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HUMAN RIGHTS AND THE RULE OF LAW IN 

CHINA 

HEARING 

BEFORE THE

CONGRESSIONAL-EXECUTIVE 

COMMISSION ON CHINA 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

OCTOBER 7, 2009 

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

( 

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

CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA 

LEGISLATIVE BRANCH COMMISSIONERS 

Senate House 

BYRON DORGAN, North Dakota, Chairman 

MAX BAUCUS, Montana 

CARL LEVIN, Michigan 

DIANNE FEINSTEIN, California 

SHERROD BROWN, Ohio 

SAM BROWNBACK, Kansas 

BOB CORKER, Tennessee 

JOHN BARRASSO, Wyoming 

SANDER LEVIN, Michigan, Cochairman 

MARCY KAPTUR, Ohio 

MICHAEL M. HONDA, California 

TIMOTHY J. WALZ, Minnesota 

DAVID WU, Oregon 

CHRISTOPHER H. SMITH, New Jersey 

EDWARD R. ROYCE, California 

DONALD A. MANZULLO, Illinois 

JOSEPH R. PITTS, Pennsylvania 

EXECUTIVE BRANCH COMMISSIONERS 

Department of State, To Be Appointed 

Department of Labor, To Be Appointed 

Department of Commerce, To Be Appointed 

At-Large, To Be Appointed 

At-Large, To Be Appointed 

CHARLOTTE OLDHAM-MOORE, Staff Director 

DOUGLAS GROB, Cochairman’s Senior Staff Member 

(II) 

(III) 

CO N T E N T S 

Page 

Opening statement of Hon. Byron Dorgan, a U.S. Senator from North Dakota; 

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

Walz, Hon. Tim, a U.S. Representative from Minnesota; Member, Congressional-Executive Commission on China ............................................................. 4 

Smith, Hon. Christopher H., a U.S. Representative from New Jersey; Ranking 

Member, Congressional-Executive Commission on China ................................ 5 

Kamm, John, Founder and Chairman, Dui Hua Foundation .............................. 6 

Economy, Elizabeth C., C.V. Starr Senior Fellow and Director for Asia Studies, Council on Foreign Relations ....................................................................... 8 

Clarke, Donald C., Professor of Law, George Washington University ................ 10 

Bovingdon, Gardner, Assistant Professor, Indiana University, Bloomington .... 13 

Wu, Hon. David, a U.S. Representative from Oregon; Member, CongressionalExecutive Commission on China ........................................................................ 27 

APPENDIX 

PREPARED STATEMENTS

Kamm, John ............................................................................................................. 32 

Economy, Elizabeth C. ............................................................................................ 44 

Clarke, Donald C. .................................................................................................... 48 

Bovingdon, Gardner ................................................................................................. 57 

(1) 

HUMAN RIGHTS AND THE RULE OF LAW IN 

CHINA 

WEDNESDAY, OCTOBER 7, 2009 

CONGRESSIONAL-EXECUTIVE

COMMISSION ON CHINA, Washington, DC. 

The hearing was convened, pursuant to notice, at 2:04 p.m., in 

room 628, Dirksen Senate Office Building, Senator Byron Dorgan 

(Chairman of the Commission) presiding. 

Also present: Senator John Barrasso; Representatives Timothy J. 

Walz; Christopher H. Smith; Michael M. Honda; and David Wu. 

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

Chairman DORGAN. We’re going to call the hearing to order. This 

is a hearing of the Congressional-Executive Commission on China. 

The U.S. House is currently in the middle of a vote, but my colleagues from the House and Senate will join us. 

The Commission voted today on the adoption of its 2009 report 

to be released next week. The Commission issues a report each 

year, as many of you know, to the Congress and to the President 

on the subject of human rights conditions and the development of 

the rule of law in China. 

In connection with today’s vote, the Commissioners asked a distinguished group of witnesses to join us today to assess China’s 

efforts in the witnesses’ areas of expertise, whether it is environmental protection, criminal defense, or civil rights. We will also 

hear the perspectives of the witnesses on how the United States 

might best engage and incorporate human rights and the rule of 

law issues into its overall agenda with China. 

In its 2009 Annual Report, the Commission expresses deep concern about continued human rights abuses and stalled rule of law 

development. It notes with concern that some Chinese Government 

policies designed to address social unrest and to bolster the Party’s 

authority are resulting in a period of declining human rights for 

Chinese citizens. 

Serious abuses result in part from the absence of basic protections available to citizens through the legal system. 

A stable China with a robust commitment to the rule of law and 

human rights is in the national interest of the United States, and 

also very much in the interest of the people of China. 

In fact, I believe that advancing human rights concerns with 

China is more important now to the national interests of the 

2 

United States than ever before. The reporting of this Commission 

makes that crystal clear. Press censorship in China makes it possible for toxic food and public health crises to spread globally. 

Abuse of low-wage labor compromises goods that come to the 

United States, which have harmed American consumers, as well as 

an untold number of Chinese consumers, and these abuses are 

well-documented. 

The harassment of whistleblowers and human rights lawyers and 

the suppression of criticism and dissent remove internal checks 

against environmental damage that not only hurts ordinary Chinese citizens, but has a global impact as well. The shuttering of 

law firms that are perceived as challenging the government removes important avenues for justice for the poor and the most vulnerable. 

To maximize progress on food safety, product quality, even clean 

air, the Chinese Government must engage as allies environmental 

whistleblowers, a watchdog press, the NGOs, and human rights 

lawyers. They cannot continue to repress them as enemies of the 

state. 

I want to briefly mention one human rights lawyer who has had 

the courage and the tenacity to take on politically sensitive cases, 

and then as a result, has been branded an ‘‘enemy of the state.’’ 

I am talking about Gao Zhisheng, a pioneering Chinese human 

rights lawyer who went missing in February 2009. Gao represented 

some of China’s most vulnerable people. They included exploited 

coal miners, underground Christians, and Falun Gong members. 

He believed in the power of the law. He sought to use the law to 

battle corruption, to expose police abuses, and to defend religious 

freedom. 

I have written to the Chinese Government about Gao on a number of occasions and have met with his wife earlier this year here 

in Washington, DC. I understand that Mr. Kamm may have some 

information from the Chinese Embassy which it yesterday asked 

him to relay to me, and I look forward to hearing what you have 

to report, Mr. Kamm. 

China has also taken many potentially positive steps in recent 

years that must be noted. The government has enshrined in its 

Constitution the state’s responsibility to protect and promote 

human rights. China recently adopted new labor protections and 

relaxed restrictions on foreign journalists inside China. This year, 

the Chinese Government issued a national human rights action 

plan that uses the language of human rights to cast an ambitious 

program for promoting the rights of its citizens. The government 

now needs to translate words into action. It is one thing to write 

something down, another thing to represent it as having importance, yet it is quite another practice altogether to decide that you 

are going to abide by that which you have presented to the world. 

Let there be no doubt, I have enormous respect for the country 

of China. I respect the progress that China has made by lifting 

many people out of poverty. I admire its rich and remarkable culture and its immensely talented people. But I firmly believe that 

its people ought to be able to be free to speak their minds and to 

practice their chosen faiths without fear. Too often that is not now 

the case in China. 

3 

So to help us better understand human rights conditions and the 

development of the rule of law in China, we are going to hear from 

four witnesses. John Kamm is founder and chairman of the Dui 

Hua Foundation. He started his own chemical company with offices 

in Hong Kong and China in 1979. He served as the Hong Kong representative of the National Council for U.S.-China Trade from 1976 

to 1981. He was president of the American Chamber of Commerce 

in Hong Kong in 1990. He serves as a director of the National 

Committee on U.S.-China Relations. In 1999, he founded the Dua 

Hua Foundation. He also directs ongoing research for the Project 

in Human Rights Diplomacy at Stanford University’s Institute for 

International Studies. 

Mr. Kamm, we appreciate your being here today. You have a 

wealth of experience, and we are anxious to hear from you. 

Elizabeth Economy is a C.V. Starr Senior Fellow and Director for 

Asia Studies at the Council on Foreign Relations. She has taught 

at Columbia University, Johns Hopkins University’s Paul H. Nitze 

School of Advanced International Studies, and the University of 

Washington’s Jackson School of International Studies, and now 

serves on the board of the China-U.S. Center for Sustainable Development. Dr. Economy’s publications include ‘‘The River Runs 

Black: The Environmental Challenge to China’s Future,’’ ‘‘China 

Joins the World: Progress and Prospects,’’ and ‘‘The Internalization 

of Environmental Protection.’’ 

Dr. Economy, we are pleased that you are here as well. 

Donald Clarke is a Professor of Law at George Washington University Law School. He specializes in modern Chinese law, focusing 

particularly on corporate governance, Chinese legal institutions, 

and the legal issues presented by China’s economic reforms. He has 

practiced law at the New York firm of Paul, Weiss, Rivken, Wharton & Garrison. He has lived for extended periods of time in China. 

He is a member of the Academic Advisory Group to the U.S.- 

China Working Group of the U.S. Congress, and has served as a 

consultant to a number of organizations, including the Financial 

Sector Reform and Strengthening Initiative, which is called FIRST, 

the Asian Development Bank, and the Agency for International Development. 

Mr. Clarke, we are pleased you are here. 

Finally, Mr. Gardner Bovingdon, Assistant Professor at Indiana 

University in Bloomington. He has taught at Cornell, Yale, and 

Washington University in St. Louis. His research interests are politics in contemporary China, the history of modern China nationalism, and ethnic conflict. His book will be published by Columbia 

University in the spring of 2010, ‘‘Strangers In Their Own Land.’’ 

We welcome all of the witnesses today. 

Before I call on my colleagues, I want to take one moment to recognize another person in this room, and that is Mr. Fang. At the 

Commission’s June 4 hearing, Mr. Fang Zheng, who recently arrived from China, was confined to a wheelchair. He lost both of his 

legs when he was run over by a tank in Tiananmen Square in 

1989; an extraordinary, courageous citizen of China who, the last 

time he was with us, did not have legs. This evening at the Capitol, 

he will dance with his wife at a party in his honor. This is due to 

the generosity of a number of American good Samaritans who have 

4 

provided him with a new set of legs. We are so pleased you are 

here. Would you stand and be recognized? [Applause]. 

Mr. Fang, thank you very much. We use the word ‘‘courage’’ 

without always understanding exactly what it means, and the loss 

of your legs in 1989 in Tiananmen Square, exhibiting unbelievable 

courage in standing for the destiny of people being able to speak 

for themselves and act for themselves and choose their own destiny, that is courage. We appreciate your being here. 

Let me call on my colleagues. Congressman Walz? 

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

Representative WALZ. Well, thank you, Chairman Dorgan, for 

your leadership. 

Thank you to all of our panelists for being here. We truly appreciate this. The importance of getting together and the importance 

of this Commission I do not think can be over-stressed, and I, too, 

extend my welcome. 

Fang Zheng, thank you for being here. When you were here in 

June, my only disappointment was that we did not have as many 

people here or as many cameras to tell the story, and to tell the 

story to our young people of what happened. 

As we as a country develop our relationships with China, it is 

critically important that we develop them not just on the economic 

side of things, we develop them on the environmental side, on the 

moral side, the human rights side, and all of those together, trying 

to understand one another in a way that betters our societies for 

everyone. 

Yesterday, I had a unique opportunity to spend a little over an 

hour with His Holiness the Dalai Lama, and spoke extensively with 

him. When I asked the question about this Commission and the 

work that we are doing in here and the report that we publish, I 

said, ‘‘Is this helpful for furthering democratic principles and 

human rights principles? ’’ And he didn’t miss a beat and said: 

‘‘Very helpful. Keep doing your work. Keep doing the work and 

keep publicizing it.’’ He said, ‘‘Not just for us, not just for Tibet, 

but for China, for the People’s Republic of China, to further their 

growth to bring them into the community of nations fully and for 

us to understand one another.’’ 

So I am proud of the work we do in here. I think that the Chairman has summed it up. The group that met with the Dalai Lama 

is the China Working Group in the House, and their motto is, kind 

of, it is a group of people that aren’t panda-huggers or dragon-slayers, they’re folks that want to get this thing right in our relationship. I’m very proud of the work of this group of staying consistent 

with our principles on human rights, from trade, to the environment, to everything else. 

So with that, Chairman, I thank you again and I yield back. 

Chairman DORGAN. Thank you. 

Congressman Smith? 

5 

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

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

would ask that my full statement be made a part of the record, and 

I will be very brief. 

Chairman DORGAN. Without objection. 

Representative SMITH. Mr. Chairman, I am afraid that what we 

have seen in China is not the emergence of rule of law, but rule 

by law. All of China’s developing legal structures, regulatory institutions, and bureaucratic agencies do not amount to real law, since 

the Communist Party and the government are not subject to them. 

These structures are tools the Party and the government use to 

more effectively control people, people who want to worship freely, 

found families, live as Tibetans or Uyghurs, access the global Internet, bargain collectively, or choose their own government. 

Reviewing this Commission’s report, I was struck by both of 

these things in respect to one of the Chinese Government’s most 

neglected victims, women. With the coercive One-Child Policy, the 

Chinese Government itself intrudes in a deadly fashion into the 

private life of every Chinese woman, not numberless millions, but 

each woman with her own dignity, often distorted or destroyed by 

the government in ways we can hardly imagine. 

Few in the West, I believe, understand what a massive and cruel 

system of social control the One-Child-Per-Couple Policy entails, a 

system marked by mandatory monitoring of women’s reproductive 

cycles, mandatory contraceptions, mandatory birth permits, coercive fines for failure to comply, and in some cases, forced abortion 

and forced sterilization. 

Women who bear a child without a birth permit can be fined up 

to 10 times their annual income, that is both husband and wife, 

and those who cannot pay the fine can be forcibly aborted or their 

homes smashed in. Group punishments are often used to socially 

ostracize women who manage to bear a child without a permit. 

Their colleagues and neighbors are denied birth permits as well. If 

a pregnant woman goes into hiding, her relatives are jailed. 

In every country in the world the male suicide rate is higher 

than the female, except China, where the female suicide rate is 

three times higher than the male. The estimates are that there are 

some 500 women who commit suicide every day in the People’s Republic of China. This is to say nothing of gendercide, sex-selection 

abortion, to the point that in some provinces, for every 100 boys 

today, only 71 girls are born. Here, too, we see the dangerous development of rule by law, the development of inflated structures 

which continually elaborate rules and regulations of repression, 

and even shamelessly posting them on the Internet. 

Mr. Chairman, I do ask that the full statement be made a part 

of the record. I asked that already. Again, I want to thank you for 

having this hearing. I think it is very timely and important. 

Chairman DORGAN. Thank you very much, Congressman Smith. 

Mr. Kamm, thank you for being with us. You may proceed. Your 

entire statements will be made a part of the permanent record. 

[The prepared statement of Representative Smith appears in the 

appendix.] 

6 

STATEMENT OF JOHN KAMM, FOUNDER AND CHAIRMAN, DUI 

HUA FOUNDATION 

Mr. KAMM. Mr. Chairman and distinguished members of the 

Congressional-Executive Commission on China, it is good to be 

with you again. 

In 2008, more than 1,600 people were arrested for endangering 

state security in China. That is more than double the number in 

2007. Endangering state security is the most serious political crime 

in China, but it is by no means the only crime for which people are 

detained by China’s political police. There are probably more people 

in China imprisoned today for political crimes since the protests of 

1989, and in light of the disturbances that have rocked Xinjiang 

since July, the number of political prisoners is expected to rise 

again this year. 

Despite a relentless search for the names of those imprisoned, we 

know relatively few of them. The Chinese Government rarely discloses this information. When they do, or when NGOs get a hold 

of their names through other means, these names find their way 

onto prisoner lists submitted to the Chinese Government during 

the human rights dialogues that the Chinese Government holds 

with foreign governments. 

Prisoners who are on prisoner lists or whose names are raised 

in meetings with Chinese officials tend to be better treated and released from prison earlier than those whose names are not known 

and not raised. They must remain at the center of our human 

rights dialogue with China, another round of which is due to take 

place either before the end of the year or early next year. 

It is vitally important that the State Department submit a detailed, focused list of cases of concern well in advance of the next 

round of the dialogue. We should use cases to illustrate systemic 

issues, like reeducation through labor. Interestingly, and for reasons that are not clear, the number of people serving sentences in 

these camps appears to have dropped over the last year. 

Over the last 12 months, Dui Hua has obtained information from 

central and local governments on 60 individuals detained in political cases. In terms of the quantity and the quality of this information, it represents an improvement over previous years. Among 

other findings, Dui Hua estimates that there still are around 20 

people in prison for what they did on June 4, 1989. We urge the 

Chinese Government to release them. 

The effort to win the release of prisoners relies not just on the 

presentation of lists and the raising of names in meetings with 

Chinese officials. Over the last two years, Dui Hua has urged the 

Chinese Government to issue special pardons to long-serving prisoners—this is called for under China’s Constitution—to mark either the Olympic Games or the 60th anniversary of the People’s 

Republic of China. 

Now, the Standing Committee did not issue a special pardon, but 

over the last few days we have learned of some relatively largescale grants of clemency in the provinces to mark the 60th anniversary. It is not known at this point whether or not any political 

prisoners benefited from this clemency, but we have recently 

learned of several sentence reductions for political prisoners in August 2008 that were apparently linked to the Olympic Games. 

7 

In my testimony, I discussed the legal experts’ dialogue between 

the United States and China. Three sessions of this dialogue were 

held between late 2003 and mid-2005, and they focused on sentence 

reduction and parole for prisoners convicted of counterrevolution 

and endangering state security. It appears that these talks have 

led to a relaxation of the strict controls over sentence reduction and 

parole for these prisoners, but they are still discriminated against. 

The issue should be taken up again when the legal experts’ dialogue resumes. 

