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HRIC Law Note: Draft Law on Foreign NGOs Undermines Chinese Civil Society and China’s International Engagement

May 5, 2015

On May 5, 2015, the Chinese government released for public comment the Foreign/ Overseas Non-Governmental Organizations Management Law of the People’s Republic of China (Draft) (Second Review Draft)  (《境外非政府组织管理法(草案二次审议稿)全文》”FNGO draft law”).  If enacted and implemented in its current form, both Chinese civil society and international engagement with it will be considerably degraded. The stated purpose of the FNGO draft law is to “standardize and guide the activities carried out by foreign NGOs within China, protect their lawful rights and interests, and promote exchange and cooperation” (Art. 1). However, the draft law would require foreign NGOs to accept a high level of state oversight and control over all their activities by public security authorities and Chinese professional supervisory units. The proposed regime threatens to harm China’s interests by cutting off significant resources, expertise, and civil society support necessary to address the complex environmental, social, and development challenges facing the country. The draft law further undermines China’s efforts to be perceived as a constructive and participatory member of the international community.

The spirit and substantive provisions of the draft are consistent with the intensifying trend of broadened crackdowns on domestic civil society since President Xi Jinping assumed power in 2013.  As numerous China law experts and commentators have pointed out, elements of the proposed law create serious obstacles for a functioning civil society and impede future engagement by foreign NGOs in China.[1] For instance, the lack of clarity of key terms (e.g., what constitutes a “foreign NGO,” and what “activities” fall within the law’s purview) fails to provide guidance to enforcement authorities, leaving the law vulnerable to corrupt or politicized implementation. The vesting of broad supervisory power in the public security departments under China’s State Council, as opposed to the Ministry of Civil Affairs which oversees domestic NGOs, further sends a chilling message and opens the way for abuse and criminalization of activities deemed unacceptable by the authorities.

Beyond these domestic considerations, the FNGO draft law violates China’s human rights obligations by flouting international standards related to freedom of association, including access to resources, the prohibition against restrictive and discriminatory regulatory regimes, and the creation of an enabling environment for civil society. As a sitting member of the Human Rights Council and an active participant in international human rights mechanisms and processes, China should be exercising leadership.[2] Instead, the proposed law would not only blatantly disregard China’s own obligations, but also contribute to eroding standards around civil society. To uphold China’s commitments, a revised FNGO draft law should reflect greater coherence with and respect for these international standards.

China’s International Obligations

As a signatory to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),[3] and as a UN member state,[4] China is obligated to ensure freedom of association[5] for its citizens. The Special Rapporteur on the situation of human rights defenders has stated that "[a]ccess to funding, the ability of human rights organizations to solicit, receive and use funding, is an inherent element of the right to freedom of association."[6] The Special Rapporteur on the rights to freedom of peaceful assembly and of association has further stated that governments must “avoid measures that disproportionately target or burden civil society organizations, such as imposing onerous vetting rules, procedures or other CSO-specific requirements not applied to the corporate sector writ large [emphasis added].”[7]

In addition to these standards regarding the right to freedom of association, the Human Rights Council passed a resolution in 2014 aimed at supporting an enabling environment for civil society. The resolution expressed concern regarding regulation efforts similar to the FNGO draft law, noting that, “in some instances, domestic legal and administrative provisions, such as national security and counter-terrorism legislation, and other measures such as provisions on funding to civil society, have sought to or have been misused to hinder the work and endanger the safety of civil society in a manner contrary to international law[.]” In light of this, the resolution called upon “States to ensure that provisions on funding to civil society actors are in compliance with their international human rights obligations and commitments and are not misused to hinder the work or endanger the safety of civil society actors, and underline[d] the importance of the ability to solicit, receive and utilize resources for their work [emphasis added].”[8]

The FNGO draft law clearly contravenes these standards by (1) placing burdensome restrictions on civil society’s access to funding, (2) targeting the NGO sector in a discriminatory manner, and (3) exposing civil society to harm under the banner of national security. These issues are discussed in greater detail below.

Restrictions on access to funding

Though the draft law formally regulates foreign NGOs, its provisions will result in restrictions on domestic civil society groups’ access to resources in two important ways.

First, the draft law would restrict the number of FNGOs able to register and therefore legally support Chinese civil society organizations. Second, the provisions in the draft in effect limit the domestic individuals and groups registered FNGOs may work with or provide funding to.

As noted by experts of varied backgrounds in the resources provided to the right, under the draft provisions, international support for and cooperation with Chinese civil society would be limited to groups that are approved by the authorities (Arts. 6-7) and both willing and able to adhere to the substantial registration (Arts. 10-20) and reporting, banking, accounting, and staff hiring requirements (see Arts. 23-38).

Even groups that are willing to comply with these considerable requirements and have activities that are permissible under the draft law may nonetheless be unable to secure the sponsoring supervisory units necessary for registration (Art. 11). This is because professional units eligible to serve this function have no clear incentive to assume responsibility for overseas organizations. Also, as a practical matter, the onerous monitoring responsibilities imposed by the draft law may limit the number of overseas organizations they can feasibly supervise.

In addition to these challenging registration requirements, once registered, FNGOs can only hire personnel on the mainland that have been processed by an officially designated local unit (Art. 32) and must submit annual activity plans for inspection and approval by their supervisory units and public security authorities (Art. 24).

