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Posted April 27, 2006

China Starting to Address Human Rights Issues, Students Find

Human Rights Study Project members

Human Rights Study Project members (from left) Kate Kochendorfer, Christine Ennis, Christy Tuttle, Erin Stieber, Katherine Monahan, Heather Axford, and Stephanie Breslow.


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The most populated nation in the world has alternately been called the global economic engine of the future and one of the world’s worst human rights violators—a Cold War holdout with a Communist government that may yet topple under the weight of capitalism and globalization, but until then viewed with suspicion by many Americans. Yet for all of China’s differences with the United States, members of the Human Rights Study Project (HRSP) found they could connect with Chinese citizens’ growing consciousness about traditional democratic rights.

HRSP took its most intensive journey yet since its creation four years ago, with seven students traveling to China for three weeks during winter break to explore key issues in a country that is open to visitors, but frequently close-mouthed about certain government policies. Second-year law student Jim Zeng, who was raised in China until age 11, also traveled with the team as a translator. The group met with human rights advocates, government officials, and citizens, with the goal of turning their findings into research papers. Project members spoke about their experiences April 18 at the Law School.

Kate,

Above, Kate Kochendorfer, (unidentified), Jim Zeng, and Christine Ennis at China's Center for Legal Assistance to Pollution Victims.

How It All Came Together

Preparing for the Human Rights Study Project’s longest trip yet took significant planning.

“It’s the most rewarding experience that I’ve ever had, but it’s also the most work,” said HRSP president Stephanie Breslow, who said one of their goals was to raise the profile of their organization in hopes of  gaining more institutional support for the project, which would enable more students to participate. “More and more people are coming to the Law School to pursue human rights. This [kind of work] is really key to jump-starting a career in the field.”

The students traveled to both Beijing and Shanghai and the rural province of Wuhan, requiring multiple plane tickets. The group raised $20,000 to finance the trip, including funds from the U.Va. undergraduate student council, fundraisers, and the Law School.

Taking the trip over winter break instead of spring break also shortened the planning time frame, and deciding in advance who to interview was almost impossible. “There was not a lot of information on the Internet about how to find people [in China]. Part of the problem was the language barrier,” explained Breslow.

Before the trip, Project members met with experts on China, State Department officials, the Congressional Executive Committee on China, and even a well-known political dissident who has taken refuge in the United States. The experts they interviewed offered advice about who to meet with—and who not to meet with, in case a meeting would put the person in danger—as well as tips for avoiding trouble with the Chinese government. They also taught the students how to frame questions on topics without offending the people they would interview.

“When we went over there, we knew how to approach people in a way that was safe for us and for them,” Breslow said.

The students weren’t sure whether they would be able to make the contacts they needed without a sponsoring organization—Chinese officials frequently won’t talk to foreigners who aren’t sponsored.

Soon after their arrival they were able to meet with Chinese women’s rights advocate Guo Jianmei, founder of the first legal aid center in China. Jianmei acted as their sponsor and put them in contact with many of their sources. “She was a really indispensable resource,” Breslow said.

Breslow praised translator Jim Zeng’s language skills for securing so many meetings, and his legal training also proved beneficial. The Project helped finance Zeng’s trip; he gave them two weeks of his time, and was able to visit his grandparents in Shanghai for one week.

“Overall, it is more open,” said Zeng of Chinese society today. Zeng lived in China until he was 11, and was seven when the Tiananmen Square protests happened. “I feel like everyone knows how far they can push the issues now as compared to 12 years ago.”

Zeng was often the first contact in arranging meetings. “I had to make a lot of cold calls,” he said. He aimed to calm any suspicions and stressed the academic nature of the work. “Once we saw them face to face, it became a lot easier.”

Zeng has visited China periodically since his family left, including spending two weeks last summer at a Chinese firm concentrating on transactional law. But “to see it from the girls’ perspective was very refreshing.”

In meetings with U.S. officials, many warned that the students should expect Chinese officials to look at all the materials they write and collect.

“We actually tried to slip in under the radar,” Breslow said of their unofficial trip—and it worked. They were not seriously questioned by customs agents.

The students hope to publish the results of their findings and are checking out potential periodicals, including Chinese-run publications. The China Development Brief, for example, publishes both Chinese- and English-language versions, the latter of which the government does not monitor strictly.

“China’s been getting a lot of attention from the international community recently, with the Olympics coming up there in 2008,” said second-year law student and HRSP president Stephanie Breslow. “The international human rights community has been taking the opportunity to exert pressure on China to bring its policies and practices in line with international human rights standards.”

