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HUMAN RIGHTS IN CHINA IN THE CONTEXT OF

THE RULE OF LAW

HEARING

BEFORE THE

CONGRESSIONAL-EXECUTIVE

COMMISSION ON CHINA

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

FEBRUARY 7, 2002

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

(

Available via the World Wide Web: http://www.cecc.gov

CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

LEGISLATIVE BRANCH COMMISSIONERS

Senate House

MAX BAUCUS, Montana, Chairman

CARL LEVIN, Michigan

DIANNE FEINSTEIN, California

BYRON DORGAN, North Dakota

EVAN BAYH, Indiana

CHUCK HAGEL, Nebraska

BOB SMITH, New Hampshire

SAM BROWNBACK, Kansas

TIM HUTCHINSON, Arkansas

DOUG BEREUTER, Nebraska, Co-Chairman

JIM LEACH, Iowa

DAVID DREIER, California

FRANK WOLF, Virginia

JOE PITTS, Pennsylvania

SANDER LEVIN, Michigan

MARCY KAPTUR, Ohio

NANCY PELOSI, California

JIM DAVIS, Florida

EXECUTIVE BRANCH COMMISSIONERS

PAULA DOBRIANSKY, Department of State

GRANT ALDONAS, Department of Commerce

D. CAMERON FINDLAY, Department of Labor

LORNE CRANER, Department of State

JAMES KELLY, Department of State

IRA WOLF, Staff Director

JOHN FOARDE, Deputy Staff Director

(II)

(III)

C O N T E N T S

Page

STATEMENTS

Opening statement of Hon. Max Baucus, a U.S. Senator from Montana and

Chairman, Congressional-Executive Commission on China ............................. 1

Opening statement of Hon. Doug Bereuter, a U.S. Representative from Nebraska and Co-Chairman, Congressional-Executive Commission on China ... 5

Opening statement of Hon. Carl Levin, a U.S. Senator from Michigan ............. 4

Qiang, Xiao, Executive Director, Human Rights in China ................................... 8

Jendrzejczyk, Mike, Washington Director, Human Rights Watch/Asia .............. 10

Feinerman, James V., James M. Morita Professor of Asian Legal Studies;

Associate Dean, International and Graduate Programs; Director, Asian Law

and Policy Studies, Georgetown University Law Center .................................. 13

Alford, William P., Henry L. Stimson Professor of Law and Director of the

East Asian Legal Studies Program, Harvard Law School ................................ 16

Opening statement of Hon. Sander Levin, a U.S. Representative from Michigan ......................................................................................................................... 18

APPENDIX

PREPARED STATEMENTS

Qiang, Xiao ............................................................................................................... 42

Jendrzejczyk, Mike .................................................................................................. 45

Feinerman, James V ................................................................................................ 56

Alford, William P ..................................................................................................... 63

Baucus, Hon. Max .................................................................................................... 67

Bereuter, Hon. Doug ................................................................................................ 69

Levin, Hon. Carl ...................................................................................................... 71

Levin, Hon. Sander .................................................................................................. 73

Kaptur, Hon. Marcy ................................................................................................. 74

Wolf, Hon. Frank R ................................................................................................. 75

Pitts, Hon. Joseph R ................................................................................................ 76

Feinstein, Hon. Dianne ........................................................................................... 77

Smith, Hon. Bob ....................................................................................................... 78

SUBMISSIONS FOR THE RECORD

Article from the Washington Post, entitled ‘‘Prison Labor: Can U.S. Point

Finger at China? American Inmates Manufacture Products, but Trade Debate Centers on Beijing’s Policies,’’ by Paul Blustein, dated June 3, 1997,

submitted by Representative Frank Wolf .......................................................... 80

Prepared statement of Robert M. Hathaway, Director of the Asia Program

at the Woodrow Wilson International Center for Scholars .............................. 81

Prepared statement of Stanley Lubman, Visiting Scholar, Center for Law

and Society and Lecturer in Law, School of Law, University of California

(Berkeley) .............................................................................................................. 85

Questions submitted for the record from Senator Bob Smith .............................. 90

Responses of Mike Jendrzejczyk to questions from Senator Bob Smith ............. 90

Responses of William P. Alford to questions from Senator Bob Smith ............... 91

(1)

HUMAN RIGHTS IN CHINA IN THE CONTEXT

OF THE RULE OF LAW

THURSDAY, FEBRUARY 7, 2002

CONGRESSIONAL-EXECUTIVE

COMMISSION ON CHINA,

Washington, DC.

The hearing was convened, pursuant to notice, at 2:45 p.m., in

room SD–215, Dirksen Senate Office Building, Hon. Max Baucus

(chairman of the Commission) presiding. Rep. Doug Bereuter (cochairman of the Commission) also presided.

Also present: Senators Levin and Hagel; Representatives Kaptur,

Pelosi, Levin, Davis, Dreier, Pitts, and Wolf; D. Cameron Findlay,

U.S. Department of Labor; and Lorne Craner, U.S. Department of

State.

OPENING STATEMENT OF HON. MAX BAUCUS, A U.S. SENATOR

FROM MONTANA, CHAIRMAN, CONGRESSIONAL-EXECUTIVE

COMMISSION ON CHINA

Chairman BAUCUS. The hearing will come to order.

I am very honored and very pleased to have our first hearing

today. It is, I think, going to make a difference—our commission.

We are very enthused. We understand the challenges facing us,

and we are anxious to meet these challenges. I thank all of you

who are here participating with us. We are very, very grateful for

your efforts.

I also thank my co-chair, Congressman Doug Bereuter, who has

been working very closely with me and with many of you, and my

fellow commissioners for their presence. I am heartened by the

number who are here today. We have a lot of work ahead of us as

we prepare our first annual report to the President and to the Congress this June.

Let me just give a few administrative announcements. Our next

hearing will be on April 11 and we will discuss human rights and

legal reform. Then we will hold a hearing on June 6 on commercial

rule of law and WTO [World Trade Organization] implementation.

Later this month, we will begin a series of staff-led public issues

roundtables. The first will be on the topic of reeducation through

labor. The staff will also hold an open forum where anyone and everyone is welcome to present views on human rights and the rule

of law.

I also want to particularly thank my good friend, Congressman

Sandy Levin. Congressman Levin and others worked hard, including Congresswomen Pelosi and Kaptur, to put this Commission toVerDate 11-MAY-2000 12:31 May 01, 2002 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 78790.TXT China1 PsN: China1
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gether in conjunction with the PNTR [Permanent Normal Trade

Relations] debate.

I think it is going to serve us very well, and particularly will

serve those in China who are suffering various indignations, incarcerations, and abuse of their human rights.

Let me start by explaining the role of this Commission, and the

role I hope we will play in United States-China relations.

First, we in the United States cannot impose our will on China

or on its 1.3 billion citizens. The decisions about what happens inside China can only be made by the Chinese people.

Second, China is an emerging regional and international power.

Our national interest requires intensive engagement. We must look

at China through the lens of reality.

China represents a significant challenge to the United States in

many other areas, and it represents a significant opportunity in

many areas. We need to look at the facts, analyze them objectively

and dispassionately, and act in ways that support our National interest.

Third, there are significant human rights abuses in China. In

some areas, the situation is worse today than in the past. In other

areas, there have been improvements. We will recognize the latter

and be critical of the former.

Fourth, there cannot be sustained protection of human rights

without the rule of law. Many Members of Congress, as well as recent administrations, have been active in securing the release or

reduction of sentences for individual prisoners of conscience in

China. I expect that to continue, as it should.

However, this Commission will look at human rights within the

context of the rule of law in China. We may address individual

cases, but only when there is likely to be a broader, systemic, and

structural impact in China.

The witnesses appearing today reflect that orientation: Human

Rights Watch and Human Rights in China have done excellent

work looking at the legal and political context in China within

which human rights can be protected. Professors Feinerman and

Alford have focused much of their work on the rule of law in legal

reform in China.

The United States-China relationship today is different than a

year ago. There has been a change in the bilateral relationship.

Beijing is cooperating with us on the war against terrorism. China’s rhetoric over Taiwan has ameliorated somewhat. China has

joined the WTO.

But serious problems remain between us in a number of areas:

Arms proliferation, human rights, and significant differences over

Taiwan.

This Commission will concentrate on the human rights aspect of

our relationship, with a focus on the rule of law in China. We will

look closely at areas such as religious freedom, political prisoners,

Tibet, ethnic minorities, labor rights, and the flow of information

in China.

We will examine the developing role of NGOs [Non-governmental

organizations] in China. We will look, especially, at developments

in the rule of law. This includes legal reform in the civil, criminal,

3

and commercial areas, and the way in which these laws are or are

not being implemented.

We will look at how the United States can pursue policies and

programs that will increase the respect for law in China, and how

we can strengthen those in China who are working to increase the

transparency and objectivity of the legal system.

China is not a monolith. There are many inside the Chinese Government, the Chinese party, and state-owned enterprises who are

working desperately to maintain the status quo. But there are also

many in China who want to see genuine reform, both economic and

political.

They recognize that, for China to become a great nation and fully

join the international community, China will have to follow international standards in the human rights area.

They must meet the obligations the government has made in

international covenants covering political, economic, social, cultural, and civil rights. They will have to honor those provisions in

the Chinese constitution and in Chinese law that claim to protect

the individual from abuse by the state.

As I said earlier, decisions about what happens inside China can

only be made by the Chinese themselves. The question for this

Commission, for the Congress, and the administration, is how can

we best assist those who seek reform?

Incorporating China into the WTO is surely one way to begin

down the road of significant commercial law reform. We will not

shrink from pointing out the ways in which the Chinese system is

falling short of meeting those standards.

But the major challenge for the Commission is, how can we contribute to an improvement in the human rights of Chinese citizens,

and how can we influence the structural change necessary to improve how those citizens are treated?

In our hearings, we want to hear from groups and individuals

who can add to our knowledge and understanding. We also want

to hear from them about the ways that this Commission can help

promote and support positive, constructive, and lasting change in

China.

Let me address some remarks to the Chinese Government. When

the House approved the PNTR legislation, the Chinese Government

said that it was a wise decision. But their spokesman went on to

say, ‘‘The Chinese side is seriously concerned and dissatisfied that

the bill contains provisions that attempt to interfere in China’s internal affairs, in various names like human rights, and harm the

interest of China. The Chinese side has announced in explicit

terms that it firmly opposes and cannot accept these provisions.’’

I have two comments about that statement. First, this Commission is an instrument of the U.S. Government. We will vigorously

pursue our mandate to consider the issues of human rights and the

rule of law in China. We do not seek to impose American standards

on China, but there are numerous international covenants relating

to human rights that China has entered.

The Chinese constitution and Chinese laws include many written

guarantees for the citizens of China. For China to be a full and responsible member of the international community, and that includes the global trading system and the rule of law, that must be

4

honored. This is an issue of concern and interest to all nations

interacting with China.

We will work with China when we can. We will acknowledge

progress when we see it. We will criticize when there is no

progress. I firmly believe that there are many in China who agree

with this approach: Government officials, business people, and ordinary citizens.

Second, I urge the Chinese authorities to work with this Commission. I spent a decade fighting against conditions on our trading

relationship with China. Along with others on this Commission, I

fought hard for PNTR. I believed that engagement and deepening

the relationship between our two nations was the best way to induce change in China and bring them fully into the community of

nations. It is in China’s long-term interest now to work closely with

us.

Let me conclude with a few comments about the administration’s

human rights policy. President Bush met with Chinese President

Jiang Zemin in Shanghai in October. The President discussed the

importance of religious freedom. He made a strong statement that

the war on terrorism should not be used to justify a crack- down

on minority groups in China.

Under the leadership of Assistant Secretary of State Lorne

Craner, a member of this Commission, the United States has reengaged China in a bilateral human rights dialogue.

President Bush will visit Beijing February 21–22, and again

meet with senior Chinese leaders. I urge him to ensure that human

rights and the rule of law issue are among his top priorities in

those discussions.

Let me now turn to my co-chairman, Congressman Bereuter, for

his statement as we initiate the work of the Congressional-Executive Commission on China.

I also very much appreciate the deep involvement of other members of this Commission. After Congressman Bereuter makes his

statement, I will introduce the witnesses. Frankly, I know a lot of

the members of the Commission would like to make opening statements, but for us to get down to our work, I think it is better that

we hear from our witnesses. That gives us more time to engage our

panel, looking for a more constructive and efficient process.

So, Congressman Bereuter.

[The prepared statement of Senator Baucus appears in the appendix.]

Congressman BEREUTER. I yield.

OPENING STATEMENT OF HON. CARL LEVIN, A U.S. SENATOR

FROM MICHIGAN

Senator LEVIN. I have a statement that I will make a part of the

record, Mr. Chairman. I just wanted to congratulate you and our

vice chairman, and my brother, Sandy Levin, particularly, if I can

single him out, for this very visionary approach to changing, hopefully, China’s human rights record.

I have a statement, though, if it is all right, that can be made

part of the record.

Chairman BAUCUS. Thank you, Senator, very much. We very

much appreciate having both you and your brother as members.

5

[The prepared statement of Senator Levin appears in the appendix.]

OPENING STATEMENT OF HON. DOUG BEREUTER, A U.S. REPRESENTATIVE FROM NEBRASKA, CO-CHAIRMAN, CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

Representative BEREUTER. Chairman Baucus, Senator Hagel,

Congressman Levin, fellow commissioners, distinguished panelists,

ladies and gentlemen, I would like to introduce a few Executive

Branch members who are here today: Cameron Findlay, the Deputy Secretary of Labor, and Lorne Craner, the Assistant Secretary

of State for Democracy, Human Rights, and Labor.

I consider it a privilege to join you, Senator Baucus, in convening

this first formal meeting of the Congressional-Executive Commission on the People’s Republic of China.

I am particularly pleased to recognize the presence of my colleague and fellow commissioner, the distinguished gentleman from

Michigan, Sandy Levin, who deserves great credit for being a leading intellectual godfather of this Commission who has worked tirelessly with me, Senator Baucus, and others to see it come into

being.

I look forward to our continuing association as Commission members, all of us, in fostering the work of the Commission over the

next years.

Senator Baucus has noted that the Commission was created by

the China Relations Act of 2000 to create a forum for continuing

Congressional involvement in monitoring China’s human rights

practices and the development of the rule of law.

The Commission’s mandate reflects continuing concerns in both

Houses of Congress and among members of both political parties,

not only about the individual instances of human rights abuses in

China, but also about the need for encouraging systemic changes

in China to end such practices.

Undoubtedly, all on the Commission share the goal of encouraging positive changes in Chinese Government policy and practice

that will help those who have been punished unjustly for seeking

to exercise basic human rights, prevent future abuses, and bring

China’s human rights practices into conformity with international

standards.

There are differences in the international community, and undoubtedly in Congress, as to the best methods for achieving this

goal. But I believe there is a broad consensus in Congress and

America on the importance of the goal itself.

In this context, I think that the Commission should concentrate

primarily on systemic changes to China’s human rights practices

and legal regime and neither to concentrate, primarily at least, nor

to duplicate primarily the important advocacy work on individual

cases already being done by individual Members of Congress,

human rights NGOs, and concerned members of the public.

Of course, the registry of victims of human rights abuses that

our mandate requires will provide an important resource for such

advocacy, so the Commission will have a crucial role to play in this

work.

6

In my view, the human rights and rule of law parts of this Commission’s mandate are intimately related. Virtually everyone in

China, the United States, and elsewhere who is concerned with

human rights practices in China believes that progress in legal reform will necessarily result in greater compliance with the basic

human rights enshrined in such international covenants as the

Universal Declaration of Human Rights.

Many also believe that such reforms will improve not only government transparency, but also the development of the essential institutions of democratic governance. The development of an open,

transparent, and predictable legal system throughout China should

also be beneficial over time in other ways, such as providing ordinary Chinese citizens with the legal means to check the arbitrary

exercise of official power, as well as helping to ensure China’s full

implementation of its commitments under the World Trade Organization protocol of accession.

Before we hear from our outstanding panel, I would like to offer

some thoughts on four aspects of our Commission’s work that I

think will be of continuing importance to us.

These aspects are: (1) the Commission as a forum, for a balanced,

constructive focus on human rights issues in China; (2) the Commission as a catalyst for United States efforts to support the development of rule of law in China; (3) the Commission’s development

of a registry of victims of human rights abuses; and (4) the Commission as a resource for Senators, Members of the House, and

their respective staffs, United States-China specialists, and the

general public.

With respect to the Commission’s mandate on human rights, I

believe it will be vital for us to undertake a comprehensive, objective look at the current state of Chinese Government compliance or

noncompliance with international human rights norms.

Following the sensible requirements of our legislative mandate,

Commission staff should receive information and perspectives from

human rights, labor, and religious freedom NGOs in the United

States and elsewhere.

We should also build on the work of relevant United States Government agencies, including those who are represented by our five

commissioners from the Executive Branch, and from sources in

China, Hong Kong, and elsewhere.

This undertaking is a big job, but one made considerably easier

by the importance of the work of many people in the U.S. Government, U.S. universities and think tanks, and U.S. and international human rights NGOs.

With this factual framework in place, we can then assess whether to recommend specific actions by Congress or the administration

in our annual report. Of course, we cannot wait for all the facts to

be before us. This is not an excuse for delay.

Second, I believe it is important that the Commission act as a

catalyst for encouraging and supporting United States and multilateral efforts to build legal institutions in China.

I hope that the Chinese Government will accept and welcome

United States initiatives to help train judges and lawyers, inculcate

a culture of transparency in the legislative and regulatory processes, and to improve Chinese efforts to extend legal services to orVerDate 11-MAY-2000 12:31 May 01, 2002 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 78790.TXT China1 PsN: China1
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dinary Chinese people, focusing particularly on the poor, women,

and people in rural areas.

Since the Chinese leadership embarked on the reform and opening up policy of the 1970’s, a number of Americans, among whom

two of our panelists are the most distinguished, have participated

in successful legal exchange and legal cooperation initiatives with

their counterparts in China.

But the U.S. Government has never had its own directly funded

program to complement these private efforts, and I believe the time

has come for us to take a hard look at such a program.

The Commission should determine in which areas additional

United States public investment in rule of law programs in China

might add value to existing private efforts, or might permit new

initiatives in areas previously untouched by United States efforts.

The overall goal, I think, should be to produce significant longterm results on the ground in China without wasteful duplication

of previous or existing initiatives.

An understanding by the Commission, Congress, and our Government of the rule of law programs that other countries currently

have in China will be an important part of this effort to avoid duplication and to maximize the effectiveness of United States rule of

law programs.

Although many in the United States are interested in commercial rule of law programs, particularly as they relate to building the

capacity of the WTO implementation and compliance, any U.S.-

funded rule of law program should focus, I believe, more broadly

on civil, criminal, and administrative law reform.

We should also welcome, encourage, and support initiatives to

improve the transparency of the legislative and regulatory process

in China.

Third, I believe that the establishment and maintenance of a

useful, factually accurate, up-to-date registry of prisoners of conscience and other victims of human rights abuses will be a vital

part of the Commission’s work. Successful achievement of this task

will be a complex and difficult undertaking, no doubt.

My hope is that, over time, this registry will be a useful resource

for Members of Congress and staff, researchers, the press, and the

general public.

Fortunately, individuals and organizations with experience in

collecting, storing, and using such information have offered already

to cooperate with the Commission. In addition, I think that recent

advances in information technology will help Commission staff in

meeting this important aspect of our mandate.

Fourth, and finally, as we progress in staffing the Commission

and gathering information on the specific issues in the mandate, I

hope the Commission would earn the confidence of Members of

Congress and their staffs as a resource for timely, objective information about China, generally. Naturally, our focus and expertise

will be principally with respect to the specific areas of human

rights and the rule of law. But we expect to staff the Commission

with qualified staff possessing broad experience in China.

I hope that the Commission could assist Members of Congress

and staff who plan to travel to China to prepare for their visits,

8

particularly to become familiar with human rights and rule of law

issues.

The registry should provide the type of information that would

permit Members of Congress to raise and discuss the cases of specific individuals during official meetings in China.

Mr. Chairman, we have a distinguished panel this afternoon to

share their views with us. I am honored to be with my colleagues

on the Commission. I would like to express my appreciation for the

appearance of our witnesses today. Each has dedicated a significant part of his professional life to one or more of the issues that

are directly in our mandate. We know we will hear lively, informative, and thoughtful presentations.

Thank you, Mr. Chairman.

[The prepared statement of Representative Bereuter appears in

the appendix.]

Chairman BAUCUS. Thank you very much, Congressman Bereuter.

Now, let us get to the heart of the matter. We have four very distinguished people here to get us started. Would you all four please

come up to the table? I will introduce you, then we will get started.

First, Xiao Qiang, who is Executive Director of Human Rights in

China. He is a physicist. He was working on a Ph.D. at Notre

Dame at the time of Tiananmen. He immediately returned to

China to bring contributions to victims’ families, and he came back

to the United States a couple of months later and began working

as a full-time human rights activist. Last year, he won a MacArthur Foundation Genius Award.

Next, is Mike Jendrzejczyk, Washington Director of Human

Rights Watch/Asia. Mike was a Congressional staffer and worked

for Amnesty International, and joined Human Rights Watch in

1990. He is a very well-respected and responsible person.

Mr. JENDRZEJCZYK. I was not a member of a Congressional staff.

I have to correct that for the record.

Chairman BAUCUS. Oh. I am sorry. All right. We will get that

correct.

Professor William Alford of Harvard Law School, Director of East

Asian Legal Studies Program at Harvard. His expertise includes

China, trade, technology transfer, IPR [Intellectual Property

Rights], human rights, legal development, and legal history.

As well, Professor James Feinerman of Georgetown, who is Associate Dean and Director of Asian Law and Policy Studies at the

Georgetown University Law Center. He has practiced law, and

studied and taught law in China.

Let us begin with Xiao Qiang.

STATEMENT OF XIAO QIANG, EXECUTIVE DIRECTOR, HUMAN

RIGHTS IN CHINA

Mr. XIAO. Thank you, Chairman Baucus and Congressman Bereuter, and distinguished members. It is a privilege to speak here.

Thank you for providing this public forum for independent Chinese NGOs on human rights issues in China.

I want to say, the Congressional Executive Commission can play

a key role and ensure the human rights concerns on the table. I

firmly believe that the Chinese and American people share imporVerDate 11-MAY-2000 12:31 May 01, 2002 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 78790.TXT China1 PsN: China1
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tant values and aspirations of human dignity and freedom. Both

nations are facing great challenges and responsibilities for promoting human rights, ensuring the domestic and global peace, and

encouraging development.

For today’s hearing, I would like to make four points about the

human rights situation in China in the context of the rule of law.

The first point: There is a crucial distinction between rule of law

and the rule by law, which is the Chinese leadership’s slogan called

‘‘Yifa Zhiguo,’’ meaning, ruling the country by law.

However, when there is no real democratic and representative

legislative process and no judiciary independent from a party and

a state, law often becomes a tool that suppresses, rather than protects, the fundamental rights of the Chinese people.

The most clear example, is in the Chinese criminal code there is

endangering state security. But, too often, this law is often used to

crack down on peaceful political activism, Falun Gong practitioners, labor organizers, as well as peaceful advocates for Tibet

and Xinjiang self-determination.

I just want to mention one example. Political activists of the

China Democracy Party have been given heavy sentences under the

state security law, Xu Wenli, Qing Yongmin, and Wang Youcai,

were sentenced to 13, 12, and 11 years, respectively in 1998.

My second point: There is institutionalized discrimination, a system called hukou system, against the rural residents, migrants,

and ethnic minorities in China. Altogether, those three overlapping

groups are the vast majority of the PRC’s [People’s Republic of

China] population. There are about 800 million rural residents,

somewhere between 40 million and 120 million migrants, and for

ethnic minorities, there are about 106 million.

Under the hukou system, a system has been created that gives

urban populations privileged access to education, housing, economic

opportunities, and political participation. This hukou system does

violate the rights of rural residents and migrants to equal enjoyment of the exercise of their human rights and fundamental freedoms.

My third point: There is a persistent gap between law on the

books and the law in practice. That is, there is ineffective implementation and a lack of accountability.

Pardons of rights violations show impunity and lack of accountability, a principal cause of human rights abuses in China. Mechanisms to hold officials accountable are deficient or non-existent.

Control of freedom of expression and association make it very difficult for the Chinese people to expose those abuses by officials or

to achieve accountability.

The two most clear examples are in the criminal procedure law

implementation and on the issue of accountability of the June 4

massacre in 1989.

On the criminal procedure law situation, Human Rights in China

has published a report to point out the Chinese Communist Party’s

control of the judiciary, the pre-trial detention, use of illegal evidence, discriminatory application of the law, and, most importantly, those laws have been violated outright, without authors of

violations suffering any consequences. After the Tiananmen masVerDate 11-MAY-2000 12:31 May 01, 2002 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 78790.TXT China1 PsN: China1
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sacre we know that, until now, the victims’ voices are not being

heard and the crime is not being investigated.

In sum, my last point is, there is an arbitrary nature to the system. What I want to say is, there has been a great deal of attention, domestically and internationally, to the professed effort toward legal reform in China.

However, the improvement of the legal system cannot ignore the

conditions in the wide range of punishment institutions that operate outside of the legal system and in which large numbers of people are incarcerated.

By this, I particularly mean two systems. One, is custody and repatriation centers, which annually hold about 1.7 million people.

They are called undesirables of all types, including women and

children, detained without trial, occasionally for the period as long

as a year or more.

Another system, is the reeducation through labor system. It is an

administrative detention system. Public security personnel can sentence anybody up to 3 years, and there are about a quarter of a

million of the Chinese people in this system every year.

Given the vast scale of those human rights violations in the context of rule of law, Human Rights in China would like to particularly make the following recommendations to the Commission.

First, is we urge the Commission to put a high priority on the

Chinese political prisoners of conscience and, for President Bush’s

upcoming visit to China, to urge the significant release of those political prisoners.

The second point, is to monitor the protection of freedom of expression and information in China. We urge the Commission to pay

particular attention to the increasingly restrictive internet regulations and surveillance by Chinese authorities, especially as these

regulations interface with China’s WTO accession obligations.

Finally, we urge the Commission to monitor and report benchmarks of human rights compliance and rule of law developments

over the next 7 years leading up to the Beijing Olympics, 2008.

Thank you, Mr. Chairman.

Chairman BAUCUS. Thank you very much. I particularly like

your listing your four points. It makes it easier to understand.

Mr. Jendrzejczyk.

[The prepared statement of Mr. Xiao appears in the appendix.]

STATEMENT OF MIKE JENDRZEJCZYK, WASHINGTON

DIRECTOR, HUMAN RIGHTS WATCH/ASIA

Mr. JENDRZEJCZYK. Thank you, Senator Baucus.

I want to thank you all for inviting Human Rights Watch to testify at this first hearing of this important commission, exactly 2

weeks before President Bush is due to visit Beijing on his first official visit to China’s capital.

I would like to use my oral remarks to very briefly summarize

some very specific recommendations we would like to make, both

for the work of the Commission and for United States policy toward

China, generally.

I realize that, as the Chair and the co-chair of the Commission

have just explained, that the mandate of the Commission is exVerDate 11-MAY-2000 12:31 May 01, 2002 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 78790.TXT China1 PsN: China1
11

tremely wide and very heavily based and rooted in international

standards.

But I do think, to have maximum impact, especially this first

year of the Commission’s operation, it is important to strategically

focus the Commission’s efforts.

I would suggest three areas to focus on. First, the release of political and religious prisoners. I think this is crucial and must be

fundamental to the Commission’s work.

Second, encouraging greater cooperation by China with the U.N.

human rights mechanisms, that is, the working groups,

rapporteurs, and others.

Finally, to encourage increased access to China by independent

U.N. and other human rights monitors. I do agree with my colleague Xiao Qiang that there are other issues that should be on

your agenda: For example, free expression on the internet. I would

suggest this be the subject of a hearing, in fact, sometime this year.

And, yes, definitely, how to use the Olympics in the year 2008

in a creative way to press for constructive human rights improvements.

I also encourage you to release the report, Mr. Bereuter, that you

mentioned, as soon as possible, even spelling out, just in a skeletal

way, the Commission’s main concerns and some initial policy recommendations. We realize the report was initially due last October

and for various reasons was delayed. But I think, given all of the

issues on the agenda this year, it is most important to get that report out as quickly as possible.

Finally, a recommendation that a number of NGOs have made

in previous correspondence with the Commission. I think it is important to get at least one professional research staff posted in the

American embassy in Beijing. This is something we have discussed

informally with the current ambassador, Clark Randt. I think it is

very important to have someone there on the ground in China that

can assist in the information gathering and research of the professional staff based here in Washington.

Returning to President Bush’s trip in a couple of weeks’ time, I

think this is a very important opportunity, not only to cement

greater improvements in United States-China relations, but more

importantly, to communicate to the Chinese Government the singular importance of human rights in the United States-China relationship.

The fact that an important Tibetan prisoner, Ngawang Choepel,

who was serving an 18-year prison sentence for espionage, was just

released recently, I think demonstrates that China recognizes it is

in their interests to make at least some limited steps for improvements in human rights, recognizing that Ngawang Choepel’s case

was not only on the Bush and Clinton administrations’ agenda, but

was the subject of intense lobbying and other kinds of activity by

Members of Congress. This is, I think, an important role for the

Commission, to engage in both public and private diplomacy on

cases such as this.

I would urge some Commission members—and I recognize travel

opportunities are limited, the ability to leave Washington for a long

trip to Asia is limited—to offer to travel with the President to Beijing. I think this is such an important opportunity, one, to engage

12

in your own bilateral discussions with key ministries; two, to explain the work of the Commission to the Chinese leadership; and

three, perhaps to begin discussions with the National People’s Congress [NPC] on possible exchanges and discussions, especially on

rule of law concerns, between Members of Congress, this Commission, and members of the NPC.

So, I would urge you strongly to change your calendar, adjust

your schedules if at all possible, but try to get at least two or three

members of this Commission to travel with the President in a couple of weeks.

In the interim, I think it is important for the Commission as a

whole, or perhaps individual members, to address in correspondence and in other ways your specific concerns about human rights,

both to the White House and to the Chinese leadership.

We know—and I mentioned Ngawang Choepel just as one example—that the active interest of Members of Congress greatly increases the leverage of the State Department and our embassy on

the ground. I would encourage you to use the President’s trip as

an opportunity to do so.

Second, a very important policy discussion, which I have discussed with Secretary Craner and I know is under discussion here

in Washington, and will be under discussion in the coming weeks,

is what to do about this year’s meeting of the U.N. Human Rights

Commission in Geneva. It convenes on March 18.

The United States does not have a seat this year, but that does

not prevent the United States from actively suggesting, promoting,

and lobbying for a resolution on China.

I think it is crucial, in fact, to remain active in holding China

accountable in this highest U.N. body charged with monitoring the

compliance and the human rights record of all members of the

international community.

Again, I would urge the Commission, first, to encourage the Executive Branch to begin to find such a sponsor on the Commission

this year, and second, if a resolution is introduced, for individual

Members of Congress to become actively engaged in lobbying other

countries to support this resolution.

My last recommendation has to do with labor rights. This often,

unfortunately, falls to the bottom of the agenda and I do not think

it gets the kind of attention that it merits.

Given China’s membership in the WTO, the increasing economic

dislocation that the further closing of state-run enterprises will inevitably entail, there is growing concern about unrest in China,

rural and urban unrest, which has already begun to escalate.

The Chinese Labor Minister was here in March 1999, and offered

an invitation to the United States Labor Secretary to visit China

to talk about social safety net programs, pension schemes, job retraining programs. But such a visit would also provide an opportunity to address core labor standards, International Labor Organization [ILO] standards, especially key standards such as the right

of free association.

I would encourage the Commission to become active in this area

by encouraging the current United States Labor Secretary, Elaine

Chao, to try to visit China this year. Believe it or not, this would

be the first visit ever to China by an American Labor Secretary.

13

Second, to encourage China to invite the ILO to send a direct

contact mission, as they have offered, to look specifically at the

issues of the rights of free association and ways of amending Chinese labor law and practices to bring them into conformity with

ILO standards.

Thank you.

[The prepared statement of Mr. Jendrzejczyk appears in the appendix.]

Chairman BAUCUS. Thank you very much. That was very helpful.

I particularly urge members of this Commission to look at the suggestion to join the President on his trip to China.

All of us have been to China many times and in various capacities. I know that the one time I accompanied President Clinton,

I learned a lot. It was very, very helpful. I particularly appreciate

that, and your other recommendations.

I must leave now. There is a vote. But I will come back. Chairman Bereuter will continue. However, I have to give my apology to

Mr. Xiao. Unfortunately, your little sign up there says Mr. Qiang,

it does not say Mr. Xiao, and I very much apologize.

Mr. XIAO. I am used to that.

Chairman BAUCUS. I am sure you are.

Representative BEREUTER [presiding]. Professor Feinerman, we

would like to hear from you. Professor Feinerman is from Georgetown University Law Center. You may proceed as you wish.

STATEMENT OF JAMES V. FEINERMAN, JAMES M. MORITA

PROFESSOR OF ASIAN LEGAL STUDIES; ASSOCIATE DEAN,

INTERNATIONAL AND GRADUATE PROGRAMS; DIRECTOR,

ASIAN LAW AND POLICY STUDIES, GEORGETOWN UNIVERSITY LAW CENTER

Mr. FEINERMAN. Thank you, Mr. Chairman. I want to thank you

and members of the Commission for holding these timely hearings

and for providing an opportunity to present our views to you and

share the information that we have gathered in our respective professional capacities.

I would also like to say that I am summarizing remarks that I

have made in a longer written statement, as have the other witnesses.

I was asked to particularly address some rule of law-related

issues that deal with China’s accession recently to the WTO. I will

try to focus on that.

But, in considering that situation, I want to start by saying that

with respect to the rule of law, at least up to the point of WTO accession, there are three major points that we need to keep in mind

as we think about how we will proceed in the future.

First, is that there has been, and continues to be, considerable

legalization of the People’s Republic of China which has been under

way now for two decades. It is incomplete, it is problematic in some

respects, but it is worth noting that this process will go on whether

or not the United States chooses to participate in the future development of the process. I hope we do, as I will say in a few moments.

Second, the PRC has already experienced some considerable law

reforms which have made important contributions to the economy.

14

This is important in connection with the WTO accession. But there

are other commitments which have political ramifications, and they

are not necessarily connected to the WTO or economic matters

more generally, and we need to keep them in mind as we think

about comprehensive development of the legal system in China.

Third, despite this legalization and law reform that has now extended for over 20 years, there is still, unfortunately, a great deal

that has not changed in China with respect to the rule of law, civil

rights, political liberties, and the meaningful enjoyment of freedoms that we take for granted in this country and other developed

nations.

But this patchy liberalization that has taken place has at least

brought a modicum of political and legal change, and economic development, which I think lays an important groundwork.

I have said in previous testimony to other committees in Congress in earlier years, that I think it was the case 4 or 5 years

ago—and I think it is even more the case now—that more people

in China today enjoy more political and civil rights than they have

at any time in China history.

It is still not enough, and there are important groups that are

not enjoying these overall effects that reach to most members of

Chinese society. But that is an important thing to know.

We may want to try to push for a faster pace, faster than the

Communist Party leadership in China might enjoy, but nonetheless

we need to see where things stand currently.

I mentioned in my testimony a couple of areas that I think will

demonstrate the partial success and the remaining problems of

China’s long, slow march toward the rule of law.

