Saturday, October 1, 2011
It might seem a bit odd to post about this on a Chinese law blog, but the matter concerns religious law and its interaction with secular law in a territory under the control of the government in Beijing, so why not? Just as important, I'm posting an explanation of what it's all about by Tibetologist Robbie Barnett of Columbia. Those who don't understand the finer points of Tibetan Buddhism - that is to say, most of us - are going to miss important aspects of this announcement if we don't read Professor Barnett's Cliff's Notes (which I post here with his permission). I doubt if this level of understanding is accessible to the layman anywhere else, so here it is.
Here is the Dalai Lama's statement
Here are Prof. Barnett's notes on this statement; below are the first three paragraphs:
On September 24 2011 The Dalai Lama issued a statement on “the issue of his reincarnation”. The full text is at http://dalailama.com/messages/tibet/reincarnation-statement. It was issued following a meeting of the leaders of the main schools or sects of Tibetan Buddhism in Dharamsala, Northern India.
The timing is in part a response to the series of announcements by the authorities in Beijing in recent years that only they can select the next Dalai Lama. This claim was formalized in a legal document known “Order No. 5” issued by the State Administration of Religious Affairs in August 2007 (see http://english.peopledaily.com.cn/90001/90776/6231524.html and http://www.savetibet.de/fileadmin/user_upload/content/berichte/Briefing_Papier_Reinkarnationsgesetz.pdf).
It also relates to the decision by the Dalai Lama this March, formalized on May 29th, to end the “Ganden Phodrang” system. That term had referred to the government led by the Dalai Lamas in Tibet since 1642 and in exile since 1959. Since May, it refers just to the private estate or office of the Dalai Lama. Technically the Dalai Lama is now just a religious figure, and his announcement relates to this new role, addressing the future continuity of his lineage if indeed it is decide that it is beneficial to continue it. But in practice his statement is much greater significance than that, because he remains the symbolic heart of Tibetan nationhood – a role noted in the exiles’ new constitution – and of far greater importance to Tibetan people, and therefore to Chinese policy-makers, than the government.
Saturday, July 23, 2011
After 12 years of struggling to avoid deportation, Lai Changxing finally lost his last court battle and was deported to China. Whatever one might think about the case, it's rather remarkable that the judge found that “Mr. Lai has failed to establish that he will suffer irreparable harm if he were returned to China.” Say what? Of course, irreparable harm is not and cannot be the only consideration; the same could be said of the guiltiest criminal ever, to be tried under the fairest procedures ever. Here's Jerome Cohen's commentary.
Friday, July 1, 2011
Saturday, March 12, 2011
On March 11, the WTO's Appellate Body (AB) issued a decision in a dispute between China and the US. As with most decisions, some things went one party's way and some things went the other party's way, but it's basically a win for China (WSJ report here). Certainly that's how it was perceived by USTR Ron Kirk, who said he was "deeply troubled" by the AB's report. "It appears to be a clear case of overreaching by the Appellate Body."
Two of the major issues were (1) whether state-owned enterprises should be counted as "public bodies" for purposes of Article 1 of the Agreement on Subsidies, and (2) whether it was permissible to impose duties under both the Antidumping Agreement and the Agreement on Subsidies for the same price advantage - that is, to double count, resulting in duties amounting to more than the extent of "unfair" competition.
On the first issue, the problem with the US approach was that it insisted that majority state ownership per se made an enterprise into a "public body", and that there was no need to look at any other facts. The AB rejected this per se rule, but left the door wide open to arguments that particular SOEs could be "public bodies".
On the second issue, the AB decision has been reported as saying that it’s a violation to impose both antidumping (AD) duties and countervailing (CV) (antisubsidy) duties at the same time. This is almost true, but not quite. As I read the AB decision, it’s saying that double-counting (i.e., imposing antidumping and countervailing duties that amount to more than the total unfair price advantage that is to be offset) is a violation. I think the AB decision still allows for simultaneous AD and CV duties provided they don’t present a double-counting problem, and (for reasons explained in the decision) it’s theoretically possible they wouldn’t.
I am not a trade law expert, but but the idea that the AB overreached or did something awful in finding against the US on this strikes me as absurd. The US position was not that there was no double counting; it was that double counting was quite OK because the relevant agreements didn’t specifically prohibit it. This argument, if raised by some other country to the disadvantage of the US and accepted at the WTO, would surely provoke hyperventilation in Congress. At least as far as it’s reflected in the AB report, the US made no policy-based arguments as to why its interpretation would be a good thing for the international trade regime; it just said, "Hey, the agreements don’t bar it, so we can do it." I don’t see how this argument can be defended with a straight face as anything other than protectionist in the most pejorative sense of the term. It is asking for relief for domestic industry that goes beyond any damage caused by “unfair” trade practices. (The WTO does allow this kind of relief in some cases, but there are special rules about it in the Agreement on Safeguards.) I might add that the US Court of International Trade, which is a trade law expert and can't be accused of anti-US bias, took the AB's position on the same issue in the same case in 2009 (the US government is currently appealing the decision to the Court of Appeals for the Federal Circuit). If there's overreaching being done, it's not by the AB.
The common theme running throughout the decision seems to be a rejection of per se approaches and an insistence on looking at the particular facts of any question.
Sunday, February 20, 2011
Tuesday, February 15, 2011
A former student just passed along an interesting article on the problems US investors face in bringing actions under US securities laws against Chinese companies listed in US stock markets. I recommend it. I want to add a few points that aren't made in the article, though.
