Transnational Law Blog

Factory in China Accidentally Makes Free Tibet Flags

A factory in China has been manufacturing 'Free Tibet' flags (h/t Foreign Passport Blog). According to the BBC, the factory owner said the flags were ordered from outside China, and he did not know the flags were a symbol for a free Tibet. The flags are known as the Snow Lion Flag and they have been banned in China. Factory workers discovered the meaning of the flag by looking it up online.

Chinese police fear that some of the flags have already been shipped to Hong Kong and could appear there during the torch relay later this week. Hong Kong is looking like it's going to be another raucous event, possibly starring Mia Farrow of all people.

Thinking of China's Loyal Youth

An editorial by Matthew Forney, former Beijing bureau chief for Time, entitled, China's Loyal Youth, explores some of the reasons why most young Chinese support their government's recent suppression of the Tibetan uprising. Forney's assessment of the next generation of Chinese-- those 30 years of age and under-- is interesting because it gives a cursory look at the future policy makers, lawyers, and businesspeople of the fastest growing economy in the world.

Forney points out that China's youth probably doesn't remember the events of the Tiananmen Square Massacre. They probably don't think of China as a police state since they've reaped the benefits of policies that have brought China more peace and prosperity than at any time in the past thousand years. All of this creates a strong sense of nationalism amongst China's youth, and Forney adds that Westerns are unlikely to find allies amongst China's youth on issues like China's human rights record.

Here is an excerpt from Forney's editorial:

Educated young people are usually the best positioned in society to bridge cultures, so it’s important to examine the thinking of those in China. The most striking thing is that, almost without exception, they feel rightfully proud of their country’s accomplishments in the three decades since economic reforms began. And their pride and patriotism often find expression in an unquestioning support of their government, especially regarding Tibet.

The most obvious explanation for this is the education system, which can accurately be described as indoctrination. Textbooks dwell on China’s humiliations at the hands of foreign powers in the 19th century as if they took place yesterday, yet skim over the Cultural Revolution of the 1960s and ’70s as if it were ancient history. Students learn the neat calculation that Chairman Mao’s tyranny was “30 percent wrong,” then the subject is declared closed. The uprising in Tibet in the late 1950s, and the invasion that quashed it, are discussed just long enough to lay blame on the “Dalai clique,” a pejorative reference to the circle of advisers around Tibet’s spiritual leader, the Dalai Lama.

Then there’s life experience — or the lack of it — that might otherwise help young Chinese to gain a perspective outside the government’s viewpoint. Young urban Chinese study hard and that’s pretty much it. Volunteer work, sports, church groups, debate teams, musical skills and other extracurricular activities don’t factor into college admission, so few participate. And the government’s control of society means there aren’t many non-state-run groups to join anyway. Even the most basic American introduction to real life — the summer job — rarely exists for urban students in China.

Recent Chinese college graduates are an optimistic group. And why not? The economy has grown at a double-digit rate for as long as they can remember. Those who speak English are guaranteed good jobs. Their families own homes. They’ll soon own one themselves, and probably a car too. A cellphone, an iPod, holidays — no problem. Small wonder the Pew Research Center in Washington described the Chinese in 2005 as "world leaders in optimism."

China's smartest and brightest speak fluent English, and they have probably studied abroad. It is more likely than not that anyone working in China will encounter China's loyal youth. When working with them, it is probably best to keep in mind their strong nationalistic pride, and when doing business in China, I'd avoid topics of discussion that will offend the Chinese party's sense of national pride. I've gotten into some heated arguments with people I've met outside of the office regarding China's "internal affairs" and it has taught me to generally keep my opinions to myself.

However, there are ways to delicately challenge anyone's patriotism. Check out this post from the This is China! Blog entitled, The De-Flowering of a Chinese Patriot (h/t China Law Blog).

Seeing The Tibet Situation Clearly: Old Tibet and Democracy for a Future Tibet

There is always two sides to every story and the same is true about the unrest in Tibet. The state operated Xinhua News issued an editorial today entitled, Don't See Tibet Through Tainted Glasses, which argues that Tibet is better now than it was before it came under the control of China. The basic argument is that people who view the Tibet situation through rose-colored glasses intentionally distort facts and deny that Tibet is experiencing its best era of development and stability and Tibetans are enjoying the broadest human rights ever. China Daily also ran an article today entitled, CNN: What's Wrong With You, detailing how the western media has been distorting the facts about the number of people injured during the rioting, the motives of the Tibetan rioters, China's response, and the history of Tibet.

According to the Tainted Glasses editorial, before China took control of the region the Tibetan people were "politically oppressed, economically exploited and frequently persecuted. A saying circulated among serfs: 'All a serf can carry away is his own shadow, and all he can leave behind is his footprints.' It is perhaps safe to say that Tibet's serf system represents the worst systematic abuse of human rights in human history."

