants, ``World Refugee
Survey 2006.''
\38\ Life Funds for North Korean Refugees, ``Speech to Joint
Session of NGOs and Lawmakers of 4 Nations.''
Notes to Section X--Developments in Hong Kong
\1\ United States-Hong Kong Policy Act of 1992, Public Law No. 102-
383, enacted 4 April 90; The Basic Law of the Hong Kong Special
Administrative Region of the People's Republic of China, enacted 4
April 90; Joint Declaration of the Government of the United Kingdom of
Great Britain and Northern Ireland and the Government of the People's
Republic of China on the Question of Hong Kong, adopted 19 December 84.
\2\ CECC, 2005 Annual Report, 11 October 05, 115-116.
\3\ CECC, 2004 Annual Report, 5 October 04, 104-6. Decision of the
Standing Committee of the National People's Congress on Issues Relating
to the Methods for Selecting the Chief Executive of the Hong Kong
Special Administrative Region in the Year 2007 and for Forming the
Legislative Council of the Hong Kong Special Administrative Region in
the Year 2008, 26 April 2004.
\4\ The Basic Law of the Hong Kong Special Administrative Region of
the PRC, arts. 45 and 68.
\5\ CECC, 2004 Annual Report, 105.
\6\ Of the 529 District Councilors, 427 are directly elected and
102 appointed. Constitutional Affairs Bureau, the Government of the
Hong Kong Special Administrative Region, The Fifth Report of the
Constitutional Development Task Force: Package of Proposals for the
Methods for Selecting the Chief Executive in 2007 and for Forming the
Legislative Council in 2008, 20 October 05.
\7\ Ibid.
\8\ Ibid.
\9\ Constitutional Affairs Bureau, the Government of the Hong Kong
Special Administrative Region (Online), ``Transcript of the Media
Session by the Chief Executive, Mr. Donald Tsang, on the Fifth Report
of the Constitutional Task Force,'' 19 October 05.
\10\ Ibid.
\11\ Constitutional Affairs Bureau, the Government of the Hong Kong
Special Administrative Region (Online), ``Statement by CS on the Fifth
Report of the Constitutional Development Task Force,'' 19 October 05.
\12\ K.C. Ng, ``Crowd Rallies for Democracy in Hong Kong,''
Washington Post (Online), 5 December 05.
\13\ Gary Cheung, ``Drop in Public Support for Reform Plan,'' South
China Morning Post (Online), 29 November 05.
\14\ Ibid.
\15\ ``Hong Kong Unveils Reform Package Adjustments,'' China Daily,
20 December 05 (Open Source Center, 21 December 05).
\16\ ``Hong Kong Lawmakers Reject First Stage of Government's
Reform Proposal,'' Agence-France Presse, 21 December 05 (Open Source
Center, 22 December 05).
\17\ The Sino-British Joint Declaration states that the provisions
of the ICCPR still remain in force in Hong Kong after the territory's
reversion to the PRC. Joint Declaration of the Government of the United
Kingdom of Great Britain and Northern Ireland and the Government of the
People's Republic of China on the Question of Hong Kong, Section XIII;
International Covenant on Civil and Political Rights, adopted by
General Assembly resolution 2200A (XXI) of 16 December 66, entry into
force 23 March 76 [hereinafter ICCPR]; Ravina Shamdasani, ``Basic Law
Interpretations `Concern' UN Rights Panel,'' South China Morning Post
(Online), 28 March 06.
\18\ See ICCPR, art. 25.
\19\ UN Human Rights Committee, Concluding Observations of the
Human Rights Committee--Hong Kong Special Administrative Region
(HKSAR), 30 March 06.
<all>