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From “Confrontation” to “Cooperation” and Back Again

October 29, 2010

A former Special Advisor for China in the U.S. Department of State’s Bureau of Democracy, Human Rights and Labor, recounts the origins of U.S. official legal reform exchanges with China and how the approach has changed.

The 1997-98 US-China Summits: From Human Rights to Rule of Law? At the close of the 1997 United States-China summit, as Presidents Bill Clinton and Jiang Zemin proudly announced new initiatives to cooperate on issues of mutual concern to both sides, senior American officials went to great lengths to underscore the historic importance of the meeting. Presidential-level meetings between the United States and the People’s Republic of China had been suspended eight years earlier following the crackdown on protestors at Tiananmen Square. In 1992, then Candidate Clinton had blasted President George H.W. Bush for appeasing the Communist regime post-1989, and issued the famous “butchers of Beijing” statement just weeks before he was elected to office. As President, Clinton softened his position on China, as indicated by his well-documented decision to delink human rights from the “most favored nation” trade status in his first year in office. But it was the 1997 summit in Washington, D.C., and a follow-up visit to China in 1998 by the President and his family, that brought an end to the diplomatic freeze that had settled over U.S.-China relations after Tiananmen and established the tone for that relationship for the next decade.

In the months and weeks leading up to the first summit meeting in October 1997, the Clinton administration worked hard to set the tone for the visit. Expectations for major breakthroughs were lowered and senior officials focused instead on the meeting’s symbolic significance as marking an end to the post-Tiananmen period and ushering in a new phase in relations. In a major speech given on October 25, 1997, just days before President Jiang’s arrival in the U.S., Clinton opened his remarks, stating:

At the dawn of a new century, China stands at a crossroads. The direction China takes, toward cooperation or conflict, will profoundly affect Asia, America, and the world for decades. The emergence of China as a power that is stable, open and nonaggressive, that embraces free markets, political pluralism and the rule of law. . . rather than a China turned inward and confrontational, is deeply in the interests of the American people.1

The theme for the meeting, he made clear during the speech, was “cooperation,” not “conflict.”2

Human rights had long been an area of conflict between the United States and China. During the 1997 and 1998 summits, both sides sought areas for cooperation in this sphere and decided to begin cooperation in the field of law. Legal exchange programs between the United States and China had been ongoing since the early 1980s, and a number of foreign nongovernmental organizations and foundations (including the Ford and Asia Foundations and the International Republican Institute, where I worked from 1995-98) were already thoroughly engaged in projects to support legislative development, judicial training, and legal research and education. But formal government support, whether rhetorical or financial, for such initiatives had not existed. The announcement that the governments would formally begin developing avenues to discuss legal reform read:

The United States and China agree that promoting cooperation in the field of law serves the interests and needs of both countries. . . . Recognizing the importance the United States and China each attaches to legal exchanges, they intend to establish a joint liaison group to pursue cooperative activities in this area. These may include exchanges of legal experts, training of judges and lawyers, strengthening legal information systems and the exchange of legal materials, sharing ideas about legal assistance, consulting on administrative procedures, and strengthening commercial law and arbitration.3

In June 1998, at a reciprocal summit meeting in China, the United States and China committed further to cooperation in rule of law. At a press conference, National Security Advisor Sandy Berger announced, “In the area of rule of law, we will work with the Chinese on a more robust project, working with their judges, with their lawyers, training them on judicial systems, judicial practices. And also we will hold an important meeting with them in November [1998] on legal protection of human rights, including international human rights covenants, criminal procedural rights, legal protection of religious freedom and other issues.”4

The 1997 and 1998 “deliverables” on rule of law marked a transition. Going forward the United States would continue to confront China on human rights violations, but it now had, at least rhetorically, created a path for cooperation in the area of human rights, with an emphasis on legal reform and the “rule of law” as the means by which rights might be protected. In making these announcements, however, the Clinton administration had given less consideration to the mechanics of promoting rule of law and human rights in China. The State Department, which typically disdained “program” work in favor of “policy” work, was not prepared to implement rule of law programs. It was not clear which bureau would take the lead on programming or whether it should be run out of the embassy or from Foggy Bottom. Questions such as how proposals would be solicited, what kinds of projects should be supported, and how they would be structured, evaluated, and monitored were also unanswered.