- The defendant in these suits is not always a Chinese company. In the example given in the article, the defendant, LDK Solar Co., Ltd., is actually a Cayman Islands corporation. Of course, it is in substance a Chinese company: it was set up with the sole purpose of holding the equity in a Chinese firm and then listing its shares abroad. But it is organized under the corporate law of the Cayman Islands, and that at times will make a difference.
- The defendant is not - or need not be - always a company. If there's fraud going on, there are fraudsters. The problems that apply in suing a company may not apply in suing a person, and of course vice versa. While a single person's wealth may not be enough to compensate defrauded investors, the prospect of a large adverse US judgment might be a deterrent to the many wealthy individuals in China who contemplate travel to, or property ownership in, the United States or any other jurisdiction that enforces US judgments. Thus, plaintiffs are not completely without leverage.
- If the defendant company is organized under Chinese law, it almost certainly has a provision in its Articles of Association calling for all shareholder disputes with the company or its management to be settled through arbitration. In other words, shareholders have agreed by contract never to sue in court.
- This provision is required by China's Securities Regulatory Commission in its Mandatory Provisions of Articles of Association of Companies Seeking Overseas Listing (到境外上市公司章程必备条款). [CORRECTION 20 Feb. 2011: The provision is required only in companies listing in Hong Kong; thanks to Joseph Wang for kindly pointing this out. It is allowed and I believe encouraged in companies listing elsewhere. The provision in fact appears in the Articles of at least some companies listed on US exchanges, and of course it would appear in the Articles of Chinese companies listed in Hong Kong that also issued shares or ADRs elsewhere.] The Provisions were promulgated in 1994 and, amazingly, are still in effect; the provision on arbitration was, to the best of my knowledge, intended to favor shareholders because the general opinion of Chinese courts at that time, even among Chinese government officials, was low. I don't know if the CSRC realized it was purporting to shut shareholders out of foreign courts as well. In effect, the rule makes US-style securities class actions impossible. The strength of the US-style class action is not only that it aggregates a number of small claims not worth suing over on their own, but also that it makes settlement possible, because non-parties can (contrary to the usual rule of civil procedure) be bound by the judgment. That can't happen in arbitration.
- "Wait," I hear you saying. "Are you kidding? Surely a company can't avoid the reach of federal securities law so easily!" And indeed, maybe not. I've often wondered what a US court would do if a Chinese defendant in a securities suit raised this provision as a defense. I tend to think it would find the provision void as against public policy. I once tried to verify this intuition when looking at an actual federal class action against a Chinese company organized under Chinese law but listed in the US. I went on Edgar and found the defendant's Articles of Association. I verified that they had the provision in question. I then looked at the briefs in the case and found the name of the lawyer and firm who handled the defense. And I emailed him to ask if he would be able to tell me whether this provision had been raised as a defense, and if not, why not. Never heard back. Coincidentally, shortly thereafter I had some friendly dealings with another partner in his firm. I asked that person to check with the lawyer in question to see if my email had been received and whether he felt comfortable answering it. Back came the answer: email received, but he'd rather not respond, even if only to say that he'd rather not respond. So I'll never know whether they declined to raise the arbitration provision as a matter of litigation strategy, or whether they just didn't notice it.
- Although I haven't researched the question systematically, I don't recall ever hearing of the arbitration provision being raised as a defense when US-listed Chinese companies are sued, and no lawyer or SEC person I've talked to has ever heard of this being done, either. So I think it remains merely an interesting theoretical question.
- Investors can't exactly say they weren't warned. I've looked in the "Risk Factors" section of a number of prospectuses of Chinese companies listing in the US, and my recollection is that they are typically pretty open about the possibility that the controlling shareholder may act against the interests of other shareholders or the company, and there's not a lot anyone will be able to do about it under anyone's law. The prospectus for the company mentioned in this article, LDK Solar, is no exception, warning investors as follows:
You will have limited ability to bring an action against us or against our directors and officers, or to enforce a judgment against us or them.
We are incorporated in the Cayman Islands and conduct substantially all of our operations in China through our wholly owned subsidiary established in China. Most of our current directors and officers also reside outside the United States. Substantially all of our assets and the assets of those persons are located outside the United States. As a result, it may be difficult or impossible for you to bring an action against us or against these individuals in the United States, in the Cayman Islands or in China in the event that you believe that your rights have been infringed under the applicable securities laws or otherwise. Even if you are successful in bringing an action of this kind, the laws of the Cayman Islands and of China may render you unable to enforce a judgment against our assets or the assets of our directors and officers. For more information regarding the relevant laws of the Cayman Islands and China, see “Enforceability of Civil Liabilities” in this prospectus.
But as we know, nobody ever reads the Risk Factors!
Monday, February 7, 2011
Wednesday, January 19, 2011
OK, I understand. Not everyone can take the time to learn Chinese. And with some romanized Chinese names you can't tell which is the surname and which is the given name. Still, is there any excuse for the White House protocol people, who are professionals, not to know which is which when they are preparing the list of guests for the state dinner in honor of Hu Jintao? This is their job!