Here, I would just mention them in order and refer you to my

written testimony: In areas like enterprise reform, where there has

been a partial privatization of the Chinese economy, but many

problems, including some that have already been mentioned this

afternoon with regard to issues such as labor rights, such as the

treatment of redundant workers in the modernization of the Chinese economy.

With regard to national and local leadership, there have been

major reforms in many areas that make institutions that were previously virtually useless and bypassed usually by Communist Party

authority much more important as we look at the future development. Especially, here, I would note things in the State Council,

the administrative organs of the Chinese Government.

Third, there have been important developments with respect to

corruption. Now, this is a problem that is beginning to be investigated by the Chinese authorities themselves. They understand

that their political legitimacy depends on a belief on the part of

those that they rule that the government is generally honest and

uncorrupt.

Still, there is a tendency to scapegoat a few high-profile cases

and not address some of the root causes of corruption, but this is

an area where our experience may prove to be somewhat instructive and helpful.

In the legal profession there has been an important development,

especially in terms of the numbers. My colleague, Professor Alford,

15

has written extensively and insightfully about the problematic developments in this realm.

But China went from having fewer than 3,000 lawyers 20 years

ago to having over 100,000 lawyers there today. Here in Washington we may not necessarily see that as a positive development

in every respect, but I think it means that people who do want to

assert legal rights, at least, have someone available to help them

do it.

Finally, appropriately, here in Congress I would mention that the

National People’s Congress itself has been undergoing a process of

reform and there are now individuals and organs, including committees, that are trying to learn from the experience of developed

legislatures around the world how to be more serious in their legislative work. This is obviously important.

I just want to mention two points about WTO accession before

I conclude. As part of the protocol of accession to the WTO, China

has made many important commitments to both reform its laws

and to make basic changes in its legal system.

At the first level, these mainly involve things like passing certain

laws that are necessary to comply with specific WTO requirements.

Some of those have already been passed, other legislative reforms

are under way. But that is just the first step.

On a second, deeper level, they have promised to adopt basic

principles of WTO jurisprudence that most member countries already have, things like transparency of the regulatory regime, creation of impartial tribunals to hear WTO-related complaints and

trade disputes. That will, I think, develop apace.

But on the third, deepest level, there are still some important

choices that have to be made and bridges that the Chinese leadership, I think, has not yet crossed with respect to not only the WTO

commitments, but the kind of rule of law that would really make

it possible to honor the notion that would require structural

changes that would transform the most basic features of not only

Chinese law and legal culture, but I think Chinese culture, more

generally.

The experience of other, former developing countries in the Asian

region, such as South Korea and Taiwan, shows that this can happen over a period of time, but it also shows that it may take time.

It may take several decades, as happened there. The good news

is, it has been under way in China for at least a couple of decades,

so maybe we only have one or two more to go.

The challenges with respect to implementation, though, are legion. I outlined some of them in my written testimony. The report

of the Working Party on Accession runs to 70 single-spaced pages

of rather dense, legalistic prose. I commend it to you, but it gives

you some sense of the scope of what China has to do next.

I would just like to close by making a pitch for something. I was

gratified to hear in Congressman Bereuter’s remarks opening the

session today that there may be a commitment to more involvement on the part of the United States with respect to legal and

other kinds of educational and cultural exchanges.

It is actually the case that the State Department and other Federal agencies that are involved in this today provide less support

16

for bilateral exchanges with China than they did 10 years ago.

That, I think, is a shocking fact.

We devote less than 1/40th of the amount that is targeted in the

United States Federal budget for aid to Central and Eastern Europe and the former Soviet Union and the newly-independent

states to academic and cultural exchange with China. That is overall, not just focused on law.

Given the equal strategic importance of China and its vastly

larger population, I think that this is short-sided and parsimonious

on our part. I would note that, in the developed world, the European Union and Canada, for example, have major initiatives with

respect to rule of law and law reform, not simply focused on the

WTO, but broader.

I think, in conclusion, the development of the rule of law in the

future in China is going to prove to be checkered, as it has been

in the past two decades. China has made enormous strides since

the 1970’s, but in many areas it obviously has quite a long way to

go.

I think that China has tried to make a kind of devil’s bargain

with respect to modernization. It wants to have a modern rule of

law while it retains what they call ‘‘Chinese socialist characteristics.’’ The situation is likely to persist, at least for the foreseeable

future.

WTO accession, however, provides a unique opportunity to push

the envelope and maybe hasten the pace of incremental change

with respect to China’s participation in the international economy,

but in other, more basic legal areas as well. I think, with our eyes

fully open, we should seize the opportunities that this historic era

provides us.

Thank you.

[The prepared statement of Professor Feinerman appears in the

appendix.]

Representative BEREUTER. Thank you very much.

Next, we would like to hear from Professor William P. Alford, the

director of the East Asian Legal Studies Program at Harvard Law

School. You may proceed as you wish, Professor.

STATEMENT OF WILLIAM P. ALFORD, HENRY L. STIMSON PROFESSOR OF LAW AND DIRECTOR OF THE EAST ASIAN LEGAL

STUDIES PROGRAM, HARVARD LAW SCHOOL

Mr. ALFORD. Thank you very much. It is truly a privilege to appear before this important commission.

I start from the proposition that the two principal areas that this

Commission is charged with overseeing, human rights and rule of

law, are inextricably interwoven.

China needs to continue to develop legally for its citizens to have

the means to vindicate their rights, but legal development insufficiently attentive to human rights will not enjoy credibility with the

people of China, or with us.

Over the last quarter century the PRC has engaged in the most

extensive program of legal construction in the history of the world.

Considering that a generation ago there essentially was no legal

system in China, a fair amount has been accomplished.

17

Today, as you know, China has an extensive body of legislation,

especially in the economic area, and a nationwide judiciary and

surfeit of lawyers, as Professor Feinerman mentioned. And, perhaps most importantly, Chinese citizens are using courts in unprecedented numbers and are vigorously concerned about legal issues.

But China’s legal system continues to fall well short of meeting

any widely accepted definition of the rule of law. As the State Department’s annual report on China shows in its most recent edition, the legal system has yet to prove itself adequate to protect the

rights of all Chinese citizens.

Arbitrary arrest, torture, and denial of the procedural protections

of Chinese law itself remain serious problems, as do reeducation

through labor, and custody and repatriation.

The judiciary does not enjoy sufficient independence and it is

plagued by corruption, poor training, and local protectionism.

Now, Americans and others in the democratic world have tried

to assist Chinese legal development in a variety of ways. In general, this work has been worthwhile.

In the short term, for example, foreign involvement has made

possible programs such as the Women’s Rights Center at Beijing

University that are helping some victims of injustice to realize

their rights through law.

In the medium term, Americans are usefully assisting people

working to upgrade procedural protections for criminal defendants,

while also acquainting less open-minded Chinese officials with just

how out-of-step China is with the norms of countries it wishes to

follow economically.

In the longer term, foreign legal assistance is enabling Chinese

who are genuinely committed to changing their society to deepen

their understanding of legal institutions in democratic states.

To be sure, as we do this work we have to be careful not to exaggerate its impact and to guard against efforts that some will make

to use the law to legitimate repressive activity.

As you contemplate your mandate, let me provide you with four

suggestions. First, we need to promote legal development without

pulling punches on issues of human rights. That is not easy, but

it is essential.

Without better institutions, without a legal system that better

protects, Chinese citizens simply do not have the means to vindicate their rights. But the legal system will not be stable and respected over time if the law does not also apply to the powerful and

if basic rights are flouted.

Second, as we assist legal development we need to hold true to

our ideals, but also to appreciate that there may be multiple ways

to realize those ideals.

We make a stronger case, I believe, for legality and pluralism,

and we better empower the Chinese to make change in China when

we portray the variety of ways through which different free societies seek to attain their shared goals of human rights and the rule

of law.

Third, some points regarding targets for, and sources of, U.S.

legal assistance. On the former, we cannot realistically advance the

rule of law in China without engaging those who now oversee and

18

operate the PRC’s legal system, notwithstanding the problems this

panel has noted about them.

But we also need to reach out much, much more than has been

done so far to emerging Chinese civil society, particularly beyond

Beijing.

Senator Baucus asked for particular suggestions.Areas that we

might concentrate on would be things like women’s rights, labor

rights, legal aid, and working with migrants, rather than simply

being engaged in legislative drafting assistance in Beijing.

On sources, the fact that most American involvement so far has

emanated from our civil society, as Professor Feinerman noted, is

a strength in many ways. It facilitates diversity and I think it

shows the Chinese, by doing, that our universities and our bar

really are independent of government.

But this task is so massive, that substantially greater Federal

support is essential. As Professor Feinerman noted, the Europeans

and others are at work, but they tend to work more through official

channels. I hope we will work more through civil society.

Finally, we must remember that the task is massive because it

ultimately involves the way in which China’s people think of themselves and their relationship to authority. This is not cultural determinism. Ideas of justice ring as true to the Chinese as they do

to all of us.

Instead, it is to urge that if legal development is to be done well,

we must appreciate that it takes time to build serious institutions,

that it will be difficult, and that most likely the ultimate shape of

the success and the credit for that success will reside principally

with the Chinese people themselves.

I thank you very much for inviting me.

[The prepared statement of Professor Alford appears in the appendix.]

Representative BEREUTER. Thank you very much, Professor.

I am going to recognize Congressman Levin, and Senator Hagel,

when he returns. But then Chairman Baucus has a list of order for

questions, based apparently on time of arrival. I will try to stick

with this, unless he changes his idea.

Thank you, first of all, very much for your testimony. I am sure

that the members have some interesting and important questions

for you.

We will follow the 5-minute rule, but I think there is opportunity

for us to do several rounds, too.

Congressman Levin.

OPENING STATEMENT OF HON. SANDER LEVIN, A U.S.

REPRESENTATIVE FROM MICHIGAN

Representative LEVIN. If I might just say a few things, preliminarily. This is really an important moment. This is not really another hearing, not to diminish the importance of regular Congressional hearings. But this is something different.

We have a commission that was set up that is executive and

Congressional, and there are not very many examples of that, with

its own staff. I must say, we have been privileged to receive resumes from people of immense talent, starting with Ira Wolf and

John Foarde, who have not, I think, been introduced, but I think

19

you have come to know them. I think this indicates the seriousness

of our intent.

I have an opening statement and I would ask, Mr. Chairman,

that it be entered into the record.

Chairman BAUCUS [presiding]. Without objection.

[The prepared statement of Representative Levin appears in the

appendix.]

Representative LEVIN. I just want to say a couple of words about

it.

The reason for this Commission, we face this situation, China

going into the WTO, a country of immense size and of immense importance. How are we to respond to this?

Are we to rely simply on kind of the natural unfolding of our relationships, our commercial relationships with China? Are we going

to, in addition to whatever might unfold through those relationships, try to impact China’s course?

That was important, not only in terms of our overall view of

human rights, but also because increasingly China was going to be

part of the overall picture. There needed to be rules of engagement,

and also because China was going to compete with us and the rest

of the world; in a sense, rules of competition.

Built into those rules, needing to be developed over time, are

standards, floors, including human rights, including the rule of

law, including as part of human rights in the legislation, worker

rights. So that is what we are wrestling with, how we do that.

The feeling was that we needed to combine engagement with

other ways to impact. For commercial reasons it was important because, without the rule of law, what would the commitments mean?

But also, because we were going to engage and compete, the rule

of law was important as we built a floor for this competition.

So that is what we are about. I think we are all intending to

meet this challenge. So, we hope this is just the first of many productive hearings. The Helsinki Commission is perhaps the only

model like this. I think it worked. We have to remember, though,

that we are dealing with a different set of situations.

In a sense, with Russia, with the Soviet Union, there was little

commercial contact, little contact of any kind. This was something

from the outside almost completely, except when they would let us

in.

In this case, the interaction is going to be much more vigorous

and somewhat different, but no less important. So we have a commission that is not identical to Helsinki, but has some of the same

earmarks in terms of staff, and in this case a Congressional executive level. So, I think this is really a very important moment.

So, let me just ask you if any of the four of you want to give us

further advice. There has been some reference, for example, to

what is going on among workers of China. There was a recent article in the Washington Post about this. It is just one example of the

fermentation that is going on within China. The question is, how

do we effectively impact, constructively impact?

So feel free to give us advice at our baptism. Mike, you are shaking your head.

Mr. JENDRZEJCZYK. Well, I have lots of suggestions, but I will

just give you two. And Mr. Levin, I want to say I am especially

20

happy to be here today with you, because I remember the first discussion I had with you about the possibility of the Commission. I

believe it was in a hotel in Seattle during the World Trade Organization Summit.

I never would have believed we would have reached this point at

that stage just a few years ago. I remember in that discussion, you

said many of the things you just said now, and with the same kind

of eloquence.

I mean, I think this issue of labor rights is one of the most difficult, the most complex, but also the most important.

I think in a very practical way, there clearly are areas, for example, having to do with worker health and safety in the coal mining

industry in China, for example, where there are a huge number of

deaths and casualties, where China would probably welcome some

forms of bilateral assistance and/or support.

That is relatively easy. That does not hinge on or touch on the

far more sensitive political issues that have to do with, for example, reforming the labor law to make it possible for workers to organize their own independent trade unions. That is now, as you

know, illegal.

Having said that, last October the labor law was amended and

there are now provisions that theoretically say that workers, even

when choosing representatives for the All China Workers Federation, the official trade union, that their representatives should be

chosen by the workers, not the management or the party cadre,

which is the way it is normally done.

Now, I do not know what this Commission itself can do to encourage adequate implementation of this relatively new provision.

Certainly, monitoring how it is implemented would be a step in the

right direction.

That brings us back to this fundamental problem that I think

this Commission is going to face, and that is getting access to good,

accurate, solid information on the ground in terms of what is actually happening, and where there are opportunities for change.

The labor disputes that reach the western press are just the tip

of the iceberg. You know if you read the official Chinese media,

there are tens of thousands of labor disputes every year, and they

have been increasing in the last few years.

Many of them are very quickly resolved. The Chinese government says, pay off the workers, give them their owed wages, get

them off the street. If they continue to stir up trouble, yes, detain

or arrest them, or put them into a reeducation camp.

This is why I stressed access to China by the ILO, by this Commission in terms of having someone on the ground based in the

American embassy. I think it is going to be fundamental for you

to come up with a viable strategy to do precisely what you think

you want to do.

Representative LEVIN. Thank you.

Chairman BAUCUS. Those are good points. There are many members of this Commission and little time, so we are going to have

to honor the 5-minute rule. We will work our way through the procedure, since this is our first meeting.

I might tell my fellow Commission members that, our system is

recognition in order of arrival.

21

I have a question for Mr. Xiao, and anyone else who wants to answer. How many senior people in the government in China share

some of the concerns that we are now voicing?

That is, problems with the reeducation through labor system,

and the hukou, and maybe the rule by law rather than the rule of

law.

How many hold these views and how strongly? One, is who holds

these views privately. Another is do they discuss it among the leadership privately. The third, is if it is voiced publicly.

So those are three different categories of the degree to which a

significant number of people in the Chinese administration may

agree with, to some degree, the basic points that we are now discussing.

Mr. XIAO. I think, first off, these issues are well-known issues

among the Chinese leadership. It is not that they do not know

about them. It is their perception or perspective, looking at these

issues, that are different. Basically, from their position, they see

the necessity that they maintain the political status quo. It is a necessity for stability. They know this issue, but too bad. That is how

China runs.

There are reform-minded, thinking people in the leadership, and

I think more and more people see it is inevitable. In the long-term,

China has no other alternative, that being a modern a country,

they have to follow the democratic government rule of law and protect human rights. I do not think, in the long term, people can really argue about that, even if they do not publicly say it.

What they do not know is, from today’s China, the current status, how to get there, who wants to take the lead. This current

leadership, President Jiang Zemin, Zhu Rongji, and Li Peng, decided on not taking political reform, period.

But Chinese leadership transition is coming up in the next 2 to

3 years for a new generation of leadership. I think political reform,

including rule of law not just rule by law, is a fundamental issue

and that leadership will look into it.

I think this actually is a way in for the Commission, for the powerful American Congress and administrative and Executive Branch

to engage in those political visions and values with the Chinese

leadership. I believe what they need is more on how to get it there.

They are already aware of those issues.

Chairman BAUCUS. What is the proper way to engage the next

generation?

Mr. XIAO. China’s politics are not transparent. So whatever they

say in the current political discourse does not really reflect what

they believe is the next step.

But there are certain basics. I think there should be pressure

from both sides, pressure from the outside externally. Several people have mentioned that, to engage China in playing by international rules, that includes human rights. If China wants to be

part of the international community, which it does, increasingly,

those basic norms must be respected. That is the one place where

you can engage the Chinese leadership.

The other one I would fully emphasize is how to empower the

Chinese people. When I say the Chinese people, not just those pubVerDate 11-MAY-2000 12:31 May 01, 2002 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 78790.TXT China1 PsN: China1
22

lic advocates for human rights and democracy, but also the reformminded officials at every level in Chinese society.

In my view, one focus is to help to promote the freedom of information and freedom of expression in China, to ensure their rights,

to facilitate that kind of effort. For example, with the internet. By

that, the Chinese people will expose more corruptions, publicize

labor exploitations, and to speak out more on the monitoring of the

government. So freedom of information, freedom of expression, is a

key.

Chairman BAUCUS. Do any of the rest of you want to respond to

that basic question?

Mr. ALFORD. If I might. I am in concurrence with what was said.

I think, of course, it is hard to know what is going on inside the

Chinese leadership. But I imagine that there is pretty widespread

recognition of a need to change. The question is, how to do it and

how far to go.

It is interesting that there are statements on occasion by senior

Chinese legal officials acknowledging some of the problems we have

spoken of with regard to torture, arbitrary arrest, and official

abuses.

Perhaps even more interestingly, there is now a broader spectrum of ideas that academics and others can voice—which suggests

an increasing measure of tolerance. There have been academics

who have spoken out strongly against reeducation through labor,

something that would have been hard to imagine 8 or 10 years ago.

Chairman BAUCUS. Thank you very much. My time has expired.

Next, is Congresswoman Marcy Kaptur.

Representative KAPTUR. Thank you, Mr. Chairman.

Let me just say, this being our first meeting, I want to publicly

acknowledge the yeoman’s work that was done by Congressman

Levin in the House in crafting this provision, along with Congresswoman Pelosi, who has just been a champion for human rights and

has led us as a world, and our dear colleague Frank Wolf from Virginia, just for helping to make this day possible.

I want to thank Chairman Baucus and Co-Chairman Bereuter

for leading us all in this extraordinarily important effort. I am very

conscious, though not a senior Member of Congress, that I am here

because the men and women in my district who struggle every day

to earn a living and to have a better way of life have sent me here.

As a member of this Commission, I do not want to forget them

and the plight that they face in the workplace every day. As a

member of this Commission, I know it is my responsibility also to

never forget the men, women, and children in China who are struggling to survive another day, often under very brutal conditions.

As one American, I view the military relationship that we have

with China as probably predominating the policies that we have

followed over the years, followed more recently by our commercial

relationship, which has now resulted in a gigantic trade deficit

with China, where China now remains the largest holder of our

dollar reserves, $30 billion, $40 billion, $50 billion, $60 billion

being made in a very lopsided way by certain interests.

My question really goes to the nature of that commercial relationship and to what extent we can use the power of the marketVerDate 11-MAY-2000 12:31 May 01, 2002 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 78790.TXT China1 PsN: China1
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place to help to promote the legal reforms that you all have asked

to focus on in your testimonies today.

I have listened very carefully to Mr. Xiao and to Mr. Alford, Mr.

Jendrzejczyk, and Mr. Feinerman talk about the perception versus

reality of China.

I have to place this on the record, because I asked myself this

question. These items, the women who made these in China, were

paid 17 cents an hour. If I look at our trade deficit, I look at the

toys of misery that come out of China. I say to myself, the dollars

that are made off of this transaction, who makes them? How does

that profit in any way get turned toward the development of a better human rights record in China?

In my own region, I wish to place on the record 2,000 workers

at Huffy Bicycle in Salina, OH no longer have jobs. They used to

earn $11 to $15 an hour, with benefits.

The workers in China who have replaced them through a subcontractor through Taiwan are paid 30 cents an hour. The quality of

the bicycle has gone down in terms of the metal used in production.

Huffy maintains an 85 percent market share here in this country

and the prices have not gone down at K-Mart and Wal-Mart where

you purchase these bicycles. Who is making the profit off of that

change, and how can some of those profits be turned to the development of a rule of law that really works?

So my question goes to the heart of the commercial relationship.

Would anyone care to comment?

Mr. JENDRZEJCZYK. Representative Kaptur, I think you have

touched on a very important problem. I do not know of any one solution, but I do know one suggestion that has made its way

through the Congress as legislation, but has never been enacted.

That is, a code of conduct for American companies and their Chinese, Taiwanese, and Korean subcontractors and suppliers that

looks at both their obligations under international and under Chinese law to protect their Chinese workers and others from this

kind of exploitation.

This code of conduct bill was introduced by Mr. Lantos in the

House in 1995. It earlier had been introduced in the Senate by

Senator Ted Kennedy. It wound its way, in one case, through both

Houses of Congress and got attached to another piece of legislation,

but was never enacted.

My organization, and other groups, advocated strongly last year

for enactment of this bill before China joined the World Trade Organization, precisely to provide American consumers with the information they need to know that if a company is not abiding by this

code of conduct and filing regular, yearly reports with the Secretary of State and the Labor Department on how they are implementing this code, they should have that information at their disposal before they make decisions.

I would recommend that this legislation is now more important

than ever, because China is in the World Trade Organization. I

think it is a long way from implementing its WTO obligations, but

I think this kind of legislation would provide at least more information and some assurance to American shareholders and consumers

that workers in China are not being exploited and their basic

24

rights are being protected, especially, as you say, women workers

who tend to be exploited the most.

Representative KAPTUR. Yes. As I said, in many locations trade

is not gender-neutral.

I also want to place on the record at our first hearing that

globalization may have a logic, but it does not have an ethic.

Mr. Xiao, did you wish to make a statement?

Mr. XIAO. Yes. I just wanted to simply say that is such an excellent question. If you engage in a substantive conversation with a

Chinese official, that is the question to ask. Yes.

Representative KAPTUR. I would be very interested in the area.

I will only end, in 10 seconds, by saying to both of our able chairmen, I hope that, as a part of this Commission’s work, I long for

the day to travel through China, through many of the provinces

where this work is being done, and to somehow be able to talk to

the workers. I doubt that we will ever be allowed an opportunity

to see the real thing, but it would be my hope.

Thank you.

Chairman BAUCUS. Thank you very much, Congresswoman Kaptur.

Next, Secretary Findlay.

Mr. FINDLAY. Thank you very much, Mr. Chairman. I am very

pleased and honored to be with the distinguished Members of the

Congress and Senate on this panel.

It was said of the USSR years ago that, if you looked at the piece

of paper that was the Soviet constitution, it was a spectacular constitution that included a lot of rights. The problem was that there

was not the institutional backing to enforce the rights: an independent judiciary, independent labor unions, independent prosecution.

So it seems to me that the key to bringing human rights to

China is not only to get the laws right, but to get the institutions

right. I would just be curious, probably from Professor Alford first,

to talk about how the United States can influence institutional

change in China.

Mr. ALFORD. Thank you. That is a very perceptive question. My

own sense is that that is exactly right. It is not chiefly a question

today of the promulgation of legislation in China, although certainly much law, criminal procedural law, criminal law, labor law,

and so forth, could be drafted far better and refined. It is a question of building institutions that give those laws vitality.

China is moving, as Jim Feinerman suggested, in that direction,

but it needs a great deal of help. Some of the problems, as we have

described in this panel, are clearly directly political in terms of the

Communist Party’s involvement, but some of them are even larger

and deeper, in a way.

We need, as was suggested, to reach out to the Chinese populace

as a whole to help acquaint it with its rights and provide it with

more institutional vehicles for realizing those.

To give you a quick illustration, China has something called an

administrative litigation law that enables people to take local officials to court. It has been over-sold in this country. It is not quite

as spectacular as some of its proponents would suggest, but it is

a beginning. Twenty years ago, 10 years ago, it was almost inconVerDate 11-MAY-2000 12:31 May 01, 2002 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 78790.TXT China1 PsN: China1
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ceivable that somebody could challenge officials in that way. Now,

it is there. The quality of judges is very uneven, but improving. So

I hope we, as a government, will find means of supporting activity

that makes more of this possible.

Mr. JENDRZEJCZYK. One other suggestion is to focus on legal aid.

The new Chinese Justice Minister is eager to expand the nascent

legal aid system to every part of China, especially in rural areas

of China, as part of a poverty reduction strategy to empower

women. There seems to be now an eagerness at the local level, but

a lack of resources and training.

We have been talking with the World Bank to try to get the

World Bank involved in this whole area as part of its poverty reduction strategy.

The bank has not given legal aid assistance to China, as far as

I know, since 1994, when it got its last I.D.A. loan. So I think this

area of legal aid might be one very specific area to focus on. I

agree, otherwise, with all of the rest of the panelists, this is a very

long-term, decades-long proposition, moving China from having

laws on the books to enforcing them.

But having legal aid resources available to local peasants and

workers who now, for the first time, may have the ability to go to

the courts for some redress of grievances, that would be, I think,

a significant contribution.

Mr. FEINERMAN. I would just like to add that there are some

missing bricks in the structure that also need to be addressed, and

there are programs that we could effectively mount that might help

with them.

The judiciary, for example. If you are going to try and make

these claims and process these rights, you need judges who understand the law, who can actually make change happen. That is one

of the weakest links in the Chinese legal system as it has evolved

today.

There are also resources that could be devoted, and we have a

lot of experience in the United States with what would be called

popular legal education, that is, making more citizens more broadly

aware of what their existing legal rights are and creating a

groundswell of pressure for pushing for more of them. That is the

kind of thing where American experience and techniques might be

brought to bear with regard to that.

Last, I would just echo a point that I think Professor Alford was

making. That is, sometimes it is easy to mistake certain kinds of

progress for genuine progress, to look—and the Chinese are often

very good at this—at the number of laws that were passed, the

number of lawyers that have been trained, and just look at statistics without seeing outcomes, without seeing what has really happened. That is the important thing, I think, to try to assess. It is

something that we need to get more information about, too, on this

end.

Mr. FINDLAY. I have another question, but I think with the yellow light on, it would take too long to ask.

Chairman BAUCUS. Go ahead. Shoehorn it in.

Mr. FINDLAY. The second question I wanted to ask was about

China’s accession to the WTO. It has been said that there is a demonstration effect that happens when a nation comes into the comVerDate 11-MAY-2000 12:31 May 01, 2002 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 78790.TXT China1 PsN: China1
26

munity of nations and begins to have to abide by international

norms, that it can lead to abiding by human rights norms and its

own internal laws.

I would like any of you to comment on whether you think such

an effect works.

Mr. JENDRZEJCZYK. I think it does, perhaps, over time. I would

underline the ‘‘perhaps’’ and the ‘‘over time.’’ For example, China

ratified a U.N. convention against torture and ill treatment, I believe, in 1986. Yet, Chinese official publications and legal authorities admit that torture and ill treatment is a huge problem.

On the other hand, having this as an international treaty that

China is a party to, that it has to file reports with the United Nations on compliance and implementation of its treaty obligations is

a contributing factor, but only a contributing factor.

I think, given the other complex dynamics that others here have

described, everything from the succession struggle under way this

year to the enormous dislocation likely to happen once WTO reforms are implemented, social and economic dislocations. Those are

factors cutting against any treaty that is signed at the highest levels of the government.

So I think these long-term institutional reforms will be enhanced

by China’s adherence to international standards of all kinds having

to do with trade, non-proliferation, and human rights.

But, again, I think we are all sounding the same theme here,

that the gap between enforcement and implementation and signing

on the dotted line is enormous. That is precisely the question: How

do you address that?

Chairman BAUCUS. Thank you very much.

Let me read the list here that I have, in order. Congressman

Dreier, Mr. Craner, Congresswoman Pelosi, Congressman Davis,

Congressman Wolf, Congressman Pitts. I understand that Senator

Hagel is going to return.

Go ahead, Mr. Craner.

Mr. CRANER. Thank you very much, Mr. Chairman.

I want to thank you and the other Senators and Congressmen

here, for bringing this Commission together and addressing what

I think is a very, very important aspect of our relationship that

could have great long-term effects. Thank you.

I want to pose a question to Mr. Alford. That is, if you notice any

significant shifts in legal reform, debate, or directions versus a decade ago. I think one would say that it was about a decade ago that

these reforms began.

Mr. ALFORD. Yes. Thank you for your question. I also want to

commend the work that you did previously with rural elections,

which I think has proven over time to be very important.

I think we see signs, to be frank, in both directions, both positive

and not as positive. That is, there are things people can talk about

in terms of legal reform, some of which have been realized in action, amendments spoken of earlier in the labor law and efforts to

improve the criminal procedure law, though it is still quite imperfect, to be sure.

But I think also, as we engage further in legal reform, want to

be sure not to see it as a panacea for everything in China. For instance, corruption is a more staggering problem today than it was

27

10 years ago. Sadly, lawyers are a party to this. Indeed, they have

disappointed some of the hopes that people had that they might be

a vanguard for bringing about change.

That still leads me, in the end, to believe that we must intensify

our efforts at engagement in legal development. But we do not

want to be naive about it being a uniform path.

Mr. CRANER. Let me ask a follow-up question. In the area of

legal reform, it seems that there are two directions one can go in.

One has to do with the commercial area, and the other, I think

some of you have outlined different ideas or different program

ideas here today.

How do you see the effect of working on commercial law reform

for human rights as opposed to what one might call more direct access through some of the programs you have discussed today?

Mr. ALFORD. If I could offer a quick comment. I think the two

really are interdependent. I think that the emphasis so far historically has been more on the commercial side, so I personally would

prefer to see more on the other side. Work on the other side, the

non-commercial side, benefits the commercial side in the long run

because there will not be respect for contractual rights if there is

not respect for very basic rights.

Mr. CRANER. Thank you.

Jim.

Mr. FEINERMAN. I would just echo that. I think that the problem

that has been perceived so far in the incomplete process of reform

that China has experienced is that legislating new laws, trying to

make strides in the commercial area, without a contemporaneous

development of the more structural and systematic aspects of the

legal system leads to eventual failure, or at least partial success,

because you cannot make the next breakthroughs unless you have

those things in place.

You can have the most perfect commercial code on the books, but

if you do not have the judges and the lawyers who can make them

effective, then it all comes to naught.

Mr. XIAO. Just look at the legal reform from my particular perspective. About 12 years ago, we started the first effort in trying

to find a lawyer for political prisoners in China. There was a lawyer, but he could do very little. But we were excited there was a

lawyer trying to do something.

Twelve years later, it is even more difficult to find a lawyer to

defend any political prisoner, and there are more political prisoners

than there were 12 years ago.

Mr. CRANER. I yield back the rest of my time.

Chairman BAUCUS. All right. Thank you very much.

Next, Congresswoman Pelosi.

Representative PELOSI. Thank you very much, Mr. Chairman. I,

too, want to commend you and Mr. Bereuter for your leadership

here. I think you will present us with a tremendous opportunity

where we can work together to hopefully accomplish something to

promote human rights in China and improve the conditions of the

people there.

So, as the Chairman has said, the decisions about what happens

in China ultimately can only be made by the Chinese themselves.

28

I completely agree with you, and we want to give them that opportunity to do that.

I want to commend my colleague, Congressman Levin, for extraordinary leadership and persistence, and excellence in how he

proceeded on this. I hope that we can, in the end, come together

around something that will make a real difference. I am pleased to

serve with all of you.

I want to commend the witnesses for their very excellent testimony. I want to congratulate you, Mr. Xiao, on your MacArthur

Award for Excellence. Congratulations. And Mike Jendrzejczyk, of

course, I have worked with over the years, and we appreciate the

very scholarly presentations that we had. They were very useful.

Mr. Chairman, I think that if we could accomplish something in

the area of rule of law, not rule by law, and rule of law with respect for human rights, it would be a great thing. I hope that it

would not just focus on the economic side where we have transparency and opportunities because of the WTO, but it would be on

both sides.

I fear a dual track, where we would do it so that it pleases the

business community doing business there. That would be a good

thing, but it is not the only thing. I do not want the people of

China to be given any more rights than the business community

operating there.

We have been at it for a long time, some of us, on this issue. At

the time of the Tiananmen Square massacre, the reported trade

deficit was $2 billion a year.

We thought we could use that for leverage, conditioning trade

with China to stop the proliferation of weapons of mass destruction, to stop unfair trade practices, and, most importantly, to free

the prisoners of Tiananmen Square. When I say most importantly,

most timely at that time. It was all-important.

Here we are, almost 13 years later. The prisoners are still in

prison from Tiananmen Square, many still are. The Chinese are

still proliferating weapons of mass destruction. The $2 billion per

year trade deficit is more like $2 billion per week.

So I do not think it has worked, what is there. Again, none of

us has been successful in freeing those prisoners or improving the

situation in China.

I am interested in what our academic guests—you all are academic guests, but Mr. Feinerman and Mr. Alford—have to say because it just reminds me of what we all know: China has contradictions.

If you shine the bright light of freedom there, you will see areas

of improvement, there is no question. But you will also see massive

areas that we cannot ignore, we simply cannot ignore. So, I hope

that we can come together around something.

I am pleased, and I want to congratulate the Bush administration. Many of us have worked for many years, many at this table,

for Ngawang Choepel’s release. I am so honored that he joins us

here today, after so many years in Tibet, in prison. I do not know

if he is still here, but he was here earlier. I think we should all

welcome him. [Applause].

29

Mr. Secretary, again, I congratulate the Bush administration. It

happened on your watch. Again, we have all been pushing for

years. But thank you for your leadership in this area.

Mr. CRANER. It is the product of the work of very many people.

Representative PELOSI. You are very gracious.

What we have heard from two of our witnesses, at least, is that

intercession by Congress and by the outside world for political prisoners is effective.

So, in friendship, Mr. Chairman, I would just say that I would

hope that the Commission would take up the suggestions that are

offered in terms of the President’s visit to China, in calling to the

attention of the regime some of the names of prisoners that we

would hope would also be released.

We know from the prisoners that their conditions in jail improve

when their names are brought up. We also know that sometimes

some of them are freed.

So that is why I do not want to be wedded to the systemic structural change, which I do not really see in the bill, but I see that

has been presented as a criterion for whether we were to take a

particular action. It is true, releasing a few prisoners does not solve

the problem. But I still think that we should try to release some

of the prisoners.

I just wanted to see if we could get any comment from our witnesses here on the prospect for us doing something, with allowing

the Chinese people to make the decision, but how we could have

real rule of law with respect for human rights which applies to people’s lives, their human rights.

Not just that, if they are charged with a crime, do they have

rights to defend themselves. But, for example, Xu Wenli, for example, is in prison because he talked about politics in another way

than the regime would allow.

I see that my time has expired. I will have to defer to the discretion of the Chairs. Maybe I will just put it out there as something

they can come back with later.

Chairman BAUCUS. You are good, Nancy. You are good. You are

good. [Laughter.] All right. A very short answer.

Mr. FEINERMAN. I would just say two things. One, is I think it

is important to keep in mind that this may happen over time, but

there are ways that we can contribute to it.

One of them is the pressure from outside, which is very important. Another, is using the institutions here over the long run to

provide people who can do this.

Let me give you one example of someone who combines both. A

woman who is a contemporary of Professor Alford’s and mine when

we were law students over 20 years ago went back to Taiwan after

getting her LLM, and was promptly put in prison. She was a political prisoner. In fact, I and many of my classmates joined Amnesty

International to work for her release. She is now the Vice President

of Taiwan.

