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Roundtable: “China in the World: Human Rights Challenges and Opportunities”

June 13, 2013

Watch the video: “China in the World: Human Rights Challenges and Opportunities” Roundtable

This roundtable was part of “On the Eve of Change: China and International Human Rights,” a program co-organized by New York University School of Law and Human Rights in China (HRIC) to celebrate the Robert L. Bernstein Fellowship in International Human Rights. Established in 2006, the Bernstein Fellowship funds one NYU Law graduate annually to spend a year as a full-time legal officer at HRIC, where the fellows engage in hands-on work on policy issues including counterterrorism, human rights and business, freedom of expression, and individual casework. The Fellowship honors Robert Bernstein, a pioneer in the field of human rights and chair emeritus of HRIC.

Four distinguished human rights and law experts shared their insights: Michael H. Posner (roundtable facilitator), Professor of Business and Society, NYU Stern School of Business, and former U.S. Assistant Secretary of State for the Bureau of Democracy, Human Rights and Labor; Jerome A. Cohen (panelist), Professor, NYU School of Law and Co-Director, NYU School of Law U.S.-Asia Law Institute; Felice D. Gaer (panelist), Director, AJC’s Jacob Blaustein Institute for the Advancement of Human Rights, and Vice-Chair, United Nations Committee Against Torture1; and Fu Hualing (panelist), Professor, The University of Hong Kong, Faculty of Law.

Credit for all photos in this section: @NYU Photo Bureau, Sam Hollenshead.


Michael H. Posner

I want to welcome everybody. I’m delighted to be here. My name is Mike Posner. I’m new to New York University—I’ve been here about six weeks, and I’m over at the Stern Business School, where I’ll begin teaching in the Fall and setting up a Center on Business and Human Rights.

I had the great fortune over the last three-and-a-half years to work in the Obama Administration in the State Department’s Bureau of Democracy, Human Rights, and Labor, where I was Assistant Secretary. And in the course of that I visited China five or six times and dealt with a whole range of issues.

We have a terrific panel here today. I’m really the traffic cop. I think the focus of what we’re doing here this afternoon is looking both inward and outward. The subject is “China in the World: Human Rights Challenges and Opportunities,” and we are really trying to look at both. There are obviously a range of challenges in the way China deals with issues of human rights domestically, but it is also a place that is changing very fast. And I think we want to recognize both the problems that exist and the ways in which people, inevitably, resilient Chinese people, are beginning to address and challenge those violations.

And the second piece of this is to look at the effect. China is such an important player in the world, and one of the things we’re really going to try to get into, as we look outward, is how some of the things China is doing internally are affecting its foreign policy; and, in a broader sense, how they affect the broader human rights discussion globally.

We have three terrific panelists. Professor Fu Hualing from the University of Hong Kong, who is an expert on a range of things relevant to this discussion—criminal justice issues, rule of law, role of the courts, and the media—and also is very closely following the relationship between Hong Kong and China. I think he can open the discussion by laying the groundwork and saying some things about what’s happening within China, and some of the challenges and opportunities we face.

Next is Jerry Cohen, who sits to my left, who is a stranger to no one in this room. He has been at NYU since 1990. But Jerry is really the dean of the American legal community in its relationship to China. No one has done more than Jerry to open up China in the eyes of the American legal community—as a practicing lawyer at Paul Weiss (Paul, Weiss, Rifkind, Wharton & Garrison LLP) for 20 years, as a professor here for 20-some years, and as a Senior Fellow at the Council on Foreign Relations. He really has defined this territory, and I think Jerry is a good bridge between what’s going on in China and what’s going on in the global environment.

The third panelist, Felice Gaer, from the Jacob Blaustein Institute for the Advancement of Human Rights at the American Jewish Committee, has been, as I, for decades, involved in the human rights world and in the global discussion of human rights. She’s been very active at the United Nations as a member of the UN Committee against Torture. She’s worked with the UN Association of the USA, and she’s worked on UNESCO issues. She’s really followed, probably more than any American, the evolution of human rights at the United Nations.

So we’re going to start inside and head out. And I’m going to ask each of the panelists to just say a few words by way of introduction. Last comment from me before I yield the floor: I’m thrilled to be here in part because of NYU’s commitment to human rights, human rights in China, linking the law and human rights, and in the name of Bob Bernstein. Bob is a personal hero of mine and longtime friend and mentor. I know that Bob has done many great things but I think this—creating and endowing a fellowship program on international human rights at the NYU Law School—is really an important piece of Bob’s contribution. And Bill Bernstein (Bob’s son) and others in the family obviously have helped.

NYU has brought this program here in a way that I think very much reflects the future. The future is to engage, and the future is to engage in a principled way. And what this program has done with the fellowships is really to take on the human rights issue in a very professional way and begin to look at the places where the U.S. legal community at NYU and elsewhere can begin to push the boundaries and look at human rights in creative, smart, practical ways. So, this is a great occasion. We’re delighted to be here, and I’m going to ask Professor Fu, if you will, to lead us off and set the table, please.

Fu Hualing

Thank you very much for the introduction. And I want to thank Sharon (Hom) for the invitation. China now has a new leadership, and we are all waiting to see what happens in the next ten years. Let me just go back a little bit before I speculate on what might happen in China.

Chinese politics has this ten-year cycle now, just like U.S. politics has this eight-year cycle. The first ten-year cycle started in 1979. That year was important for China because China kick-started its legal reform in that year, and important for me—that was the year I went to law school. Towards the end of that ten-year cycle, there would be a repressive movement. We know what happened in 1989. We know what happened in 1999—the suppression of Falun Gong. And we know what happened in 2009—that was the year when China really started to crackdown on civil society. “Nine” is a bad number in Chinese politics, and repression tends to happen towards the end of a ten-year cycle.

In 1988 and 1989, ten years after Deng Xiaoping started reform, there was a crackdown. Then the next leadership, under Jiang Zemin, started the rule of law reform and did quite well in the middle of 1990s. Then all of a sudden, in 1998-1999, it became very conservative, and, in a way, very repressive. And Hu Jintao, of course, when he became president at the end of 2002, he started to talk about constitutionalism for a year. But then, towards the end of 2009, he became very repressive. Somehow, the leaders, towards the end of their terms, seem to want to show that everything is in good order before they hand the power to the next generation and say, “Now, it is your turn.”

A few things I want to say to provide some background. First, there are high expectations of central authorities, if not high trust in them. Chinese political reform or legal reform is a heavily top-down process. People expect something to be done by a new generation of leaders. There is a reliance on leaders. You may criticize Wen Jiabao and Hu Jintao for the bad ten years. If you look farther back, Jiang Zemin's ten years don’t look that bad now. But in the eyes of ordinary people, leadership in Beijing matters a lot. And if you're trying to imagine what will happen in the next ten years, the expectation is fixed on those in high political office. That is a very interesting phenomenon, which, in a way, demonstrates this top-down hierarchical political order in China.