Here's the list as published by the White House. With the exception of the President, Mrs. Obama, and Hu Jintao, they are listed in what appears to be intended to be alphabetical order by surname. But the Chinese guests (who presumably supplied their names in Chinese order with the surname first) have been inserted in alphabetical order by given name, so (for example) Minister of Commerce CHEN Deming appears between William DALEY and Jamie DIMON. C'mon, people. This isn't rocket science.
THE PRESIDENT and MRS. OBAMA
HIS EXCELLENCY HU JINTAO
The Honorable Madeleine Albright, Washington, D.C.
Ms. Alice Albright
Ms. Christiane Amanpour, ABC News, New York, NY
Mr. James Rubin
The Honorable David Axelrod, Assistant to the President and Senior Advisor
Mrs. Susan Axelrod
Mr. Jeffrey Bader, National Security Council
Ms. Rohini Talalla
The Honorable Elizabeth Bagley, Washington, D.C.
Mr. Kevin Frawley
Mr. Steven Ballmer, Microsoft, Redmond, WA
Mrs. Connie Ballmer
Ms. Bette Bao Lord, New York, NY
The Honorable Winston Lord
Mrs. Denise Bauer, Belvedere Tiburon, CA
The Honorable Howard Berman, Representative from California
Mrs. Janis Berman
Vice President Joseph R. Biden, Jr.
Dr. Jill Biden
The Honorable Joseph Beau Biden, III, Attorney General of Delaware, Wilmington, DE
Mrs. Hallie Biden
His Excellency Zheng Bijian, Chairman, CIIDS
His Excellency Dai Bingguo, State Councilor
Mr. Lloyd Blankfein, Goldman Sachs, New York, NY
Mrs. Laura Blankfein
The Honorable Antony Blinken, Deputy Assistant to the President and National Security Advisor, Office of the Vice President
The Honorable Stephen Breyer, United States Supreme Court
Dr. Johanna Breyer
Mr. Greg Brown, Motorola, Schaumburg, IL
Mrs. Anna-Louise Brown
The Honorable Dr. Zbigniew Brezezinski, McLean, VA
Mrs. Emilie A. Brzezinski
The Honorable Kurt M. Campbell, Assistant Secretary of State for East Asian and Pacific Affairs
The Honorable Lael Brainard, Under Secretary of the Treasury for International Affairs
The Honorable James E. Carter, former President of the United States
Mrs. Rosalynn Carter
Mr. Jackie Chan, Beverly Hills, CA
Mr. Phillip Button
The Honorable Elaine Chao, Washington, D.C.
Dr. James Chao
His Excellency Wang Chao, Vice Minister for Commerce
His Excellency Tung Chee Hwa, Vice Chairman, CPPCC, former Hong Kong Chief Executive
Mr. John A. Chen, Chairman, Committee of 100, New York, NY
Mrs. Sherrie Chen
The Honorable Chris Christie, Governor of New Jersey, Trenton, NJ
Mrs. Mary Pat Christie
The Honorable Judy Chu, Representative from California
Ms. Chiling Tong
The Honorable Steven Chu, Secretary of Energy
Mrs. Jean Chu
The Honorable Hillary R. Clinton, Secretary of State
The Honorable William J. Clinton, former President of the United States
The Honorable James E. Clyburn, Representative from South Carolina
Mr. John Clyburn
The Honorable Richard Daley, Mayor of Chicago, Chicago, IL
Mrs. Maggie Daley
The Honorable William Daley, Assistant to the President and Chief of Staff
Ms. Bernadette Keller
His Excellency Chen Deming, Minister of Commerce
Mr. Jamie Dimon, JP Morgan Chase & Co., New York, NY
Mrs. Judith Dimon
The Honorable Thomas Donilon, Assistant to the President and National Security Advisor
Ms. Cathy Russell, Chief of Staff to Dr. Jill Biden
The Honorable Arne Duncan, Secretary of Education
Mrs. Karen Duncan
Mr. James Fallows, The Atlantic, Washington, D.C.
Mrs. Deborah Fallows
Mr. Xie Feng, Director General, MFA
Mr. Thomas Friedman, The New York Times, Washington, D.C.
Mrs. Ann Friedman
The Honorable Michael B. Froman, Deputy Assistant to the President and Deputy National Security Advisor for International Economic Affairs
Ms. Nancy Goodman
His Excellency Wan Gang, Minister of Science and Technology
The Honorable Robert M. Gates, Secretary of Defense
Mrs. Becky Gates
The Honorable Timothy F. Geithner, Secretary of the Treasury
Mrs. Carole Geithner
Mr. Mark Gilbert, Boca Raton, FL
Mrs. Nancy Gilbert
The Honorable Chris Gregoire, Governor of Washington, Olympia, WA
Ms. Courtney Gregoire
His Excellency Zhu Guangyao, Vice Minister for Finance
His Excellency Zhang Guobao, Vice Minister for NDRC
Mr. Herbie Hancock, Los Angeles, CA
Mrs. GiGi Hancock
The Honorable Dr. John P. Holdren, Assistant to the President and Director of the Office of Science and Technology
The Honorable Robert Hormats, Under Secretary of State for Economic, Business, and Agricultural Affairs
The Honorable Steny Hoyer, Representative from Maryland, Democratic WHIP
His Excellency Wang Huning, Director of the Policy Research Office of CCCPC
The Honorable Jon Huntsman, U.S. Ambassador to China
Mrs. Mary Kaye Huntsman
Mr. Robert Iger, The Walt Disney Company, Burbank, CA
Ms. Willow Bay
Mr. David Ignatius, The Washington Post, Washington, D.C.