Serfs? I had never heard of serfs in Tibet before. Articles like the one on China Confidential entitled, No Shangri-La: Life in Old Tibet, accurately summed up my western idea of old Tibet as a paradise. My musings about old Tibet pictured an idyllic religious retreat in the mountains with pleasant and content people living in harmony with each other and the rest of the world. However, it appears I was wrong. The Tibetan people lived in a feudal system before China took complete control of the region in 1959, and descriptions of life in Tibet before the Chinese occupation portray it as a country that consisted of slavery, oppression, and unimaginable human rights violations.

An article by Michael Parenti entitled, Friendly Feudalism: The Tibet Myth (2007), presents a synopsis of Tibet's feudalism, theocratic despotism, and the Chinese occupation. He gave the following summary of life in feudal Tibet:

Religions have had a close relationship not only with violence but with economic exploitation. Indeed, it is often the economic exploitation that necessitates the violence. Such was the case with the Tibetan theocracy. Until 1959, when the Dalai Lama last presided over Tibet, most of the arable land was still organized into manorial estates worked by serfs. These estates were owned by two social groups: the rich secular landlords and the rich theocratic lamas. Even a writer sympathetic to the old order allows that “a great deal of real estate belonged to the monasteries, and most of them amassed great riches.” Much of the wealth was accumulated “through active participation in trade, commerce, and money lending.”

Drepung monastery was one of the biggest landowners in the world, with its 185 manors, 25,000 serfs, 300 great pastures, and 16,000 herdsmen. The wealth of the monasteries rested in the hands of small numbers of high-ranking lamas. Most ordinary monks lived modestly and had no direct access to great wealth. The Dalai Lama himself “lived richly in the 1000-room, 14-story Potala Palace.”

Secular leaders also did well. A notable example was the commander-in-chief of the Tibetan army, a member of the Dalai Lama’s lay Cabinet, who owned 4,000 square kilometers of land and 3,500 serfs. Old Tibet has been misrepresented by some Western admirers as “a nation that required no police force because its people voluntarily observed the laws of karma.” In fact. it had a professional army, albeit a small one, that served mainly as a gendarmerie for the landlords to keep order, protect their property, and hunt down runaway serfs.

Young Tibetan boys were regularly taken from their peasant families and brought into the monasteries to be trained as monks. Once there, they were bonded for life. Tashì-Tsering, a monk, reports that it was common for peasant children to be sexually mistreated in the monasteries. He himself was a victim of repeated rape, beginning at age nine. The monastic estates also conscripted children for lifelong servitude as domestics, dance performers, and soldiers.

Comparing the Current Account Balances of the U.S. and China

The Crashing Down Now blog has a post entitled, The U.S. Account Balance?, which discussed the CIA World Factbook rank order of each country's current account balance. I've never even heard of a country's current account balance, and so I was surprised to learn that the U.S. has the largest negative balance of any other country in the world! The current U.S. balance is $ -747,100,000,000! And China has the greatest surplus! China's current balance is $363,300,000,000!

This might make sense to the folks out there who took more than one course in economics, but it baffled me. I did a quick internet search and read a couple of articles. All I really learned is that there is more than one way to calculate a country's account balance and each calculation reveals something different about the country. I particularly liked an article published by the IMF entitled, Do Current Account Deficits Matter? This article elucidated three ways of measuring a country's current account balance. One formulation of the current account balance can be expressed as the difference between national (both public and private) savings and investment. For instance, advanced economies like the U.S. invest in developing countries like China, and, as a consequence, the U.S. has a deficit and China has a surplus.

The IMF article's authors went on to ask whether a country should run a current account deficit (borrow more), and it said that it "depends on the extent of its foreign liabilities (its external debt) and on whether the borrowing will be financing investment that has a higher marginal product than the interest rate (or rate of return) the country has to pay on its foreign liabilities." It warned that a country should avoid running at a deficit for too long or else a country might experience an abrupt reversal of financing. Some causes of a reversal could be "overvalued real exchange rate, inadequate foreign exchange reserves, excessively fast domestic credit growth, unfavorable terms of trade shocks, low growth in partner countries, and higher interest rates in industrial countries influence the occurrence of reversals." Aren't some of these causes occurring right now? The authors of the article also inquired whether deficits are bad and their answer was simply, "It depends." And that is why I only took one economics class.

I'm not sure if I really learned anything from my cursory investigation, but I have to agree with the author of Crashing Down Now, who said current account balances are just one piece of the puzzle and, "ultimately, it's pretty hilarious."

Before you go to the Olympic Games in China

Amid the violent protests in Tibet and the calls for a boycott of the Beijing Olympics, the US State Department issued a "fact sheet" regarding the upcoming 2008 Olympic games in Beijing. The fact sheet says that China is generally safe but the "recent violence in Tibet" and a recently "failed attempt to create an explosion on a passenger plane in flight from western China’s Xinjiang Province to Beijing are good examples of how potentially dangerous events can occur in the run-up to the Olympics." The fact sheet says early preparation is key for anyone planning on being in China for events in August or September, and it outlines several topics of concern.