In aggregate, these provisions threaten to cut independent Chinese NGOs off from financial resources entirely and could dramatically reduce the resources available even to state-sanctioned groups.

Discriminatory targeting of NGOs

In addition to reducing access to funding, the FNGO draft law places higher burdens on foreign NGOs than on foreign businesses. For example, while Article 1 states that the purpose is to protect the rights and interests of foreign NGOS, Article 13 states that the FNGO representative office does not have the status of a legal person. Therefore, unlike business corporations that do have legal status and limited legal liability, the chief representative and staff may be exposed to personal liability. Under the international standards outlined above, this constitutes impermissible discrimination against the civil society sector.

Many NGOs come to China specifically to help deal with the inequalities, and social and environment impacts created by unsustainable development policies and practices. By discriminating against this sector, the draft law would curtail activities that are not only lawful, but necessary to solving China’s complex problems.

Exposure to misuse by public security authorities

Lastly, the current oversight authority, monitoring powers, and vague prohibitions present in the FNGO draft law open the way for its misuse in the name of national security and public order. As noted above, the draft law vests oversight authority in the public security departments of the State Council and provincial-level public security authorities (Arts. 7, 45-47). Given that domestic NGOs are regulated by the Ministry of Civil Affairs, the oversight structure of the FNGO draft law suggests that this regulation is considered a national security measure directly supervised by public security departments. This security characterization is concerning given the weakened procedural protections and transparency in cases related to national security.

This concern is exacerbated by provisions in the draft law that grant public security authorities the power to enter the property of registered NGOs to conduct on-site investigations, question staff, seize property, and copy documents, seemingly without any associated criminal procedural requirements (Art. 49). The law furthermore permits authorities to detain NGO staff for up to 15 days where violations do not constitute a criminal offense (Art. 59).

These powers can be invoked in a range of circumstances echoing concerns of national security and public order. For instance, NGOs are prohibited from endangering China’s “national unity,” “ethnic cohesion,” or “public order and morality” (Art. 5). More specific sanctions follow when FNGO conduct is seen as encouraging resistance to state law, promoting “rumors” damaging to state interest, gathering state secrets, or any number of other circumstances that are damaging to the state or public interest (Art. 59).

While national security and public order are legitimate state interests, as demonstrated by the Human Rights Council’s 2014 resolution mentioned above, regulations seeking to advance these aims must be drafted so as to avoid harm resulting from the misuse of vague or overbroad provisions. As currently formulated, the FNGO draft law fails to meet this requirement.

HRIC Suggestions for Revisions to the Draft Law

To meet China’s international obligations, the current draft law should be revised to:

  • Clarify the definition of FNGO, nature of the activities that are covered, and criteria by which applicant organizations will be evaluated;
  • Create a registration regime of notification rather than approval, and remove onerous requirements such as sponsorship and intrusive monitoring of project activities and finances;[9]
  • Ensure that formal and informal associations can seek, receive and use funding and other resources, whether domestic, foreign, or international, without prior authorization or other undue impediments; and
  • Ensure that oversight of civil society regulation is consistent and appropriate for international and domestic groups, and not placed under the authority of police or security organs.

Finally, in order to promote greater transparency in the legislative process, the Chinese government should make public the substance of the comments received.

 

[1] See resources list to the right of this document for excellent further commentary and analyses.

[2] According to the resolution that established the Human Rights Council, members “shall uphold the highest standards in the promotion and protection of human rights.” As a sitting member, China falls within this expectation. See A/RES/60/251 para.9, available at: http://www2.ohchr.org/english/bodies/hrcouncil/docs/A.RES.60.251_En.pdf

[3] China signed and ratified CEDAW in 1980.  Article 7 of the Convention requires that states “eliminate discrimination against women in the political and public life of the country,”  including participation in "non-governmental organizations and associations concerned with the public and political life of the country.” Available at: http://www.un.org/womenwatch/daw/cedaw/cedaw.htm

[4] See the Universal Declaration on Human Rights, unanimously approved by the General Assembly in 1948 and considered by many to constitute customary international law, Article 20(1), which states: “Everyone has the right to freedom of peaceful assembly and association.” Available at: http://www.un.org/en/documents/udhr/. See also the Declaration on Human Rights Defenders, adopted by consensus by the General Assembly in 1998,  Article 5, which states: “For the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually and in association with others, at the national and international levels:

(a) To meet or assemble peacefully;

(b) To form, join and participate in non-governmental organizations, associations or groups;

(c) To communicate with non-governmental or intergovernmental organizations.”

Available at: http://www.ohchr.org/EN/Issues/SRHRDefenders/Pages/Translation.aspx

[5] The Special Representative of the Secretary-General on human rights defenders defined freedom of association as involving “the right of individuals to interact and organize among themselves to collectively express, promote, pursue, and defend common interests.” See A/59/401, para. 46, available at: http://www.hrichina.org/sites/default/files/human_rights_defenders_note_by_secretary_general.pdf

[7] See A/HRC/23/39, para.24, available at: http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/23/39

[8]See A/HRC/27/L.24, pp. 2-3, available at: http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/27/L.24

[9] See the SR on Assembly and Association’s recommendation to states for such a framework: A/HRC/23/39, para. 82, available at: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.39_EN.pdf

Related Resources

The FNGO Draft Law in English Translation

UN Communications of Concern

Commentary, Analysis, & Related Notes

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