As the dance over control of TikTok gets more complicated, last week it came out that the U.S. government has asked American-based video gaming companies where China’s Tencent is an owner or investor to detail how they handle the data of American players.
U.S. Congressional–Executive Commission on China, "Annual Report 2008," October 31, 2008
The findings of the Commission’s 2008 Annual Report prompt us to consider not simply what the Chinese government and Communist Party may do in the months and years ahead, but what we must do differently in view of developments in China over the last year. We understand that China today is significantly changed from the China of several decades ago, and that the challenges facing its people and leaders are complex. As the United States engages China, it is also vital that our nation pursue the issues that are the charge of this Commission: individual human rights, including worker rights, and the safeguards of the rule of law. As China plays an increasingly significant role in the international community, this report describes how China repeatedly has failed to abide by its commitments to internationally recognized standards. Therefore it is vital that there be continuing assessment of China’s commitments. This is not a matter of one country meddling in the affairs of another. Other nations, including ours, have both the responsibility and a legitimate interest in ensuring compliance with international commitments. It is in this context, as Chairman and Co-Chairman of the Congressional-Executive Commission on China, that we submit the Commission’s 2008 Annual Report.
This year the international community watched with dismay as Chinese authorities responded with overwhelming force to a wave of public protests that spread across Tibetan areas of China. Amidst the astonishment with which people around the world more recently witnessed the spectacular opening ceremonies of the 2008 Beijing Summer Olympic Games and China’s effective management of the Games, Chinese authorities failed to fulfill several Olympics-related commitments—including commitments to press freedom, media access, the free flow of information, and freedom of assembly. The Chinese government’s and Communist Party’s continuing crackdown on China’s ethnic minority citizens, ongoing manipulation of the media, and heightened repression of rights defenders reveal a level of state control over society that is incompatible with the development of the rule of law. The cases of well over a thousand of the political and religious prisoners languishing in jails and prisons in China today are documented by the Commission’s publicly accessible Political Prisoner Database.
During the past 12 months, the Chinese government and Communist Party have outlined legislative and regulatory developments in areas such as anti-monopoly, open government information, collective contracting, employment promotion, regulation of the legal profession, and intellectual property, among others. Based on China’s record of past enforcement, these new measures will require consistent and transparent implementation if they are to fulfill the government’s stated objectives. China’s record on human rights and the development of the rule of law over the last year continued to reflect the following troubling trends: (1) heightened intolerance of citizen activism and suppression of information on matters of public concern; (2) ongoing instrumental use of law for political purposes; (3) stepped up efforts to insulate the central leadership from the backlash of national policy failures; and (4) heightened reliance on emergency measures as instruments of social control. The Chinese government and Communist Party continue to equate citizen activism and public protest with "social instability" and "social unrest." China’s increasingly active and engaged citizenry is one of China’s most important resources for ad-dressing the myriad public policy problems the Chinese people face, including food safety, forced labor, environmental degradation, and corruption. Citizen engagement, not repression, is the path to the effective implementation of basic human rights, and to the ability of all people in China to live under the rule of law.
Sander M. Levin, Chairman Byron L. Dorgan, Co-Chairman
Over the last year, the following general trends with regard to human rights and the development of the rule of law have been evident in China:
- The Chinese government’s and Communist Party’s intolerance of citizen activism increased, as did the suppression by authorities of information on matters of public concern.
- The instrumental use of law for political purposes continued, and intensified in some areas, notwithstanding developments in areas such as death penalty reform, anti-monopoly, open government information, employment promotion, and collective labor contracting.
- Official efforts to insulate the central leadership from the backlash of national policy failures continued, as efforts to prevent "sensitive" disputes from entering legal channels that lead to Beijing intensified.
- In the wake of Tibetan protests, the Sichuan earthquake, the 2008 Beijing Olympic Games, and, most recently, a food safety crisis involving tainted milk products, the stake that Chinese citizens and citizens of other countries have in improved governance in China continued to rise. The Chinese government’s and Communist Party’s increasing reliance on emergency measures as instruments of social control over the last year underscored the downside risk of insufficient or ineffective rule of law reforms.
INTOLERANCE OF CITIZEN ACTIVISM
The clearest manifestations of Chinese government and Communist Party intolerance of citizen activism during the past year were the detention, "patriotic education," isolation, and deaths of Tibetans following protests in Tibetan areas of China. Authorities failed to distinguish between peaceful protesters and rioters as required under both Chinese law and international human rights norms. Heightened intolerance of peaceful protest also was evident in the Xinjiang Uyghur Autonomous Region (XUAR) in the aftermath of demonstrations in Hoten and amid security preparations for the 2008 Olympic Games. Participants in the Hoten demonstrations protested government policies against a backdrop of rising controls and repressive measures in the XUAR, including wide-scale detentions, restrictions on Uyghurs’ freedom to travel, and heightened surveillance over religious activities and religious practitioners.