Eliminating discrimination against political prisoners represents 

one of the best ways to increase the number of releases. Although 

China removed the crime of counterrevolution from the criminal 

law in 1997, there are still as many as 100 counterrevolutionaries 

still in prison. This contradicts Article 15 of the International Covenant on Civil and Political Rights [ICCPR]. Urging China’s ratification of the ICCPR with as few reservations as possible should be 

a high priority of our human rights diplomacy with China. We 

should use our membership in the Human Rights Council to pursue this goal. 

There have been a few positive steps in the direction of greater 

transparency. I have already mentioned the willingness of local authorities to provide information on prisoners. In some provinces, 

courts have begun releasing verdicts. Foreigners can attend trials 

in China, but rarely are allowed to do so. 

The number of executions remains a state secret, but the recent 

admission that executed prisoners are the source of 65 percent of 

all organ transplants in China—and there were 10,000 transplants 

last year—is the first time that the Chinese Government has acknowledged that thousands of people are executed every year. 

I am going to move to the end of my oral statement here. I would 

say that reducing the use of the death penalty in China should also 

be an important goal of our human rights policy. 

I end my written statement by informing the Commission of recent developments in the area of juvenile justice. Building a comprehensive system of juvenile courts and ensuring protection of the 

rights of juveniles by passing a juvenile criminal procedure law are 

top priorities of China’s legal reformers. Dui Hua hosted a delegation of senior judges to study the U.S. system, and we have been 

invited to send a return delegation to China next year. We can 

learn from each other in certain areas, and it is important to find 

areas where we can cooperate. If we do, I suspect talking about 

those areas where we do not agree will be easier. 

I have enjoyed a close working relationship with this Commission 

since its establishment. I am very pleased that you invited me to 

testify again today. Thank you very much, and I look forward to 

your questions and comments. 

Chairman DORGAN. Mr. Kamm, could you just mention once 

again the numbers on organ transplants? You talked about, 65 percent, or 10,000? 

Mr. KAMM. Yes. On August 26, the Ministry of Health stated 

that prisoners contribute 65 percent of organs transplanted in 

China. There are 10,000 transplants a year. Now, a single prisoner, 

executed prisoner, might—and in fact often does—have more than 

one organ that is transplanted, so we cannot just use the 10,000 

8 

transplants and come up with 6,500 executions. We estimate that 

about 5,000 people will be executed in China this year. That marks 

a reduction; it is significant, but it is still 5,000. 

Chairman DORGAN. All right. Well, thank you for the amplification. 

Let me also say to you that you have been extraordinarily helpful 

to the Commission. 

Elizabeth Economy is—I have already introduced you—the top 

expert in the United States on environmental protection and climate change policies in China, so we are really pleased that you’ve 

joined us. You may proceed. 

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

STATEMENT OF ELIZABETH C. ECONOMY, C.V. STARR SENIOR 

FELLOW AND DIRECTOR FOR ASIA STUDIES, COUNCIL ON 

FOREIGN RELATIONS 

Ms. ECONOMY. Thank you very much, Senator Dorgan and members of the Commission. It is a real pleasure to be here and have 

the opportunity to discuss human rights and the rule of law in the 

context of the environmental situation in China. 

Let me just note the obvious, that China is facing an environmental crisis. Levels of air and water pollution, as well as land 

degradation, top world charts. Somewhat less obvious are the critical ways in which the environment affects human rights, the rule 

of law, and broader issues of governance, and the ways in which 

human rights and the rule of law affect the environment. So let me 

just tick off three of these. 

First, environmental pollution and degradation are having a profound impact on the economic and public health well-being of the 

Chinese people. The Minister of Environment, Zhou Shengxian, has 

said that environmental degradation and pollution costs the Chinese economy about 10 percent of its GDP annually. 

For farmers on the ground, this means that they don’t have clean 

water for their crops, or factory workers don’t have water to run 

their factories. Estimates are that by 2030 there will be between 

20 and 30 million environmental refugees within the country of 

China, largely because of land degradation, so people are losing 

their land, their homes, oftentimes because of desertification. 

The health of the Chinese people is very much at risk, and here 

the Ministry of Public Health has been very active recently in identifying the link between pollution and health. The Ministry of 

Water Resources says 700 million people drink contaminated 

water, water that has been contaminated with animal or human 

fecal matter, on a daily basis, and 190 million people drink water 

that is so polluted, that it is dangerous to their health. 

Recently, again, a study was done by the Ministry of Public 

Health that said there has been a rise in cancer in urban areas and 

in rural areas since 2005 of 19 and 23 percent, respectively. This, 

they attribute largely to pollution. 

Why the government cares about these issues is really not so 

much because of the environment or because of the health of the 

Chinese people, but because both of these issues contribute to social unrest. In 2006, again, the Ministry of Environment said there 

were 50,000 environmental protests in China in 2005. Some of 

9 

these are relatively small; a protest of 100 farmers blocking a road 

because the water is polluted and spoiling their crops; or it could 

be 30,000 people storming 12 chemical factories, as happened in 

Zhejiang Province, because they believed not only that the pollution 

from the factories was spoiling their crops but also a particularly 

high rate of spontaneous miscarriages was occurring among the 

young women in their villages. These protests often turned violent. 

Recently, there has also been a rise in urban environmental protests. I am happy to discuss that, if you are interested. 

The one way in which the two are related really is at a very personal level for the Chinese people. More broadly, of course, poor 

human rights, rule of law, and governance impede effective environmental protection. There is a lack of transparency in China. It 

is very difficult to get accurate data. 

We saw in advance of the Olympics that the city of Beijing was 

willing to simply move the air pollution monitoring equipment in 

order to get better readings and have more blue-sky days. This is 

a challenge when you’re trying to implement effective policy; you 

do not have accurate data, you cannot make the right policy decisions. Of course, poor accountability and corruption is rampant. 

About half of the funds that are targeted for environmental protection end up in projects and other areas that are completely unrelated to the issue. 

Finally, the topic here, rule of law. China’s premier environmental lawyer, Wang Cangfa, has said about 10 percent of China’s 

environmental regulations and laws are effectively enforced. As we 

look ahead toward the issue of global climate change, for example, 

this is a very important fact for us to bear in mind in terms of 

what kind of partner China will be, and what we are going to need 

to do to help China be a more responsible partner. 

On the positive side, I think the environment is really at the 

forefront of governance reform. The first NGO in China that was 

formally registered in 1994 was an environmental NGO, Friends of 

Nature. There are now over 3,000 formally registered NGOs in 

China, and groups probably doubling that number operate unregistered. They do everything from environmental education to protesting dams, mobilizing large-scale Internet campaigns, and 

launching lawsuits against factories on behalf of pollution victims. 

It is a very exciting and dynamic part of China’s civil society and 

of the environmental protection effort. 

In addition, over the past two years, China has adopted a system 

of specialized courts for the environment, with trained judges and 

some trained lawyers, to focus solely on environmental issues. Currently China has 3 of these environmental courts, with hopes to expand to 12 courts. The problem these environmental courts face 

right now is that apparently they do not have enough cases to try, 

which is hard to believe, but that is what they are saying. 

Still, it is important to bear in mind that environmental activists 

continue to get harassed and imprisoned. Tan Kai, Wu Lihong, Yu 

Xiaogang, and of course Dai Qing, are all very well-known activists 

who have faced house arrest, been imprisoned, or been harassed. 

There continues to be a very fine line, an often moving line, over 

what is acceptable in terms of pushing for change in China and 

10 

what is not. Again, I think the environment is very much at the 

forefront of this reform process. 

So, finally, for the United States why does it matter to us, in addition to our desire to promote human rights and good governance 

globally? It matters because China is now the largest contributor 

of the greenhouse gas, carbon dioxide; it is the largest polluter of 

the Pacific; the largest importer of illegally logged timber in the 

world; and generally, as its multinationals are going abroad into 

Southeast Asia, Latin America, and Africa, they are exporting 

many of what we would consider to be worst environmental practices, thereby having a very profound impact on the global environmental landscape. 

What can we do about it? We need to think very strategically 

about how we engage with China on this issue, and I think the environment is actually the perfect area to continue to promote rule 

of law and governance. This means thinking more broadly. We 

have many small-scale projects that deal with the rule of law and 

training of lawyers, led by groups such as the American Bar Association, the University of Vermont. 

I think we need to work together to have an environmental summit to bring together all of these groups that are engaged in these 

efforts and figure out what the best practices are, what works, and 

what does not work. It also means taking advantage of interests in 

China. There are model environmental cities. There is a Green 

Companies initiative with some Chinese companies that want to do 

the right thing. We should not be banging our heads against those 

in China that are not interested, we should be partnering with 

those who are. They do exist, and I think we need to spend more 

time identifying the most proactive partners. 

The last thing I would say is, I think there is a lot of interest 

in China now in the area of public health and good opportunities 

to work with China in this arena as well. 

Thank you. 

Chairman DORGAN. Thank you very much for your testimony. 

Finally, we will hear from Donald Clarke, and then Gardner 

Bovingdon. 

Mr. Clarke? 

[The prepared statement of Ms. Economy appears in the appendix.] 

STATEMENT OF DONALD C. CLARKE, PROFESSOR OF LAW, 

GEORGE WASHINGTON UNIVERSITY LAW SCHOOL 

Mr. CLARKE. Thank you. Mr. Chairman, distinguished Commission members, ladies and gentlemen, I am going to talk a bit about 

lawyers and the state in China. 

The relationship between lawyers and the state in China is quite 

complicated, but I think it is possible to reach a few big-picture 

conclusions, which I discuss in my testimony. The basic big-picture 

conclusion is that the environment for lawyers who get involved in 

cases or activities of any sensitivity—and it is important to remember this is not a large number—has, I think, distinctly worsened 

over the last several months. 

Since spring of 2008—I date my testimony from then because 

there is a good report by Human Rights Watch which deals with 

11 

developments up to that time—the central and local governments 

have taken a number of steps to discourage lawyers from challenging the state in any significant way: formal and informal measures to prevent lawyers from effectively representing parties 

involved in sensitive incidents, and then the de-licensing of particularly troublesome lawyers and firms, sometimes through active 

disbarment and sometimes simply through failure to renew their licenses at an annual renewal process. I have some examples in my 

testimony. 

One well-known example is that of the Yitong law firm, headed 

by activist lawyer Li Jinsong. They represented Hu Jia, the HIV/ 

AIDS activist. They represented Cheng Guangcheng, the wellknown blind ‘‘barefoot’’ lawyer. Yitong was also behind a move by 

some lawyers in the Beijing Lawyers Association to try to bring 

more democratic governance into that organization. 

In response to their efforts in that respect, Yitong’s license was 

suspended for six months. Originally Li Jinsong, the head of the 

firm, thought that would cause the firm to close down, but in fact 

the six-month period expired last month and they seem to have reopened. So what their future is, it is hard to tell. 

A very well-known example occurred in July: the closing of the 

Open Constitution Initiative run by Xu Zhiyong. Xu Zhiyong was 

then himself, at the end of July, detained and subsequently formally arrested on charges of tax evasion. He has been released 

pending trial. That case is still unfolding and is worth watching. 

The Beijing Lawyers Association case is quite interesting, and I 

have appended to my testimony three appendices which show in 

English some of the documents involved in that case. A group of 

lawyers issued a call for direct election of leaders, as well as some 

other reforms that would have the effect, they said, of taking power 

away from a small group of rich lawyers. 

The Beijing Lawyers Association’s leadership did not take this 

challenge lying down and issued really a rather nasty response, full 

of all kinds of very threatening language, with vocabulary straight 

from the Cultural Revolution, accusing them of ‘‘stirring up rumors,’’ of ‘‘rabble-rousing,’’ ‘‘inciting lawyers,’’ the old lines about 

‘‘lawyers who don’t understand the true situation being misled,’’ 

and all that stuff. Lawyers were urged to maintain a correct political orientation and to resist the blandishments of this minority. 

The lawyers did not back down, but they lost. Again, the leading 

law firm behind this, Yitong, was suspended for six months. 

Several well-known lawyers, again, were denied licensing when 

their annual inspection process came around. This includes lawyers 

such as Li Heping and Teng Biao. 

Then also, several authorities, state and quasi-state authorities 

such as bar associations at the central and local level, have issued 

rules. Again, we see a lot of these just in the last couple of years, 

this year and 2008, essentially requiring lawyers to report to local 

authorities and take instructions from them when they are involved in handling sensitive cases, sensitive cases being defined 

often as any case involving 10 or more plaintiffs, obviously cases 

involving state security, and sometimes cases involving land 

takings. 

12 

One thing that is difficult to know is what does all this mean and 

why is the government engaging in this continual harassment of 

lawyers? Does it mean that in fact lawyers can serve some valuable 

purpose for their clients? Does this mean that if you get a good 

lawyer in court, that you might actually get off, and therefore this 

is why the government is standing in the way of lawyers? 

I think that is probably not the explanation. I think the state’s 

concern is less with what lawyers do in court than what they do 

out of it. A very persistent concern of these regulations we see is 

the concern about publicity and other out-of-court ways in which 

lawyers can promote the interests of themselves, their cause, and 

their clients. So the clamping down on lawyers doesn’t necessarily 

mean they were being too effective as lawyers in courts, but I think 

it may mean they were being too effective as social activists who 

happened to be lawyers. 

Now, I was also asked, just moving away from lawyers, to say 

a few words about the relationship between economic crime and 

state security, particularly with respect to the Rio Tinto case. As 

Commission members I am sure are aware, there has been quite 

a bit of concern in the international community about the detention, and subsequent formal arrest, of Stern Hu, formally a PRC 

citizen, a naturalized Australian citizen, and Rio Tinto employee. 

He was first charged with espionage and theft of state secrets. 

These charges were later downgraded to charges of commercial 

bribery and theft of trade secrets. 

Then the question on everyone’s mind is, does this mean it is 

personally unsafe to do business in China? I do not have a solid 

answer to this question, again, and that is partly because we do 

not know the merits of the underlying charges. 

If Rio Tinto was a normal business, certainly it is always going 

to be engaged in trying to find out information related to its business. Maybe it did nothing that would be unlawful in any country, 

maybe it did something that would be unlawful in any country, and 

maybe it did something that may not be unlawful in most countries, but is unlawful in China. The Chinese authorities have not, 

to my knowledge, made the specific factual allegations behind the 

charges, so we do not know yet. Obviously if the case ends as obscurely as it began, then there will be good reason for concern. 

But since I can’t say much about the substance, I thought I 

might say a few words about the process. My conclusion here is 

that the case does not at this point indicate that conditions have 

deteriorated, although partly this is because there were already 

some problems beforehand. 

There is a long history in post-Mao China of criminalization of 

commercial disputes. The Rio Tinto case is certainly not the first. 

It is not surprising to read reports in local newspapers about the 

Public Security Bureau helping out a local company by detaining 

a business rival. Usually the detained person is ethnically Chinese. 

They may or may not be a Chinese citizen. 

I think they are particularly liable when they happen to have 

been former Chinese citizens. Detention of non-ethnic Chinese, in 

a kind of perverse reverse racism, seems to be rather rare, although not unheard of. What makes the Rio Tinto case unusual 

13 

then is not that a foreign businessman of Chinese ethnicity has 

been detained, but that the case has been so high-profile. 

There are a couple of other rather odd features about the case 

maybe that are worth noting. First of all, bribery prosecutions in 

China tend normally to focus on the recipient of the bribe, not upon 

the alleged bribe-giver. Second, given that the target of the allegations is really Rio Tinto—in substance, it is being alleged that Rio 

Tinto, the company, is behind this—then why have only individuals 

been targeted and not the company itself? 

I should note that the authorities seem to have been very careful 

to follow legal procedures. I checked the timeline of Stern Hu’s detention against the consular treaty between the People’s Republic 

of China and Australia and they seem to have given notification in 

accordance with the provisions of that agreement, although stretching them as long as they could, and I am not aware of any other 

procedural violations that have been claimed in matters such as 

giving notice of charges or providing access to counsel. 

One thing we do not know—or at least I do not know, in any 

case—is whether there has been any division within the Chinese 

Government on this case. It is possible that the security services 

need to show that they are indispensable by making periodic highprofile arrests, and then of course once the action has been taken 

it is very difficult for the government to back down, even if other 

agencies think it was a bad idea. 

Certainly it will be very difficult at this point for the government 

to say it was all a mistake, sorry about that, and drop the charges, 

but ultimately, unfortunately, not much can be said until the government presents its evidence publicly and we know the sentence 

imposed. Again, if we never see the evidence, which again may be 

possible, then it would be legitimate to draw unfavorable conclusions. 

Thank you very much. 

Chairman DORGAN. Mr. Clarke, thank you very much. 

Finally, Mr. Gardner Bovingdon. 

Mr. Bovingdon, you may proceed. 

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

STATEMENT OF GARDNER BOVINGDON, ASSISTANT 

PROFESSOR, INDIANA UNIVERSITY, BLOOMINGTON 

Mr. BOVINGDON. Mr. Chairman and distinguished members of 

the Congressional-Executive Commission on China, thank you very 

much for the opportunity to come here and speak today and participate in this very important event. 

I would like to begin by observing, as I do in my written testimony, that Beijing has long challenged the assertion that there are 

universal human rights. The mildest objection has been that different cultures define human values and rights differently and 

these differences need to be respected. This line was advanced in 

the 1993 Bangkok Declaration on Human Rights, to which Beijing 

was signatory. 

Some critics have more sharply denounced Americans’ criticisms 

of China’s human rights record as interference in China’s internal 

affairs. Chinese officials have long worried that foreign governments, including the U.S. Government, have invoked concern for 

14 

human rights in China as a cloak for attempts to bring about 

peaceful evolution, which is an older expression, or the newer color 

revolution, both euphemisms for regime change. 