Some of the most controversial measures in Chinese criminal law involve the criminalization of political activity, explained HRSP member Christy Tuttle, a second-year law student. The Chinese criminal code was based on Soviet models when written in the 1960s, but was revamped in 1997. “In a lot of ways, on paper, their system looks a lot like ours today,” she said. In reality, laws regarding political crimes, or “crimes against national security” make up the bulk of the substantive criminal code. Another key difference is a re-education system through labor and administrative detention, designed to handle petty criminals and dissidents without charging them with a crime.

Unlike the United States, China lacks an independent judiciary and is beholden to the political branches, Tuttle noted. Furthermore, most of the sitting judiciary are political appointees, although recently passed mandates require lawyers and judges to pass a bar exam.

Most such reforms come about not through international pressure, but through government response to domestic unrest or loud dissent. But reforms for the most part are not touching the criminal system, because as China has modernized, crime has risen.

As a result, “Your average Chinese citizen is not that concerned with the plight of criminal defendants,” Tuttle said.

“The lack of implementation [of the criminal code] has led some scholars in China to think that these reforms are actually heading in the wrong direction and that China should not be using a Western-style, adversarial system at all,” she said. “Other people believe that the systems in place are good and that there need to be smaller changes in order to implement them more effectively.” Tuttle said the revisions to the code expected next May “will probably retain the basic structure that they established in 1997.”

Although many academics don’t believe nongovernmental organizations (NGOs) have a major presence in China’s state-led civil society, “I don’t think that that means that NGOs are ineffective,” said second-year law student Katherine Monahan. Called nonprofit organizations, or “NPOs,” the Chinese NGOs can be a “gap filler” in the provision of social services. But China’s 200,000 NGOs do not serve the same sort of authority-monitoring function we associate with traditional Western NGOs, and they have limitations, Monahan said. It’s difficult for them to be advocates of legal reform, for example, even if they have the right connections with government. There are also legal constraints.

“They operate in a regulatory environment designed to maximize government oversight,” Monahan said. NGOs are required to establish themselves with a “mother-in-law” state agency that controls their budget and oversees staffing.

NPOs also face financial obstacles. There is less charitable giving in China, and the country lacks the kind of tax breaks that encourage donations. NGOs collect an estimated $200 million from foreign sources each year, “but dependence on foreign funding can become a liability for a Chinese NGO.” Getting money from sources the Chinese government doesn’t like might attract unwanted attention.

“Chinese NGOs are denied the kind of rallying cries that traditionally serve…to orient and motivate advocacy groups in the West,” Monahan said. “It’s simply not possible to have the same kind of issue platform as Planned Parenthood or Amnesty International.”

Because of such constraints, one might conclude their work is futile, Monahan said, “But in many ways the challenges faced by Chinese NGOs are not really that different from those that we see other NGOs, including ones in democratic countries, struggling against.”

U.S. NGOs who wanted to operate in parts of the Middle East after 9/11 were required to register and have their work overseen by the Pentagon, for example. Classic NGOs whose budgets are heavily underwritten by U.S. agencies or the European Union are not insulated from the political agendas of those sources of funding. “If the challenge of maintaining independence is endemic to Western NGOs as well, I don’t think we can judge the efficacy of Chinese NGOs on their proximity to the state per se, or on their ability to provoke radical change in China,” Monahan concluded.

Government-sponsored legal aid in China was nonexistent until 1995, and the system the Chinese set up “is not quite successful as you would imagine,” considering the system has 2,000 centers, explained second-year law student Kate Kochendorfer. Cases are staffed through a mandate that requires all attorneys to take two pro bono cases per year, which are channeled through the legal aid centers. “The private lawyers are given some funding for working on these cases, but it’s very, very little. There’s very little incentive for these lawyers to do a good job on these cases,” she said. Furthermore, “The culture among [Chinese] lawyers is not one of public responsibility.” To practice law in China, attorneys have to be affiliated with a Chinese law firm, a major obstacle for lawyers who want to work on behalf of the public good.

Most legal aid cases are civil, focusing on labor disputes, accident cases, and family law. Legal aid centers are only involved in criminal trials for certain qualified defendants, such as the disabled, and the quality of their representation is considered poor.

A market in Beijing

A market in Beijing

“The NGO-sponsored system, on the other hand, is really successful and really powerful, and part of that is because they get their funding from foreign foundations,” Kochendorfer said, with groups frequently filing high-profile claims against the government, addressing such concerns as women’s rights, environmental pollution, and disadvantaged citizens. “They’ve learned how to bring well-targeted suits.”