Second, political leaders, before they take office, want to do something, want to change, want to improve, for different reasons. Every generation of leaders starts by talking about rule of law, even a little bit of democracy. And they all talk about the constitution, or constitutionalism, just as this new generation of leaders is now talking about constitutional reform. Why is that? I think there are two reasons. First, these leaders are the new boys in the game. They are more vulnerable; they are the relatively weaker party in the political game. There are entrenched interests. And, as the weaker party, they tend to rely on institutions, rule of law, to beef up their position, to strengthen their position. And secondly, I think they generally believe there is something they could do, and they also want to do something.

When Hu Jintao and Xi Jinping said, “We want to do constitutional reform,” personally, I think they meant what they said. Once they send out the signal, society receives the message and responds accordingly. When Xi Jinping said, “We want to have constitutional reform,” again, people start to believe what he was saying, and society becomes mobilized: people march, people organize, and people move forward. And then sooner or later you hit this wall. Because since 1979, the reform agenda in China has stipulated that reform is to be carried out under the Communist Party's leadership. That is the perimeter, and that larger framework cannot be challenged. But for the civil society forces, when they start pushing for reform, when they have catalyzed, it is very difficult to avoid this very important political question—that is, the monopoly of political powers by the Communist Party.

So, as it has happened in the past, the first two years are an interesting period of time—a “honeymoon” period, a time when political leaders talk about rule of law and political reform, and society will respond to that very actively and sometimes aggressively. In the next few years, political leaders will say, “Political reform is too challenging, too risky; and if we want to keep the existing political system, reform has to be suspended and stopped.” If society pushes a bit further, then you would have what happened a few years ago, with lawyers being disappeared and imprisoned. That is the cycle, and we are at the beginning of a new cycle. The previous ten-year cycle, of course, just finished. We are at the beginning of a new era.

One other interesting thing before I finish—I am happy to answer questions later on—is that the reform period used to be much longer. Deng Xiaoping had almost ten years to talk about, and act on, reform. Jiang Zemin had about six years. Hu Jintao had two years of reform. Our worry about Xi Jinping is that he only has about one year, and he probably has finished his reform talk. So, the reform period is getting shorter and shorter.

Michael H. Posner

Jerry, I want you to pick up, if you will, in addition to the comments I know you are going to make, on a couple of things Professor Fu said. He talked about a top-down model of governance which we all are aware of. And he talked about the initial desire of many of the senior leaders to move towards rule of law and reform, but that each inevitably has “hit the wall”—I think that's the phrase used—and that the window of opportunities for reform is actually shrinking rather than expanding in terms of time.

If that is the environment that we are in right now, what are some of the things that you see as potential? I want you to both talk about the challenges and opportunities. What are the things that make it more difficult now to undertake reform? And I want you also to talk about and focus on some of the opportunities. What should we and others be thinking about as opportunities to begin to break out of this cycle of good intention, hitting the wall, and lessening of space and time and opportunity for reform?

Jerome A. Cohen

One question is, “How does change occur that affects human rights and the rule of law in China?” My own view is you need both a very substantial push from the bottom and leadership at the top.

I have a continuing discussion with our distinguished guest, the blind human rights activist Chen Guangcheng, who puts all his faith in the growing pressures from the bottom. He thinks that will prevail. And, it may well—but not in my lifetime, perhaps in his. In my lifetime, I think you have to have leadership. Somebody in the top has got to see the time has come for political, legal, human rights reform. Just as former Prime Minister Zhu Rongji saw the need for drastic economic reform in China, including the very difficult job of getting China into the World Trade Organization, we need some leader or group of leaders in the Standing Committee of the Politburo who will say, “Enough of what we've been through. We are entering a new stage, and we have to recognize that political reform is necessary.” Just the way Chiang Kaishek's son, Chiang Ching-kuo, recognized this in the mid-1980s. He'd been a killer. When I first went to Taiwan, he was the notorious secret police head, no democrat. But 20 years later, he saw you can't fight change forever, you can't go on repressing people, and you have to have institutional reform. And I think he's a neglected figure because although Deng Xiaoping was brilliant on international affairs and economic reform, from my view, Deng remained a Stalinist when it came to political-legal matters. He was a repressor—he presided over the Anti-Rightist Movement of 1957-1959, even though 20 years later he had to rehabilitate a lot of the victims he had put away.

I think China's going to have to have some leader who will say, “This is the way I can make my mark in history; this is going to be my contribution.” But we don't see those people now. We look to Xi Jinping. I don't see that in him. People thought of his predecessor Hu Jintao as, “such a nice-looking fellow, he must be for reform—oh, at least in his second term when he's more secure.” Well, his second term turned out to be a disaster from the point of view of human rights. And he is still a very nice-looking person. So, Xi Jinping: I think he's going to be a muddler-through—he's going to try to make everybody happy. And I don't think he will be as bad as Brezhnev, but we may see certain traits that are familiar there.

The second fellow, Premier Li Keqiang, we look to because he's a Beijing University Law School graduate—the first to be in the Politburo. He didn't get where he is by fostering human rights and legal development, but you never do in that kind of system: you can't show your true colors until you’re at the top. We learned that from Khrushchev in de-Stalinization—we learned that in spades. And that's why so many of the Chinese are conservative. We also learned that from Gorbachev, who had been to law school. Look what happened. So this is tricky stuff—where will leadership come from? Maybe Li Keqiang will be helpful. I mean, we have here Professor Fu, a leading scholar of Chinese justice who's a contemporary of Li in a way: went to law school in the same period, knows a lot of the players, including the new head of the Supreme Court, Zhou Qiang. That's a real improvement. We're watching the personnel changes now.

And I just read this morning—in preparation for the class this afternoon with Ira Belkin on the court system in China—that individuals still count in China. Professor Fu's article makes clear it's important that Xiao Yang2 became the new head of the court system 15 years ago, and he did what he could within the confines of party strictures. And then his successor was a disaster.3 He presided over the “turn from law,” to use a phrase that Carl Minzner at Fordham University has now popularized. We witnessed since 2007 a distinct turn away from legal development. The article that we have for today's class by Professor Fu was written at a time of maximum optimism. It came out about five years ago. And now maybe it's good timing, because we are hoping there will be a return under the new leadership.

Leaders count in China— individuals make a difference. But they are not automata. And we are looking now, reading the tea leaves as it were, trying to provide a little bit of instant China for busy people here to help you interpret what is going on. But leadership, I think, is important, and I don't see yet any real signs despite improvement in legislation such as the new Criminal Procedure Law. I don't see anything to suggest there's going to be an important change in the system. Now, where will the sources of change come from, apart from the bubbling up, the ferment in China? Maybe from labor law? Labor problems? That's one source that helped to fuel June 4, 1989. That's why the Party got so worried and drastic.