Dr. Eve Ignatius
Mr. Jeff Immelt, General Electric, Fairfield, CT
Mrs. Andrea Immelt
The Honorable Valerie Jarrett, Senior Advisor and Assistant to the President for Intergovernmental Affairs and Public Engagement
His Excellency Li Jiaxiang, Vice Minister for Transportation
His Excellency Yang Jiechi, Minister of Foreign Affairs
His Excellency Ling Jihua, Director of the General Office of CCCPC
Mr. Robert Kagan, McLean, VA
Ms. Victoria Nuland
Mr. Michael Kempner, East Rutherford, NJ
Mrs. Jacqueline Kempner
Mr. Muhtar Kent, Coca-Cola, Atlanta, GA
The Honorable John F. Kerry, Senator from Massachusetts
Mrs. Teresa Heinz Kerry
Mr. Robert King, UAW, Detroit, MI
Ms. Julie Kushner
The Honorable Ron Kirk, United States Trade Representative
Mrs. Matrice Ellis-Kirk
The Honorable Henry Kissinger, New York, NY
Mrs. Nancy Kissinger
Mr. Nicholas Kristof, The New York Times, Scarsdale, NY
Ms. Sheryl WuDunn
Ms. Ellen Kullman, DuPont, Wilmington, DE
Mr. Michael Kullman
Dr. Zhang Kunsheng, Director-General, Protocol Department
Ms. Michelle Kwan, Torrance, CA
Mr. Lang Lang, New York, NY
Mrs. Zhou Xiulan
The Honorable Jacob Lew, Deputy Secretary of State for Management and Resources
Ms. Maya Lin, New York, NY
Mr. Daniel Wolf
Ms. Limin Liu, Reno, NV
Dr. Hugh Shapiro
Mr. Andrew N. Liveris, The Dow Chemical Company, Midland, MI
Mrs. Paula Liveris
The Honorable Gary Locke, Secretary of Commerce
Mrs. Mona Locke
The Honorable Christopher Lu, Assistant to the President and Cabinet Secretary
Ms. Kathryn Thomson
The Honorable Richard Lugar, Senator from Indiana
Mrs. Charlene Lugar
Mr. Yo Yo Ma, Burbank, CA
Ms. Jill Hornor
The Honorable Capricia Marshall, Chief of Protocol, Department of State
Mr. W. James McNerney, The Boeing Company, Chicago, IL
Mrs. Haity McNerney
Mr. Evan Medeiros, Director for Asian Affairs, NSS
His Excellency Jiang Mianheng, Vice Chairman, CAS
Mr. Mel Monzack, Wilmington, DE
Mrs. Ann Monzack
Admiral Michael G. Mullen, Chairman of the Joint Chiefs of Staff
Mrs. Wendi Deng Murdoch, New York, NY
Mr. James Murren, Las Vegas, NV
Mrs. Heather Murren
The Honorable Thomas Nides, Deputy Secretary of State for Management and Resources
Ms. Virginia Moseley
Mr. Paul Otellini, Intel, Santa Clara, CA
Mrs. Sandy Otellini
The Honorable Nancy Pelosi, Representative from California, Democratic Leader
Mr. Paul Pelosi
His Excellency Zhang Ping, Minister of NDRC
The Honorable David Plouffe, Assistant to the President and Senior Advisor
Ms. Olivia Morgan
Mr. Tom Pritzker, Pritzker Organization, Chicago, IL
Mrs. Margot Pritzker
His Excellency Wang Qishan, Vice Premier of the State Council
Ms. Jean Quan, Mayor of Oakland, CA
The Honorable Edwin M. Lee, Mayor of San Francisco, CA
Ms. Azita Raji, JP Morgan Securities, Inc., Belvedere, CA
Mr. Gary Syman
The Honorable Ben Rhodes, Deputy Assistant to the President and Deputy National Security Advisor for Strategic Communications and Speechwriting
Ms. Ann Norris
The Honorable Susan Rice, United States Ambassador to the United Nations, New York, NY
Mr. Ian Cameron
Mr. Robert Roche, Shanghai, CN
Mr. Kenneth Roth, The Human Rights Watch, Washington, D.C.
Ms. Annie Sparrow
The Honorable Pete Rouse, Counselor to the President
Ms. Courtney Chapin
Mr. David M. Rubenstein, The Carlyle Group, Washington, D.C.
Mrs. Alice Rubenstein
Mr. Kirk Rudy, Austin, TX
Mrs. Amy Rudy
The Honorable Brent Scowcroft, The Forum for International Policy, Washington, D.C.
