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China Human Rights and Rule of Law Update
Chinese Official Calls Chinese Internet "Open" in Response to Google Issue
January 28, 2010
Google announced in mid-January 2010 that it would no longer censor its Chinese search engine. In response, the Chinese government said that Google must comply with Chinese laws and that the Internet in China is "open." Chinese censorship of the Internet, which prevents its citizens from accessing political and religious information that the Chinese government and Communist Party deem too sensitive for public consumption, violates international standards for free expression. The Google case also has raised the question whether Internet censorship in China constitutes trade protectionism.
The Chinese government responded to Google's unwillingness to continue censoring results on its Chinese search engine by saying that Google must comply with Chinese laws and that the Internet in China is "open." At a regularly scheduled press conference on January 19, 2010, Chinese Foreign Ministry Spokesperson Ma Zhaoxu said, "I wish to stress that the Internet in China is open and China supervises the Internet according to law." Ma added: "Foreign-invested enterprises in China should abide by China's laws and regulations, respect the interests, culture and traditions of the general public, and assume the corresponding social responsibilities. Google is no exception."
Ma's comments came in response to a question about Google's January 12 statement saying that Google and the Gmail accounts of Chinese human rights activists had been subject to a cyber attack originating from China. Google did not say the Chinese government was responsible for the attack. The January 12 statement said that Google was reviewing its business operations in China and that it would no longer censor results on Google.cn, the search engine it created for the Chinese market: These attacks and the surveillance they have uncovered¡ªcombined with the attempts over the past year to further limit free speech on the web¡ªhave led us to conclude that we should review the feasibility of our business operations in China. We have decided we are no longer willing to continue censoring our results on Google.cn, and so over the next few weeks we will be discussing with the Chinese government the basis on which we could operate an unfiltered search engine within the law, if at all. Chinese laws and regulations place a legal burden on Internet companies to monitor content on the Web and censor information deemed unacceptable by the government. The 2000 Measures for the Administration of Internet Information Services prohibit providers of Internet information services from disseminating content that falls into any one of a number of vaguely worded categories, including information "harming the honor or the interests of the nation," "spreading rumors," or "disrupting national policies on religion" (Article 15). Companies that fail to remove such information on their Web sites risk a government order to close (Article 23). Thus, providers of Internet content and services in China routinely filter politically sensitive information from searches on topics such as the 1989 Tiananmen protests, Falun Gong, Tibet, Xinjiang, China's leaders, and Charter 08. (See pp. 60¨C61 of the CECC 2009 Annual Report.) In August 2009, for example, Google.cn and the domestic search engine Baidu reportedly blocked searches for Xu Zhiyong, the law professor and rights defender who had been detained on charges of tax evasion, according to an August 19, 2009, China Daily article.
The Chinese government¡¯s regulation of the Internet and other electronic communications violates international standards for free expression. Article 19 of the International Covenant on Civil and Political Rights guarantees the right to "seek, receive and impart" information "of all kinds, regardless of frontiers," through any media of one's choice. Article 19 permits restrictions on this freedom, provided they are prescribed by law and are necessary to protect the rights or reputations of others, national security, public order, or public health or morals. Chinese government practices exceed these allowances, however, because their extensive censorship of the Internet and cell phones is not limited to the removal of content such as pornography, spam, or content deemed to violate intellectual property rights, but also political and religious content the government and Communist Party deem to be politically sensitive.
For more information on Internet censorship in China, see Access to Information¡ªCensorship of the Internet and Cell Phones starting on p. 58 of Section II¡ªFreedom of Expression in the CECC 2009 Annual Report. For background on Google's decision to create a local presence in China and the issue of trade protectionism raised by Google's recent move, click on "more" below.
Background on Google in China and the Issue of Trade Protectionism
Google has said previously that its decision to create a local presence in China through Google.cn, which it began in January 2006, was prompted by difficulty Chinese users encountered accessing its Google.com site which it operated outside of China¡ªdifficulty that in part was due to Internet service providers located in China censoring the Internet as mandated by Chinese government laws and policies. As explained in a prepared statement from Elliot Schrage, Google Vice President of Global Communications and Public Affairs, before a February 2006 hearing of the U.S. House of Representatives Foreign Affair Committee, in 2000 Google originally began with a Chinese language-version of Google.com but discovered that service to that site for Chinese users was "slow and unreliable." Schrage said:The cause of the slowness and unreliability appears to be, in large measure, the extensive filtering performed by China's licensed Internet Service Providers (ISPs). China's laws, regulations, and policies against illegal information apply not only to Internet content providers, but also to the ISPs. China has nine licensed international gateway data carriers, and many hundreds of smaller local ISPs. Each ISP is legally obligated to implement its own filtering mechanisms, leading to diverse and sometimes inconsistent outcomes across the network at any given moment. For example, some of Google's services appear to be unavailable to Chinese users nearly always, including Google News.... According to Schrage's 2006 prepared statement, the company decided that "a speedy, reliable Google.cn service will increase overall access to information for Chinese Internet users." To address censorship concerns, Google said that its Google.cn service would notify users when information had been removed from a search result. One observer has noted that Google censored its search results less thoroughly than Baidu censored its results; Baidu is a domestic Chinese company that holds more than twice the market share of Google, according to a January 18, 2010, Washington Post article. That article quoted Rebecca MacKinnon, Open Society fellow and co-founder of GlobalVoicesOnline.org, as saying "consistently, Baidu has censored politically sensitive search results much more thoroughly than Google.cn."
Google had been under particular fire from the Chinese government over the past year. In June 2009, Chinese officials ordered Google to stop linking to sites that officials said contained pornographic content, according to a June 19 Xinhua article. In March 2009, Google reported that its YouTube site was being blocked in China after a video purportedly showing Chinese police beating Tibetans appeared on the site, according to a March 24 New York Times article.
Some international observers question whether China's Internet censorship also amounts to trade protectionism. In a January 6, 2010, op-ed in the Wall Street Journal, Fredrik Erixon and Hosuk Lee-Mayiyama, director and visiting fellow, respectively, of the European Centre for International Political Economy in Brussels, said: Online censorship has become a tool of industrial policy, effectively discriminating against foreign suppliers. The Chinese search engine Baidu has been untouched by the recent crackdown, despite producing similar search results to the blocked Google and Bing Web sites. There also have been reports that users entering Google's address in their browsers have been automatically rerouted to Baidu. Licensing requirements for Web sites help Beijing control the market share of companies like smaller private-sector travel agents or Internet-telephony companies like Skype that compete with larger Chinese companies with strong relationships to Beijing.
| Source: -See Summary (2010-01-20 ) |
Posted on: 2010-02-05 |
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Chinese Courts Use "Secrets" Law To Sentence Tibetan Online Authors to Imprisonment
January 21, 2010
Following the wave of mostly peaceful Tibetan protests that began in March 2008 in the Tibetan autonomous areas of China, Chinese authorities have taken measures to prevent Tibetans from providing information to other Tibetans about the protests, the suppression of the protests by security forces, and the government's continuing crackdown in Tibetan areas. Security and judicial officials sometimes use vaguely worded laws on "state secrets" to punish attempts to share such information. In what appear to be separate cases, a court in Gansu province sentenced two Tibetan men on November 12, 2009, to prison terms of 15 and 5 years for allegedly violating laws prohibiting the disclosure of "state secrets." According to non-governmental organization reports and an Internet blogger based in Beijing, the cases involved using the Internet to post Tibetan-language content about the reported deaths and imprisonment of Tibetan protesters. Commission staff have not observed any Chinese government or state-run media reports on either case.
In one case, on November 12, 2009, the Gannan (Kanlho) Intermediate People's Court, located in Gannan Tibetan Autonomous Prefecture (TAP), Gansu province, sentenced Konchog Tsephel, a Tibetan man who co-founded a Web site on Tibetan arts and culture, to 15 years in prison for "disclosing state secrets," according to a November 16, 2009, International Campaign for Tibet (ICT) report. Information is not available about the Criminal Law (CL) statute under which the court convicted Konchog Tsephel. The maximum sentence that CL Article 398 provides for a person who "intentionally or negligently divulges state secrets" is 7 years, but Article 111 provides a 10-year minimum sentence for a person who "unlawfully supplies State secrets" to an organization or individual outside of China. Security officials detained Konchog Tsephel on February 26, 2009, when they "ransacked" his home and confiscated his computer, cell phone, and camera, the ICT report said. A Beijing-based Tibetan writer, Woeser (Oezer, Weise), described Konchog Tsephel in a December 19 Chinese-language blog entry as a "civil servant at the Machu [Maqu] county [Gannan TAP] Animal Husbandry Bureau" and commented on the basis of the charge against him.The accusations against him are connected to essays he published on his Web site about the protests in Tibet [in 2008], and related to information he disclosed to the outside world about the suppression of Tibetans during the protests and the detention of monks at monasteries by People's Armed Police, etc. These essays on his site have already been deleted. He is charged with "divulging state secrets." In the other case, the same court on the same day sentenced Kunga Tsayang, a Labrang Tashikhyil Monastery monk, to five years' imprisonment for "disclosing state secrets," according to a November 19 Tibetan Centre for Human Rights and Democracy (TCHRD) report. Kunga Tsayang hailed from Guoluo (Golog) TAP, Qinghai province, wrote essays under the pen name Gangnyi (son of snowland), and engaged in amateur photography. He had "traveled widely in Tibet and photographed the environmental degradation taking place on the Tibetan plateau and its impact on the people," the TCHRD report said, as well as worked with a Tibetan environmental protection group.
Although the Gannan court announced the verdicts for Konchog Tsephel and Kunga Tsayang on November 12, according to the ICT and TCHRD reports, Commission staff have not observed any reports explicitly linking the two men or stating that judicial authorities combined their cases. Both cases were tried in closed sessions, according to the ICT and TCHRD reports, and authorities denied Konchog Tsephel access to legal counsel, a source told ICT.
China's Criminal Procedure Law (CPL) establishes specific barriers to a defendant's access to justice when a case "involves state secrets." Article 96 of the CPL requires the suspect in such a case to obtain permission from the authorities who are investigating the case before a lawyer can be appointed to advise or represent the suspect. The CPL does not impose such an infringement on a suspect's access to legal counsel in other types of criminal cases. If the investigating authorities permit the appointment of a lawyer to advise and represent a suspect in a case alleged to involve "state secrets," Article 96 bars the suspect's lawyer from meeting with the suspect unless the authorities investigating the case grant the lawyer permission to do so. Article 152 of the CPL bars public access to trials "involving state secrets."