The part of the fact sheet concerning a tourist's expectations of privacy has generated a lot of press and chatter in the blogosphere. According to the State Department:

All visitors should be aware that they have no reasonable expectation of privacy in public or private locations.  All hotel rooms and offices are considered to be subject to on-site or remote technical monitoring at all times.  Hotel rooms, residences and offices may be accessed at any time without the occupant’s consent or knowledge.

As one blogger noted at the Venture Chronicles, "It’s amazing that this would be news to people… China is an authoritarian communist state, it’s not like going to Disneyland." I concur with this general sentiment. However, there are few of us that are important enough for the Chinese government to spy on. In general, I doubt the Chinese government has the motivation or even the resources to rifle through the hotel rooms of every tourist.

In response to this section of the fact sheet, the Chinese Foreign Ministry said privacy in China is guaranteed by law (see the AP article). "Foreign visitors do not need to be concerned," spokesman Qin Gang said in a statement posted late Sunday on the ministry Web site. "In public places in China, such as hotels and offices, there are no special arrangements beyond security measures widely employed in accordance with international norms."

Privacy should be low on a tourist's list of concerns when traveling to China, and the fact sheet discusses other areas of greater concern. For instance, the State Department also said:

Many hotels and apartment buildings may be of substandard construction, lack emergency exits, fire suppression systems, carbon monoxide monitors and standard security equipment (locks, alarms, and personnel).  Americans traveling abroad should be reminded to review fire evacuation procedures for hotels, apartments or offices.

Substandard construction is a huge concern. The author of the Go East blog told the following anecdote regarding this issue:

Speaking of “substandard construction”, the last time I was in Beijing, I stayed in a relatively new high-rise hotel.  The company that I was visiting had arranged for me to have a very nice suite.  The room had great views, plenty of space and was actually pretty comfortable.  Until it started to rain.  During the storms, and for several hours after they ended, water literally ran down the walls of the room in streams.  We mentioned the issue to the hotel office, and they just acknowledged that it was a known problem.

I've stayed in wonderful places in China and some not so wonderful places. Whether you're staying in a well-known hotel franchise or a local Chinese hotel, check out the emergency exits and stairwells. The Chinese generally provide excellent service-- especially if you can get around the language barrier-- but what you've come to expect in an American hotel may not match what you get in a Chinese hotel. If you can accept that and keep track of where the emergency exits are located, then you'll have a pretty decent stay at any hotel, assuming there are no major earthquakes...

The fact sheet also included a brief assessment of crime in China's cities:

Major metropolitan areas in China are relatively safe, especially in comparison with similar sized cities in other developing countries.  A sizeable law enforcement and security presence serves as an effective deterrent against most types of crime, including those of a violent nature.  Nevertheless, the Mission assesses that while the overall crime threat is low, the number of criminal incidents, including those directed against Americans, continues to rise.

The Associated Press issued an article entitled, Foreigners Grapple with Crime in China, which gave the following account of crime in China:

Shanghai and Beijing are still safer than most foreign cities of their size. Punishments for crimes against foreigners are heavier, police-linked neighborhood watch groups are highly vigilant, and Chinese can't own guns.

"China is of course one of the safest places in the world," Foreign Minister Yang Jiechi said at a recent news briefing when asked about foreigners' safety. "If you don't believe me, ask your ambassador, ask the U.S. ambassador, ask any ambassador from Western countries, do they feel it is safer in China or safer elsewhere?"

But the booming economy draws millions to China to work, study and travel, and criminals increasingly are defying a culture that has long considered foreigners inviolate.

The U.S. government now warns Americans against muggings, beatings and even carjackings, especially in the nightlife and shopping districts of large cities.

In the past year, Chinese media have reported incidents such as the robbery of three foreigners in Nanjing, the robbery at knifepoint of a foreigner in poor Guizhou Province and the kidnapping of a foreigner, who was released the next day, for a ransom of more than $40,000 in the rich southern city of Shenzhen. All the reports refer to "wai guo ren," or foreigners, without giving nationalities.

Still, the Ministry of Public Security reports that last year it counted 289,000 robberies and 171,000 bag-snatchings overall — a tiny number for a country of 1.3 billion people. It reported only that murder and kidnapping were down 10 percent and 1.5 percent respectively from the year before, without giving the number of cases. Nor did it detail statistics on crimes against foreigners.

I've heard a number of horror stories about traveling in China but I've always felt very safe there. I have been told by Chinese and Taiwanese that as a white American I am perceived as rich by most Chinese, which is undoubtedly true. However, as a consequence of being a white foreigner, they say I am at a greater risk of being kidnapped and held for ransom. I have yet to be kidnapped or even meet an expat in China who has been kidnapped or knows of anyone who has been kidnapped. It might happen but it doesn't seem very prevalent.