The Honorable Kathleen Sebelius, Secretary of Health and Human Services
The Honorable Gary Sebelius
The Honorable Susan Sher, Assistant to the President and Chief of Staff to the First Lady
The Honorable Neil Cohen
Mr. Robert Sherman, Boston, MA
Ms. Kim S. Sawyer
His Excellency Chen Shiju, Chief of the President’s Office
The Honorable George Shultz, Stanford, CA
Mrs. Charlotte Shultz
Dr. Patrick Soon-Shiong, Culver City, CA
The Honorable Phil Gordon, Mayor of Phoenix, Phoenix, AZ
The Honorable Gene Sperling, Assistant to the President for Economic Policy & Director of the National Economic Council
Ms. Allison Abner
The Honorable Jim Steinberg, Deputy Secretary of State
Ms. Sherburne B. Abbott
Ms. Barbra Streisand, Malibu, CA
Mr. James Brolin
The Honorable Tina Tchen, Deputy Assistant to the President and Director of the Office of Public Engagement
Mr. John Thornton, The Brookings Institution, HSBC North America, Palm Beach, FL
Mrs. Margaret Thornton
His Excellency Cui Tiankai, Vice Minister of Foreign Affairs
Dr. Stanley Toy, Jr., Pasadena, CA
Ms. Lana Toy
Mr. Luis Ubinas, The Ford Foundation, New York, NY
Dr. Deborah Tolman
Mr. Jose Villarreal, Commissioner General, Shanghai Expo, San Antonio, TX
Ms. Sara Villarreal
Ms. Vera Wang, New York, NY
Mr. Arthur Becker
Mr. Steve Westly, Menlo Park, CA
Ms. Anita Yu
Ms. Anna Wintour, Vogue Magazine, New York, NY
Mr. Shelby Bryan
Ms. Patricia A. Woertz, Archer Daniels Midland, Decatur, IL
Mr. Kelvin R. Westbrook
Mr. B.D. Wong, New York, NY
Mrs. Roberta Wong
Mr. Charles Woo, Mega Toys, Los Angeles, CA
Mrs. Ying Woo
The Honorable David Wu, Representative from Oregon
Ms. Anna Kopperud
His Excellency Xie Xuren, Minister of Finance
His Excellency Zhang Yesui, Chinese Ambassador to the United States
Madam Chen Naiqing
His Excellency Sun Yibiao, Vice Minister for Customs
Tuesday, November 2, 2010
The Wall Street Journal's China Realtime Report writes:
China’s property sector, with its forced evictions and sometimes bloody confrontations, has long been described as something akin to a war zone. Now a team of online volunteers, led by an anonymous Chinese blogger, has launched a map-based project that brings that simile into stark relief.
Called “the Blood-Stained Housing Map,” the project uses Google Maps to plot violent housing evictions and land grabs across the country. The result bears an eerie, and sobering, resemblance to the Guardian’s own Google Maps chart showing deaths recorded in the Wikileaks Iraq war logs.
Friday, October 15, 2010
The following letter has been issued by the signatories in support of Nobel Peace Prize winner Liu Xiaobo. English and French versions follow the Chinese version.
唯色 （ 西藏，作家）
丘延亮 (台北，副研究员 中央研究院民族学研究所)
萨冲 （意大利， 工程师）
郭小林（北京 ， 诗人）
On Liu Xiaobo and the Nobel Peace Prize
The awarding of the 2010 Nobel Peace Prize to Liu Xiaobo, a Chinese citizen, has drawn strong reactions both inside and outside China. This is a major event in modern Chinese history. It offers the prospect of a significant new advance for Chinese society in its peaceful transition toward democracy and constitutional government. In a spirit of responsibility toward China’s history and the promise in its future, we the undersigned wish to make these points:
1. The decision of the Nobel Committee to award this year’s prize to Liu Xiaobo is in full conformity with the principles of the prize and the criteria for its bestowal. In today’s world, peace is closely connected with human rights. Deprivation and devastation of life happens not only on battlefields in wars between nations; it also happens within single nations when tyrannical governments employ violence and abuse law. The praise that we have seen from around the world for the decision to award this year’s prize to a representative of China’s human rights movement shows what a wise and timely decision it was.
2. Liu Xiaobo is a splendid choice for the Nobel Peace Prize. He has consistently advocated non-violence in his quest to protect human rights and has confronted social injustice by arguing from reason. He has persevered in pursuing the goals of democracy and constitutional government and has set aside anger even toward those who persecute him. These virtues put his qualifications for the prize beyond doubt, and his actions and convictions can, in addition, serve as models for others in how to resolve political and social conflict.
3. In the days since the announcement of his prize, leaders in many nations, regions, and major world organizations have called upon the Chinese authorities to release Liu Xiaobo. We agree. At the same time we call upon the authorities to release all political prisoners and prisoners of conscience who are in detention for reasons such as their speech, their political views, or their religious beliefs. We ask that legal procedures aimed at freeing Liu Xiaobo be undertaken without delay, and that Liu and his wife be permitted to travel to Oslo to accept the Nobel Peace Prize.
4. Upon hearing the news of Liu Xiaobo’s prize, citizens at several locations in China gathered at restaurants to share their excitement over food and wine and to hold discussions, display banners, and distribute notices. Normal and healthy as these activities were, they met with harassment and repression from police. Some of the participants were interrogated, threatened, and escorted home; others were detained; still others, including Liu Xiaobo’s wife Liu Xia, have been placed under house arrest and held incommunicado. We call upon the police to cease these illegal actions forthwith and to immediately release the people who have been illegally detained.
5. We call upon the Chinese authorities to approach Liu Xiaobo’s Nobel Prize with realism and reason. They should take note of the responses to the prize inside and outside China and see in these responses the currents in world thinking as well as the underlying preferences of our fellow citizens. China should join the mainstream of civilized humanity by embracing universal values. Such is the only route to becoming a “great nation” that is capable of playing a positive and responsible role on the world stage. We are convinced that any signs of improvement or goodwill from the government and its leaders will be met with understanding and support from the Chinese people and will be effective in moving Chinese society in a peaceful direction.