It is an example of what can happen in another Chinese society

which was a repressive regime for almost four decades, which existed under martial law, and which, at the time that she was arrested in 1980, seemed insusceptible to any forward movement.

People had been working on them for years. But the long pressure

30

that was brought by people from Taiwan who had studied in the

United States and stayed here or went back and began to build a

middle class, who learned while they lived in other societies abroad

what democracy and the rule of law could really bring to their

lives, created a tidal wave that eventually won her freedom and

propelled her and her party into political power.

Chairman BAUCUS. Thank you.

Mr. JENDRZEJCZYK. May I make one other suggestion?

Chairman BAUCUS. All right, but quickly. In honor and respect

of others here who have not yet had a chance to ask questions, I

think I am going to have to move on. I very much appreciate that.

I think this hearing has whetted the appetite, and that is positive.

Congressman Davis.

Representative DAVIS. Thank you, Mr. Chairman.

The level of repression of what appears to be legitimate public

political discussion and debate that you provided to us is both

breathtaking and artful.

I would like to ask you some questions about the extent to which

unleashing the full force of the internet is part of the solution here

today.

How potent at force is that for the change we are all talking

about today?

Chairman BAUCUS. Congressman, if I might just interrupt here.

This is a very good session. I very regrettably must leave. Chairman Bereuter is going to continue here. We are going to gather together, frankly, after this and figure out where we go from here,

both procedurally and substantively.

But I very much appreciate the interest of everyone. We all collectively, together, appreciate the interest of everyone. I pledge my

efforts to make this work, to make this Commission effective. I

think we can do it. I feel very good about it.

Our constitution provides for a separation of powers, but here we

are in joint collaboration of the Executive Branch and the Legislative Branch, together on the same panel, asking questions together.

That is something I think we should pursue as much as we possible can in the future.

Thank you very much. I very much apologize for interrupting.

Representative DAVIS. Thank you, Mr. Chairman.

My question is, to what extent is the power of the internet a significant force in what we are discussing today? How effective are

these controls that many of you have documented? What role can

we play in further unleashing the power of the internet to improve

upon the quality of public discussion/debate on political issues?

Mr. XIAO. First, the internet population today is about 33 million, and growing rapidly. They are a relatively young, educated,

urban population. It is also vastly expanding to many different corners of China.

It is a very special demographic. It is not for the peasants, not

for the workers, not for other people. But it does reach to the

urban-educated business and government officials in such a way

that it has already had a visible impact on China’s freedom of information and freedom of publication.

In other words, certain news that the government tries very hard

to censor is already being exposed on the internet, and puts presVerDate 11-MAY-2000 12:31 May 01, 2002 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 78790.TXT China1 PsN: China1
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sure on official newspapers and televisions and they have to cover

it.

The government censorship effort is also very remarkable, from

the internet police section to 60-some internet regulations and

laws, to actually working with some western tech companies to develop the surveillance, the firewalls, and the censorship, sophisticated software, trying to keep things under control.

The key issue here is what the American Government and civil

society can do, and this Commission can do, to facilitate the further

opening up of the internet. I would suggest that the first step is

to look into the Chinese Government’s WTO obligations. Already,

what the Chinese Government is doing domestically, I believe, is

violating certain of those rules already.

Mr. JENDRZEJCZYK. I would endorse what Mr. Xiao has said. I

would just add, I think the private sector can also play a role. I

think American companies, for example, can be encouraged to

allow Chinese citizens—students, for example, and others, researchers—to use their internet facilities when the companies are

shut down for the day, but when they are still on line, where it

would be much easier for them to get around the various firewalls

and obstacles to free access to the internet.

Beyond that, of course, American companies, especially those

that are selling software and trying to expand access to the growing internet market, should, I think, be very cognizant of the fact

that, under Chinese regulations, they are supposed to report those

who are using the internet to download potentially subversive information about Taiwan, about Falong Gong, about Tibet, and so

on, or perhaps even getting access to CNN or the Washington Post.

Companies have a responsibility to find a way to square their obligations to their online subscribers with their ostensible obligations under Chinese law while, most of all, protecting the rights of

free expression. I think that would also be a contribution.

Mr. FEINERMAN. I would just like to suggest that you may want

to consider other technologies besides the internet. I have participated in very effective call-in programs on VOA [Voice of America]

radio and television, for example. People given access to free callback services in China call in and ask wide-ranging questions

about a range of issues in human rights and the rule of law.

You could flood Chinese markets with cheap CDs that provide

this information. Many more people have access to a computer than

have a connection to the internet. There are a lot of other ways to

spread the message, although I would also commend the use of the

internet as one of the vehicles.

Mr. ALFORD. I would echo what has been said. Indeed, as mundane as it may sound, efforts in which Professor Feinerman and I

have been involved in building law libraries in China have actually

begun to bear some fruit, where people can begin to use it. When

we first went to China many, many years ago, nobody could get access to those materials. These days, they are being used. So, I

think your question is a good one and we should work on all of

these fronts.

Representative DAVIS. Thank you.

Thank you, Mr. Chairman.

32

Representative BEREUTER [presiding]. Thank you very much, Mr.

Davis.

The gentleman from Virginia, Mr. Wolf, is recognized.

Representative WOLF. Thank you, Mr. Chairman.

Let me, at the outset, just say I apologize for being late. I had

a speech uptown.

I do not completely agree with what has been said, and I want

to be proven wrong. One, I think the Commission is tilted too much

toward business. I have looked at the resumes. I believe the business community has a greater impact on this Commission than

those for human rights. If you look at the law that created this

commission, it said, ‘‘Function: Monitor in compliance with human

rights or to reflect compliance or violation of human rights,’’ and

to compile a Victims list. Well, if we do not contact people about

the victims, then having a list will not be any good.

I put some names in with regard to staffing for human rights

and religious freedom. The staff said, no, no, no, no, no. Finally, I

said, hire somebody from my staff. They said, we only want an expert on China.

I would rather have an expert in labor issues who did not know

anything about China but who cared passionately about religious

freedom, than somebody who has been a professional China person

and does not really care very much about religious freedom and

human rights.

So, second, Mr. Levin, all I can say is, the Helsinki Commission,

which I serve on, is an advocate for human rights. I will tell you,

Mr. Smith and Mr. Hoyer and all of the Members, have always

been advocates for those who have been in prison.

Mr. Hoyer used to go to Eastern Europe, go to the Soviet Union

and advocate for it. Scharansky will tell you, when his name was

mentioned on those lists when Mr. Hoyer would raise it, and others, that their life got better. Sometimes they did not get out, but

their life in prison got better.

So this Commission should be an advocate for human rights. Second, I believe the Commission is too weighted from the business

community and I have not seen anybody on the staff who has a

passion for human rights. There are 11 Catholic bishops, and

Bishop Su Zhimin gave Holy Communion to Rep. Chris Smith, and

he is now in prison. There are evangelical house churches. There

is a new document that a press person called me about today that

is going to break on the persecution of the church.

So I think, if you have got a list, raise it. Second, hire some people. If you do not want to hire somebody from my staff, get somebody else. But hire somebody that maybe was not for MFN [MostFavored-Nation], somebody who was not for all of these things.

I lost. My side lost. The business community who advocates for

religious freedom and human rights can do more than those of us

who are opposed. But I see a slant in the staff, and we should use

this Commission for everything that we possibly can.

So, talk to Scharansky. Bring him as a witness and say, if we

had had a list, and we just kind of kept it in the file cabinet, would

that have helped you? He would have said, no. When you spoke

out, and President Carter did—it is bipartisan. Jackson-Vanik, two

33

Democrats, did a better job than anybody else. So, that is my second point.

I have got more, but I just wanted to say to the witnesses, Mr.

Feinerman, I went back and looked at what you said in an article.

In 1997, this is what you said. ‘‘Harry Wu and others have tried

to stir up great controversy about how goods made by forced labor

are flooding into our market. It seems to me to be the height of hypocrisy for us to get on our high horse about China making its prisoners work, given the fact that we do the same thing in our prisons.’’

Wrong. I have been in Beijing Prison, number one, with Chris

Smith. We picked up the shoes and the socks that they were making. They were going through living hell in that prison. To compare

Beijing Prison, number one, to our prisons, is absolutely wrong. Do

you still agree with that?

Then you went on to say that ‘‘the Chinese system is designed

to make offenders pay a harsh penalty.’’ Some of them give their

organs, some of them give their kidneys, some of them give their

cornea. You go on to say, ‘‘a harsh penalty, on the theory that it

scares people so they will not come back into prison. You can argue

that it works. Who are we to argue? It is their choice.’’ Do you still

agree with those statements that you made in 1997? Have you ever

been in a Chinese prison?

Mr. FEINERMAN. Yes, I have.

Representative WOLF. What prison?

Mr. FEINERMAN. I have been in both the Beijing Number One

Prison and the Shanghai Prison.

Representative WOLF. And do you think those conditions are as

good as they are in the United States prisons?

Mr. FEINERMAN. No. But the conditions for life in China generally are not as good as they are in the United States.

Representative WOLF. The torture and the problems that are

going on. Call their witnesses. We never ask anybody in our prisons to give their kidneys and their cornea. Have you seen the picture where they take people out of the prisons and shoot them?

Mr. FEINERMAN. You are putting words in my mouth, Congressman. I do not condone the death penalty at all. I certainly do not

agree with forcing people to donate their organs.

Representative WOLF. Reclaiming my time, you said, ‘‘Harry Wu

and others have tried to stir up a great controversy about how

goods are made by forced labor and are flooding into our markets.

It seems to me to be the height of hypocrisy,’’ for Harry, who spent

17 years in a slave labor camp, ‘‘for us to get on our high horse

about China making the prisoners work, given the fact that we do

the same thing with our own prisons.’’

Mr. FEINERMAN. Parsing the English language, Mr. Congressman, I said it was the height of hypocrisy for us, not for Harry Wu.

I admire his struggle.

Representative WOLF. Harry is an American citizen.

Mr. FEINERMAN. I know what he has survived. But I am saying,

for other people who have not had those experiences, to first of all

mischaracterize the percentage of goods that come to the United

States that are actually the product of forced labor——

34

Representative WOLF. There is a lie. There is a lie. In their labor

practices—we had a gentleman come through the other day. There

are labor practices with regard to making products that are flooding the market, whereby the people live in dormitories.

So, Mr. Chairman, I would just say, I think you ought to hire

somebody who has a commitment and a passion to human rights

and religious freedom.

Last, Mr. Bereuter, there is no one that is a better Congressman

than you, and for Mr. Baucus, who I do not know, I would stipulate

the same. But I think the business community, if they speak out,

and this Commission speaks out, will actually have a greater impact than when I speak out, or somebody on my side. The Sullivan

principles from South Africa ought to be adopted.

So, I think the Commission ought to be an advocate for human

rights. If we are trading, that’s good. But, as we are trading, we

should be speaking out. We can make a difference. I think this

Commission can be—I was surprised that I was appointed to it—

the difference. It can be the difference, but only if we are not a wall

flower. We should be advocates for human rights. With that, I yield

back the balance of my time.

Representative BEREUTER. I thank the gentleman from Virginia.

You might be interested to know—not that I had the influence—

I requested you should be on the Commission, along with several

other members.

Representative WOLF. I appreciate that.

Representative BEREUTER. And we all have a passion for human

rights in many ways, or I think we would not have been appointed.

I will say this with respect to Chairman Baucus, myself, and

Sandy Levin, and Senator Hagel. We anticipate 14 professional

staff members, perhaps going beyond that. Only three, to my

knowledge, have been hired. I know I was specifically requesting

that we have one person to focus exclusively on religious issues. Of

course, we had broad support for someone to focus predominantly,

exclusively, perhaps, on labor rights issues.

So, give us an opportunity to demonstrate the balance on the

Commission. I hope, and think, you will not be disappointed.

Representative PELOSI. Mr. Chairman.

Representative BEREUTER. Yes, gentle lady.

Representative PELOSI. I was going to ask Frank to yield, but I

just want to make one point on the prison labor issue. It is not a

question only of the conditions under which people are imprisoned

in China.

The point is, use of prison labor for products for export to the

United States is against our law. It is not about any question as

to, do we have prisoners making products in our prisons. We do.

But it is not for export to another country.

It is not where you round up people, without trial, without representation. You recruit your workforce free of charge, no-cost

labor, and subject them to some of what Mr. Wolf said. But, regardless of the conditions, products made by prison labor are prohibited

from entering our country under our law.

So to charge Mr. Wu with hypocrisy, or us as a country, for suggesting that we should not prohibit prison labor goods from coming

35

into our country because prisoners make goods in our country, is

really more the point. I think you are wrong there, Mr. Chairman.

Representative BEREUTER. We will give Mr. Feinerman a chance

to respond. But I would like to complete the first round here, and

that is Mr. Pitts and myself.

So, Mr. Pitts, you are recognized for 5 minutes.

Representative PITTS. Thank you, Mr. Chairman, and thank

Chairman Baucus for holding this important hearing. I thank the

distinguished panel for their testimony.

I have formal remarks that I will submit for the record.

Representative BEREUTER. Without objection.

[The prepared statement of Representative Pitts appears in the

appendix.]

Representative PITTS. As we talk about legal reform and giving

assistance to the Chinese Government for civil society development,

I think we must be specific in our assistance, targeting areas in

which a real, practical difference can be made.

For example, it is vital that, as just rule of law is developed in

China, that the distinction be made that criminal action be dealt

with under established criminal law. Official PRC Government documents make it clear that the drive to maintain control over religious believers in China remain strong.

In one report regarding a meeting of Chinese officials, the officials were charged,

Quickly gather the essential personnel and find out the development and activities of this cult in our province. Carefully gather all the information and try to catch

all the members in one blow.

Pay attention to keep it confidential, and work without talking. Comrade, the

head of the Ministry of Public Security emphasized specifically that we need to work

more and talk less, and smash the cult quietly.

Not the statement of officials who aim to protect the freedom of

conscience of their people.

I have a couple of questions for our panel. One, how should the

Commission be working with other governments to maximize influence on China? Can you be specific? What are the most important,

specific questions that the commissioners should be asking Chinese

officials? If you could comment.

Mr. JENDRZEJCZYK. I would just comment on your first question

about working with other governments. I mean, I think you are absolutely right, Mr. Pitts, about targeting assistance.

There have been a lot of discussions in the various bilateral

human rights dialogues with various governments, including the

United States, the European Union, Japan, and others, and Mary

Robinson, the U.N. High Commissioner on Human Rights, about

reeducation through labor.

I think my colleague Xiao Qiang mentioned this. This is an arbitrary system of punishment used in much the way you described,

that anyone can be administratively sentenced without charge or

trial for up to 3 years in labor camps. This is used routinely to imprison thousands of Chinese every year.

For the United States to work with the EU, Japan, Australia,

Canada, and the High Commissioner’s office to develop a concerted

legal and political strategy that can intersect with the discussions

already going on in Chinese legal circles about doing away with

36

this huge system of arbitrary punishment, that, I think, is exactly

the approach I would take.

The other, is to work with other governments to get observers

into trials. The Chinese Government, a couple of years ago, said

they would open up all trials except those involving subversion and

state secrets to Chinese citizens as a way of building more confidence in the legal and judicial process. This is where I think this

unfortunate dichotomy between human rights and the rule of law

can be bridged.

I think the United States can work with other governments to

get diplomats to try to attend both trials of ordinary Chinese citizens who are being subject to mistreatment, perhaps at the hands

of a corrupt official, and the state security and subversion trials

that are now ruled out of order, and develop a strategy with them

to get diplomats to show up at the courtroom and try to get access.

This is a way of promoting, I think, both human rights and the

rule of law. They are not mutually exclusive.

Representative PITTS. Anyone else? Yes.

Mr. XIAO. Yes. Just in addition to what my colleague Mike said,

the High Commissioner of Human Rights at the United Nations is

actually publicly calling the Chinese Government to abolish reeducation by labor in Beijing in workshops. So, there is an effort, and

I think this Commission should join in that.

I actually want to make a point and respond to your question,

and also respond to, earlier, Nancy Pelosi and Frank Wolf’s comments about individual cases and the systematic and structural

changes, and how to achieve that.

Again, I come back to the issue of the state security law, under

the criminal code of endangering state security. I think this Commission, the United States Government, should engage in a fully

substantial discussion with the Chinese authorities about the noncompliance with international human rights standards on the national security law.

The United States faces its own challenges of national security

and protecting civil rights. The Chinese Government always uses

‘‘protecting national security’’ to detain the peaceful advocates. I

think you should look into it.

One specific example. ‘‘Counter-revolutionary’’ used to be a

charge for political crimes a few years ago. Now they have changed

to endangering security. Under the counter-revolutionary laws

there are more than 2,000 people held in prison without even having their cases reviewed, but the charge does not exist in Chinese

criminal law any more.

I think the Commission should ask the Chinese government to

systematically review all of these cases to see whether they really

endangered Chinese state security, whether that really complies

with international human rights standards.

Representative PITTS. Thank you. Anyone else? Any specific

questions we should be asking the Chinese officials?

Mr. ALFORD. I think it is important that your views be voiced to

Chinese officials so they understand how deeply Americans care

about these issues. I think it is important that we continue to work

on building institutions.

37

It has been disappointing, as Xiao Qiang mentioned, that lawyers

in China have not been more forthcoming in helping people who

have been charged in the way you described. The bar is not sufficiently independent of the state. I think we need to continue to

work to build an independent bar with integrity in China.

Thank you.

Representative PITTS. Thank you. Thank you, Mr. Chairman.

Representative BEREUTER. The gentleman’s time has expired.

I feel very strongly, as a member and as, of course, co-chairman,

that witnesses are treated with, of course, courtesy. Any views,

past or current, or statements here, should not be misconstrued.

So, Professor Feinerman, we will come back to you in a minute,

right after my question period, if you wish.

I have noticed, in meeting with Chinese officials for about 14

years sporadically, that when we talk about human rights their

conversation will shortly shift to the collective Chinese people, that

things are improving and, therefore, this is a part of the important

human rights.

Now, we do not look at that in the same fashion at all in this

country. I think that is a very strong consensus, that we have great

focus on the individual human rights.

But I want to ask you your reactions to that. Relatedly, Professor

Alford, you said, I believe, if I have got this right—I was scratching

down quickly here—your four final recommendations.

But we need to go what we can with total respect for human

rights and rule of law to help them understand that there are a

variety of legitimate ways in free societies for ensuring human

rights and rule of law, or something of that nature. Correct me, if

I am wrong.

Now, we have all run into discussions about the Asian model, especially a couple of years ago, which was not coming from Chinese

itself, but from elsewhere in Southeast Asia.

I think a great many people in this country, including this member, had problems with that as an excuse for not proceeding, really,

with a focus on individual human rights.

What would you, or any other panel members, like to say about

this subject? I do think we have to be careful that we do not say,

this is a prescription. This is the American way to do it and, therefore, try to apply that exclusively.

Mr. ALFORD. Thank you very much.

When I made my comment, it was about a variety of ways that

free societies strive to attain our shared objectives of democracy,

human rights, rule of law. So, in that sense, I was not referencing

the Asian values/universal norm debate, some of which I feel has

been put to the disservice of Asian values, which include freedom.

What I meant, was simply to avoid the binary situation that has

characterized some legal assistance projects, where we in effect say

to the Chinese, you have two choices. You can either be where you

are today, or you should be exactly like us.

It strikes me that, if we begin to help portray a broader panorama of possibilities, how the British do it, how the French do it,

how the Japanese do it, how people in Taiwan do it, I think we give

the Chinese a broader set of choices that would still improve markedly where China is today.

38

For example, our mode of administrative law, wonderful though

it may be, is not shared by many Europeans. They can effectively

foster transparency and government responsibility in a different

way. So, my simple point was to give the Chinese a broader panorama of possibilities from free societies.

Representative BEREUTER. And what would any of you say about

the Chinese Government’s officials’ focus on the collective versus

the individual?

Mr. XIAO. Mr. Chairman, I believe in my testimony I mentioned

quite a few issues, composed of 80 percent of the Chinese population, or millions of people every year are being discriminated

against. That is collective, their rights being suppressed.

I am in exile, but I am still a Chinese national—I believe all my

fellow countrymen deserve and demand the same basic human dignity and rights as the American people, as people in Taiwan, as

people in Africa, and everywhere else. Asia values versus human

dignity or human rights never stands, in my life experience and instinct, for a minute.

Mr. JENDRZEJCZYK. I think there is the enormous generational

change in China. From my conversations with both party bureaucrats and students, it is eroding that distinction, that very false

distinction. I think, over the next two generations, we are going to

see an end to this stress currently, which of course is party ideology, on the collective versus the individual.

The two will be seen as mutually enforcing and not one canceling

out or taking priority over the other. But I think the generational

change already under way, and Xiao Qiang is a great example of

this, I think is beginning to do that already.

Representative BEREUTER. Thank you.

Mr. Feinerman.

Mr. FEINERMAN. I would just say that I think that the Asian values thing is made much of by people who are usually apologists for

repressive regimes. A boot in the face is a boot in the face, whether

you are an Asian or a Caucasian. But I think a larger point that

I think we need to underscore, and I appreciate Professor Alford’s

comments about not making this United States values or Chinese

values, but maybe we should stress more about Chinese values.

China is a signatory, for example, to the international covenants.

They have made certain undertakings as a result of that. They

have ratified one, and will the other. Likewise, their own law, their

own constitution contains extensive guarantees of rights. Some of

them are coupled with problematic duties, but nonetheless, if

China lived up to the promises that it makes in its own domestic

legislation, it would be a human rights paradise.

Representative BEREUTER. I think that is an important focus for

us. Thank you all for your response.

My time has nearly expired. Before we see if any other members

have a question or a concluding comment for today’s hearing, I

would like to turn to you, Professor Feinerman, if there is anything

you want to say in light of what I previously promised you.

Mr. FEINERMAN. I appreciate the heat that certain comments,

particularly taken out of context, may sometimes generate.

As a Catholic, I know in Catholic theology that there is a distinction made between what is known as vincible and invincible ignoVerDate 11-MAY-2000 12:31 May 01, 2002 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6633 78790.TXT China1 PsN: China1
39

rance. You can persuade some people of some things, and other

things you just have to walk away from because deeply-held principles are not going to be swayed.

But I do want to stress that, as a lawyer and a law professor,

I understand the dictates of U.S. law and I support our policy to

exclude prison labor-produced goods from this country.

Perhaps I was trying to make, in that piece that was quoted by

Congressman Wolf, a subtler point, that law and legality can sometimes exist side by side with a certain degree of hypocrisy.

Just as I believe it is hypocritical of people to condemn China for

using the death penalty when their own jurisdiction may also employ it, I believe it is also hypocritical, in cases where there are legitimate legal means that may be otherwise employed to exercise

control over our own borders with respect to imports, that would

make it hypocritical at the same time to say we only want for market in our economies prison goods produced from certain prisons.

If there is a problem with prison labor, it may be a more universal problem. Although I do take the point that was made by

both Congressman Wolf and Congresswoman Pelosi, that the conditions in prisons are different and may have a significant impact on

the choices we make.

Representative BEREUTER. Thank you very much.

Since we are down to two additional commissioners, I think it is

about time to adjourn. But I would call on either of my two colleagues who might have a concluding question or remark.

Representative LEVIN. This has been a wonderful hearing. I do

think we need to talk more about comparabilities, because I think

there really is not any in this case in terms of prison labor.

But you have been terrific, Professor Feinerman and the rest of

you. We probably should have ended a few minutes ago, when Xiao

Qiang talked about all of the aspirations of the people in China and

the notion that, when it comes to freedom, there really is not—and

Mr. Bereuter’s question sparked this—Asian freedom, or American

freedom, or European freedom. I do think there are some basic

principles here. The purpose of this Commission is to promote them

actively.

Speaking for, I think, the two of us, Mr. Bereuter, we are determined, with our colleagues in this rare Executive Congressional

Commission, to carry out this charge. We are determined to do just

that.

Representative BEREUTER. Sandy, we are, indeed. I want to very

sincerely express our appreciation to the first of many, hopefully,

distinguished panels that we have before the Commission.

I appreciate the fact that you have devoted your time this afternoon, and all the experience that you have brought to the table to

help us today. It is a very good start for the Commission. With that

said, the first hearing of the Commission is hereby adjourned.

[Whereupon, at 4:48 p.m., the hearing was concluded.]

(41)

A P P E N D I X

42

PREPARED STATEMENTS

PREPARED STATEMENT OF XIAO QIANG

HUMAN RIGHTS IN THE CONTEXT OF THE RULE OF LAW

FEBRUARY 7, 2002

I. INTRODUCTION

Founded in March 1989 by Chinese scientists and scholars, HRIC is an international non-governmental organization dedicated to the promotion of universally

recognized human rights and the advancement of the institutional protections of

these rights in China. Based in New York, with a Hong Kong office established in

1996, and a EU/UN liaison based in Paris, HRIC’s board and staff include prominent human rights advocates, China scholars, and Chinese political exiles.

Through its extensive network among human rights activists inside China, and

its education, advocacy, and cutting-edge research programs, HRIC addresses one

of the most significant and complex challenges facing the international human

rights movement today: how to promote human rights in an emerging economic,

military, and political major power. The geo-political reconfigurations of the world

since September 11 make it clear that China is pivotal to the region and the worldand also emphasize the difficulties in raising human rights concerns internationally.

The Congressional-Executive Commission can play a key role in ensuring that

human rights concerns remain on the table. Both the Chinese and American people

share important values and aspirations for human dignity and freedom. Both nations are facing great challenges and responsibilities for promoting human rights,

ensuring domestic and global peace, and sustaining development.

For today’s hearing, ‘‘Human Rights in the Context of the Rule of Law,’’ I would

like to make four points about the human rights situation in China, and conclude

by suggesting five recommendations.

II. KEY HUMAN RIGHTS CHALLENGES

A. Rule by law is not rule of law: Using law to suppress citizens’ fundamental rights

of association, freedom of expression, and religion

There is a crucial distinction between ‘‘Rule of law’’ and ‘‘Rule by law’’. Chinese

leadership has repeatedly reiterated its policy of ‘‘Yifa Zhiguo’’ ruling the country

according to law. However, when there is no real democratic and representative legislative process and no judiciary independent from the party and state, law often

becomes a tool that suppresses rather than protects the fundamental rights of Chinese people, including the rights to association, freedom of expression, and religion.

For example, law is often used to crack down on peaceful political activism, Falun

Gong practitioners, and labor organizers, as well as peaceful advocates for Tibetan

and Xinjiang self-determination. Too often, those trying to exercise these fundamental rights are accused of ‘‘endangering State security’’, an ambiguous charge

that allows overarching flexibility in silencing voices of dissent. In addition, recent

years have seen the implementation of extensive regulations to censor and control

the Internet, China’s virtual public space. In the limited time today, I will focus on

those people whose fundamental rights have been stripped by the Chinese government.

• Political Dissidents in China: Prisoners of Conscience—HRIC has closely followed the Chinese government’s shift of recent years toward using ‘‘state security’’

as a rationale for the suppression of dissent. This concept has culminated in the replacement of the accusation of ‘‘counter-revolution’’ with that of ‘‘endangering State

security’’ in the newly revised Criminal Code. However, the term ‘‘state security,’’

and what constitutes harm to it, is wrought with ambiguities in the Chinese legal

system. Too often, this concept of State security is used to justify violations of basic

rights, including the peaceful freedom of expression, association and assembly, and

practice of religion. HRIC is concerned that the charge of ‘‘endangering State security’’ has broadened the capacity of the State to curtail the peaceful exercise of fundamental rights. The fact that over 2,000 ‘‘counter-revolutionary’’ prisoners (according to official statistics) have not had their convictions reviewed after the revision

of the Criminal Code underscores this abuse. Political activists of the China Democracy Party have been given heavy sentences under the State Security Law. For example, Xu Wenli, Qing Yongmin, Wang Youcai were sentenced to 13, 12, and 11

years respectively in 1998.

43

• June Fourth Victims—Mr. Chairman, almost 13 years after the June 4th Massacre and subsequent repression throughout China, more than a hundred Chinese

citizens remain in prison for participating in the peaceful protests of 1989. We have

names of 158 individuals for the city of Beijing alone (supporting documentation).

Over 50 of these political prisoners are held in Beijing No. 2 Prison and are serving

sentences of 15 years to life. Their only crime consisted of promoting democracy and

respect for human rights. Yet these people were charged with criminal offenses and

convicted of subversion of the State in patently unfair trials. Furthermore, for compiling this list of political prisoners and making it public, Beijing student Li Hal

was found guilty of ‘‘prying into and gathering’’ ‘‘state secrets,’’ and sentenced in

1996 to 9 years’ imprisonment. Even commemorating those who participated in the

Tiananmen Movement is a crime against the state. On December 26, 2000, after

more than a year and a half in incommunicado detention, Jiang Qisheng was sentenced to 4 years in prison for circulating an open letter suggesting citizens engage

in peaceful activities to commemorate the tenth anniversary of the June Fourth

Massacre, such as lighting candles at home.

B. Institutionalized discrimination: Using law to discriminate against rural residents, migrants, and ethnic minorities

In HRIC’s NGO shadow report to the U.N. Committee on the Elimination of Racial Discrimination (CERD), HRIC pointed out on the discriminatory effect of PRC

laws and policies on three main overlapping groups: rural residents, that is people

with rural household registration or hukou, comprising 63.91 percent of the population; internal rural-to-urban migrants, part of a vast ‘‘floating population’’ estimated to range anywhere from 40 million to 120 million; and national minorities,

making up 106.43 million persons or 8.41 percent of the population. Together these

three groups constitute the vast majority of the PRC’s population. The hukou system has created a system that gives the urban population privileged access to education, housing, economic opportunities and political participation. This hukou system thus violates the rights of rural residents and migrants to equal enjoyment and

exercise of their human rights and fundamental freedoms. The failure of the PRC

government to provide equal access and treatment in political, economic, social, cultural and other fields of public life has created an apartheid-like system that threatens to undermine the security, stability and fairness of the PRC’s modernization and

reform efforts.

C. Ineffective implementation and lack of accountability: The persistent gap between

law on the books and law in practice

Two examples stand out in the persistent gap between law on the books and law

in practice: the lack of accountability for the June Fourth Massacre and the Revision of the Criminal Procedure Law.

• Criminal Procedure Law (CPL)—China’s National People’s Congress has revised the Criminal Procedure Law (CPL), effective on January 1, 1997. CPL provisions aimed at safeguarding rights have either been watered down by interpretative

rules issued by law enforcement agencies, or violated outright without the authors

of the violations suffering any consequences. Loopholes and ambiguities in the CPL

have been exploited to the full by law enforcement authorities. In certain areas, the

new CPL has actually resulted in greater limitations of key rights, such as regarding defense lawyers’ access to prosecution evidence.

HRIC published a report, ‘‘Empty Promises: Human Rights Protections and China’s Criminal Procedure Law in Practice’’ (March 2001). The report focuses on the

Chinese Communist Party (CCP) control of the judiciary, the role of lawyers, pretrial detention, use of illegal evidence, discriminatory application of the law and assessment of these issues in terms of international human rights standards in 2001.

The full 90-page report (in English) is attached for the Commission to our submission.

• Tiananmen Mothers Campaign—Patterns of rights violations show that impunity and lack of accountability are a principal cause of human rights abuses in

China. Mechanisms to hold officials accountable are deficient or non-existent. Controls on freedom of expression and association make it very difficult for people to

expose abuses by officials and to achieve accountability.

For example, the crime committed against unarmed demonstrators in Beijing on

June 4, 1989, remains uninvestigated and unpunished, despite the brave efforts of

the victims’ families acting under the banner of the Tiananmen Mothers. Hundreds

of Chinese citizens remain in prison for participating in that year’s peaceful protests. In June 1999, the victims’ families asked China’s Supreme People’s

Procuratorate to initiate a criminal investigation in order to determine the legal responsibility of the perpetrators. They submitted evidence consisting of testimonies

44

from 24 victims’ families and three people who were injured, and a list of the 155

known dead and the 67 known injured. To date they have received no reply. These

families are subjected to constant harassment, from brief detentions and house arrest to surveillance and the confiscation of humanitarian funds sent from abroad.

D. Arbitrary nature of the system: Administrative detention

The improvement of the legal system will do nothing to improve conditions in the

wide range of punishment institutions that operate outside the legal system, and

in which large numbers of people are incarcerated. These include the system of ‘‘custody and repatriation’’ (C&R) under which ‘‘undesirables’’ of all types, including

women and children, are detained without trial, occasionally for periods as long as

a year or more, and then shipped back to their home towns and villages; the system

by which individuals can be sentenced by police or work-unit security personnel to

3-year sentences of ‘‘re-education through labor’’ (RTL) in camps; the system of psychiatric hospitals, known as the Ankang, run by the Ministry of Public Security; and

a host of other institutions, such as establishments for forced drug addiction treatment and for rehabilitation of prostitutes and clients, ‘‘welfare homes’’ for the detention of elderly dissident clerics, and unit-level detention facilities set up entirely outside existing regulatory structures by local governments, institutions, and companies. The scale of such administrative detentions is vast.

Custody and repatriation: In 1996, at a Ministry of Civil affairs conference on

C&R, it was announced that across the country more than one million ‘‘vagrant beggars’’ were taken into custody every year, as well as upwards of 100,000 indigent

children, and that over 600,000 persons were ‘‘repatriated’’ or ‘‘assisted in returning

home’’—a total of 1.7 million detainees in C&R facilities alone in that year.

Reeducation Through Labor: According to China’s official figures, 230,000 people

are currently held under RTL, as compared with around 150,000 in the early 1990’s.

RTL applies to people believed to be responsible of acts ‘‘too minor’’ to merit formal

prosecution and is ordered by the public security departments alone, without any

judicial review. RTL detainees do not have the right to counsel, the right to a hearing or the right to have the lawfulness of their detention reviewed by a judicial authority. Although its maximum duration is 3 years, it can be renewed for up to one

more year if the detainee is believed to have performed badly in his or her ‘‘reform.’’

It is frequently used to detain Chinese people who have peacefully exercised their

rights to freedom of thought, religion, expression and association. However, we believe that this measure is arbitrary under the definition put forward in the judgment of the U.N. Working Group on Arbitrary Detention, and thus should not be

applied to any detainees, regardless of the reason for which they are sent to RTL.

III. RECOMMENDATIONS

1. The Commission should urge the Chinese authorities to proceed with a comprehensive review of the convictions and sentences of all those imprisoned for alleged ‘‘counterrevolutionary’’ crimes, especially in light of the revisions to the Chinese Criminal Procedure Law that eliminated this category of crime. The Commission should also urge the Chinese authorities to unconditionally release all prisoners

of conscience.

2. The upcoming visit of President Bush to China provides an important opportunity to publicly raise human rights concerns. Congressional members should urge

President Bush to press for the release of political prisoners in a significant way

and to publicly raise human rights issues such as the crack-down on freedom of expression, and the discriminatory treatment of China’s rural and ethnic minority populations, and to engage the Chinese leadership in serious substantive discussions

about these issues.

3. In monitoring the protection of freedom of expression and information in China,

we urge the Commission to pay particular attention to the increasingly restrictive

Internet regulation and surveillance by Chinese authorities, especially as these regulations interface with China’s WTO accession obligations.

4. On multilateral initiatives, we urge the U.S. government to immediately announce and lobby for a United Nations resolution expressing concern about the

human rights situation in China.

5. We urge the Commission to develop and announce benchmarks for human

rights compliance and rule of law developments over the next 7 years leading up

to the Olympics. For example, benchmarks regarding steps taken toward ending political imprisonment, abolishing reeducation Through Labor, and the hukou system.