Similarly, officials have worried, since at least the mid-1990s, 

that behind criticisms of human rights abuses in Tibet and 

Xinjiang lie plots to separate these territories from China. We do 

well to acknowledge these concerns, and therefore must take pains 

to avoid even the appearance of raising the matter of human rights 

to serve other strategic aims. 

When we speak of human rights we ought to focus, first and last, 

on ‘‘the conditions of human flourishing, on the dignity and the 

worth of the human person,’’ as the visionary Universal Declaration of Human Rights puts it, and not on scoring political points. 

I begin my remarks with these general points about the issue of 

human rights in China, despite the fact that I intend to speak specifically about Xinjiang and the condition of Uyghurs, because I 

have long found it remarkable how closely political events—and we 

might say political problems, including human rights problems—in 

Xinjiang track those in the country as a whole. 

To wit, despite the fact that Xinjiang is described officially as an 

autonomous region, its politics, its governance, and so forth very 

closely resemble those at the national level, leading one to ask 

quite seriously what degree of autonomy people in Xinjiang enjoy. 

This summer, on July 5, there was a major political event in 

Xinjiang. We unfortunately do not know enough to say for certain 

how the events unfolded, and I say more about this in my written 

remarks. I think it’s safe to say at this point, though, that they 

began with a political protest, a peaceful protest, connected with 

the mishandling, or perhaps the squelching, of information about 

an event in Shaoguang in Guangdong Province in the previous 

month when a factory brawl resulted in the death of 2 Uyghurs 

and the injuries of at least 100 more. 

At some point in the day, regular police and the People’s Armed 

Police intervened, and one of the major questions that remains is 

whether violence by protesters led to police intervention or whether, rather, police intervention provoked peaceful demonstrators into 

committing violence. 

As one might expect, the Chinese Government has argued that 

the police intervened after the violence to suppress it, and much of 

the Chinese official case about what happened and how to handle 

what happened on that day has rested on that contention. 

Outside observers—in particular, Uyghur organizations and 

human rights groups—have argued to the contrary, that the peaceful protests turned into a violent riot, or violent riots, only because 

of the police intervention. As I say, we do not have enough information about these events to decide one way or the other, and unfortunately I do not think we will anytime soon. 

I raise this event, despite the fact that there’s a whole year of 

events in Xinjiang to be considered, because I think it sort of signally indicates some of the problems with human rights that we 

have to be concerned about in this region. 

I would like to point out, first, that there are some small reasons 

to have hope about improvements in the human rights situation in 

the region, one example of which is the release of the Uyghur econVerDate Nov 24 2008 18:01 Mar 15, 2010 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 U:\DOCS\54371.TXT DEIDRE
15 

omist and Beijing professor, Ilham Tohti, who had been detained 

once previously in connection with his blog, and was detained again 

after the July 5 events on the suspicion, on the contention that he 

had helped organize the event. 

We have been charged with talking about how the United States 

can hopefully engage. Mr. Kamm has already pointed out that the 

United States has helped the plight of political prisoners and detainees by making it known that it is concerned, and in this case 

it is widely thought that the Obama Administration’s expression of 

concern led to Tohti’s release. 

Similarly, within only a few hours after the emergence of the 

events on July 5 this summer, Beijing made the happy decision to 

invite foreign reporters to Xinjiang to observe and inquire about 

what had taken place. I think this stands in marked and happy 

contrast to the media blackout that followed the Tibet protests of 

2008. It is to be celebrated, and one can hope that Beijing will take 

this step in future episodes, should they have them. 

On the other hand, there is plenty of discouraging news about 

the human rights situation in Xinjiang that we can glean from 

these events and their aftermath. First of all, within hours of receiving information that there were protests taking place in 

Urumqi, the government in Beijing decided to shut down Internet 

service, to curtail cell phone service, in particular, to close down 

the capacity to make international calls, and to close various textmessaging services. 

The expressed reason was that the government was worried that 

various malign perpetrators were using these means to circulate information about what was going on and to drum up participation. 

I think we can easily imagine other purposes. One reason that I 

think we are entitled to imagine that other purposes include a desire not to have information about these events get out from the 

region to other parts of the country and abroad, is that in that 

service, at least at major news sites and government sites, continues to be closed down. I checked this morning and confirmed 

that various sites in Xinjiang remain closed, and it’s hard to understand why they would remain closed all this time later if the principal or sole concern was to prevent further violence. 

Next, we would want to observe the wide and rather indiscriminate 

use of detention and arrests in response to these political protests. 

Mr. Kamm has already spoken about political prisoners. Unfortunately, as he mentioned, a substantial proportion of political prisoners in recent years have been Uyghur. 

Let me just hit some bullet points. 

As Professor Clarke was mentioning moments ago, lawyers have 

received pressure when they consider taking on cases with human 

rights implications. This has unfortunately been the case in 

Xinjiang, where lawyers have been instructed to exercise extreme 

caution taking on cases, and to submit to supervision from digital 

organs, the very clear aim being to prevent them or to discourage 

them from engaging cases with human rights implications in the 

aftermath of these events. 

I want to close, finally, by pointing out that there has always 

been a problem with how we understand human rights, a problem 

with policy implications. That is whether we think that they inhere 

16 

in individuals only or whether they also inhere in groups, because 

if they do inhere in groups then there are other issues we might 

want to raise, such as, for instance, those of political representation, 

how well and in what way Uyghurs’ political aims are represented 

in government and party organs, also the matter of language use, 

about which I can say more in the question period, and then finally 

the broader issue of cultural integrity. Once again, I thank you for 

the opportunity to speak and I welcome your questions. 

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

Chairman DORGAN. Mr. Bovingdon, thank you very much for 

your testimony. 

Mr. Kamm, as you know, the Commission maintains a database 

of political prisoners. In fact, I didn’t hold it up, but this is a printed copy of the Commission’s database of political prisoners. It’s 

pretty ominous when you think that each of these pages contains 

multiple names of prisoners, with dates. It is perhaps the best compilation in the world of this kind of information. It is very important to maintain. 

These individuals have been imprisoned for exercising civil and 

political rights under China’s Constitution and laws or under China’s international human rights obligations. 

You have provided information to us and been helpful to us with 

respect to this information. We have previously had discussions 

about Mr. Gao. Do you have any additional information about Mr. 

Gao? 

Mr. KAMM. Yes, Mr. Chairman. Before I convey that information 

to you, I would like to acknowledge and recognize the efforts you 

have made on behalf of Mr. Gao and his family. If he survives this 

ordeal, it will be, in my opinion, no small measure due to your relentless efforts on his behalf. So, thank you for that. 

You probably know, as other Commissioners know, that for 

almost 20 years now I have been engaged in a long-running conversation with the Chinese Government about their prisoners. I understand I am one of the few people that they regularly talk with 

about their prisoners and provide information on a regular basis. 

As I just mentioned in the testimony, we have received information 

on 60 different cases over the past year. 

One of the channels for this information—just one of the channels—is the Chinese Embassy. Yesterday, at one of my regular 

meetings with the Embassy, I was provided with the following information on Gao Zhisheng. I understand this is the first time the 

Chinese Government has provided information on his current situation. 

I was told that Mr. Gao was permitted to return to his home village in Shaanxi Province at the end of June to pay respects to his 

ancestors. As you may know, it is a traditional Chinese custom 

that, twice a year, you attend to the graves of your ancestors. So 

he was permitted to return to his home village at the end of June. 

The official went on to say that he has not been mistreated, he’s 

fine, and that he is not subject to what was termed ‘‘compulsory’’ 

legal measures. I am just relaying what was said. 

Now, apart from the Chinese Government, we do have one other 

bit of information about Mr. Gao, and it has been released by his 

17 

friend and lawyer Teng Biao on his blog, so it’s in the public record, 

although not necessarily easily accessible. Mr. Teng has reported 

on his blog that, in July, Mr. Gao was allowed to make a phone 

call to a relative. So what we can, I think, reasonably conclude 

from this is that, as of 10 weeks ago, Mr. Gao was alive. That’s the 

good news. 

Unfortunately, we still do not know his whereabouts. There is 

still a great deal of concern for his well-being, obviously. Finally, 

we have no idea on what basis he is being held. We are basically 

being told that he is not being held by legal means, which leads 

one to a conclusion that however he is being held is not legal. So 

that’s basically the information. It’s the first information we’ve had 

in many months of trying. 

I would just close very quickly by pointing out—and especially 

with Mr. Smith here I feel compelled to do so—Mr. Gao is by no 

means the only person who has been disappeared in China for a 

long period of time. This is the 12th anniversary of the disappearance of Bishop Su Zhimin. He has been disappeared for 12 years. 

He is the leader of the Catholic underground church in China. I 

certainly hope that this is not Mr. Gao’s fate, and that with your 

efforts he will be free long before that. 

Chairman DORGAN. Mr. Kamm, thank you very much for that 

answer. In some ways it is encouraging, because we don’t know the 

whereabouts of Mr. Gao, we don’t know what he is charged with. 

We do know that he was abducted from his home after his family 

escaped China. We do know that he has previously been incarcerated and tortured in China, and we also know that his behavior 

was the behavior of a lawyer who had a law office, doing professional work in support of people who needed the help of a lawyer, 

and for that he apparently has been once again incarcerated. 

Our intent obviously is to shine a light into the darkest cells in 

China to provide some hope to those who have been held and detained, in many cases for many years, and in some cases tortured 

for believing in basic human rights for all citizens of China. So I 

appreciate your comments. 

I would say to the Chinese Embassy here in the United States, 

the responses I have received from them about Mr. Gao are wholly 

unresponsive and unsatisfactory to me and to this Commission. We 

would hope that the Chinese Embassy and the Government of 

China would take seriously our concerns about Mr. Gao, and we 

hope for some additional information. But we thank you very much 

for providing the information you have provided to us today. 

Ms. Economy, we hear a lot these days, especially in the context 

of the debate over climate change in this country, that we had better hurry because the Chinese are moving very quickly toward a 

green economy. They will become the leaders of green jobs in a 

green economy, and all the new technology and so on if we do not 

rush very quickly. In fact, it may be too late already. You have 

heard all the dialogue, and so on. 

As I understand your testimony, you are saying China has 

passed over 100 environmental laws, hundreds of regulations, but 

the challenge is implementing them. Then I would also say, in the 

context of your answering me, you know that President Hu, in a 

speech at the U.N. Climate Change Summit, stated that China will 

18 

‘‘endeavor to cut carbon dioxide emissions per unit of GDP by a notable margin by 2020 from the 2005 level.’’ 

So tell me, you are the expert in our country about these issues. 

Tell me what is happening in China. Are they taking a lead? Is this 

serious? Are they on the level? What is going on? 

Ms. ECONOMY. Thank you very much for that excellent question. 

I think there are two things that are going on when we hear and 

read about China taking the lead in terms of transforming their 

country into a green economy, taking the lead globally. On the one 

hand there are many actors in the international community who 

like to encourage China by applauding them before they actually 

take action as a mechanism for encouraging them to then take the 

action. I think in many cases people get ahead of themselves. 

The international reaction to President Hu’s speech is the perfect 

example of that because reducing carbon emissions per unit of GDP 

is really nothing more than what they already have outlined in 

their Five-Year Plan. It’s nothing new. People mistook it also for 

cutting carbon emissions rather than cutting the growth in carbon 

emissions, two very different things. So I think it is important to 

look very closely at what President Hu has promised, and then 

again at the reality of the situation. 

I think the other thing that people often mistake is the fact that 

China is already a leader in manufacturing, for example, of photovoltaic cells. About 97 percent of the photovoltaic cells China produces is exported. So, yes, they are a leader in manufacturing. But 

they are not a leader in actual implementation. Furthermore, when 

you look at China’s implementation of environmental technologies 

writ large, putting aside what might be relevant to global climate 

change, there was a great MIT study that just came out last year 

on the implementation of China’s regulation in desulfurization 

technology for coal-fired powerplants. This technology limits SO2

and acid rain. They found, in the 85 powerplants that they surveyed, virtually none of them actually used the scrubbers that were 

there because they lower the efficiency of the powerplant making 

it more expensive to operate. 

Frankly speaking, we ought to be concerned about our competitiveness. We ought to be moving very quickly ahead on pursuing 

green technologies for our own economy, for our own jobs, for our 

own manufacturing center here in the United States. However, I do 

not think that we are going to be looking at China as a leader on 

the issue of global climate change anytime soon. 

Chairman DORGAN. I had read that the Chinese emit twice the 

amount of CO2 per ton of steel produced than the United States. 

Do you know whether that’s the case? 

Ms. ECONOMY. I would guess—I haven’t heard that precise figure, but in general, Chinese industries use between four and seven 

times more energy than those in the United States and Japan, so 

that seems like a perfectly reasonable assumption to make, although that is an area that they are targeting very heavily and the 

Japanese are helping them a lot, with improving the energy efficiency in their steel industry. 

Chairman DORGAN. Two other very brief questions and then I’m 

going to call on my colleagues and that will end my questioning. 

19 

The increase in arrests last year, 2008. Could at least a portion 

of that be attributed to the Olympics? Can anyone answer that? 

Mr. KAMM. Certainly there were detentions and arrests around 

the time of the Olympics, but I really think last year the main reason was the disturbances in Tibet. A great many people were detained and formally arrested, charged, and tried. So you would see 

those in the 2008 numbers. And in Xinjiang. Very interestingly, in 

November, an official in Xinjiang gave some numbers for the number of people arrested in endangering state security cases in 

Xinjiang, and it was a very big number. 

Chairman DORGAN. I thought I had heard that endangering state 

security was some of the general charges of people they rounded up 

during the Olympics because they didn’t want them around when 

a bunch of visitors showed up. 

Mr. KAMM. Yes. And petitioners as well. You see, what they’ve 

done—without going into a lot of detail—they’ve restricted the use 

of ‘‘endangering state security’’ to the most serious political crimes, 

but then you have the whole area of ‘‘disturbing the social order.’’ 

So, for instance, Falun Gong. Most Falun Gong practitioners are 

charged with disturbing the social order. In the old days before 

they took counterrevolution out of the criminal law, Falun Gong 

would have been considered a counterrevolutionary group. 

Chairman DORGAN. All right. 

And finally, Mr. Clarke, are those who are in law schools, do you 

think, in China and on the road to becoming lawyers, are they observant of what is happening to lawyers like Mr. Gao who have 

their law firms shut down and their licenses suspended and thrown 

in prison? Does that have a substantial chilling effect, despite what 

they’re being taught in law school about guarantees for prisoners 

and so on? Tell me, what are the consequences of that with those 

that are being trained in the law? 

Mr. CLARKE. I have to plead a little bit of ignorance on that. I 

don’t have a really solid answer to that. My guess would be that 

there is a group of law students who are of course quite idealistic, 

as there are in any country. But I think it would be a mistake to 

think that the vast majority of law students are idealistic and are 

looking at this kind of thing, or even particularly worried about it. 

I think a lot of people’s ambition is to try to have a good life for 

themselves and to get along. 

If I could just supplement a bit what John just mentioned. One 

of the differences also between locking people up under the rubric 

of endangering state security and doing it under this general rubric 

of disrupting social order is that a completely different procedure 

applies. Endangering state security is a criminal charge. If the 

issue is people such as Falun Gong adherents, if you can say it’s 

something like disturbing social order, then you get to use the extremely elastic and forgiving rules of reeducation through labor, 

which is an utterly different procedure and really has very little realistic chance of an appeal. 

Chairman DORGAN. All right. 

Congressman Walz? 

Representative WALZ. Thank you, Mr. Chairman. Again, thank 

you all for your continued work. Just a couple of questions. 

20 

Mr. Kamm, we were talking on the prisoner list, and I appreciate 

your work on this. You mentioned in there how to get that more 

refined, focused, and better. Are we doing it right or is there something else you’d rather see? How do we make this list even better? 

In addition to trying to capture everyone, how do we make it better, in your mind? 

Mr. KAMM. Well, again, I would look at systemic issues and then 

raise cases. Now, Congressman Smith just talked about forced 

abortions and sterilization. Where women are in prison or in RTL, 

reeducation through labor, for violating birth control policies we 

can explore a systemic issue by raising cases. There’s an expression 

in Chinese, yi an shuo fa, which means speak about the law by referring to cases. I use it all the time when I speak to the Chinese. 

That’s one example. 

I just mentioned reeducation through labor. So when we talk 

about the systemic issue of reeducation through labor, we ask 

about a dozen or two dozen examples. So this is a way of tying 

cases to systemic issues. Often I and others are criticized as being 

focused on individual cases and not talking about systemic issues. 

One way to get around that is to use cases to illustrate systemic 

issues. 

Another very good example is the death penalty, but in those 

cases, of course, I’m afraid it’s usually too late to raise the prisoner’s name. But last year there was an unusual case that enabled 

the outside world to actually have a look at how capital punishment is carried out in China, and last year we had one such case, 

a man who, for endangering state security, was executed. 

He was the father-in-law of an American citizen and the daughters were EU citizens. It was quite a case. But because of his children’s brave actions, we were actually able to track that case right 

through the process of the man’s arrest, trial, appeal, review, and 

finally execution itself, and we learned a lot. So that is what I 

would do a little different than we’re doing now. 

The other thing, if I may, very quickly, more and more, Dua 

Hua’s lists are focused on provinces, that is, we take a province 

and we build a list of 15 or 20 names in that province. That, too, 

is a good way to go forward. There is considerable differentiation 

in how prisoners are handled at the provincial level in China. The 

regulations on sentence reduction and parole differ from province 

to province, so again, what we’ve been doing is getting information 

from provinces. Over the last year, I think we received information 

from seven different provinces. 

Representative WALZ. Well, I appreciate it. 

Let me segue a little bit to you, Mr. Bovingdon, as a teacher and 

someone who did some work in genocide studies, your excellent 

preparatory set on human rights and this issue of group rights and 

teaching of the universal declaration, as we’re required to do. 