More important, I see the environment. The environment is sort of apolitical. Even though the rich in China and the leadership can afford all these machines for cleaning their domestic air, they still have to go outside occasionally and their children do too. Look at the front page story of today's New York Times. I think this may be a safe awning under which many popular forces can mobilize in support of institutional change.

I don't think it's going to come from just the religious groups that are being suppressed. There's another article in today's Times about the most recent condemnation of some religious people as a cult. I don't think it's going to come from the democracy advocates or the human rights people. We need them all, but I think you have to have broader sources of popular momentum. And given the Internet and the social media, and given China's terrific problems—most people in the world only see China as a threat because they see all of its remarkable accomplishments, but many of us see China maybe the way the Chinese leaders do—you see all the problems. They are a cat on a hot tin roof and they know it. And maybe their tendency will be as it has been in the recent past—simply to pass the problems on to the next guy ten years down the pike. I hope it's not going to be that way.

I'd like to see leaders take the initiative, but we on the outside have some limited role. Our U.S.-Asia Law Institute is typical of various agencies that are trying to work with the Chinese, in fostering those in the courts, in the procuracy, in the legal profession, and among legal scholars who are on the right side of this struggle. But we are limited of course in what we can do, and the leadership is trying to curb our influence even more.

There are very similar problems in Russia, of course. I always want to follow what's going on there because the two are closer than they have been in many years, and they are exchanging experiences on how to keep the lid on, even though one is no longer communist in form and the other is communist if only in form. So it is a complex scene, with mixed things. We are making some progress, I think. People in China are making some progress. Education is a very important force, and interaction with the world. We mustn't reduce our contacts with China—we have to expand them to the extent that we can and still remain honest, and that's what we are trying to do.

I don't want to monopolize the talk. We can go on, but I just wanted to set the general tone of where we are at this point. Once again, we are at a kind of crossroads. That's one of the great clichés. How many times I have written articles saying “Chinese law at the crossroads.” We are at the crossroads again. Not the barricades.

Michael H. Posner

Jerry, before we turn to Felice, I want to ask you two things. One—you did a little bit of sinology of who's who in the leadership—are there people whom you can think of in the leadership who have a global view, who've lived abroad, who think about China's role in the world, and are likely to be thinking about China's internal politics and structure in a way that is connected to its relationship with the rest of the world?

Jerome A. Cohen

Well, China vindicates the old Tip O'Neill4 proposition: foreign policy or all politics really start at home. I don't know anybody in the top seven—that is, in the Standing Committee of the Politburo, you could say—who is very sophisticated about international affairs. I like Wang Qishan.5 When he was a young Beijing rising bureaucrat, I was in Beijing teaching Chinese officials. He was intelligent, respectful. He's had a lot of international experience since then on economic matters. Some people think he's been side-tracked now by being put in charge of the Party's most recent attempt to suppress corruption instead of running the economy. That remains to be seen whether he can push the anti-corruption view. But I don't know really anybody in the leadership whom you could identify as being very sensitive to or experienced in international affairs.

And I should say that China has many wonderful diplomats and extremely able international lawyers and veteran participants. I see Steve Hill here from our U.S. Mission to the UN;6 he deals with them every day at the United Nations. It's not 1979, when China appointed its first ambassador to the United States, ex-General Huang [Zhen]. I mean he couldn't speak English. He was what you’d expect from the debris of the Cultural Revolution—a clever guy but not a diplomat. Now, the new ambassador is a terrific person, Mr. Cui Tiankai. And at the UN and everywhere, China has wonderful people, but the sad thing is that they don't have much influence. They don't really have an impact. These security people, the military people, have much more influence on the leadership. But nevertheless the leaders know that they can't neglect international affairs, even if they are only secondary in their daily considerations. There are a lot of puzzling things.

Also you have this problem of the central government and the local government. If you want to make things concrete—we’ve been talking in very general, abstract terms—I come down to Chen Guangcheng's nephew,7 who has been locked up. The family is now being persecuted. Death threats on their doorstep just the other day, a year after Chen's escape. Why does the central government allow this? Why don't they intervene? Do they care they are turning Chen into a dissident? He didn't want to be a dissident. Do they care what it does to their public image? They care obviously, but not enough to have it overcome other values, such as letting the local people do what they think best, and repressing people because they are afraid that Chen's supporters, if not suppressed, will create problems by opening up a dialogue in the media, etc. It's a very complex situation where foreign policy and international affairs rank second.

Michael H. Posner

Very useful. So, to round out the picture, Felice, I want to ask you a couple of things. Jerry has just said that for Chinese decision-makers and opinion-makers, foreign relations and international relations are secondary to local politics, and yet we see China having growing influence in the world. International relations may not be primary to them, but they are such a big player and they are playing a bigger role on the international stage. So, two things really on the human rights front: one, we are now 65 years since the Universal Declaration of Human Rights; to what extent is China's own domestic experience and the way it manifests itself globally affecting the integrity and maintenance of a set of human rights and universal standards that are exemplified by the Universal Declaration and everything that's followed? How much are they having an impact on the standards? Secondly, implementation. You and I were just talking about some of the treaty bodies, some of the ways in which they've been weakened. Where does China fit into the international system in that regard? And then, more broadly, how is China's role being felt on the global stage, in places like Syria, Iran, and elsewhere, where human rights issues are being discussed and where China's role is significant? So, the questions are about both standard-setting and implementation.

Felice D. Gaer

Thank you, Mike. China's involvement with the United Nations and with the world on issues of human rights has progressed. It really has changed. A country which once followed Deng Xiaoping's advice—“calmly observe, cherish obscurity, never seek leadership”—is now often taking an active role on international human rights in the UN that no one ever imagined.

This assertiveness is not necessarily positive for human rights and the UN. Significantly, China has publicly acknowledged the universality of human rights. At the same time, it actively attempts to redefine what that universality is, and contests the applicability of human rights worldwide. It's a good political lesson. We have all witnessed how China contests human rights and its binding application. Yet, when challenged, China doesn't want to be alone. China joined the world in the 1993 Vienna World Conference on Human Rights in affirming that universality is absolute, while acknowledging that historical and regional and cultural and religious factors have to be taken into account. It affirmed that human rights are the first responsibility of governments, and universality must be followed. In itself, that's a really important development.

China has also ratified seven of the ten major human rights treaties. Those ratifications have often been accompanied by China’s engagement to try to change, or substantially limit, the universal reach of the treaties and what are the standards involved in each.