More significantly, the administration had miscalculated congressional support for the China rule of law work. Paul Gewirtz, who served as President Clinton’s Special Representative for the U.S.-China Rule of Law Initiative from 1997 to 1998, admitted that many of the administration’s plans for cooperation failed to develop when Congress refused to provide funding for the programs in China.5 Before 2000, Congress authorized funding for Peace Corps activity in China only. Support for democracy programs began with the fiscal year (FY) 2000 cycle, but even after several years of requests, the FY 2001 Appropriations Bill contained no specific earmark to promote the rule of law in China. It authorized support for nongovernmental organizations located outside China whose primary purpose was fostering democracy in that country, but it warned the State Department that “none of the funds made available for activities to foster democracy in the People’s Republic of China may be made available for assistance to the government of that country.”6

Congressional critics of China’s human rights record were skeptical of the United States government’s ability to implement rule of law programs. In their opinion, the Clinton administration’s plans to train judges, collaborate on law-drafting, and consult on administrative procedures would compromise the administration’s ability to focus on violations of human rights. Moreover, they were concerned, as the quotation above makes clear, that foreign assistance funds would be provided to Chinese government offices.

The Chinese, it may be assumed, were quite pleased by a new emphasis on cooperation in an area of law that might potentially mitigate criticism of its human rights abuses. In the years preceding the summits, at the annual meeting of the United Nations Human Rights Commission in Geneva, China chafed at being the subject of a vote on whether to pursue a resolution condemning the country’s human rights practices. For Chinese officials, the standard refrain was that condemnation would not yield progress on human rights and the rule of law. Foreign nations should seek to cooperate with China on these issues in the spirit of “mutual respect.” And arguably, the Chinese leadership was even more satisfied by a U.S. effort that was long on rhetorical statements about the need for legal reform, but short on funding or infrastructure to promote legal change.

In the waning days of the Clinton presidency, the State Department funded three small China Rule of Law programs, but it made little headway in securing broad support for the initiative or in setting a strategic or operational direction for the effort.

2000 to 2010: From Rhetoric to Reality—Funding Human Rights and Rule of Law in China

The arrival of the Bush administration and the election of a Republican congress dramatically altered the landscape for democracy, rule of law, and human rights promotion in the PRC. President Bush’s Assistant Secretary for Democracy, Human Rights, and Labor (DRL), Lorne Craner, revamped the Bureau’s neglected Human Rights and Democracy Fund (HRDF) by hiring several staffers to work exclusively on human rights and democracy programming through the fund. Craner had a background in democracy programming and was able to speak from experience when he briefed concerned Congressional representatives on how to develop rule of law, democracy, and human rights programs in China. He assured them that rule of law and human rights programs in China could push for important systemic changes that would address human rights concerns over the medium and long term. He also effectively argued that the United States could speak out against human rights violations and seek prisoner releases and simultaneously cooperate on legal reform. Congress, for its part, was more receptive to rule of law and human rights programming in China by 2001 than it had been in the late 1990s. The FY 2002 Foreign Appropriations Bill earmarked $10 million to promote democracy, human rights, and rule of law in China, of which $5 million was to be programmed directly by the DRL. The remaining $5 million was allocated to the National Endowment for Democracy (NED) for its China programs. I joined the State Department in December 2001 with a mandate to manage the new assistance funds for China. There were competing opinions about how to structure the direct assistance program. Ultimately, a determination was made to support a broad range of NGOs and educational institutions (located in the U.S. and abroad, including in China) to conduct work across almost every conceivable area that addressed issues of democracy, rule of law, and human rights. Grantees were permitted to design programs that targeted or included government officials (e.g., an environmental law training program in which officials participated), but no direct support could be provided to government offices.

Over the next ten years, the United States became a significant bilateral donor on an annual basis to democracy, human rights, and rule of law programs in China. Funding peaked in FY 2006, with a $23 million earmark to promote democracy, governance, human rights, independent media, and the rule of law, but spending hovered consistently around $15-17 million. Total earmarked assistance for China democracy programs in FY 2002-FY 2010 was $149.5 million. American NGOs and educational institutions, working with counterparts in China, were the main recipients of funds, as well as the National Endowment for Democracy, which in turn granted its funds to smaller NGOs inside and outside China working on human rights and other reform projects.