The Commission's 2009 Annual Report in Section II¡ªFreedom of Expression provides analysis of the impediments to justice and the rule of law facilitated by China's vague laws on "state secrets." For example, a box titled Proposed Revision to State Secrets Law on p. 66 includes the following information.- In June 2009, the National People's Congress (NPC) Standing Committee reviewed a draft revision of the PRC Law on Guarding State Secrets (State Secrets Law) and the NPC released the draft for public comment, but the proposed changes do not address abuses that occur under the current state secrets legal framework. Currently, the broad and vague definition of ''state secrets'' in Chinese law and regulations gives officials wide latitude to declare almost any information a state secret.
- [Police] can declare that a case involves state secrets to deny criminal defendants basic procedural rights, including access to counsel and an open trial. Citizens cannot challenge such a determination and officials may declare information a state secret retroactively.
The Tibetan writer Woeser assessed the allegation of "state secrets" violations in the cases of Konchog Tsephel and Kunga Tsayang in a November 27, 2009, Chinese-language blog entry that a Web site in Norway, Ny Tid (New Time), published in Norwegian on December 4 and in English on December 12.
During [2008's] "Tibet incident", [Konchog Tsephel and Kunga Tsayang] themselves witnessed how their fellow countrymen of their hometown determinedly took to the streets and voiced their opposition. The two writers revealed their aspirations and discussed facts on the internet, which then unexpectedly became the reason for them becoming criminals accused of jeopardising "state security" and revealing "state secrets". In other words, one could say that the country's action of using its power to suppress the violent behaviour of the opposing masses belongs to the category of secret which is often practiced but never spoken of.
See the Commission's 2009 Annual Report and Special Topic Paper: Tibet 2008-2009 for more information on the political imprisonment of Tibetans. See the 2009 Annual Report for more information on Chinese government use of "state secrets" provisions to undermine the rule of law. See the Commission's Political Prisoner Database for more information on Konchog Tsephel, Kunga Tsayang, and other political prisoners in China.
| Source: -See Summary (2009-12-09 ) |
Posted on: 2010-02-05 |
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Liu Xiaobo Appeals Sentence; Official Abuses Mar Case From Outset
January 21, 2010
Prominent intellectual Liu Xiaobo submitted an appeal of his 11-year sentence to the Beijing High People's Court on December 29, 2009. The court will have until mid-February to make its decision, although a ruling could come at any time. As detailed below, Liu was sentenced on Christmas Day 2009 for his peaceful use of the Internet to advocate for political reforms and human rights. Liu argued in his appeal that he was exercising his constitutional right to free speech and that the court should have credited his more than six months under "residential surveillance" toward his time served.
Prominent intellectual Liu Xiaobo submitted an appeal of his 11-year sentence to the Beijing High People's Court on December 29, 2009, according to a January 4, 2010, New York Times (NYT) article. Article 196 of the PRC Criminal Procedure Law gives the high court until mid-February (one and a half months after accepting an appeal) to make its decision, although a ruling could come any time before then. Article 196 also allows the high court to extend its time to decide a case by an additional month, but only under special circumstances.
Freedom of Expression
Liu's main argument on appeal is that he was exercising his constitutional right to free speech and therefore committed no crime, according to one of Liu's lawyers, Shang Baojun, in an interview with Radio France Internationale (RFI) published on January 5, 2010. The Beijing No. 1 Intermediate People's Court earlier found Liu guilty of "inciting subversion of state power" (a crime under Article 105, Paragraph 2, of the PRC Criminal Law). The court, citing six essays Liu wrote and his participation in Charter 08, a document calling for political reform and human rights, said that Liu had incited subversion by publishing "slanderous articles online." The court emphasized that Liu had taken advantage of the special features of the Internet, including the medium's "rapid transmission of information, broad reach, great social influence, and high degree of public attention." The court cited specific passages in Charter 08, which was circulated online, and Liu's essays that were critical of the Communist Party and supportive of democracy, and concluded without further explanation that the words amounted to slander or incitement. The court provided no evidence that Liu advocated violence in his works. Without explaining how the court distinguished words protected as free speech and words constituting incitement of subversion, the court concluded that "Liu Xiaobo's actions have obviously exceeded the freedom of speech category and constitute a crime." Human Rights in China has published an English translation of the trial court's December 25 judgment.
In his interview with RFI, Shang echoed a common concern of defense lawyers handling free speech cases in China, which is the lack of any authoritative guidance on when speech crosses the line from protected speech under Article 35 of the Constitution to the crime of inciting subversion under Article 105 of the Criminal Law. (Other recent cases where Chinese defense lawyers have raised the same concern include those of earthquake activist Tan Zuoren and land rights activist Yang Chunlin). Shang suggested that the court look to international documents for guidance, including the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, which were endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression at several sessions of the UN Commission on Human Rights in the late 1990s and 2001. The Johannesburg Principles provide that expression may be punished as a threat to national security only if a government can demonstrate that the expression is intended to incite imminent violence or is likely to incite such violence. Shang told RFI that Liu's essays advocated non-violence and posed no imminent danger. He said that no acts of violence had resulted from anyone reading Liu's essays.
The Chinese government's application of its subversion provisions, which fall under the category of crimes that endanger national security, violates international human rights standards. Both the International Covenant on Civil and Political Rights (Article 19) and the Universal Declaration of Human Rights (Article 29) require that any restriction on free expression be limited to that which is "necessary" to protect national security, or "solely for the purpose of" protecting national security. The UN Special Rapporteur on Torture has said that the vague wording of China¡¯s national security crimes leaves their application open to abuse of freedom of speech (March 2006 report searchable by date on the UN Office of the High Commissioner for Human Rights Web site). A 2008 study of "inciting subversion" cases by the human rights non-governmental organization Chinese Human Rights Defenders (CHRD) found that "speech in and of itself is interpreted as constituting incitement of subversion" and that "anything from calling for an end to one-party rule to criticizing corruption has been construed as 'inciting subversion of state power.'" For a summary of the content of the six essays by Liu cited in the trial court opinion, see a previous CECC analysis.
De Facto Detention Under "Residential Surveillance" Not Counted Toward Time Served
According to the January 4 NYT article, Liu argued on appeal that the trial court should have counted the more than six months he served under "residential surveillance" from December 9, 2008, to June 23, 2009, toward his 11-year sentence. Article 47 of the Criminal Law provides that time "held in custody" prior to a judgment shall count toward time served, but does not specify whether "residential surveillance" is considered being "held in custody." In the absence of clear guidance on this issue, courts in China have ruled both ways on whether residential surveillance should be counted, according to a September 8, 2009, op-ed in the Procuratorial Daily written by an employee of a prosecutor's office in Jiangsu province. In what appears to be a commentary from a district-level court in Chongqing municipality posted on the Chongqing Courts Web site on August 17, 2009, the court was considering whether time that a convicted drug dealer spent under "residential surveillance" at a drug rehabilitation clinic prior to his sentencing should be credited toward his sentence as time served. The drug dealer forcibly was confined to the rehabilitation clinic during this time. The commentary cited the 1984 Supreme People's Court Reply Regarding the Question of Whether the Period of Residential Surveillance in Accordance With Law Can Be Set Off Against Prison Term, which stated that residential surveillance, if applied legally, is not a "complete restriction" on personal freedom (criminal suspects may, for example, leave their domicile with permission), and as such should not count toward time served. The reply further noted, however, that there may be situations where authorities claim they are holding a person under "residential surveillance" but in essence are "completely restricting" the suspect's personal freedom. The reply found this was the case when authorities confined a suspect in a detention house but claimed it was "residential surveillance." In applying this rule, the Chongqing court commentary found that the drug dealer's personal freedom had been "completely restricted" by being forcibly held at a drug rehabilitation clinic and that the time should therefore count against his sentence.
Based on public reports on the conditions of Liu's "residential surveillance," it would appear that his personal freedom was "completely restricted." Instead of being confined to his home in Beijing, which Chinese law would appear to require, Liu was taken to a secret location. There is no indication that he was allowed any opportunity to leave, and officials restricted Liu's access to his lawyer, in violation of legal provisions allowing suspects under residential surveillance to meet with their lawyer without official permission. Moreover, officials kept Liu under this form of "residential surveillance" beyond the six-month legal limit, before formally arresting him on June 23, 2009. In early June, Liu's lawyer at the time, noted defense attorney Mo Shaoping, told Agence France-Presse that "basically, [Liu's] entire residential surveillance has not conformed with laws and regulations."
Following Liu's arrest, officials continued to ignore legal protections for suspects and defendants and to make it difficult for Liu to mount his defense.
- Liu was denied the right to hire the attorney of his choice. After Liu's arrest, officials barred Mo Shaoping from representing Liu because Mo was a fellow signatory of Charter 08.
- Liu's defense attorneys were denied the right to present their opinions to prosecutors before the indictment was issued, as required by law, and were not given adequate time to prepare for trial.
- Officials barred Liu's wife and foreign diplomats from attending the December 23 trial, according to a December 25 CHRD report.
- Judges reportedly limited Liu's defense lawyers to less than 20 minutes to present their arguments for Liu's innocence, according to the December 25 CHRD report. The report also said that the presiding judge cut Liu off while he was delivering his prepared statement, preventing him from finishing his remarks.
- No witnesses appeared in court, a common occurrence in China. Most criminal cases proceed solely on the basis of written witness statements for the prosecution, leaving the defense with no opportunity to cross-examine the witnesses and challenge such statements. (See p. 106 of the CECC 2009 Annual Report.) According to the trial court judgment, there were 11 witnesses for the prosecution, including Liu's wife. The other 10 were human rights activists who allegedly participated in Charter 08. At least one witness has denied making the statements that the prosecution had attributed to him. In a December 25 statement published on CHRD's Web site, prominent intellectual Zhang Zuhua said he never told police that Liu had published Charter 08 on overseas Web sites, pointing out that both he and Liu had been apprehended by authorities before the charter was released online. "How could I have said that 'Liu Xiaobo posted Charter 08 on foreign Web sites'? Clearly, this characterization has no basis," Zhang said. Another witness, human rights defender Teng Biao, said in a December 26 essay (via Boxun) that the statements from his police interrogation cited in the court judgment were not relevant since he had never mentioned Liu Xiaobo. Teng noted that in his experience authorities often cited family and friends as witnesses not for evidentiary purposes, but rather to sow discord among them and to raise suspicions about the moral character and integrity of the "witnesses."