They’re also media-saavy. An NGO recently lobbied to change policies expelling university women for being pregnant. Most schools are no longer enforcing the policy as strictly, based on the publicity the issue engendered.

NGO firms would never refer clients to the state-sponsored legal aid system, Kochendorfer learned. “One of the interpretations of why they don’t work well together is that the government thinks that legal aid is their issue….and the NGOs don’t want that government control.” She noted that many U.S. legal aid organizations have similarly stopped taking federal funds so they won’t have to limit services according to federal guidelines.

Third-year law student Christine Ennis studied environmental litigation, a hot topic for a country that has dammed all but two of its major rivers. One of the most controversial dam projects, the Three Gorges Dam, involved relocating three million people and destroying the beauty of one of China’s natural wonders, the Yangtze River basin. The dam was reportedly built in part by forced labor—including political prisoners and petty criminals—a fact Ennis was unable to confirm. In displays touting the wonders of the new dam, “there’s no mention of the detrimental effects of the construction.”

Although Chinese law provides for public hearings on such projects, none has been held to date. “Impact litigation, on the other hand, has skyrocketed,” Ennis said. But unlike other forms of legal aid, representing victims on environmental pollution “is more sensitive because you’re always going up against the government.”

A proposal to dam the Nu River, which would require relocating 50,000 people, was pending after the China Environmental Impact Assessment law came into effect. The new law required the state environmental protection agency to approve public works projects affecting the environment, and mandated public hearings. When the Nu River dam project was announced and it appeared the government might ignore the law, environmental NGOs led a public outcry. One of the first government crackdowns on such NGOs followed.

“Prior to that time, environmental NGOs had been granted almost unprecedented tolerance by the government,” Ennis said. When the environmental assessment was completed in 2005, the government would not make the report public, because the project was deemed a state secret.

Although lawsuits have been filed to stop construction and the project was officially suspended in 2004, Ennis showed an NGO’s photos that revealed drilling had already begun. “There’s already a lawsuit in the works to stop it, which is something that would have been unthinkable in the 1970s,” she said. “The case of the Nu River dam illustrates that China’s progress for democracy is likely to be slow. The Communist government of China is a master of granting just enough.” While some theorize this long-term perspective may be for the best, since slow regime change may produce a more stable society, “from the perspective of people and resources existing now, by the time China completes its progress towards democracy it might be too late.”

One of the side effects of China’s growing economy is the mass migration of rural Chinese to urban areas due to high demand for unskilled labor, the topic second-year law student Heather Axford tackled. But since 1958, China’s Hukou System has tied citizens to the place they’re born, operating as a state mechanism for social, economic, and political control.  Education, health, and some labor benefits are delivered through Hukou, so rural migrants are forming an underclass in cities, vulnerable to exploitation by employers.

“They just don’t know what rights they do have,” Axford said. “There’s a real gap in rights education in the rural community.”

Typical housing in the migrant neighborhood on the north side of Beijing

Typical housing in the migrant neighborhood on the north side of Beijing, above, and pool tables in the neighborhood, below.

pool tables in a migrant neighborhood

Not surprisingly, migrants' living conditions in their new homes are substandard—no plumbing, no heat, no sanitation. “This much I expected, but what I didn’t expect was this permanent, growing community,” Axford said, flashing photos of pool tables on dirt streets. One sign on the streets said: “for rent, no heat, Internet.” After getting involved in the migrant rights movement there, she realized the sign symbolized the motivation of the community: “Now they’re coming and they’re staying.” They’re doing everything they can to learn how to succeed in the new economy, and their families are with them.

“The Chinese government is basically in the position where they have to decide whether they’re going to provide the institutional support this community needs so that they don’t develop a permanent underclass in the cities,” she said. “So far they’ve done nothing. In the meantime, there’s been a growing migrant rights movement.”

Axford noted that the Chinese government was surprisingly tolerant of the movement. “I think it’s because it’s been seen as really an economic rights movement. This is a lot less threatening to the Communist Party than civil and political rights. But the truth of it is that they’re doing so much more than economic rights.

“I think it’s a real testament to the way that economic liberalization, when it’s coupled with advocacy to make sure that the economic benefits are equitably distributed…can really lead to increasing enjoyment of civil and political rights,” Axford said. “It was just inspiring to see the way this movement framed their arguments and their agenda in a way that was friendly to the Chinese culture and political context. I think it’s something the international community can look at as an example of ways that human right movements can be successful even in really oppressive political climates.”