Chinese officials at the UN have always emphasized a hierarchy of rights. Specifically, China emphasizes economic, social, and cultural rights, and solidarity rights8, over civil and political rights. China argues that a country can only implement human rights when its level of development is high enough. So this economic and social rights approach limits the relevance and impact of rights, and questions universal standards of compliance. For China, human rights are therefore aspirational, rather than legally binding rights. Universal standards shift according to a state’s level of development. China thus downplays civil and political rights issues for itself and globally.

China is still not a party to the International Covenant on Civil and Political Rights. China signed it after tremendous efforts during the tenure of John Shattuck,9 your predecessor, some 15 or more years ago. But they have not yet ratified it. They are still studying it, refining laws, and perhaps looking for some quid pro quo—when China signed the treaty, the U.S. dropped a stand-alone resolution on China it had presented annually at the UN’s Commission on Human Rights.

The Chinese also emphasize collective rights over individual rights, and promote new solidarity rights as well. And in that process, they have tended not just to join with, but, in some cases, to lead together with Cuba and a number of other countries in a way that suggests a preference for weak human rights mechanisms, little or no country-specific scrutiny, and a strict limit on independent information sources used in the UN human rights system.

If I could turn the tables here a little bit, Mike, may I ask you to discuss events during your term as Assistant Secretary? China stepped up in front, organized several joint statements, and led a coalition in the UN publicly identifying the limits on political protests (during the Arab Spring). Another statement was on limiting the use of the Internet, declaring it shouldn't be used for nefarious purposes like terrorism. That kind of leadership was something they didn't do previously, but they obviously felt obliged by the uncertainty of the Arab Spring, recalling Poland in 1989, to say proactively that they (China) are in this system:  “We are in these treaty bodies, we are in the Human Rights Council, and we intend to shape them in the way we want.” China’s emphasis was on maintaining public order and control. My question is: why don’t more countries stand up to China’s problematic leadership in these human rights bodies?

Another of your predecessors told me how the U.S.—the Bush Administration—would go forward with the China resolutions at the UN (attempts to express concern on the human rights situation) that had been dropped at the end of the Clinton Administration. And he said the Chinese would come to them and say, “If you raise this issue, you will be alone.” And your predecessor said back, “We know that and we don't really care.” And he said that drove China’s diplomats crazy, because one of their important approaches is to also work together with others, never be alone, and to build those coalitions. So what we see is China’s tendency to do everything by consensus, a tendency in the Human Rights Council and other bodies to try to build this kind of support, and a rather feeble response by what I would call the pro-human rights countries—the pro-civil and political rights countries—in saying, “Wait a minute, we won't have that.” These rights-supporting countries are willing to talk about rights abuses in private. That's what the Chinese want: to bilateralize comparisons about compliance with rights, rather than universalize them. Chinese diplomats went around Geneva, meeting with Ambassadors before the first Universal Periodic Review in 2009 (the second one's coming up in October) and said, “Please raise any issues you want to raise with us, but do it in private.” The rest of the world has basically said okay, and has engaged in dialogues and private discussions.

What we aren't seeing is public opposition to rights abuses, and to weakening the human rights system, by rights-supporting governments in quite the way we would hope. The result, it seems to me, is that rights-supporting countries look weak, and China feels safe. It enables them to ignore human rights issues, ignore important cases—like Chen's nephew, like the 70 Arbitrary Detention Working Group cases that Sharon spoke about in the first panel, including cases where the Working Group has found the detentions to be in violation of international standards and norms. There seems to be an ability to just brush these things off. I think we are seeing a long-term strategy on the Chinese side of cherishing obscurity, but using visibility to weaken or limit the UN’s human rights bodies whenever needed. And we are seeing no strategy, or no visible strategy, on the other side. And you know, there is an old saying, “If you don't know where you are going, any road will take you there.” Is the U.S. now in that phase? I hope not.

Jerome Cohen

I want to put the international discussion in a little bit broader context relating to Chinese views of international law and how they are evolving. Of course, as I point this out, I have to think of what Robert Burns had admonished us so many years ago in his poem: “O with the Lord, this giftie gie us, to see ourselves as others see us.” The U.S. is sitting here, as China pointed out again the other day, in judgment on China and human rights, and we try to forget all the things in our newspaper that the rest of the world doesn't forget. They know what we've been up to.

It's like this cyber-attack business. Of course, China has been attacking us in so many ways, but we read very little about what we have been doing. All of that is kept quiet. Even the New York Times and others, Washington Post, Wall Street Journal, don't seem to be pushing us. What are we up to? The Chinese know what we are up to. They know what we've been up to with respect to international law, including those occasions when we've thumbed our nose at it, when we refused to take part in various things. So that's just the background.

But in terms of what's going on in China, you could say until now there have been two big periods for China and international law. One, prior to 1971. People's Republic was established in 1949. For a little over two decades, it was excluded from representation in the UN, and very much preaching revolutionary international law, a rival organization to the UN, revolution in various countries. That ended when China finally was allowed to be represented by the People's Republic, as it should have been in 1950. Since then, since 1971, we've seen four decades of increasing participation, as Felice just said, in various international organizations, etc., increasing sophistication, doing what every great nation-state does, trying to shape the existing international norms and institutions in a way to favor its own foreign policy, playing the game, and playing it increasingly skillfully, coming to terms with equality, universality, etc.

Lately, I've seen some disturbing signs. So far there are only some signs—it's not consistent—that maybe China is thinking about entering a third stage, one where it has exaggerated notions of sovereignty, one that would harken back to the historians reminding us of the traditional East Asian relationship where China was at the top and the peripheral states all paid tribute to it. We've seen, for example, when Australia had dispute with China over the interpretation of its consular agreement. Australia said it had the right to send consuls to a secret trial of Stern Hu, an Australian national of Chinese descent. China could have argued—as it should have, even if it didn't have the better argument—that the treaty would have permitted its excluding consuls from trials in secret cases. But it didn't. It just brushed aside the agreement and said, “Nothing can intervene; nothing can interfere with the exercise of our judicial sovereignty.” Apparently not even with an agreement China made in the exercise of its sovereignty. Just brushing it aside, in the name of some exaggerated notion of sovereignty.

Or look at the Law of the Sea problem. Tomorrow we'll have the Solicitor-General of the Philippines come and talk to us about the Philippines bringing arbitration against China, over China's exaggerated claims under the Law of the Sea in the South China Sea. Well, under the treaty that China freely adhered to—the United Nations Convention on the Law of the Sea, the UNCLOS—it’s obligated to go to international dispute resolution to solve it. But when the Philippines brought this claim, China just brushed it aside, said it was a hostile act, wouldn't tolerate this—very different from the Chinese view towards the WTO. China, when it signed on to the WTO entry, it signed on to its dispute resolution procedures. And it's participating, winning some, losing some, but taking part. But that hasn't been its recent response on the Law of the Sea, which has comparable, also compulsory, dispute resolution procedures. But this time they just set it aside.