Selected Responses From Chinese and International Community to Liu's Case and Recent Verdict - "We Are Willing To Share Responsibility with Liu Xiaobo" (December 10 statement from Chinese citizens who co-drafted or signed Charter 08, via Independent Chinese Pen Center)
- Online Yellow Ribbon Campaign (see December 23 Radio Free Asia article)
- "The Dirtiest of Political Trials" (December 23 statement by Ding Zilin, leader of the Tiananmen Mothers, translated by Human Rights in China)
- U.S. State Department (December 24 Statement by Mark Toner, Acting Spokesman) - "[W]e call on the Government of China to release him immediately and to respect the rights of all Chinese citizens to peacefully express their political views."
- UN High Commissioner for Human Rights Navi Pillay (December 25 Remarks via UN News Centre) - "The conviction and extremely harsh sentencing of Liu Xiaobo mark a further severe restriction on the scope of freedom of expression in China."
- European Union Presidency (Undated Statement on the Sentencing of Liu Xiaobo) - "The verdict against Mr Liu gives rise to concern with respect to freedom of expression and the right to a fair trial in China."
- Former Czech President Vaclev Havel (January 6 Letter to Chinese President Hu Jintao, which Havel attempted to deliver to Chinese Embassy in Prague, as reprinted in the Washington Post) - "There is nothing subversive to state security or damaging to future prosperity when citizens act guided by their own will and according to their best knowledge and conscience, when they associate among themselves to discuss and express peacefully their concerns and visions about the future development of their society."
- Joint Statement by CECC Chairman Byron Dorgan and Cochairman Sander Levin (December 23)
| Source: -See Summary (2010-01-14 / English / Free) |
Posted on: 2010-02-05 |
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Trials Continue in Xinjiang, Press Reportedly Warned Against Independent Reporting
January 27, 2010
A court in the far western region of Xinjiang handed down the death penalty to 10 people—5 with a two-year reprieve—and sentenced 12 others to prison terms in late December after finding them guilty of committing crimes during unrest in Xinjiang in July. The court reportedly gave one-day notice of some of the trials, in violation of Chinese law, and warned journalists who attended the trials not to report extensively on the event. The same court tried 13 more people in late January, sentencing 5 to death—1 with a two-year reprieve—and others to prison terms. The late December and January trials follow trials in October and early December also connected to events in July, and the sentences from those trials since have been upheld. The trials have been marked by violations of international standards for due process including judges selected for "political reliability" and curbs on independent legal defense.
Following the forceful police suppression of a demonstration by Uyghurs on July 5 and outbreaks of violence starting that day in Urumqi, Xinjiang Uyghur Autonomous Region (XUAR), the Urumqi Intermediate People's Court held trials on December 22 and 23 for 22 people accused of committing crimes in July, according to reports from Chinese and overseas media. The court found the defendants, who were involved in a total of five cases, guilty of crimes including intentional homicide and robbery, sentencing five to death, five to death with a two-year reprieve, eight to life in prison, and four to prison sentences between 12 and 15 years, according to a December 24 report from the Xinjiang Daily (via Bingtuan Net). Based on the names provided in the article, all of the people sentenced appear to be Uyghur. The report noted that seven of the defendants had committed the crimes "after participating in the illegal demonstration," an example of limited acknowledgment by officials that a "demonstration" took place on July 5 in addition to violent activity. Authorities initiated prosecution against the 22 people and 1 other person, involved in a total of six cases, on December 12, according to a Tianshan Net report (via Xinhua's Bingtuan Net, December 14). The Xinjiang Daily article did not discuss the status of the 23 person involved in the sixth case. On January 25, the Urumqi Intermediate People's Court tried 13 more people involved in five cases, sentencing 4 to death, 1 to death with a two-year reprieve, and the remaining defendants to prison terms including life imprisonment, according to a January 26 Xinjiang Daily report (via Xinhua). The January report did not provide detailed information on the trial and listed the names of only six of the defendants, all of whom appeared to be Uyghur. The late December and January trials follow trials in the Urumqi Intermediate People's Court in October and early December, also connected to events in July.
A report from an overseas newspaper, The Australian, indicates that authorities attempted to limit information on the late December trials. While the December 24 Xinjiang Daily article said that the trials were open to the public and attended by various spectators including the media, journalists present at one day of the trials, who were cited in a December 23 article from The Australian, said that authorities told them "not to write detailed reports or conduct their own investigations into the murders or the accused," according to a paraphrasing of their remarks. The journalists also said they were notified of the trials less than one day in advance, according to the report. Under Article 151(5) of the PRC Criminal Procedure Law, courts shall announce trials involving public prosecutions three days in advance. The controls over journalists' activities accompany broader measures in the XUAR to curb the free flow of information about events in July by blocking Web sites and limiting Internet access, international phone calls, and text messaging. Authorities announced in late December that they gradually would begin to lift the restrictions. (See, e.g., a December 28 announcement from the XUAR government information office, via Bingtuan Net, December 29, and December 30 China Daily report). As of mid-January, the Congressional-Executive Commission on China (CECC) found that many Web sites from the XUAR remained inaccessible to users outside the region. A January 18 China Daily article reported that most sites from the region also remained blocked to users there, while authorities had restored limited text messaging and international phone service. While the national state-run media agency Xinhua had provided English-language reports on the earlier trials, English-language reporting on the late December and January trials appears absent from Xinhua and other Chinese media agencies. For overseas reporting on the trials based on information provided by the XUAR government and state-run media, see, e.g., a December 24 New York Times article, December 24 Reuters report, and January 26 Reuters report.
As noted in a previous CECC analysis, trials connected to the July events have been marked by violations of international standards for due process, including judges selected for "political reliability" and curbs on independent legal defense. As in the case of reports on the earlier trials, the December 24 Xinjiang Daily article reported that lawyers hired by the defendants or appointed by the court presented defense arguments at the late December trials. (The report on the January trial did not include information on legal defense.) The information on the late December trials follows news, however, that authorities in the XUAR and elsewhere had restricted lawyers' defense activities and clients' right to have independent counsel, calling into question the nature of the legal defense during the December trials and earlier court hearings. See previous CECC analyses (1, 2) for details. Recent remarks from Rozi Ismail, head of the XUAR High People's Court, underscore politicization in the judiciary and the influence of the high court over lower courts, further calling into question the likelihood of a fair first-instance trial and fair hearing on appeal based on international standards for due process. In his January 14 work report at the XUAR People's Congress, Rozi Ismail said that the high court had issued guiding opinions on cases connected to events in July and strengthened "supervision and guidance" toward lower courts to guarantee the trials took place in an "orderly" way in accordance with law, according to a January 15 Chinese-language Xinhua article. Like other officials, Rozi Ismail connected July events to the "three forces" of terrorism, separatism, and religious extremism and said courts would continue to "strike hard with maximum pressure" at the "three forces," with crimes from July as the focus. No July-related trials to date, however, have involved terrorism, separatism, or other crimes of endangering state security, according to available information on the trials from Chinese media.
Verdicts from earlier trials in 2009 have been upheld on appeal. The XUAR High People's Court heard appeals in October from the trials held that month and upheld the judgments, as CECC analyses reported (1, 2). In addition, on December 19, the Xinjiang High People's Court heard appeals in open court from eight people in seven cases tried by the Urumqi Intermediate People's Court in early December, according to a Tianshan Net report (via Bingtuan Net, December 20) and December 21 Xinjiang Daily article (available in PDF of the hardcopy article from Open Source Center, CPP20100106038009, subscription required). Lawyers for the defendants presented defense arguments at the hearings, according to the articles. The Xinjiang High People's Court upheld the lower court's judgments. The court also upheld the judgments for three other people tried in early December, upon reading their case files and questioning the relevant parties, according to the reports.
For additional information, see Section IV—Xinjiang in the CECC 2009 Annual Report.
| Source: -See Summary (2010-01-07 / English) |
Posted on: 2010-02-05 |
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Shenzhen Authorities Issue Circular Outlining Punishments for "Abnormal Petitioning"
February 3, 2010
China's petitioning system (xinfang - "letters and visits") permits citizens to seek redress for grievances by submitting petitions directly to Party and government authorities. In November 2009, local government entities in Shenzhen reportedly issued a circular that identified 14 types of prohibited "abnormal petitioning" behavior and corresponding punishments. Some observers have alleged that Shenzhen officials overstepped their authority by including specific provisions in the circular that are broader in scope than those found in relevant national regulations, and that may impose unlawful restrictions on citizens' rights to freedom of person. According to Chinese law, administrative penalties that restrict freedom of person may be established only through legislation passed by the National People's Congress or the National People's Congress Standing Committee.
Shenzhen's Intermediate People's Court, Procuratorate, Public Security Bureau, and Justice Bureau reportedly jointly issued in November 2009 the "Circular Regarding the Lawful Handling of Abnormal Petitioning Behavior," (Circular) according to a November 13 Xinhua article. The Circular identified 14 types of "abnormal" petitioning behavior that would be subject to disciplinary action, according to the Xinhua article. As of January 20, 2010, while reports of the Circular and its contents have appeared widely on line and in the state-run media, the Circular itself does not appear to be publicly available. In a drive initiated by the mainland citizen group Civil Rights and Livelihood Watch, over 1,000 people signed an open letter demanding the repeal of the Circular, according to a December 1 Boxun article. According to an article on the Shenzhen Public Security Bureau Web Site dated November 11 (via the Shenzhen City Government Web site), among the types of behaviors the Circular reportedly defines as "abnormal" and links to the "disruption of public order" are the following: "chanting slogans," "raising banners," "wearing clothes upon which grievances are written," "displaying petition statements," "handing out information on petitioning," and "holding sit-ins."