I've also been told by Chinese and Taiwanese that if I'm in the company of a woman, to never let her get into a taxi first or let her exit the taxi last. The fear is that if she in the cab alone at any point in time, then the cab driver will speed off with her and sell her or do whatever people do when they kidnap a woman in China. Again, this has yet to happen to me and I have yet to meet an expat who has experienced this horrible crime. Plus, I've met a number of female expats in China who travel through China alone and ride in cabs alone on a very frequent basis, and they have yet to be kidnapped. These are worst-case scenarios that people should keep in mind, but I would not let them spoil your fun.

Speaking of which, when you're having fun, please keep in mind this very important fact: If you break the law in China, you're on your own. The State Department makes this very clear:

Americans traveling or living in China and/or Hong Kong SAR are subject to those legal systems and can be arrested for violating local law.  The Department of State or the U.S. Embassy and Consulates General cannot have an American released from prison.

The China Law Blog summarizes this issue with excellent clarity in a post entitled, Beijing Olympics-- You Want Jail Time With That? I'm just reposting an excerpt, I highly recommend reading the original post in its entirety. Dan Harris of CLB said the following:

Though I am sure most experienced travelers understand that US (or German or French or whatever) law typically ends at the border when it comes to criminal violations, you would be surprised at how many travelers either do not know this or think that their embassy or consulate will be there to bail them out no matter what. Now before you laugh, please realize many US companies believe their US trademark or patent registrations extend to China, so it is certainly not that large a legal leap for people to believe US criminal law extends to them wherever they may go.

My firm has assisted on a number of criminal cases inside China for American (and European) defendants and, nearly without exception, we are told (usually by both the defendant and his family) that the US Embassy is not doing enough to get the defendant freed from the Chinese jail. When we explain that the US government will not usually employ its political capital on this or that drug or fraud case, our clients seem downright surprised.

So to add to what AAC has already said, let me make it perfectly clear. If you get arrested in China, the role of the US government (be it the consulate the embassy, or whatever), will almost certainly be limited to helping you find a lawyer, helping you contact your family for assistance, and maybe helping you with the logistics of having your family or friends get food or magazines into you at the jail.

Harris refrains from giving advice on this issue, but I won't: Behave people! Ignorance of the law is not an excuse for breaking the law. China is a very different culture-- it's also unlike the romanticized notion of China that I encounter in the States-- many of the customs and attitudes of the Chinese can be offensive to people from the west. Please keep in mind that you are a guest in China and act accordingly.

You're also a representative of your home country. If you're a jerk, then people will naturally think anyone from your country is a jerk. It's hard enough bridging the cultural divide without having to make amends for the thousands of US citizens that descended on Beijing like a plague of drunk, audacious pigs. For the love of all that has been accomplished since China opened its doors to the west nearly forty years ago, please buy a book and learn a little about China's real culture-- not what you've seen on TV or heard about from your hippie herbalist-- but the real China, and prepare yourself for some culture shock. It just might keep you out of jail and it will make it easier on the expats in China who will have to deal with the aftermath.

That being said, there is one more issue touched upon by the State Department in its fact sheet that needs to be noted. Namely, what do you do if you need medical attention while you're in China? The fact sheet says the following:

The Chinese health-care system and facilities in China differ from those in the United States.  Chinese hospitals tend to be more crowded, personnel may have limited English-speaking skills, and medication and treatment standards are different than what Americans might expect.

Basically, if you don't speak Mandarin or have someone with you that speaks Mandarin, then I would avoid any Chinese health centers, clinics, or hospitals. Frankly, I avoid them altogether. The major cities like Beijing, Shanghai, and Hong Kong have western medical facilities that are owned and operated by expats. If you have a medical emergency that can't wait until you return home, then I would recommend finding one of these medical facilities. The doctors all speak English and were trained in either the US or Europe. Most guidebooks have a list of these facilities and how to contact them, and I would check for this information before purchasing any particular guidebook. I also recommend bringing some over-the-counter medication for diarrhea and food poisoning. Getting sick is pretty much unavoidable, which is why I recommend throwing caution to the wind and eating anything and everything, including the bar-b-qued scorpions on a stick.

Violence in Tibet Presents China With the Tiananmen Square Dilemma

A few days ago I argued in a previous post that the protests and violence in Tibet could be the first of many Tiananmen Square type incidents that occur throughout China during the months leading up to the Olympics.  An article published by the Times Online entitled, Fears of Another Tiananmen as Tibet Explodes in Hatred, corroborated my previous sentiments.  The article is written by British journalist James Miles, and according to the China Digital Times, he is the only journalist known to be in Tibet during the recent protests and riots.   Here is the portion of his report pertaining to my previous concerns:

By yesterday afternoon, China still had not regained control of the centre of Lhasa and as world attention focused on its reaction to the uprising, its leaders, gathered for a self-congratulatory meeting in Beijing, faced the “Tiananmen dilemma” – whether to use overwhelming force.