Thank you, Mr. Chairman.

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HUMAN RIGHTS IN CHINA: SUPPORTING DOCUMENTATION AND MATERIALS

1. HRIC List of Urgent Cases of Political Prisoners (February 6, 2002)

2. Announcement of the Tiananmen Mother’s Campaign (July 27, 2000)

3. HRIC Report: ‘‘Empty Promises: Human Rights Protections and China’s Criminal

Procedure Law in Practice’’ (March 2001)

4. HRIC Report: ‘‘Reeducation Through Labor (RTL): A Summary of Regulatory

Issues and Concerns’’ (February 2001)

5. HRIC Report: ‘‘Not Welcome at the Party: Behind the ‘‘Clean-Up’’ of China’s Cities—a Report on Administrative Detention Under Custody and Repatriation

Centers’’ (September 1999)

6. ‘‘Promoting Human Rights in China: Report of the China Human Rights Strategy

Group’’ sponsored by the Open Society Institute and Human Rights in China

(November 2001)

7. ‘‘Implementation of the international Convention on the Elimination of all Forms

of Racial Discrimination in the People’s Republic of China: A Report by Human

Rights in China’’ (July 2001)

PREPARED STATEMENT OF MIKE JENDRZEJCZYK

FEBRUARY 7, 2002

Thank you, Senator Baucus and Representative Bereuter, for inviting us to testify

at the first public hearing of the Congressional-Executive Commission on China.

The timing of today’s hearing makes it particularly important and useful—exactly

2 weeks before President Bush’s first official visit to Beijing on February 21–22.

I would like to begin by offering some specific recommendations to the Commission, and then I will outline major human rights and rule of law concerns in China,

based on Human Rights Watch’s documentation of abuses in China and Tibet over

the past year.

I realize that the Commission’s mandate, under the PNTR (Permanent Normal

Trade Relations) bill establishing the body, is quite broad. The Commission is

charged with monitoring China’s compliance with the rights contained in the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights, as well as the development of the rule of law in China.

But to be effective, I believe the Commission should focus its work—especially this

first year of its active involvement—in some strategic areas. These should include,

for example, the release of political and religious prisoners; greater cooperation with

U.N. human rights mechanisms and adherence to U.N. human rights treaties; and

increased access by human rights monitors. Over the longer term, other issues

should also be considered, such as freedom of expression and restrictions on the

Internet (see below for details), and ways to creatively use the 2008 Olympics in

Beijing as a catalyst for human rights improvements. These could be topics for future Commission hearings.

I hope the Commission’s initial report to the President and the Congress, originally due last October, will be issued early this spring and, at a minimum, will

highlight some of the Commission’s key concerns and make some policy recommendations for both the Executive and Congressional branches.

I would also urge the Commission to seek to post one of its professional staff

members at the U.S. embassy in Beijing, in order to facilitate and expand upon the

research activities of the Washington-based staffed. This suggestion was contained

in a letter sent to the Commission last September by several NGO’s, including

Human Rights Watch; we also discussed it with the U.S. Ambassador to China,

Clark Randt, during one of his recent visits to the U.S.

RECOMMENDATIONS FOR U.S. POLICY

(1) President Bush’s China visit

The significance and symbolic value of the president’s visit to Beijing—exactly

thirty years after President Nixon’s historic visit, and shortly after China has joined

the World Trade Organization—provides some real leverage. It should be used to

press for significant steps to improve human rights.

We welcomed the release last month of Ngawang Choepel, a Tibetan musicologist

and former Fulbright scholar who was serving an 18-year prison sentence on espionage charges. Whether or not his release on medical grounds was in any way related to the forthcoming Presidential visit, it seems to indicate that even at a time

of political transition in Beijing, China’s leaders are anxious to maintain good relations with the U.S. Ngawang Choepel’s case received sustained, high level attention

46

from both the Clinton and Bush administrations and, perhaps most significantly,

from many Members of Congress. Active concern by Congress was clearly a major

factor in bringing about his release. I think his release also illustrates that pressure

can work. And it is precisely this kind of pressure—generated through both private

and public diplomacy—that the Commission should seek to exert, in the lead up to

the president’s visit and in the weeks and months to come.

I certainly hope that there will be many more releases of political dissidents, religious activists, Tibetans activists and others. Further releases may even be announced before the president’s trip.

However, the administration and Congress should also press for more far-reaching

steps. This is one area where the Commission and its individual members can be

particularly helpful. First, I would urge some members of the Commission to offer

to travel to Beijing with the president, in order to hold bilateral discussions with

senior officials in key ministries, such as the Bureau of Religious Affairs, Ministry

of Foreign Affairs, the Labor Ministry, and others; to introduce the Commission and

its mandate to the Chinese leadership; and perhaps to explore establishing a framework for talks with members of the National People’s Congress (NPC) on human

rights and rule of law concerns.

Secondly, I hope the Commission will write to China’s leaders in advance of

Bush’s visit, then follow up with private contacts with Chinese officials by individual Congressional members. Such a letter might, for example, urge China not

only to release large numbers of political prisoners but also to submit the ICCPR

to the NPC for ratification as soon as possible; to invite the U.N. Special Rapporteur

on Religious Freedom to conduct a return visit to China and Tibet this year to assess any progress made in implementing the recommendations resulting from his

November 1994 visit; to agree to the terms of the new U.N. Special Rapporteur on

Torture and Ill-Treatment for a visit; and to open up Xinjiang, the far northwestern

province of China, to regular, unrestricted access by U.N. and private human rights

monitors.

The situation in Xinjiang deserves special attention in light of the widespread and

systematic human rights violations against ethnic Uighurs, including many involved

in non-violent political, religious and cultural activities. China has tried to justify

its broad denial of basic freedoms in Xinjiang on counter-terrorism grounds; but Chinese authorities have failed to discriminate between peaceful and violent dissent in

their fight against ‘‘separatism’’ and ‘‘religious extremism.’’ (More details on the situation in Xinjiang follow in the next section of my testimony.)

(2) U.N. Commission on Human Rights

The annual session of the U.N. Commission on Human Rights will begin in Geneva on March 16. Although the U.S. does not have a seat on the Commission this

year, it can propose and promote resolutions. The administration, to my knowledge,

has yet to formally decide whether to pursue a China resolution and to identify a

possible sponsor, although the State Department has begun informal consultations

with the European Union and others about the agenda for Geneva.

I urge the Commission to use its influence with the executive branch to reiterate

the strong concerns of Members of Congress in both houses that China should be

held accountable for its international human rights obligations in the highest U.N.

body charged with monitoring compliance. Whether or not a resolution is ultimately

passed, the multilateral pressure exerted by a serious Geneva campaign gives China’s leaders an incentive to make progress on human rights, and to cooperate with

U.N. human rights mechanisms, in order to avoid the loss of face that U.N. censure

would entail.

The State Department’s annual human rights country report is due to be delivered to Congress on February 25, soon after President Bush’s Beijing visit. I expect

the report will make it apparent that based on the overall record of China’s human

rights performance, action in Geneva is warranted.

If a China resolution is introduced, I hope that the Congressional-Executive Commission and its members will work with the State Department to urge other governments to support a resolution and to oppose any ‘‘no action’’ motion by China to prevent it from coming up for debate and vote in April.

(3) Labor Rights

Protection of internationally recognized worker rights is an explicit part of this

Commission’s agenda, referred to in the PNTR bill, and yet the issue has not received adequate attention in U.S.-China relations.

With China’s entry into the WTO, increasing unrest among laid off and unemployed workers is expected. Despite some changes in the Chinese labor law adopted

last October, there has been little progress toward allowing rights of free association

47

for Chinese workers as recommended by the International Labor Organization

(ILO). All attempts to organize independent trade unions are considered illegal, and

free trade union organizers are often detained and arrested.

The ILO has offered to send a mission to Beijing to discuss China’s obligations,

as an ILO member, to respect workers’ right of free association. The Commission

should consider developing a strategy to encourage China’s cooperation with the ILO

on this core international standard. Last May, the ILO signed an agreement in Beijing to cooperate on the creation of social safety net programs, job retraining and

other issues. But freedom of association was not addressed in the agreement.

The Commission could also help by scheduling a hearing to examine the human

rights implications of China’s WTO membership, especially with regard to workers’ and migrants’ rights. It should also recommend that Elaine Chao, the U.S. Secretary of Labor, arrange to go to China later this year to begin a high-level dialog

on core ILO standards, as well as to offer U.S. assistance with social safety net and

worker health and safety programs. Her predecessor was formally invited to visit

China by the Chinese labor minister when he came to Washington in March 1999.

As the administration develops programs to enhance rule of law, human rights

and democracy in China with the funds provided by Congress this fiscal year—ap- proximately $10 million all together—the Labor and State Department and Congressional members of this Commission should meet to discuss ways of constructively

addressing reform of China’s labor laws.

HUMAN RIGHTS DEVELOPMENTS IN 2001

The Chinese leadership’s preoccupation with stability in the face of continued economic and social upheaval fueled an increase in human rights violations in 2001.

China’s increasingly prominent international profile, symbolized by its entry into

the World Trade Organization (WTO) and by Beijing’s successful bid to host the

2008 Olympics, was accompanied by tightened controls on fundamental freedoms.

The leadership turned to trusted tools, limiting free expression by arresting academics, closing newspapers and magazines, and strictly controlling Internet content.

It utilized a refurbished ‘‘Strike Hard’’ anti-crime campaign to circumvent legal safeguards for criminal suspects and alleged separatists, terrorists, and so-called religious extremists. In its campaign to eradicate Falun Gong, Chinese officials imprisoned thousands of practitioners and used torture and psychological pressure to force

recantations. Today, we are releasing a major new report, ‘‘Dangerous Meditation:

China’s Campaign Against Falun Gong,’’ documenting the crackdown. (Copies are

available for Commission members.)

Freedom of Expression

Starting in late 2000, authorities began tightening existing restrictions on the circulation of information, limiting the space available to academics, journalists, writers and Internet users. Attacks on academic researchers may have been partly a response to the January 2001 publication of the Tiananmen Papers, a collection of

government documents spirited out of China which described in detail the role

played by Chinese leaders at the time of the historic June 1989 crackdown.

In December 2000, Guangdong’s publicity bureau told newspapers and journals

not to publish articles by 11 prominent scholars. In June 2001, one of those named,

economist He Qinglian, fled China after Chinese security agents seized documents,

letters, her cell phone, and photos of America friends. Although her 1998 book, China’s Pitfalls, had been widely praised by the Communist leadership for its expose

of corruption, she later angered authorities when she publicized the widening income gap in the country. Before she fled, the propaganda department of the Chinese

Communist Party banned publication of her works; she lost her reporting job at the

Shenzhen Legal Daily; and was subject to round-the-clock-surveillance. In May,

after the Yancheng Evening News published an interview with Ms. He, Chinese authorities ordered top staff to submit self-criticisms.

Between February and September, four Chinese academics who were either naturalized U.S. citizens or permanent U.S. residents were arrested and tried on charges

of spying for Taiwan. Dr. Gao Zhan, a scholar at American University in Washington, sentenced to 10 years’ imprisonment, was permitted to return to the U.S.

within days after the conclusion of her trial; Qin Guangguang, a former editor and

scholar, was granted medical parole and returned to the U.S. immediately after

being sentenced to a 10-year term; journalist and writer Wu Jianmin was expelled

following his trial in September; and Dr. Li Shaomin, a naturalized U.S. citizen

teaching in Hong Kong, was deported in July after a 4-hour trial. Sichuan native

Xu Zerong, a Hong Kong resident since 1987, detained in June 2000, was put on

trial on charges of illegally supplying State secrets and sentenced to 13 years in

prison in late January 2002, according to his family.

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Scholars were also affected when the Chinese Academy of Social Sciences rescinded invitations to foreign and Taiwan scholars to participate in an August 2001

conference on income disparities. In November 2000, authorities canceled an officially sponsored poets’ meeting in Guangxi province after it became known that dissident poets, some of whom helped underground colleagues publish, were expected

to attend. Three organizers were detained. In May, police in Hunan province raided

a political reading club that had attracted teachers and intellectuals, and detained

several participants including the founder.

Restrictions on information flows also affected HIV–AIDS research and reporting.

In May, Beijing prohibited Dr. Gao Yaojie, who had helped publicize the role of unsanitary blood collection stations in the spread of the disease, from traveling to the

U.S. to receive an award. Earlier, Henan health officials had accused her of being

used by ‘‘anti-Chinese forces;’’ local officials, who often profited from the sale of

blood, had warned her not to speak out. In July, village cadres refused to allow her

to enter their AIDS-ridden villages.

Media regulations were also tightened. In November, the Communist Party’s top

publicity official signaled a new policy when he told a meeting of journalists that

‘‘the broad masses of journalists must be in strict agreement with the central committee with President Jiang Zemin at its core,’’ a warning repeated in January by

Jiang himself. The same month, a Party Central Propaganda Department internal

circular warned that any newspaper, television channel, or radio station would be

closed if it acted independently to publish stories on sensitive or taboo topics such

as domestic politics, national unity, or social stability. The regulations instituted a

new warning system; after three citations, a media outlet was subject to closure.

By June, the Party had instituted a stricter regime. A decree expanded taboo content to include speculation on leadership changes, calls for political reforms, criticism of Party policies including those related to ethnic minorities or religion, and

rejection of the guiding role of Marxism-Leninism and Mao-Deng theories, among

many other categories. The decree forbade independent reporting on major corruption scandals, major criminal cases, and human and natural disasters and threatened immediate shutdown for violators. The government also ordered a nationwide

campaign to educate journalists in ‘‘Marxist news ideology.’’ In the immediate aftermath of the September 11 attacks in New York and Washington, the Chinese Communist Party’s Central Committee Propaganda Department

ordered news media to refrain from playing up the incident, relaying foreign news

photos or reports, holding forums, publishing news commentaries without permission, or taking sides. Chinese youth had welcomed the attacks on Internet postings

and officials said the restrictions were needed to prevent damage to U.S.-China relations.

Authorities routinely prohibited the domestic press from reporting on incidents it

considered damaging to China’s image, but permitted exposes when it suited the

government’s purposes. On September 8, 2001, former Xinhua reporter Gao Xinrong,

sentenced to a thirteen-year term in 1998 for exposing corruption associated with

an irrigation project in Shanxi province, wrote U.N. High Commissioner for Human

Rights Mary Robinson asking that she intercede on his behalf after appeals in

China were unsuccessful. Similarly, Jiang Weiping, a Dalian, Liaoning province

journalist, who also exposed corruption, was arrested in December 2000 and tried

in September 2001 on charges of ‘‘leaking State secrets.’’ He received a 9-year sentence. After a military truck blew up in Xinjiang in November 2000, three journalists at two newspapers were punished for ‘‘violat[ing] news discipline and reveal[ing]

a lot of detailed information’’ before Xinhua, the official news agency, printed the

official line on the incident. News media in China are required to use Xinhua reports on any stories that local or central propaganda authorities deem sensitive. In

June, Yao Xiaohong, head of news for Dushi Consumer Daily in Jiangxi province,

was dismissed after reporting an illegal kidney transplant from an executed prisoner. In October, under pressure from central government publicity authorities, he

was fired from his new job at the Yangcheng Evening News in Guangdong province.

Chinese authorities, however, did not always succeed in silencing the press. In

March, after Chinese authorities insisted that a mentally ill man had caused an elementary school blast that killed over forty youngsters and teachers in Jiangxi province, the domestic press and Internet sites stopped reporting that the children had

been involved in the manufacture of firecrackers. After parents used the press and

the Internet to establish the truth of what really happened, Premier Zhu Rongji,

who had initially denied local accounts, was forced to renege.

Chinese authorities moved against publications as well as individual journalists.

In May, a magazine called Today’s Celebrities was peremptorily closed for printing

articles about corruption and the Cultural Revolution (1966–76). Employees had to

stop the post office from delivering copies of the offending issue. In June, in a move

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to change its character, authorities replaced the acting editor and other editorial

staff at Southern Weekend (Nanfang Zhoumuo), China’s most outspoken news publication. The magazine had published a series of articles blaming the government for

problems in rural areas, reported on the school explosion, and featured an in-depth

discussion of President Jiang Zemin’s ‘‘three represents’’ thesis. The latter has been

promulgated as Jiang’s important contribution to the theoretical underpinnings of

communism in China. Officials also closed the Guangxi Business Daily, which had

operated for 2 years as an independent, privately owned paper, when it refused to

merge with the Guanxi Daily. In Jiangsu province, officials ordered the immediate

suspension of the Business Morning Daily after it suggested that President Jiang’s

policies had advanced Shanghai’s development at the expense of other cities.

At the other extreme, when Beijing’s interests coincided with independent press

accounts, the government encouraged the reporting. Such was the case in July,

when owners of the Nandan tin mine and local officials hindered accurate reporting

of a flooding disaster at the site. They had been denying that the accident, which

claimed close to 100 lives, had occurred. Beijing has been trying to close down illegal

mines and improve safety standards in others. In the Nandan case, local officials

had ignored the violations because the mine contributed heavily to the county’s coffers.

The foreign press was also muzzled. In early March, after Time ran a story on

Falun Gong, Beijing banned future newsstand sales of the magazine. In June, five

security officers beat an Agence France-Presse reporter after he photographed a

protestor outside a ‘‘Three Tenors’’ concert held to support Beijing’s Olympic bid. In

July, government officials in Beijing prohibited the U.S. CBS television network

from transmitting video footage for a story about Falun Gong. Chinese authorities

banned the October 29 issue of Newsweek when it ran a cover story on corruption.

China International Television Corporation, which administers satellite broadcasting, informed foreign TV channels that as of January 1, 2002, they must transmit through a government ‘‘rebroadcast platform,’’ a move making censorship of incoming broadcasts easier. China Central Television also reneged on a July agreement to air in full U.S. Secretary of State Colin Powell’s Beijing interview. It cut

one-fifth of his remarks, including those defending U.S. criticism of Beijing’s human

rights record.

Restrictions on the Internet

Stringent regulations on rapidly growing Internet use came into effect in November 2000. New regulations required general portal sites to get their news solely from

state-controlled media unless they had received special permission to post news

from foreign media or from their own sources, required that bulletin board services

and chatrooms limit postings to approved topics, and made monitoring of postings

routine. A month later, Chinese authorities increased the number of Internet police

to more than 300,000. In January 2001, a new regulation made it a capital crime

to send ‘‘secret’’ or ‘‘reactionary’’ information over the Internet. In February, software called Internet Police 100, capable of ‘‘capturing’’ computer screens and ‘‘casting’’ them onto screens at local public security bureaus, was released in versions

that could be installed in homes, cafes, and schools. The product was designed in

part to keep ‘‘unhealthy’’ information such as cults, sex, and violence, off the Net.

But even with some sixty sets of regulations in force, President Jiang in July decried the spread of ‘‘pernicious information’’ over the Web and called the existing

legal framework inadequate.

By January 2002, the Ministry of Information and Technology had ordered service

providers in ‘‘sensitive and strategic areas’’ to keep detailed records of who uses

their services and at what times. Providers were also required to install software

capable of screening and copying private e-mails with ‘‘sensitive material,’’ to end

transmissions of such material immediately, and to report offenders to public and

State security bureaus.

Chinese regulations limited news postings on the websites of U.S.-based companies operating in China. The English chatroom of SOHU.com, partly owned by Dow

Jones, posted a list of issues prohibited on the Internet by Chinese law, including

criticism of the Chinese constitution, topics which damage China’s reputation, discussion that undermines China’s religious policy, and ‘‘any discussion and promotion

of content which PRC laws prohibit.’’ The posting continues: ‘‘If you are a Chinese

national and willingly choose to break these laws, SOHU.com is legally obligated to

report you to the Public Security Bureau.’’ An internal AOL memo recommended

that if AOL were asked what it would do if the Chinese government demanded

records relating to political dissidents, AOL staff should respond ‘‘It is our policy to

abide by the laws of the country in which we offer services.’’

50

In an attempt to control the proliferation of Internet cafes, Chinese officials

stopped issuing new licenses while a clean-up operation to uncover evidence of

banned sites or posting of subversive messages was underway. Beginning in April,

public security departments checked more than 55,000 sites. Also in April, four

State ministries and departments, including the Ministry of Information Industry,

promulgated ‘‘The Procedure for Managing Internet Service Business Sites.’’ It bars

cafes along a major Beijing thoroughfare and within 200 meters of key central

party, political, and military organs, and middle and elementary schools, and within

residential buildings. In October, officials announced that more than 17,000 cafes

had been closed.

Internet bulletin boards, chat rooms, and online magazines, including universitybased sites and those catering to journalists, were also closed. In June, Southern

Weekend Forum, which allowed postings criticizing the firings at the Southern

Weekend, was closed; Democracy and Human Rights Forum, produced by the

website Xici Hutong was suspended for complaints about lack of press freedom. In

August, two sites that criticized Jiang Zemin’s stand on allowing private entrepreneurs to join the Party, the electronic magazine China Bulletin and the Tianya

Zongheng forum were closed. Even People’s Daily, the Party newspaper, was forced

to remove a collection of articles by a Party member opposed to Jiang’s initiative.

In September, the State Council ordered the closure of Baiyun Huanghe, a bulletin

board with 30,000 registered users at the Huazhong University of Science and Technology in Wuhan, after students posted articles about events in Tiananmen Square

in 1989. Once the bulletin board reopens, the university’s Party committee will manage it. In mid-October, the Telecommunications Administration and Office of Information closed Zhejiang Media Forum, a bulletin board for journalists, and demoted

the webmaster for leaking secrets, slandering leaders, and attacking government

bodies.

At least 16 people were arrested or sentenced in 2001 for using the Internet to

send information or to express views that the leadership disliked. In March, a court

in Sichuan province sentenced Jiang Shihua, a middle-school teacher, to a 2-year

term for ‘‘inciting the subversion of State political power.’’ In April, Wang Sen, was

detained for having exposed local trafficking in medicines; a Hebei province court

sentenced Guo Qinghai, a bank employee, to a 4-year term for subversion for posting pro-democracy articles on a U.S. web site; and veteran activist Chi Shouzhu,

who had printed out pro-democracy writings from a web site, was detained. In May,

public security officers detained Hu Dalin for helping his father maintain websites

featuring the latter’s leftist writings, and Wang Jinbo for libeling the police (he received a 4-year sentence in December on subversion charges.)

Four intellectuals, Yang Zili, Xu Wei, Zhang Honghai, and Jin Haike, detained

in March, were tried at the end of September on charges of subversion for organizing the Association for New Chinese Youth and publishing articles about political

reform. To date, they have not been sentenced. Huang Qi, detained in June 2000

and tried in secret in August 2001 on subversion charges for featuring articles about

democracy on his website, had not been sentenced as of January 2002.

Political activists

Political dissidents continued to be persecuted. Two members of the banned China

Democracy Party, Wang Zechen and Wang Wenjiang, were sentenced to six and 4-

year terms respectively in December 2000. Dissident Jiang Qisheng, held since May

1999 and tried in November 1999, was finally sentenced to a 4-year term at the end

of December 2000 for circulating a political essay calling for a candlelight commemoration and public mourning of those who died in the massacre in Beijing on June

3–4, 1989. Authorities also let it be known that interference with Beijing’s Olympic

bid would not be tolerated, sentencing activist Shan Chenfeng, who urged the International Olympic Committee to pressure China to release dissidents, to a 2-year administrative sentence in February. Shen Hongqi, a lawyer, received a 3-year sentence for an article advocating reform of China’s political system. Police in Inner

Mongolia detained activists associated with the Southern Mongolian Democratic Alliance, which seeks to promote Mongolian traditions and cultural values, but which

the government accuses of splittist activities. In May, Dalai, also known as Bai

Xiaojun, was detained for promoting the coming celebration of the birthday of Genghis Khan; in June, police detained Altanbulag, a young musician, for distributing

materials relating to human rights and ethnic problems in Inner Mongolia. Authorities also banned works by two young Mongolian poets and in October detained one,

Unag, for several weeks.

51

Criminal Justice

On April 3, 2001, President Jiang initiated a 3-month ‘‘Strike Hard’’ (yan da) anticrime campaign. Stressing the need to safeguard social stability and the reform

process, he asked that improvements in fighting crime be made with ‘‘two tough

hands.’’ The following day, Xiao Yang, president of the Supreme People’s Court, announced that China’s court would abide strictly by the law during intensified efforts

to punish criminal elements. The pledge has been honored more in the breach, as

the campaign has featured hastily processed cases, denial of due process rights,

summary trials, harsh sentences, mass sentencing rallies, and an upsurge in executions. In Shanghai, for example, judges were ordered to take less time to review evidence in the pre-trial phase. A Supreme Court circular on April 12 stipulated that

courts should mete out severe punishments to offenders, stressed the need for courts

to act rapidly, and noted that capital cases should be made irreversible through

ironclad evidence. Although the prohibition against the use of torture was reinforced

by Luo Gan, the Chinese Communist Party’s chief law and order official, forced confessions under duress were officially acknowledged. The practice is illegal, but evidence obtained through torture is admissible in court. Li Kuisheng, a prominent

lawyer in Zhengzhou, Henan, was finally cleared of all charges and released in January 2001. He had been arrested in November 1998 after defending a client fighting

corruption charges, and under torture had ‘‘confessed’’ to fabricating evidence.

Provinces and municipalities reported regularly on their compliance with the campaign. Their accounts included totals of those apprehended, sentenced, and executed, and information on the kinds of crimes committed. Capital sentences were

imposed for some sixty offenses including, in addition to violent acts, economic

crimes, drug trafficking, smuggling, arms dealing, racketeering, counterfeiting,

poaching, pimping, robbery, and theft. During the first month of Strike Hard, some

10,000 people were arrested and at least five hundred executed. By the end of October, at least 1,800 people had been executed, at least double that number had received death sentences, and officials had announced they would continue the campaign at least through June 2002 with increased ‘‘intensity.’’ By September, China’s deputy procurator general called for a ‘‘strike always’’ campaign. The elimination of

prostitution and gambling, a crackdown on superstitious activities, and better management of migrants joined the list of targets. In July, the Public Security Ministry

distributed cash awards amounting to 1.15 million renminbi (over U.S.$140,000) to

departments in five provinces in recognition of their Strike Hard efforts. In January

2002, The Minister of Public Security warned the police not to relax their efforts

but rather to step up the campaign.

Despite the Strike Hard campaign, officials in some areas implicitly acknowledged

unfairness in the criminal justice system. In October, Beijing courts began implementation of new rules on the presentation of evidence requiring that both sides

present evidence in open court rather than to judges privately. In November 2000,

Liaoning officials announced that prosecutions in some cities would be based on

proof rather than confessions, thus guaranteeing suspects’ right to remain silent

during criminal interrogation. However, the following month, a senior National People’s Congress member admitted that in many places forced confessions, extended

detentions, and restrictions on the activities of attorneys for the defense were still

problems. In January, the vice-president of the Supreme People’s Court admitted to

corruption within the legal system, including intentional errors of judgment, forged

court papers, and bribe taking. In June, the Supreme People’s Procuratorate issued

six new regulations to prevent violations in the handling of cases and acknowledged

Communist Party interference in sensitive cases. However, in August, in Luoyang,

Henan province, judges who heard the cases of twenty-three defendants charged in

a fire that killed 309 people said they would not release their findings until they

had talked to provincial leaders.

China’s commitment to a rule of law is being severely tested in two cases involving businessmen, Fong Fuming, a U.S. citizen, and Liu Yaping, a permanent resident. Mr. Fong, an engineer and power industry consultant accused of bribery and

obtaining State secrets, was held without trial from February 28, 2000 to October

22, 2001. Fong’s indictment was dated September 24, 2001, but the defense did not

learn of it until 2 weeks before trial. Although the U.S. Embassy was informed the

trial would be open, Mr. Fong’s son was turned away when he arrived at court. As

of late January 2002, no verdict had been issued.

Liu Yaping, held in Hohhot, Inner Mongolia, on charges of fraud and tax evasion

since March 2001, has been denied proper medical treatment despite a life-threatening brain aneurysm. On August 7, he was ‘‘released pending trial,’’ but instead

of being free to move about the city as was expected, he was transferred to a hospital and kept under twenty-four hour guard until mid-January 2002 when he was

released and informed he could go to Beijing for medical treatment. However, as of

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late January, he still had not received the documents, including his passport, that

would make travel possible. During his months in custody, Mr. Liu has had only

very limited to family members and to legal counsel. He has never been indicted.

Freedom of Religion and Belief

China continued to crack down on groups it labeled cults and on religious expression practiced outside the aegis of official churches. Falun Gong continued to experience the harshest repression, with thousands of practitioners assigned to ‘‘reeducation through labor’’ camps and more than 350 imprisoned, many for nothing more

than printing leaflets or recruiting followers for protests. Throughout the year, recalcitrant practitioners were subjected to stepped up physical abuse and psychological coercion. Unconfirmed but credible reports of practitioners dying in custody

mounted. On June 11, the Supreme People’s Court and the Supreme People’s Procuratorate issued a new interpretation of cult provisions in the Criminal Law to

make it easier to punish practitioners on a wide variety of charges. The interpretation made incitement to injure oneself a capital offense, and it increased punishments for self-immolation, leaking State secrets, subversion, separatist activities,

small-scale ‘‘assemblies,’’ and small-scale publishing and distribution. There were reports in mid-August of forty-five followers tried and at least five sentenced to terms

of up to 13 years for offenses such as organizing the printing of leaflets and banners

and recruiting followers for protests. In December 2001, the Beijing police arrested

11 members of a ‘‘criminal gang’’ for spreading Falun Gong propaganda. Ten members were administratively sentenced to reeducation through labor; the eleventh is

in custody.

Authorities also targeted other so-called cults, among them Zhonggong, Xiang

Gong, Guanyin Famin, Kuangmin Zhaimen, the Holy Spirit Reconstruction Church,

Mentuhui, Nanfang Jiaohui, and the Local Church (also known as the Shouters),

sentencing members and leaders, closing their offices, and seizing their publications.

On January 28, 2002, a court in Fuqing, Fujian province, sentenced Lai Kwongkeung (Li Guangqiang in Mandarin), a Hong Kong resident, to 2 years’ imprisonment for ‘‘smuggling’’ some 33,000 bibles to Local Church groups. The smuggled

version was not one approved by Chinese religious officials. Yu Zhudi and Lin Xifu,

from the mainland, received 3-year terms. After U.S. protests, the original charge,

‘‘using an evil cult to damage a law-based society,’’ was downgraded to running an

‘‘illegal business operation,’’ but each man was fined the equivalent of U.S.$18,000.

A Local Church follower who organized songs and prayers in front of the courthouse

also was detained until the trial concluded. Two other Local Church members from

Anhui province have also been indicted on cult charges for proselytizing. After news

broke in December that a Hubei province court had sentenced Gong Shengliang,

leader of the Nanfang Jiaohui, to death on charges of ‘‘premeditated assault,’’ rape,

hooliganism, and using an evil cult to damage society, sufficient international pressure succeeded in reducing the charges to death with a 2-year reprieve. Four other

members also received death with reprieve. Such sentences are generally commuted

to life imprisonment. It has been charged that several alleged rape victims were coerced into giving false testimony. A total of sixty-three members of the church have

been charged. A court in Xiamen sentenced three mainland members of the Taiwanbased Holy Spirit Reconstruction Church to 7-year prison terms in January.

A few weeks before Christmas 2000, hundreds of ‘‘illegal’’ Protestant and Catholic

churches and Buddhist and Taoist temples and shrines in Wenzhou were demolished. In March and April, several dozen house church leaders in Hubei province

were detained; in May, 12 others were administratively sentenced in Inner Mongolia

and twenty-three others released after they paid fines amounting to approximately

U.S.$25 each. The Chinese government also instituted a special study group to bring

Christianity ‘‘into line with socialism’’ through reinterpretation of basic beliefs. As

part of the movement, the study group is looking into local church publications considered incompatible with the new interpretations.

The continuing government-ordered merger of Catholic dioceses, a move that went

unrecognized by Rome, also signaled Beijing’s determination to run the church in

accord with its own needs. As a result of a student-teacher boycott of Chinese-controlled ordinations in early 2000, fewer seminarians were enrolled in the Chinese

Catholic Theological and Philosophical seminary in Beijing. After political education

sessions, some seminarians were dismissed or ordered to return to their dioceses.

In October, after Pope John Paul expressed regrets for Catholic Church errors committed during the ‘‘colonial period’’ and expressed hope of normalized relations, Chinese religious officials responded by demanding that the Vatican first sever its ties

with Taiwan, refrain from ‘‘using the pretext of religious issues to meddle in Chinese internal affairs,’’ and apologize for last year’s canonization of ‘‘foreign missionaries and their followers who committed notorious crimes in China.’’ Detentions in

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2001 included those of several elderly influential bishops and priests including

Bishop Pei of Inner Mongolia, Bishop Li Hongye of Henan province, Father Feng

Yunxiang in Fujian province, Father Liao Haiqing in Jiangxi province, and Bishop

Shi Enxiang, Father Li Jianbo, and Father Lu Genjun from Hebei province.

Labor Rights

Reports of clashes between police and workers and farmers protesting layoffs, unpaid wages and benefits, corruption, and relocation problems continued throughout

the year. Details as to the course of the incidents and the outcomes differed markedly. In December 2000, there were conflicting accounts of whether workers from

a construction company in Heilongjiang were detained after some 2,000 of them

blocked a railway line. One report of a dispute at the Guiyang Cotton Textile Factory in January 2001 said ten workers were hospitalized with injuries; local officials

said the protests ended peacefully. In Changchun in September, either police or

members of a private security force reportedly beat some one hundred distillery

workers protesting the privatization of their company and lack of adequate compensation. Local authorities denied the allegations. In April police in Yuntang village, Jiangxi province arrested five villagers who had been leading a 3-year protest

against new taxes, then stormed the village killing two unarmed protestors and injuring some thirty-eight others. In October, in Qingdao, Shandong province, one

hundred police officers detained protestors demonstrating against the city’s failure

to honor its commitment to provide appropriate housing for residents forced to relocate to make way for a real estate project.

Labor activists continued to be targeted. Hu Mingjun, Deng Yongliang, and Wang

Shen were detained in May after helping steel workers in Sichuan province organize

a protest to demand back wages. In one prominent case, Li Wangyang, imprisoned

from 1989 to 2000 for his 1989 participation in the Shaoyang Workers Autonomous

Federation, was sentenced for subversion in September to a new 10-year term after

petitioning for compensation for mistreatment suffered in prison. Li’s sister, Li Wangling, received a 3-year administrative sentence on June 7 for publicizing her brother’s case.

In October 2001, the Standing Committee of the National People’s Congress

Workers passed a revised Trade Union Law requiring enterprises with more than

twenty-five workers to establish a union and prohibiting management personnel

from holding important union positions. But only government-affiliated unions were

mentioned in the law, and the right to strike was not guaranteed. In November

2000, a month after workers tried to form an independent union in a silk factory

in Jiangsu province, Chinese authorities committed Cao Maobing, the union organizer, to a mental hospital. It took 210 days for him to be released.

Tibet

China revised its overall Tibetan policy in June 2001, the fourth such change

since it took command of the region in 1950. Goals for 2001–2006 included accelerated economic development and tightened control over alleged ‘‘secessionist’’ activities. A semantic shift from ‘‘general stability’’ to ‘‘permanent rule and lasting peace’’

(chang zhi jiu an) at the June forum may also have signaled Beijing’s determination

to strengthen direct control over Tibetan affairs. During a July visit, Vice-President

Hu Jintao stated that it was ‘‘essential to fight unequivocally against separatist activities by the Dalai clique and anti-China forces in the world.’’