The range of behaviors identified in the Shenzhen circular as prohibited is broader than the range prohibited by the national-level State Council Regulations on Letters and Visits (2005), according to the Xinhua article. Articles 18-20 of the State Council Regulations on Letters and Visits outline the limitations on petitioner behavior and disallow petitioners from harming "the interests of the State, society or the collective," "infringing upon the lawful rights of other citizens," and committing six types of acts, including "disrupting public order." The punishments outlined in the Shenzhen circular reportedly are more severe than those outlined in the national-level State Council Regulations on Letters and Visits (Articles 47 and 48), according to an article posted by a lawyer at the Guangdong Huashang Law Firm on the Beijing Law Information Net Web site. One mainland Chinese Academy of Social Sciences scholar who has researched China's petitioning system points out in his blog that the circular does not make the behaviors "illegal" but prohibits them by calling them "abnormal." He considers the circular's expanded list of prohibited behaviors as an "arbitrary interpretation that exceeds authority and has no basis."
Public discussions of the Shenzhen circular have included questions regarding the use of the document as a basis for legal action, according to a Global Times article (via People's Daily). The Circular reportedly outlines the following specific punishments for persons deemed by authorities to be guilty of "abnormal petitioning." For cases in which "abnormal petitioning" behavior persists, punishments are to be applied in the following sequence, according to a November 12 Guangzhou Daily article:
(1) advise a first-time offender against "abnormal petitioning" and inform them that the next time, they will be given a "disciplinary warning"
(2) penalize with a "disciplinary warning" (jinggao chufa)
(3) punish through "administrative detention" (xingzheng juliu)
(4) send to "reeducation through labor" (laodong jiaoyang) according to relevant reeducation through labor (RTL) rules and regulations.
Authorities may pursue criminal liability according to relevant laws if they think ongoing behavior constitutes a crime.
Chen Tao, a member of the criminal law committee of the government-controlled Beijing Lawyer's Association reportedly stated that, while some clauses of the Circular would help to regulate petitioning, it is primarily a document to be used for reference, and not as a foundation for law enforcement, according to the Global Times article. The article posted on the Beijing Law Information Net points out that the four issuing entities do not possess the same legislative authority that the local people's congresses and local people's congress standing committees in special economic zones and larger cities enjoy; nor do they have interpretive authority. At most, government administrative entities may make concrete operational suggestions regarding the implementation of legislation, according to the article. In addition, for the intermediate people's court and the procuratorate to become involved in administrative action too early would be tantamount to stripping away procedures for supervision and redress, also according to the same article. The Xinhua article points out that locally established rules may not contradict laws or administrative regulations, and that local rules may not deprive citizens of their rights or restrict freedom of person. According to the article, this can only be done through legislation passed by the National People's Congress (NPC) or the NPC Standing Committees. Article 9 of the PRC Administrative Punishment Law states that "Administrative penalty involving restriction of freedom of person shall only be created by law." Article 7 states that "[w]here an illegal act constitutes a crime, criminal responsibility shall be investigated in accordance with law; no administrative penalty shall be imposed in place of criminal penalty."
The Shenzhen circular is not the first to identify a broad scope of prohibited behaviors or to outline detention and RTL penalties for citizens who allegedly engage in "abnormal petitioning." A November 13 Financial Times article reported that petitioners from across China contacted by the paper said that they had been warned that if local officials determined their petitions were "abnormal" they could be sent to labor camps. On July 15, 2008, the Inner Mongolian Autonomous Region People's Procuratorate and Public Security Department jointly issued a document regarding the handling of "abnormal petitioning" behavior by people from the province who travelled to Beijing to air their grievances, according to a November 13 Boxun article (with a picture of the Inner Mongolia circular). Clauses 4-8 of the Inner Mongolia circular contain wording similar to the Shenzhen circular regarding the specific punishments petitioners may face for engaging in petitioning behavior local officials determine to be "abnormal," according to the article.
An official at the National "Letters and Visits (Xinfang) Bureau reportedly stated that survey results show 80 percent or more of citizens' petitions could be resolved at the local level and 80 percent are reasonable and involve real difficulties and problems that should be resolved, according to the Xinhua article. Citizens resort to "abnormal petitioning" due to obstacles that block normal access to channels for asserting their interests, according to the Xinhua article. The article asserts that, "some local governments still do not govern according to law; they may abuse their official authority, or even be in collusion with business or be shielding one another." Also according to the Xinhua article, officials in some locations see petitions as "trouble" and petitioners as "elements of instability." They "do not hesitate to allocate man power, material resources, and financial resources; utilize various methods; buy off; rope in by any means; hoodwink; or go so far as to beat or persecute petitioners" that could influence their "political points" or political career.
For additional information on petitioning (xinfang) in China, see Section III¡ªAccess to Justice (p. 238) in the CECC 2009 Annual Report.
| Source: -See Summary (2010-01-20 / English) |
Posted on: 2010-02-05 |
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Jiangsu Court Affirms 10-Year Sentence of Guo Quan for Organizing Political Party Online
January 21, 2010
In December 2009, the Jiangsu Provincial High People's Court affirmed a lower court's 10-year sentence of former professor and past member of the state-approved China Democratic League, Guo Quan, after he attempted to organize the "China New Democracy Party" and used the Internet to seek members and disseminate his political views. The appellate court did not open its proceedings to the public and waited beyond the 45-day limit provided under Chinese law before handing down its decision. Chinese citizens who attempt to form independent political parties and use the Internet to organize and peacefully express their opposition to the Communist Party frequently are targeted for harassment, detention, and imprisonment by the Chinese government. In addition, abuses in the Chinese criminal justice system frequently deny criminal defendants¡ªparticularly in politically sensitive cases¡ªa fair trial.
On December 22, 2009, the Jiangsu Provincial High People's Court upheld the 10-year sentence against Guo Quan, formerly a university professor and past member of the state-approved China Democratic League, according to a copy of the court's judgment published by Boxun on January 4, 2010. In October, the Suqian Intermediate People's Court in Jiangsu handed down the sentence, which also included three years' deprivation of political rights, finding that Guo used the Internet to organize an "illegal" political party called the "China New Democracy Party," recruited members for the party, published numerous "reactionary" articles online, called for a seven-day stay-at-home boycott of the government, and sought to "overthrow" the socialist system. For these alleged activities, the court found Guo guilty of subversion, a crime under Article 105, Paragraph 1 of the PRC Criminal Law. The trial court emphasized Guo's interactions with other individuals in seeking their membership in the China New Democracy Party, and his calls for an end to one-party rule and civil disobedience, but cites no instance of Guo advocating violence.
On appeal, the Jiangsu High People's Court did not open a court session to hear the case and waited beyond the 45-day limit provided under Chinese law before handing down its decision, according to a December 23, 2009, Radio Free Asia (RFA) article. According to Article 187 of the PRC Criminal Procedure Law (CPL), an appellate court shall "open a court session to hear a case of appeal" and may decide not to open a court session only "if after consulting the case file, interrogating the defendant and heeding the opinions of the other parties, defenders and agents ad litem, the collegial panel thinks the criminal facts are clear." According to the RFA article, Guo's lawyers had argued to the court to open its proceedings. One of the lawyers, Cheng Hai, told RFA: "According to [Chinese] criminal law requirements, under normal conditions a session should be opened in an [appeal], because the point of the [appeal] is to review the legality of the original decision. Only if the facts are very clear, and only after the opinions of the parties and lawyers have been solicited can a court session not be opened. But the problem is that the dispute in this case is very large." The RFA article also noted that the appellate court accepted the case on November 2 but that a month and three weeks had passed without a decision. Under Article 196 of the CPL, the appellate court "shall conclude the trial of the case within one month, or one and a half months at the latest" from the date the case is accepted. Article 196 allows for a further one-month extension upon approval of the high people's court.
The trial court earlier had relied on procedural postponements to delay its verdict against Guo until October 16, 2009, after celebrations of the 60th anniversary of the founding of the People's Republic of China on October 1. The case of another Chinese citizen who has called for greater democracy and human rights in China¡ªthat of prominent intellectual Liu Xiaobo¡ªalso has been marred by abuses in the criminal justice system. Liu appealed his 11-year sentence for inciting subversion on December 29, 2009, and is awaiting a decision.
For more information on Guo and Liu, please see their records of detention, searchable through the Congressional-Executive Commission on China's (CECC) Political Prisoner Database. For more information on how Chinese officials use the criminal charge of subversion or inciting subversion to punish citizens who express opposition to the Communist Party, see pp. 46-47 of the CECC 2009 Annual Report.
| Source: -See Summary (2010-01-11 / English / Free) |
Posted on: 2010-02-05 |
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All-China Women's Federation Proposes, Highlights Need for Draft Anti-Domestic Violence Legislation
February 2, 2010
The All-China Women's Federation announced in November 2009 a proposal for national anti-domestic violence legislation and called for the draft legislation to be included on the National People's Congress legislative agenda. China currently does not have specific anti-domestic violence legislation in place at the national level, leaving unclear both the definition of domestic violence and the responsibilities of various government departments and social organizations in preventing and curbing domestic violence. Treatment of domestic violence cases, therefore, varies by locality and by government entity.
On November 25, 2009, the 10th Annual International Day for the Elimination of Violence Against Women, an official from the Party-controlled All-China Women's Federation (ACWF) announced that it had drafted proposed legislation on preventing and curbing domestic violence. The group will continue to develop the legislation and submit it to the National People's Congress, according to a November 28 Women's Watch-China (WWC) article.
The ACWF was not the first organization to put forward draft legislation. According to a November 18, 2002, Xinhua report, the China Law Society had submitted proposed anti-domestic violence legislation at a symposium the previous week. The two proposals overlap in several areas, according to a November 26, 2009, People's Daily article, which described provisions as including: a clear definition of domestic violence, clear assignment of the government's responsibility in domestic violence prevention and treatment, clear specification of what constitutes "societal aid" and "administrative interference," clear specification of the content that should be used in civil protection orders (or personal safety protection measures), new consideration for "judicial protection," and "breakthroughs in legal responsibility."
The draft anti-domestic violence legislation comes at a time when, according to a March 2009 Xinhua report (via China Daily), the problem of domestic violence is escalating and poses a "severe threat to women's rights in China." Jiang Yue'e, head of the ACWF's rights and interests department warned in this report that "conjugal violence has grown into a potential threat to social stability." ACWF statistics cited in the WWC article reveal that the ACWF receives 50,000 domestic violence complaints annually. This is an increase over the reported 40,000 per year from 2005 to 2007 and up from 20,000 in 2000 as reported in a 2008 CECC analysis. The November 28 WWC article also reported that, of the 50,000 domestic violence complaints reaching the ACWF system annually, the number of cases involving the wounding, crippling, and even killing of victims is beginning to rise. In addition, victims are beginning to report complaints of emotional abuse and sexual violence, according to the article. ACWF statistics cited in a November 27 People's Daily report disclose that domestic violence occurs in nearly 30 percent of China's 270 million households.