6. We call upon the Chinese authorities to make good on their oft-repeated promise to reform the political system. In a recent series of speeches, Premier Wen Jiabao has intimated a strong desire to promote political reform. We are ready to engage actively in such an effort. We expect our government to uphold the constitution of The People’s Republic of China as well as the Charter of the United Nations and other international agreements to which it has subscribed. This will require it to guarantee the rights of Chinese citizens as they work to bring about peaceful transition toward a society that will be, in fact and not just in name, a democracy and a nation of laws.
Communiqué sur l’attribution du Prix Nobel de la paix à Liu Xiaobo
Le citoyen chinois Liu Xiaobo a obtenu le prix Nobel de la paix 2010. Cette nouvelle a eu un impact extraordinaire tant en Chine qu’à l’étranger. C’est un événement historique pour la Chine contemporaine, une nouvelle occasion pour elle d’effectuer une transition pacifique vers un gouvernement constitutionnel. Dans un esprit de responsabilité devant l’histoire, et devant le destin futur de la Chine, nous publions le communiqué suivant :
1)L’attribution par le comité Nobel du prix Nobel de la paix à Liu Xiaobo correspond aux objectifs et aux critères d’attribution de ce prix. Dans la société contemporaine, la paix est inséparable des droits de l’Homme, la privation de la vie et son piétinement ne se produisent pas seulement sur les champs de bataille, mais sont également causés par la mise en oeuvre de mauvaises lois et d’une politique de violence.Le concert de louange de la part de l’opinion internationale montre que l’attriution du Prix à une personnalité représentative du mouvement chinois des droits de l’homme est une décision correcte et opportune.。
2) Le choix de Liu Xiaobo pour ce prix est particulièrement juste, car il n’a cessé de défendre les droits de l’homme de manière non-violente, et a toujours adopté une position raisonnable dans sa résistance aux injustices sociales ; il a montré une grande ténacité dans son combat pour obtenir la mise en oeuvre d’un régime constitutionnel,et malgré les persécutions, il est dépourvu de toute haine, ce qui fait de lui un candidat idéal pour le Prix. Les idées et la pratique de Liu Xiaobo constitutent pour les Chinois de mode de résolution des conflits
3) Dès qu’il a obtenu le Prix, les gouvernements de tous les pays, les dirigeants de toutes les régions et de toutes sortes d’organisations n’ont cessé d’exiger des autorités chinoises qu’elles libèrent LXB, ;nous adoptons la même attitude. En même temps, nous appelons les autorités à libérer tous les prisonniers de conscience et les prisonniers politiques enfermé pour des raisons d’idéologie,d’expression ou de foi religieuse.Nous appelons à prendre au plus vite toutes les mesures pour que LXB regagne sa liberté, qu’il soit réuni à son épouse Liu Xia, et qu’il puisse se rendre en personne à Oslo recevoir le prix.
4) En apprenant la nouvelle, dans toute la Chine, des citoyens ravis ont organisé des banquets, des réunions, ont porté des banderolles, distribué des tracts pour célébrer ou discuter l’événement ; ces actions sont tout à fait légales et raisonnables. Mais les policiers ont ont réprimé ces activités, des citoyens ont été gardés à vue, interrogés, menacés, renvoyés dans leur lieu d’origine, voire détenus, placés en résidence surveillée, privés leur liberté d’action, privés de leur droit de communiquer avec l’extérieur, comme l’épouse de LXB Liu Xia. Nous exigeons que la police mette immédiatement un terme à ces actes illégaux et libère immédiatement les citoyens détenus.
5) Nous appelons les autorités chinoises à adopter une attitude raisonnable face à l’attribution du Prix à LXB, et en observant les réactions chaleureuses en chine et à l’étranger, à se mettre en accord avec le courant mondial ; la Chine doit entrer dans le courant principal des valeurs universelles et de la civilisation de l’humanité, et établir l’image d’un grand pays positiv et responsable. Nous sommes convaincus que toute amélioration et toute bonne intention du gouvernement chinois sera accueillie par la compréhension et le soutien de tous, et poussera la société chinoise dans une direction pacifique.
6) Nous appelons les autorités chinoises à tenir leur promesse de réforme du système politique. Le premier ministre Wen Jiabao, dans un ensemble de discours, a récemment manifesté son profond désir de faire avancer la réfome politique, et nous sommes prêts à participer à ce processus. Nous souhaitons que dans le cadre de la Constitution de la République populaire de Chine, de la Charte des Nations Unies qu’il reconnaît, et des traités internationaux qu’il a signés,le gouvernement puisse garantir réellement tous les droits des citoyens, qu’il mette en oeuvre une transition sociale pacifique afin de faire de la Chine un pays démocratique, doté d’un Etat de droit digne de ce nom.
Wednesday, August 4, 2010
In honor of Professor Jerome A. Cohen, who turned 80 on July 1, the New York University Journal of International Law and Politics is seeking papers addressing the interaction between the international legal system and Chinese and East Asian law and legal thought. The deadline is Sept. 24, 2010.
Monday, July 12, 2010
Putting melamine in milk seems a bit like eating peanuts or making Gao Zhisheng disappear; once you start, you just can't stop. I last blogged about this addiction in January; here's a news story showing that tainted milk is still being sold.