Efforts to engage the Chinese leadership in a dialog with representatives of the

Dalai Lama were unsuccessful in 2001. Following the Dalai Lama’s criticism of Chinese policy during a speech to the European Parliament general assembly on October 24, the Foreign Affairs Committee of the National People’s Congress reiterated

the position that talks could take place only if the Dalai Lama renounced his ‘‘separatist stand,’’ and openly acknowledged that Tibet was an inalienable part of China,

Taiwan merely a province, and ‘‘the government of the People’s Republic of China

the sole legitimate government representing the whole of China.’’

At the same time as Chinese officials refuted the Dalai Lama’s accusations of cultural and religious extinction, they continued to suppress free expression, limit the

growth of religious practice, and ensure that worship was consistent with socialism

and patriotism. In February 2001, at the beginning of the Tibetan New Year, government workers, cadres, and school children were banned from attending prayer

festivals at monasteries or from contributing to temples and monasteries. During

Monlam Chemo, once a festival of great religious significance, monks at Lhasa’s

major monasteries were not permitted to leave their respective complexes, and government authorities banned certain rites. In June, in Lhasa, officials distributed circulars entitled ‘‘Strengthening Abolition of the Illegal Activities of Trunglha Yarsol

(the Dalai Lama’s Birthday) and Protection of Social Stability.’’ Police in the region

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then detained hundreds of Tibetans who burned incense, said prayers, or threw

tsampa (roasted barley) into the air in defiance of the order.

Larung Gar, a Tibetan monastic encampment near Serthar in Sichuan province,

had come under virtual siege by Chinese authorities by mid–2001. Central authorities had ordered the expulsion of all but 400 nuns and 1,000 monks out of an estimated population of 8,800 over concerns about the institution’s alleged impact on

social stability, and officials were determined to complete the downsizing quickly.

As monks and nuns were forced out, many with no place to go, their meditation

huts, most built at individual expense, were destroyed, as were shops, restaurants,

and other structures. All teaching was suspended at Larung Gar, once a leading

Buddhist studies center, and its leader, Khenpo Jigme, was moved to Chengdu,

Sichuan’s capital.

Authorities continued to deny access to the Panchen Lama, the second most important figure in Tibetan Buddhism. The latest request, in October by Australia’s

deputy foreign minister, was denied on the grounds that Gendun Choekyi Nyima’s

parents want his and their privacy protected. The boy, now 12 years old, disappeared from public view in 1995 after Beijing chose another child as the reincarnation. Chadrel Rinpoche, the senior lama who led the search, was still in prison.

He was last seen in mid-May 1995 shortly before he was sentenced to a 6-year prison term.

In a further effort to ensure that the next generation of lamas would be beholden

to Chinese authorities rather than to the Dalai Lama, in July, an 8-year old recognized as an incarnate lama by the Seventeenth Karmapa was forced take off his monastic robes, forego religious training, and attend a normal primary school. He is

closely guarded at all times. The Karmapa, recognized by both Chinese authorities

and the Dalai Lama, escaped to India in 2000.

The Strike Hard campaign in Tibet had a decidedly political focus. At a May

meeting in Lhasa, capital of the Tibet Autonomous Region (TAR), courts were ordered to forcefully carry out the campaign against ‘‘those whose crimes endanger

State security,’’ and ‘‘those who guide people illegally across borders,’’ in other

words, against those who help Tibetans reach Nepal or Dharamsala, India, the

Dalai Lama’s home in exile. During the first month of the campaign, 254 people

were caught trying to leave or reenter the TAR, many allegedly carrying ‘‘reactionary propaganda materials.’’ Many were severely beaten after capture.

‘‘Splittist’’ activities accounted for numerous political arrests and trials in 2001.

In January, a Lhasa court sentenced Cengdan Gyaco to an 8-year term for agitating

separatism and spying for the Dalai Lama. That same month, an officer patrolling

Sera monastery caught Jampel Gyatso listening to an audio tape of the Dalai

Lama’s teachings. As of late January 2002, he was detained in the Gutsa Detention

Center in Lhasa. Two months later, a second Sera monk, Tendar, was detained for

involvement in political activities. In February, police arrested Migmar and four

friends caught watching a video of the Dalai Lama. The friends were released after

payment of 5,000 yuan (approximately U.S.$600) apiece. A Lhasa court sentenced

Migmar to a 6-year term in May. In March, in Qinghai province, after police raided

Tibetan households to confiscate photographs of the Dalai Lama, three local men

took it upon themselves to collect and hide the villagers’ photos. Police who caught

the men confiscated the pictures and levied fines of 5,000 yuan. In July, the Nagchu

court tried six people, Sey Khedup, Tenzin Choewang, Tenzin Lhagon, Yeshi Tenzin,

Traku Yeshi, and Gyurmey, for colluding with the Dalai clique and endangering

State security. Four of the six were monks. Terms ranged from 7 years to life imprisonment.

Xinjiang

Even before September 18, when the Chinese government publicly equated

Uighur calls for autonomy or independence with global terrorism, Beijing had instituted strict measures to crush ‘‘separatism’’ and ‘‘religious extremism’’ in Xinjiang.

In April, at the beginning of the nationwide Strike Hard campaign, Ablat

Abdureshit, chairman of the region, was explicit as to targets in Xinjiang: ‘‘national

splittists,’’ ‘‘violent terrorists,’’ and ‘‘religious extremists.’’ At the same time, the

leadership reiterated its determination to develop the region economically. Both

campaigns were entrusted to patriotic Party cadres working at the grassroots, kept

in check by a local law passed in May threatening punishment should they sympathize with Uighur aims or refuse to give up their religious beliefs. In April, China’s defense minister emphasized the role of the People’s Liberation Army in stabilizing the region so as to ensure the success of China’s Western Development

project. In June, Vice-President Hu Jintao, reiterated the call to root out Islamic activists.

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In June and again in January 2002 when their foreign ministers met, the Shanghai Cooperation Organization (formerly the Shanghai Five), composed of China,

Russia and four republics in Central Asia, reiterated its pledge of cooperation to

combat ‘‘terrorism, separatism and extremists’’ and to establish ‘‘a regular anti-terrorist structure. According to a Chinese official, the campaign would be aimed at

alleged terrorists groups in Xinjiang, Chechyna, and Uzbekistan.

Although there were credible reports of violence by Uighur separatists in

Xinjiang, strict Chinese controls on information coming from the region often made

it impossible to know whether particular individuals had indeed committed criminal

acts or whether they were being punished for exercising their rights to free political

expression, association, or assembly. Typical charges included ‘‘splittism,’’ subverting State power, setting up an organization to establish Islamic rule, stockpiling

weapons, endangering social order, and printing anti-government literature. There

were also new reports of torture, forced confessions, unfair trial procedures, and collective punishment. In November 2000, Abdulelil Abdumejit died while serving a

sentence for the anti-Chinese riots in Yining in 1997. Supporters claimed he died

from beatings and torture; the State claimed he died from his refusal to follow an

appropriate medical regime.

The Strike Hard campaign exacerbated the rate of arrests and sentencing. Within

3 months of the campaign’s start in April, Xinjiang police reported solving 8,000

cases, arresting 9,605 suspects, destroying six separatists and terrorist organizations, and in conjunction with the procuracy holding more than 100 sentencing rallies involving 300,000 spectators to parade ‘‘criminals’’ and announce sentences before a public expected to signify approval.

In April, police in Kashgar arrested twenty-five people for buying ten guns, allegedly to further an independence movement; in Urumqi, Abdulaimit Mehmet, convicted of murder and separatism, received a death sentence; six Uighurs were executed in Korla on charges of separatism and subverting State power; and Osman

Yimit, a trader from Kucha, received a 7-year sentence on charges of endangering

the social order and engaging in separatist activities for failing to register an aid

fund for poor families.

In June, Wusiman Yimiti and Maimaiti Reheman were executed for ‘‘forming a

criminal gang with the aim of splitting the country.’’ Erkhin Talip was executed in

September for crimes linked to separatism. In October in Yining, five Uyghurs, including Abdulmejid and Abdulahmad, received death sentences on charges of antistate terrorism; two others were sentenced to life imprisonment. And in November

at a combined Aksu and Uchturpan county mass rally, death sentences and long

prison terms were handed out to twenty-eight Uighurs for separatist and terrorist

activities. Abdehelil Zunun, who had translated the Universal Declaration of

Human Rights into Uighur, drew a twenty-year sentence.

Efforts to bring religious practices under the aegis of the State included the April

formation of a China Islamic Affairs Steering Committee under the administration

of the Islamic Association of China. The members, 16 senior China-based experts

on Islam, interpreted religious doctrines in accordance with Chinese law and Islamic

doctrine, drafted sermon pamphlets, and worked to bring Islam into conformity with

Chinese political ideology. An imam ‘‘patriotic reeducation’’ campaign, begun in

March, assigned some 8,000 religious leaders to twenty-day sessions stressing patriotism, loving socialism, upholding Party leadership, combating separatism, and the

like. In a number of cases, mosques were leveled, clerics arrested, and ‘‘illegal’’

books and audio cassettes confiscated. Before and during the holy month of Ramadan, there was considerable pressure, including threats of expulsion, against students who fasted or observed other religious rules such as the use of head scarves

or performance of daily prayers. In December, nine Muslims were arrested for

preaching illegally more than 20 times in Bayingolin Mongol Prefecture and for

translating the Koran into local languages. In January 2002, it was reported that

Ibrahim received a 4-year prison term for running a school where English, Arabic,

and other languages were taught and for talking about Uighur troubles. The school

was forced to close around the time of his arrest in May 2000. He was also part

of a group which advocated Islamic law.

In January 2001, Chinese officials took aim at Xinjiang’s publications market,

calling for stricter policing and punishment of those spreading religious fanaticism

and ethnic ‘‘splittism.’’ Access to Radio Free Asia’s Uighur language programs is

limited by severe jamming.

In January 2002, pressure to follow the official ideological line was explicitly extended to include artists, writers, performers, and historians, among others, when

Abulahat Abdurixit, the region’s chairman, made clear that ‘‘all who openly advocate

separatism using the name of art’’ would be purged. The announcement followed

recitation of a poem by a homeless man at the end of a concert at Xinjiang People’s

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Hall on January 1. That same month, Yili prefecture ordered a campaign against

folk customs such as wedding, funeral, and house-moving rituals. Uighur cadres

must have permission before attending such events and must report back to their

superiors. A Party official said the aim of the order was to curb extravagance and

eradicate superstition.

In violation of its once-a-month prison visit policy, Rebiya Kadeer, sentenced in

March 2000 to an 8-year term for sending Xinjiang newspapers to her husband in

the U.S., was limited to one family visit every 3 months. Glass separated her family

members during the thirty- to fifty-minute visits, at least one guard recorded everything that was said, and topics for discussion were limited. Ms. Kadeer was required

to wear a black tag signaling that her crime was serious and her behavior bad, in

part because she was unable to complete her assignments in the prison cardigan

factory. However, she was denied the glasses she needed to work efficiently. Ms.

Kadeer’s family was subject to surveillance and harassment. A fourth son, Ablikim

Reyim, was released in February, some 6 months before his 2-year reeducation

through labor term expired.

PREPARED STATEMENT OF JAMES V. FEINERMAN

THE ACCESSION TO THE WORLD TRADE ORGANIZATION OF THE PEOPLE’S REPUBLIC OF

CHINA (PRC) AND RELATED RULE-OF-LAW ISSUES

FEBRUARY 7, 2002

Members of the Commission:

Thank you for holding these hearings and for providing an opportunity to present

my views and to share information gathered from my study of Chinese law, visits

to the People’s Republic of China (PRC) and ongoing work in the field of academic

exchanges between the United States and the PRC. Given China’s population and

size, strategic position, and growing economic importance, it remains necessary to

focus upon a number of other significant considerations in formulating United

States policy toward the PRC. In addition to recent problems relating to United

States actions and responses to the international behavior of the PRC, recurrent

questions surround the development of a law and the legal system in the PRC which

remain difficult to answer. This statement is an attempt to address at least a few

of them in the context of China’s recent accession to the World Trade Organization

(WTO) and attendant legal concerns.

In considering the current situation with respect to the Rule of Law in China at

the time of PRC accession to the World Trade Organization, there are three major

points, further developed below, that I would like to make today. First, there has

been and continues to be a considerable legalization of the PRC which began in the

late 1970’s. This process will go on whether or not the United States participates

in the future developments. Second, the PRC has already experienced law reforms

which have made important contributions to the economy and polity of the PRC and

continue apace partly, but not solely, due to commitments the PRC has made with

regard to WTO accession. Third, despite this legalization and law reform now extending for more than two decades, there is still unfortunately a great deal that has

not changed in China with respect to the Rule of Law, civil rights and political liberties and the meaningful enjoyment freedoms taken for granted in most developed

nations.

Legal Development in China Since 1979—Background. When China opened the

door a crack to private entrepreneurship in the late 1970’s, individuals long under

the thumb of China’s Communist nomenklatura at long last began to have some

ability to control their own fates. Today, China’s dramatic economic growth is the

result of the efforts of millions of privately owned enterprises and reforming, semiprivatized State and collective enterprises. The economic changes in China over the

past two decades have enabled a significant part of the Chinese populace to achieve

more than a modicum of economic liberty and resulting personal freedom. They can

throw off the shackles of their state-assigned jobs, their controlling danweis (allpowerful work ‘‘units’’) and the petty martinets who previously ordered their lives.

This, in turn, opens the door to greater political liberty and even activism. Indeed,

the public display of anti-government sentiment in Beijing and elsewhere in China

in the spring of 1989 was largely funded—and often initiated—by such individuals.

Similarly, the police-issued residence permit (hukou) no longer serves as an indispensable passport to everything from food rations to job placement, housing or employment. Market-oriented reforms have so undermined the hukou system that the

Chinese government is unable to exercise the demographic, political and economic

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control it enjoyed from 1949 until the late 1980’s. In a dynamic economy, the leadership has little choice but to allow a freer flow of workers to stoke China’s booming

economy. This increase in labor market mobility comes at the expense of social control, as migrant laborers swarm into China’s coastal cities and provincial centers.

Evidence of the system’s breakdown was already visible over a decade ago, when

scores of ‘‘most-wanted’’ student activists and dissidents managed to slip through

the yawning gaps of the hukou net to escape from China in the aftermath of the

1989 massacre. Former paramount leader Deng Xiaoping’s 1992 trip to the south

of China and contemporaneous call for unleashing economic growth proved merely

the final nail in the coffin lid of a crumbling system. An army of anywhere from

100 million to 200 million migrant laborers now provides the lifeblood of China’s economic boom.

The death of China’s paramount leader, Deng Xiaoping, led to much reflection

about the many changes wrought in China during Mr. Deng’s leadership over almost two decades; however, curiously little attention was paid to Deng’s efforts to

bring law to the lawless China he inherited from Mao Zedong at the end of the socalled ‘‘Great Proletarian Cultural Revolution.’’ Nevertheless, all of the economic reforms and opening to the outside world for which Deng Xiaoping was rightfully acclaimed would have been difficult—if not impossible—without the simultaneous embrace of a rudimentary legal order that has become increasingly embedded in Chinese society with each passing year. At the same time, it remains necessary to exercise caution in assessing post-Mao China’s legalization; the extent and depth of

law’s penetration of Chinese society today is both problematic and erratic. Parallel

to China’s economic modernization without corresponding political reform, there has

been a considerable amount of lawmaking activity since the late 1970’s without the

nationwide entrenchment of fundamental concepts of civil liberties and restraints

upon Party and State leaders.

The reasons for these developments in the legal field are not difficult to understand. The contradiction, to borrow now-discarded Marxist terminology, arises from

the desire to enjoy the benefits of predictability and regularity provided by law to

economic transactions while at the same time eschewing the contentious pluralism

in political life that might arise from the protection of individual rights under a

more Western-style legal order. In the view of most of China’s leaders, including the

late Mr. Deng, the striking economic growth of China over most of the past two decades vindicates their predilection for economic reform without political liberalization, particularly when contrasted with the rather different path taken by their once

fellow socialists in the former Soviet Union. In the Chinese view, political liberalization too far ahead of economic development seems to have produced the worst of

both worlds: deadlocked reforms leaving inefficient economies mired in backwardness and explosive political resentment of the failed promises of the new order

to produce prosperity. Despite tight political and legal controls, China’s leaders feel

that they can take pride in having ‘‘delivered the goods,’’ with year-to-year doubledigit growth rates and visible symbols of economic success in the rapidly changing

skylines of major Chinese cities.

Yet the patchy legalization which has occurred in China since the late 1970’s,

along with other sporadic political reforms, illustrates both the inseparability of at

least a modicum of political and legal change from accompanying economic development along capitalist market lines and the intractable difficulty of partial political

reform which creates popular expectations of more change, at a faster pace than

most cautiously reforming regimes—particularly one as hidebound as China’s Communist Party—are willing to provide. The particular areas considered below demonstrate just a few of the partial successes and remaining problems in China’s long,

slow march toward the rule of law.

Legalization in Action. A few areas where legalization has led to significant social

change will illustrate the new importance law has assumed in Chinese society over

the past two decades:

• Enterprise Reform. Since the start of China’s market-oriented reforms, China’s state-owned enterprises (SOEs) have faced increasing difficulties and economic decline; by contrast, collectively and privately owned enterprises have expanded rapidly. In the late 1990’s, China had more than 2 million collectively owned enterprises, employing over 30 million people. In the mid–1990’s, there were already 25

million self-employed business units and 600,000 privately owned enterprises; these

enterprises employed 56 million people. Non-state-owned enterprises produce over

50 percent of China’s GDP, and the output value of non-state-owned industrial enterprises now accounts for the lion’s share of gross industrial output value. All of

this has depended upon new legal rules for enterprise, company law, bankruptcy reorganization and even constitutional reforms that guaranteed the protections for

private enterprise.

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• National and Local Leadership. Roles and responsibilities for China’s national

and local politicians are changing radically. By 2010, the Chinese Communist Party

(CCP) will be pre-occupied with managing the state’s (and the CCP’s) relationship

to an emergent ‘‘civil society.’’ This trend has several implications for the future: national and local leadership will have to be both educated technocrats and skilled political operatives; the CCP will have to adapt to new roles in order to maintain its

leadership; technocratic imperatives will marginalize traditional CCP political leadership; and the CCP will likely, as a result, become less politicized and more educated, at both national and local levels, reflecting its membership. Much depends

upon the ability of the CCP to institutionalize its new roles and to incorporate new

members and leaders who depart from the traditional mold, making use of new legislation to regularize these practices. For example, fixed terms for senior and lowerlevel leaders are now being observed, and retirement at increasingly younger upper

age limits is becoming common. Although indications are that the CCP will adapt

and maintain its control over the State and political institutions in China, resisting

attempts to pluralize Chinese politics and suppressing dissident forces, its ability to

influence all policies (especially in the economic realm) will recede as its membership and leadership come more to resemble the business, education and other technocratic elites in Chinese society. • Corruption. Notwithstanding the considerable attention paid to law reform in

other areas, a separate and long running debate has been underway in China for

the past several years with respect to the extensive and seemingly ineradicable

problem of corruption. While the Chinese economy enjoyed tremendous growth

under Deng Xiaoping’s policies, embezzlement, bribery, extortion, favoritism, nepotism and even smuggling have not only increased in extent and variety; moreover,

there is virtually no area of China free from these influences. Even Chinese Communist Party leaders view corruption as a threat to social and political stability. It

weakens the legitimacy of the Chinese state, the capacity of those in power to govern and the attempts to create a more extensive rule of law in Chinese society. Partly to address these concerns, the leadership has since 1989 initiated various anticorruption campaigns of limited duration and geographic scope. A few cases have

been widely publicized, particularly where economic malfeasance has resulted in severe penalties, including the death penalty. • Local protectionism. Local protectionism is another; related difficulty with respect to the elimination not so much of corruption but of distorting favoritism which

skews markets and cuts against economic efficiency. An unfortunate concomitant of

China’s market economic reforms, local protectionism has resulted from the obvious

economic incentives created the reforms to favor local enterprises and industries and

to eliminate, by fair means or foul, outside competition. Reportedly, in certain provinces this has even led to attempts to impose illegal ‘‘duties’’ and other disadvantageous charges on goods and services originating outside of that particular province.

The ability of local governments under the new economic order to retain more of

the revenue produced in that locality, along with a diminished authority on the part

of a central government which no longer provides either central guidance or wealthtransferring subsidies, has exacerbated these trends. The central government’s apparent powerlessness in the face of these developments only further erodes local

willingness to abide by central government directives, including those ordering an

end to local protectionism. The PRC’s WTO accession commitments to national

treatment create a great dilemma in this arena.

• The Legal Profession. Once the decision was made, as part of China’s Four

Modernizations program begun under Deng Xiaoping in late 1978, to resuscitate the

legal profession and to educate much larger numbers of lawyers in Chinese universities, a remarkable growth of this long-neglected sector took place. In 1980, when

China promulgated its Provisional Regulations on Lawyers, only a few thousand

lawyers could be identified in the entire PRC, many of them trained either before

1949 or during the brief period of ‘‘socialist legality’’ along Soviet lines during the

post-liberation honeymoon between China and the Soviet Union before 1958. During

the early 1980’s, dozens of new law faculties were added to the small handful which

had previously existed (and all of which were re-established and strengthened).

Changes in both the Chinese economic system and in the realities of legal practice

over a decade and a half required a total reworking of China’s laws regulating the

legal profession, which finally occurred in May, 1996 (effective January 1, 1997).

The new Chinese ‘‘Lawyers’ Law’’ introduced certain far-reaching and long-overdue

reforms, reflecting not only certain developments which had already taken place but

also describing a course of future reforms desired by many in the practicing bar and

at least grudgingly conceded by the senior leadership. The liberalization permitted

under this new legislation, including the ability of lawyers to form firms as partnerships, responded more to the needs of China’s continuing economic modernization

59

than to the calls of lawyers for greater autonomy in their practice. Nevertheless, the

law recognizes that the former requires the latter; moreover, the expansion and extension of China’s economic reforms are now understood to depend upon governing

the country by law, particularly in its market economic sectors.

• NPC Reform. Under the leadership of Qiao Shi and its current head, Li Peng,

China’s National People’s Congress (NPC) has begun to emerge from its longtime

status as a ‘‘rubber-stamp’’ parliament. To be sure, it remains far from an independent, multiparty legislative institution enjoying actual powers of parliamentary

supremacy described in great detail in the 1982 Chinese Constitution. It is probably

fair to say, however, that the new, higher status of the NPC stems from a leadership determination to exercise ‘‘rule by law’’ rather than ‘‘rule of law.’’ In the formulation ‘‘rule by law,’’ law exists not so much as a limit on State power (a feature

of the ‘‘rule of law’’ in the usual Western understanding) but rather serves as a

mechanism for the exercise of State power—which can still also be exercised by

other available means, such a Party discipline or leadership fiat. Thus, a more powerful NPC does not necessarily diminish the other organs of power in the PRC; in

fact, their predominance—particularly in the case of the Communist Party of

China—is very little challenged by enhancement of the NPC’s strength. A number

of foreign scholars have begun to credit the NPC with greater independence and initiative. Under Qiao Shi, who served as a Vice Premier and head of China’s security

apparatus, new stress was given to the NPC’s role in both originating and passing

legislation as well as providing oversight of the nation’s legal work in the judicial,

prosecutorial and administrative spheres, as well as in legislation. During the past

several legislative sessions under the leadership of Li Peng, former Premier, there

has been considerable controversy—as well as a sizable number of negative votes—

in connection with various legislative initiatives; such open dissension would have

been unthinkable even a decade ago.

Law Reform Activities. Over the past 20 years, various organizations in the

United States have provided assistance and support for law reform in the PRC. The

programs they created, in conjunction with a huge domestic law reform project undertaken by the Chinese themselves and parallel programs supported by other foreign governments and organizations, benefited the construction of new legal institutions and the development of a legal infrastructure which are still being perfected.

In the early phases, a few pioneers played a major role in working with Chinese

counterparts to get things off the ground. Among them were the Ford Foundation,

the United States Information Agency (as it was then named), the Henry R. Luce

Foundation and the National Endowment for Democracy and its party grantees,

particularly the International Republican Institute. More recently, new entrants arrived on the scene to continue and to expand the work, such as The Asia Foundation, the Lawyers’ Committee for Human Rights, the Freedom Forum, and even the

State Department. Two summits between Presidents Clinton and Jiang in the late

1990’s promised even greater United States assistance in the following areas:

—Judicial and lawyer training—new avenues for law schools from both countries to

collaborate, legal cooperation between the American Bar Association and Chinese counterparts, United States Information Agency support for preparation

and translation of legal teaching materials;

—Legal protection of human rights—The US and China held a symposium on this

topic;

—Administrative law—A broad-ranging exchange involving decisionmakers and academic experts on comparative administrative law was planned;

—Legal aid for the poor—At least one symposium in Beijing has been held to consider ways to expand programs already initiated by the Chinese side;

—Commercial Law and Arbitration—Exchanges on securities law, electronic commerce and judicial handling of commercial disputes were planned, along with

a program of cooperative training for arbitrators. The Chinese government also

promised steps to ensure prompt enforcement of arbitral awards in local Chinese courts.

In most cases, the promises of those heady days of ‘‘constructive engagement’’ and

‘‘strategic partnership’’ went unfulfilled, in part due to the fallout of the accidental

bombing of China’s Belgrade embassy, the change in Presidential administrations

and the downing of the EP–3 in China last spring.

Committee on Legal Education Exchange with China (CLEEC). No treatment of

the law reform era in China over the last two decades, or any consideration of future US-government supported activities in legal assistance to China, should ignore

the experience of CLEEC, created and generously supported for a decade and a half

by the Ford Foundation.

60

Over the past two decades, the volume of international legal exchange between

the People’s Republic of China (PRC) and the United States has grown remarkably.

Much of the contact between Chinese and American legal circles has occurred in the

academy, and no organization has been more instrumental in encouraging this development than the Ford Foundation-sponsored CLEEC. For 15 years (1982–1997),

CLEEC was directly involved in the education of over 250 young Chinese legal academics—in the PRC and in the U.S.—and in the promotion of many other forms of

scholarly exchange between lawyers, law professors and government legal specialists. During that time, in no small part due to CLEEC’s efforts, the underdeveloped

legal education profession in the PRC grew tremendously, both in size and expertise; law faculties expanded and became much more international in their outlook;

and academic research by Chinese specialists developed greater sophistication.

From its inception, CLEEC endeavored in several ways to promote both Sino-U.S.

understanding, at least as it related to law, and the development of Chinese university law faculties. First, CLEEC provided training at U.S. law schools—including degree programs—for a wide range of Chinese legal educators. Chinese participants

were given placements at the best American law schools, with supervision (for visiting scholars) or instruction (for degree candidates) by eminent faculty; such placements were arranged carefully to match the needs and backgrounds of Chinese

scholars to the schools best able to meet those needs. In certain cases, these placements have resulted in longstanding exchange relationships, often beyond CLEEC’s auspices. American host law schools generally shared part of the costs of the program. Virtually all the other costs of this activity were supported by a series of

grants from the Ford Foundation, totaling over $4 million. Among China’s leading

law faculties today, at least half a dozen are headed by alumni of CLEEC.

Second, CLEEC, beginning in the mid–1980’s, offered an in-country short course

in American law for candidates selected to visit American law schools as well as

other individuals. This program brought some of the finest legal academics from the

U.S. to China to teach law faculty, students and government lawyers and officials

the rudiments of the U.S. legal system and, after 1990, specialized legal topics as

well. The U.S. law teachers served as unsalaried instructors in a challenging threeto-four-week course that involved a great deal of contact beyond lectures in the

classroom and proved both stimulating and inspiring to every cohort of Chinese students that has experienced the program. The largest number of direct beneficiaries

of CLEEC are alumni of this program. This activity was generously funded by what

was at the time known as the United States Information Agency (USIA), now part

of the State Department.

A third major activity, organized by a subcommittee of CLEEC comprising law librarians and supported largely by separate funding from the Henry R. Luce Foundation, was involved in the provision of legal information in print and electronic

forms to the leading law faculties of the PRC, the Institute of Law of the Chinese

Academy of Social Sciences and other institutions in China. Originally charged with

making ‘‘stock’’ law libraries of U.S. legal materials for Chinese law faculties, this

subcommittee kept abreast of technological developments during the period of

CLEEC’s existence to move from print materials—largely law school textbooks and

treatises—toward more modern media, including CD–ROMs, on-line legal data

bases and the Internet and World Wide Web. Although technological limitations on

the Chinese side during the period of CLEEC’s operation limited the ability of the

subcommittee to do as much as it had hoped, important inroads were made.

Finally, CLEEC and its individual members proved a valuable conduit for other

types of scholarly exchange in law between China and the U.S. Aside from the direct funding of a handful of American researchers to carry out projects in China,

CLEEC also helped to arrange bilateral conferences, to provide attendees for international meetings in China and to offer information and other assistance to any person or institution seeking to establish links with the legal academic community in

the PRC. Many of CLEEC’s members were themselves leading academic specialists

and experts on China’s modern legal system. At the same time, no attempt was

made to funnel Chinese participants to those U.S. law schools which had Chinese

law specialists; to the contrary, every effort was made to place each Chinese student

and scholar at the American law faculty with the best resources for his or her individual program. In the end, over 40 U.S. law schools hosted CLEEC visitors. Today,

it remains the case that no single school or group of institutions can hope to satisfy,

by itself, the multifarious needs of China’s evolving legal order or even its legal education system. CLEEC’s successes demonstrate that a broad-based program that

harnesses all the available talent in the United States is vastly to be preferred. In

the light of the far more generous support that has recently been promised by the

European Union, Canada and other foreign governments and foundations, it is high

time for the United States officially to step up to the plate, make good on the promVerDate 11-MAY-2000 12:31 May 01, 2002 Jkt 000000 PO 00000 Frm 00064 Fmt 6601 Sfmt 6621 78790.TXT China1 PsN: China1
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ises of several years’ standing and build upon the broad and strong foundation of

earlier efforts.

WTO Accession. As part of its protocol of accession to the WTO, China has made

many commitments to reform its laws and legal system. At the first level, these

commitments mainly involve undertaking to pass certain new legislation and to revise some existing legislation to make China’s foreign trade regime and related institutions compatible with the requirements of the WTO. On a second, deeper level,

the PRC has also promised to adopt basic practices of WTO jurisprudence, such as

transparency in its regulatory regime and the creation of impartial tribunals for the

adjudication of trade-related disputes. Yet, at a third, deepest level, the commitments that the PRC has made in joining the WTO presage structural changes which

promise to transform the most basic features of Chinese law and legal culture. Indeed, the experience of other former developing countries in the Asian region, such

as South Korea and Taiwan, is that the adoption of modern legal mechanisms and

their subsequent practice over a long term inevitably creates pressures for reform

across the board, including political liberalization in line with economic modernization and development.

Among the reasons the PRC has been seeking membership in the WTO, enjoyment of unconditional Most Favored Nation (MFN) status pursuant to WTO rules

is clearly the most significant. Under the WTO, trade among member nations is subject only to minimal tariff restraints and requires that all Contracting Parties treat

each other ‘‘equally.’’ Once the PRC becomes a WTO member nation, China would

be able to eliminate its need for bilateral trade arrangements ; although these provide benefits, including MFN, similar to those promised by the GATT, such arrangements must be periodically renegotiated and may be unilaterally terminated.

Membership in WTO would promise other benefits for the PRC’s international

trade in addition to MFN. The WTO provides an important forum for coordination

of international economic policy and resolution of trade disputes. Useful, detailed information about the economies of member nations, as well as economic policies and

activities, is compiled by its Secretariat; such material will assist China’s formulation of its foreign economic and trade policy. Moreover, from the perspective of China’s leadership and economic reformers, the WTO’s requirements and market orientation are conducive to continuing reform in China’s domestic economy, including

price reform, tariff reduction and elimination of economically inefficient subsidies

and other market distortions.

Notwithstanding these commitments and the substantial benefits to China of

WTO accession, as the Report of the Working Party on the Accession of China documents, there are a number of challenges in effective implementation of China’s WTO

commitments. Some of these relate to China’s basic economic policies and the framework for making and enforcing them; others relate to specific policy areas—trade

in goods, intellectual property, trade in services, etc. The report itself runs to over

70 pages of dense prose, single-spaced in tiny type. Although less than four of those

pages are devoted to framework issues related to economic policies, that brief section deals with such important and intractable issues as the authority of sub-national governments (often the source of local protectionism); the uniform administration of the trade regime (threatened by both local variation in enforcement and the

lack of understanding of China’s WTO commitments at the lower levels of government in China); and judicial review of administrative actions relating to WTO requirements as implemented in Chinese law (which may be hampered by lack of infrastructure and training, corruption and local protectionism).

A careful examination and historical overview of China’s WTO accession process

would reveal the WTO’s impact on China. Necessary legislative and statutory

changes in Chinese legislation are being made pursuant to WTO accession. The

need for compliance with WTO rules imposes new constraints on Chinese policies

and the uneconomic operations of state-owned enterprises. The role of China in

WTO diplomacy, decisionmaking, and the dispute settlement system as a result of

the Chinese accession(e.g. role of civil society, amicus curiae briefs, etc.) should also

provide impetus for developments in the legal realm. Despite consideration given to

special WTO rules designed for China and China’s weight in the WTO diplomatic/

decision process, China will still have to interact with other WTO member nations

in this important international legal arena.

Processes and problems for China in implementing WTO rules include questions

about whether the PRC maintains the political will to implement the WTO obligations and the challenges the PRC leadership faces in maintaining Chinese commitments over time. At the same time, there will be considerable economic impact of

Chinese WTO membership on world trade and vice versa, in particular the tensions

resulting from increased competition in Chinese main export markets, such as textiles, microchips, etc.

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The rise and development of procedural rules in the WTO is part of a larger movement in the general WTO jurisprudence and structures. This movement is sometimes criticized as a move toward excessive legalism in the regulation of the global

economy, an unfortunate move from diplomacy to a rule-based trade regulatory

framework, characterized as a process of ‘‘judicialization.’’ Yet, efforts to develop procedural review at the WTO level were taken mainly as a response to the concerns

over misuse and abuse of domestic legal systems for protectionist purpose. The particular sensitivity of issues such as antidumping and political legitimacy concerns

about national legal systems provided both an internal dynamic and discipline for

the WTO dispute settlement. China’s accession will require that WTO panels dealing with challenges to Chinese practices must demonstrate that often too rare combination of willingness to enter into the arena of conflict on the one hand, and the

wisdom to know when to intervene on the other.

The Practical Implications for China. Procedural review and transparency in WTO

jurisprudence is a recent phenomenon in the area of international regulation of

world economy. Some have characterized the WTO rules and adjudication as a code

of international administrative law; compared with earlier eras of ‘‘international administration’’ it is intrusive to an unprecedented degree. Yet, at the same time, PRC

accession to the WTO offers some legal safeguards for China’s rights and legitimate

interests. Moreover, China can take advantage of the procedural review in Geneva,

for example, to curb abuse of antidumping actions by its trading partners.

Bureaucratic culture and legal procedures in China will have to change, however,

for the PRC to take full advantage of WTO accession. While there have been considerable efforts to improve administrative procedure in China in recent years, judicial

supervision in China in general tends to be weak, at least by common law standards. Chinese authorities will probably face a much more searching review in Geneva than in their domestic courts. Given the need to provide a domestic forum in

China before proceeding to WTO review in Geneva, it will take time and effort for

the individual officials in Chinese investigating authorities to become familiar with

WTO procedures, to improve their own procedures, and to follow those procedures.