Despite the reported prevalence and severity of the domestic violence problem in China, several hurdles continue to impede the progress of effective prevention and treatment. According to experts cited in a January 13, 2010, Radio Free Asia article, challenges in domestic violence prevention and treatment include reluctance on the part of public security organs, the procuratorate, and courts to "interfere" in what they consider to be internal affairs of the home; insufficiently open discussion in Chinese society about actions and behavior that constitute violence against women; and a judiciary that is not independent. The November 28 WWC article also states that different local governments' regulations and policy documents provide different definitions of domestic violence, presenting an additional barrier to dealing with domestic violence consistently across locales.
Several national-level laws contain provisions to regulate domestic violence, including the revised Marriage Law (April 2001), the Law on the Protection of the Rights and Interests of Women (as amended August 2005), the Criminal Law (as amended June 2006), the Public Security Administration Punishment Law (March 2006), and the Civil Procedure Law (revised October 2007). However, these laws do not clearly define domestic violence, assign clear and concrete legal responsibilities, or outline the roles of government departments and social organizations in prevention, punishment, and treatment, as reported in a 2008 CECC analysis and in the November 28 WWC report. Twenty-seven provincial-level jurisdictions now have specific anti-domestic violence regulations and policies in place; however, in the absence of national legislation, treatment of domestic violence issues varies by locality and government entity, according to the WWC report. On July 31, 2008, the ACWF and six other government organs (the Central Propaganda Department, the Supreme People's Court, and the Ministries of Public Security, Civil Affairs, Health, and Justice) jointly issued the Opinions on Preventing and Deterring Domestic Violence which appeared to increase the government's responsibility in handling domestic violence cases, as reported in the 2008 CECC analysis. However, advocates continue to express concern regarding the growing problem and to call for national legislation on domestic violence, as reported in the November 27, 2009, article and a January 12, 2010, People's Daily article.
At an All-China Women's Federation (ACWF) meeting that opened on January 11, 2010, Deputy Director and First Member of the Secretariat of the ACWF, Huang Qingyi, announced that the ACWF would strive for the inclusion of anti-domestic violence legislation into the national legislative agenda "as early as possible," according to the January 12 People's Daily article. The National People's Congress is scheduled to hold its third plenary session in March 2010, according to a December 28, 2009, CCTV Finance report. It is unclear whether proposed legislation on preventing and curbing domestic violence will be included on the agenda.
For more information on domestic violence in China, see Section II¡ªStatus of Women in the Congressional-Executive Commission on China 2009 Annual Report.
| Source: -See Summary (2010-01-20 / English) |
Posted on: 2010-02-05 |
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Number of Trials for State Security Crimes in Xinjiang Increases in 2009
February 2, 2010
The number of trials involving crimes of endangering state security increased in 2009 in the far western region of Xinjiang. Such crimes can carry harsh criminal sentences and have been used across China to punish peaceful activism and dissent. The figures from Xinjiang come from a year marked by unrest in the region, but none of the trials that took place in October and December 2009 that were connected to the suppressed demonstration and rioting in July has involved crimes of endangering state security. In recent months, Xinjiang authorities have reported taking steps to increase security in the region, targeting acts including those alleged to be state security crimes.
Courts in the Xinjiang Uyghur Autonomous Region (XUAR) completed trials for 437 cases involving crimes of endangering state security (ESS) in 2009, representing a sharp increase in such cases from the previous year, based on information from XUAR media and as reported in a previous Congressional-Executive Commission on China analysis. Rozi Ismail, head of the XUAR High People's Court, provided the figure in his January 14 work report at the XUAR People's Congress and reported that 255 people had been sentenced to prison terms of 10 years or more for ESS crimes, according to a January 15 Chinese-language Xinhua article. Crimes of ESS (also translated as "endangering national security") are defined in articles 102-113 of the PRC Criminal Law to include acts such as splitting the state, subversion, espionage, and armed rebellion. Many of the ESS crimes carry the possibility of life imprisonment and capital punishment. In a March 10, 2006, report (searchable by date on the UN Office of the High Commissioner for Human Rights Web site) based on visits to China, the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment noted that the "vague definition of [ESS crimes] leaves their application open to abuse particularly of the rights to freedom of religion, speech, and assembly," and recommended the abolition of such "political crimes." For more information on cases of people charged with ESS crimes, see the CECC Political Prisoner Database and several recent CECC analyses (1, 2, 3, 4). Rozi Ismail also reported that many of the ESS crimes in the XUAR were terrorism related, according to a January 15 English-language Xinhua report. As noted in the CECC 2009 Annual Report (page 246), XUAR authorities reported in 2009 on detecting terrorist cells and preventing terrorist attacks in the region, but provided limited details on the events.
The 2009 ESS figures from the XUAR come from a year marked by unrest in the region and represent an increase of 169 cases over the previous year, though none of the ESS figures appears to come from trials connected to the suppressed demonstration and rioting in July (see discussion below). As reported in a previous CECC analysis, in 2008, courts in the XUAR completed trials in a total of 268 ESS cases. Based on available data on ESS crimes nationwide and limited information on previous ESS cases in the XUAR, the number in 2008 appeared to represent an increase over previous years.
The January 15 Chinese-language Xinhua article noted that XUAR courts had handled three batches of cases related to the July 2009 unrest, but did not connect the trials to the 2009 ESS figures. A July 18 article from the Legal Daily, citing legal experts from the XUAR, had reported that suspects' alleged crimes related to events in July fell into five categories, including endangering state security, and included over 20 suspected crimes, including separatism and armed rebellion. Based on information reported by Chinese media, however, none of the trials that took place in October and December 2009 that were connected to the suppressed demonstration and rioting in July has involved ESS crimes. See recent CECC analyses (1, 2, 3) for additional information on the trials. The XUAR public security department said on January 18 that public security offices in the XUAR would increase the strength of their work in handling cases connected to events in July and in capturing criminals still at large, according to a January 19 Xinhua report.
In recent months, XUAR authorities have reported taking steps to increase security in the region, targeting acts including ESS crimes. The XUAR government allotted 2.89 billion yuan (US$423 million) for public security spending in its 2010 budget proposal, an increase of 87.9 percent over the previous year, according to information in a January 13 China Daily article, January 14 Tianshan Net report, and January 17 China Xinjiang report (noting that the XUAR People's Congress passed the 2010 budget). In Urumqi, authorities said they would increase the number of 24-hour surveillance cameras in the city to 60,000 by the end of 2010, according to a January 15 China News Net report. As of the end of November 2009, the city had installed 46,953 cameras in the city, according to the report. On December 29, the XUAR People's Congress Standing Committee made revisions to the region's Regulation for the Comprehensive Management of Social Order, effective February 1, that place prominence on "striking hard" against ESS crimes, an emphasis missing from the earlier version of the regulation. (For mention of ESS crimes in the recently revised regulation, see Articles 5, 11, 16, 25, 31, and 42.) In addition, Rozi Ismail announced in his work report that courts in the XUAR "have taken safeguarding state security and social stability as their most important and imminent task," with "striking hard against crimes of endangering state security and violent terrorism as the utmost political task," according to a paraphrasing of his remarks in the January 15 Chinese-language Xinhua article. XUAR government chairperson Nur Bekri reiterated government pledges to uphold stability in the region in his 2010 work report at the regional people's congress, according to a copy of his report posted January 18 on Tianshan Net. At a December 18 national meeting on security in China, Yang Huanning, Vice Minister of the Ministry of Public Security, called for increased steps to maintain stability in the XUAR and in Tibet, according to a copy of the remarks published in the Legal Daily (via Qinghai Peace Net, December 28). Zhou Yongkang, Standing Committee member of the Communist Party Central Committee Politburo, described at a meeting on January 26 plans for a central work forum on the XUAR to address the region's development and stability, according to a Xinhua report (via Tianshan Net, January 28). Combating "'Xinjiang independence' separatist forces" will be the most important issue at the central work forum, according to a January 24 report from Ta Kung Pao.
For more information on conditions in the XUAR, see Section IV-Xinjiang in the CECC 2009 Annual Report.
| Source: -See Summary (2010-01-15 / English) |
Posted on: 2010-02-05 |
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Government Advances Civil Society-Related Reforms in Shenzhen
February 4, 2010
The Ministry of Civil Affairs and the southern city of Shenzhen signed an agreement in July 2009 that provides for certain reforms to the local administration of civil affairs. Among other reforms, the agreement calls for the development of community-based social organizations and the establishment of a regulatory system for charities.
The Ministry of Civil Affairs (MOCA) and the southern city of Shenzhen signed the Cooperation Agreement on Pushing Forward With Integrated Reforms to Civil Affairs Undertakings (Agreement) in July 2009, which promises to advance reforms to civil affairs. The Agreement calls for Shenzhen to "take the lead in experimenting with some of MOCA's major reform projects and measures." Please visit CECC¡¯s Virtual Academy for a full English translation of the Agreement.
Shenzhen, located immediately north of Hong Kong in the Pearl River Delta region of Guangdong province, was one of the first localities to be designated as a "special economic zone" by Deng Xiaoping in 1980. It is mainland China's richest city based on per capita GDP, according to an August 2008 China Daily report.
The July 2009 Agreement outlines 34 reforms in the area of civil affairs. Five of these 34 reforms are listed below:
- "strengthen the building of grassroots democracy, research the adoption of the documentation system and other methods, vigorously develop community-based social organizations, enhance the ability of communities to self-govern" (Item 4 in section of Agreement marked "Content of Agreement").
- "Unless other regulations specify otherwise, explore establishing a system whereby civil society organizations apply and register directly with the Ministry of Civil Affairs. The Ministry of Civil Affairs shall regard this as a point for observation, tracking, and research" (Item 11).
- "Ministry of Civil Affairs will consult with relevant departments regarding the transfer of administrative and registration jurisdiction over foreign foundations with representative offices in Shenzhen to the Shenzhen municipal government, authorize the city of Shenzhen to launch a pilot project regarding the registration and management of foundations, chambers of commerce, and trans-provincial trade associations" (Item 12).
- "promote the transfer of government functions for public services that social organizations are capable of undertaking, especially newly increased public services; government procurement services, delegation or contracting of responsibilities, and other methods can be adopted¡ª[in order to] support the provision of public services by social organizations" (Item 14).