China is conscious that with the 2008 Olympics just five months away it could face a new public relations disaster on a par with the Tiananmen Square massacre, in which hundreds died when the party sent in tanks to crush pro-democracy protests in 1989.

Miles also reported that protested had spread throughout the province:

Reports from travellers told of a rippling wave of violence across the vast Tibetan heartland. It extended far into the western provinces of China and there was as yet no reckoning of the cost in lives or property of ethnic conflict in remote towns and monasteries.

Tibetan exiles reported that the authorities had lost control of the town of Xiahe, the site of the influential Labrang monastery in Gansu province in the historic area of “greater Tibet”.

As the protests spread throughout the region, the Communist Party is pressured to put an end to it.  Miles gave the following account:

True or not, reports of such demoralising scenes will intensify political pressure within the Communist party to put an end to them.

President Hu Jintao’s reputation for strength and resolve among his colleagues derives from his decision as party secretary of Tibet to crush demonstrations in 1988 and 1989 by martial law and severe military action.

Human rights groups say Hu’s policies led to pitiless retribution at the cost of many lives and a slew of well-documented abuses.

The devastation and chaos in Lhasa poses a huge problem for the Chinese government. For a regime that prizes stability above all else, it is the ultimate challenge to legitimacy.

In the years preceding the Olympics, the Chinese government has been doing everything it can to create social stability and discourage dissidence.  An article by China Brief highlights this fact and even points out the government's concern about stability in Tibet (h/t CDT): 

Even more disquieting is the fact that issues about preserving socio-political stability—and even national safety—in the run-up to the all-important Summer Olympics have dominated NPC discussions. This also seems to have provided the leadership with an ideal pretext to switch the emphasis from liberalization to the quashing of dissident and assorted challenges to the regime. From day one of the parliamentary sessions, leaders including President Hu have underscored the imperative of preventing mishaps in Xinjiang and Tibet, seen by Beijing as hotbeds of violence-prone secessionist movements. While talking with legislators from Tibet last Thursday, President Hu noted that “stability in Tibet is intertwined with national stability; and security in Tibet is closely related to national security.” Hu repeated similar warnings regarding the restive Xinjiang Autonomous Region (XAR), adding that local cadres must do more to “enhance social harmony” and “strengthen unity among ethnic groups” (Xinhua, March 6; People’s Daily, March 9).

The new property law, new labor contract law, and even the new bankruptcy law are evidence of the central government's attempts to stifle dissidence and bring about stability.  However, it may be too little, too late.  As pointed out by Miles in his article, the violent protests in Tibet have shattered "the carefully fostered illusion that Tibetans are the happy recipients of Chinese money and progress."  Miles stated that it has also destroyed the reputation of the Chinese security forces "by exposing their inability to predict an uprising and their failure to protect the Chinese inhabitants of Lhasa." 

Now that the impoverished and embittered peasantry of China have seen the example set by the Tibetan people and the inadequacies of China's security forces to handle this type of situation, what reason do they have to settle their grievances in a court of law or with any civility?

When the Tiananmen Square Massacre in 1989 occurred, foreign investors fled China like rats leaving a sinking ship.  That same kind of consequence could not follow from any of the Tiananmen Square type incidents that occur between now and the Olympic games.  The economies of China and the rest of the world are too intertwined now.  If China's economy collapsed, the country that would suffer the most would be the USA.  What sort of sanctions could the world impose on China now for any sort of Tiananmen type of human rights violations?  Skipping the Olympics seem to be the worst sanction any country could levee upon China, and would that really be that bad?

China Digital Times has a slide show of PLA armored vehicles and soldiers in the streets of Lhasa (see here).  The images are strikingly similar to those taken during the Tiananmen Square massacre.

Violent Protests in Tibet Invite Questions About The Chinese Government's Control Over The Country

The violence in Tibet is an indication of the chaos that could result from the Olympics in China. 

An article by the Christian Science Monitor posits an explanation as to why this years annual protests in Tibet are more volatile than they have been in decades.  Anne Holmes, the director of the Free Tibet Campaign in London, said in the article that the Tibetans "are aware that in the run-up to the Beijing Olympics, the media's and the world's eyes are on Tibet. They felt it was worth the risk of doing a lot more this year than they would normally dream of doing. Tibetans see this as a make or break year. This is the year when world attention is focused on China's human rights record."

Holmes is not entirely correct.  It's not that the world's attention is suddenly on China now that the Olympics are coming to Beijing.  The world's attention has been on China for a long time.  The Olympics have introduced the threat of countries boycotting the Olympics in Beijing.  That is, the Chinese government is afraid of losing face, and this gives people in China like the Tibetans great leverage when protesting.  For instance, an incident even remotely similar to the massacre in Tiananmen Square in 1989 would make the Beijing Olympics a huge failure.  It would be very embarrassing for the Chinese government if the USA or an EU nation refused to attend the Olympics.  One has to query whether China would acquiesce to the demands of a country that refused to attend unless China kowtowed to the demands of the Tibetans?