My question is just an observation from you of what you’ve seen. 

Being in Tibet and in Urumqi in the 1990s—I was in Urumqi six, 

seven years ago—how different is it today, in your opinion? What 

I saw was not just modernization. I saw the cultural shift, or the 

culturacide, if you may, in both places. Would you say that that’s 

coming to a peak? Is that the realization of what’s happening 

amongst Uyghurs and amongst the folks in Urumqi? 

21 

Mr. BOVINGDON. It’s an excellent question. It’s also hard for me 

to answer, and I’ll explain why. First of all, I wasn’t there when 

you were in the 1990s. I first went to Urumqi in 1994. I have never 

been to Tibet, although I have many colleagues who have. 

I can certainly say that in the time that I was able to visit that 

region, I observed dramatic change. The most obvious, if one came 

in on a helicopter, for instance, would be the architectural change 

of the city. Enormous districts with old-style Uyghur buildings 

were simply razed to the ground and replaced with highrises and 

modern apartments, much more expensive than their predecessors. 

Old, small shops were replaced with large, modern-style shopping 

malls. I think the economic and cultural implications of these architectural changes are clear. 

Another thing that many observers have pointed out is that the 

demographics of Xinjiang have changed dramatically. In 1949, 

about three-quarters of the population was people we now know as 

Uyghur, and today, officially they number about 43 percent, although the figure is probably lower than that. There are some reliable demographers who suggest that the Han population in 

Xinjiang is now over 50 percent. It is unambiguous, the Han population in Urumqi and other large cities is very substantial. Urumqi 

is over 75 percent Han at this point. 

Representative WALZ. Yes. 

Mr. BOVINGDON. So these are two of the most conspicuous 

changes one can see. 

Representative WALZ. That pattern is very similar to what happened in Lhasa. Very similar. Okay. 

A couple of questions, Dr. Economy. I appreciate your work on 

this, this issue of environmentalism and trying to bring China in, 

as I said, as we all try and work together. We have all seen the 

nightmares. I’ve been to the electronic dump sites in Guangdong 

Province. But we are culpable in that. Our culpability is very high 

in that, this issue of this interconnectedness as we deal with climate change, as we deal with ecosystem degradation. 

I had the chance last night—I was speaking—it was Klaus 

Schwab and his folks from the World Economic Forum. Is that the 

right forum to get this done? Is that the right way to carrot and 

stick at the same time, as they’re starting to bring in their 85 or 

so different issues, much of it focusing on climate as it comes together with economic development? Do you think that is a way to 

go to get this, other than you won’t dump computers even though 

they’re our computers and we don’t want to dump them here, type 

of thing? 

Ms. ECONOMY. Just to clarify, your question is whether the 

World Economic Forum and their effort—— 

Representative WALZ. Yes. Do you think that is the right forum 

to effect positive change, in your mind as you see this? 

Ms. ECONOMY. Since I’m part of the China Council for the World 

Economic Forum. 

Representative WALZ. Which I did not know, so it wasn’t 

planned. 

Ms. ECONOMY. So there you go. I would like to say yes, yes, indeed. 

Representative WALZ. Okay. 

22 

Ms. ECONOMY. I think it’s a good way to move forward. I think 

the challenge for the World Economic Forum, and in general, 

again, is in moving from what are really good discussions with 

really smart people to actually getting things done. The advantage 

of the World Economic Forum is that you not only have thinkers 

but you also have many companies involved, many great corporations. 

Representative WALZ. Is it your experience the Chinese are less 

resistant when it comes from that forum? 

Ms. ECONOMY. Certainly, because they are lauded at every turn. 

I was just in Dalian for the meeting of the World Economic Forum 

and it was really a grand celebration of China. So I think they are 

very warm and welcoming for the World Economic Forum and the 

way that the World Economic Forum couches its messages. Yes. 

Representative WALZ. Well, I appreciate that. 

I yield back, Mr. Chairman. Thank you. 

Chairman DORGAN. Thank you very much. 

Congressman Smith? 

Representative SMITH. Thank you, Mr. Chairman. 

Let me, first of all, Mr. Kamm, thank you for your tremendous, 

extraordinary work on behalf of prisoners. I think your answer to 

Mr. Walz was a very fine way of setting up how we ought to be 

talking about prisoners, and doing it thematically. You talked 

about a thousand prisoners, and you’ve gotten responses for about 

half of those, over half. That is a remarkable record. Congressman 

Wolf and I, actually right before the Olympics, brought the Commission’s list of prisoners with us to China. We haven’t gotten word 

back on a single prisoner and it is not for trying. 

You mentioned Bishop Su of Hebei Province. I actually met with 

him in the early 1990s and he celebrated mass in a very small 

apartment, only to be recaptured, reincarcerated, re-, we think, tortured, because there were some sightings of him with puffed up 

cheeks and very significant harm having been done to him. 

I raise Bishop Su’s case every time I have a meeting with any 

Chinese leader and they either ignore it or say they’ll get back and 

they never get back. So we don’t know if he’s dead or alive. But 

it’s emblematic, I think, and symbolic, if you will, of just how much 

they have tried—they being the Beijing dictatorship—to crush religious belief outside of the patriot church, outside of the officially 

recognized churches. 

This man was perhaps the kindest, gentlest man I have ever 

met. His eyes were crystal clear. He had no animosity whatsoever 

toward the Chinese. He had already spent decades in the prison 

camps, and he told me how he prayed for those who were following 

the dictates of the Scriptures, for those who maltreated him, and 

prayed for his people. It was moving. Yet, they severely mistreat 

this man. So, thank you for raising his name again at this hearing, 

and for the tremendous work you do on political prisoners. 

You mentioned the signing of the International Covenant for 

Civil and Political Rights. It seems every time a Chinese leader 

makes his way to Washington, there’s a new buzz about how, when 

they signed it, or they were going to sign it, then they signed it, 

and no ratification. We’ll probably hear about a potential ratificaVerDate Nov 24 2008 18:01 Mar 15, 2010 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 U:\DOCS\54371.TXT DEIDRE
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tion next time somebody comes to the United States. They seem to 

be gaming us, and we keep taking the bait. 

I am worried—and if any of you would want to touch on this— 

has our super-reliance on the Chinese buying our debt either silenced or muted our voice on human rights? It seems to me that 

when Mrs. Clinton—and I say this with all due respect to the Secretary of State—en route to China, said we will not allow human 

rights to ‘‘interfere with global climate change,’’ which I am very 

concerned about, and other issues, the debt being another one, it 

is as if it was put, not in the back of the bus, but off of the bus. 

They take their cues, I think, from how we regard it. So, our reliance on debt, what is that doing to our dialogue in human rights? 

Second, and Mr. Clarke, you might want to speak to this as well, 

or any of our distinguished panelists, I remember when Rebiya 

Kadeer first came out, and she, like Wei Jingsheng and others, 

couldn’t be more emphatic that forced abortion is one of the cruelest crimes against women imaginable, and both of those individuals were shocked that we never talked about it here, except in a 

very limited set of circumstances. It wasn’t like it was a mainstream human rights abuse. They thought that we all knew about 

it and were very well-versed in it, and so many Members of Congress, frankly, are not. 

If a woman in China gets pregnant without having secured permission from the state and is ordered to abort her child against her 

will, does she have any legal remedies available to her, and have 

any of our U.S. lawyers or the dialogues, the programs we participate in, explored ways of legally assisting a woman who is in that 

situation, to say we’re here to be your advocate? The United Nations has dropped the ball. 

All of the expert bodies have yet to take up, including the 

Human Rights Council, these crimes against women and against 

children. It seems to me that in our dialoguing with lawyers, we 

know about Chen Guangcheng and the price he’s paid, but it seems 

to me it would be a great place, an entry for saying, let’s take up 

these cases. If a woman is willing to stand up and say I want this 

child not to be killed, we should stand with her. 

Then finally, on the whole issue of the prisoners you mentioned, 

Mr. Kamm, who were executed to get their organs, 65 percent of 

the organ transplants being derived from there, I had a hearing in 

May 1997 on the very issue. Harry Wu actually brought in a man 

who had documentation that was very significant that showed that 

prisoners were being shot, but not killed. Ambulances were waiting—and he had pictures of all of this and it seemed very credible—in order to take their organs. 

The Chinese Government said it was a lie, it was misinformation. Now they’re willing to say at least 65 percent of those organ 

transplants are derived from prisoners. Why the change? Do they 

feel that the atmosphere has so changed and nobody cares? What 

would be your reason? I mean, that hearing to me—the man who 

gave the testimony, we did it behind a screen so there wouldn’t be 

retaliation. I mean, it was very cloak-and-daggerish, if you will, to 

protect his identity. Harry Wu, again, was the one who helped get 

him out. The Chinese Government said no way, and now they’re 

24 

admitting it. If you could give any thoughts on that. Did you want 

to touch on that? 

Representative WALZ. If I may, this is an interesting point. When 

I was living in China in 1989, I had a friend who was a physician 

and was trying to secure permission. He asked if I would like to 

go to one of these executions. I’m not quite sure why he assumed 

that I would participate in that. But it was absolutely no secret 

whatsoever. At that time it was happening he was doing kidney 

transplants, and he thought nothing of it. This was a good man, 

but the system was so prevalent, as my colleague is saying, that 

it was common knowledge. So I’m very interested in this, too. 

What’s changed in, now, something that all of us knew was there, 

and now they’re willing to say, yes, it’s happening? 

Mr. KAMM. It’s a fascinating development, and I wish I knew 

why. But it’s quite a striking admission after years and years of 

denying it was going on. As I say, the number of executions is a 

closely guarded state secret, on a level with the number of nuclear 

warheads. It’s a very serious top secret. 

So when you make this kind of a statement, you are all but admitting that thousands of people are being executed every year, 

which is what the human rights groups have been saying for a long 

time. Why make this admission? I wish I could tell you. Why do 

they tell me about prisoners? I’m always asked about that. Why 

yesterday, finally, after eight months, do they reveal something of 

importance and interest? I really don’t know. It’s just, I guess, 

something I’ve been doing for so long, that that’s what I do and 

they interact with me in that way. 

If we can be hopeful, the greater the transparency, the faster 

that human rights reform will come. The Chinese philosopher Confucius, over 2,000 years ago, spoke about the need for transparency 

in government. It’s a longstanding traditional Chinese virtue in the 

area of governance. 

I hope we’re going to see bigger steps in the direction of greater 

transparency. And if there is one thing we can do in our work with 

China, whether it’s the human rights dialogue or the legal experts’ 

dialogue, or any other dialogue, the number-one priority should be 

to promote transparency, because when the Chinese people themselves see things, they themselves will be tempted to move in the 

direction of reform. So, transparency, number one. 

Chairman DORGAN. I want to allow Mr. Honda to ask a question 

as soon as you are done, Mr. Smith. 

Representative SMITH. If you could, on the training up of lawyers 

to help women who would like to fight to preserve the life of the 

child within them. 

Mr. CLARKE. Sure. I can say a few words about that. Forced 

abortions, technically under Chinese law, are not permitted. I 

mean, if it were forced, it would count as an assault under the 

Criminal Law of the People’s Republic of China. 

However, as a practical matter, there aren’t really any legal remedies. So a court could not step in, a court would not step in in 

these cases, I think. This is precisely the sort of thing that got 

Cheng Guangcheng into trouble. Part of the reason is that local officials are graded very strictly on the number of extra-quota births 

in their district. Nobody wants to know why there were extra-quota 

25 

births. The point is, if there are any, that implicates what is called 

the ‘‘one-vote veto.’’ No matter what else they might have done in 

their district, if they have out-of-quota births, I believe that that 

prevents them from advancing further. But perhaps any of the 

other panel members who know the system for grading Chinese officials a little more intimately than I do can speak to that. 

I do want to address your first question, even though I’m not an 

expert on international finance. For that question, do we in fact 

rely on China to buy our debt, I think you really need expert testimony. But here’s what I think an expert on international finance 

would say, since I’ve done some reading on this. 

That is, of course you have to be nice to your banker, but only 

if two conditions apply, which are: (A) your banker has many 

choices about to whom to lend; and (B) you have no choices about 

from whom to borrow. I don’t think either of those conditions actually hold. China really doesn’t have a choice except to lend us this 

money. They will be able to choose not to buy U.S. debt at the 

same time they choose not to run a large bilateral trade surplus 

with the United States. So China really doesn’t have any choice. 

There’s no other place for those dollars to go. 

Second, with the U.S. savings rate rising as it is, the deficit does 

not need to be funded by the Chinese, it can be funded domestically. So those are my very brief, inexpert answers. But I do not 

think that we in any sense need to be nice to China because otherwise they will stop buying our debt, because I don’t think they’re 

in a position to choose simply to say, we’re going to stop buying 

American debt. 

Representative SMITH. Thank you. 

Chairman DORGAN. Congressman Honda? 

Representative HONDA. Thank you, Mr. Chairman. I appreciate 

the experts here. 

Mr. Chairman, if I just may ask my questions. I have to go and 

defend my bill in five minutes. Then I’ll get my answer through the 

transcripts and I’ll chat with my colleagues also. 

But a couple of questions, and they’re related. Yesterday I had 

an opportunity to chat with the Dalai Lama. I think in prior CECC 

meetings we spoke of Tibet, the Dalai Lama, and the PRC Government, and the friction that exists between the government and the 

movement that the Dalai Lama is the head of. 

It seems to me that when I met with the embassy folks from the 

PRC, the final conclusion I came to was that they’re more afraid 

of the Dalai Lama’s area of religious influence that he has, which 

appears to be about a fifth of China’s land mass rather than just 

Tibet itself. I was wondering how one can be effective in promoting 

some access or some process of confidence building and trust building between the two parties. That’s my first question. 

The other is, we’ve had pretty important recent opportunities to 

partner with the PRC on renewable energy technology where Commerce Secretary Locke and Energy Secretary Chu went to China 

and came back with a potential agreement, being able to establish 

a Memorandum of Understanding in developing technologies together, solving some of the thorny problems of global warming, but 

solving in a way where we will be working together with them, deVerDate Nov 24 2008 18:01 Mar 15, 2010 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 U:\DOCS\54371.TXT DEIDRE
26 

veloping technologies and sharing the intellectual property rather 

than protecting and fighting with each other. 

Do you see this process as a model where we can start to look 

at developing not only trust, but a better working relationship? Because I suspect that they also do not trust us in terms of some of 

the things that we criticize them for. We were the first to be polluters, and now they’re catching up, for the very same reason: the 

thirst for energy. We have green technology. They need it, and we 

need to share that. The dynamics aren’t simple, but I suspect that 

we’re capable of solving it if we put our minds to it. 

So I was hoping that maybe you might be able to comment on 

some ideas or thoughts that you may have had relative to this, 

building this mechanism with trust that will permeate in other 

areas of both societies. I’ll read my answers in the transcripts. 

Thank you. 

Mr. BOVINGDON. Representative Honda, thank you very much for 

those interesting questions. I will attempt to address the first one 

about Tibet. I’m afraid it’s hard to be very optimistic that the 

United States might somehow encourage China to engage with the 

Dalai Lama and the Tibetan government-in-exile in a more extensive and positive way, for the following reason: though the Dalai 

Lama announced in Strasbourg in 1988 that he no longer advocated independence for Tibet, and he has for years called merely 

for full autonomy or a substantial degree of autonomy, Chinese 

Government officials, including, if I’m not mistaken, Li Zhaoxing, 

a few years ago, have continued to accuse him of being a separatist. In fact, they’ve said that there has never been a day when 

he hasn’t been working to split Tibet from China. 

Furthermore, while the Dalai Lama or his agents have met with 

various officials in the Chinese Government, neither the government nor any particular Chinese official has ever acknowledged 

that they were meeting with him as a representative of the government. They’ve always said that they were meeting with him as an 

individual or with his representatives, the very clear point being to 

prevent anyone from drawing the conclusion that Beijing recognizes him or the Tibetan government-in-exile as a legitimate political organization, as a legitimate interlocutor in a discourse that 

might take place about events inside Tibet. 

I don’t, to be honest, see any way of getting Beijing either to 

credit the Dalai Lama with walking back a great distance from his 

original political formulations before 1988, or getting Beijing to recognize that there is a legitimate conversation partner outside 

China to be speaking about events in Tibet. 

One further point that I would make. Representative Honda, I 

think, accurately suggested that the Dalai Lama has very wide political influence. One thing that was conspicuous last year was that 

the March 2008 events were not confined to Tibet. They began 

there, but they spread to regions that a specialist on Tibet described as ethnographic Tibet, including parts of Sichuan and 

Hunan Provinces and Xinghai County. 

This was, in fact, surprising to me and other observers who have 

long focused on the politics of non-Han areas, areas where nonHans predominate, because it suggested on the one hand a level of 

political bravery in the face of almost certain retaliation, and on 

27 

the other hand, a wider catchment of political influence and concern about the fate of Tibetans than we might have anticipated before. 

So to make one final point about the Dalai Lama, when he, as 

he often does, argues that he attempts to speak or he attempts to 

represent not only Tibetans in Tibet, but Tibetans in all of ethnographic Tibet, I think he makes an important point that should be 

recognized. Unfortunately, I think there is very little percentage, 

for reasons I’ve already mentioned, in trying to get Beijing to recognize that ethnographic Tibet is a meaningful political area as a 

whole. I’ll stop my comments there. 

Ms. ECONOMY. Very briefly, to Representative Honda’s point 

about the potential for cooperation on renewable energies between 

the United States and China, and indeed not only the most recent 

venture with Secretary Locke and Secretary Chu establishing a $15 

million joint energy research center, but also the work that was 

done by Secretary Paulson previously within the Strategic Economic Dialogue to develop joint projects, such as electric cars. 