While migrant workers suffer from health concerns because they lack coverage, those with HIV also have long suffered from discrimination in China, explained second-year law student Erin Stieber. When HIV first came to China in the mid-1980s, the government cast it as a Western problem. Those perceptions are changing as publicity campaigns—including one involving NBA basketball stars Yao Ming and Magic Johnson—have been mounted to combat the problem, said Stieber.

The most common ways HIV is transmitted in China are through intravenous drug use, commercial blood donation, and prostitution. Only a very small portion of the HIV-positive population is infected through low-risk behavior, although that number is growing.

As a result, the government has had trouble balancing the Ministry of Public Security, the principal police authority in China—whose mission in part is to crack down on illegal behaviors that lead to HIV transmission, such as prostitution—with the Ministry of Public Health.

“Having a zero-tolerance policy is forcing IV drug users and prostitutes underground and making it virtually impossible for NGOs and public health bureaus to reach them to teach them how to prevent spreading the disease further,” Stieber said.
 
Condom ads were banned in China until 2003, and reports still circulate of local officials arresting women who carry condoms in their purse, calling it evidence of prostitution.

Until a recent government crackdown on the procedure, approximately one-quarter of new HIV infections were believed to be due to unsafe practices in the illegal collection of blood for commercial sale. The commercial blood collection industry received a major boost in 1985, when the government banned almost all foreign blood products from entering China in hopes of preventing the virus’s spread in China. The industry often solicited rural farmers, who were particularly susceptible due to their extreme poverty.

Such transmissions have profoundly affected some regions. The Chinese government has reportedly quarantined portions of the Henan province because of the high incidence of HIV, estimated by some to exceed 1 million. NGOs are also reportedly unable to access parts of the area to provide care. China now offers free blood testing, among a variety of other important HIV and AIDS services to those in their Hukou area, but this doesn’t work for migrants who have journeyed to urban areas.

A 2004 study conducted by the U.N. Development Programme in the Sichuan Province revealed another obstacle: 88 percent of Chinese surveyed thought HIV patients should be isolated from all human contact. The government has started publicity campaigns to educate citizens on discrimination and enacted its first anti-discrimination law, but on the other hand continues to persecute outspoken AIDS activists.

One of the top public policy issues facing the Chinese has long been its exploding population, now at 1.3 billion, and its oft-reported rule that families have no more than one child, which has led to cases of forced abortions and forced sterilizations.

“Despite recent reforms, population control still remains a very controversial topic,” said Breslow, who received much of her information from a Chinese government official who would only talk on the condition of anonymity. “The Communist Party really sees population control as key to China’s economic development and its advancement in the global arena.”

Chinese belief in the idea of collective rights over those of the individual fed the idea that having an extra child is a violation of everyone’s human rights. “The prevailing view over there is that appropriate population control and human rights do not conflict, but of course this begs the question, what is appropriate?”

The government official told Breslow that having one child per family is no longer required, but encouraged. Problems of coercive enforcement arose in the past because the national government did not provide guidelines, and localities were rewarded for successfully limiting their populations. Typically, after a woman had her first child, an intrauterine device was inserted to prevent future pregnancies. In some localities, any subsequent pregancies would be penalized through fines or sterilization. “Such coercion has been officially outlawed [at the national level],” Breslow said, but noted that many with whom she spoke believe that forced abortions and sterilizations continue to occur in rural areas.

The government is now trying to encourage low birth rates through economic incentives, such as microloans to rural women who have only one child.  The government’s focus has shifted to providing services and information, as well as prevention—“with abortion as a last resort.” Some quotas have been relaxed; if both parents are from single-children families in Shanghai, they can have two children, for example.

A market in Beijing

In Wan Zhou, a small city on the Yangtze River, a woman made noodles for the students.

In some areas population control has worked too well, contributing to a high male-to-female ratio among youths—as much as 130 boys to 100 girls.  In some areas, the government is actually encouraging well-educated Chinese to have more children, because that population “no longer desire[s] more children”—they are often considered an impediment to education or a career. These localities grant waivers for multiple children if parents have master’s or doctoral degrees, or have studied abroad.

“Abortion is such a lucrative business in China,” Breslow added, also creating problems. One journalist told her of a proposed free family-planning clinic in Beijing that was met with hostility by the local state-owned hospital because it could take away its profits from abortion. “There’s been a rise in what they call women’s hospitals,” Breslow said, especially around universities. They specialize in cosmetic surgery and abortion.

“With these challenges still in place, it’s sort of a dilemma as to how change might really occur until the attitudes of people change,” she said.
• Reported by Mary Wood

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