What Is To Be Done? The needs that China obviously has in so many areas also

present opportunities not only for United States assistance but also, in the process

of providing such support, to inculcate American institutional preferences and legal

cultural values. More to the point, the assistance that is being offered (and generously underwritten) by others insures that their institutions and values will displace

those which we might prefer if the United States does not provide similar sorts of

Rule of Law assistance in connection with WTO accession.

Moreover, the challenge now facing the U.S. is to emphasize China’s obligations

under all those international agreement it has signed (such as the Convention

against Torture, International Human Rights Covenants and the Convention on the

Elimination of All Forms of Discrimination against Women). Furthermore, China’s

domestic laws—beginning with China’s 1982 Constitution—express in domestic Chinese legislation those universal values which are elsewhere enshrined in both in

international treaties and other nation’s domestic laws. We need to increase the

level and frequency—at the same time lowering the volume—of dialog with China,

bilaterally and multilaterally, over a range of legal issues, not only WTO-related but

extending to civil and political rights. Expanding current exchange relationships focused on economic law can provide both an avenue for such dialog and a base on

which to build relationships with sympathetic audiences in China.

The evolution of democracy in China will be a long, painful process. It depends

primarily on economic growth, including greatly increased domestic investments in

infrastructure, education and science and technology. The rise of a middle class in

China—as in Hong Kong, Singapore, Taiwan and South Korea previously—along

with exposure to the outside world and moral support from the West will inevitably

press for a more open political system.

Most significantly, China’s dissidents—within China and abroad—are virtually

unanimous in their support of China’s accession to the WTO. They understand the

crucial linkages between China’s enjoyment of MFN status, along with access to

U.S. export markets, and the increase in personal liberty that results from concomitant economic growth. With virtually one voice, these individuals—many of whom

have suffered grievously at the hands of the Chinese State and the Communist

Party—urge a more nuanced policy, building on existing relationships, promising

true ‘‘comprehensive engagement.’’

The economic and trade relationship between the U.S. and China reaches many

more lives on both sides of the Pacific than does any other aspect of our bilateral

relationship. Yet I would be remiss in representing my organization and my own

experiences as a scholar researching Chinese law and the former director of a national U.S.-China educational exchange organization if I did not also describe for

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you the remarkable opening of China to educational exchange and the greatly increased access for foreign researchers. More than two decades’ hard work on the

U.S. side has, particularly in the last several years, yielded new opportunities for

study and research in China. For Chinese host institutions, the prospect of economic

gain—and the promise that those gains can be enjoyed and controlled by the people

most responsible for their realization—has resulted in a previously unimaginable

opening. While there are still some problems to be resolved, especially in the light

of recent arrests and show trials of Chinese-American scholars and researchers on

trumped-up charges, remarkable progress since 1990 has led to unprecedented access to libraries, laboratories, archives and educational institutions.

Yet, despite these gains, the State Department and other Federal Government

agencies now provide less than half the support for bilateral exchanges between the

U.S. and China that they gave in 1988! Shockingly, we devote 1/40 of the amount

targeted in the U.S. Federal budget for such aid to Central and Eastern Europe and

the former Soviet Union to academic and cultural exchange with China. Given the

at least equal strategic importance of China and its vastly larger population, such

parsimony is inexplicably short-sighted.

Conclusion. The future development of the rule of law in the PRC is likely to

prove as checkered as has the process of the past almost two decades. Since the late

1970’s, China has made enormous strides in passing laws, rebuilding shattered institutions such as the bench, bar and legal education, and in using law and legal

mechanisms to lend some greater predictability to the overall conduct of Chinese society and—in particular—the economy. Nonetheless, significant gaps remain with

respect to enforcement of enacted laws, serious attacks on official corruption and

elimination (or at least the gradual reduction) of the number of highly placed individuals who remain outside of the reach of the law, usually due to their status at

Communist Party leaders. Although it is certainly no longer fair nor accurate to describe the PRC as a Nation without law, it would also be difficult to characterize

it as a Nation where the rule of law enjoys quite the same prominence as it does

in most developed Western nations or even Japan. As the Chinese like to say in describing their hybrid market economy, which possesses certain elements of the free

market along with some remnants of the Communist planned economy, China’s

legal system is an attempt to create a more modern rule of law while still retaining

‘‘Chinese socialist characteristics.’’ This situation is likely to persist for the foreseeable future. WTO accession provides a unique opportunity, however, to hasten the

pace of incremental change at a time when the very structure of China’s participation in the international economy is being perhaps permanently transformed. With

our eyes fully open, we should seize the opportunities such historic changes may

provide.

PREPARED STATEMENT OF WILLIAM P. ALFORD

FEBRUARY 7, 2002

To the Chairmen and Members of the Commission:

I am honored to have been invited to testify at this, the first public hearing of

the Congressional-Executive Commission on the People’s Republic of China, given

your charge to monitor compliance with human rights and the development of the

rule of law in the PRC at this critical time in our bilateral relationship.

My fields of specialization are Chinese law and legal history, international trade

(including the World Trade Organization), and the legal profession. I have been involved with legal development in the PRC from the early 1980’s onward when, together with Professors Randle Edwards of Columbia University and Dr. Stanley

Lubman, among others, I established the first regular program of instruction in

American law in the PRC and the first sustained program bringing Chinese legal

professionals to this country for advanced training. In addition, I have taught in

China; provided advice to our government, non-governmental organizations, foundations, and others about Chinese affairs; and had extensive occasion to observe Chinese legal development.

In this statement I first offer a brief overview of my understanding of Chinese

legal development—which I see as necessary for the realization in China of internationally recognized standards of human rights, but not a substitute for that vital

end. I then turn my attention to American and other foreign efforts to assist legal

development before concluding by suggesting directions in which attention might be

focused. As time and space are short, this statement is perforce a summary for

which elaboration may be found in the materials cited in my endnotes.

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1The most comprehensive overview of this phenomenon in English is Stanley B. Lubman, Bird

in a Cage: Legal Reform in China After Mao (Stanford University Press, 1999). My own views

are elaborated in, inter alia, William P. Alford, ‘‘A Second Great Wall? China’s Post-Cultural

Revolution Project of Legal Construction,’’ Cultural Dynamics, vol. 11, p. 193 (1999). 2These debates included considerable and heated discussion about appropriate roles about the

interplay between the interests of the State and individual autonomy. I discuss these debates

in a forthcoming paper entitled ‘‘Have You Eaten? Have You Divorced? Debating the Meaning

of Freedom in Marriage in China.’’ 3The United States Department of State, Country Reports on Human Rights Practices—2000,

China (February 23, 2001). 4See, ‘‘China: Procurator General Calls for Crackdown on Exploiters of Position,’’ Xinhua

[New China] News Agency, available in English via BBC Monitoring Asia Pacific—Political, December 27, 2000. 5See, for example, Chen Guangzhong & Zhang Jianwei, ‘‘The United Nations International

Covenant on Civil and Political Rights and China’s Criminal Process,’’ China Jurisprudence, No.

86, p. 98 (December 1998). 6Professor Jerome Cohen of New York University Law School estimates that ‘‘over 90 percent

of the country’s approximately 180,000 judges are Party members.’’ Opening Statement of JeTHE CHINESE LEGAL SYSTEM

To assess the Chinese legal system today, we need to appreciate just how far legal

development has come and how far it has yet to go before it meets any widely accepted definition of the rule of law.

Over the past quarter century, the PRC has been engaged in the most concerted

program of legal construction in world history.1 At the end of the Cultural Revolution (1966–1976), the PRC’s modest legal infrastructure lay in near ruin—with but

a skeletal body of legislation, a thinly staffed judicial system, and a populace having

scant awareness of law. Today, the PRC has an extensive body of national and subnational legislation and other legal enactment, concentrated on, but not limited to,

economic matters, and has joined major international agreements covering trade,

the environment, human rights, intellectual property and a host of other issues.

Moreover, as Dr. Lubman and Professor James Feinerman of Georgetown elaborate

in their statements for this hearing, in acceding to the WTO, the PRC has agreed

to bring both its pertinent substantive laws and their administration into compliance with international norms. The Chinese judicial system now has a nation-wide

presence, with specialized chambers to address criminal, civil, economic, administrative and, in some instances, intellectual property law questions. Whereas a generation ago, China had fewer than 3,000 lawyers and approximately a dozen law

schools, today there are over 125,000 lawyers and hundreds of law schools, with law

a very popular subject for university study and well over 150,000 candidates yearly

taking the bar exam. Chinese citizens now avail themselves of the formal legal system in an unprecedented manner, with, for example, some 5.5 million new litigations annually, and widespread public interest in at least some legal issues, as was

demonstrated, for instance, by the extensive and vigorous national debate surrounding proposals that led in 2001 to the revision of the marriage law.2

These and other accomplishments need to be taken seriously, but so do the many

respects in which the legal system continues to fall well short of meeting any widely

accepted definition of the rule of law. As the United States Department of State’s

latest annual country report shows in detail, the legal system has yet to prove itself

adequate to protect the rights of all Chinese citizens.3 Accounts, for example, of arbitrary arrests, torture and mistreatment while in official custody, and denial of the

basic procedural protections that Chinese law is intended to provide abound—as has

to a degree been acknowledged by senior PRC legal personnel.4 The re-education

through labor system, whereby the police may sentence detainees for periods of up

to 3 years in labor camps, continues—notwithstanding the objections of some PRC

legal scholars and the international human rights community, including Dr. Mary

Robinson, the United Nations Commissioner for Human Rights.5 And it is no secret

that there are serious problems when it comes to efforts by citizens to avail themselves of such basic internationally recognized freedoms as those of association, assembly, and religious expression.

Turning our attention inward, the legal system itself is in need of substantial improvement. Efforts have been made, with foreign assistance playing a part, to nurture professionalism through intensified training, the promulgation of higher standards for legal personnel, and attempts to root out official mal and misfeasance, but

much more remains to be done. The judiciary clearly does not enjoy the degree of

independence from political authority that we associate with the rule of law. Judges

typically are chosen from among Party members at the same time that actions of

the Party itself are not reviewable in a court of law.6 Corruption plagues the legal

65

rome A. Cohen before the first public hearing of the U.S.-China Security Review Commission,

Washington, D.C. (June 14, 2001). 7 Hu Angang, Zhongguo: Tiaozhan Fubai [China: Fighting Against Corruption] (Zhejiang People’s Publishing House, 2001).

8Statement of Donald C. Clarke Before the U.S.-China Security Review Commission, Washington, D.C. (January 17, 2002). 9The opening up of legislative drafting to a broader range of interests is discussed in William

P. Alford and Benjamin L. Liebman, ‘‘Clean Air, Clear Processes? The Struggle over Air Pollution Law in the People’s Republic of China,’’ Hastings Law Journal, vol. 52, p. 703 (2001). 10See Supreme People’s Court, ‘‘Guanyu she Zhengquan Minshi Peichang Anjian zan bu

Shouli de Tongzhi’’ [Notice on Temporarily Not Accepting Securities Cases Involving Civil Actions for Compensation], September 21, 2001. This and other issues of law enforcement in the

PRC are treated in the Statement of Professor Clarke of the University of Washington, supra

note 8. 11See, for example, the writing of Professor Jacque deLisle of the University of Pennsylvania.

Jacques deLisle, ‘‘Lex Americana?: United States Legal Assistance, American Legal Models, and

Legal Change in the Post-Communist World and Beyond,’’ University of Pennsylvania Journal

of International Economic Law, vol. 20, p. 179 (1999). See also Allen Choate, ‘‘Legal Aid in

China,’’ (The Asia Foundation, 2000) and Aubrey McCutcheon, ‘‘Contributing to Legal Reform

in China,’’ in Many Roads to Justice: The Law Related Work of Ford Foundation Grantees

Around the World (Ford Foundation, 2000). 12 A recent appropriation of more than 5 million pounds for a single project intended to beef

up the Chinese legal profession is described at Frances Gibb, ‘‘Lord Woolf Goes to China,’’ The

Times of London, July 24, 2001.

system as it does Chinese society more generally—indeed, this is so pervasive a

problem that one influential PRC economist, Professor Hu Angang of Qinghua University, estimates that it may have consumed as much as 15 percent of GDP in recent years.7 The educational level of legal personnel remains far lower than it

should be, with some observers estimating that even today only roughly one out of

every ten judges has a 4-year university degree in law.8 The legislative and rulemaking processes are expanding to hear from a broader spectrum of interests, 9 but

they remain heavily top-down, typically lacking regular opportunities for in-put by

ordinary citizens. And enforcement of the law can be problematic, as demonstrated

last autumn when the Supreme People’s Court temporarily put a hold on lower level

courts accepting shareholder suits for damages 10 and as is manifested by what Chinese authorities themselves describe as ‘‘local protectionism,’’ meaning undue favoritism shown by the courts at local levels to the ‘‘home team.’’

THE ROLE OF FOREIGN LEGAL ASSISTANCE

The past two decades have witnessed a range of efforts from throughout the

democratic world to assist Chinese legal development, although it remains modest

in view of the enormity of the challenge (particularly if we wish to engage ordinary

citizens as well as governing elites). In the case of the United States, the bulk of

assistance for legal development until the late 1990’s came from foundations, universities, non-governmental organizations, business, the bar, and private citizens,

although our government did play a part through programs such as the Fulbright

and the Committee on Scholarly Communication.11 Over the past 5 years, the US

government has begun to take more of a role in legal development, first through

the Clinton administration’s rule of law initiative and more recently through both

the Bush administration’s choice of a lawyer with expertise on China as Ambassador to Beijing and through the administration’s recent request for and Congress’s allocation of funds for Chinese legal development. Outside of the United States, support for Chinese legal development has tended to come more substantially from governmental sources rather than civil society, as evidenced by official developmental

assistance provided by the governments of the United Kingdom, Germany, Canada,

and the Scandinavian countries, among others.12 Additionally, multilateral organizations such as the World Bank, the Asian Development Bank and the United Nations Development Programme have also provided support.

As might be expected given their varied genesis, American programs have not

been uniform in their approach and objectives. Some have accentuated linkages with

the Supreme People’s Court (which oversees the judiciary administratively) that

have resulted in new training opportunities for Chinese judges. Others have counseled Chinese legislative drafters and writers of regulations (typically on an informal basis) and helped them establish data banks of Chinese and other laws. Yet

others have focused on assisting Chinese law schools by providing otherwise unavailable materials about American and international law, enabling future leaders

of Chinese law to study in this country, and arranging for a range of Americans to

lecture on law (including constitutional law and human rights) in China. And still

others have concentrated on civil society, offering guidance about legal aid, training

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13William P. Alford, To Steal a Book is an Elegant Offense: Intellectual Property Law in Chinese Civilization (Stanford University Press, 1995).

advocates for the disadvantaged, and supporting centers concerned with matters

such as women’s rights and environmental justice. Although also diverse, non-US

origin programs have tended to provide more support to official actors and, especially in the case of multilateral organizations, to concentrate on issues pertaining

to economic law.

Given that there is no way scientifically to isolate the variable of foreign assistance from all the other factors influencing Chinese legal development, any assessment of it must in some measure be subjective. My own sense is that in general

such assistance is of value. It is, for example, enabling relatively open-minded Chinese in and beyond legal circles to deepen their understanding of legal institutions

in democratic societies and so to have a broader array of choices from which to think

about change in their own society. It is acquainting their less open-minded colleagues with just how out of step China is with the norms of nations they may wish

to emulate economically (if not politically). And it is providing financial, moral and

even political support for China’s emerging civil society (including entities that

might otherwise have a hard time surviving).

In taking account of such accomplishments, it is important, however, not to overstate what we can expect from such assistance in the absence of meaningful political

reform in China. Moreover, candor requires that we acknowledge problems that

have cropped up with respect to such programs. Most notably, these include attempts by Chinese authorities at times to legitimate repressive activity by cloaking

it in a veil of legality, and the wastage of funds used to support ill-conceived or illmanaged programs.

DIRECTIONS

I strongly believe that we in the United States should increase our involvement

in legal development in the PRC. In saying this, I appreciate that there are serious

limits to what any kind of foreign legal assistance can accomplish and that there

is a need to be staunchly vigilant against the possibility of such assistance being

misused. Nonetheless, such involvement is worthwhile for many reasons. It has

been and can be used to help some who suffer unfairly today, as borne out by the

work done via the center for women’s rights at Beijing University or the center for

environmental justice at the China University of Politics and Law. It can buttress

Chinese who are serious about building a better legal foundation for securing fundamental human rights, such as those bold individuals who have criticized the Party’s role in the judiciary or others who have sought for years to have the law of criminal

procedure redrafted so as to afford substantially greater protection to defendants.

And it can aid in implanting ideas that may over time bear fruit, for whatever the

nature and pace of political change in China, the Chinese people will need to draw

far more than they now do on law and legal institutions if they are to achieve a

more just and freer society.

As we think about further involvement in Chinese legal development, I would

urge that we be mindful of the following:

1. Legal development is necessary for the realization of internationally recognized

standards of human rights in China, but it is not a substitute for that vital end.

Some here and in China may find it tempting to accentuate the former rather than

the latter on the grounds that it less likely to come across as confrontational. That

would be a mistake. As I demonstrate in my scholarly work, the two are so interwoven that an insufficient commitment to fundamental rights risks undermining

the integrity of legal development more generally.13 Indeed, the analogous point

might be made about the ways in which economic, legal and political development

are related. China’s engagement with the world economy clearly has fostered overall

prosperity and a greater appetite for economic and other freedoms, but it also is

yielding enormous inequality and unleashing widespread social problems that without better legal and political institutions through which ordinary citizens can express legitimate grievances pose serious challenges to social stability and to that

very prosperity.

2. As we seek to promote legal development, we need to hold true to our ideals,

but not necessarily the particular forms through which we may seek to realize those

ideals at any given moment in our own nation. All too often well-intentioned Americans present what we do today (or what we like to think we do) as the only alternative to China’s current circumstances. I think that we make a stronger case for

legality and pluralism, and better empower change in China when we are help the

Chinese to appreciate the different choices that different free societies make in their

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14 Richard McGregor, ‘‘Creative Chinese Accounting Works for Andersen: Scandals Involving

Local Firms are Boosting the Big Five,’’ Financial Times, January 28, 2002.

efforts to attain the ideals of rule of law and of democracy that all such societies

share. We need, for instance, to be mindful that approaches we may advocate in our

country, given our ready access to lawyers, may not accomplish the same ends given

the relative inaccessibility of China’s rural populace to professional legal assistance

and given the greater role that administrative solutions are likely to play there for

some time to come. In this vein, I might also add that candor about our own shortcomings, as well as pride in our accomplishments, is helpful in countering the objections of Chinese authorities that we are too ready to take their Nation to task. The

Enron debacle, for instance, has not gone unnoticed in China and, in fact, has become an issue in debates between the China Securities Regulatory Commission and

the Ministry of Finance over the former’s efforts to require use of foreign accounting

firms.14

3. We need to think further about both the targets for and sources of our legal

assistance. With regard to targets, it not realistic to think that we can advance the

rule of law in China without engaging those who oversee and operate the legal system even as we stress the importance of legal institutions attaining far greater independence. Thoughtful and honest foreign assistance can be of value to Chinese legal

personnel searching for ways in which to address the endemic problems discussed

above. At the same time, however, it is absolutely essential that those providing foreign legal assistance break out of what has been an excessively top-down focus on

a small number of Beijing-based entities and endeavor to reach out far more than

it has to China’s emerging civil society—so that our actions match our words about

law being an instrument for citizen empowerment. With regard to sources, the fact

that most American involvement has been a product of our civil society has, in my

view, been a strength—making possible a genuine diversity of approaches and demonstrating that in our country universities and the bar are not agents of the government. Nonetheless, given the importance of this undertaking and the difficulty of

securing greater private support, substantially greater Federal support would be

very helpful.

4. Finally, we need to appreciate just how massive an undertaking this is—for

China will not attain a rule of law without a further change in the way in which

Chinese citizens think of themselves and their relationship to authority. To note

this is not to subscribe to cultural determinism—I think that ideas of justice and

fairness ring as true to Chinese as to Americans. Instead, it is to urge that we understand that this is not an area amenable to quick fixes and to commit ourselves

to work that will prove difficult and in which the ultimate shape of success and the

credit for it will principally reside with the people of China.

I thank you for inviting me to offer this statement and stand ready to answer any

questions you may have regarding it.

OPENING STATEMENT OF HON. MAX BAUCUS, CHAIRMAN, CONGRESSIONAL-EXECUTIVE

COMMISSION ON CHINA

FEBRUARY 7, 2002

I am pleased to call to order this first hearing of the Congressional-Executive

Commission on China, and to be joined by my distinguished Co-Chair, Congressman

Doug Bereuter, and other Commission members from the Congress and the executive branch.

This Commission represents a unique endeavor, and a unique challenge, in bringing the resources of the Congress and the Administration together to help improve

human rights and the rule of law in China.

I want to start by recognizing and thanking my Co-Chair, Congressman Bereuter,

and my good friend Congressman Sandy Levin, for their work during the PNTR debate in creating this Commission as a way for Congress to maintain a strong and

continuing interest in human rights and the rule of law in China. Myriad circumstances delayed the start of the Commission, but today we begin a vigorous set

of activities.

Let me start by explaining the role this Commission will play in US/China relations.

First, we in the United States cannot impose our will on China and its 1.3 billion

citizens. The decisions about what happens inside China can only be made by the

Chinese people.

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Second, China is an emerging regional and international power, and our national

interest requires intensive engagement. We must look at China—not through rosecolored glasses, and not through dark glasses that see only evil and danger—but

through the lens of reality. China represents a significant challenge to the United

States in many areas, and it represents a significant opportunity in many other

areas. We need to look at the facts, analyze them objectively and dispassionately,

and then act in ways that support our national interest.

Third, there are significant human rights abuses in China. In some areas, the situation is worse today than in the past. In other areas, there have been improvements. We will recognize the latter, and be critical of the former.

Fourth, in no country can there be sustained protection of human rights without

the rule of law. Members of Congress, including many on this Commission, as well

as every recent Administration, have been active in securing the release, or reduction of sentences, for individual prisoners of conscience in China. I expect that to

continue, as it should. However, this Commission will look at human rights within

the context of the rule of law in China. As a Commission, we may address individual cases, but only when there is likely to be a broader systemic and structural

impact in China.

The witnesses appearing today reflect that orientation. Human Rights Watch and

Human Rights in China have done excellent work looking at the legal and political

context in China within which human rights can be protected. And Professors

Feinerman and Alford have focused much of their work on the rule of law and legal

reform in China.

The US-China relationship today is different than a year ago. Following the resolution of the downing of our reconnaissance plane on Hainan Island in April, and

the horrible events of September 11, there has been a change in the bilateral relationship. Beijing is cooperating with us on the war against terrorism. China’s rhetoric over Taiwan has ameliorated somewhat. China has joined the WTO. But serious

problems remain between us in a number of areas—arms proliferation, human

rights, and significant differences over Taiwan.

This Commission will concentrate on the human rights aspects of our relationship,

with a focus on the rule of law in China. We will look closely at areas such as religious freedom, political prisoners, Tibet and minority areas, labor rights, and the

flow of information in China. We will examine the developing role of NGO’s in

China. We will look especially at developments in the rule of law, including legal

reform in the civil, criminal, and commercial areas, and the way in which these laws

are, or are not, being implemented. We will look at how the United States—and that

means our government, the business community, and the NGO sector—can pursue

policies and programs that will increase the respect for law in China, and strengthen those in China who are working to increase the transparency and objectivity of

the legal system.

China is not a monolith. There are many inside the Chinese government, the

Communist Party, and State-Owned Enterprises who are working desperately to

maintain the status quo. But there are also many in China who want to see genuine

reform, both economic and political reform. They recognize that for China to become

a great Nation and fully join the international community, China will have to follow

international standards in the human rights area, meet the obligations the government has made in international covenants covering political, economic, social, cultural, and civil rights, and honor those provisions in the Chinese constitution and

in Chinese law that claim to protect the individual from abuse by the state.

As I said earlier, decisions about what happens inside China can, ultimately, only

be made by the Chinese themselves. The question for this Commission, and for the

Congress and the Administration, is: How can we best assist those who seek reform?

Incorporating China into the WTO is, surely, one way to begin down the road of

significant commercial law reform.

We will not shrink from pointing out the ways in which the Chinese system is

falling short of meeting those standards. But, the major challenge for this Commission is: How can we contribute to an improvement in the human rights of Chinese

citizens? And how can we influence the structural change necessary to improve how

those citizens are treated?

In our hearings, we want to hear from groups and individuals who can add to our

knowledge and understanding of the reality inside China. But we also want to hear

from them about the ways that this Commission, with its Congressional and executive branch membership, can help promote and support positive, constructive, and

lasting change in China.

Let me address some remarks to the Chinese government. When the House of

Representatives approved the PNTR legislation in May of 2000, the Chinese government said that it was a wise decision. But their spokesperson went on to say, ‘‘The

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Chinese side is seriously concerned and dissatisfied that the bill contains provisions

that attempt to interfere in China’s internal affairs in various names like human

rights and harm the interests of China. The Chinese side has . . . announced in

explicit terms that it firmly opposes and cannot accept these provisions.’’ I have two

comments about that statement.

First, this Commission is an instrument of the United States government and will

vigorously pursue the issues of human rights and the rule of law in China. We do

not seek to impose American standards on China. But, there are numerous international covenants relating to human rights that China has entered. The Chinese

Constitution and Chinese laws include many written guarantees for the citizens of

China. For China to be a full and responsible member of the international community, and that includes the global trading system, the rule of law must be honored.

This is an issue of concern and interest to all nations interacting with China.

We will work with China when we can. We will acknowledge progress. We will

criticize when there is no progress. I firmly believe that there are many in China—

government officials, business people, and ordinary citizens—who agree with this

approach.

Second, I urge the Chinese authorities to work with this Commission. I spent a

decade fighting against putting conditions on our trading relationship with China.

Along with others on this Commission, I fought hard for PNTR because I believe

that engagement and deepening the relations between our two nations is the best

way to induce change in China and bring them fully into the community of nations.

It is in China’s long-term interest to work closely with us.

Let me conclude with a few comments about the Administration’s human rights

policy. In his meeting with Chinese President Jiang Zemin in Shanghai in October,

President Bush discussed the importance of religious freedom and made a strong

statement that the war on terrorism should not be used to justify a crackdown on

minority groups in China. Under the leadership of Assistant Secretary of State

Lorne Craner, a member of this Commission, the United States has re-engaged

China in a bilateral human rights dialog. President Bush will visit Beijing February

21 to 22 and meet again with senior Chinese leaders. I urge him to ensure that

human rights and rule of law issues are among his top priorities in those discussions.

Let me turn to my Co-Chairman, Congressman Bereuter, for his statement as we

initiate the work of the Congressional-Executive Commission on China. I invite the

other members of the Commission to submit their opening statement for the record.

After Congressman Bereuter’s remarks, we will turn right to our panel of experts.

OPENING STATEMENT OF HON. DOUG BEREUTER, CO-CHAIRMAN, CONGRESSIONALEXECUTIVE COMMISSION ON CHINA

FEBRUARY 7, 2002

Chairman Baucus, Senator Hagel, Congressman Levin, Under Secretary Aldonas,

fellow Commissioners, distinguished panelists, ladies and gentlemen:

I consider it a privilege to join Senator Baucus in convening this first formal hearing of the Congressional-Executive Commission on the People’s Republic of China.

I am particularly pleased to recognize the presence of my colleague and fellow Commissioner, the distinguished gentleman from Michigan, Sandy Levin, who deserves

great credit for being the leading intellectual godfather of this Commission and who

has worked tirelessly with me and others to see it come into being. I look forward

to our continued association in guiding the work of the Commission over the coming

years.

As Senator Baucus has noted, this Commission was created by the China Relations Act of 2000 to create a forum for continuing congressional involvement in monitoring China’s human rights practices and the development of the rule of law there.

The Commission’s mandate reflects continuing concerns, in both Houses of Congress

and among Members of both political parties, not only about individual instances

of human rights abuses in China but also about the need for encouraging systemic

changes in China to end such practices. Undoubtedly all on the Commission share

the goal of encouraging positive changes in Chinese Government policy and practice

that will help those who have been punished unjustly for seeking to exercise basic

human rights, prevent future abuses, or bring China’s human rights practices into

conformity with international standards. There are differences in the international

community, and undoubtedly in Congress, as to the best methods for achieving this

goal, but I believe there is broad consensus in Congress and America on the importance of the goal itself.

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In this context, I think that the Commission should concentrate primarily on systemic changes to China’s human rights practices and legal regime, and not attempt

to duplicate the important advocacy work on individual cases already being done by

individual Members of Congress, human rights NGO’s, and concerned members of

the public. Of course, the registry of victims of human rights abuses that our mandate requires will provide an important resource for such advocacy, so the Commission will have a crucial role in this work.

In my view, the human rights and rule of law parts of this Commission’s mandate

are intimately related. Virtually everyone in China, the United States, and elsewhere, who is concerned with human rights practices in China believes that

progress in legal reform will necessarily result in greater compliance with the basic

human rights enshrined in such international covenants as the Universal Declaration of Human Rights. Many also believe that such reforms will improve not only

government transparency, but also the development of the essential institutions of

democratic governance. The development of an open, transparent, and predictable

legal system throughout China should also be beneficial over time in other ways,

such as providing ordinary Chinese citizens with the legal means to check the arbitrary exercise of official power, as well as helping to ensure China’s full implementation of its commitments under the World Trade Organization protocol of accession.

Before we hear from our outstanding panel, I would offer some thoughts on four

aspects of our Commission’s work that I think will be of continuing importance to

us. These aspects are:

1. The Commission as a forum for a balanced, constructive focus on human

rights issues in China;

2. The Commission as a catalyst for US efforts to support the development

of the Rule of Law in China;

3. The Commission’s development of a registry of victims of human rights

abuses; and

4. The Commission as a resource for Senators, Members of the House and

their respective staffs, U.S. China specialists, and the general public.

With respect to the Commission’s mandate on human rights, I believe it will be

vital for us to undertake a comprehensive, objective look at the current State of Chinese Government compliance or non-compliance with international human rights

norms. Following the sensible requirements of our legislative mandate, Commission

staff should receive information and perspectives from human rights, labor, and religious freedom NGO’s in the United States and elsewhere. We should also build on

the work of relevant U.S. Government agencies (including those who are represented by our five Commissioners from executive branch), and from sources in

China, Hong Kong, and elsewhere. This undertaking is a big job, but one made considerably easier by the important work of many people in the U.S. Government, U.S.

universities and think tanks, and U.S. and international human rights NGO’s. With

this factual framework in place, we can then assess whether to recommend specific

action by Congress or the Administration in our annual report.

Second, I believe it is important that the Commission act as a catalyst for encouraging and supporting U.S. and multinational programs to build legal institutions in

China. I hope that the Chinese Government will accept and welcome U.S. initiatives

to help train judges and lawyers, inculcate a culture of transparency in the legislative and regulatory process, and to improve Chinese efforts to extend legal services

to ordinary Chinese people, focusing particularly on the poor, women, and people in

rural areas.

Since the Chinese leadership embarked on the ‘‘reform and opening up’’ policy in

the late 1970’s, a number of Americans -among whom two of our panelists are the

most distinguished- have participated in successful legal exchange and legal cooperation initiatives with counterparts in China. But the U.S. Government has

never had its own directly funded program to complement these private efforts, and

I believe the time has come for us to take a hard look at such a program. The Commission should determine in which areas additional U.S. public investment in rule

of law programs in China might add value to existing private efforts or might permit new initiatives in areas previously untouched by U.S. efforts. The overall goal

should be to produce significant long-term results on the ground in China without

wastefully duplicating previous or existing initiatives. An understanding by the

Commission, Congress, and our Government of the rule of law programs that other

countries currently have with China will be an important part of this effort to avoid

duplication and maximize the effectiveness of any U.S. rule of law program.

Although many in the United States are interested in commercial rule of law programs, particularly as they relate to building capacity for WTO implementation and

compliance, any U.S.-funded rule of law program should focus more broadly on civil,

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criminal, and administrative law reform. We should also welcome, encourage, and

support initiatives to improve the transparency of the legislative and regulatory

processes in China.

Third, I believe that the establishment and maintenance of a useful, factually accurate, up-to-date registry of prisoners of conscience and other victims of human

rights abuses will be a vital part of the Commission’s work. Successful achievement

of this task will be a complex and difficult undertaking, but my hope is that over

time this registry will be a useful resource for Members of Congress and staff, researchers, the press, and the general public. Fortunately, individuals and organizations with experience in collecting, storing, and using such information have offered

to cooperate with the Commission. In addition, I think that recent advances in information technology will help Commission staff in meeting this important aspect of

our mandate.

Fourth and finally, as we progress in staffing the Commission and gathering information on the specific issues in the mandate, I hope that the Commission would

earn the confidence of Members of Congress and their staffs as a resource for timely, objective information about China generally. Naturally, our focus and expertise

will be principally with respect to the specific areas of human rights and the rule

of law, but we expect to staff the Commission with qualified staff possessing broad

experience in China. I hope that the Commission could assist Members of Congress

and staff who plan to travel to China to prepare for their visits, particularly in becoming familiar with human rights and rule of law issues. The registry should provide the type of information that would permit Members of Congress to raise and

discuss the cases of specific individuals during official meetings in China.

Mr. Chairman, we have a distinguished panel this afternoon to share their views

with us, and I would like to express my appreciation for their appearance and testimony. Each has dedicated a significant part of his professional life to one or more

of the issues in our mandate, and I know we will hear lively, informative, and

thoughtful presentations. Thank you, Mr. Chairman.

PREPARED STATEMENT OF HON. CARL LEVIN, A U.S. SENATOR FROM MICHIGAN

FEBRUARY 7, 2002

Mr. Chairman, Thank you for convening the first hearing of the CongressionalExecutive Commission on China. The members of this commission have an important and difficult task ahead of us. Our challenge is to find a way to prod China

to comply with internationally accepted human rights standards, respect for labor

rights, religious freedom and the development of rule of law, when prior efforts met

with little success.

I, like many of my colleagues, voted to grant China permanent normal trade relations in part because the legislation included a specific mechanism to monitor and

report on China’s human rights practices. That mechanism is this Commission

which my brother, Congressman Sander Levin, put forward as a way to keep some

public, visible and ongoing pressure to replace the annual congressional vote on China’s MFN on China to reform in the areas of human rights, labor rights and the

development of the rule of law. The Commission offers the promise of an effective

tool for both monitoring and changing the human rights conditions in China. Clearly

the mechanisms of the past were largely ineffective in impacting the human rights

climate in China.

The Commission must be bold and innovative in carving out new and effective

ways to influence China. China’s human rights record is abysmal and is getting

worse. And China has shown little willingness to change this record. The Commission has its work cut out for it.

The State Department’s most recent Human Rights Report on China (year 2000)

concludes that the Chinese government’s poor human rights record has worsened,

and China continued to commit numerous serious abuses. It comes as no surprise

that the State Department found China in violation of many of the basic human

rights contained in the International Covenant on Civil and Political Rights and in

the Universal Declaration of Human Rights. These include the right to engage in

free expression; the right to peaceful assembly, religious freedom, protection of

internationally recognized worker rights, freedom from incarceration as punishment

for political opposition to the government or for exercising or advocating human

rights.

