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HRIC Commentary: U.S.–China Human Rights Dialogue

August 12, 2015

The U.S.-China Human Rights Dialogue, scheduled for August 13-14, will be held during what is widely viewed as the harshest crackdown in China since 1989. While China is a powerful global player that the United States needs to engage with on shared security and trade interests, this is a crucial moment for the U.S. government to leverage this meeting, and the September visit by President Xi Jinping, to support the Chinese lawyers and independent civil society actors now under relentless attack in China. In addition, developments in restrictive legislation in the name of national security are vastly expanding state control over the growth and functioning of civil society. Both trends undermine stability and the rule of law of a nation that is a major power in the international order and a key partner of the U.S., and therefore are harmful to U.S. core strategic interests. At this critical juncture, it is imperative that the U.S. government strongly expresses its human rights concerns regarding the key strategies of deepening control under Xi’s leadership.

Beginning in early July, public security authorities have carried out detentions, searches, intimidation, and harassment of more than 260 rights defense lawyers and activists. Family members, including a minor child, were also targeted, intimidated, or harassed. As of August 12, at least 32 individuals remain detained, under residential surveillance, or missing, and at least three have been charged with “inciting subversion of state power.” Chinese propaganda departments have also launched a vicious smear campaign in the official media targeting both individual lawyers and a key group of rights defenders. In the face of this unprecedented crackdown and climate of fear, family members, clients of the detained lawyers, and other defenders have spoken out to expose the lawlessness of the authorities.

This past year has also seen the introduction of a spate of restrictive legislation in the name of national security, which Professor Jerome Cohen at the New York University School of Law sees as indicative of “the party’s determination to create a garrison state.”[1] The legislation includes:

  • The National Security Law,[2] adopted July 1, 2015, has raised deep concerns among China law experts and the United Nation’s human rights chief. Professor Fu Hualing at the University of Hong Kong Faculty of Law, sharing Professor Cohen’s view, cautions the danger of a law that puts the entire Chinese society under a national security lens.[3] The UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein has denounced it for “its extraordinarily broad scope coupled with the vagueness of its terminology and definitions.”[4]
  • A draft Cybersecurity Law,[5] which stresses the concept of “internet sovereignty” (Art. 1), includes a broad definition of the “critical information infrastructure” (Art. 25), mandates the storage of data related to this infrastructure inside mainland China (Art. 31), and allows for restriction of the Internet in certain regions in the name of public order (Art. 50). Together, these provisions raise serious concerns regarding access to information, privacy, and third party liability of Internet service producers (ISPs).
  • A draft Foreign NGO Management Law,[6] widely criticized by a variety of NGOs and international experts of varied backgrounds,[7] would require foreign NGOs to accept a high level of state oversight and control over all their activities by public security authorities (Arts. 7, 45-47) and governmental and semi-governmental supervisory units (Arts. 11, 24). These requirements are likely to result in dramatically decreased access to resources for domestic civil society groups and open the way for politicized use of the law to silence dissenting voices.
  • A draft Criminal Law Amendment (9)[8] includes problematic provisions that give the government additional legal standing to punish rights defense lawyers for publicizing information related to non-public cases (e.g., procedural irregularities) (Art. 35) and for “disrupting order in the court,” which includes arranging protests outside the court (Art. 36.1). NGOs have raised additional concerns over provisions relating to 1) terrorism, that would prohibit possession of books/materials deemed to advocate terrorism or extremism (Art. 120), and 2) cybersecurity that would, in the name of “network security management,” penalize ISPs for non-compliance with government censorship (Art. 286(1)).

The upcoming U.S.-China Human Rights Dialogue presents the U.S. with an important opportunity to send a strong message that the use of legislative measures and police force to criminalize peaceful citizen activism and the work of lawyers—who protect rights and ensure the integrity of a legal system—undermines China’s long-term interests in legitimacy and stability and is detrimental to U.S. interests.

We urge the U.S. government to leverage the opportunities during the dialogue exchanges to press the Chinese government to:

  • cease the official smear campaign against individual lawyers and rights defense lawyers as a group;
  • unconditionally release the lawyers and defenders detained as a part of the nationwide crackdown launched in July;
  • make public the content of all public comments received to the draft laws; and
  • undertake substantive revisions to the draft legislation that threatens to severely impact civil society space and individual rights in China, most urgently the FNGO Law, Cybersecurity Law, and the Criminal Law Amendment (9).

Pressing for concrete, urgent actions by China would align the U.S. with the international community in its expressions of concern over the crackdowns and legislation, and advance a core strategic U.S. interest: a stable and rule-abiding China.

 

[1] Chun Han Wong, “China Adopts Sweeping National-Security Law,” Wall Street Journal, July 1, 2015, available at: http://www.wsj.com/articles/china-adopts-sweeping-national-security-law-1435757589?tesla=y

[2] National Security Law of the People's Republic of China (Passed on July 1, 2015 at the 15th meeting of the Standing Committee of the 12th National People's Congress), English translation provided by China Law Translate, available at: http://chinalawtranslate.com/2015nsl/?lang=en

[3] Fu Hualing, “中国新国安法的泛国家安全观风险 (China’s new national security law pushes people to view economic, social and cultural problems in Chinese society as problems of national security)”, Financial Times Chinese, July 20, 2015, available at: http://www.ftchinese.com/story/001063071?full=y

[4] “UN human rights chief says China’s new security law is too broad, too vague,” Office of the High Commissioner for Human Rights, July 7, 2015, available at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16210&LangID=E#sthash.SrDTjZzb.dpuf

[5] People's Republic of China Cybersecurity Law (Draft), English translation provided by China Law Translate, available at: http://chinalawtranslate.com/cybersecuritydraft/?tpedit=1&lang=en

[6] People's Republic of China Foreign Non-Governmental Organizations Management Law (Draft) (Second Reviewed Draft), English translation provided by China Law Translate, available at: http://chinalawtranslate.com/foreign-ngo-draft-2/?lang=en

[7] See HRIC’s Law Note: “Draft Law on Foreign NGOs Undermines Chinese Civil Society and China’s International Engagement,” available at: http://www.hrichina.org/en/legal-resources/hric-law-note-draft-law-foreign-ngos-undermines-chinese-civil-society-and-chinas

[8] People's Republic Of China Criminal Law Amendment (9) (Second Reading Draft), English translation provided by China Law Translate, available at: http://chinalawtranslate.com/criminallawam92/?lang=en

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