Looking back on his tenure at the State Department, Paul Gewirtz disagreed with critics who claimed that the U.S.-China Rule of Law Initiative was a failure.7 Given the lack of funding and the difficulties of developing programmatic capacity, it was easy to see why some saw the shift from confrontation on human rights to cooperation on rule of law as a concession to a Chinese regime that was by no means willing to concede on rights issues to its own people. Looking at the programs over a ten-year period, however, what may have appeared as a concession at the outset began to look increasingly like confrontation, at least from the Chinese perspective. Several years into U.S. programming efforts, the Chinese side was wary of rule of law programs and the international and domestic NGOs that planted flags on the mainland in the spirit of cooperation.

In the late 1990s, when the US-funded programs were first contemplated, the majority of legal reform work was being carried out by offices within the Chinese bureaucracy. The State Council, the National People’s Congress, the Supreme People’s Court, and the Ministries of Civil Affairs and Justice were heavily engaged in reviewing laws and policies in their respective spheres, and were often the implementing partners on legal assistance projects. In 1998, for example, the European Commission signed an agreement with the Chinese government to build and operate a training center on village elections for local officials.

In the mid-2000s, however, the government began putting the brakes on these kinds of collaborative programs. There were at least two reasons for the pullback. The “color revolutions” that toppled authoritarian regimes in Georgia and Ukraine prompted China to begin an internal investigation of rule of law and democracy programs.8 The result was increased pressure on government offices and government-linked organizations to suspend their programs with foreign NGOs. At the same time, increased national wealth meant that Chinese officials were not as dependent on foreign governments and organizations to arrange “study tours” to learn about law and legal systems overseas as they were in the mid-1990s. Chinese domestic legal expertise grew increasingly sophisticated as well. When the U.S. and China announced their intentions to cooperate on legal reform in 1997-98, they envisioned exchanges of experts, judicial training programs, and comparative legal research. Over the next ten years, however, the Chinese government became highly suspicious of foreign support for these kinds of programs while, at the same time, it felt less need to work with foreign partners to reform its laws and judicial practices.

Foreign NGOs, for their part, adapted to the realities of a changing reform landscape. In the late 1990s, many of them sought official or quasi-official partners for their work. By the early 2000s, Chinese NGOs were emerging as more dynamic, more reliable partners than Chinese bureaucratic offices. The proliferation of these groups over the course of the decade and their diversity vastly increased the number of partners that U.S. NGOs could work with to promote human rights and the rule of law in China. The government’s decision to pressure official agencies to suspend cooperation with foreign NGOs in the mid-2000s accelerated a shift to partnering with Chinese NGOs that in many cases was already underway. By the decade’s end, official suspicion of foreign-funded programming on human rights and the rule of law remained high. Despite twelve years having passed since the U.S. and Chinese presidents first announced their support for cooperation in the field of law and ten years of U.S. support in this area, the Chinese government’s suspicion of such programs increased. Foreign and Chinese NGOs engaged in rule of law and human rights work operate in an uncertain legal and political environment. In 2010, the State Asset and Foreign Exchange Office issued new regulations whose effect, it is feared, would place heightened scrutiny on NGOs in China that accepted support from foreign NGOs.9 What began as a shift toward cooperation has steadily been portrayed as confrontation by a Chinese security apparatus that has become highly sensitive about foreign-Chinese programming in the area of law and rights.

Conclusion—Human Rights, the Rule of Law and Systemic Change

Critics of China’s human rights policies feared that the shift from “confrontation” to “cooperation” would weaken the U.S. government’s and NGOs’ ability to promote human rights reform in China. By the late 2000s, however, it became clear that, in fact, the Chinese government feared it had gotten more than it bargained for when it opened the door for foreign cooperation projects on democracy, human rights, and the rule of law. The record shows, however, that the cooperation projects themselves, far from being the Trojan Horses that the Chinese state security apparatus would have one believe, have demonstrated in countless ways how U.S. and Chinese NGOs can partner together in the interests of the Chinese people. U.S. democracy, human rights, and rule of law assistance funds have gone to promoting awareness of the rights of people with HIV/AIDS, encouraging stakeholder participation in decision-making on environmental policy at the local level, and educating migrant workers about their rights and many other similar kinds of projects. These kinds of activities arguably accrue to improving governance and social stability in China—two key objectives of the current regime—as well as promoting human rights there in a more traditional sense.