Examples of human rights abuses by the Chinese Government are extensive and

disturbing. For example, the State Department reported that China intensified its

harsh treatment of political dissent, crackdowns on religion and, in Tibet, and genVerDate 11-MAY-2000 12:31 May 01, 2002 Jkt 000000 PO 00000 Frm 00075 Fmt 6601 Sfmt 6621 78790.TXT China1 PsN: China1
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erally, suppressed any person or group perceived to threaten the Government. The

State Department reports abuses including instances of extrajudicial killings, the

use of torture, forced confessions, arbitrary arrests and detention, the mistreatment

of prisoners, lengthy incommunicado detention, and denial of due process.

Over the past few years, China has cracked down harshly on the Falun Gong

movement and imprisoned hundreds of its leaders and placed thousands of its followers in detention, reeducation-through-labor camps or in mental institutions.

Hundreds of Falun Gong members died in police custody and many were tortured.

U.S.-China relations were seriously strained when China detained a number of

U.S. citizen or U.S. permanent resident academics of Chinese dissent, including detaining the 5 year old son of a U.S. permanent resident, a U.S. citizen, for 26 days

without notification to U.S. officials.

China executes more people in 1 year than all other countries put together, and

this is often after unfair and secret trials. There is also the horrendous issue of

organ harvesting which is directly linked to the execution of prisoners.

I am also concerned about the use of prison labor in China, especially when the

products made by forced prison labor are exported to the United States. The State

Department reports that forced labor in prison facilities is still a serious problem

and confirms that some Chinese prisons contract directly with regular industries to

supply prison labor or operate their own factories.

More U.S. Customs Service enforcement actions involving prison or forced labor

facilities have been issued for China—20 of 23 outstanding orders to detain merchandise suspected of containing content made with prison labor B than for any

other country.

However, the State Department has been denied access to Chinese prisons suspected of producing products for export made with prison labor. This is despite a

1992 Memorandum of Understanding (MOU) with China prohibiting the export of

prison made products and a 1994 Statement of Cooperation (SOC) allowing us to

inspect Chinese plants suspected of using prison labor to make goods for export.

China’s compliance with the MOU and SOC is poor. China continues to deny almost

all of our repeated requests to visit suspected prison factories. The few visits that

were permitted in the late 1990’s were only the result of significant high level diplomatic pressure.

There are 8 pending requests to visit Chinese factories suspected of producing

goods for export with prison labor, dating back as far as 1992. This is in addition

to 11 outstanding requests for the PRC to investigate prison labor allegations pertaining to exports to the United States to which the Ministry of Justice has not responded.

The State Department report specifically mentions a 1998 report that soccer balls

were being made for export by prisons near Shanghai. The Chinese Government

failed to respond to an October 1998 request to investigate these allocations. Unfortunately, one negative side effect of China’s inaction is that people may be less willing to take the risk of reporting prison labor violations when they know nothing will

be done about it.

I am also concerned about the lack of respect in China for labor rights. The five

core International Labor Organization (ILO) labor standards are: (1) the right of association; (2) the right to organize and bargain collectively; (3) a ban on child labor;

(4) a ban on compulsory labor; and (5) a ban on discrimination in employment.

China has had a poor track record to date in recognizing and protecting these internationally recognized rights. For one thing, China only recognizes approved registered unions. So, while Chinese workers may have had the right to be in a union,

it had to be the State sanctioned union. China has cracked down on efforts to organize other unions by detaining or arresting labor activists involved in Aillegal@

union activity.

Recently there are signs that China may be changing regarding labor rights. Last

year a new law was passed that would allow for union organizing and bargaining

from the bottom up, although the new unions would still have to be affiliated in

some way with the State sanctioned unions.

It remains to be seen if these new labor rights will be meaningful. Much depends

on the extent to which these new rights are real. The Commission should monitor

whether the new law is implemented vigorously and if the new rights are protected

by the central government.

In summary, the human rights situation in China is offensive, intolerable and in

violation of internationally accepted norms. Improvements in China’s human rights

record is an essential requirement for improving the U.S.- China relationship. The

American people will have little tolerance to trade with a Nation that has no respect

for the rights of its own people. Trade and human rights are therefore inextricable

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linked. The hope is that through the establishment of the rule of law in China, respect for and protection of human rights will increase.

Now that China has been granted PNTR and joined 142 other nations in the

World Trade Organization, we should use this membership as a way to open China’s markets to our goods the way our market has been open to China’s goods. We

should also use it to exert meaningful pressure on China to join that community

of nations that respects basic human rights so that 1 day the people of that country

can enjoy their fundamental human rights. I hope the Commission can make an important contribution to achieving that goal.

PREPARED STATEMENT OF HON. SANDER M. LEVIN, A U.S. REPRESENTATIVE FROM

MICHIGAN

FEBRUARY 7, 2002

I am very glad to be here today as a member of this Commission and I am pleased

that the Commission is becoming operational. It is vital that this Commission fulfills the function that Congress intended for it when we created it.

Two years ago, in deliberating Permanent Normal Trade Relations for China, we

spelled out clear goals for the Commission as a critical part of the effort to both

engage and confront China:

‘‘The Congressional-Executive Commission will be an effective tool for pressing

China to improve its record in the vital areas of human rights, adherence to

core labor standards, rule of law and democracy building. Comprised of Members of Congress and senior Administration officials, the Commission will have

unparalleled profile and credibility to call attention to its analysis and recommendations.

‘‘The Commission will place an ongoing, focused spotlight on human rights and

other government practices in China. . . .

‘‘The Commission will be a vast improvement over the annual review. That

process concentrates congressional attention on China for only a few weeks each

year. The Commission, by contrast, would have permanent, expert staff and resources devoted to monitoring China on a systematic, year-round basis.

‘‘The Commission will perform a unique role in the U.S. effort to press for reform in China.

‘‘The Commission will for the first time provide a mechanism focused solely on

human rights, labor rights and religious freedom issues in the U.S. relationship

with China. . . .

‘‘Finally, by bringing together senior executive branch officials with Members

of Congress on a bipartisan basis, the Commission will have a profile and level

of credibility that existing congressional committees or executive branch agencies simply cannot match.’’

The events since the House vote have only confirmed the need for this Commission to play each of these vital roles. The State Department reports that China’s

human rights record has grown worse in the last 2 years. China continues to prevent its citizens from the free exercise of their religion and has continued and

stepped up its campaign against members of the Falun Gong movement. China’s repression of Tibet continues, as well as its repression of ethnic minorities such as

the uighurs. China has detained a number of scholars and American citizens, as it

continues to try to thwart free speech and freedom of ideas. An article in the January 21 edition of the Washington Post, detailing the use of police and the military

to quell a strike in the Shuangfeng Textile Factory, illustrates the serious labor

rights violations continuing in China.

At the same time, China’s efforts to move away from a state-dominated to a free

market economy have accelerated and the Chinese legal system is inching toward

the rule of law. In both cases, however, there are still miles to go, validating the

need for policies and programs that reinforce any positive impacts arising from the

movement toward a market economy. China has formally become a member of the

WTO, but it still has very far to go in implementing all of its commitments. Just

in the past 2 weeks, businesses and the USTR have raised serious concerns about

China’s WTO implementation.

I am pleased that this inaugural hearing is focused on human rights issues. The

Commission must help keep Congress informed and focused on human rights and

political prisoners issues in China. It will not be an easy task, but this job is crucial

to the Commission’s success.

The Commission also has a key role to play in monitoring labor rights in China.

Democratic staff from the Ways and Means Committee were recently in Cambodia

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examining the operation of the U.S.-Cambodia textiles and apparel agreement. This

agreement addressed the labor rights issue in an innovative way—encouraging

Cambodia to improve its labor rights through positive market access incentives. One

of the issues that became clear on that trip was that China enjoyed an advantage

because of its failure to respect labor rights: As one factory owner comparing his

labor practices in his factory in Cambodia with his practices in his factory in China

stated, ‘‘I can do whatever I want in China.’’ As China’s accession to the WTO takes

hold, other countries, particularly neighbors of China, will find it difficult to compete with China in attracting labor-intensive industries if China continues to allow

investors there to ignore labor rights. There will truly be pressure for a race to the

bottom.

Separately, respect for labor rights will help further develop a middle class in

China. Although some claim that more trade in and of itself will automatically lead

to a middle class, I do not believe that is the case. When workers have the right

to organize and bargain collectively, they can enjoy a larger share of the profits that

they help create.

The Commission will provide a key tool to Congress and the Administration to

help improve labor rights in China. It will provide a source of information and monitoring that both the Administration and Congress can trust. I hope the Commission

will also make useful recommendations on ways to work with China to improve the

respect for worker rights.

Finally, the rule of law is both a human rights issue and a commercial issue.

China made a host of important commitments as part of its WTO accession. In order

for the United States to obtain the full benefits of those commitments, China must

implement them in its law and properly enforce the law. I think the Commission

can play a ground-breaking role in helping the rule of law to flourish in China.

The Commission must pursue each of its roles aggressively. I would hope that by

this time next year, the Commission will be seen as a fixture, having earned the

respect of the human rights community, the business and labor community, Members of Congress, the Administration, as well as the Government of China.

Former President Clinton said in his January 27, 2000 State of the Union address: ‘‘[W]e need to know that we did everything we possibly could to maximize the

chance that China will choose the right future.’’ China is a dynamic, complex, and

evolving country. The U.S. relationship with China reflects these facts and is itself

dynamic, complex, and evolving. This Commission has important potential to shape

the development of U.S. policy toward China, and even to impact constructively the

evolution of China.

PREPARED STATEMENT OF HON. MARCY KAPTUR, A U.S. REPRESENTATIVE FROM OHIO

FEBRUARY 7, 2002

Mr. Chairmen, I am pleased that the Congressional-Executive Commission on

China finally is meeting. This hearing has been a long time coming.

First, I would like to thank the witnesses for appearing before our Commission.

Your unique perspectives on the grave human rights situation in China draw attention not only to the oppressed on the mainland, but to all struggling people who face

of cruelty and brutality at the hands of repressive regimes. Your cause is noble.

While some Members of Congress opposed the unconditional granting of most favored Nation status to China, no one could object to a body investigating the disregard for human rights in that nation. For those nominated to serve on this Commission, we face many challenges—the first being the maintenance of Congress’

commitment to this vital matter. Already, we have seen almost 2 years since the

passage of H.R. 4444. That is an unacceptable waste of time. During this period,

the rate of persecutions in China among those struggling for human, religious, and

labor rights has arguably increased at an alarming pace. Our hearings should be

regular, open and timely.

Since 2000, organizations like Human Rights Watch and The National Labor

Committee (NLC) have done yeomen’s work in highlighting the ongoing abuse of

people in China. ‘‘Toys of Misery,’’ a recent report by NLC, documents the shocking

and flagrant exploitation of internationally recognized human and worker rights. I

urge Members of the Commission to examine closely the groundbreaking report on

toy manufacturers at www.nlcnet.org. Included are first-hand accounts of 16-hour

workdays at starvation wages of 17 cents per hour. Many employees work in factories with little or no ventilation, safety protections, or sanitary break areas. Workdays often consist of 100-plus degree heat while handling toxic glues, paints and solvents. The end product—toys—end up in McDonald’s Happy Meals, on the shelves

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at the local Wal-Mart, and, eventually, in our families’ homes. Unfortunately, all too

often, reports like this are lost in the churning media cycle. Our responsibility is

to never forget the women, men, and children struggling to survive another day in

these brutal conditions. Globalization may have logic, but it has no ethic.

As I have stated many times, trade does not bring freedom nor economic security

for the rank and file. Only a nation’s patient commitment to legal and social justice

that dignifies the individual will uplift living conditions. I encourage President Bush

to place human worker rights among his top discussion points during his upcoming

trip to the People’s Republic of China. Better yet, why not include Members of the

Commission as part of his delegation? If the President’s sincere commitment to freedom is to be shared throughout the world, he must be diligent in all international

dialogs. The best way to stem the flow of violence and terrorism is through a free

people.

Rights of association, freedom of the press, and, surely, freedom of religion should

never be abridged. Both chambers and the Administration have acknowledged the

positive role faith can play in the development of a healthy and productive society.

Those brave few who push for these rights in China and Tibet find an almost impossible feat ahead. In its 2001 Annual Report, the United States Commission on International Religious Freedom (USCIRF) released the following summary:

In the last year, the government of the People’s Republic of China (PRC or

China) has expanded its crackdown on unregistered religious communities and

tightened its control on official religious organizations. The government has intensified its campaign against the Falun Gong movement and its followers. It

apparently has also been involved in the confiscation and destruction of up to

3,000 unregistered religious buildings and sites in southeastern China. Government control over the official Protestant and Catholic churches has increased.

It continues to interfere in the training and selection of religious leaders and

clergy. At the same time, the government continues to maintain tight control

over Uighur Muslims and Tibetan Buddhists. Finally, cases of torture by government officials reportedly are on the rise.

According to reports from the State Department and USCIRF, some members of

the officially sanctioned Chinese Catholic church do not recognize the legitimacy of

bishops appointed by the Vatican. America’s trade and foreign policy should stand

to reaffirm our support for religious freedom at home and abroad.

The success of this Commission rests solely on our shoulders. The hopes of billions

of people pivot on the world’s voices for freedom.

PREPARED STATEMENT OF HON. JOSEPH R. PITTS, A U.S. REPRESENTATIVE FROM

PENNSYLVANIA

FEBRUARY 7, 2002

Mr. Chairman, thank you for holding this important hearing on China’s Accession

to the World Trade Organization of the People’s Republic of China and Related

Rule-of-Law Issues. Also, I would like to thank Mr. Mike Jendrzejczyk, Mr. Xiao

Qiang, Professor James V. Feinerman, and Professor William P. Alford for sharing

their expertise and insight with us today.

Addressing rule of law issues in China, as reported by many scholars and human

rights experts, is vital to establishing international human rights standards in

China. Unfortunately, as noted in the testimonies this morning, recent incidents,

particularly related to freedom of speech and freedom of conscience, reflect the intense battle within Chinese society between those who wish to live in freedom and

those who wish to exert extreme control over the society and individuals, their actions, speech, and even their thoughts.

As our government gives assistance to the Chinese government for civil society

development, we must be specific in our assistance targeting areas in which a real,

practical difference can be made. For example, it is vital that as just rule of law

is developed in China. It is also vital that the distinction be made that criminal action be dealt with under established criminal law, but that no new laws are needed

to limit freedom of religion. Official PRC Government documents make it clear that

the drive to maintain control over religious believers in China remains strong. In

one report regarding a meeting of Chinese officials, the officials were charged to

‘‘Quickly gather the essential personnel and find out the development and activities

of this cult in our province. Carefully gather all the information and try to catch

all the members in one blow. Pay attention to keep it confidential and work without

talking.’’ Comrade, the head of the Ministry of Public Security, emphasized specifically that ‘‘we need to work more and talk less and smash the cult quietly.’’ This

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is not the statement of officials who aim to protect the freedom of conscience of their

people.

In one case from December 2001, reports suggest that Mr. Gong Shengliang was

accused of ‘‘crying out to his followers to ‘fight a bloody battle with the devil (referring to the government) till the end, so that the Satan’s (referring to the Communist

Party) authority will be destroyed and the kingdom of the ever-lasting God will be

established.’ ’’ The Communist Party’s accusations against Mr. Gong Shengliang are

reminiscent of those against Pastor Xu Yongze, also a Protestant church leader, accused of instigating his followers to fight against the devils and demons in power.

According to various reports, neither of these men were attempting to engage their

fellow religious believers in a physical battle against anyone. The Communist Party,

however, has their own interpretation.

Mr. Chairman, these brief examples, along with the others reported today, underscore the importance of continuing to address these issues in deliberate, practical

ways.

PREPARED STATEMENT OF HON. FRANK R. WOLF, A U.S. REPRESENTATIVE FROM

VIRGINIA

FEBRUARY 7, 2002

I want to thank Chairman Baucus and Chairman Bereuter for holding this hearing today.

I have strong concerns at the direction that this commission appears to be heading.

The legislation that created this commission is very clear about its functions. By

law, this commission is to:

(a) ‘‘monitor the acts of the People’s Republic of China which reflect compliance with

or violation of human rights. . . . ’’ (b) ‘‘compile and maintain lists of persons believed to be imprisoned, detained, or

placed under house arrest, tortured, or otherwise persecuted by the Government

of the People’s Republic of China. . . ’’ (c) ‘‘monitor the development of the rule of law.’’

It was said by some Members who helped form this commission that they wanted

it to be modeled on the highly effective Helsinki Commission. The Helsinki Commission played an important role in confronting, monitoring, and promoting human

rights in the former Soviet Union. I believe the Helsinki Commission had a significant role in helping tear down the Iron Curtain. The Helsinki Commission was and

is a strong advocate for human rights and religious freedom. Helsinki Commission

Members traveled to the former Soviet Union and Eastern Bloc countries and confronted the political leadership about human rights and religious freedom issues.

The Helsinki Commission sent letters to the former Soviet Union and spoke out

publicly, advocating for specific individuals, for religious freedom, for the development of democracy and for the rule of law.

If the Congressional-Executive Commission on China wants to be successful; if the

Congressional-Executive Commission on China wants to emulate the Helsinki Commission; if the Congressional-Executive Commission on China truly wants to promote human rights and the rule of law in China, it has to be a strong and outspoken advocate for human rights and religious freedom in China. I am concerned

that this commission may not be willing to be such an advocate. I believe that the

future of this commission depends on whether or not it will step up to the plate and

confront the Chinese leadership on behalf of human rights, religious freedom and

the rule of law.

I also am very concerned with the selection of commission staff members. Staff

members appear to lack the experience in promoting human rights and religious

freedom in China. With the commission’s function to monitor human rights, religious freedom and the rule of law, the commission staff should be comprised of people who have a proven track record of promoting human rights, religious freedom

and the rule of law in China.

Lastly, I am concerned with a statement made by James Feinerman who is testifying today. While I am sure Mr. Feinerman is a fine scholar and I respect his work,

Mr. Feinerman stated in a 1997 Washington Post article that people in the United

States who criticize China for its practice of forced prison labor are hypocrites. I enclose this article for the record. Mr. Feinerman is quoted as saying,

Harry Wu and others have tried to stir up a great controversy about how

goods made by forced labor are flooding into our market. . . . But in fact, it’s

only a tiny fraction of all Chinese goods. And it seems to me the height of hyVerDate 11-MAY-2000 12:31 May 01, 2002 Jkt 000000 PO 00000 Frm 00080 Fmt 6601 Sfmt 6621 78790.TXT China1 PsN: China1
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pocrisy for us to get on our high horse about China making its prisoners work,

given the fact that we do the same thing with our prisoners . . . [the Chinese

prison system is designed] to make offenders pay a harsh penalty, on the theory

that it scares people so they won’t come back into the prison system. You can

argue that it works. They have very low rates of recidivism. Who are we to

argue with their choices?

Given that the Chinese government has imprisoned thousands of people—Roman

Catholics, Protestants, Buddhists and Muslims—simply because of their faith; given

that the Chinese government has imprisoned thousands of people for promoting democracy, if accurate, Mr. Feinerman’s statement is very troubling.

I question the wisdom of selecting a person to testify about the rule of law in

China who says of the Chinese system and its critics: ‘‘You can argue that it works.

. . . Who are we to argue with their choices?’’

This commission is full of promise and faces great opportunity to make a difference. Like the Helsinki Committee, the Congressional-Executive Commission on

China will only be effective if it speaks out and becomes an advocate for human

rights and the rule of law in China.

PREPARED STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM

CALIFORNIA

FEBRUARY 7, 2002

Mr. Chairman, I would like to thank the panel of witnesses for joining us for this

inaugural session of the Congressional-Executive Commission on China. And I

would also like to thank the Chairman and Vice-Chairman for all their hard work

over the past few months in organizing both this hearing and the Commission itself.

This Commission has been created with a mandate both to monitor China’s compliance with human rights agreements and its development of rule of law, and to

encourage programs and activities that will assist in that development.

I say this as one who believes it is neither possible nor desirable to isolate or contain China, and that empty rhetoric will not be sufficient to improve China’s human

rights record. Rather, the national interests of the United States are best served by

the evolution of a China that is peaceful, stable, and a leader in Asia with whom

we can work to solve serious problems whether they be retarding aggression by

North Korea or solving the Kashmiri crisis now polarizing India and Pakistan.

A first glance at the complexities of the U.S.-China relationship reveals many

points of apparent conflict: our contrasting forms of government, our dissimilar cultures and historical background, and our varying perspectives. Yet in spite of these

differences, we share an agenda of common goals.

China has existed for 5,000 years, and over its history has experienced some of

the most brutal tyrannies earth has witnessed, as well as revolutionary change.

And, for 5,000 years the Chinese people have not enjoyed democracy or rule of law

in the way that, for 225 years, has allowed the United States to experience unprecedented freedom and ‘‘government of the people, by the people, for the people.’’

Since the United States and China normalized relations almost three decades ago,

China has undergone extensive change, ushering in an era of massive social reform

and economic advancement. Economic growth and dynamism, privatization of stateowned enterprises, communication and exchange of ideas with the west, and the

positive impact of the Hong Kong model have brought increased living standards

and quality of life to many in China.

And although it is clear China still has a long way to go where human rights and

the rule of law are concerned, few objective observers would argue that there have

not been significant benefits and advances that have come from interaction with the

west during this time. The post-Deng China of Jiang Zemin and Zhu Rongji is simply not the China of Mao or the Gang of Four.

Some western analysts look at China’s policy in Tibet, or its treatment of the

Muslim Uygur people or the crack-down on the Falun Gong and argue that China’s

behavior in these cases reveals the true nature of the Chinese government. Others

point to the success of the Hong Kong model, and China’s booming south, where

however imperfectly, greater personal freedoms, village and local elections, respect

for private property, and a budding infrastructure of commercial law point toward

a future where political pluralism, human rights, and rule of law can be imagined.

The next few years will witness if China’s leadership will demonstrate that they

understand that the right course for their Nation includes an increased respect for

human rights and rule of law. Following this path will continue to improve relations

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with the west and help make China a more responsible and fully integrated member

of the of the international community.

The establishment of this Commission represents, in this context, an important

new opportunity to extend U.S.-China dialog on human rights, and I strongly believe that the Commission must, where possible, find ways in which the U.S. and

China can work together to attain commonly desired goals in areas such as the rule

of law.

In order to do so, we will need to work closely with non-governmental organizations, such as those represented here today on the panel. Your experiences and insights provided to us through reports, updates and testimony will enable us to carry

out our responsibilities. I look forward to hearing your views: what the key issues

are and how we as a commission might best address those issues.

I intend to work energetically as a member of the Commission to ensure China’s

compliance with its human rights covenants and its progress on rule of law, and

I will also urge as an equally important part of the Commission’s work the encouragement of those programs and activities of both the U.S. Government and private

organizations that will improve bilateral relations and increase the interchange of

people and ideas between the United States and China.

I am pleased to have the opportunity to serve on the Congressional-Executive

Commission on China.

PREPARED STATEMENT OF HON. BOB SMITH, A U.S. SENATOR FROM NEW HAMPSHIRE

FEBRUARY 7, 2002

I am pleased at the leadership exhibited by the China Commission Co-Chairmen,

Senator Baucus and Congressman Bereuter, as they have organized this commission

through turbulent times in the last several months. Furthermore, it is also an honor

and a distinct privilege for myself to be a part of the China Commission and I look

forward to my work on this commission.

As we meet this afternoon to hear testimony from the experts before us on the

issue of human rights in the context of the rule of law, I would like to take this

opportunity to express my vision and desires for this commission. I did not support

the China PNTR legislation which granted China the privilege of trading with the

United States on preferential terms. I feel now as I did in October of 2000, that enriching a communist regime and furthering it’s ability to repress its people and

threaten the citizens of the this Nation as well as the democratic island of Taiwan

was not in the best interests of America or the Chinese people.

However, I did support the creation of this commission to monitor China’s transition and adoption of the principles of rule of law and human rights in that nation.

It is my hope that this commission will diligently work toward advancing these universally sacred principles. It is also my hope that the China Commission will not

act in the expediency of promoting corporate business interests nor give unbalanced

reports that will allow us or the American people a false sense China’s movement

toward and commitment of conducting itself along recognized international norms.

I strongly feel that it is imperative the China Commission use its leverage to keep

China accountable for the ideals which proponents of PNTR have stated trade will

nurture in China. Moreover, I am hopeful that the China Commission will actively

pursue and document reports of religious persecution, forced abortion, slave labor

and other egregious human rights violations which are still sanctioned by the Chinese Government.

I am disheartened to read reports by the press and human and religious rights

groups who find no lack of documentation of China’s repression of Christians, Muslims, Falun Gong practitioners and other religions. I believe this commission could

have great impact on human rights in China. Given the fact that the United States

no longer has a seat on the U.N. Human Rights Commission, the China Commission

could release its report to influence the U.N. Human Rights Commission’s findings

on that nation.

The China Commission’s other task, to monitor the rule of law—both civil and

trade law, is also of grave importance. As more and more U.S. companies decide to

try to grow their business and commit substantial investment in China, I am concerned at the lack of transparency, corruption and the general murky environment

of Chinese business practices which U.S. companies must navigate. I believe this

commission must diligently examine the impact of China’s difficulties or unwillingness in adhering to WTO rules and regulations and bring these issues to light.

It is imperative that we not continue to blur the line between national security

and trade. In the past, the United States has had to transfer high-tech know-how

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to Chinese companies in order to facilitate the completion of business transactions.

I am alarmed about this not only because of my national security concerns, but because we are giving up advantages in lucrative niche markets, such as aerospace.

Furthermore, I have strong concerns for U.S. companies whose intellectual property rights are being stolen, an area in which the U.S. has tried to work with the

Chinese for years to no avail. This is an area I would like to address later.

Clearly, this Commission will encounter the fundamental challenges facing relations between the United States and China now and into the foreseeable future. I

believe this commission can be used as a tool to help shape that relationship, and

will I work to ensure it is balanced in its approach and reporting on China, as laid

out in the legislation which formed it.

Before I close, I would like to take this opportunity to quote remarks made by

William Hawkins, a Senior Fellow for National Security Studies at the U.S. Business and Industry Council, which addresses major concerns of mine, and I hope

members of this commission. In an article written recently by Mr. Hawkins, he illustrated examples of new industrial/economic powers emerging to global powers,

such as Great Britain, Japan and the United States. Mr. Hawkins accurately notes

that their emergence in economic and political power had enormous consequences

to the global balance of power—England established an empire on which the sun

never set, Japan used its economic power to drive the British and other powers out

of Asia, while the United States used its economic power to win WWII and to end

Soviet communism and oppression during the cold war. After noting these observations, Mr. Hawkins then posed the following question, ‘‘What will China do with its

expanding economic capabilities? Beijing’s ambition to become the dominant power

in Asia is well known. If the United States continues to think only in terms of

‘rules-based trading system’ when it looks at the Chinese economy and the behavior

of private corporations, it will ‘suddenly’ find itself facing a power with the means

to back its bellicose rhetoric-and the change will not be ‘positive’ in any way.’’

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SUBMISSIONS FOR THE RECORD

[The following article was submitted for the record by Representative Frank

Wolf.]

[From the Washington Post, June 3, 1997]

PRISON LABOR: CAN U.S. POINT FINGER AT CHINA? AMERICAN INMATES

MANUFACTURE PRODUCTS, BUT TRADE DEBATE CENTERS ON BEIJING’S POLICIES

(By Paul Blustein)

Horror stories are surfacing anew about the Chinese prison labor system and the

sale of its products in the United States. But consider what is happening to the

64,000 U.S. convicts in the Florida prison system:

Prisoners are required to work—or face punishment. Most inmates, even ones

digging ditches on chain gangs, are paid nothing. Moreover, some of the products

they make, such as boots and license plates, are exported to foreign countries.

Therein lies a question: Because inmates in many U.S. prisons are obliged to

work, do Americans have the right to condemn China’s prison labor practices?

The question arises because China’s ‘‘reform through labor’’ penal system, known

in Chinese as laogai, is becoming a hot issue in Congress and the media amid the

mounting debate over whether Beijing should be allowed to retain its trading privileges.

Senate and House committees held hearings May 21 and 22 on allegations that

goods made in Chinese prisons are being imported into the United States in violation of U.S. law and a U.S.-China agreement. Among those offering testimony about

how easy it is to buy convict-made goods was Harry Wu, a former inmate laborer

who has gained worldwide fame for returning to China to document the nation’s

‘‘prison economy.’’ An ABC ‘‘Nightline’’ program broadcast the night after the hearing featured videotape from another witness indicating that binder clips were being

made in a Chinese women’s prison for a U.S. office-supplies company.

All of this is generating potent ammunition for critics of U.S. trade with China,

who contend that Beijing is profiting from the toil of people railroaded into working

cruelly long hours under appalling conditions. TV ads being readied by the Family

Research Council, a group seeking to overturn China’s most-favored-nation trade

status, accuse Beijing of employing ‘‘slave labor.’’

But some academic experts call this argument a classic example of hyping an

issue to advance a political agenda.

‘‘Harry Wu and others have tried to stir up a great controversy about how goods

made by forced labor are flooding into our market,’’ said James Feinerman, a professor of Asian Legal Studies at Georgetown University. ‘‘But in fact, it’s only a tiny

fraction of all Chinese goods. And it seems to me to be the height of hypocrisy for

us to get on our high horse about China making its prisoners work, given the fact

that we do the same thing with our prisoners.’’

The importation of goods made in Chinese prisons, while against U.S. law, should

be a ‘‘non-issue because the amounts are so small,’’ agreed James Seymour, a senior

research scholar at Columbia University whose book on Chinese prisons is scheduled to be published shortly. Although the precise amount is impossible to determine, Seymour’s book cites Chinese economic data indicating that the output of Chinese prisons constitutes less than one-fifth of 1 percent of total Chinese production.

The U.S. Federal prison system, and many State prison systems, require all ablebodied inmates to work, often in tasks that are designed to save taxpayers money,

such as cleaning up highways, painting public buildings or making office furniture.

Those who refuse typically are deprived of privileges or sent to higher-security institutions.

Pay is far below minimum wage—12 cents to $ 1.15 an hour for Federal inmates,

and less than that in many State systems. So their products usually are barred from

sale except to government agencies. But ironically, while the law prohibits importing prison-made goods and restricts their sale across State lines, there is no law

barring their export.

Thus, boots made by Florida prisoners have been shipped to Trinidad, license

plates have been sent to Nicaragua and cedar-lined boxes have been exported to the

Dominican Republic, according to Pamela Jo Davis, president of Pride Enterprises,

an organization that pays about 4,300 Florida inmates 20 cents to 50 cents an hour

for their labor and provides job training as well.

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‘‘Being in Florida, we’re targeting Latin America and South America,’’ Davis said.

‘‘Those are clearly our trading partners.’’

Florida’s prisoners are not the only ones making goods for export; blue jeans bearing the brand name ‘‘Prison Blues,’’ made by Oregon inmates, have become big sellers in Asia.

Critics of China’s penal system argue that it shouldn’t be viewed as even remotely

similar to the one in the United States.

‘‘Are you willing to compare the American system with the gulag [in the Soviet

Union under Joseph Stalin] or the Nazi [labor camp] system?’’ said Wu, who directs

the Laogai Research Foundation in Milpitas, Calif.

Added Jeffrey L. Fiedler, president of the AFL–CIO’s Food and Allied Service

Trades Department, who investigates violations of U.S. prison labor laws: ‘‘The

whole system is different. There is no law or due process in China.’’

In China, Fiedler noted, a person accused of petty thievery or other misdemeanors

can be sentenced to up to 3 years in a labor camp, with a possibility of an extended

sentence, based simply on an administrative decision by local law enforcement authorities, with no formal trial. And while serious offenders usually are tried, judges

often are Communist Party loyalists who dispense justice arbitrarily, according to

experts on the Chinese system.

Moreover, some of China’s inmates are imprisoned for political activism—or

‘‘counterrevolutionary offenses,’’ as the Chinese put it. But by virtually all accounts,

the number of such people—about 2,700, according to the U.S. government—is

dwarfed by the numbers of others convicted of crimes such as murder, rape and robbery. (Wu estimates that 6 million to 8 million people are laboring in the various

branches of the penal system.)

‘‘Most of the people in the laogai are of course ordinary criminals, not political,’’

said Chen Pokong, a 33-year-old visiting economics scholar at Columbia who spent

5 years as an inmate.

Chen’s case illustrates what many experts find most troubling about the Chinese

penal system—the extensively documented evidence that prisoners often are treated

brutally. Chen, who said he was sentenced in 1989 for helping to lead a student democracy movement in the southern province of Guangdong, said he spent 2 years

in one facility where prisoners were forced to carry heavy stones for 8 hours to load

on ships. ‘‘Then, until midnight, we made artificial flowers; sometimes we had to

work through the night,’’ he said. ‘‘If you collapsed before you finished the quota,

you were heavily beaten.’’

Columbia’s Seymour said some of the prisons he researched for his book were ‘‘totally inhumane,’’ while in others, ‘‘conditions were much better.’’ Prisoners generally

received some paltry wage, he said.

But repugnant as conditions in Chinese prisons might seem to many Americans,

Georgetown’s Feinerman said, they are based on a decision by the Chinese authorities ‘‘to make offenders pay a harsh penalty, on the theory that it scares people so

they won’t come back into the prison system. You can argue that it works. They

have very low rates of recidivism. Who are we to argue with their choices?’’

PREPARED STATEMENT OF ROBERT M. HATHAWAY, DIRECTOR OF THE ASIA PROGRAM

AT THE WOODROW WILSON INTERNATIONAL CENTER FOR SCHOLARS

HUMAN RIGHTS IN CHINA: WHAT CAN WE DO? WHAT SHOULD WE EXPECT?

FEBRUARY 7, 2002

President Bush departs for Beijing later this month for discussions with Chinese

leader Jiang Zemin. Heading the president’s agenda will be the war against international terrorism. Looking beyond our current preoccupation with terrorism, however, President Bush will also seek to solidify the recent progress that has brought

a new stability to U.S.-China relations, after a rocky period in the early months of

his presidency.

The Bush administration has been notably silent since September 11 on China’s

human rights behavior, and the White House has given no indication that human

rights issues will figure prominently in Bush’s Beijing talking points. But it would

be a grave mistake for the president to allow the Chinese to conclude that human

rights have slipped off the U.S. agenda. At the same time, Bush must also keep in

mind that there is an important difference between publicly haranguing China on

human rights, which will play well in many American circles, and acting as an effective advocate for better human rights practices in China.

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Beijing’s sorry human rights record continues to offend us. Last year’s State Department human rights report concluded that in some respects, human rights conditions in China are getting worse, not better. Just last week a Chinese court sentenced a Hong Kong citizen to 2 years in prison for bringing annotated Bibles into

China for use by a banned evangelical Christian group, even though the Bible is

legally available in China. Remarkably, the jailed man’s friends expressed relief

that the sentence was not even harsher.

Reports about a renewed crackdown on Christians and other religious minorities

in China follow a long string of Chinese activities that most Americans deem deplorable. Those Chinese courageous enough to challenge the official line do so only at

great personal risk. National minorities in Buddhist Tibet and Moslem Xinjiang face

persecution, imprisonment, and even death. Political as well as criminal considerations appear behind the extraordinarily high number of executions carried out in

China each year. The rule of law has yet to supplant the cynical use of rule by law,

under which Chinese authorities exploit the power of the State to crush those who

challenge the right of the Chinese Communist Party to exercise a monopoly on political power.

