China Comment

Energy, Environment, and Economy

Rule of Law- Not Human Rights

With Beijing receiving the 2008 Olympics, controversy erupted over China’s alleged human rights violations  and lack of democracy. Many Chinese often argue stability must be valued first before human rights can be guaranteed. While the Chinese might consider the issue too narrowly, international calls for democracy and human rights are a bit too broad and disorderly when unaccompanied by a theoretical basis that can apply to the Chinese situation. Instead of dwelling on broad concepts, China and international critics should join together to help China focus on promoting a standardized, streamlined, non-arbitrary Rule of Law.

China has progressed toward the rule of law. China currently has over 110,000 lawyers (as of 2000),  114,000 lawyers (as of 2005), and allegedly 165,000 registered lawyers (as of 2008). In 2002, the Chinese began having full-time government lawyers who advise courses of action. Still, as Xinhua states, China needs more lawyers. Its ratio of lawyers to populace is surprisingly low, so China has expanded schooling and opportunities to increase the number and quality of lawyers.

To bridge the gap of lack of legal expertise, China expanded its Xinfang system. According to Yale, “Some 10 million complaints are pursued through the traditional “letters and visits” (xinfang) system,” which can best be described as “aggrieved parties send petition letters or visit the xinfang office of a higher level of the administrative government in order to seek compensation, an apology or to correct mistakes made by a lower level of the administration…The xinfang office has its roots in the traditional top-down system of government where ordinary citizens rely on higher levels of government to alleviate their suffering” (China Labor Bulletin).

In China, extra-judicial solutions to problems are often practiced. “Some estimates based on available statistics reasonably suggest that there were perhaps four or five million administrative Xinfang petitions a year during the 1996-2004 period, but only around one hundred thousand administrative complaints filed with the courts” (Zhang, 4). According to the CFR, as of 2007: “There are 10 million to 13 million petitions filed every year as compared to 90,000 to 100,000 administrative lawsuits in China’s courts.

“Petitions, however, carry no legal weight to compel government offices to respond… according to some estimates only 0.2 percent of petitioners received a response in 2005.” That’s a huge problem.

The failure of Xinfang to fully address problems in China underscores a need for further establishment of legal tradition. When cases are administratively blocked or ignored, and root problems go unaddressed, the people lose, become bitter, and may join the over 70,000 protests that occur almost every year. 

A better developed court system can help take some of the stress off of would-be protest-situations such as the harrowing Weng’an Incident. One party secretary stated that although the girl’s death may have been the incident’s proximate trigger, “the deep structural reason is that there had been frequent infringements of citizen rights over the relocation of migrants, demolition of buildings and mining rights disputes.”

The Xinfang system and the courts had failed to properly deal with these problems, which contribuited to the rationale for people to riot. Indeed, in Weng’an’s aftermath, Beijing fired people in the Weng’an government for mismanagement.

Currently, many judges lack full judicial training and sophisticated legal knowledge since many are merely ex-military officers. (Also, Will Hutton’s comments… Although he appears to have a chip on his shoulder about China, so perhaps his data should be taken with a grain of salt.) (Also, for a note on the quality of Chinese lawyers and some theories on why a fair amount of Chinese lawyers are poor in quality, please read this anecdote [also please see the post’s comments for more nuanced views by Chinese].)

Still, if China follows its own Constitution (And see: Human Rights in China’s Constitution), the country would commit few “human rights abuses,” probably no more than the United States’. 

Fear appears to be the basis for China at times falling short of a “rule of law,” since many are locked up for “endangering the state” and “releasing state secrets,” which are often trumped-up charges that supersede other Constitutional rights of free speech in even worse ways than the US’ notorious Alien and Sedition Acts.

Before “human rights” can be guaranteed, China’s existential fears needs to be eliminated. The country, the state, and the party needs to gain confidence that following Constitutional laws can guarantee the “interests of the people.” By following its own Constitution instead of being ruled by fear, China can guarantee a standardization of law that will make living and litigating fairer- which would do more to guarantee human rights than mere foreigners organizing letter-writing campaigns or in governments and Human Rights Watch scolding Hu Jintao.

Conclusion

If China moves from being “ruled by law” to practicing “rule of law,” then grasping of nebulous concepts such as “human rights” and “democratization” will likely follow, since base-lying concepts of freedom of speech and other freedoms are already enshrined in the Chinese Constitution.

It would be nice if Human Rights Watch and Amnesty International and other NGOs dedicated to improving rights in China could focus more tightly on improving LAW in China. It appears a key failure in the Chinese system right now is lack of expertise. If money, time and energy is invested in developing such expertise, then China will more quickly see a modern legal culture emerge! 

Appendix:

* Longer descriptions of Xinfang are in Carl F. Minzer’s article and in Zhang, Taisu, “The Xinfang Phenomenon: Why the Chinese Prefer Administrative Petitioning Over Litigation.”

Zhang gives an interesting theory on the overuse of the Xinfang system, which only results in positive judgements for accusers 0.2% of the time, compared to 30% for administrative suits. As he argues:

“It may be possible to present the explanation proposed here as a more advanced version of the “rational choice” theory. This would necessarily be based on the long-term interests of petitioners: they might value their long-term relationship with local authorities more than their short-term interest in resolving the dispute…Since the heightened “adversarialism” of the litigation system would seem to damage that long-term relationship more than Xinfang petitioning, petitioners are willing to bear with a lower chance of short-term success” (Zhang, 31). 

The main problem with this argument though is, after the Xinfang petition fails, why don’t the villagers bring the problem to the local courts? And Zhang admits that is a puzzle. He eventually conclude that “dislike of “adversarialism” had simply prejudiced petitioners against litigation” (Zhang, 31) and “the best explanation for the Xinfang system’s superior popularity over administrative litigation is the latter’s inflexible and more adversarial procedure, which stems from its prohibitions against mediation and private trials” (Zhang, 32). Ultimately, Chinese citizens’ predeliction for Xinfang is an interesting phenomenon, and one worth further study.