An article by the Associated Pressed had this to say:

The violence, which came on the fifth day of sporadic and largely peaceful protests, poses difficulties for a communist leadership that has looked to the Aug. 8-24 Olympics as a way to recast China as a friendly, modern power. Too rough a crackdown could put that at risk while balking could embolden protesters, costing Beijing authority in often restive Tibet.

"China is afraid of letting this protest mount. On the other hand, the world's eyes are upon China in advance of the Olympics. If they're too heavy-handed, it could cause them a lot of problems," said Jamie Metzl of the New York-based Asia Society. "It's an open question as to how much China thinks it can afford a major crisis in advance of the Summer Olympics."

There is another concern that has yet to be articulated (or I have yet to see it), and it's a very real concern of the Chinese government.  That is, what if the Chinese citizenry realize that the communist party cannot exert its military power outside of Beijing?  The massacre that occurred at Tiananmen Square in 1989 could be unique to Beijing.  Granted, the Chinese government expected and prepared for the protests in Lhasa but can they really provide sufficient support in Lhasa to suppress an outright revolt?  What about other revolts? 

It's no big secret that China has been doing its best to prevent the people in rural China from revolting as the government continues to force farmers off of their land in the name of economic progress and development.  Then there are the migrant construction workers who live in shanty-towns and barely make enough to live.  The same people that build a country can dismantle a country, and the migrant construction workers could tear down China's infrastructure as easily-- if not easier-- than they did building it.  There are also the coal miners who tirelessly work in the mines and risk being buried alive on a daily basis.  The same miners that dug those mines could bury them and cut-off the supply of coal or use their knowledge of demolition to blow up railroads, buildings, telecommunications, or even dams. 

Does the central government have the military might to suppress this kind of uprising?  Would it dare just prior to the summer Olympics?  Does this give the Chinese government a greater incentive to shut down the protests in Lhasa before it officially sets off a domino effect that could ripple through the entire country?  And what if Taiwan joins in the chorus and decides it's time to declare independence?  Would the Chinese government risk a war with Taiwan and possibly the USA just prior to the Olympics?

For more about the protests and violence occurring in Tibet, read this article by Sophie Beach at the always excellent China Digital Times.

A Reason to Have Faith in China's Legal System: The Labor Contract Law

NPR's All Things Considered did a piece recently on the new labor contract law in China.  The show barely skimmed the surface of the new law, summarizing it as "a new law requiring businesses to give workers written contracts and pay compensation if they're fired."  The NPR segment focused mostly on a couple of labor activists who had been attacked for educating workers about their new rights.  For instance, it opens with this sad story:

Companies say the law will raise costs, and some may be fighting back — literally: Labor activist Huang Qingnan, who was promoting the law, was stabbed in broad daylight. He says hired thugs were behind the attack.

For the past few years, Huang has been teaching workers in the southern boomtown of Shenzhen about their rights. He had been distributing brochures on the new labor law to workers late last year. One afternoon, two men came at him with knives on a crowded street.

"After the first cut, I started fighting back," says Huang, who added that he was cut on his arms and chest.

Huang lost so much blood after about a minute that he fell to the ground. Eventually, two friends who were with him threw bricks at the attackers and chased them away.

Today, Huang spends much of his time limping around his apartment in fluffy pink-and-blue slippers. A hunk of flesh is missing from his left calf, the result of a stab wound and a botched surgery.

So who was behind the attack?

"The factory owners," Huang says. They "don't want to lose their profits."

But instead of painting a grim picture of workers' rights here, Huang is surprisingly upbeat.

"I'm optimistic about the future," he says. "Because our workers, their consciousness is increasing."

Articles like this NPR story take travesties that are occurring in China and portray them as the norm, they make comments like "China is a communist country in name only," which have no real bearing on anything whatsoever, and they never delve beneath the surface.  These horrible sorts of acts are happening in China and all over the world, but there is also another story about China and that story is about a country that is building a rule of law system and a citizenry that is learning the law and learning to trust the courts, which are enforcing the laws.

Our previous posts-- A Reason to Have Faith in China's Legal System and Another Reason to Have Faith in China's Maturing Legal System-- shared some of our thoughts about the growing role the law plays in the lives of migrant workers in China and how that role is helping to change the Chinese perception of the law.  A story from Reuters has come out to further bolster those arguments entitled, China Migrant Laborers Learn The Law to Win Rights, and instead of telling horror stories about labor rights activists who have been beaten up or stabbed, this article focuses on the successes migrant workers are achieving by utilizing the law.  Here is a snippet of that article:

Qi Yunhui didn't even graduate from middle school, but on a recent afternoon he addressed the Shenzhen Intermediate People's Court with the confidence of a seasoned litigator.