They’re all very important, and I hope that some of them actually move forward to fruition. I think there’s a great challenge in 

establishing these joint projects and then actually seeing them 

come to be. I think it would be worthwhile to look already at what 

we have set in motion and see how it’s progressing. I would make 

one further point; that $15 million in an area that is going to need 

billions of dollars of technology investment is really a drop in the 

bucket. But, of course, any step forward is a step forward. 

Just one small point on Representative Smith’s point about the 

debt. I think Don is absolutely right in the technicalities of how the 

debt works and the Chinese don’t have any other sort of option 

right now. That doesn’t mean that the Chinese don’t perceive it as 

a source of leverage. 

In virtually every discussion that I have with Chinese officials 

these days, the first thing out of their mouth is, that ‘‘We are your 

banker, in essence, and the Chinese people are depending on you 

to secure our investment,’’ and so on. So I think that there is something to it. 

I would hazard a guess that it’s not that the administration is 

trading the debt issue, per se, for human rights, but rather that 

they perceive a very broad range of issues on which we need to cooperate with China, from trade and IPR [intellectual property 

rights], to proliferation, North Korea, et cetera, and that human 

rights is one among these issues and that they don’t want to grant 

it super status. But maybe the point is being missed that in many 

respects these issues of rule of law and human rights and good governance are fundamental to almost any of those issues and to our 

successful cooperation. 

Chairman DORGAN. Mr. Wu, you are recognized for your questions. 

STATEMENT OF HON. DAVID WU, A U.S. REPRESENTATIVE 

FROM OREGON; MEMBER, CONGRESSIONAL-EXECUTIVE 

COMMISSION ON CHINA 

Representative WU. Thank you very much, Mr. Chairman. 

28 

I want to apologize to the panel. I am supposed to be in a markup, 

and theoretically I’m there right now. But Members of Congress 

being who they are, I think the chatting will continue for a while. 

I just want to make a couple of remarks, and perhaps to the extent 

necessary or appropriate, perhaps the panel wants to comment. 

I want to recognize Mr. Kamm’s longstanding good work with 

which I was familiar before I came to Congress. Professor Clarke 

has been helpful to my office in some of the work we’ve been trying 

to do to recognize the century mark for some of the law schools in 

China, which, over the long haul, hopefully will be very helpful to 

the development of the rule of law in a very large country. That 

is actually an idea which I carried away from the last Commission 

hearing. 

But, first, one comment from decades ago. In the early 1980s, I 

went to China. I was with some relatives. One of them said, ‘‘I bet 

you had an easy time at the border this go-round.’’ I said, ‘‘Well, 

what makes you say that? Because I did have a relatively light and 

easy time at the border.’’ He said, ‘‘Well, the official situation between our governments is a little bit testy right now, so what our 

government does is it tells the border guards to be nice at a time 

when the official situation is a little bit tougher.’’ I don’t know if 

it’s that formal, but at least that is the domestic Chinese perception of, if you will, the Ying and the Yang of this relationship. 

Since, among other things, our head of state chose not to meet 

with the Dalai Lama this time, and perceives multiple interests on 

the plate. I think that the work of this Commission and the testimony from the panelists is especially important at a time like this 

to make sure that we reinforce that what I view as universal 

human values have a constancy of concern and are the bedrock of 

a stable relationship in the long term so that those issues never fall 

off the table. 

As a second item that I just want to mention, I think I was the 

first person who handed a letter of condolence to the PRC Ambassador here in Washington about the Sichuan earthquakes. It was 

the morning that we heard about the earthquakes. I had a prior 

scheduled meeting with the Ambassador and I knew that it was a 

bad situation and I wanted to express my concern and condolences 

right away. 

I am sincerely concerned about natural disasters that occur anywhere in the world, but there are some places where we feel a special connection. I was concerned then, and I’m concerned now. I am 

especially concerned that some of the folks who have asked for answers as to why school buildings seemed to have collapsed at a 

much higher rate than other public buildings, that some of these 

folks have been harassed and a couple of have been arrested and 

tried. 

I am in the process of preparing a House resolution asking for 

a careful review of the cases of Mr. Huang Qi and Mr. Tan Zuoren 

to accord them the rights that they have under the applicable sections of the Chinese Constitution, because it appears that by advocating for the parents of kids who were killed in the earthquake, 

they have somehow been caught up in their government’s web of 

concern about state secrets and subversion. At least to this observer, 

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29 

sistent with the Constitution and statutes of the People’s Republic 

of China. I would prefer not to put that kind of resolution in, but 

depending on what the PRC Government does between now and 

then, we will see. 

I just wanted to make that brief statement because, quite frankly, I don’t have enough of the context of this hearing to ask a sensible question. So I will turn it over to the panel and then come 

back to you, Mr. Chairman. 

Representative WALZ [presiding]. Well, Mr. Smith, please go 

ahead if you have a followup. 

Representative SMITH. Thank you very much, Mr. Chairman. 

Let me just say, Dr. Economy, in response to your comment 

about the cluster of issues, and that human rights would be part 

of that cluster, I would just respectfully suggest, with one big, red 

flag, human rights then becomes an asterisk, maybe on page 8 of 

the dialogue, or whatever it might be. Our argument about linking 

human rights with MFN [most-favored-nation] and then PNTR 

[permanent normal trade relations] was that, where were the Chinese going to find a market to dump so many of their finished 

goods, except on U.S. soil? Otherwise, it’s just not there. So we had 

real leverage and we just threw it away, right off, squandered it. 

And who got hurt—the dissidents and those striving for human 

rights. 

I remember, Frank Wolf and I had a meeting with Li Peng in 

the early 1990s. We brought up human rights. We had prisoner 

lists, we raised all of the issues. We were surprised we got to see 

him, quite frankly. He was incensed that we brought up human 

rights, and we did it very respectfully and very diplomatically. He 

wouldn’t even touch the list of prisoners, Mr. Kamm. Wouldn’t even 

touch it. It’s like, he moved away from it, and then he hearkened 

back to the Shanghai communique and said there’s nothing about 

human rights in our relationship. 

So my fear is that with Mrs. Clinton’s statement earlier in the 

year—I mean, we had Chinese officials here the better part of a 

week, meeting with Tim Geithner. I’m sure human rights was nowhere to be found in that dialogue. President Obama will make his 

way to Beijing. He’ll say ‘‘I agree to disagree,’’ or ‘‘we agree to disagree,’’ which means that, to every dissident, you’re finished, you’re 

toast. I’m very concerned. 

Wei Jingsheng once said at a hearing that I chaired, when you 

are tough, predictable, and transparent—which is pretty much 

what he said, not verbatim—they beat us less in the prisons. When 

you kowtow, when you’re groveling, they beat us more and they 

cause us to lose hope. I’m very fearful about where we are in terms 

of this dialogue. I would respectfully suggest that human rights be 

at the top. Contract law will follow. If you get that right you get 

transparency, you get everything else, but if you don’t, you get a 

terrible distortion by a government and a lot of broken people. 

So I hope we don’t make this a cluster, because if it’s part of that 

group of issues, the human rights activists lose and the people of 

China lose. The Uyghurs, the Tibetans, they all lose. 

Representative WALZ. Well, thanks, Mr. Smith. 

First of all, thank you all, to our panelists, for being here, for 

your scholarship, for your advocacy, and for helping us understand 

30 

this issue. I would like to point out and say a special thank-you to 

the staff of the Congressional-Executive Commission on China for 

the incredible scholarship, their integrity, in compiling the 2009 

Annual Report. It will be up on the Internet next Tuesday, the 

13th of October. We are very appreciative to all of them. They do 

incredible work. And to my fellow Commissioners, for showing a 

passion for getting this right, for showing a passion on human 

rights that all of us need to keep in mind, and I’m very appreciative of that. 

So, thank you all for being here today. With that, this meeting 

is adjourned. 

[Whereupon, at 3:45 p.m. the hearing was concluded.] 

(31) 

A P P E N D I X 

32 

PREPARED STATEMENTS


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1 Jiangtao Shi, ‘‘Beijing gets flak for pollution of waterways,’’ South China Morning Post (September 17, 2007). 

PREPARED STATEMENT OF ELIZABETH ECONOMY

OCTOBER 7, 2009

Mr. Chairman and distinguished Members of the Commission, it is my pleasure 

to have the opportunity to discuss China’s efforts in the realm of human rights, the 

rule of law and the environment and the prospects for U.S.-China cooperation on 

this critical issue. 

INTRODUCTION

Over the past five to seven years, China’s leaders have become increasingly concerned about the impact of the environment on the country’s future. Twenty of the 

world’s 30 most polluted cities are in China; over half of the country’s population 

drinks contaminated water on a daily basis; and more than 25 percent of the land 

is severely degraded or desertified. As China’s Minister of Environmental Protection 

Zhou Shengxian acknowledged in 2007, ‘‘Pollution problems have threatened public 

health and social stability and have become a bottleneck for sound socio-economic 

development.’’ 1

Much of China’s environmental challenge stems from the very rapid and unfettered growth of the past 30 years. The ‘‘growth at all costs’’ model of development 

has exerted a profoundly negative impact on the country’s air, water and land quality and further transformed China into a major global polluter. The country now 

ranks as the world’s chief contributor to global climate change, ozone depletion, the 

illegal timber trade, and pollution in the Pacific. 

Yet the inability of China’s leaders to turn this devastating environmental situation around—and the environment is frequently mentioned as a ‘‘top’’ priority by 

President Hu Jintao and Premier Wen Jiabao—has as much to do with failings in 

governance as with economic interests. China has passed well over 100 environVerDate Nov 24 2008 18:01 Mar 15, 2010 Jkt 000000 PO 00000 Frm 00048 Fmt 6601 Sfmt 6621 U:\DOCS\54371.TXT DEIDRE

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2 ‘‘Cost of Pollution in China: Economic Estimates of Physical Damages,’’ The World Bank and 

China State Environmental Protection Administration (February 2007). 3 ‘‘Health Expert Blames Pollution for China’s Cancer Rise,’’ Reuters (May 16, 2007). 

4 ‘‘Toxic Rivers and Thirsty Cities,’’ China Environment Forum, Woodrow Wilson International 

Center for Scholars (May 2007): www.wilsoncenter.org/index.cfm?. 

fuseaction=topics.item&news—id=224022&topic—id=1421. 5 ‘‘Wen sets out strategy to tackle environmental protection,’’ Xinhua News Agency (April 23, 

2006). 6 ‘‘Hundreds storm smelter over lead poisoning,’’ Reuters (August 17, 2009). 

7Kelly Chan, ‘‘Lead-poisoned villagers in Shaanxi fear new location unsafe,’’ South China 

Morning Post (August 17, 2009). Lead poisoning can damage the nervous and reproductive systems. It also can cause anemia, affect a child’s learning ability, and in the worst cases, lead 

to coma and death. 8Shi Jiangtao, ‘‘Order Restored after Factory Protest,’’ South China Morning Post (August 18, 

2009). 

mental laws and hundreds of regulations. The challenge rests in effectively implementing these laws and regulations, a process that is seriously impeded by a lack 

of transparency, rule of law and official accountability. 

Whether China’s leaders are able to incorporate better governance practices into 

their system matters enormously not only for the health and welfare of the Chinese 

people but also for the rest of the world. If China cannot enforce its current environmental laws and regulations, there is little reason to believe that it will be able to 

respond effectively to a challenge such as global climate change. 

THE NATURE OF THE CHALLENGE

China’s leaders are concerned about the country’s environment above all because 

it is limiting opportunities for future economic growth, harming the health of the 

Chinese people, and has become one of the leading sources of social unrest throughout the country. 

The economic challenges are most direct. Over the past several years, the Chinese 

media have reported on a number of environment-induced annual economic losses: 

desertification costs the Chinese economy about $8 billion, in addition to water pollution costs of $35.8 billion, air pollution costs of $27 billion and weather disaster 

and acid rain costs of $26.5 and $13.3 billion respectively.2 All told, the Ministry 

of Environmental Protection estimates that environmental pollution and degradation cost the Chinese economy the equivalent of 10 percent of GDP annually. Regionally, the impact is even more devastating. The prawn catch in the Bohai Sea, 

for example, has dropped by 90 percent over the past decade and a half as a result 

of pollution and overfishing. In Qinghai, over 2,000 lakes and rivers have simply 

dried up over the past two decades, contributing to significant lost opportunities for 

industrial growth. 

These economic costs are compounded by a set of mounting public health problems. In a survey of 30 cities and 78 counties released in spring 2007, the Ministry 

of Health blamed worsening air and water pollution for dramatic increases in the 

incidence of cancer throughout the country: a 19 percent rise in urban areas and 

a 23 percent rise in rural areas since 2005.3 About 700 million people in China 

drink water that is contaminated with human or animal waste,4 and according to 

the Ministry of Water Resources, 190 million drink water that is so contaminated 

that it is dangerous to their health. 

Taken together, these economic and health problems are at the root of the rapidly 

rising public discontent and unrest over the state of the environment. According to 

Minister Zhou, in 2005, the number of environmental protests topped 50,000.5 While 

some pollution-related protests are relatively small and peaceful, others become violent, even deadly, when demands for change are repeatedly ignored. 

In August 2009, for example, several thousand villagers in Shaanxi Province 

stormed a lead and zinc smelting plant after hundreds of children living near the 

plant tested positive for excessive levels of lead in their blood.6 Of these, 154 were 

so sick that they had to be admitted to the hospital.7 The villagers had been complaining for three years about the plant, and although the local government has 

promised to relocate the affected families, villagers in the relocation sites have noted 

that their children are similarly afflicted with lead poisoning.8

Environmental protest has also been spurred by the Internet. In May 2009, in 

Shandong Province, a group of residents posted an online petition calling for an investigation of four cyclohexanone chemical plants. The petitioners believed that the 

factories, which had been in operation since a year earlier, were polluting the air 

and water and contributing to an unusually high number of thyroid cancer cases. 

The county government initially ignored the petition, arguing that the factories were 

not allowed to drain wastewater until they met provincial standards and had passed 

46 

9 Al Guo, ‘‘Internet petition catches the eye of Premier Wen; Pollution investigation fasttracked,’’ South China Morning Post (June 29, 2009). 

official water quality tests. Over the next month, the petition circulated on web portals such as Baidu and Tianya, collecting an estimated 1,400 signatures. In an open 

letter published on Internet forums, one resident even called for a broader ‘‘uprising’’ that might not be successful but would ‘‘mark the start of a revolution against 

a crude regime’’ and even called for the killing of the Communist Party chief and 

county director. The author later claimed that more than 5,000 people had signed 

up for the protest. On June 29, 2009, Premier Wen Jiabao ordered the Shandong 

officials to investigate the claims and respond to the public.9

In addition, the Internet and other forms of telecommunication such as texting 

have facilitated mobilized protest in urban areas, a phenomenon of only the past 

two years. There have been significant protests—with up to 10,000 people—in major 

cities such as Xiamen, Zhangzhou and Chengdu over the planned siting of various 

large-scale chemical and petrochemical plants. Here, too, violence has occurred in 

some cases. Notably, in a few of these instances of urban protest, public opposition 

has been strong enough to lead to a reversal in a government decision. The significance of the urban, middle class protest is that it erupts not ‘‘after the fact’’ in response to a devastating environment-induced economic or public health crisis, but 

rather in advance of something likely to cause significant public health damage. In 

a small, but potentially significant, way, therefore, urban protesters have influenced 

Chinese government policy. 

REFORM IN ENVIRONMENTAL GOVERNANCE

There are a number of reasons for China’s worsening environmental situation and 

the related proliferating social and economic challenges: a continued priority on economic growth, the pricing of resources that doesn’t support conservation or efficiency, a dearth of political and economic incentives to do the right thing and, most 

critically, a lack of transparency, official accountability and the rule of law. There 

is no reliable mechanism for uncovering and dealing with environmental wrongdoing. 

To begin with, accurate environmental data are often difficult to obtain. Sometimes it is a matter of capacity. Local environmental officials may simply not have 

the manpower, transportation or funds to monitor pollution levels at all the sites 

for which they are responsible. In addition, local officials are often reluctant to 

provide information that reflects poorly on their leadership, and there is no institutionalized check on the statistics that are provided. One significant central government campaign to evaluate local officials on their environmental performance—the 

Green GDP campaign—failed in large measure because the Ministry of Environmental Protection could not access the necessary environmental data from a number 

of recalcitrant provincial leaders. In a few places, such as Jiangsu Province, there 

are experiments underway with international partners to scorecard factories and 

make the information available publicly. However, ensuring the transparency element of the process has apparently been quite difficult. 

Corruption is also a serious problem. Many local officials often ignore serious pollution problems out of self-interest. Sometimes they have a direct financial stake in 

factories or personal relationships with factory managers. In recent years, the media 

have uncovered cases in which local officials have put pressure on the courts, the 

press, or even hospitals to prevent pollution problems and disasters from coming to 

light. Moreover, local officials often divert environmental protection funds to other 

endeavors. A recent Ministry of Environmental Protection-supported study, for example, found that fully half of the environmental funds distributed from Beijing to 

local officials for environmental protection made its way to projects unrelated to the 

environment. 

Recognizing the potential of local officials to subvert or ignore environmental laws 

and regulations, Beijing has opened the door to the media and non-governmental 

organizations (NGOs) to act as unofficial environmental watchdogs. China’s first environmental NGO, Friends of Nature, was established in 1994, and it was devoted 

to environmental education and biodiversity protection. Fifteen years later, China 

has over 3,000 environmental NGOs that play a role in virtually every aspect of environmental protection. Above all, they help bring transparency to the environmental situation on the ground. These groups help expose polluting factories to the 

central government, launch Internet campaigns to protest the proliferation of largescale hydropower projects, sue for the rights of villagers poisoned by contaminated 

water or air, provide seed money to smaller, newer NGOS throughout the country, 

and go undercover to expose multinationals that ignore international environmental 

47 

10Lindon Ellis, ‘‘Giving the Courts Green Teeth,’’ China Environment Forum, Woodrow Wilson 

International Center for Scholars (October 22, 2008): http://www.wilsoncenter.org/ 

index.cfm?topic—id=1421&fuseaction=topics.event—summary&event—id=477342. 11Gao Jie, ‘‘Environmental Protection Courts: Incubator of Environmental Public Interest Litigation or Just A Decoration?’’ GreenLaw (October 5, 2008): http://www.greenlaw.org.cn/enblog/ 

?p=4. 

standards. The media are an important ally in this fight: educating the public, 

shaming polluters, uncovering environmental abuse and highlighting environmental 

protection successes. 