* Chinese Law and Politics Blog also discussed the Xinfang System.

23 July, 2008 Posted by | China Law, China Stability | , , , , , , , , | Leave a comment

John McCain’s China Policy

If John McCain, the presumptive American Republican Party presidential candidate wins in November 2008, his China policy appears to be one of seeking to maintain positive relations while attempting to convince China to become a responsible stakeholder in international affairs.

McCain’s voting record in the Senate indicates a relatively benign attitude toward China-US relations, but his recent campaign rhetoric indicates he might take a harsher line toward China. Then again, President Bush was harsh on China when he came into office, and that shifted sharply once he came to believe that although it might be popular to malign the country, the US might benefit by cooperating with the Asian state.

The often-quoted Yan Xuetong of “Qinghua University says Chinese-U.S. relations might be more stable under a McCain presidency than with either Democrat.”

I invite you to look below and come to your own conclusions about McCain’s statements on China.

CHINA DEMOCRATIZATION AND HUMAN RIGHTS

In (1999), McCain said that “we need not shrink from a strong advocacy of religious and political freedom [in China].” Shades of this statement were echoed McCain’s his April 2008 comments in regard to Beijing’s response to unrest in T*b*t; “If Chinese policies and practices do not change, I would not attend the opening ceremonies… It does no service to the Chinese government, and certainly no service to the people of China, for the United States and other democracies to pretend that the suppression of rights in China does not concern us. It does, will and must concern us.”

(All three Presidential candidates echoed similar statements regarding attendance of the opening ceremonies.)

McCain went on to urge China to engage in “a genuine dialogue” with T*b*ts spiritual leader. McCain said: “I have listened carefully to the D@l&i L&ma, and am convinced he is a man of peace who reflects the hopes and aspirations of T*b*t*ns.” He went on to say, “I urge the Chinese authorities to ensure peaceful protest is not met with violence, to release monks and others detained for peacefully expressing their views and to allow full outside access to T*b*t.”

DIPLOMACY AND ECONOMICS

He promotes economic engagement with China (1999), and voted for normalized trade relations with China in 2000. He appears to be a “free trade” Republican who believes that lowering barriers will increase democratization, make others wealthy and lead to peace. It appears McCain subscribes to the Thomas Friedman’s “Golden Arches Theory of Conflict Prevention” (Scroll down to see the definition).

However, in recent years, his statements in regards to China have turned more belligerent. In response to unsafe toy scandals in April 2008 McCain said “If I were president of the United States, the next toy that came into this country from China that endangered the lives of our children, it would be the last,”

McCain also implied that “the G-8 should be limited to democracies,” according to a Bloomberg article reposted on The China Post, which implies he would keep China, and Russia out of the world’s major economic decisions. The economic and political wisdom of keeping some of the most powerful economic powers away from the discussion table is a bit murky. Perhaps pressure-tactics might encourage a change in attitude by the countries- but that remains to be seen.

It appears McCain is willing to confront Beijing on issues such as their support for Myanmar (Burma) and China’s continued trade dealings with Sudan. As he said in May 2008, “”I would hope” Americans would sell stocks and other investments tied to Sudan, McCain told reporters… “because I think that government obviously is one that has done virtually nothing to prevent the genocide that is taking place in Darfur.”

His comments are a bit odd, coming as they did soon after China sent over 140 engineers and troops to Sudan, but it is a fact that China’s promotion of Sudan’s “national sovereignty” has resulted in it pushing for watered down UN votes sanctioning Sudan over its treatment of the minorities in the Darfur region.

CHINA AND TAIWAN

“Guarding against Chinese threats to our strategic interests in Asia is a sound rationale for helping reduce the growing threat to Taiwan from a mainland missile attack” (1999).

Considering McCain’s interest in East Asian security, it is likely he will support the continued de facto independence of Taiwan. He would unlikely, however, support de jure independence, seeing as he has previously spoken of a “One China” principle.

CONCLUSION

John McCain appears willing to challenge China on shoddy imports, and human rights. He also appears willing to seek to maintain American military interests in the region and may subscribe to a view that America’s long-term world-competitors are large states rather than small. This would encourage him to expand the size of the professional military, and perhaps purchase a larger amount of F-22s.

If McCain speaks most belligerently about China, it will be in regards to T*b*t, or Taiwan. While he has been noted for his compassion for the Sudanese people, beyond the stock sell-off he has had little to say directly on the subject.

Of course, American forces in East Asia are currently being drawn down as troops are moving gradually from  South Korea to Guam. The drawdown of US troops could ameloriate Chinese fears of American encirclement.

McCain would try to keep the trade levers open between the countries, believing trade would be mutually beneficial. McCain’s past record is of promoting economic policies that satisfy China, and benefit America by creating a more efficient supply-chain. These policies do much toward peacefully co-existing with the Chinese State.

It appears that a McCain presidency, though potentially confrontational in regard to Chinese human rights and shoddy merchandise, would tend to reflect George Bush’s status quo of criticising China, while still increasing trade, and working toward dialogue. That is, if the OLD free trade McCain overcomes the populist G-8 and dialogue-limiting McCain that has appeared in the 2008 election cycle. If the new, more belligerent McCain crafts China policy, then pressure and stresses might develop in the Sino-US international relationship.

* The major source article for this analysis was the CFR’s analysis of Presidential Candidates’ China views.

* John McCain’s major foreign policy article in Foreign Affairs is “An Enduring Peace Built on Freedom.”

12 June, 2008 Posted by | China Future | , , , , , , | 1 Comment