Illegal detentions and harassment of dissidents and petitioners followed the Chinese government and Communist Party’s instructions to officials to ensure a "harmonious" and dissent-free Olympics. Individuals detained for circulating a "We Want Human Rights, Not Olympics" petition are now serving sentences in prison and "reeducation through labor" (RTL) centers. The government designated special locations or "zones" for public protest during the 2008 Olympic Games, but no protests received approval, and the harassment of applicants for protest permits has been reported. Authorities also harassed legal advocates connected to religion-related cases and active in defending religious groups. Such harassment intensified in the run-up to and during the 2008 Olympic Games. Advocates and rights defenders were placed under 24-hour police surveillance during the resumption of the U.S.-China Human Rights Dialogue held in Beijing, and also during a visit to Beijing by Members of the U.S. Congress. Central and local officials also tightened controls over political organizations and political party figures affiliated with parties other than the ruling Chinese Communist Party. Central authorities took steps to quell burgeoning public discussion of the merits of eliminating or phasing out the one-child population planning policy. Authorities targeted a number of HIV/AIDS and other health advocacy organizations, and shut down or removed content from their Web sites.
INSTRUMENTAL USE OF LAW FOR POLITICAL PURPOSES
Chinese authorities’ use of law as an instrument of politics continued unabated, and intensified in some areas. Provisions in Internet regulations that prohibit content deemed "harmful to the honor or interests of the nation" and "disrupting the solidarity of peoples," supplied "legal" justification for the censorship of Internet content deemed politically sensitive. The crime of "inciting subversion of state power" under Article 105, Paragraph 2, of the Criminal Law continued to be a principal tool for punishing those who peacefully criticized the Chinese government or who advocated for human rights on the Internet. Chinese government authorities particularly targeted persons who openly tied their criticism to China’s hosting of the 2008 Olympic Games or handling of the Sichuan earthquake. Legal provisions that prohibit the incitement of others "to split the state or undermine unity of the country" (Criminal Law, Article 103) have been invoked to punish Tibetans for peaceful expressions of support for the Dalai Lama or for their wish for Tibetan independence. Possession of a photograph of the Dalai Lama or a copy of one of his speeches continued to serve as evidence of "splittism." National and local measures regulating Tibetan Buddhism, and the Regional Ethnic Autonomy Law, prioritize fulfillment of government and Party political objectives and fail to protect Tibetan culture, language, or religion. Pursuant to a 1999 Decision of the National People’s Congress Standing Committee that established a ban on "cult organizations," the Chinese government continued to detain and punish Falun Gong practitioners and members of other spiritual and religious groups.
Legal provisions concerning national unity, internal security, social order, and the promotion of a "harmonious society" that were included in new legislation and regulations in 2006 and 2007 were invoked in cases of detention and imprisonment in the last year. China’s legal and judicial authorities continued to deny fundamental procedural protections (such as access to a lawyer or a public trial) to those accused of state security crimes. The number of cases in the Xinjiang Uyghur Autonomous Region of state security crimes, including cases involving peaceful expression or religious practice, remains high. Officials continued to use the charge of "illegal operation of a business" as a pretext to detain or convict individuals who publish religious materials or other materials deemed "sensitive."
The Chinese government requires Home Return Permits (HRP) for Hong Kong and Macau residents who are Chinese citizens to visit the mainland. The Chinese government confiscated the HRPs of citizens deemed prone to overstep the limits of "normal" or "approved" activities, and continued to deny the issuance of HRPs to 12 pro-democracy members of Hong Kong’s Legislative Council allegedly for their support of Tiananmen Square protesters in 1989 and their criticism of the Chinese government. In the past year, authorities confiscated, revoked, denied entry, or refused to renew or accept the passport applications of several known dissidents, and denied entry to a Hong Kong reporter covering the 2008 Olympic Games for a pro-democracy Chinese-language newspaper.