So, we are worrying, whenever I hear a Chinese leader give a speech saying China will not have to succumb to Western values, as though China hasn't signed up to all these major human rights treaties. Even though it hasn't ratified the International Covenant on Civil and Political Rights, the ICCPR, it's ratified an amazing number of documents, I think—more than the United States has at this point. But there is a danger here as China grows, and as its leaders maybe aren't sufficiently sensitive to act like another great continental power that's rising and can just wave its hand against the rules of the game. I hope that's not going to happen. But that's part of the background of what we are talking about.

Michael H. Posner

I want to open up to questions. I have a bunch of questions myself but I want to hear from people in the audience, so let's get a discussion going. Ira?

Question from the audience

Ira Belkin, U.S.-Asia Law Institute, NYU LawIra Belkin, U.S.-Asia Law Institute, NYU Law

First of all, thank you, this is a great panel. It’s really great to hear from all these different perspectives. I want to ask a question about Reeducation-Through-Labor, not the question of “what’s going to happen?” because we’ll find out what’s going to happen in a few months. But what do you think the significance is that one of the first things that the new leadership announced, or let be announced, after the 18th Party Congress was that they were going to reform, or possibly abolish, Reeducation-Through-Labor? And, is it too overly optimistic to say that this is an example of top-down leadership responding to a bottom-up desire, and that some of us would have liked to have seen the leadership swear off all forms of extralegal, arbitrary detention? But, this was a big one that’s been around for a long time, and they committed themselves to do this very early on. What does that mean for Chinese politics going forward and for human rights? Is it fair to be optimistic or should we be more cautious?

Jerome Cohen

I want to hear, of course, from our expert, Professor Fu. But my view is that this is a perfect example of the leadership really being at sixes and sevens. What happened? The new head of the Political and Legal Affairs Commission of the Party, Mr. Meng Jianzhu, gives a talk early on in the new year. And he says, admirably, “Reeducation-Through-Labor by the end of the year will cease to be used.” Curious terminology, people have pointed out.

This is Ira Belkin, for people who don’t know him, a great expert on China, who’s now our Executive Director of the U.S.-Asia Law Institute.

So, Meng says it will “cease to be used by the end of the year.” Well, that’s nice. Meng, however, isn’t in the Standing Committee of the Politburo as his predecessor was. That job has been demoted to the mere Politburo membership. Meng is said to be more liberal than Zhou Yongkang, his predecessor, who was not an attractive figure from the point of view of human rights, and many people are glad he’s gone. But Meng’s statement didn’t hold up. It’s not like this is an official policy of the Chinese government. This is not a statement of Xi Jinping, either with his Party or his government hat on. In fact, that statement sort of disappeared rather quickly from the media, and we don’t know.

Immediately, other formulations began to come up, and people said, “Oh, don’t get your expectations up,” “maybe we’ll modify this,” or “maybe we can’t really do away with it by the end of the year.” All kinds of other forces are at play that really govern things in China, where you have a highly developed sense of politics, even though we wouldn’t characterize it as conventional, Western-style democracy. So, I think this is a political football now, Reeducation-Through-Labor. I think some things will happen—they’ll change the name, certainly. They may reduce the duration of the sanction from three to four years, to a year—18 months. They may change the nature of the sanction to educate people more, and exploit their labor. Maybe they’ll make it less cruel; maybe they’ll change the procedures to allow lawyers in what will still be an administrative punishment. The critical factor will be: will they allow the decision finally to be made by the police, as it always has been since it was instituted in 1957? Or will they allow a court to review every sentence, which would put a big burden on the court—and it’s not like courts in China themselves are very independent? That’s another big subject we can talk about.

So I think it’s a mixed situation which we really can’t see clearly. There will be some changes, I think. Prostitutes will exclusively maybe have their own training. Druggies, the major people who get this sanction, will have their own training. They’ll be shrinking—as they have been—the number of people subject to it. But it’s still going to be there, I think. I don’t think you’re going to see an elimination of the ability of the police to put all kinds of dissenters, all kinds of people who want to take part in a more open society, away. I think it’s just happening—it’s too convenient for the police, and the police are still more powerful, even though their position is increasingly being challenged. But I hope I have provoked my dear friend, Professor Fu.

Fu Hualing

Okay. Let me just disagree with you on that. Just for the sake of it. I think there will be political difficulties, legal difficulties, and sociological difficulties. If you look at Reeducation-Through-Labor, it’s a very difficult concept because it has all types of offenders. There are political dissidents. There are what are called the “minor terrorists from Xinjiang.” There are drug addicts. There are prostitutes. There are people who are subject in this country to “three strikes, you’re out.” Those are the majority. It gets a bad reputation for two reasons: one is there is no procedure. That is an easy fix. China could easily pass a law and then say, “Okay, we have a procedure which is authorized by law,” and then maybe you have lawyers, you have a trial. That is straight forward. Tomorrow, the National People’s Congress could pass a law creating a legal procedure that punishes the same types of people, and that’s the end of the matter.

I think RTL has a bad reputation because it is highly political. Whenever there is a crisis, the Communist Party would use RTL as an effective tool. In 1996-1997, the Minister of Justice started to think about reform. There were drafts. But then in 1999 you had the Falun Gong protest. The leaders said, “We cannot abolish that because we need to use it against Falun Gong.” More recently you have the petitioners. Waves of petitioners went to Beijing, and you cannot punish those people through criminal law. But those people, religious believers, dissidents or petitioners, should have never been punished under RTL according to RTL rules. That is the political question. I think, in a way, if you have the political will, it’s a straightforward issue. Those political and religious offenders should have never been put under Reeducation-Through-Labor. But of course, the problem is—as Jerry said—they’ll give laojiao another name. As long as there is a political need, as long as the police are so powerful, you can’t always have an alternative mechanism to detain and punish people whom you want to punish without going through the law.

The main sociological issue is: What are you going to do with those non-political repeat offenders. They are the vast majority in the laojiao institution. They cannot be punished by criminal law, but they continue to commit minor offenses. The mainland Chinese way is administrative detention for up to three years. The Hong Kong way provides a revolving door through which offenders come in and out of penal institutions. I think the American way is three strikes. There are different problems here: procedural justice to protect rights, and also the more substantive issue of how to punish better and more effectively those who are not political offenders and who are not young anymore. But then, what are you going to do about those people who have repeated minor offences in the past and are highly likely to commit further offences in the future? Those are the questions which I think have not received enough attention.

Michael H. Posner:

Another question. Please identify yourself.

Question from the audience

What are your views of the argument that China’s closed internal structure has been helpful and maybe necessary for the amazing, recent economic accomplishments of the country? And, is that relevant?