Few Americans would deny that China’s human rights behavior leaves much to

be desired. Few would challenge the proposition that the United States and the rest

of the international community have the right and the responsibility to inquire into

China’s human rights practices and Beijing’s commitment to the rule of law. China’s

recent accession to the World Trade Organization is likely to bring these issues even

more to the forefront.

Of special concern at the moment is the danger that China will try to hijack our

new interest in working with Beijing in the global war against terrorism to promote

its own internal security agenda. We must be on our guard lest China manipulate

us into supporting, under the guise of counterterrorism, repressive measures against

the 7.2 million Moslem Uighurs in China’s western province of Xinjiang, who seek

greater autonomy from Beijing, and whom China has tried to link with Osama bin

Laden and his al Qaeda zealots. The overwhelming majority of Uighurs have no connection whatsoever with bin Laden’s murderous intrigues—indeed, Chinese scholars

estimate that the number of Uighurs linked to al Qaeda is no more than a few

dozen. We must take care that in our understandable desire to destroy bin Laden

and his organization, we not inadvertently provide support or political legitimacy for

repression in Xinjiang.

The U.S.-China relationship is likely to be our most difficult bilateral relationship

for the foreseeable future. It will not be a close or cordial relationship, for we have

too many differences on issues of fundamental importance, including human rights.

But neither are we destined or preordained to being adversaries, let alone enemies.

To the contrary, both countries share an interest in finding ways to surmount our

very substantial disagreements. The task for the leadership of the two nations is

to devise methods of working together when our interests and values permit, while

containing the very real and serious differences that will inevitably arise between

us so that they do not sour the entire relationship.

As the U.S. Congress, the Bush administration, and the American people seek to

manage what will surely be a trying relationship for many years to come, it may

be useful to keep a few general propositions in mind.

• First, Americans should employ a strategic vision as they look at U.S.-China

relations. This relationship is a complex, multifaceted, and in many ways contradictory relationship. All too many of us make little effort to view it in a comprehensive

way, to consider the totality of our relations with Beijing.

Many Americans tend to think about this relationship in terms of a single issue.

For some it is human rights, for others trade or Taiwan, for still others abortion

or Tibet or religious freedom. These are all important issues. They deserve to be

part of the overall equation. But not any one of them is so important that it should

be permitted to dominate or drive the entire bilateral relationship. Should we succumb to this temptation, not only will we jeopardize our ability to achieve other crucial American objectives, but we will also decrease the likelihood of succeeding even

in the area of most concern to us.

Rather than allow single-issue politics to determine the future of this relationship,

we must instead ask what is the range of American interests at stake here, and how

can we best advance the totality of those interests.

• Second, exercising strategic vision also means establishing priorities. At the

moment the Bush administration sees China through the lens of the war against

terrorism, and other important issues, including human rights, have been relegated

to the back burner. At other times, nonproliferation or trade or Taiwan-related concerns have governed U.S. management of Sino-American relations.

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In truth, we have numerous items on our China agenda, and efforts to achieve

our objectives in one area may impede our ability to realize other goals. So we need

to ask—to give one example—how a decision to sell arms to Taiwan could affect our

efforts to block North Korea’s nuclear weapons program, or our ability to promote

better human rights conditions in China. Strategic vision, in other words, requires

us to balance competing policy objectives in such a manner as to maximize the prospects of promoting our most vital interests. • Third, we need a much more historical perspective as we think about relations

with China. Much of the current debate about China in Washington and across the

United States is strikingly ahistorical. It reflects little sense of change over time,

little recognition of how far—in some respects—China has traveled in recent decades. It rarely attempts to measure China by anything other than American standards.

Take the bombing of the Chinese embassy in Belgrade a few years ago. Most

Americans instinctively assumed this was the unfortunate result of official error or

incompetence. Most of us found ludicrous the idea that the bombing of the embassy

might have been deliberate.

The Chinese, on the other hand, view this incident in the context of 150 years

of foreign bullying, and of what they see as a stubborn Western refusal to grant

China the respect its achievements have earned it. Moreover, they place the attack

on the embassy in a spectrum of U.S. actions in recent years that seem to them

manifestations of American arrogance and hostility—including the current war in

Afghanistan, the use of American airpower against Iraq and Serbia, Washington’s lack of interest in certain international agreements and multinational institutions,

the Bush administration’s pursuit of ballistic missile defenses, and U.S. military alliances in East Asia.

Or take the case of Taiwan. Here again the historical experiences of our two countries lead to very different judgments about current U.S. policy. To most Americans

Taiwan offers a stirring example of a people sloughing off an autocratic government

to create a vibrant democracy and prosperous economy. Their very different historical memories encourage the majority of Chinese, however, to see Taiwan in terms

of Chinese territorial integrity, national sovereignty, and national pride, and of a

history of being denied China’s legitimate rights and its rightful place in the world.

So it is with the issue of human rights. Whereas most Americans believe that

there is a universal standard of rights and responsibilities that should govern the

conduct of individuals and their governments, this is a peculiarly Western, if not

American, notion. And even when there is general agreement on the appropriateness of a human rights focus, we will not always agree on how to define that concept. Many peoples, and not just the Chinese, tend to place a higher premium on

the right to food, clothing, and shelter, even if in doing so they subordinate the political and legal rights most Americans tend to emphasize when they talk about

human rights.

This is not to suggest that a greater understanding of the Chinese perspective will

lead us to agree with Beijing, or to abandon our commitment to act as a human

rights champion. But without such an understanding, we have little hope of fashioning policies toward China that offer much chance of success in advancing our

human rights agenda.

• Fourth, we must pay more attention than we customarily do to the constraining influence of China’s domestic politics.

Americans talk in considerable detail of differences between the Pentagon and the

State Department, or Congress and the White House, and accept these differences

as both routine and inevitable. Less well understood is the fact that the Chinese

government is similarly divided, with a variety of viewpoints, bureaucratic interests,

threat perceptions, and policy preferences.

True, China is an authoritarian State where one party controls virtually all the

formal levers of power. But Chinese president Jiang Zemin does not wield the unchallenged power exercised in an earlier day by Mao Zedong or Deng Xiaoping. Bargaining and negotiation among powerful individuals, interests, and bureaucracies,

not dictation, is the norm. If China’s domestic politics are not as transparent as

ours, they are every bit as lively.

American policy is unlikely to succeed without domestic political support and popular backing. Might not a version of this political fact of life apply for China as well,

even conceding the very different nature of the two political systems?

China, moreover, is heading into an extended period of political flux, as the current leadership prepares to make way for a new generation. While it appears that

Jiang’s successor has already been designated, Beijing is likely to experience considerable behind-the-scenes jockeying over the next several years as various contenders

for other senior positions jostle for power and influence.

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What does this suggest about China’s probable policies over the next year or two?

We are likely to see a cautious rather than an adventurous China—a China adverse

to risk-taking or bold initiatives, which may impede resolution of long-standing disputes with the United States over Taiwan, proliferation, and yes, human rights.

We are likely to encounter a prickly, nationalistic China that will take offense at

perceived slights or signs of foreign, especially American, dictation or bullying. Nationalism is on the rise in China today—in part because the regime, having lost its

ideological moorings, has deliberately beat the nationalism drum in order to sustain

popular support. Feelings of a fierce nationalism will place constraints on even an

autocratic government. Officials well-disposed toward the United States will find

reason to be firm in the face of perceived U.S. pressure.

And last, we are likely to see a China unenthusiastic about pushing political reform, permitting public discussion of sensitive issues, lifting government controls

over the activities of dissidents, or taking other steps that could threaten political

turmoil or social instability.

What does this mean for American policy? In the first place, we should keep in

mind how little we know about China’s internal political line-up. We don’t even have

a good read on what policies Hu Jintao, Jiang’s probable successor, is likely to follow, even though Hu has been the heir apparent for the better part of a decade.

Lacking a sophisticated understanding of what political currents lie beneath the

surface, we should be modest in our expectations about influencing those currents.

Second, we should be careful not to provoke the very behavior we seek to discourage by appearing overbearing or insensitive to Chinese pride and historical sensibilities. Certainly we should push China on human rights issues, but we should do so

in a way that avoids setting off a nationalistic backlash.

Third, in thinking about China, Americans must learn patience. This is foreign

to the American character; we want to see everything done yesterday. But that is

not the way things work in the real world. Certainly it is not the way things happen

in China—or in the United States, for that matter.

If one views human rights conditions in China today as a snapshot, a static picture, things look bleak indeed. None of us would willingly trade places with the Chinese people. But in truth, things are far better, in almost every area of daily life,

for the overwhelming majority of Chinese than they were twenty-five years ago.

There have been massive changes, and for the better, since Mao’s death and the end

of the Cultural Revolution. Human rights in China have a long way to go, but for

those Chinese old enough to remember Mao, the improvements have been dramatic.

Finally, we must ensure that the Chinese understand that for Americans, human

rights are not simply a convenient club with which to beat China. Rather, U.S. advocacy of human rights reflects the deeply held values of the American people.

China makes a serious mistake if it discounts American complaints about its human

rights practices, or if it concludes it can build a satisfactory relationship with the

United States without taking American human rights concerns into account.

President Bush faces a formidable task as he journeys to Beijing later this month.

He must impress upon his Chinese hosts the centrality of the human rights issue

for the successful management of U.S.-China relations, while simultaneously not allowing our fundamental differences with China on human rights to impede progress

on other important political, security, and economic issues.

In seeking to reconcile these competing goals, consistency, patience, and a trace

of humility regarding our own shortcomings and failures might ultimately have a

better chance of edging China toward responsible human rights behavior than a

more in-your-face approach.

We must never hesitate to stand up for American values. But we should be realistic as to what we can reasonably expect from Beijing—and what China’s political

system will bear.

Robert M. Hathaway is director of the Asia Program at the Woodrow Wilson

International Center for Scholars. He previously covered Asia for 12 years as a

member of the staff of the House International Relations Committee. The opinions

expressed here are the author’s alone, and do not represent views or policies of the

Wilson Center.

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PREPARED STATEMENT OF STANLEY LUBMAN, VISITING SCHOLAR, CENTER FOR

LAWAND SOCIETY AND LECTURER OF LAW, SCHOOL OF LAW, UNIVERSITY OF CALIFORNIA (BERKELEY)

FEBRUARY 7, 2002

I welcome the opportunity to submit this statement to the Commission. I have

been specializing on Chinese law and related matters since 1963 as a scholar of Chinese law teaching at universities in the United States (Stanford, Columbia and Harvard, in addition to Berkeley) and Europe (the Universities of London and Heidelberg) and simultaneously, since 1972, as a practicing lawyer representing foreign

clients in China. For twenty years I headed the China practice at two American law

firms (1977–1993) and an English firm of solicitors (1993–1997). A third and growing dimension of my involvement with Chinese law has been work on projects related to law reform. During the 1980’s I participated in the activities of the Committee on Legal Educational Exchange with China, funded by the Ford and Luce

Foundations and USIA, which brought Chinese law teachers to the United States

for study and research; since 1998 I have participated in law reform projects in

China under the auspices of the Asia Foundation, where I am advisor on China

legal projects.

SUMMARY

Twenty years of reforms have led to remarkable transformations in China’s society and economy, and have also driven an extensive program of legal reform. The

Chinese leadership, desiring to accelerate economic reform, has recently agreed to

strengthen legal institutions in order to comply with obligations that China has assumed upon accession to the WTO. Sustained effort over a period of years will be

needed for China to be able to meet its WTO commitments regarding trade-related

laws.

Wider legal reform, extending beyond trade-related matters, is also contemplated,

but faces considerable difficulties. Efforts must be made from the top down, although official policy and many officials have less than a firm commitment to the

rule of law; efforts are required from the bottom up, although Chinese civil society

is weak and undeveloped. For protection of human rights to expand, the leadership

must energetically support legal development, and legal culture among officials and

the general populace must change. Broadened political participation, too, could

deepen the extent to which legal institutions can protect human rights in China.

The policy of the United States should simultaneously aim at a number of goals:

The U.S. should energetically promote legal reform, including the establishment

and strengthening of institutions that will buttress the protection of rights by Chinese. Congress should advance beyond the small commitment it has hitherto made

to funding U.S. assistance to Chinese law reform, and support well-planned efforts

by foundations, NGO’s and universities. At the same time, Americans should not assume that Chinese institutions must be judged by the extent to which they resemble

our own.

The U.S. should condemn human rights abuses by bilateral diplomatic means and

in international forums. At the same time, American criticism and insistence on

change in Chinese institutions should be tempered by recognition of the limits on

U.S. ability to change internal Chinese conditions.

American perspectives on China should not focus on single issues or clusters of

issues. Balance is necessary among human rights and other issues in Sino-American

relations that are significant to U.S. national security. Critics of human rights

abuses should avoid demonizing China and thereby complicating the shaping of policy on other questions.

CHINESE LEGAL REFORM SINCE 1979

Accomplishments

Reform has brought a fundamental new orientation toward governing China, in

which formal legislation has become the major framework for the organization and

operation of the Chinese government. To implement economic reforms, since 1979

China has generated an extraordinary volume of legislation. Illustratively, legislation has been used to frame commercial activity; to express policies of State macroeconomic control and their implementation; to give legal recognition to new rights

and interests; and to create a framework for direct foreign investment.

China has acceded to an extensive range of treaties and international agreements

that signal its participation in a global economic community; legislation has been

used for a host of purposes related to building the necessary infrastructure for a

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marketizing economy, as in regulating basic industries, setting standards for environmental protection, and sanctioning violations of intellectual property rights. Institutions intended to curb administrative arbitrariness have been created, and

codes of criminal law and procedure have been promulgated and revised.

The courts have been reconstructed. Formerly scorned as ‘‘rightist’’ institutions at

the end of the 1950’s and as ‘‘bourgeois’’ during the Cultural Revolution, they have

been rebuilt in a four-level hierarchy.

Courts are increasingly being used as the forums in which rights created by legislation are asserted by citizens against each other and, to some extent, against State

agencies. The bar, too, has been established; there are probably now over 150,000

lawyers. Although most of the 8,000 law firms are state-run, the number of ‘‘cooperative’’ firms is growing.

Obstacles

Ambivalence in leadership policies on the rule of law

Chinese policy toward the rule of law reflects an ambivalence that is sharply illustrated by President Jiang Zemins statement in February, 1996, when he stated Let

China be ruled by law, a phrase that was given extensive publicity throughout

China. Unfortunately, that was not the entire sentence: In the next phrase, Jiang

exhorted all to maintain the long-term stability of the nation, that is, preserve the

leading role of the Chinese Communist Party (CCP) over Chinese society.

Just as symbolically, in 1999 China’s National Peoples Congress amended the

Chinese Constitution to insert the rule of law into that document as a leading principle for the first time. It co-exists there, however, with Marxism-Leninism, Mao

Zedong Thought and Deng Xiaoping Theory, all doctrines that insist on CCP dominance.

The persistence of pre-reform institutions of the Party-state; ineffective implementation

In some areas, the authoritarianism of the Party-state continues.

Chinese criminal law and criminal procedure remain heavily dominated by the police and by Party influence over individual cases; recurrent campaigns to punish

crime distort the operation of the criminal process. Police still have the power to

send alleged offenders against certain laws to labor reeducation camps for as long

as 3 years.

Both within and outside the criminal area, much legislation has only been hesitantly and incompletely implemented.

Deficiencies in the judicial system

The operation of the courts is seriously deficient. The judiciary is inadequately

professionalized: Only some 10 percent of all judges have a complete 4-year legal

education; many judges have previously served in the army or in other jobs that did

not qualify them for their current tasks. Corruption is widespread. Moreover, the

extensive decentralization of power that has taken place since 1979 has led to the

phenomenon that Chinese call local protectionism. Because local judges are appointed and the courts are financed by local governments, when deciding disputes

the courts often favor local enterprises on which the local governments depend for

their revenues. In addition, the courts are frequently criticized for their unwillingness to enforce judgments rendered by courts elsewhere in China against local defendants.

The difficulty of enforcing judgments has surfaced not only in disputes among

Chinese parties, but in attempts by foreign parties that have obtained awards from

foreign arbitration tribunals or from the China International Economic and Trade

Arbitration Commission (CIETAC). In one case of which I have extensive personal

knowledge, the Zidell Valve Corporation of Houston, Texas obtained CIETAC

awards against two separate Chinese defendants that were found to have sold millions of dollars of flanges to Zidell that did not meet contract specifications. When

the Chinese parties refused to pay the amounts awarded, Zidell brought timely suit

in the appropriate courts in Beijing and Taiyuan. The courts violated Chinese law

by raising issues that had been definitively disposed of by the arbitral tribunals; by

failing to report the cases to the Supreme Peoples Court; and by misapplying Chinese law to decide in the defendants favor a spurious claim that the proper legal

representative of the plaintiff had not authorized the suit. The courts, including the

Supreme Peoples Court, to whose attention this case has been called, remain unresponsive to protests against the blatant obstruction to the plaintiffs attempt to exercise its rights to enforce Chinese arbitral awards. This case is not unique, and the

courts plain violations of law and procedure suggest the persistence of ongoing problems in the functioning of the courts.

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Although central government leaders have endorsed proposals to reform the

courts in order to remove or lessen the impact of local protectionism on their work,

judicial reform has not yet been decisively advanced. It may be desirable for the central government to finance the judicial system, but there is considerable question

whether it has the necessary financial resources.

RECENT CHINESE COMMITMENTS TO DEEPEN THE RULE OF LAW

China’s accession to the WTO has brought China’s leaders to realize the need to

deepen of law reform with regard to trade-related and certain other laws. They seem

willing, too, to engage in wider legal reform, but some obstacles will impede the further strengthening of institutions.

Uniformity of compliance with WTO obligations

Chinese commitments in the Protocol of Accession include an undertaking to ensure that local government regulations would conform to China’s WTO obligations.

Some impetus will be given to uniform administration by implementation of the

Chinese undertaking to establish a mechanism under which individuals and enterprises can bring to the attention of the national authorities cases of non-uniform application of the trade regime, (Protocol of Accession, Art. 2 (A) 4) but it may be difficult to bring about effective national action to modify or annul local deviations

from WTO standards. Nationwide uniformity may be a distant goal, and

Transparency

The Chinese government has undertaken not to enforce unpublished laws, formerly common. It has also promised that China shall make available . . . upon

request, all laws, regulations and other measures pertaining to or affecting trade

. . . before such measures are implemented or enforced. (Protocol of Accession 2

(C)1) Compliance with this provision will require legislatures and administrative

agencies to make public, before they become effective, a much wider range of rules

and regulations than they have before. The term rules and regulations is used here

generically to cover both laws promulgated by central and local governments and

various forms of rules issued by administrative agencies; in practice, the terminology is more complex and the relationship of various norms to each other is very

disorderly.

Attempts are under way to put greater order into the system, and the formulation

of legislation is being transformed from the passive translation of policy into a specialized professional activity.

Compliance with the undertaking quoted above also would import a high degree

of transparency into law-making and rulemaking processes that have been impenetrable to outside gaze for decades. China has never required a consultation phase

in these processes, and is just beginning to experiment in this area. The Legislation

Law adopted in 1999 provides generally for legislative bodies and administrative

agencies that are drafting legislation or rules to engage in consultations with concerned citizens or organizations. Similarly, the State Council has recently adopted

regulations on the drafting process of its rules that provide for in-depth, on-the-spot

investigations and studies of the main issues in the draft regulations; when the vital

interests of citizens, corporations, or other organizations are involved, hearings may

be held. A similar provision is included in regulations on the drafting of rules by

State Council agencies.

These provisions reflect the Chinese leaderships willingness to begin to consider

ways of channeling inputs from Chinese society.

Preliminary reports suggest, however, that some experimental hearings have involved only carefully chosen participants. Considerable time will have to elapse for

experimentation with these new procedures to unfold—and for officials to change

their mentalities so that that they will accept comment on proposed rules from outside the drafting bodies.

Judicial review of administrative acts

One of China’s most ambitious undertakings upon accession to the WTO is its

commitment to institute judicial review of administrative actions:

China shall establish or designate and maintain tribunals contact points and procedures for the prompt review of all disputes relating to the implementation of laws,

regulations judicial decisions and administrative rulings of general application . . .

Such tribunals shall be impartial and independent of the agencies entrusted with

administrative enforcement (Protocol of Accession 2(D)1).

It is unclear whether the main tasks of scrutiny of administrative decisionmaking

will be performed by courts. If so, apart from the weaknesses that have been menVerDate 11-MAY-2000 12:31 May 01, 2002 Jkt 000000 PO 00000 Frm 00091 Fmt 6601 Sfmt 6621 78790.TXT China1 PsN: China1
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tioned above—low professionalization, local protectionism and corruption—there are

others as well, because the powers of the courts are limited.

The Administrative Litigation Law that became effective in 1990 permits affected

parties to sue administrative agencies in the courts for alleged illegal application

of an administrative rule, and some litigation has ensued. A more recent administrative punishment law places limits on which organs have power to create different

types of punishments; specifies mandatory procedures for imposing different types

of punishment; requires that decisions to impose punishments must state the reasons therefor and requires agencies to comply with procedures set out in law.

Courts may only review the legality, not the reasonableness of the acts complained of. However, Chinese regulations are intentionally drafted in vague language to give maximum discretionary authority to agencies, and as a result it may

be difficult to establish that a regulation was actually violated. As long as an administrative action is technically consistent with the rule it applies, the act may not

be challenged in the courts. The courts are at the same level in each locality as

other administrative agencies; in the past, in interpreting administrative regulations, the courts have usually deferred to the agencies own interpretations of their

rules. If a court finds a rule to be inconsistent with a higher-level regulation it may

not invalidate it; although it may refuse to apply it, such non-application hardly

ever occurs. The courts also lack the power to decide on the inherent validity of administrative

rules, regulations, decisions or orders of universal application. Under the Chinese

Constitution and legislation doctrine, legislatures are superior to the courts in

power; only they may invalidate legislation and administrative rules, while courts

may not.

The Legislation Law of 1999 provides for only limited challenge to national or

local legislation or administrative rules, by written request to the Standing Committee of the National Peoples Congress.

Governmental organizations—but not citizens—may challenge State Council regulations by written statement to the State Council itself; anyone may address challenges of department rules to the State Council; and anyone may the administrative

enactments of large cities.

Administrative law reform is under way. For example, the State Council is drafting a law on licensing intended to address the need to define—and limit—the powers of local governments and agencies to issue rules for granting, suspending or

modifying licenses, including procedures to give affected parties ample opportunity

to present their views, in some cases in the context of a public hearing. Work is

actively going forward on drafting a statute that is intended by the Legislative Affairs Commission of the NPC to be an administrative procedure act for China. A

crucial unresolved issue is whether the powers of the courts can be increased to bear

the burden that such a law would place on them.

The requirement of uniform, impartial and reasonable administration of law

China’s commitment to standards in the GATT derived from the rule of law is further stated in its acceptance of a key provision in the Protocol of Accession (Art.

2 (A) 3):

China shall administer in a uniform, impartial and reasonable manner all its

laws, regulations, rules, decrees, directives, administrative guidance, policies and

other measurespertaining to or affecting trade in goods, services, trade-related aspects of intellectual property rights or the control of foreign exchange.

The major obstacles that lie in the path of implementation of this provision should

be clear: The links between the courts and administrative agencies and the defects

in the courts that have already been noted here, as well as local protectionism and

corruption, all seriously dilute the State capacity of PRC institutions to meet this

general standard.

HUMAN RIGHTS

The foregoing review of some salient characteristics of Chinese legal institutions

provides a context for considering the system from the perspective of human rights.

A sober review of accomplishments to date suggests that the a legal system in China

is still a work in the making, and that realization of even trade-related legal reforms will require considerable time and effort. This is all the more true with regard

to human rights.

I believe that the protection of human rights can expand as certain legal institutions are strengthened. Expansion of the nascent legal aid scheme, judicial reform

and reform of administrative law and procedure would all bring obvious benefit.

Progress will depend, among other things, on the pace of economic reform and the

stability of the current regime or whatever post-Communist regime might succeed

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it. Moreover, it is wise to be cautious about the extent to which economic development can generate legal and political reform. It is a necessary condition for such

reform, but it hardly makes such reform inevitable. Critical, too, will be the extent

to which institutions of Chinese civil society can grow and seek to improve protections for human rights.

Americans should also keep in mind that whatever form legal institutions and

rights-based protections might take in the future, they are likely to vary from our

institutions and from the ideals that we often project onto China. The legal traditions of the two nations are very different, and transition away from totalitarianism

is rife with uncertainties.

I emphasize here the importance of legal culture, by which I mean nothing more

than the attitudes toward law of both officials and the general populace. The Chinese legal tradition did not know any doctrine of individual rights, and ill-fated Republican rule did little to plant the seeds of rights-based doctrine. After the PRC

was established in 1949, it did not advance any notions of individual rights. The

protection of legal rights, much less human rights, is a new transplant brought to

inhospitable Chinese soil. Regardless of any foreign assistance or pressure, much

work must be done by even the most willing government to nourish that frail transplant in China. This is not to say that conceptions of human rights cannot grow in

China. Quite the opposite; after almost thirty years of traveling and working there,

I am sure that many Chinese understand very well that the rule of law is a desirable alternative to governmental arbitrariness and lack of protection for individual

rights.

The task of strengthening rights-based doctrine is all the more difficult because

of a crisis in values that is likely to continue for years. Economic reforms have

weakened traditional ideas of morality, already bruised by Communist rule, and

faith in socialism and in the rule of the CCP. No system of values have taken their

place. Social cohesion is threatened by social inequalities that have been created

and aggravated by economic reforms; moreover, foreign access to Chinese markets

will increase economic distress further in some sectors of the economy and foster

the social instability that the Chinese leadership seeks to avoid.

In the face of the enormous social flux in the worlds most populous nation, Americans, policymakers and otherwise, have no choice but to be modest about what the

United States can do to influence internal conditions in China. Such restraint

should be complemented by emphasizing Chinese conduct that affects U.S. national

security, and which should therefore assume first priority in diplomacy.

Nonproliferation, the status of Taiwan, the future of the Korean peninsula, Chinese participation in the war against terrorism, Chinese diplomacy in South Asia

and missile defense are only the most obvious issues.

Those Members of Congress most concerned about human rights abuses might reconsider the approach that has allied them with other members who regard China

as a future enemy and who disdain engagement. Demonizing China will not contribute to enhancing institutions that can protect human rights, while engagement

in legal reform projects could possibly have constructive effects that would be welcomed by many Chinese and by foreign observers.

AMERICAN SUPPORT FOR LAW REFORM IN CHINA

Congress should seriously consider funding meaningful and well-planned projects

for the building of Chinese legal institutions. For all the vocal insistence from Congress on improving Chinese legality, Congress has been reluctant to appropriate

funds to support such institution-building. Presidents Clinton and Jiang agreed on

a program of legal cooperation in October 1997, but Congress provided no financial

support for it. Since then, fortunately, Congressional has expressed willingness to

support rule of law programs.

NGO’s and academic institutions can contribute to law reform efforts.

Recent experience of the Asia Foundation is an example. The Foundation decided

in 1998 to promote administrative law reform, and obtained support from the Smith

Richardson Foundation for a 3-year program of Sino-American consultation. As director of the project, I formed a committee of leading American experts on administrative law and on Chinese law. Our Chinese counterparts are members of the administrative law drafting group of the Legislative Affairs Commission of the National Peoples Congress. Our committee reviewed and commented on a draft law on

licensing (1999); sent specialists to lecture on administrative law (2000); and organized a conference on the impact of the WTO on Chinese administrative law (2001).

We now hope to help the same group in its work of drafting an administrative procedure law.

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With China’s accession to the WTO, Chinese interest in foreign training and consultation on important areas of law has grown. The Asia Foundation is now financing a program for training officials of the Legislative Affairs Office (LAO) of the

State Council on the requirements that WTO accession now imposes on China. The

local offices of the LAO will be responsible for reviewing proposed local laws and

regulations for compliance with WTO standards. In March, 2002 a group of American WTO experts will lecture in Beijing; thereafter, Chinese officials will visit the

U.S. to learn about U.S. administrative law; in a third stage, after returning home,

Chinese officials will meet U.S. counterparts to discuss practical problems of making

new Chinese laws and administrative rules consistent with WTO requirements. The

Asia Foundation experience summarized here illustrates the contribution to incremental progress that can be made by NGO’s, foundations and universities.

Congress ought to support other programs that combine expertise on specific

areas of the law with familiarity with Chinese circumstances; that promise to have

significant effects; that involve sustained interaction between Chinese and American

personnel; and that emphasize repeated contacts with the same counterparts over

time rather than one-time trips or delegations in either direction.

CONCLUSION

I have presented a mixed view of Chinese legal reform during the last two decades, and have outlined current uncertainties without predicting a likely outcome.

It seems clear, though, that U.S. refusal to assist legal development will contribute

nothing positive to the prospects for the growth of the rule of law in China or, even

more remotely, to the further dilution of authoritarianism. Although the eventual

outcome is in doubt, China’s accession to the WTO may mark a new stage in its

legal development. The United States ought now bring its influence and assistance

to bear on furthering that legal development.

QUESTIONS FOR THE RECORD SUBMITTED BY SENATOR BOB SMITH

Last month, Assistant U.S. Trade Representative Joseph Papovich stated that

China is not doing enough to curb intellectual property rights. Furthermore,

Papovich hinted at the unlikelihood of using the WTO dispute resolution system to

remedy these unacceptable and illegal acts. The United States has been trying to

work with China on the enforcement of this issue for several years to no avail. Now,

China has ascended to the WTO. Professor Feinerman, can you give me your assessment of China’s ability to fulfill their obligations under WTO regulations, pertaining

to violations of U.S. intellectual property thefts?

I have been one of the Senate’s most outspoken critics of China’s deplorable

human rights abuses, especially concerning the repression of Christians and other

religious groups who do not choose to worship in the ‘‘official’’ PRC State churches.

In December of 2000, I was deeply disturbed at the PRC sanctioned razing of

churches and other places of worship along the eastern coast. In fact, I wrote a rather forthright letter to former Secretary of State Albright concerning this issue, to

which I never received a reply from the Clinton State Department. I would like all

the witnesses to give me their opinions on where do they see religious rights in the

PRC moving in the future, given the fact that PNTR and membership to the WTO

in theory was to curb Beijing’s crackdown and even loosen restrictions and allow for

more religious freedom.

In your opinion, is it plausible for China to remain a stridently ideologically communist driven state, keeping with its brutal repression and policies, while still being

able to reap economic profits and higher living standards for the Chinese people?

I would request all witnesses to respond.

RESPONSES OF MIKE JENDRZEJCZYK TO QUESTIONS FROM SENATOR BOB SMITH

Question 2. I have been one of the Senate’s most outspoken critics of China’s deplorable human rights abuses, especially concerning the repression of Christians

and other religious groups who do not choose to worship in the ‘‘official’’ PRC state

churches. In December of 2000, I was deeply disturbed at the PRC sanctioned razing

of churches and other places of worship along the eastern coast. In fact, I wrote a

rather forthright letter to former Secretary of State Albright concerning this issue,

to which I never received a reply from the Clinton State Department. I would like

all the witnesses to give me their opinions on where do they see religious rights in

the PRC moving in the future, given the fact that PNTR and membership to the

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WTO in theory was to curb Beijing’s crackdown and even loosen restrictions and

allow for more religious freedom.

Answer 2. The State Department’s annual human rights country report, just

issued for 2001, mentions the razing of churches in December 2000. It also notes

that unofficial religious groups in China last year suffered ‘‘official interference, harassment and repression.’’ This analysis tracks closely with that of Human Rights

Watch, as we described in some detail in our written testimony to the Commission

on February 7. I expect that future Chinese government policy on religious activities

will be much the same, i.e. in some areas there is a level of toleration, and in others,

strict implementation of PRC laws and regulations aimed at managing and controlling religious expression. Official policy on religion does not seem to be affected, one

way or another, by China’s entry into the World Trade Organization or its PNTR

trading status with the US.

Question 3. In your opinion, is it plausible for China to remain a stridently ideologically communist driven state, keeping with its brutal repression and policies,

while still being able to reap economic profits and higher living standards for the

Chinese people? I would request all witnesses to respond.

Answer 3. Clearly, the Chinese Communist Party hopes to derive some measure

of domestic legitimacy, if not popular support, by providing economic benefits to

many of the Chinese people. However, it’s not clear whether the government can

indefinitely maintain its economic reform program—and even accelerate the reforms—without at some point having to tackle the more difficult question of political

reform and the monopoly of the Party on State power. Pressure is growing internally for a less corrupt, and more open and accountable system.

I think that pressure is likely to grow over time.

RESPONSES OF WILLIAM P. ALFORD TO QUESTIONS SUBMITTED BY SENATOR BOB

SMITH

Question 1. Last month, Assistant U.S. Trade Representative Joseph Papovich

stated that China is not doing enough to curb intellectual property rights. Furthermore, Papovich hinted at the unlikelihood of using the WTO dispute resolution system to remedy these unacceptable and illegal acts. The United States has been trying to work with China on the enforcement of this issue for several years to no

avail. Now, China has ascended to the WTO. Professor Feinerman, can you give me

your assessment of China’s ability to fulfill their obligations under WTO regulations,

pertaining to violations of U.S. intellectual property thefts?

Answer 1. At the risk of undue self-promotion, I would like to direct the Senator’s

attention to my book on this subject which is entitled ‘‘To Steal a Book is an Elegant

Offense: Intellectual Property Law in Chinese Civilization’’ (Stanford University

Press). Although the book was published in 1995, I think that its basic argument

about the factors impeding the development of greater respect for intellectual property rights still holds. The Senator may find my discussion of the links between enhanced respect for fundamental rights and for intellectual property rights of particular interest.

Question 2. I have been one of the Senate’s most outspoken critics of China’s deplorable human rights abuses, especially concerning the repression of Christians

and other religious groups who do not choose to worship in the ‘‘official’’ PRC State

churches. In December of 2000, I was deeply disturbed at the PRC sanctioned razing

of churches and other places of worship along the eastern coast. In fact, I wrote a

rather forthright letter to former Secretary of State Albright concerning this issue,

to which I never received a reply from the Clinton State Department. I would like

all the witnesses to give me their opinions on where do they see religious rights in

the PRC moving in the future, given the fact that PNTR and membership to the

WTO in theory was to curb Beijing’s crackdown and even loosen restrictions and

allow for more religious freedom.

Answer 2. I would certainly agree that the promotion of greater respect for religious freedom is a paramount concern. My own sense is that the forces drawing Chinese citizens in rapidly increasing numbers to religion—in particular, the quest for

meaning at a time of major social dislocation—are so powerful that they can not be

vanquished, even by the state. I think that for us the question is how to be most

effective in lending support for this fundamental freedom. I think that it is incumbent on the American government and American citizens to continue to speak out

on this issue and to make it known to Chinese authorities, publicly and privately,

that the practices your question describes are unacceptable in this day and age.

Question 3. In your opinion, is it plausible for China to remain a stridently ideologically communist driven state, keeping with its brutal repression and policies,

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while still being able to reap economic profits and higher living standards for the

Chinese people? I would request all witnesses to respond.

Answer 3. I would like to respond by suggesting modifications, if I might, to two

key assumptions in the Senator’s question. First, while it is certainly the case that

the Communist Party remains immensely powerful, I think it is no longer as ideologically committed as the Senator’s question implies, as we can see from the extent

to which corruption has entered its ranks. Second, while the overall standard of living in China certainly has improved quite significantly over the past two decades,

I think we need both to take statistics about economic growth with a healthy grain

of salt and to recognize that the gap between rich and poor in China has grown at

a very rapid rate in recent years. In short, the model the Senator is questioning is

already encountering serious problems, even on its own terms.

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