What can be done? According to Rio Praaning Prawira Adiningrat, secretary general of the Public Advice International Foundation, "The Chinese government has enormously and effectively responded with new laws and new regulations, and tries to implement this as soon as it can . . . . I think they are absolutely doing the best they can."
One of the effective new regulations showing this zeal is reported here: lawyers being instructed by their governing bodies not to take melamine-related cases.
Saturday, April 24, 2010
Sunday, April 11, 2010
Tuesday, March 30, 2010
Friday, March 26, 2010
On March 1, "[a] group of 13 Chinese newspapers from across the country carried an identical front-page editorial ... calling for the abolition of China’s household registration hukou system in a highly unusual co-ordinated critique of government policy." (Jamil Anderlini, "Call to end China citizen registration system," Financial Times, March 1, 2010) It seems, however, that appropriate advance permission had not been obtained. According to the South China Morning Post, "all the publications involved and most major internet news portals have removed the editorial or reports of it from their websites. According to an editor of another media outlet that ran the editorial, the verdict from the Central Publicity Department was brief: 'This act was inappropriate'." Moreover, the same article reported that "[e]ditors at The Economic Observer, the newspaper which initiated a joint editorial published on Monday criticising the mainland's hukou (household registration) system, have been punished for their bold action as other participating media confirmed a government order to remove the editorial from their websites."
- New York Times
- China Daily (still up as of today)
- Kam Wing Chan, "Making real hukou reform in China," East Asia Forum, March 3, 2010 (Prof. Chan is a former colleague of mine at the University of Washington and an expert on the hukou system)
- Dui Hua Foundation, "Some Thoughts on China’s Hukou System & Its Impact on Criminal Justice," Dui Hua Human Rights Journal, March 8, 2010
- Wall Street Journal report on firing of Zhang Hong, deputy editor-in-chief of the web site of the Economic Observer and co-author of the editorial
- Editorial co-author Zhang Hong on the making of the editorial (Chinese | English)
- Analysis by staff of Congressional-Executive Commission on China (March 26, 2010)
- Commentary in Caixin Online (English with link to Chinese)
It seems that the text of the editorial is still up on some web sites; here it is (available as of today) on the web site of the Chongqing Times (重庆时报). On the assumption that it would be nice to have a reliable source for both Chinese and English versions, however, I'm posting the original and a translation (the author of which has asked to remain anonymous). I'll post the English first, with the Chinese text following.
A Call for Accelerated Reforms to the Household Registration System to Truly Grant Rights to the People
China has long tasted the bitterness of its household registration system! Conceived in the planned economy era, it is an outdated system that has existed for decades and continues to disrupt the people's livelihoods today. It has, without sufficient reforms, ceased being relevant. To this end, on the occasion of the convening of the national "Two Sessions" , we, the 13 newspapers from 11 provinces, autonomous regions, and municipalities, are issuing a joint editorial and submitting it to the representatives and committee members of the “Two Sessions.” We ask that you use the power in your hands to urge the relevant ministries and commissions to put forward a clear time table for household registration reform; and, to gradually use the demographic information registration system to replace the existing rigid household registration system until it is completely abolished.
The Constitution stipulates that the citizens of the People's Republic of China are all equal before the law, that the nation respects and protects human rights, and that the citizens’ personal freedoms will not be infringed upon. Freedom of movement is an inseparable component of human rights and personal freedom; it is a basic right that the Constitution bestowed the people. However, the current household registration policy has created unequal statuses among urban residents and between urban residents and peasants, constraining the Chinese citizens’ freedom of movement. Alllaws and administrative and local regulations must not contradict the Constitution – this is the legal basis for accelerating the current reforms of the household registration system.
The household registration system has divided cities and countryside. The first generation of migrant workers invested their labor into the development of the cities. However, their offspring still have no means to resolve the status of their identities. Their children still have to bear the quandary of the previous generation. The cities in which they live remain unable to accept them. We have to ask: for how many more generations must this divide last?
Even within the cities, the household registration system has divided urban residents. In the same city, even though we, like all others, have struggled for many years for the construction of the city and paid the same taxes, the absence of hukous has rendered us unable to enjoy the same employment opportunities as others, or the same social services such as medical treatment, education, and elderly care. We have to ask: for how many more generations must this divide last?
The household registration system is a breeding ground for corruption. Because of its scarcity, hukous have become the objects of buying and selling in many cities. Those with holders’ rights can use them to seek payment; real-estate agents can use them as sales tools. But the countless people who are vulnerable must either pay the money or find themselves without recourse. We have to ask: for how many more generations must this inequality last?
Not long ago, Premier Wen Jiabao clearly expressed that the central government had already decided to steadily advance household registration reform. And dozens of other cities nationwide, including Shanghai and Guangzhou, have already launched household registration reform measures. Residential permits are slowly replacing temporary residential permits in these cities, and holders will be able to enjoy the same public services such as social security, medical treatment, and education as local residents. At the same time, the country is accelerating the establishment of a unified national social security services system, bringing about the inter-regional transfer and continuation of social security networks...
Admittedly, progress is gratifying, but in many more areas, we are still disappointed to note the invisible and heavy shackles of household registration, distressing the innumerable hard-pressed people on the run. We are deeply aware of the complicated nature of the household registration policy and the intricate complexities of the details of reform. Yet, we cannot overlook those who have experienced, are experiencing, and will experience oppression and hardship as a consequence of this policy. For them, awaiting urgent reforms has made every minute of waiting seem endless.