Jerome A. Cohen:

I’m happy to take that on. Look at South Korea. Former dictator Park Chung-hee’s daughter is about to come to Washington, May 5. She’s now a successor to him. He presided over a horrible administration that really tortured, killed many people, including people I knew. One fellow had been my protégé at Harvard Law School. Today, most people in South Korea regard themselves as the beneficiaries of his dictatorship: not that they would endorse what he did, but they realize it seemed to have enabled enormous economic progress. Look at Taiwan—same thing. You had a Leninist type dictatorship of Chiang Kai-shek and his successors, who used that power to make Taiwan an economic model in many ways for smaller countries.

In both cases, beginning in the middle 1980s, economic progress led to political change, and political change has made possible impressive democracies and in an East Asian, Confucian, Buddhist culture area. Just the way Japan, with a similar background of Confucian, Buddhist influence, managed the change earlier with American guidance, shall we say, and help. We have to look at China that way. And we have to say: whatever the horrors of the Mao era, whatever the terrible things done since the Chairman’s demise, we have seen remarkable development, and maybe it couldn’t have happened under a more democratic regime. But now, maybe it’s cruel to think that a communist leadership that has done so much—the usual cliché now is to bring 300 million people out of poverty; of course, that leaves quite a few hundred million people who haven’t been lifted quite so high—it’s maybe cruel that, having done all these impressive things, they have to deal with the consequences of their previous policies. And the consequences are that people have reached a new stage and are making new demands.

There used to be a New York play called “Stop the World—I Want to Get Off.” Well the leaders of China can’t get off! They are there and they have to cope—and they’ve created a lot of these human rights expectations. I wonder if they had to do it again, would they put human rights and property rights in the constitution? Would they carry on a legal education system that’s one of the booming areas of academic life, with roughly 700 law schools and law departments? When I first went to China, you couldn’t find one that was open. And with an elite core of law professors, who come here and elsewhere to train, who are really teaching their students to imbibe Western values that are being denounced by the leadership on the same day they’re teaching about Western constitutional and other laws—the leadership in China has in a way created its own nightmare. And now, there are these “chickens”—to use the bird flu metaphor—that are now coming home to roost. In a way, you have to feel sorry for them, unless you are acquainted with the continuing cruelty that they seem to unnecessarily inflict on so many good people.

Question from the audience

Louis Bickford, Ford FoundationLouis Bickford, Ford Foundation

My name is Louis Bickford. I have two questions. The first one is about Chinese foreign investment—in  Africa, in particular, and in Asia and Latin America. I’ve made a number of different trips in my life to Kinshasa, for example, and the radical transformation of Kinshasa because of Chinese investment is astounding. And so, what does that come with? In what ways is that monitored, understood, etc.? And that’s just the capital city. You go anywhere in Africa and you can see Chinese investments. I’m curious about your thoughts about Chinese investment abroad, and whether we need to think of it. I come from a human rights perspective. So the question is: do we need to be thinking about that in a particular way from a human rights perspective?

The second question is more broadly about the Asian human rights system regionally, or really the lack of. I’m just curious about your reflections on whether there’s any possibility that there will be any kind of serious Asian regional human rights system that emerges.  AICHR (ASEAN Intergovernmental Commission on Human Rights)—which is the current effort to do that under ASEAN—is pretty toothless, and it doesn’t seem like it’s really going anywhere fast. So I’m just curious if there are other possibilities or whether you think that’s worth following more closely or putting any energy into.

Felice D. Gaer

Well, I’ll say a few words about Africa. Whether it’s Kinshasa, or South Sudan, or it’s any of the many other countries in the region, China’s investment is phenomenal. And with our own policy of sanctions and having convinced businesses from Canada, the U.S., and many other Western countries to pull out of places like Sudan, we have also provided an opportunity for extraordinary influence by China in those countries.

Same thing with Burma: China and India are doing lots of business there as the U.S. and others maintained the various sanctions. And to a certain extent, recognition of that has brought back a kind of, shall we say, more sophisticated engagement. I think Mike could talk to us a little bit about Burma and the China angle and it could be quite interesting. But China is making friends for China around the world and building leverage and also sources of resources. So, from a human rights point of view, sanctions in Africa and Chinese investment might be seen by some observers as having had some negative results.

But you could also see China’s involvement as a positive development. Mike asked earlier, “What about China’s leadership on Darfur and Sudan and other countries like that?” Consider the fact that China abstained on sending Darfur to the International Criminal Court (ICC) but was okay, later, about referring Libya. Of course, thousands of Chinese workers were evacuated from Libya during the crisis. Still, China did not block Libya being considered by the ICC.

This was no insignificant development; it was quite a change in China’s traditional approach to these international institutions. Is it because China is stepping up to the plate as a world power and recognizes its obligations, or is it out of self-interest to protect Chinese and China in these contexts? In a way, it doesn’t matter, because what we are seeing is a greater involvement with these international bodies concerned with rights. I think that those are important developments.

As to the Asian regional system, let’s see if the ASEAN system again gets off the ground. Here’s another case where Mike may have some greater insights into this than we do. But, the fact that we’re seeing China engaging internationally, and being concerned about these issues in the region—whether it’s North Korea or Burma or anywhere else—is, again, a different situation than we saw previously. China’s engagement in international human rights bodies in its early years were self-protective; their goal was to make sure there would be no criticism of China, no resolutions, no criticism, and that country criticism would be minimized in any way possible, so that existing international mechanisms would not be able to enforce rights. It became okay, after a while, to acknowledge that there are universal rights, but not to enforce those rights universally. And so the weaker the institutions, the better. What we’re seeing now, with the growth of these regional systems, is a certain seriousness in some of these regions. We should be nurturing that, it seems to me, in every such case.

I want to mention the economic growth model issue/question that was raised earlier. China is coming up before the UN Economic, Social and Cultural Rights Committee for a review of its compliance with the Covenant. China is coming up in the UN before the Universal Periodic Review in October for review of all of its compliance across the board. China doesn’t want to be criticized, whether it’s RTL or it’s the economic growth model. This is a time when voicing concern about these issues—whether it’s from the U.S. or South Sudan or Burma or anywhere else—is going to have more influence on China than it might have at other times. So, if we were looking for both challenges and opportunities, I think this is an opportunity—both in terms of the ASEAN region and in terms of these international forums where China is coming forward. Just as 70 cases were presented by HRIC to the Arbitrary Detention Working Group—and many were found to be violations of rights—if China changes the RTL system, there might not be those cases. It’s a time to try to see if that will happen.

Michael H. Posner

If I can just step out of the Chair for one second on this subject. A couple of things to say, particularly on Africa. A lot of the Chinese initiatives—the investments in roads, infrastructure projects—the expectations of governments and people in those countries has been that this is going to be an infusion, not only of income resources, but also jobs. And the reality has been something quite different than that; and there is a lot of unhappiness with the Chinese model. The Chinese tend to bring their own labor force, and do it their own way. A lot of what they are doing is trying to get access to resources, to natural resources. And they don’t accompany that with a strategy for development and growth within a sustainable structure. So there are lots of issues. They do an annual meeting where they bring African leaders in to and talk about their strategies. It’s a different discussion today than it was ten years ago, and there is a lot more anxiety about the way the Chinese are doing it.

