After Obama Visit, Legal Experts Dialogue Could Help Expand Citizens’ Rights in China
By Stanley Lubman, The Wall Street Journal
As part of our ongoing series of insight and analysis from leading experts in their respective fields, Stanley Lubman, a long-time specialist on Chinese law, offers his suggestions for improved cooperation between the U.S. and China on legal affairs. Mr. Lubman teaches at the University of California, Berkeley, School of Law and is the author of “Bird in a Cage: Legal Reform in China After Mao,” (Stanford University Press, 1999).
The treatment in the American press of President Obama’s trip was overly negative in its emphasis on how the Chinese leadership kept the President at too great a distance from the Chinese people. The coverage overlooked some of the promise embedded in his discussions, particularly on legal cooperation, which the U.S. can use to help expand citizens’ rights without publicly banging the drum of human rights.
The U.S.-China Joint Statement issued at the end of President Obama’s visit to China itemized agreement on a number of items, including the decision to continue the U.S.-China Legal Experts Dialogue. Dialogue meetings, each focusing on sentence reduction and parole in the two countries, have been held on three occasions since 2005. They were conducted by the Office of Legal Affairs of the US State Department’s Bureau of Democracy, Human and Labor and senior judges of the China’s Supreme People’s Court. (Source: “Legal Experts Dialogue: Promising, Complex Channel for US-China Talks.”) It is not too soon to consider possible agendas for the next Dialogue. In my view, the list should include creation of a program to expand U.S. graduate study opportunities for Chinese legal scholars and officials; increased legal aid to Chinese citizens through legal aid centers at universities and NGOs; and increased cooperation on environmental issues.
Despite the sharp differences between Chinese and American points of view on many human rights issues, my own experience (working with The Asia Foundation on law reform projects) as well as that of others suggests that there can be fruitful exchanges on other legal issues. For example, a program funded by the US Department of Labor and conducted by American NGOs working with Chinese counterparts contributed to the process of drafting a Labor Contract Law that was adopted in 2008. Similarly, after foreign NGOS stimulated programs on government transparency and administrative law and procedure, the State Council promulgated Open Government Regulations in 2008, and China’s first provincial-level Administrative Procedure Regulation was adopted, in Hunan Province. Progress of this kind can only be incremental under current circumstances, but as a recent report notes, “[M]any foreign and Chinese observers note that awareness of legal rights in many areas of PRC society is growing.” (Source: Thomas Lum, “U.S.-Funded Assistance Programs in China,” Congressional Research Service 7-5700, April 24,2009, pdf available here.)
In planning and preparing for the next Legal Experts Dialogue, The State Department should involve American NGOs, law professors and practicing lawyers with experience in working on legal development programs in China. This was done in the Rule of Law Initiative established by President Clinton, which assisted a group of Chinese experts who drafted an administrative procedure law. Although it was not adopted, its basic concepts and ideas continue to interest Chinese law reformers.
Given the mutual agreement to continue the Legal Experts Dialogue, it is appropriate to discuss creation of a program to expand opportunities for Chinese legal scholars and officials to engage in graduate legal studies in the U.S. A prototype, the Committee on Legal Educational Exchanges in China (CLEEC), which was funded by the Ford Foundation, brought close to 300 Chinese scholars to the US for study at American law schools from 1981 to 1996,. (Disclosure: I was one of the three professors who proposed the idea to the Foundation and helped administer the program, along with R. Randle Edwards and William Alford.) Around 70% of the participants returned, and some of them have risen to important positions in universities and government organizations
Chinese legal education and legal scholarship have grown since CLEEC was established, and a new Dialogue would usefully explore the need and conditions for a successor. It could bring legal scholars and officials to U.S. law schools to do research on topics that are of considerable interest to the Chinese leadership, such as methods of increasing the accountability of lower-level officials to both the public and to higher levels via workable and enforceable open government and administrative law legislation. The implementation and deepening of the innovative legislation of recent years would be given further impetus by trained legal specialists who have been able to expand their knowledge of administrative procedure in the American and other legal systems. Support could be given also for lectures and teaching in China by American experts, as well as for occasional binational scholarly conferences on subjects of mutual interest such as developments in the environmental laws of the two countries and the law of the sea.
The Dialogue could produce a program to expand legal aid to Chinese citizens through legal centers at both universities and NGOs. In such a program, law teachers could be trained to run legal aid clinics and supervise law students to provide legal assistance to needy citizens. The Chinese leadership, concerned about rampant corruption among local officials, ought to welcome ways of strengthening citizens’ ability to use legal means to obtain redress for violation of their rights in their communities.
A third area that should be addressed is cooperation on environmental issues. Experts could and should discuss strengthening enforcement of environmental laws and regulations, supporting public interest litigation, and improving impact assessment processes and citizen participation in those processes. U.S.-Chinese cooperation in all of these areas has recently been recommended in the latest report of the Congressional-Executive Commission on China (Annual Report 2009, October 10, 2009, available here).
These are only preliminary ideas for projects that seem obvious, and it should be possible to go beyond them. Some Americans would undoubtedly prefer that the Experts Dialogue include more explicit emphasis on human rights. A U.S-China dialogue on human rights has been conducted in the past but was suspended in 2004, and the Joint Statement expresses agreement to convene it again early next year. More basically, however, the history of U.S.-Chinese relations in recent decades suggests that vigorous pressure on China to improve its human rights record does not bring about fundamental change. At the same time, it is possible without confrontation to develop and deepen the level of rights-consciousness among the Chinese people and officials.
A vigorous and expanded Legal Experts Dialogue does offer promise of stimulating bilateral cooperation that could strengthen, even if incrementally, the rights of many Chinese and the legal institutions that should sustain them. If the Dialogue led to programs such as those suggested here, it could also demonstrate to skeptics that President Obama’s visit sowed seeds for future reforms.