As China's economy soars, we must also be mindful of the pressing imminence of the economy’s structural transformations. The demographic dividend is fading away, and natural resources will not be available forever. The power behind China's next stage of growth has already begun to point even more so to the adjustment of the internal structure and the optimization of efficient usage of natural resources. Household registration reform is not only good for the people's welfare; it can also inject more dynamism into China's economy. More important, household registration reform can help foster values and ideas centered around people, becoming the cornerstone of making balanced progress in Chinese society and constructing a harmonious society.
For this reason, we call on representatives and committee members of the national "Two Sessions" to use the power in your hands – power that the people gave you – to urge the relevant ministries and commissions to abolish, as soon as possible, the "Household Registration Regulations" issued in 1958; to put forward a clear time table for national household registration reform; and, to gradually use the demographic information records system to replace the current rigid household registration system until it is completely abolished.
We hope that our many citizens, whether they are rooted in the north or south without dividing them into urban and rural, will all have the same rights to employment, medical treatment, elderly care, education, and freedom of movement. We hope that the one thing that has suffered from many decades of failed administration will end with this generation, our generation, and enable the next one to truly enjoy the sacred rights of freedom, democracy, and equality bestowed by the Constitution.
Monday, March 8, 2010
Here's the press release from Asia Catalyst:
(Gejiu, China, March 9, 2010) -- Asia Catalyst is proud to announce the “public beta” launch of its Asian AIDS Law Database. The database is a free, user-friendly resource, searchable in Chinese and English, to help researchers to find HIV/AIDS-related statutes throughout Asia. It is the first database exclusively dedicated to this purpose.
With the “public beta” launch, Asia Catalyst invites lawyers, experts and organizations to share AIDS-related laws and policies from around Asia that may not yet be online. The database has over 100 records, ranging from Cambodia’s draft law on drug control to the national policy on HIV/AIDS of Bangladesh.
“The database will enable lawyers to analyze AIDS-related laws, and use them in their own advocacy,” said Ken Oh, editor of Asia Report (http://www.yazhoudiaocha.com), the news site that hosts the database. “Asian AIDS activists tell us that some governments are more responsive to model language from another Asian law.”
The project was born in response to growing demand from Asian AIDS advocates engaged in legal analysis and advocacy. The database was created by a volunteer team of law students and pro bono lawyers working with Asia Catalyst.
Asia Report, the Asia Catalyst-sponsored site that hosts the database, provides Chinese and English-language news about economic and social rights in North, South and Southeast Asia, with links to Asian rights groups, and announcements of upcoming conferences and events.
Asian AIDS Law Database users may choose countries, topics and levels of government from drop-down menus in both English and Chinese. The database will provide the text of the law or policy and a link to its location online. All records are in English, with Chinese translations provided where available.
“The international AIDS law field is growing quickly,” said Ken Oh.“We hope our colleagues in Asia will use the database to analyze existing laws–and draft new ones.”
The database may be visited at http://www.yazhoudiaocha.com/laws/.
Asia Catalyst is a US-based resource for grassroots organizations working on HIV/AIDS in Asia. For more information, please see our website at www.asiacatalyst.org.
That's the headline for an amusing post on the Wall Street Journal's China Real Time Report, quoting various remarks made by delegates at the current NPC session and captured on tape (well, captured on digital recorder, more likely).
–Li Hongzhong, governor of Hubei province, was asked by a People’s Daily reporter about last year’s case of a hotel worker whose murder charges were dismissed after she claimed she had acted in self-defense when an official and his colleague tried to rape her. His reply: “Are you really from the People’s Daily? And you ask such a question? What kind of Communist Party mouthpiece are you? Is this how you guide public opinion? What’s your name? I’m going to find your boss.”
Caijing reported it a bit differently on its web site. According to its report, which it says it gathered from eyewitnesses, at the very end of a press conference held by Li the reporter asked him what his views were on the case. Li's face suddenly went dark and he left the room. Two minutes later he returned and demanded of the reporter (named Liu Jie, who worked for Jinghua Shibao, a newspaper within the People's Daily system), "Where are you from?" (i.e., which media outlet). She, apparently stunned, just said, "Huh", and he repeated, "Where are you from? Where are you from?" She finally answered, "The People's Daily." He said, "The People's Daily ... Why are you always going on about this affair. It's already over. I'm going to talk to your chief, right, OK?" He then grabbed her recording device from her and stalked out of the room with it. Later on the afternoon of the same day, a staff member with the Hubei delegation returned the recording device to the reporter, but with no apology.
Note to non-North American readers: the headline is a reference to "Kids Say the Darnedest Things," a segment of a popular TV show that ran in the fifties and sixties. The host would interview small children, who would answer questions in some cutely funny way (the answers that weren't funny were presumably edited out).
Monday, March 1, 2010
As Prof. Cohen, one of the founders of Chinese law studies in the United States, will be celebrating his 80th birthday this July 1st, the Chinese law community has been planning various events in his honor. Most recently, on Feb. 19th the George Washington University Law School and Georgetown University Law Center jointly put on an afternoon conference in Washington, DC. The program is here; videos of the proceedings will be available shortly.
Later this month, the William S. Richardson School of Law at the University of Hawaii will be holding a series of events from March 15th through 18th. Here are two informational flyers: an overview and a panel discussion program. The panel discussion will be recorded and made available on line.
Thursday, January 21, 2010