Jerome A. Cohen

And the Chinese are discovering what we discovered long ago, which is that when you go into these countries, you inevitably end up supporting local dictatorships and getting involved with corruption and their demands. It doesn’t sit too well with a lot of the populous, if it’s a country where people can still express their views. So, Chinese involvement, whether in Africa or Brazil or whatever—and it’s growing everywhere, stimulated by the need to tie up resources, as they see it—it’s a mixed blessing for China at most.

I want to say that Burma is an example of how the country sensibly doesn’t want to be in China’s pocket. They want to use us and others to balance Chinese influence. Even North Korea. I remember I went to North Korea first in 1972, and what I learned there was the intense dislike they had, not only for modern revisionism, i.e., the Soviet Union—Russians, particularly—but the intense distrust of China. They didn’t love China. They don’t love China today. They don’t like the hand that feeds them. They don’t like being reliant on China the way they are. What North Korea is really looking to is do what Burma did. It’s just much harder for them to see how to get there. They want the U.S., the furthest power away, to help balance powers that are on their doorstep. So, this is quite a complex thing. Vietnam—despite the ideological, political, geographic, etc., factors—Vietnam is very, very wary, of course, of China’s influence. So, China also, unlike the Western powers, has a harder time when it comes to demands within these countries for greater freedom, because China is seen as abetting, of course, repression by whatever the government is that prevails.

Also, these countries increasingly know that if you cross China, if you don’t accept what they want, China, despite its occasional statements that “we don’t mix economics and politics,” is capable of very brutal and open economic retaliation. A Chinese official who works for the Ministry of Foreign Affairs was in Manila just about ten days ago. He made it very clear that because Manila chose to go the Law of Sea Tribunal, for the next four years—or whatever period it takes for a decision to come out of that Tribunal—Manila, the Philippines, is going to suffer economically. And they have certainly shown that in their relations with Taiwan.

Final point on cross-strait relations: human rights come up in cross-strait relations now. Ma Ying-jeou, the president of Taiwan, has done a brilliant job in making 18 agreements with the people across the water who deny him equal standing. Nevertheless, on the basis of equal standing functionally, he’s made these agreements. But they don’t seem to be able to go much further.  And they can’t go much further because even Ma’s closest advisors, some of whom are my former students, have publicly said, “If the PRC can’t loosen up on human rights, cooperation across the strait can’t go much further than it has.” And that’s an interesting point.

Michael H. Posner

You had a question.

Question from the audience

Gao Wenqian, Human Rights in ChinaGao Wenqian, Human Rights in China

I just want to raise a question on law reform. As we know, Chinese society has been deeply divided; there is a lack of consensus on almost every issue except one: judicial justice. More and more Chinese people, including Party officials, realize its importance. They are learning its importance from the Wang Lijun and the Bo Xilai incident of last year. So, everybody knows that if there is no judicial justice, nobody’s safe in China. My question is—because the current situation is not that optimistic, and there are very bad signs, and people are disappointed—in the current system, is there any room to move forward with law reform and to gradually build up a rule of law? If so, what is the breakthrough point? If not, where is Chinese people’s hope in the future? What should the international community do? Thanks.

Michael H. Posner

Jerry, before you or Professor Fu answers, it’s a very good question, and I want to just add one wrinkle to it. Jerry described the proliferation of lawyers and law schools in China over the last 20-25 years. Yet, it is a system that is still run by the political party and political forces. And Jerry a year ago sat down and told me which government officials, like the Minister of Justice, aren’t lawyers; which judges aren’t lawyers. Our system is crawling with lawyers, even in places where they probably don’t belong. But we link law and policy almost organically. So there is a sense of a legal framework around the way we make policy decisions. What’s the pathway for China to move from a political party-driven system in the direction of a system where lawyers and legal standards and legal approaches begin to have a bigger role, both in the implementation of the law and, in a broader sense, in deciding policy? It seems to me that evolution is a big piece of what needs to happen.

Fu Hualing

Well this is what we do—reform the political system through rule of law, piecemeal, gradual change of society, use law to tame and regulate political power. How likely is it? Well, there are good signs if you look at the most active force in Chinese civil society. At least half of them are lawyers or law-related, number-wise. They are lawyers who studied law in different ways; some of them from the grassroots forces, and others from elite law schools. They are participating in this quite grand political-legal movement. The demand is very clear: that there has got to be more regularity, rule of law, to constrain the arbitrary state power. That is really what rule of law is about: containing the arbitrary state power. Somehow that is happening. The question is: can demand drive political changes within the system? For that we come back to the elite politics. You need legally trained people in political high office to make law relevant.  Going back to the first generation of communist leaders, there were lots of lawyers. The first chief justice in China was a Japan-trained lawyer; and the second one was also a Japan-trained lawyer. Now the prime minister is a lawyer, the chief justice is a lawyer, and there are about a dozen legally-trained lawyers among the political elites. It is significant that law is the default position. When you face a crisis and you don’t know how to handle it, you think about law.

Jerome A. Cohen

I think law is improving in China, if you mean legislation. Laws are getting better, but they are products of compromise. Some of the compromises are unattractive, but by and large the legislation is getting better. But the problem is the implementation and who does the interpreting and application. And there is a struggle for power within the government—how to allocate power of the courts, relative to the prosecutors, relative to the police and administration. The relation of government to the Party is one of the fundamental questions that now is being re-examined.

I mentioned earlier the head of the Party Political and Legal Affairs Commission has been demoted to ordinary Politburo membership, not to the Standing Committee. But then the question becomes: what is the scope of power of the Political and Legal Affairs Commission? Is it going to be able to continue to decide concrete cases? What about its subordinate counterparts at every level of government? Every level has a Political and Legal Affairs Commission.

If you talk to my blind friend Chen Guangcheng, he keeps emphasizing that in his experience, in his county, in his city, the Political and Legal Affairs Committee was everything. Well, that’s changing too. There’s a struggle within the Party: should the local Political and Legal Affairs Committee continue to dictate important court decisions? And who should control that committee? Traditionally, it’s been the local police chief who had control over the committee. Even though the court chief and the prosecution chief and the justice chief have equal government rank, the police chief usually had a higher party rank. And if he’s no longer going to control that committee, is it going to be the deputy secretary of the city Party committee that’s over it? So there’re a lot of structural problems coming up and problems about the scope of authority of these political-legal committees. Are they going to control the ideology of the legal system? The policies of the legal system? And to what extent, if they don’t, will other party leaders control it just through their own interference personally, whether at the local level or at the higher level?