Environmental NGOs are also at the forefront of advancing the still nascent rule 

of law in China’s political system. In 1998, Wang Canfa, a professor of law at the 

China University of Politics and Law, established the Center for Legal Assistance 

to Pollution Victims (CLAPV). The center trains lawyers to engage in enforcing environmental laws, educates judges on environmental issues, provides free legal advice 

to pollution victims through a telephone hotline, and litigates cases involving environmental law. Between 2001 and 2007, the center trained 262 lawyers, 189 judges 

and 21 environmental enforcement officials in environmental law.10

In addition, Wang has been advising the Chinese government on the establishment of a system of specialized environmental courts. Beginning in late 2007, the 

Supreme People’s Court established a network of courts that are responsible only 

for cases regarding environmental protection and the enforcement of environmental 

regulations. These environmental protection courts seek to address the weak capacity of judges to solve environmental disputes due to lack of expertise and experience, 

eliminate the challenge faced by plaintiffs in bringing environmental lawsuits, and 

strengthen the enforcement of judgments against defendants who are influential in 

local economic matters. Thus far, these courts have been established in three provinces: Guizhou, Jiangsu and Yunnan. The courts have already heard a number of 

cases: the Kunming Court in Yunnan Province heard 12 environmental law violation 

cases during the first half of 2009, while the Guiyang court in Guizhou accepted 45 

environmental cases (and ruled on 37 of them) in its first six months.11 These environmental courts also have the authority to enforce the judgments they issue. More 

environmental courts are expected to open throughout China as the success of established courts becomes determined. The biggest problem currently confronting the 

courts is that they do not have enough cases to consider. 

Despite the important role that environmental NGOs and the media have come 

to play in China’s environmental protection effort, many Chinese leaders remain 

wary of the intentions of these non-governmental actors. Above all, China’s leaders 

fear the potential that the environment might become a lightning rod for a broader 

push for political reform. They thus have put in place a Byzantine set of financial 

and political requirements to confine NGO activities within certain boundaries and 

to enable their close monitoring by authorities. Misjudging these boundaries can 

bring severe penalties. Wu Lihong worked for 16 years to address the pollution in 

Tai Lake, gathering evidence that forced almost 200 factories to close. In 2005, Beijing honored Wu as one of the country’s top environmentalists, but in 2006, one of 

the local governments Wu had criticized, arrested and jailed him on dubious charges 

of blackmail and fraud. Yu Xiaogang, the 2006 winner of the Goldman Environmental Prize and 2009 winner of the Ramon Magsaysay Award, both for grassroots 

environmental activism, has been forbidden to travel abroad in retaliation for educating villagers about the potential downsides of a proposed dam relocation in 

Yunnan Province. A third environmental activist, Tan Kai, has been in jail since 

2006. In 2005, Tan established the NGO Green Watch in his home province, 

Zhejiang, to monitor local officials’ compliance with orders to shut down several polluting factories that had been the sites of serious protests. 

IMPLICATIONS FOR THE UNITED STATES

For the United States, the capacity of China to meet its environmental challenges 

is only becoming more pressing. If China does not have transparency, accountability 

or the rule of law within its domestic environmental system, it cannot be relied 

upon to be a responsible partner to meet the challenge of a global issue such as climate change. It will not possess the capacity to enforce the regulations that will 

arise from domestic climate legislation nor the transparency to ensure accurate 

measurement of emissions and emissions reductions. Nor will China be able to devise and implement a system that will ensure that officials who attempt to subvert 

the legislation will be held accountable. This does not mean that the United States 

should not move forward to assist China in setting and meeting targets to reduce 

their greenhouse gas emissions. It does suggest, however, that building capacity 

48 

12Thomas Lum, ‘‘U.S.-Funded Assistance Programs in China,’’ Congressional Research Service 

(January 28, 2008). 13 ‘‘Local-to-Local Energy Linkages: California and Alberta in China,’’ Event Summary, China 

Environment Forum, Woodrow Wilson International Center for Scholars (May 20, 2008). 1For excellent English-language scholarship in this area, see, inter alia, the work of Prof. William P. Alford (publications list at http://tinyurl.com/ybg6824); Prof. Hualing Fu (several publications posted at http://www.ssrn.com; Prof. Sida Liu (publications list at http://tinyurl.com/ 

y959lkf); and Prof. Ethan Michelson (publications list at http://tinyurl.com/ydycrqw). 2 By ‘‘sensitive’’ I mean two things. First, I mean cases or activities relating to subjects that 

are well known to be matters of government concern—for example, Falun Gong, Tibet, unapproved political parties, land takings, and environmental protests. But I also use ‘‘sensitive’’ to 

indicate cases that might be quite ordinary in their subject matter but have been made sensitive 

by the involvement for any reason of influential people—for example, an ordinary-looking commercial dispute where one side is a company that is owned by a relative of a top leader or is 

a major contributor to the local economy. 

within China’s system of environmental governance should be a top priority for bilateral cooperation. 

There are small-scale efforts already underway within the United States to help 

China develop such capacity. Over the past two years, the U.S. government has provided $5–$10 million in Development Assistance for programs and activities in the 

PRC related to democracy, rule of law and the environment.12 With support from 

the U.S. government, for example, the American Bar Association has supported both 

Wang Canfa’s Center for Legal Assistance to Pollution Victims as well as various 

universities to train public interest lawyers to specialize on the environment and 

provide expertise to the new environmental courts. Vermont Law School similarly 

engages partners such as SunYat-sen University to help improve China’s environmental policies, systems and laws. Climate change is also garnering growing interest as an area of cooperation. The state of California is already pushing forward on 

several fronts, including enhancing transparency in energy use in Jiangsu Province 

and fostering interagency cooperation at the local level to address climate change.13

Still, the majority of interest and attention in the United States and China is focused on the opportunity for technology cooperation and transfer. This technology 

will only be effective, however, if China has the appropriate political environment 

to support its use. To tackle an issue of the magnitude of climate change, will require far more of a concerted and coordinated international effort by the United 

States and its partners to bolster the rule of law, transparency and accountability 

within China. 

PREPARED STATEMENT OF DONALD C. CLARKE

OCTOBER 7, 2009

LAWYERS AND THE STATE IN CHINA: RECENT DEVELOPMENTS

I. INTRODUCTION

The relationship between lawyers and the state in post-Mao China has been both 

fluid and complex.1 No longer are lawyers considered to be simply ‘‘state legal workers’’ with quasi-official status. At the same time, the state considers them to be 

more than simply commercial suppliers of a service. It exercises tight control over 

lawyers’ associations, and imposes special duties on lawyers to promote the state’s 

interest even when it might be at the expense of their clients. As for lawyers themselves, some are not only content with the status quo but actively work to promote 

it and suppress challenges. Others engage in controversial or sensitive activity but 

stay carefully within the bounds of what is actually permitted; still others push the 

boundaries a bit further to what is formally permitted but may not be regularly permitted in practice. And a very few consciously go beyond even that limit and openly 

challenge the state. 

The response of the state to perceived challenges from lawyers has also varied 

across time and space. Central and local government actions are not always coordinated and may indeed be contradictory, as may actions from different agencies within the same level of government. Policy may at one time be relatively relaxed and 

another time quite tight. 

Despite this complexity, it is possible to reach certain big-picture conclusions, and 

one of them is that the environment for lawyers who get involved in cases or activities of any sensitivity2 has worsened in the last several months. In April 2008, 

49 

3 Human Rights Watch, ‘‘Walking on Thin Ice’’: Control, Intimidation and Harassment of Lawyers in China (April 2008), available at http://www.hrw.org/reports/2008/china0408/. 4 It is important to note that the number of such lawyers is small, both in absolute terms and 

relative to the size of the profession. The political activism of lawyers as a profession in China 

is utterly different from that of lawyers in, say, Pakistan. 5 ‘‘Barefoot lawyers’’ are persons—typically in the countryside—not licensed as lawyers who 

have developed a certain expertise in legal matters and assist their neighbors and others in asserting legal claims. See Melinda Liu & Lijia MacLeod, Barefoot Lawyers, Newsweek, Mar. 4, 

2002, available at http://www.newsweek.com/id/75076. 6See Peter Ford, China Cracks Down on Human Rights Lawyers, Christian Science Monitor, 

February 25, 2009, available at http://tinyurl.com/ca7pkz; ‘‘Killing One to Warn 100′′: The Shutdown of the Yitong Law Firm, China Rights Forum, No. 1, 2009, at 22, available at http:// 

tinyurl.com/yan85an. 7See Li Jinsong, Zong you yizhong liliang qushi women gushou ‘‘zhengyi, aixin, liangzhi, 

fazhi’’!—Yitong lu ̈ shi shiwusuo huifu zhiye zhi ri zhi haineiwai pengyou (There Is Always a 

Force Pushing Us to Maintain ‘‘Justice, Love, Conscience, and Rule of Law’’!—To Domestic and 

Foreign Friends on the Occasion of the Yitong Law Firm’s Resumption of Business), September 

14, 2009, http://tinyurl.com/y9nnz9t. 8OCI was charged with owing 187,424 yuan (approx. $27,500) in back taxes—an amount disputed by OCI—and fined 1,242,100 yuan (approx. $182,200), the highest possible amount. See 

Jiang Xueqing, Baby Milk Powder Victims Lose Legal Proxy, Global Times (China), August 11, 

2009, available at http://tinyurl.com/ye6s9pt. 9See Edward Wong, China Shuts Down Office of Volunteer Lawyers, New York Times, July 

17, 2009, available at http://tinyurl.com/y97leo4. 

Human Rights Watch issued a report on the status of lawyers in China;3 this testimony aims largely to provide an update on developments since that time. 

II. RECENT DEVELOPMENTS

Since spring 2008, the central and local governments have taken a number of 

steps to discourage lawyers from challenging the state in any significant way.4 Most 

prominent among these steps have been (1) formal and informal measures to prevent lawyers from effectively representing parties involved in sensitive incidents 

such as mass unrest or mass torts, and (2) the delicensing of particularly troublesome lawyers and firms, sometimes through an active delicensing process and sometimes through failure to allow the lawyers to pass the annual re-licensing process. 

I discuss some particular examples below. 

A. Suspension of the Yitong Law Firm 

Yitong is a Beijing law firm headed by activist lawyer Li Jinsong. It has been at 

the center of several high-profile cases, representing Hu Jia, the HIV/AIDS activist, 

and Chen Guangcheng, the blind ‘‘barefoot lawyer’’ 5 who exposed forced abortions 

in his native Shandong province. Several Yitong lawyers were behind an 

unsanctioned challenge to the leadership of the Beijing Lawyers Association (discussed below). 

On March 17, 2009, the Haidian District Judicial Bureau in Beijing issued a final 

decision ordering the closing of Yitong for six months on what were widely considered to be weak charges.6 Despite predictions by Li Jinsong that the firm might not 

survive, it reopened on September 14, 2009.7 Although the firm has re-opened, it 

lost a large number of its lawyers and its ability to function has certainly been 

greatly impaired. Moreover, the lesson that troublemaking will be punished cannot 

have been lost on other activist (or would-be activist) lawyers. While some will 

undoubtedly continue to do what they have always done, there are others at the 

margin for whom the punishment of Yitong would be (as intended) of decisive discouraging effect. 

B. Closing of the Open Constitution Initiative 

The Open Constitution Initiative (‘‘OCI’’) was an organization headed by Xu 

Zhiyong, a legal scholar who teaches at Beijing Posts and Telecommunications University and is an elected delegate to the Haidian People’s Congress. The OCI had 

been prominent in many issues related to the rule of law in China, from issuing 

a report criticizing government policy in Tibet to providing assistance to the families 

of babies poisoned in the melamine-tainted milk scandal. In July 2009, OCI was 

charged with tax evasion and ordered to pay 1.43 million yuan, a huge amount relative to the scale of the charged offense.8 The organization’s offices were raided by 

officials of the Beijing Bureau of Civil Affairs, who confiscated substantial amounts 

of property. OCI was then declared ‘‘illegal’’ and its web site shut down.9

50 

10 ‘‘Arrest’’ (daibu) is a formal stage in Chinese criminal procedure; it means more than simply 

subject to coercive detention by the authorities. 11See Michael Wines, Chinese Public Interest Lawyer Charged Amid Crackdown, New York 

Times, August 18, 2009, available at http://tinyurl.com/yavwff8. 12See Michael Wines, Without Explanation, China Releases 3 Activists, New York Times, August 23, 2009, available at http://tinyurl.com/yacl6ff. 13 Human Rights in China, Raid of Public Interest Group Reveals Degree of Information Control, July 29, 2009, http://tinyurl.com/y8an8n7 (press release); Kathrin Hille, Chinese Authorities 

Detain Civil Rights Activist, Financial Times, July 30, 2009, available at http://tinyurl.com/ 

y93jz6o. 14 The text of their open letter is attached as Appendix 1. 15The text of the response is attached as Appendix 2. 16The text of the response is attached as Appendix 3. 17See Beijing Judicial Bureau, Beijing shi sifa ju guanyu zhuxiao Zhang Qingtai deng 53- 

ming lu ̈ shi de lu ̈ shi zhiye zhengshu de jueding (Decision of the Beijing Judicial Bureau on the 

Cancellation of the License to Practice of Zhang Qingtai and 52 Other Lawyers), July 9, 2009, 

http://tinyurl.com/yc7nxx5. 18See Amnesty International, Human Rights Lawyers Disbarred in China, July 15, 2009, 

http://tinyurl.com/yaq3o97 (press release). 19 Chinese lawyers must generally work through an employing body such as a law firm or, 

in the case of academics working as part-time lawyers, their university. The support of the employer is therefore required. 

On July 29, 2009, Xu Zhiyong himself was detained and subsequently arrested10

on charges of tax evasion.11 He was released pending trial on August 23;12 the case 

is still unfolding. 

C. Raiding of Yirenping 

On July 29, 2009, the Beijing offices of the Yirenping Center, an NGO specializing 

in public health education, aid to patients, and the elimination of discrimination, 

were raided by officials from the Beijing Public Security Bureau and state publishing authorities on the grounds that Yirenping was engaging in unauthorized 

publishing activities by having a newsletter. Yirenping’s head, Lu Jun, was ordered 

to present himself for further investigation.13

D. Tempest in the Beijing Lawyers Association 

Lawyers associations in China are typical Leninist ‘‘mass organizations’’: vehicles 

more for top-down control than for bottom-up articulation and representation of interests. In this way, they resemble labor unions, the Women’s Federation at various 

levels, and the official churches. In September 2008, some lawyers in Beijing issued 

a call for the direct election of leaders of the Beijing Lawyers Association (‘‘BLA’’) 

as well as other reforms that would have the effect, they said, of taking power from 

the small group of rich lawyers currently in control.14

The BLA leadership did not take this challenge lying down. It issued a rather 

nasty response15 full of the kind of politically threatening language one rarely sees 

any more: it speaks of ‘‘linking up’’ (a pejorative word evocative of Red Guards running rampant), working ‘‘under the signboard’’ of democracy, ‘‘stirring up rumors’’ 

and ‘‘rabble-rousing,’’ ‘‘inciting’’ lawyers ‘‘who don’t understand the true situation,’’ 

etc. The response warns darkly that using text messages and e-mail to engage in 

this kind of activity is illegal, although the laws being violated are not mentioned. 

Lawyers are urged to maintain a correct political orientation and to resist the blandishments of this ‘‘minority.’’ 

The lawyers who issued the statement did not back down, and issued a firm response of their own,16 maintaining their right to a say in the running the BLA. In 

the end, however, their defiance proved fruitless. The law firm most prominently associated with the challenge, Yitong Law Firm, was closed for six months by the authorities, and several of the lawyers involved lost their licenses to practice law (see 

below). 