When he came to Shenzhen in 2002, the fast talking native of China's central province of Hubei worked in a leather shoe factory. Now, he is part of a new and growing breed of "citizens' agents", former workers offering cheap legal aid to fellow migrants involved in labor disputes.

In the past five years or so, these self-taught "barefoot" labor lawyers have proliferated, filling an important niche in a country where migrant workers are increasingly caught in a dilemma -- they are encouraged by the leadership to know their rights, but lack effective, efficient channels to protect them.

"We want to encourage people to go to court," Qi, 30, said over dinner with five toy factory workers he was representing in a case over unpaid overtime.

The more people learn the law and see their rights enforced by the courts, the more people will rely on the courts in future transactions.  This means greater enforcement of contracts and IP rights for foreign investors in China.  We're witnessing the transition in China from a seemingly lawless and guanxi based system to a rule of law system.  Within the next 20 years it won't be who you know in China that matters but who wrote your contract or who is representing you in court.  The time to get in on this is now.

An article by Steve Dickinson at China International Business entitled, Power To The People, (h/t China Law Blog) has a more detailed explanation of the new labor contract law, which I've taken the liberty of partially republishing below:

The LCL makes the following important changes to prior employment practice in China: All labor contracts must be in writing. The LCL imposes significant penalties on the employer for failure to enter into a written employment contract.

All employers must maintain a written employee handbook setting out the basic rules and regulations of employment. This requirement applies to all companies regardless of size and number of employees. The failure to maintain an employee handbook means that an employer will effectively be unable to discharge employees for cause, since “cause” must be determined with reference to the employee handbook.

Severe limitations are imposed on the use of term contracts. Under Chinese law, an employee can be discharged either at the expiration of a term contract or for cause. To avoid the need to terminate for cause, employers in China have typically engaged employees under a series of short-term contracts. This practice is no longer possible under the LCL. The employer is permitted to enter into a maximum of two term-contracts with the employee.

If the employee continues on after the expiration of a second term-contract, the subsequent employment contract is deemed to be an “open-term contract.” Under an open-term contract, the employee is employed until he chooses to terminate the contract or reaches retirement age. The employer can only terminate the employment contract by discharge of the employee for breach. This means that once the relationship has shifted to an open-term contact, the result for competent employees is effectively “employment for life.”

The LCL imposes severe restrictions on the use of probationary periods in the employment relationship. Probationary periods are permitted, but the length is limited based on the term of the employment contract, with an absolute maximum set at six months. Furthermore, an employee can only be subject to a single probationary period by a single employer. Wages during the probationary period must also be no less than 80% of the contract wage.

Non-competition agreements restricted. Many foreign employers require most or all of their Chinese employees to enter into non-competition agreements that restrict their right to work for a competitor after termination of employment. The LCL imposes significant restrictions on the use of these agreements. The most important restriction is that non-compete agreements cannot be imposed on all employees. Only senior management and other employees with access to critical trade secrets can be required to enter into a non-competition agreement. The agreement must be limited in duration to two years, must be limited in geographic scope to a reasonable area and the employer must pay compensation to the employee during the period that the non-competition restriction is in effect.

The LCL imposes significant penalties on the employer for failure to comply with its provisions. These include administrative fines, awards of double wages and liability for actual damages. And virtually every violation of the law gives the employee the right to sue the employer for penalties and damages in the local employment arbitration bureau or in the local courts. The LCL has been actively publicized and employees are well informed about their rights under the new law. Growing numbers of Chinese attorneys are taking a strong interest in representing employees under the LCL in filing group claims against employers. It is this sort of employee “self help,” rather than administrative sanction, that is likely to be the greatest threat to employers under the new law.

Learn it, use it, and become part of the future in China.

It's Just More Evidence of The New Space Race

The US Navy successfully hit a malfunctioning spy satellite with an SM-3 missile on February 20.  The US government said that it was necessary to destroy the satellite in orbit to prevent a highly toxic chemical, hydrazine, contained within the satellite, from falling back to Earth.  An article from MSNBC, dispelling 5 myths about the downing of the satellite, said the following about the toxic chemicals:

Space officials were so concerned about the satellite's full tank of hydrazine fuel because they believed it had frozen solid, due to the low temperatures aboard the spacecraft. They feared that the titanium-shielded "toxic iceberg" would survive intact all the way to the ground and disperse around the crash site, not in the upper atmosphere. Safety officials had never been faced with this type of falling material before.

According to international law, the US would be liable for any damage that resulted from the satellite falling back to Earth.  For all things space law related, I have been turning to the Res Communis blog.  It consistently has the scoop on what's happening in aerospace and outer space in both politics and business.  They have an excellent post listing the space law that is relevant to the satellite incident.   One of the conventions found within this particular litany of space law concerns compensation and liability:

Convention on International Liability for Damage Caused by Space Objects (Liability Convention), Art. VIII (1): “A State which suffers damage, or whose natural or juridical persons suffer damage, may present to a launching State a claim for compensation for such damage.”