- "accelerate the establishment of a legal incorporation management system for charitable organizations, increase the public creditability of charitable organizations, explore the creation of a system that can effectively link, and to a moderate degree separate, the collection, use, and supervision of charitable funds, [and] move forward on constructing the standardization of charitable groups" (Item 27).
Under existing national laws, civil society organizations are unable to apply for registration directly with MOCA. Instead, civil society organizations first must be approved by a sponsor organization, or "leading professional unit" (yewu zhuguan danwei), which generally are limited to certain government departments and government-approved organizations. (See Article 6, Rules and Regulations on Social Organizations.) As noted in the CECC 2009 Annual Report, the requirement that civil society organizations first be approved by a sponsor organization before applying for registration with MOCA contravenes a clause of Article 22 of the International Covenant on Civil and Political Rights, which states that governments shall place no restrictions on the freedom of association other than those "¡which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others¡"
For more information on civil society and non-governmental organizations in China, see Section III¡ªCivil Society (pp. 203-207) in the CECC 2009 Annual Report.
| Source: -See Summary (2010-01-21 ) |
Posted on: 2010-02-05 |
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Chinese Media Reports on Continued Demolition in Kashgar, Resettlement Numbers Vary
February 2, 2010
Authorities in the far western region of Xinjiang have continued steps to demolish and "reconstruct" the Old City section of Kashgar and relocate residents, according to reports from Chinese media. At the same time, however, one article from overseas media reported that work on the project has stalled. Officials also launched a three-month project in October 2009 to survey cultural heritage in the Old City, almost a year after authorities first started the demolition project. The project has drawn opposition from Uyghur residents and other observers for requiring the resettlement of residents and for undermining heritage protection.
Authorities in the Xinjiang Uyghur Autonomous Region (XUAR) demolished over 4,700 homes in the Old City section of Kashgar city in 2009 as part of an ongoing project to demolish and "reconstruct" the nationally designated historic area, according to reports from Chinese media. As noted in a previous Congressional-Executive Commission on China analysis, XUAR authorities launched the five-year project in February 2009 with a stated aim of resettling at least 50,000 households into earthquake-resistant housing. The project has drawn opposition from Uyghur residents and other observers for requiring the resettlement of residents and for undermining heritage protection. Among recent Chinese media reports on the project, statistics on the total number of households resettled have varied, while information on the number of homes demolished appear consistent for the timeframes given in the different articles (cited below). Over 4,000 households were resettled in 2009, according to a January 4 report from China Xinjiang. A December 25 Xinjiang Daily article (via the United Front Work Department) reported that as of that time, authorities had started construction on more than 11,200 residences, and that 11,099 households had moved into new homes. A November 18 article from the Xinjiang News Net described over 700 households moving into new homes. Residents have had the option of moving into new residences that retain traditional features or moving into high rises, according to the Xinjiang News Net article, and some residents have built homes on the same site as their old residences, the Xinjiang Daily article reported. The articles did not provide details on compensation or job opportunities in new housing areas outside the Old City, issues which have drawn concern from local residents, nor did they indicate the total number of people resettled outside the Old City rather than to homes rebuilt on the same location.
While the Chinese media reports suggest demolition and resettlement work has been ongoing throughout 2009, a January 13 article from the Global Post, a non-Chinese media outlet, cited residents who reported that the project slowed following the July 2009 unrest in the XUAR, eventually coming to a halt. The article noted that authorities still continue to publicize the project, including by announcing a level of praise from the UN Educational, Scientific and Cultural Organization (UNESCO) that the organization says it has not provided. The article said that roughly 1,000 families reportedly had been resettled to new apartments in the first six months of 2009. (Other recent reports from non-PRC-controlled media have suggested that the demolition is ongoing, but without providing specific details on the status of demolition work in recent months. See, e.g., a December 30 South China Morning Post article (subscription required, also available through Open Source Center, subscription required) and a January 6 report from The Australian.) Following events in July, an August 21, 2009, Xinjiang News Net article reported on increased funding for the project and said that the project had received UNESCO's approval.
The recent news follows a report that Kashgar authorities launched a three-month project in October to survey cultural heritage in the Old City, according to a November 1 Xinhua report. The project was intended to investigate historic homes and structures, according to the article. The report did not explain why authorities launched the preservation effort almost a year after beginning demolition work in the Old City. In the run-up to the launch of the demolition project in 2009, authorities had stressed that "few" buildings in the Old City had real preservation value and that most structures would be demolished. The statements on the number of buildings with preservation value were at odds, however, with outside assessments and earlier official evaluations of the area's cultural heritage, and subsequent reports indicated that historic buildings had been razed. See the previous CECC analysis on the Kashgar demolition and the discussion below for more information on assessments of the Old City's cultural heritage. For reports on subsequent demolitions of historic sites, see, e.g., a June 17, 2009, Radio Free Asia report and the South China Morning Post article.
Two journal articles from previous years lend insight into problems surrounding heritage preservation work and resettlement in Kashgar. A 2007 article by Zhang Qun, an official from the Kashgar Party Committee School, stressed the importance of heritage protection to developing the area's tourist industry, highlighting such problems as a lack of publicity about the city's "harmonious ethnic relations," but Zhang's critique of the tourist industry also illustrated problems in the city's existing system for cultural heritage preservation. Zhang described a failure to attach sufficient attention to heritage protection and noted that as the result of a lack of planning and lack of consciousness toward heritage protection, some areas had lost their historic character. Zhang also noted that efforts to research the area's cultural relics and historic figures were insufficient. (See Zhang Qun, "Thoughts on Developing the Tourist Industry in Kashgar, Xinjiang" [Xinjiang kashi shi luyouye fazhan de sikao], Shishi Qiushi, Number 6, 2007, available via Eastview, subscription required.) In a 2008 article describing earlier, smaller-scale steps to relocate Kashgar residents and reconstruct parts of the Old City, author Gao Xiang wrote that the majority of residents were unwilling to move into new homes and that resettled residents experienced detrimental effects on their livelihoods, which had been tied to jobs in the Old City. The article also noted that the project affected the cultural features of the Old City and that while authorities had restored some residential areas, they charged admission for entry to the renovated areas. (See Gao Xiang, Renewed Research on the Old City of Kashgar, Xinjiang [Xinjiang kashi lao chengqu gengxin yanjiu], Huazhong Architecture, Number 12, 2008, available via Eastview, subscription required.)
For additional information on conditions in the XUAR, see Section IV¡ªXinjiang in the CECC 2009 Annual Report.
| Source: -See Summary (2009-11-28 ) |
Posted on: 2010-02-05 |
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Government Issues Procedures on Tax Deductions for Donations to NGOs
February 4, 2010
Since 2007, the Chinese government has issued new procedures for NGOs seeking eligibility to receive tax-deductible donations. Existing regulations require NGOs to register with the government. The new procedures do not alter that requirement, but provide clearer guidance on how some types of NGOs registered with the government ("public welfare" foundations and social organizations) may become eligible to receive tax-deductible donations. At the same time, the number of NGOs meeting the eligibility requirements remains low, potentially limiting the impact of the new procedures.
Expanding on a circular issued in 2008, the central government in July issued "working guidelines" for social organizations (shehui tuanti) seeking eligibility to receive tax-deductible donations. According to a report from United States International Grantmaking, social organizations are "one of the three primary forms" of NGOs in China. The other two primary types of NGOs in China are foundations (jijinhui) and private non-enterprise organizations (minban fei qiye danwei). The Working Guidelines issued in July further clarify the standards for determining the eligibility of social organizations for tax-deductible donations. At the same time, they continue to limit the number of eligible social organizations. The working guidelines also do not alter existing regulations requiring all NGOs to register with the government.
Since 2007, central government departments have issued increasingly detailed measures for NGOs seeking eligibility to receive tax-deductible donations. In January 2007, two national-level ministries, the Ministry of Finance (MOF) and the State Administration of Taxation (SAT), issued a circular on new procedures for "public welfare" foundations and social organizations (gongyixing shehui tuanti he jijinhui) seeking eligibility to receive tax-deductible donations. In December 2008, MOF and SAT issued a second circular, specifying the application procedures and eligibility requirements in greater detail. Following the December 2008 Circular, the Ministry of Civil Affairs (MOCA) issued implementation plans for "public welfare" foundations and working guidelines for "public welfare" social organizations in March and July 2009, respectively. The July 2009 Working Guidelines concerning social organizations clarify some provisions from the December 2008 Circular, and further specify what social organizations should include in their application for eligibility to receive tax-deductible donations.
Since 2008, it appears that the number of NGOs deemed eligible by the government to receive tax-deductible donations has risen. In August 2009, MOF, SAT, and MOCA published a circular with the names of 69 "public welfare" social organizations (gongyixing shehui tuanti) that the central government deemed eligible in 2008 and part of 2009. Provincial and municipal governments in 2009 have also published similar circulars. For example, Guangdong province in May 2009 issued a circular listing the names of 81 "public welfare" social organizations deemed eligible to receive tax-deductible donations. Before 2007, MOF and SAT determined the eligibility of NGOs for tax-deductible donations on a case-by-case basis, and the number of NGOs that gained eligibility was small. Between 2000 and 2007, MOF and SAT granted eligibility to fewer than 70 "national-level NGOs" (guojia ji de fei yinglixing de shehui zuzhi) , according to a China Philanthropy Times article (via jizhe.cc) published on June 17, 2009.
As noted in the Commission's 2009 Annual Report, there are thousands of NGOs that either are not registered with the government or registered as for-profit companies. Based on provisions listed in the July 2009 Working Guidelines and the December 2008 Circular, these NGOs will not be able to apply for eligibility to receive tax-deductible donations, as explained below.
The December 2008 Circular contains provisions limiting the number of NGOs from applying for eligibility to receive tax-deductible donations (see Article 4). The December 2008 Circular defines organizations eligible to receive tax-deductible donations as "public welfare social organizations" that are "in accordance with the stipulations issued by the State Council in the 'Regulations on the Management of Foundations' and the 'Regulations on the Registration and Management of Social Organizations.'" The December 2008 Circular does not refer to private non-enterprise organizations (minban fei qiye danwei) and appears to exclude them from applying for eligibility. Private non-enterprise organizations comprise 182,400 of the 413,967 NGOs in mainland China that are registered with the government, according to a September 2009 Xinhua article.