E. Denial of Re-Licensing to Lawyers 

China’s lawyers are subject to an annual re-licensing procedure. Instead of taking 

active steps to de-license a lawyer deemed troublesome, the authorities can simply 

refuse to re-license when the time comes. On July 9, the Beijing Judicial Bureau, 

the body in charge of licensing lawyers in Beijing, announced on its web site that 

it had canceled the licenses of 53 lawyers, including prominent lawyer Jiang 

Tianyong, for failing to register as members of the Beijing Lawyers Association.17

Another group of lawyers not on the list were simply refused a renewal of their licenses on the grounds that they had ‘‘failed their assessments’’; these lawyers included well-known lawyers such as Li Heping.18 Another activist lawyer, Teng Biao, 

was refused a license renewal when his employer, the China University of Politics 

and Law, refused to support his application.19 The pretextual nature of the grounds 

51 

20 All-China Lawyers Association, Circular on ‘‘The Defense Work of Lawyers in the Current 

Trials of Cases Related to the Turmoil and Counterrevolutionary Rebellion,’’ November 25, 1989, 

reprinted and translated in Human Rights in China, Going Through the Motions: The Role of 

Defense Counsel in the Trials of the 1989 Protestors 7, 8 (March 1993). 21Shanghai Municipal Lawyers Association Research Department, Shanghai Concentrates on 

Doing a Good Job of Criminal Defense Work in ‘‘Turmoil-Related Cases’’ (Outline of Report), 

n.d., reprinted and translated in Human Rights in China, supra note 20, at 16, 19. 22 Beijing Judicial Bureau, Guanyu Beijing Shi lu ̈ shi shiwusuo chengban zhongda falu ̈ shiwu 

qingshi baogao de zhidu (On the System of Asking for Instructions and Reporting When Law 

Firms Handle Major Legal Matters), issued Jan. 14, 1999. 23 Nantong Judicial Bureau, Guanyu jinyibu jiaqiang dui lu ̈ shi banli zhongda anjian zhidao 

gongzuo de yijian (Opinion on Further Strengthening the Work of Guidance over Lawyers in 

Their Handling of Major Cases), February 18, 2004, available at http://www.ntda.gov.cn/wjzxqw/ 

W2580001035.htm (Chinese; URL does not function as of October 5, 2009); http://www.cecc.gov/ 

pages/virtualAcad/index.phpd?showsingle=50420 (English translation). 24 Henan Judicial Department, Guanyu jiaqiang dui lu ̈ shi banli zhongda, min’gan, quntixing 

anjian zhidao jiandu de yijian (Opinion on Strengthening Guidance and Supervision over Lawyers in Their Handling of Major, Sensitive, or Mass Cases), Mar. 28, 2006, available at http:// 

tinyurl.com/ycba85y. 25See Shenyang Shi lu ̈ shi chengban zhongda yinan min’gan anjian qingshi baogao de ruogan 

yijian (Several Opinions on Reporting and Requesting Instructions When Shenyang Lawyers 

Handle Important, Difficult, or Sensitive Cases), April 2006, cited in Shenyang lu ̈ shi chengban 

min’gan anjian xu qingshi (Shenyang Lawyers Must Seek Instructions When Handling Sensitive 

Cases), http://www.legalinfo.gov.cn/moj/lsgzgzzds/2006-04/20/content—303794.htm (Chinese Ministry of Justice official web site). 

for de-licensing is evident from the fact that previous years have not, to my knowledge, seen such large-scale de-licensings. 

F. Interference With Attorney-Client Relations 

On several occasions, state and quasi-state authorities (for example, bar associations) have issued rules or engaged in practices that have the intention and effect 

of preventing lawyers from offering effective representation to clients. One of the 

most well-known of these was issued to lawyers charged with defending those involved in the 1989 protests. It instructed them to ‘‘do a good job of ideological work 

on the defendant and his family members, encouraging them to admit the crime and 

submit to the law.’’ 20 Another document issued at about the same time made clear 

the state’s view of the role of lawyers: 

Defense is not a matter of victory or defeat, and the legal advisor is not 

competing with the procuratorial and court personnel to see who comes out 

on top; it is a propaganda effort, directed at the citizens, to condemn vice 

and praise justice.21

This view has not significantly changed over time. The state continues to engage 

in intensive efforts to stay informed of and direct the work of lawyers in cases it 

deems sensitive, and to simply block the efforts of lawyers to represent clients even 

when it is unwilling to issue formal rules to that effect. I provide an incomplete list 

of such efforts below, with some historical background but a focus on more recent 

efforts. 

• In 1999, the Beijing Judicial Bureau issued a document establishing a ‘‘leading group’’ within the Bureau to deal with ‘‘major and important cases.’’ Certain 

cases were to be reported to the leading group by lawyers—for example, all instances of collective litigation or litigation involving state organs or leaders 

above the prefectural level. And certain cases not only were to be reported, but 

required approval from the leading group before lawyers could accept them— 

for example, all cases involving state security or foreigners.22 The document 

specifically stated that ‘‘[t]he lawyer handling the case should prepare his tactics according to the decision made by the leading group after the discussion.’’ 

• In 2004, the Nantong Municipal Judicial Bureau issued a document intended 

to ‘‘strengthen the work of guidance over lawyers handling important cases. 

This document required lawyers to report to the government when handling 

cases of various kinds, including any lawsuits involving ten or more plaintiffs 

and any proposed not-guilty plea in criminal proceedings.23

• In 2006, the Henan provincial authorities issued a document imposing more 

supervisory controls on lawyers handling ‘‘important, sensitive, and mass 

cases.’’ 24

• In 2006, the Shenyang municipal authorities issued a regulation requiring 

lawyers to report to, and seek instructions from, the relevant municipal authorities before undertaking ‘‘important,’’ ‘‘difficult,’’ or ‘‘sensitive’’ cases.25

• In 2006, a similar regulation with nationwide effect and specifically covering 

multiparty litigation (cases with 10 or more plaintiffs) was issued by the AllVerDate Nov 24 2008 18:01 Mar 15, 2010 Jkt 000000 PO 00000 Frm 00055 Fmt 6601 Sfmt 6621 U:\DOCS\54371.TXT DEIDRE
52 

26See generally Human Rights Watch,‘‘A Great Danger for Lawyers’’:New Regulatory Curbs 

on Lawyers Representing Protestors (December 2006). This report contains a translation of the 

ACLA document. 27See Zheng Yi, ‘‘Lu ̈ shi bu de jieru’’ dui shei you li (To Whose Benefit Is It that ‘‘Lawyers 

May Not Get Involved’’?), sina.com.cn, http://news.sina.com.cn/o/2006-08-24/02269830142s.shtml 

(reprinted from Jiangnan Shibao (Jiangnan Times)). I have not seen the original document containing this prohibition, if one exists. 28See Xu Kai, Zhiyuan lu ̈ shi tuan wei ‘‘shenjieshi ying’er’’ suopei ‘‘zhizhao’’ (Volunteer Lawyers 

Group Offers Services in Seeking Compensation for ‘‘Kidney Stone Babies’’), Caijing (Finance 

and Economy), September 13, 2009, available at http://tinyurl.com/yawfrm5; China Human 

Rights Lawyers Concern Group, Support Chinese Lawyers to Provide Voluntary Legal Aid to 

Victims of Contaminated Milk Powder, September 25, 2008, http://www.chrlcg-hk.org/?p=322. 29See Dunai suopei falu ̈ yuanzhu shouzu (Legal Aid in Poisoned Milk Compensation Cases 

Encounters Obstacles), Da Gong Bao (Hong Kong), October 5, 2008, available at http:// 

tinyurl.com/yejem46. It should be noted that the Da Gong Bao is normally extremely supportive 

of the Chinese government. 30See Radio Free Asia, Beijing Blocks Tibet Lawyers, July 20, 2009, http://tinyurl.com/ 

y8hy8dw. 31See Nirmala Carvalho, ‘‘Mei yong’’ lu ̈ shi bei gan; lama bei pan wuqi tuxing (‘‘Useless’’ Lawyers Driven Away; Lamas Sentenced to Life Imprisonment), Asianews.it, July 21, 2009, http:// 

tinyurl.com/yce2757; see also Kanbujian de Xizang (Woeser’s Blog) (Invisible Tibet), June 8, 

2009, http://tinyurl.com/yay6tan. 32 Yulin City Judicial Bureau, Yulin Shi sifa ju guanyu lu ̈ shi zai banli min’gan anjian he 

quntixing anjian zhong tuixing shiyong chengnuoshu de tongzhi (Notice of the Yulin City Judicial Bureau on Promoting the Use of Written Undertakings When Lawyers Handle Sensitive 

and Mass Cases), July 7, 2009, available at http://www.yulin.gov.cn/info/94599 (requiring lawyers to obtain written promises from clients not to engage in petitioning to higher authorities, 

and stating that ‘‘interfering with the normal work of state organs’’ shall mean the automatic 

dissolution of the lawyer-client relationship). 33Taizhou City Judicial Bureau, Guanyu guanche sheng ting ‘‘Guanyu jiaqiang dui lu ̈ shi banli 

min’ganxing, quntixing anjian zhidao jiandu gongzuo de tongzhi’’ de yijian (Opinion on Implementation of the Provincial [Judicial] Department’s ‘‘Notice on Strengthening the Work of Guidance and Supervision Over Lawyers in Their Handling of Sensitive and Mass Cases’’), issued 

August 25, 2008, available at http://tinyurl.com/y9khndt. This document implements a regulation applicable to all of Jiangsu Province. 34Zhenning County Judicial Bureau, Shenhua Zhongguo tese shehuizhuyi falu ̈ gongzuozhe 

renshi, qianghua min’gan anjian he quntixing anjian bianhu daili zhidao guanli (Deepen the 

Consciousness of Socialist Legal Workers with Chinese Characteristics, Strengthen Guidance 

and Administration Over Defense and Representation in Sensitive and Mass Cases), August 17, 

2009, available at http://sfj.anshun.gov.cn/xq—znx/gzdt/display.asp?id=104 (requiring lawyers to 

‘‘keep the big picture in mind’’ and to ‘‘guarantee stability.’’) 35 Because Gao was under constant surveillance by state security, it is not plausible to suppose that his disappearance occurred without their knowledge and cooperation. See Evan Osnos, 

China Lawyers Association (‘‘ACLA’’), a government-controlled body that, 

together with the national Ministry of Justice and its local-government counterparts, is in charge of lawyers in China. The regulation, entitled ‘‘Guidance Opinion on the Undertaking by Lawyers of Mass Cases,’’ requires lawyers to report 

to local authorities and ‘‘accept supervision and guidance.’’ 26

• In 2006, lawyers were specifically forbidden to represent clients seeking compensation for injuries in a chemical plant explosion.27

• In 2008, several dozen lawyers volunteered to represent plaintiffs in the 

Sanlu scandal, in which four babies died and some 53,000 suffered kidney damage as a result of melamine-tainted milk.28 It is reported, however, that lawyers 

were warned by the central government not to take such cases.29

• In 2009, attorney Li Dunyong was forbidden by court officials in Qinghai 

province from representing Tibetan filmmaker Dhondup Wangchen, and attorney Li Fangping was prevented from representing two Tibetan monks in Gansu 

province.30

• In 2009, several lawyers were threatened with disbarment for offering to represent Tibetan defendants in Lhasa riot cases, and those who persisted were 

simply refused permission by the authorities on the grounds that the defendants ‘‘already had lawyers.’’ 31

• In 2008 and 2009, several local governments have issued regulations requiring lawyers to notify authorities and accept guidance when handling certain 

types of cases deemed sensitive or otherwise important. I have found regulations from the cities of Yulin32 and Taizhou33 and from the county of 

Zhenning.34

G. Continued Disappearance of Gao Zhisheng 

Finally, the continued disappearance of attorney Gao Zhisheng deserves a paragraph of its own. Gao was taken into custody in February 2009, presumably by state 

security agents.35 There has been no acknowledgment since that time by any ChiVerDate Nov 24 2008 18:01 Mar 15, 2010 Jkt 000000 PO 00000 Frm 00056 Fmt 6601 Sfmt 6621 U:\DOCS\54371.TXT DEIDRE
53 

Letter from China: What Happened to Gao Zhisheng?, The New Yorker, April 3, 2009, available 

at http://tinyurl.com/dmoeuq. 36For a summary of various coercive measures available to government authorities and the 

timelines applicable to each, see Donald Clarke, Legal Analysis of Liu Xiaobo’s Detention, Chinese Law Prof Blog, December 13, 2008, http://tinyurl.com/54w82. 37See Zhao Ziyang, Prisoner of the State 258 (2009). 38Source:http://www.chinafreepress.org/publish/case/Accord—With—the—Tide—of—History— 

Directly—Elect—Beijing—Bar—Association—Directors.shtml. As of October 5, 2009, the URLs 

for the English translations of the documents in Appendices 1, 2, and 3 do not function. 

nese governmental authorities that he is in custody, despite various requirements 

in Chinese law that notice be given to family members and charges brought within 

a specified time.36 The length of time of this unacknowledged detention is extremely 

unusual—to the best of my knowledge, virtually unprecedented. I know of no way 

in which it can be justified even under the elastic and forgiving provisions of Chinese law regarding police detention powers. 

III. CONCLUSIONS

It might be thought that the continuing harassment of lawyers, and particularly 

the efforts to prevent lawyers from representing certain disfavored clients, is actually encouraging evidence that they can be effective in court. Why bother stopping 

lawyers from doing their job if the system already prevents them from doing it effectively? There is a certain degree of truth in this perspective. Although it is inconceivable that courts could make judgments contrary to those desired by political 

authorities in any case the latter deemed important, a skilled and zealous lawyer 

can nevertheless make the job much more difficult, and what the state finds difficult 

to do, it may do less of in the future. 

On the other hand, the state’s main concern is perhaps less with what activist 

lawyers do in court than with what they do out of it. A persistent theme of the various regulations on the reporting of sensitive cases discussed above is a concern 

about publicity and other out-of-court ways in which lawyers may promote the interests of their clients or their own causes. This concern dovetails perfectly with what 

activist lawyers themselves say about their approach: that the key is not winning 

in court, but in using the court action, regardless of outcome, to bring about broader 

social changes. 

Thus, clamping down on lawyers does not necessarily mean that they were being 

too effective as lawyers in courts, which would imply that courts had some substantial degree of independence; it may mean simply that they are being too troublesome, relative to what the state is willing to permit at the time of the clampdown, 

as social activists who happen to be lawyers. And indeed, the clampdown on lawyers 

has been accompanied by a clampdown on activist NGOs and individuals more generally. 

Some observers have suggested that the clampdown was related to the 60th-anniversary celebrations on October 1, and that once they were past, the government 

would relax. I believe that the restrictive measures I have listed here have a history 

that is impossible to explain solely by reference to the 60th-anniversary celebrations, and that they are part of a more general tightening of political control over 

courts and all those involved with them. Now that October 1 is behind us, time will 

tell which interpretation is correct. 

Finally, let us not forget that it is possible, and perhaps even likely, that in this 

as in other matters there are divisions within the leadership. There is clearly a good 

argument to be made that allowing more space to lawyers representing the disadvantaged enhances social stability instead of endangering it by bringing grievances into the system. With the benefit of hindsight, Zhao Ziyang in his memoirs 

recognized the social value of groups and individuals truly independent of the 

state.37 Perhaps other leaders during their terms of office will be forced to the same 

conclusion. 

APPENDIX 1

Accord With the Tide of History, Directly Elect Beijing Bar Association Directors— 

An Appeal to All Beijing Lawyers, Beijing’s Justice Bureau, and the Beijing Bar 

Association38

According to the constitution, attorney law, and regulations governing the registration and management of social organizations, lawyers have the right to free association and therefore Beijing’s Bar Association should be composed of the capital’s 

lawyers ‘‘voluntarily organizing and carrying out the common wishes of its members 

through this non-profit social organization.’’ But it is evident that in the 30 years 

54 

39Source: http://www.bmla.org.cn/bjlawyers2/news/show—content.jsp?infoID=IC02000024280 

(Chinese); http://www.chinafreepress.org/publish/case/The—Beijing—Bar—Association—s—Response—to— a—Small—Number—of—Lawyers—and—Their—So-Called—Call—For—Direct— 

Elections—to—the—Beijing—Bar— Association.shtml (English). 

the Beijing Bar Association has been in existence, it has not accorded with these 

legal guidelines in its establishment or its activities, especially in safeguarding lawyers legal rights and protecting lawyers rights and interests. The majority of lawyers complain about this state of affairs, but feel powerless to change it because the 

bar association did not come into being via the voting of its members. This situation 

must be changed. 

1. The qualifications of the present directors of the Beijing Bar Association is 

below that required by law and the Beijing Bar Association has no legal regulations 

and procedures for electing directors. 

Regulations are the constitution of social organizations. According to the laws and 

regulations governing social organizations, the Beijing Bar Association’s rules and 

election procedures should be determined by member voting, with either a 2/3 majority of more then 1/2 required for a motion to pass. But according to the web site, 

the present Bar Association accords with regulations promulgated in 1982 and formalized in 1990, but they have never been voted on by the Bar’s members, never 

mind passed by a majority vote, and have never been publicized. For these reasons 

these rules and regulations should have no legal effect. 

The president, director, and supervisory board of the Beijing Bar Association have 

not been popularly elected by the Bar’s members, and therefore should not have 

legal standing. According to an investigation, more than 90 percent of Beijing lawyers have never participated in any election activity of the Bar Association, and 

have never been informed of any voting activities. At present the president, director, 

and supervisory board are chosen among partners of major law firms with large incomes. It can be said that the present Beijing Bar Association is a kind of ‘‘Rich 

Man’s Club,’’ helping these fat cats expand their influence and attract new clients. 

We earnestly appeal that when the new session of the Beijing Bar Association 

convenes, a truly democratic election of directors should take place. The chief principles should be: 1. All the members of the Bar should elect by a majority vote the 

president, directors, and supervisory board of the Bar; 2. The Bar’s rules and regulations should be passed by a 2/3 majority vote of its members; 3. Elect a leadership 

that truly represents the interests of the members of the Bar; 4. Annual fees should 

be agreed on by a 2/3 majority vote (and the current fees should be reduced by more 

than 50 percent). 

In order to promote the democratic administration of the Beijing Bar Association, 

we as a group of Beijing lawyers have organized ourselves and over the course of 

two months of efforts have drafted the ‘‘Beijing Bar Association Election Procedures 

(Draft Proposal).’’ 

Democracy is not a far off ideal. Please submit your suggestions for amending this 

draft proposal and then vote on it and this sacred ideal can be realized! 

Contact person: Cheng Hai 13601062745 (chh075@yahoo.com.cn) 

August 26, 2008. 