And it isn’t just the party, although all this has to be worked out. You know, people say “Oh, the Party only interferes in sensitive cases.” Well who is the Party? If a local official calls up the head of the court and says, “Look you must let this case be won by the defendant,” is it the Party because he has a party hat? He’s also a government official. He also may represent a local industry that’s the defendant in the case. Or it may be his cousin that’s involved, maybe a friend who went to high school with him.

I think the most difficult factor, more difficult than corruption that permeates the courts, is guanxi. Now, I know some people in the United States say, “We shouldn’t emphasize guanxi. Every society operates through social networks.” But in China it has a special meaning. I mean, if I’m a lawyer and I’m friendly with an American judge, we generally know what the limits are, what we can talk about and what we can’t, and what we should do. There are, of course, exceptions, and we are struggling with these. But in China, it’s out of control, just the way corruption is out of control.

And I think the biggest obstacle to reform relating to the law, human rights, and other matters, is really the fact that the machine—the party machine now—is increasingly corrupt, is increasingly a way that those that have the power want to keep it. And it’s a way to make money. Some people even say it’s a kind of gangster regime. I wouldn’t go that far, although there are certainly emanations of gangster-ism in some things that occur. So, it’s not just, in other words, what we would all recognize as political. It overlaps with corruption, guanxi, local protectionism, and a lot of things. So this is a tough system to crack.

Michael H. Posner

I’m just going to offer one last word, in some ways summarizing, but some ways looking forward. Jerry mentioned earlier that there is an agenda of things that perhaps are part of the future discussion of human rights, that haven’t been so much at the center. I know our own experience. I did three human rights dialogues with the Chinese. We did two legal experts dialogues—Ira and Jerry came to those.

One of the things we did was to say we are going to operate on two tracks. We are going to look at what I would call a traditional agenda. We’re going to look at political prisoner cases, we’re going to look at religious freedom, we’re going to talk about Tibet and the situation with the Uyghurs. But we’re also going to have a kind of contemporary discussion, which is reflective of what Chinese are saying to each other. So I would go into those meetings, and I would have somebody on my staff look at weibo, look at Chinese social media, that morning. And I would add to the agenda the case of the labor dispute, the strike that was going on, dispute over wages, over working conditions or hours. We’d look at Internet freedom issues, the lack of access to information. We’d look at the environmental issues, or food safety. Or we’d look at these issues of abuse of power by local authorities, and the arbitrariness of the system.

It seems to me that as we think about both the challenges but also the opportunities for people here and elsewhere who are trying to figure out what is it that we can do, the mantra ought to be: how do we identify those things the Chinese people are now vigorously debating within their own society? How do we amplify their voices? How do we give them international connections?  And how do we reinforce the extent to which a rule-based, a law-based system, will help China, both government and Chinese people, arbitrate and resolve those differences.

I’m quite optimistic about China actually. In my conversations with the government officials, they wanted to say, “Who are you to raise these issues?” And they’d say, “Oh, you’re only talking about 100 Chinese.” No. If you look at the social media, you’d recognize this is a country absolutely in change, where there is a huge amount of social churn. And I think for us to be opportunistic and to look at those areas that are affecting tens or hundreds of millions of Chinese people and try to reinforce those elements within the society, and there are many, they want to see a more rights respecting, rule-based system in the future.

Jerome A. Cohen

Well, now that’s a wonderful agenda. I’m delighted that Mike finally abandoned the role of moderator.

Michael H. Posner

I couldn’t keep my mouth shut.

Jerome A. Cohen

I always use it to talk as much as possible, and I was admiring your self-restraint. I would only say one thing we should add and maybe end on a good note. For over 20 years we were separated from China, from 1950 to 1971-1972. And one of the questions some of us had in that period was, “Had communism destroyed the traditional great Chinese sense of humor?” And lo and behold, what we found when contact was resumed was that not only had it not destroyed the sense of humor, but it had provided a huge amount of new material for the Chinese to work on.  And one of the pleasures of doing what Mike suggests—looking at the internet, looking at the comments on things—they are wonderfully funny. The people who write in are so perceptive, they’re so clever. And it really adds a note of humor that can expand our own consciousness.

Michael H. Posner

On that note, I want to thank our panelists and thank you all for being here.

Michael H. Posner (迈克波斯纳), Professor of Business and Society, NYU Stern School of Business, Former U.S. Assistant Secretary of State for the Bureau of Democracy, Human Rights, and Labor.

Jerome A. Cohen (孔杰荣) is a Professor at New York University School of Law and Co-Director of the U.S.-Asia Law Institute. A pioneer in the field, Professor Cohen began studying Chinese criminal law in the early 1960s and introduced Asian law into the curriculum of Harvard Law School. He retired from the practice of law at the end of 2000 after decades of representing companies and individuals in contract negotiations as well as in dispute resolutions in various Asian countries.

Felice D. Gaer (菲丽斯•盖尔) is the Director of AJC's Jacob Blaustein Institute for the Advancement of Human Rights, and the Vice-Chair of the United Nations Committee against Torture. She served five terms on the bipartisan U.S. Commission on International Religious Freedom, including as Chair and Vice-Chair. A member of the Council on Foreign Relations, she previously served as a public member of U.S. delegations to several United Nations human rights negotiations.

Fu Hualing (华伶) is Professor at the University of Hong Kong Faculty of Law. His research interests are constitutional law and human rights, with a special focus on the criminal justice system and media law in China. He is coauthor and co-editor of National Security and Fundamental Freedoms: Hong Kong’s Article 23 Under Scrutiny and Interpreting Hong Kong's Basic Law: The Struggle for Coherence. He serves on the board of Human Rights in China.


1. For identification only; Ms. Gaer spoke on the panel in her personal capacity.^

2. Xiao Yang was President of the Supreme People’s Court in 1998-2008.^

3. Wang Shengjun succeeded Xiao Yang as President of the Supreme People’s Court, and was in office 2008-March 15, 2013.^

4. Former Speaker of the U.S. House of Representatives, 1977-1987.^

5. Wang Qishan is Secretary of the CPC Central Commission for Discipline Inspections.^

6. Steven Hill is Counselor at the U.S. Mission to the United Nations.^

7. Chen Kegui has been imprisoned since November 2012 after being convicted of “assault” for using knives to fend off unidentified individuals who broke into his home on April 27, 2012, the day after Chen Guangcheng’s escape. Chen Kegui was sentenced to 39 months in prison. As of early May 2013, Chen Kegui is suffering from appendicitis and being denied medical treatment in prison.^

8. The term “solidarity rights” refers to rights held by a group, sometimes referred to as “third generation rights,” which include the right to development, the right to a clean environment and the right to peace. ^

9. U.S. Assistant Secretary of State for Democracy, Human Rights and Labor, 1993-1998, under President Bill Clinton.^

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