INSULATION OF THE CENTRAL LEADERSHIP FROM THE BACKLASH OF POLICY FAILURE
One objective of China’s new Law on Emergency Response, which took effect on November 1, 2007, is to "prevent minor mishaps from turning into major public crises" according to legislators cited in official reports. Shortly after the Sichuan earthquake in May, the Supreme People’s Court issued a Circular titled, "Completing Trial Work During the Earthquake Disaster Relief Period to Earnestly Safeguard Social Stability" instructing courts to "exercise caution in examining and docketing" cases that are "socially sensitive" or "collective" (e.g., multiple plaintiffs litigating collectively), and "to use mediation to achieve reconciliation through the withdrawal of charges to resolve disputes." In the wake of the earthquake, Party officials directed Chinese media and news editors to focus on "positive" stories that projected national unity and stability, and in the run-up to the 2008 Olympic Games ordered the media to avoid "negative stories" such as those relating to air quality and food safety problems.
Following Tibetan protests this spring, which involved thousands of protesters, Chinese authorities repeatedly placed blame on the actions of "a small handful" of "rioters" and "unlawful elements." The emphasis on "a small handful," combined with propaganda that holds the Dalai Lama personally accountable for events and developments, appears to be a strategy aimed at prompting Chinese citizens to rally around the government, and to pre-empt their pressing the government to explain the frustration and anger of the large number of Tibetan protesters. Authorities have revealed little information about the names of Tibetans detained, the charges (if any) against them, the locations of courts handling the cases, or the location of facilities where protesters have been or remain detained or imprisoned. As a result, China’s non-Tibetan citizens are even less likely than before to raise questions or complaints about China’s Tibet policy.
RISING STAKES OF LEGAL REFORM IN CHINA
In part due to China’s increasing engagement with the world economy, events within China have had an increasing influence on its neighbors and trading partners. Unsafe Chinese exports continue to demonstrate the rising stakes of China’s relative lack of government transparency, its weak legal institutions, and the Chinese government’s failure to enforce its own product safety laws. China’s global reach also affords the government an array of levers through which to reward overseas entities who support or remain silent on domestic Chinese human rights abuses, while penalizing those who criticize the Chinese government’s practices. China’s actions related to Darfur, Sudan, may be understood, at least in part, in this context.
Government and Party rhetoric warning against foreign influence became more strident in the last year. The Commission also observed detentions of ethnic minority citizens active in international arenas or perceived to have ties with overseas groups. In the past year, authorities targeted some Chinese religious adherents with ties to foreign co-religionists for harassment, detention, and other abuses. In the region along China’s border with North Korea, authorities reportedly shut down churches found to have ties with South Koreans or other foreign nationals.
The rising stakes of legal reform also became increasingly evident in the non-governmental organization (NGO) sector over the last year. China’s new Corporate Income Tax Law, which took effect on January 1, 2008, encourages public and corporate charitable donations through the provision of tax benefits. Increases in corporate donations and support for NGO activities in the wake of this year’s earthquake in Sichuan may have been attributable in part to these provisions. The majority of NGOs in China, however, regardless of their registration status, cannot engage in fundraising activities because charity-related laws only allow a small number of government-approved foundations to collect and distribute donations. This restriction posed significant challenges for the provision of victims’ support services in the aftermath of the May Sichuan earthquake, when unprecedented donations overwhelmed the government. China also is an origin, transit, and destination country for human trafficking. Chinese trafficking victims can be found in Europe, Africa, Latin America, Northeast Asia, and North America. Trafficking victims from Southeast Asia, the Russian Far East, Mongolia, and North Korea are trafficked to China, where victims are much in need of support services. The small number of government-approved foundations and the limited capacity to manage funds continued to impact the availability of victims’ support and social services.
Even as the Commission highlights these areas of concern, China over the past year has outlined a number of laws and regulations that have the potential to produce positive results if central and local government departments and Party officials prove their ability and willingness to implement them faithfully. Developments in areas such as anti-monopoly, open government information, collective contracting, employment promotion, regulation of the legal profession, and intellectual property, among others, are reported in detail in the pages that follow. The past year also marked the first time that Chinese courts mandated criminal punishment in a sexual harassment case, and issued a civil protection order in a divorce case involving domestic violence. And, as the Commission reported last year, the resumption of the Supreme People’s Court’s review of death penalty sentences was a significant development for China’s criminal justice system. Since January 1, 2007, when the death penalty reform took effect, the Chinese government has reported a 30-percent decrease in the number of death sentences. The Commission will continue to monitor the effectiveness of China’s implementation of the rule of law and human rights in the year ahead.
The Commission’s Executive Branch members have participated in and supported the work of the Commission. The content of this Annual Report, including its findings, views, and recommendations, does not necessarily reflect the views of individual Executive Branch members or the policies of the Administration.
Please join the USC U.S.-China Institute for a book talk with author David Lampton. His new book examines China’s effort to create an intercountry railway system connecting China and its seven Southeast Asian neighbors.