In June 1998, the week before he left for China, President Clinton gave an interview to Radio Free Asia. He used the broadcast to discuss his goals for the trip and to explain his rationale for pursuing cooperation in all aspects of U.S.-China relations. On human rights, he said:

In a structural way let me say I think it’s important that we advance the rule of law cooperation that we have developed—we have begun with the Chinese. And let me explain why.

If you can get a country like China to change its legal system, even if the leading edge issue is commercial, it’s in the system of law that protecting commercial rights and protecting rights of free speech and citizenship tend to merge. And one of the things that I would like to see over the long run is that I would like to see us move to the next step where China moves from reassessing its position on this or that or the other political dissident from time-to-time and releases them, to the point where we have a systematic change in the way people are treated. I think that should be our long term goal.

These things won’t make as many headlines, but they will change more lives. . . . I think symbols are important, actually, but I think it’s important that in the end what matters is results. Are lives changed for the better? Is the direction of the country better over the long run?10

When President Clinton left China, he was more hopeful about the prospects for democratic change. To a reporter’s question about whether there could ever be democracy in China raised at a press conference in Hong Kong where he brought his visit to a close, Clinton replied, “Oh, yes. The answer. . . is yes. I believe there can be and I believe there will be.”

The Chinese government welcomed legal cooperation programs in the late 1990s, but by the late 2000s, they had started to portray these programs as confrontational. President Clinton’s vision of a democratic China has yet to be realized. But the policy shift from “confrontation” on human rights to “cooperation” in the rule of law that began under President Clinton and was accelerated under President Bush helped to focus U.S. policy on systemic change issues that are critical for promoting rights protection and good governance, if not democracy, in the PRC. As President Clinton noted in 1998, whether we call it human rights or the rule of law, what we are really talking about is “systemic change in the way people are treated.” For all of the US efforts to promote human rights and the rule of law in China, it has and always will be up to the Chinese people and the Chinese government to make determinations about which systemic changes are needed and which ones they are willing to pursue.

Endnotes

1. The White House Office of the Press Secretary, “Remarks by the President in Address on China and the National Interest,”Voice of America, October 24, 1997, http://clinton4.nara.gov/WH/New/html/19971024-3863.html. ^

2. “Clinton Defends ‘Constructive Engagement’ of China,”Cable News Network, October 24, 1997, http://www.cnn.com/ALLPOLITICS/1997/10/24/clinton.china/. ^

3. “China-U.S. Joint Statement,” October 29, 1997, http://www.chinadaily.com.cn/09chinausrelations/2009-01/07/content_7374212.htm. ^

4. The White House Office of the Press Secretary, “Press Briefing by Mike McCurry, National Security Advisor Sandy Berger, and National Economic Advisor Gene Sperling,” June 27, 1998, http://www.fas.org/news/china/1998/0627otr.html. ^

5. Paul Gewirtz, “The U.S.-China Rule of Law Initiative,” William and Mary Bill of Rights Journal 11, (2003) 614-15. ^

6. Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2001, H.R. 5526, 106th Cong. § 526 (2000). ^

7. Gewirtz, supra note 5, at 615. ^

8. See, e.g., Paul Mooney, “How to Deal with NGOs – Part I, China,” YaleGlobal Online, August 1, 2006, http://yaleglobal.yale.edu/content/how-deal-ngos-part-i-china. ^

9. Human Rights in China, “HRIC Briefing Note: Tighter Regulation of Foreign Funding Support of Chinese Civil Society Groups,” http://www.hrichina.org/en/content/403. ^

10. The White House Office of the Press Secretary, “Interview of the President with Radio Free Asia,” June 24, 1998, http://www.presidency.ucsb.edu/ws/index.php?pid=56201. ^

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