Today the Res Communis blog posted a resolution issued by the US House of Representatives congratulating the US Navy.  It reads in part:

1. The House of Representatives expresses sincere congratulations to the Department of Defense, Secretary of Defense Robert M. Gates, the Department of the Navy, and the crews of the USS Lake Erie, the USS Decatur, and the USS Russell, for successfully intercepting the disabled National Reconnaissance Office satellite, NROL-21, on February 20, 2008; and
2. It is the sense of the House of Representatives that this accomplishment safeguarded United States citizens and inhabitants around the world from potential harm.

Res Communis also has an excellent post listing some of the responses given by the Chinese government about the US Navy's downing of the malfunctioning satellite.  I also found a NY Times article that explicated China's response (h/t CDT), and here is some of that article:

Security analysts have suggested that Beijing could use the planned U.S. interception to justify the Chinese military's unannounced destruction of a defunct weather satellite in January 2007.

That interception drew criticism from senior U.S. military officials, who complained that it had left a cloud of debris that was dangerous to other space traffic. Chinese experts in turn have questioned the Pentagon's explanation that it wanted to down the spy satellite to avoid contamination from hazardous fuel on board.

"In my opinion, this decision is imprudent and ill advised," said Li Bin, an arms control specialist at Tsinghua University in Beijing. "If this satellite is shot down, the toxic fuel will still be there. Therefore, the pollution still exists."

But, Li said, destroying the satellite would be an effective way to prevent sensitive technology from falling into the wrong hands.

A Chinese Foreign Ministry spokesman, Liu Jianchao, said the Chinese government was highly concerned about the U.S. plan, Xinhua, the state-run news agency, reported late Sunday, noting that the target satellite was loaded with toxic fuel.

Liu also urged Washington to fulfill its international obligations and avoid threatening security in space and the security of other countries, Xinhua quoted him as saying, without elaborating.

"Relevant departments of China are closely watching the situation and working out preventative measures," Liu said.

Just days after China and Russia renewed their call for a global ban on space weapons at a disarmament conference, the United States announced late last week that it was preparing to fire a missile at the crippled reconnaissance satellite during one of its passes over the Pacific by the middle of next week.

The United States opposes treaties or other measures to restrict space weapons.

It doesn't matter whether the US downed the satellite to show China that it also has the right stuff or to prevent any liability for damages that might come as a result of the satellite dropping toxic chemicals on people as it returned to the Earth.  What is obvious is that China and the US are engaged in a new space race (see the CDT article entitled, The New Space Race: China vs. US), which means plenty of business in the future for space law attorneys.

Another Reason to Have Faith in China's Maturing Legal System

An article entitled, How One Man in China Strengthens the Rule of Law, (h/t CDT) tells how one lawyer bringing small lawsuits can possibly bring about massive legal reform.  As we argued in a previous post entitled, A Reason to Have Faith in China's Legal System, small lawsuits vindicating the rights of the average Chinese citizen will engender within the citizenry a general interest and trust in the legal system, which will perpetuate a rule of law system.  Our previous article concerned a small legal aid station in Xi'an that represented migrant construction workers, and this current article concerns public interest lawsuits, which reminds me of the work that made Ralph Nader famous. 

In the present article, the lawyer, Hao Jinsong, argues that the law will grow weaker if people don't use legal recourse to defend themselves because they think it's useless but, he says, "When ... people use the law as naturally as they use chopsticks, China will be close to democracy."

According to the article, Hao is best known for cases he brought against the Ministry of Railroads for failing to provide tax receipts for goods bought on trains as well as its ticket pricing policy.

He won the receipt case, on his third attempt, earning the government $2.7 million a year in tax revenue from the railroads. And though he lost two court battles to stop the railroad management raising ticket prices during the Spring Festival, when 150 million Chinese go home for the holidays, his campaign attracted wide public support. Management bowed to the pressure, and has left holiday ticket prices untouched for the past two years.

Instead of directly addressing human rights issues or issues of free speech, which can get a person tossed in jail or worse, Hao says that his way is a way ordinary people can imitate by going to court to defend their rights as consumers. "When they realize they have rights," Hao argues, "they will call for other rights, like freedom of speech or publication, later."

Hao is currently engaged in a suit against the National Forestry Agency, which he accuses of refusing to investigate a false claim by the Shaanxi provincial authorities that a South China tiger, thought to be extinct, had been photographed. The incident drew massive interest on the Chinese Internet, and widespread criticism of the authorities for trying to create a lucrative tourist attraction out of a faked photograph.

The lawsuit, Hao says, is designed "to show people that the government does not have the right to say whatever it likes. The government cannot lie, and ordinary people have the right to unmask the government's lies."

Such cases may not shake the world, but "they have a cumulative effect," says Dr. Lu. "When lots of people bring them, they contribute to positive change."

"Today I am just a butterfly flapping my wings in the Beijing sky," says Hao. "But in 20 years there will be a storm in the whole country."