Both the July 2009 Working Guidelines and the December 2008 Circular stipulate additional requirements for "public welfare" social organizations seeking eligibility to receive tax-deductible donations. For example, Article 1 of the July 2009 Working Guidelines lists the requirements for social organizations (shehui tuanti) applying for eligibility. Among other requirements, Article 1 states that "in the three years before applying, each year's expenses on public welfare activities should be no less than 50 percent of last year's total expenditures and 70 percent of that year's general income." Article 1 of the July 2009 Working Guidelines also states that social organizations should be registered with the government for at least three years,and should not have received administrative punishment in the last three years. Social organizations passing annual inspections in the most recent year and receiving a score of 3A or higher on a government appraisal will also be eligible to apply, according to Article 1. The government appraisal listed in the July 2009 Working Guidelines is detailed in a Guiding Opinion issued in August 2007 by the Ministry of Civil Affairs. The August 2007 Guiding Opinion calls for civil affairs bureaus at the provincial level and below to assign NGOs that are registered with the government a numerical ranking from 1A to 5AAAA. The assigned ranking is based on a range of criteria, including compliance with relevant laws and regulations and the status of the Communist Party branch within the organization.
The government continues to exert control over NGOs in China. As noted in the Commission's 2009 Annual Report, national regulations issued in 1998 require that all NGOs register with the government. In order to register, all NGOs must have a government-approved sponsor organization. These requirements contravene Article 22 of the International Covenant on Civil and Political Rights, which provides that, "No restrictions may be placed on the exercise of [the right to freedom of association] other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety..." For more information on non-profits in China, see Section III¡ªCivil Society (pp. 50-57) in the CECC 2009 Annual Report.
| Source: -See Summary (2009-11-17 / Chinese) |
Posted on: 2010-02-05 |
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China Revises 2004 Auto Policy
In 2009, the Chinese government issued two important documents concerning China's policy on development of the auto industry, one of which was a revision to the 2004 Automotive Industry Development Policy. The revised policy, which the Chinese government issued in August 2009, and which came into effect in September, is discussed below. China was required to revise the 2004 Policy in order to comply with the judgment against China at the World Trade Organization (WTO) concerning import tariffs on auto parts. In March 2009, the Chinese government issued a stimulus package for the auto industry called the Program for the Adjustment and Rejuvenation of the Auto Industry, which is discussed in the accompanying CECC analysis, "China Issues Auto Stimulus Program to Boost the Auto Sector."
Background to revision of the 2004 Policy
The 2009 revision (via China Law & Practice, subscription required) to the 2004 Automotive Industry Development Policy ("2004 Auto Policy," available in Chinese on the National Development and Reform Commission Web site) was the second change to the auto policy since China joined the WTO in December 2001, when the 1994 auto policy was in effect. (For a discussion of the first revision, see pages 18-19 of the 2006 Congressional Research Service report, "China's Impact on the U.S. Automotive Industry." For a discussion of both revisions, see the China legal update by PRC law firm, Jade & Fountain, "Customs Duty Policy Changed on Automobile Parts imported for Assembly in China.") Under Paragraph 204 of the Working Party Report on the Accession of China to the WTO, China was required to amend the 1994 policy to make it compatible with WTO principles and rules. China promulgated the 2004 Policy in part to meet this commitment. However, certain provisions of the 2004 Policy, most notably provisions concerning tariff rates applicable to the import of auto parts and assemblies, were not compliant with the WTO. The United States, European Union, and Canada challenged these provisions and their implementing legislation in DS339, DS340 and DS342 at the WTO. As reported in U.S. Trade Representative's 2009 National Trade Estimate Report on Foreign Trade Barriers, the WTO dispute panel found that the provisions discriminated against imported auto parts and thus were inconsistent with WTO requirements. China appealed the panel's ruling, which subsequently was upheld by the WTO Appellate Body. Accordingly, the WTO Dispute Settlement Body requested that China bring the relevant provisions of the 2004 Policy, as well as legislation passed to implement those provisions, into conformity with China's WTO obligations. Therefore, on August 5, 2009, the Ministry of Industry and Information Technology and the National Development and Reform Commission issued Order Number 10 revising the 2004 Policy to delete the offending provisions applicable to tariffs on imported auto parts and assemblies.
Scope of the 2004 Policy, as revised
The only significant revision Order Number 10 made to the 2004 Policy was the deletion of the offending provisions, which were directed toward the localization of production of auto parts. The following discussion concerns the remainder of the 2004 Policy, which, except for the renumbering, is unchanged. Notwithstanding Order Number 10's limited revision, the 2004 Policy was, and continues to be, a comprehensive roadmap for development of a robust auto sector in China, covering a wide range of issues from development of technical standards to criteria and procedures for government approval of investment projects. The policy's goals, as stated in the introductory paragraph, are "to promote the adjustment and upgrading of the structure of the automotive industry, comprehensively enhance the international competitiveness of the automotive industry, satisfy the ever-increasing consumer demand for automobile products, and promote the healthy development of the automotive industry." The 2004 Policy decreed that by 2010 China would be one of the major auto manufacturing countries in the world, with the capability to produce enough cars for domestic consumption and to export cars. This is further elaborated in the Auto Stimulus Program, as discussed in the accompanying CECC analysis by that name. Key parts of the policy (as renumbered to reflect the revision) are as follows:
- Envisions the development of automotive technology, both through indigenous innovation and by studying international cutting-edge technology (Articles 7 to 12). The policy refers to support for technology to lower emissions, raise fuel-efficiency, produce hybrid and electric vehicles, use new vehicle materials, and use alternative fuels.
- Lays out a framework for the structural adjustment of the auto sector. This is done through the creation of large auto enterprise groups and alliances, and international cooperation to broaden the scope of operations and cope with globalization (Articles 13 to 16). Provides for "an exit mechanism" for companies that cannot compete (Article 17).
- Lays out detailed investment approval procedures and requirements (Articles 40 to 51). These cover government approval of various categories of auto or auto parts companies, establishment of automotive research and development centers, and foreign shareholding ratio restrictions applicable to foreign investment in the sector.
- Encourages the growth of private automobile consumption, and sets standards (Articles 56 to 69). These standards include a range of regulations to facilitate and encourage auto purchases, such as regulations on types of vehicles, toll road charges, fees, auto finance, the second-hand market, insurance premiums, and construction of parking lots.
- Additional miscellaneous provisions. These include, for example, provisions on technical standards, trademarks and branding, sales and service networks, import restrictions, and support from other industries, such as metallurgy and electronics.
Additional Developments in Auto Industrial Policy
In March 2009, the Chinese government issued the Auto Stimulus Program, which enhanced and expanded the auto policy. The implementation of these two has set the stage for a continued rapid development of China's auto sector, which has flourished in 2009. According to a December 9, 2009, Wall Street Journal report, Dong Yang, the executive vice president and secretary general of the China Association of Automobile Manufacturers, expects vehicle sales to exceed 13 million in 2009, about a 40 percent increase from 2008. China is now the largest auto market in the world
| Source: -See Summary (2009-12-11 / English) |
Posted on: 2010-02-05 |
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China Issues Auto Stimulus Program to Boost the Auto Sector
February 4, 2010
In 2009, the Chinese government issued two important documents concerning China's policy on development of the auto industry. The first, the Program for the Adjustment and Rejuvenation of the Auto Industry, was issued in March and is discussed below. The second, issued in August and effective in September, was a revision to the 2004 Automotive Industry Development Policy, and is discussed in the accompanying CECC analysis, "China Revises 2004 Auto Policy." It is likely the Chinese government will continue to pass legislation and new regulatory measures to achieve the goals of these two documents.
Auto Stimulus Program
In March 2009, the Chinese government issued the Program for the Adjustment and Rejuvenation of the Auto Industry ("Auto Stimulus Program" or "Program," available in Chinese on the government Web site). Though the Program ostensibly was in response to the global financial crisis, Section I acknowledges that the financial crisis was merely an early trigger for the inevitable "structural adjustment" of the industry, as envisioned in the 2004 Policy. (See, e.g., the introductory paragraph and Part 4 of the 2004 Policy, available in Chinese on the Web site of the PRC National Development and Reform Commission.) The Auto Stimulus Program covers the period from 2009 to 2011 and, in a sense, is an accelerated, truncated form of auto policy. The government's "planned targets" in the Program are very detailed, with figures for growth in sales (10 million vehicles in 2009, and a 10-percent average growth over the next three years, as provided in Part 2, Article 3(i)), market share of autos with specified engine displacement (Part 2, Article 3(iii)), and percentage of vehicles that should be new-energy vehicles (5 percent, as provided in Part 2, Article 3(vi)).
The Program stipulates that the major players in the Chinese auto industry shall be reorganized into two or three large auto enterprise groups with production and sales of over 2 million units, and four to five groups with production and sales over 1 million units (Part 2, Article 3(iv)). The program also discusses the future roles of major companies in the sector, with First Automotive Works, Dongfeng Motor Corporation, Shanghai Automotive Industry Corporation Group, and Chang'an Automotive engaging in national takeovers and reorganizations, and Beijing Automotive, Guangzhou Automotive, Chery, and Sinotruk doing so on a regional basis (Part 3, Article 2).
There are several provisions in the Auto Stimulus Program concerning technology, innovation, and development of Chinese brands, including that China should "achieve independence in technology for key parts" (Part 2, Article 3(viii)), and that Chinese companies should be the "main players" in product development and should establish strategic alliances within the industry, cooperating in production, teaching, and research" (Part 3, Article 3). It is not clear whether such strategic alliances, though made pursuant to Chinese government industrial policy, would be consistent with China's Antimonopoly Law. However, the Antimonopoly Law does allow considerable discretion in the case of significant state-owned companies. (See, e.g., the Antimonopoly Law, Article 7, concerning industries in the state-owned economy and Article 15 concerning exempted monopoly agreements.) The Program strongly supports the development of Chinese proprietary brands by formulating policies for development of technology (see, e.g., Part 2, Article 3 (v) to (viii), and Part 3, Articles 3 to 6), funding government procurement, and financing channels (Part 4), and providing support for auto companies to develop their brands through "independent development, joint development, mergers and acquisitions with domestic and foreign enterprises, and other means" (Part 3, Article 6). Chinese auto companies have been working actively toward the acquisition of foreign auto manufacturers, which would allow China to acquire foreign, cutting-edge technology. According to a December 14, 2009, Wall Street Journal report, Chinese state-owned automaker Beijing Automotive entered into an agreement in December 2009 to buy Saab's technology from GM, in a deal which will allow Beijing Auto to incorporate Saab technology into Beijing Auto's own cars. According to the report, a person familiar with the deal indicated that Chinese state-owned banks will finance parts of the acquisition. In addition, listed Chinese auto manufacturer Geely has agreed with Ford to acquire Volvo. According to a December 1 Wall Street Journal report, a person close to Geely has said that Geely has lined up loans from three large Chinese government-owned banks for a possible purchase of Volvo. According to a January 20, 2010, Sina report, Geely reached an agreement with Ford in December 2009 to buy Volvo Car Corporation from Ford. These purchases pave the way for China to "leapfrog" its technological development sufficiently to build Chinese brands in foreign markets, according to a December 14, 2009, report by the Associated Press (via Yahoo!).