APPENDIX 2

The Beijing Bar Association’s Response to a Small Number of Lawyers and Their 

So-Called ‘‘Call For Direct Elections to the Beijing Bar Association’’ 39

To: All Beijing Lawyers, All Beijing Law Offices 

Recently a small number of lawyers jointly issued a petition and posted it on the 

Internet entitled ‘‘Accord With the Tide of History, Directly Elect the Beijing Bar 

Association—Announcement To All Beijing Lawyers, Beijing Justice Bureau, and 

the Beijing Bar Association.’’ The announcement purported to promote the cause of 

democracy, and questioned the legality of the standing of the Beijing Bar Association. Soon after, some Beijing lawyers began receiving text messages from these 

lawyers, baiting them by calling for reduced Bar Association membership fees, a restructuring of the tax system, and stirring up lawyers with calls for so-called ‘‘Direct 

Elections to the Beijing Bar Association.’’ 

The Beijing Bar Association hereby seriously states: We are a legally constituted 

social organization, an autonomous professional organization representing the interests of all Beijing lawyers, and manages in compliance with the ‘‘Lawyer’s Law’’ and 

‘‘Regulations Regarding the All-China Bar Association.’’ The Beijing Bar Association 

through its president and secretariat letterbox, director reception day, representative draft resolution system etc. solicits the opinions and suggestions of its members 

55 

40Source: http://www.gongmeng.cn/sub—r.php?zyj—id=1920 (Chinese); http:// 

www.chinafreepress.org/publish/case/Our—Response—to—the—Beijing—Bar—Association—s— 

Serious—Statement.shtml (Chinese). 

and accords with the rules of its profession in democratic decisionmaking, democratic management and democratic supervision. Any individual who uses text messages, the web or other media to privately promote and disseminate the concept of 

direct elections, express controversial opinions, thereby spreading rumors within the 

Beijing Bar Association, confuse and poison people’s minds, and convince people of 

circumstances that do not exist regarding the so-called ‘‘Call For Direct Elections 

For the Beijing Bar Association’’ is illegal. They are using the opportunity of the 

end of the tenure of the present Bar Association administration to manipulate the 

enthusiasm of some lawyers to participate in the management process, using the 

banner of ‘‘Democratic Bar Association Management,’’ is a vain attempt to evade the 

supervision of the Justice Bureau and the Bar Association’s professional management. 

Beijing’s lawyers must maintain calm heads and see the real nature of this effort 

on the part of a small number of lawyers to ‘‘Promote Direct Elections to the Beijing 

Bar Association’’ and support the Beijing Bar Association’s correct political stance 

and social efforts and resist the improper expression of this small number of lawyers 

and not be deceived by them. 

This year the Beijing Bar Association is changing leaders, to ensure the smooth 

transition, the election work has already been prepared. The Beijing Bar Association 

is doing everything in its power solicit the opinions of the majority of lawyers and 

ceaselessly perfect its work and promote the healthy development of the Beijing 

legal profession. 

APPENDIX 3

Our Response to the Beijing Bar Association’s ‘‘Serious Statement’’ 40

On Friday September 5, the Beijing Bar Association on its official web site published ‘‘The Beijing Bar Association’s Serious Statement in Response to a Small 

Number of Lawyers’ Call for So-Called ‘Direct Elections to the Beijing Bar Association.’ ’’ The statement said: ‘‘Recently a small number of lawyers jointly issued a 

petition and posted it on the Internet entitled ‘‘Accord With the Tide of History, Directly Elect the Beijing Bar Association—Announcement To All Beijing Lawyers, 

Beijing Justice Bureau, and the Beijing Bar Association.’’ The announcement purported to promote the cause of democracy, and questioned the legality of the standing of the Beijing Bar Association. Soon after, some Beijing lawyers began receiving 

text messages from these lawyers, baiting them by calling for reduced Bar Association membership fees, a restructuring of the tax system, and stirring up lawyers 

with calls for so-called ‘‘Direct Elections to the Beijing Bar Association.’’ Any individual who uses text messages, the web or other media to privately promote and 

disseminate the concept of direct elections, express controversial opinions, thereby 

spreading rumors within the Beijing Bar Association, confuse and poison people’s 

minds, and convince people of circumstances that do not exist regarding the socalled ‘‘Call For Direct Elections For the Beijing Bar Association’’ is illegal. They are 

using the opportunity of the end of the tenure of the present Bar Association administration to manipulate the enthusiasm of some lawyers to participate in the management process, using the banner of ‘‘Democratic Bar Association Management,’’ is 

a vain attempt to evade the supervision of the Justice Bureau and the Bar Association’s professional management.’’ 

We are the lawyers who jointly issued the statement: ‘‘Accord With the Tide of 

History, Directly Elect the Beijing Bar Association—Announcement To All Beijing 

Lawyers, Beijing Justice Bureau, and the Beijing Bar Association.’’ In addition to 

issuing this statement, we used text messages, posted letters and other means to 

call on all Beijing lawyers to demand their rights and actively participate in the upcoming election for representatives to the Beijing Bar Association. Our objective is 

clear, to mobilize the mass of Beijing lawyers to assert their legal rights, and prevent the Beijing Bar Association from being controlled and turning into a special 

interest clique. We want to elect representatives who will defend the real interests 

and legal rights of the majority of Beijing’s lawyers. The Lawyer’s Law clearly states 

that the Bar Association is an autonomous social organization and its representatives are chosen by election and of course it must submit to the supervision of its 

members. The Bar Association represents all lawyers. As members we feel an obligation to concern ourselves with the outcome of this leadership transition and actively participate in the election. All of our actions and speech have been aimed at 

56 

promoting the Bar Association’s democratic election and democratic supervision. We 

are doing what members of the Bar Association should do. Our actions are both 

legal and proper. 

But we greatly regret that the Beijing Bar Association considers itself an entity 

independent of its lawyer constituency and has completely inverted the master and 

servant relationship. It not only did not support the active participation of some of 

its lawyer members in its election process, but on the contrary wrote such a threatening and alarming statement in response to this effort. It characterized our completely reasonable call for a reduction of membership fees as ‘‘incitement speech.’’ 

It called our appeal for all lawyer members to participate in the direct election of 

the Bar Association board and presidency as ‘‘the pretense of promoting democratic 

elections.’’ It described our networking via cell phones, the Internet and other legal 

media to generate support and seek candidates as ‘‘illicit coordinating.’’ It describes 

the participating, supporting, and appealing actions of more and more lawyers as 

‘‘not understanding the true circumstances’’ and being ‘‘misled.’’ And it says that 

lawyers taking the initiative as constituents and legally exercising their right to free 

speech and criticizing their insufficient supervision in the past and calling for democratic elections as ‘‘illegal.’’ And it portrays a group of lawyers actively promoting 

the democratic self-government activity of citizens as ‘‘comprehensively violating the 

present Bar Association management system, the justice system, and the political 

system.’’ We are deeply sorry and regretful that at this time in the 21st century that 

our country is trying to carry out the socialist democratic rule of law, the Beijing 

Bar Association would issue such a strong Cultural Revolution-like statement. 

Orderly participation by citizens in promoting progress of the democratic rule of 

law, pursuing people being the master of their own affairs, is our country’s people 

and the ruling party’s objective of struggle. As lawyers actively promoting the democratic election of the representatives of our professional organization, its democratic 

policymaking and democratic supervision completely accords with the tide of history, 

and contrary to opposing the political system as the Beijing Bar Association alleges, 

it actively accords with and puts into practice the political system. This autumn the 

Beijing Bar Association will have its regularly scheduled leadership change. We call 

on all Beijing lawyers to exercise their legal rights and demand to participate in 

the democratic election of new Bar Association representatives. We also hope that 

the Beijing Bar Association, as an autonomous organization of lawyers, accords with 

the law and carries out our called-for direct election of its representatives, reduces 

the membership fee and reflects on its work and welcomes the participation, democratic election, policymaking, and supervision of its lawyer constituents. 

Finally, in view of the Bar Association’s ‘‘Serious Statement’’ slandering our legal 

action, we urgently call on the Bar Association to publicize who participated in the 

drafting and disseminating of this ‘‘Serious Statement’’ and that they issue a public 

apology. We will also continue to look into the legal liability of those who participated in this tortuous action. 

As Beijing Bar Association members, we have the right to reiterate: 

1. The forthcoming leadership transition of the Beijing Bar Association should be 

the result of a direct democratic election. This process should be guided, supervised 

and carried out according to law by the municipal justice bureau and all lawyer 

members of the Beijing Bar Association should participate. 

2. The direct election of the Beijing Bar Association’s president and board of directors should begin from this leadership transition. 

3. To ensure the protection of the legal rights of Beijing’s lawyers to select the 

Bar Association’s representatives, and to promote effective supervision of the Bar 

Association’s work, our draft copy of the ‘‘Beijing Bar Association’s Election Regulations’’ (name can be changed) should be put to a vote and passed if 1/2 the Bar Association membership approves. 

4. Draft the Beijing Bar Association’s written regulations and submit it to the 

membership’s review and evaluation. 

5. Bar Association membership fees should be reasonably readjusted, with at minimum a 50 percent decrease implemented. 

6. Immediately audit and publicize the Bar Association’s past years’ revenue and 

expenditures, and publicize the decisionmaking process and revenue and expenditures of the Bar Association’s office building. 

7. Immediately remove the discriminatory ‘‘W’’ (‘‘waidi’’) mark on the professional 

work cards of lawyers from outside Beijing, and issue an apology to these lawyers. 

Beijing lawyers participating in the ‘‘Accord With the Tide of History, Directly Elect 

the Beijing Bar Association—Announcement To All Beijing Lawyers, Beijing Justice 

Bureau, and the Beijing Bar Association’’ campaign. 

Saturday September 6, 2008. 

57 

PREPARED STATEMENT OF GARDNER BOVINGDON

OCTOBER 7, 2009

HUMAN RIGHTS AND CHINA

The Universal Declaration of Human Rights (UDHR), adopted by the UN General 

Assembly in 1948, is widely cited as an articulation of human rights acknowledged 

around the world, since so many governments were signatory. It identifies among 

those rights freedom of speech, assembly, and association, as well as freedom of religious belief and practice. It also articulates a right to ‘‘seek, receive, and impart information and ideas through any media and regardless of frontiers.’’ http:// 

www.un.org/en/documents/udhr/#atop 

Beijing has long challenged the assertion that there are universal human rights. 

The mildest objection has been that different cultures define human values, and 

rights, differently, and that these differences must be respected. This line was advanced in the 1993 Bangkok Declaration on human rights, to which Beijing was signatory. Some critics have more sharply denounced Americans’ criticisms of China’s 

human rights record as interference in China’s ‘‘internal affairs.’’ Chinese officials 

have long worried that foreign governments, including the United States Government, have invoked concern for human rights in China as a cloak for attempts to 

bring about ‘‘peaceful evolution’’ or, more recently, a ‘‘Color Revolution,’’ both euphemisms for regime change. Similarly, officials have worried since at least the mid1990s that behind criticisms of human rights abuses in Tibet and Xinjiang lie plots 

to separate those territories from China. 

We do well to acknowledge these concerns, and therefore must take pains to avoid 

even the appearance of raising the matter of human rights to serve other, strategic 

aims. When we speak of human rights we ought to focus, first and last, on the conditions of human flourishing—on the ‘‘dignity and worth of the human person,’’ as 

the visionary UDHR puts it—and not on scoring political points. 

That said, the argument that the human rights identified in the UDHR do not 

apply to China or require modification because they are incompatible with Chinese 

culture is unpersuasive, for at least two reasons. First, the PRC Constitution announces in Article 35 that Chinese citizens ‘‘enjoy freedom of speech, of the press, 

of assembly, of association, of procession, and of demonstration.’’ Article 36 adds 

that citizens have ‘‘freedom of religious belief,’’ and Article 41 recognizes the right 

to ‘‘criticize and make suggestions to any state organ or functionary.’’ Second, hundreds of thousands of Chinese citizens, if not many times that number, have sought 

to exercise the very freedoms codified in the Constitution in 1982. They have published wall posters, handwritten manifestoes, journals, and books; they have spoken 

out in public; they have joined political and religious organizations; and they have 

demonstrated and marched peacefully, to express political or religious views. Put 

simply, Chinese citizens have shown that they consider these to be rights by exercising them. 

WHAT HAPPENED IN URUMCHI ON JULY 5, 2009?

Did the events of July 5 begin with an attempt by Uyghurs to exercise such rights 

peacefully? It would appear so, but our information about the course of events on 

that day is still meager. There is evidence that the day began with a peaceful protest against the government’s handling of a factory brawl in Shaoguan, Guangdong, 

the night of June 25 and 26, in which two Uyghurs were killed and more than one 

hundred injured. There is also abundant evidence of violence against property and 

people on that day. A number of questions remain: 

• Who organized the protest? Chinese authorities blame Rabiya ̈ Qadir (Rebiya 

Kadeer) and others abroad. She denies the charge. It has been reported that 

students in Urumchi circulated comments on the Internet about the handling 

of the Shaoguan incident and proposing a demonstration. It also appears that 

the government, knowing of these comments, detained students on the morning 

of July 5 to prevent them from participating in the demonstration. Whether or 

not figures outside Xinjiang played some role in organizing the protest, there 

is strong evidence that locals inside Xinjiang did have a role. Moreover, the 

large number of participants in the protest suggests that we must look locally 

for its sources. In plain terms, no amount of orchestration from outside Xinjiang 

could have produced a protest or riot of this scale in the absence of large numbers of people willing to participate. 

• Did police respond to violence, or did police action incite demonstrators to violence? There is insufficient information to answer this question now. Chinese 

sources argue the former, Uyghur organizations abroad the latter. The heavy 

58 

1 Bovingdon, Gardner. 2002. ‘‘The Not-So-Silent Majority: Uyghur Resistance to Han Rule in 

Xinjiang.’’ Modern China 28 (1):39–78. Bovingdon, Gardner. 2004. ‘‘Autonomy in Xinjiang: Han 

Nationalist Imperatives and Uyghur Discontent.’’ Policy Studies (11):1–64. Bovingdon, Gardner. 

Forthcoming 2010. The Uyghurs: Strangers in Their Own Land. New York: Columbia University 

Press. 2 Becquelin, Nicolas. 2004. ‘‘Criminalizing Ethnicity: Political Repression in Xinjiang.’’ China 

Rights Forum (1):39–46. 3http://www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=128444. While it may seem an 

odd choice to cite CECC materials in testimony before the CECC, I have done so only after confirming the sources they cite and determining to my satisfaction that the summaries and arguments are sound and comprehensive. 

politicization of the events and their aftermath make it unlikely that reliable, 

unbiased information will emerge soon. 

• What were the sources, and aims, of the protest? Again, it is impossible to 

answer this question definitively. The Shaoguan incident was clearly a spark, 

but Uyghurs have raised many other grievance in prior years, and there is 

considerable evidence of widespread Uyghur dissatisfaction with Xinjiang’s governance.1 In blaming the July 5 events on outside instigators and local manipulators, and in claiming that most participants were ‘‘members of the masses 

who did not understand the real situation’’—a standard rhetorical figure—the 

Chinese government has sought to direct attention away from Uyghur grievances and the question of how they might legitimately be expressed. The 

government has justified its very strong police and judicial response by characterizing the July 5 events as ‘‘terrorist’’ and an episode of ‘‘beating, smashing, 

and looting.’’ It is safe to say, however, that the police response, the official 

characterization of the episode, and the judicial handling of accused participants 

are likely to have a chilling effect on those considering protest or public dissent 

in the future. 

HUMAN RIGHTS IN XINJIANG

The evidence on human rights in Xinjiang over the last year is mixed, and there 

is some justification for cautious optimism. On the whole, however, the human 

rights situation in Xinjiang in 2008–9 appears no better than, and indeed in some 

regards worse than, in years prior. 

One bright spot was government decisions to free individuals detained for questioning on what appear to have been political grounds. The most prominent example 

was the outspoken Uyghur economist Ilham Tohti, arrested several times in connection with his blog ‘‘Uighur Online,’’ and arrested once again after the July 5 riots. 

He was released August 23. 

Another bright spot was the decision to invite a group of foreign reporters to 

Urumchi to inspect the aftermath of the July 5 riots firsthand. This was a marked 

departure from the media blackout Beijing imposed in the wake of the March 2008 

protests in Tibet. 

On the other hand, various aspects of the official response to the July 5 events 

are worrying. Within a day the government had shut down Internet service, cut off 

various text messaging services, and curtailed cell phone service. Officials announced soon after the July 5 events that they had shut down the Internet to ‘‘to 

quench the riot quickly and prevent violence from spreading to other places.’’ A 

check of major government and news web sites in Xinjiang this morning confirmed 

that they are still inaccessible more than 3 months later. It should be noted that 

whatever the intention, shutting down modes of electronic communication abrogates 

the stipulation in the UDHR that all have a right to ‘‘seek, receive, and impart information and ideas through any media and regardless of frontiers.’’ 

Second, there is evidence that officials used a very free hand in detaining individuals in connection with the events. Human rights organizations have argued that 

the Chinese government ‘‘criminalizes’’ the public expression of political dissent in 

Xinjiang, and the handling of the July 5 protesters unfortunately confirms that suspicion—as did, unhappily, the detention of large numbers of Uyghurs in the runup 

to the 2008 Summer Olympics.2

Third, the government has sought to discourage lawyers and law firms from handling the cases of individuals accused of participating in the July 5 events. It has 

also announced the intention to select and prepare the lawyers who will try the 

cases, with the worrying implication that the lawyers chosen will lack experience 

with criminal cases and will have received prior instructions on how cases ought to 

be decided.3 Furthermore, in very publicly characterizing the July 5 events as a 

‘‘riot,’’ and in attributing its organization and aims to ‘‘separatists’’ and ‘‘terrorists,’’ 

59 

4http://www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=125102 and http:// 

www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=125058. Please see the previous footnote 

for a justification of these citations. 

the government has dramatically compromised the likelihood that the accused will 

enjoy a presumption of innocence and receive fair trails. 

Over the last year, officials have also placed further restrictions on Uyghur religious belief and practice, more closely regulating—and possibly purging the ranks 

of—female clerics and further discouraging religiosity among minors.4

Æ