Part 4 of the Program provides for several government subsidies to support the auto industry, including:
- Subsidies for farmers to buy minivans or light goods vehicles (Article 2),
- Subsidies for scrapping old vehicles (Article 3),
- Allocation of 10 billion yuan from the central government for development of technology (Article 9), and
- Subsidies for a national fuel-efficient and new-energy vehicle demonstration project (Article 10).
The Program calls for a number of additional measures for various government departments, at the central to local level, to support the industry and to work to achieve the goals of the Program.
Future Developments
Reports on the growth of auto sales in China indicate that China's measures to stimulate domestic consumption are working, with sales up by 46 percent from the previous year, to 13.6 million vehicles, according to a January 12, 2010, Wall Street Journal report. The Auto Stimulus Program was set to expire at the end of January 2010, but Xinhua reported on December 12, 2009, that the Chinese government has decided to extend the program for an additional year, with some minor adjustments. There are indications that the Chinese government will continue to pass legislation and new measures to achieve the goals of these two documents. For example, the State Council issued the 2010 Measures for the Adjustment and Perfection of Economic Policy in December 2009. The measures, as reported in Chinese in Xinhua, provide in part for extension and expansion of certain subsidies and programs supporting the auto industry.
| Source: -See Summary (2010-01-21 ) |
Posted on: 2010-02-05 |
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WTO Rules Against Chinese Trade Restrictions on Books, DVDs, Music, and Films
February 4, 2010
A World Trade Organization (WTO) expert panel (Panel), in a report dated August 12, 2009, found that certain Chinese regulations that restrict foreign companies and Chinese-foreign joint ventures from importing or distributing products such as books, DVDs, and music, as well as from importing films for theatrical release, violate China's international trade obligations. The Panel also found that certain Chinese regulations discriminate against publications imported into China to the benefit of publications produced in that country, which is contrary to China's WTO obligations. The United States, which originally lodged the complaint that led to the ruling, welcomed the decision, while China expressed dissatisfaction. Both the United States and China appealed the ruling. The WTO Appellate Body upheld the Panel's conclusions in most respects, concluding that China's import and censorship system is not consistent with China's WTO commitments. The Appellate Body also held that China had the right to use an exception under the General Agreement on Tariffs and Trade for protection of public morals, but that the issue in this case did not qualify. The ruling did not challenge China's censorship of the content of the products in question or address China's compliance with international obligations to protect intellectual property rights.
In a report dated August 12, 2009, a World Trade Organization (WTO) expert panel (Panel) found that certain Chinese regulations restricting the ability of foreign companies and Chinese-foreign joint ventures to import or distribute (1) reading materials, (2) audiovisual home entertainment (AVHE) products, and (3) sound recordings, as well as to import films for theatrical release, were in violation of WTO rules. According to the Panel's report, reading materials include books, newspapers, periodicals, and electronic publications; AVHE products include videocassettes, VCDs, and DVDs; and sound recordings include recorded audio tapes and CDs as well as "ringtones" and "ringback tones." The Panel's report stems from a Request for Consultations filed by the United States in April 2007, according to the WTO Web site.
A summary of the Panel's findings can be found on pages 461-469 of the report. Specifically, the Panel found the following measures to violate China's WTO obligations:
- Chinese regulations that expressly prohibit foreign investment in businesses that import reading materials, AVHE products, or sound recordings, as well as regulations that give the Chinese government discretion to determine who may import reading materials, AVHE products, sound recordings, and films into China. For example, Articles X(2) and X(3) of the Catalogue of Prohibited Foreign Investment Industries in the Catalogue for the Guidance of Foreign Investment Industries prohibit foreign investment in the "business of¡ importing of books, newspaper and periodical" and the "business of¡ importing of audio and visual products and electronic publications." The Panel found that these provisions violate commitments in the Chinese government's Protocol of Accession to the WTO (Protocol) and the Report of the Working Party on the Accession of China (Working Party Report) that require China to permit all enterprises in China and foreign enterprises and individuals to import and export all goods (with some limited exceptions) to and from China by December 2004. In addition, the Panel found other regulations that violate commitments in the Protocol and the Working Party Report. Examples include Articles 41 and 42 of the Regulation on the Administration of Publishing, which require companies that import publications into China to be Chinese wholly state-owned enterprises, and Article 30 of the Regulations Regarding Management of Films, which gives the State Administration of Radio, Film, and Television discretionary authority to decide who can import films.
China argued that its requirement that importers of reading materials and audiovisual products be wholly state-owned enterprises is "necessary to protect public morals," a claim that the Panel rejected. According to Article XX(a) of the General Agreement on Tariffs and Trade 1994 (GATT 1994), a country may adopt trade measures that are "necessary to protect public morals." According to the Panel's report, China argued that reading materials and audiovisual products are "cultural products" which are "of a unique kind with a potentially serious negative impact on public morals," and noted that "in the case of products to be imported it is critical that the content review be carried out at the border." Furthermore, China argued that relying solely on administrative authorities to carry out this review would create "undue delays" because of those authorities' "limited resources," and therefore it is appropriate for Chinese authorities to select "import entities" that would help conduct a content review. China contended that the "contribution of the import entities to the content review is a substantial and essential condition for an effective and efficient content review." Finally, China argued that these import entities must be wholly state-owned enterprises, because "¡the Government cannot require privately owned enterprises in China to bear the substantial cost [of conducting content review.]" In response, the United States argued that "content review can be conducted before, during, or after importation by any number of entities, with no need to give China's state-owned enterprises a monopoly on importing." The Panel found that the monopoly of Chinese state-owned enterprises on the content review and importation of reading materials, AVHE products, sound recordings and films for theatrical release was not a measure "necessary" to protect public morals as allowed under Article XX(a) of the GATT 1994.
Reactions to the Ruling
The United States Government and representatives of the American film industry cast the Panel's ruling as a victory, while the Chinese government expressed dissatisfaction with the ruling. In an August 12 press release, United States Trade Representative (USTR) Ron Kirk said that "[t]oday, a WTO panel handed a significant victory to America's creative industries," and that the decision will "level the playing field for American companies¡so that legitimate American products get to market and beat out the pirates." In addition, according to an August 17 Reuters article, a U.S. official has said that because the ruling means that the state-run China Film can no longer be a monopoly importer of films into China, other channels for importing films would open up. In an August 12 press release, the Motion Picture Association of America (MPAA) quoted Chairman and CEO Dan Glickman as commenting on the WTO's findings that China's "film import monopoly as well as the barriers that keep U.S. firms from importing and distributing DVDs in China" violated China's international trade obligations. Glickman said, "The Chinese system for distributing U.S. films to Chinese audiences is amongst the most restrictive and burdensome in the world. This decision, coupled with the recent announcement from the State Council that the Chinese government intends to lower market access thresholds for the cultural industry, may be an opening we have been seeking." He also noted that the Panel's conclusions will aid in the film industry's fight against piracy in China. An August 14 Variety article quoted Independent Film and Television Alliance President and CEO Jean Prewitt as saying that "China will benefit from increased investment in its distribution infrastructure and enjoy a wider range of entertainment programming resulting from a more competitive and open marketplace." The Reuters article noted, however, that the ruling does not change the cap on the number of blockbuster foreign films allowed into China per year. China's Schedule of Specific Commitments to the GATS (available via the WTO Services Database) stipulates that 20 foreign films shall be imported annually on a revenue-sharing basis, and this measure was not at issue in the dispute. Chinese Ministry of Commerce spokesman Yao Jian said at a press conference on August 17 that it was "inappropriate" for the Panel not to reject the U.S. complaint and that China had "not eliminated the possibility of appealing," according to a Xinhua article (in Chinese) of the same date. China filed a notification of an appeal on September 23, 2009. The United States filed a notification of an appeal on October 6, 2009. Both China and the United States appealed aspects of the Panel's findings, and the WTO Appellate Body circulated its report to the public on December 21, 2009. As reported in China Trade Extra (subscription required), the Appellate Body upheld the Panel's conclusions in most respects, concluding that China's import and censorship system is not consistent with China's WTO commitments. Further, the Appellate Body did find that China had the right to use the exception for protection of public morals provided in Article XX(a) of the GATT, but that the measures at issue in this case did not qualify. The Dispute Settlement Body adopted the report of the Appellate Body on January 19, 2010. Although there are few details as to how China will comply with the WTO decision, according to an article in the December 22, 2009, Reuters, "China is expected to set up a more formal import approval system for cultural products...."
Neither the Panel's ruling nor the report of the Appellate Body dealt with other barriers to market access, including intellectual property rights (IPR) violations. Non-Chinese producers of cultural products, including those which are able to export their products to China, face rampant IPR violations in China. This was the subject of a separate WTO challenge against China, on which the United States prevailed earlier this year. For more information on IPR in China, see Section III¡ªCommercial Rule of Law¡ªIntellectual Property in the Commission's 2008 and 2009 Annual Reports. Similarly, neither the Panel ruling nor the report of the Appellate Body affect the Chinese government's restrictions on political and religious content in publications and other media, nor do they affect the requirement that anyone wishing to publish a book, newspaper, or magazine in China obtain a license from the government, each of which violates international human rights standards for free expression. (See Section II¡ªFreedom of Expression¡ªRegulation and Censorship of the News Media and Publishing, in the Commission's 2009 Annual Report.)
| Source: -See Summary (2009-08-27 / English / Free) |
Posted on: 2010-02-05 |
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