Tuesday, June 14, 2016

Speaking in Washington, D.C. on June 28th on the question "Is China's Door Closing?"

I'll be speaking at this event in D.C. on June 28. My answer to the question in the title will of course be no. Hope to see some of you at the event!
 
Is China's Door Closing? (https://www.wilsoncenter.org/event/chinas-door-closing)

Ever since Deng Xiaoping launched his reforms in 1978, "openness" (对外开放) has been a central tenet of Chinese policy. While the actual degree of China's openness has varied from time to time and sector to sector over the past 38 years, the trend toward greater liberalization of society, institutions, and the economy has been clear.
Until recently. The passage of China’s foreign NGO law raises doubts about Xi Jinping’s commitment to further opening and reform. The law, which places foreign NGO’s under the supervision of the Ministry of Public Security, is the latest in a series of regulations meant to control “hostile foreign forces.” Surveys indicate that foreign companies are concerned about tightening business regulations in China and wonder whether they are as welcome as they were in recent decades. International journalists and publishers, too, are finding it difficult to obtain visas and to reach Chinese audiences. Is China’s door closing to foreigners? Why are conditions changing for international actors in China? How should the United States respond?

Please join us for a discussion of the future of American NGO’s, corporations, and media in Xi’s China.

Moderator: Robert Daly, Director, Kissinger Institute on China and the United States

Speakers

- See more at: https://www.wilsoncenter.org/event/chinas-door-closing#sthash.caZB5PBe.dpuf

An Exchange with Professor Carl Minzer on the Overseas NGO Law

(Note: I'll be going on vacation starting tomorrow for about two weeks, and hope to start posting again after I've recharged my batteries.)

I think those of us who work in and on China can always use more information and perspectives when it comes to the regulatory environment in China.  Going on this assumption, I’m going to try to publish questions that were raised in response to the Overseas NGO Law FAQs that I posted on May 1, and my responses to those questions.

The first of these series of Q&As is a conversation between me and Carl Minzer, a professor of law at Fordham University and an expert on Chinese law and governance.


Carl:

One question:

I noticed in your blog post that you translated one of the required elements for the “file documents” (bei'an) procedure (specifically, this one:
中方合作位批准的文件) as (e) "approval documents for the activity from the Chinese partner." Are we sure that's correct?

That English phrasing suggests that what is involved is simply the Chinese partner organization submitting the materials that it itself has signed: i.e., foreign NGO reaches agreement with Chinese entity for a one-time health-related program, the Chinese entity could submit the signature page of the document that the boss of the Chinese entity has signed off on, and be compliant.

a) Such an interpretation would essentially duplicate (b) -  the agreement between the INGO and the Chinese partner.  [Which suggests e) must have some other kind of meaning]

b) That language does not seem to precisely correspond with the (“obtaining”) element of the Chinese - which to my mind suggests some element of "external" approval - the Chinese partner must demonstrate that it has "obtained approval" for the activity in question.  I know it might seem like a small distinction (and the language itself is unclear), but I think it's a key one.  If the bei'an procedure is interpreted to be a totally "passive" one - just send in your materials, and you're OK, then I think it won't necessarily "chill" the broader range of activities.  Conversely, I think if it is interpreted to required a demonstration of "outside" approval of the activity (from who - I'm not sure - the PSB, Civil Affairs, someone yet higher up in the chain of command of the entity in question?), I think that's precisely the element that is likely to result in a "chilling" of a broader range of activities - precisely b/c many Chinese higher-ups will drag their feet, be unwilling to sign off on things.

Consequently, if people were going to focus on how this new law gets implemented, I'd point the finger squarely at that language as element numero uno to pay attention to.  People are going to freak out about all of the environmental orgs, or the rule of law groups, because those grab the headlines.  Or they're going to hold out hope that authority will be taken away from the MPS to manage this. But I kind of look at many of those as lost causes already - I think the determination of a much more hardline approach has already been made. And some people can at least point out to Chinese authorities that there are different ways to limit the collateral damage.


Shawn:

Hi Carl, I can always count on you for a close reading of the law.

I think that my translation is correct. Both of the unofficial translations from ChinaLawTranslate and China Development Brief translate it along those lines. I don’t read it to mean that these “approval documents” are the same as the agreement between the INGO and Chinese partner. They are something else, but what they are is really unclear. As you say, the devil is in the details.

Article 17 says that “the Chinese partner needs to go through approval procedures according to national regulations”
中方合作应当按照国家批手. But what kind of national regulations are they referring to?

Let’s take a workshop or training as an example of an activity. What kind of national regulations govern the holding of a workshop or training? I have no idea. There are national regs on assembly but only in outdoor areas, not indoor ones. It seems that your Chinese partner would need to get approval from the place where the workshop or training takes place, but I don’t see how this could involve approval from a higher authority if the workshop or training was taking place at a university, a hotel or even a restaurant. Are there any national regs governing activities in a hotel or restaurant? Wouldn’t it just require approval from the university department or school, or the hotel, or the restaurant? Of course, the fact that they have to get approval in the first place may spook the host institution, but it seems that this procedure may not be as hard as you suggest.

Of course, intention is important too, and if the intention behind the law is simply to get rid of the troublemakers, then we’re doomed. But my gut instinct tells me otherwise. Even if that is the intention of the top leaders, those intentions get easily diluted as the law makes its way down the hierarchy. Maybe I’ve been in China too long but I’m hoping - no betting - that the China I’ve known and loved all these years isn’t going to change overnight.


Carl:

You know - this really raises an interesting tactical question going forward, one which I have no idea what the correct answer is.  I'd be curious to get your opinion on this, because this is literally something folks are talking about right now.

So the two of us have identified at least one area where the lack of clarity in the law could have significant implications.  If Article 17 is interpreted to require some kind of affirmative external approval of each "temporary activity", that's clearly going to be a practical barrier to a much greater range of programs. Conversely, if it's a passive requirement - just send in your documents to the PSB and let us know what you're doing - that's going to be less of a barrier.  As
you mention, the devil will be in the details.

So here's the tactical question: given that, what's the correct response from foreign organizations?  I can see two different possibilities.

The first is to go in and raise the issue loud and clear with (say, the State Council or PSB) - hey, what does this mean? Can you please clarify this in your implementing regulations?  I'm pretty sure that this is exactly the approach that a bunch of American lawyers in various general counsel offices are are likely to adopt.

Now, there's a risk to that: you might end up getting a more hardline interpretation.  And such an interpretation (once codified into law or regulation) would effectively tie the hands of lower authorities/limit the flexibility of some Gansu or Guangxi provincial or municipal bureau who might be inclined to wave their hands and say - oh, sure, go right ahead, it looks like we've got everything we need.

The second is the reverse - note the possibility of interpreting that language in different ways, and hold ones tongue. Perhaps raise the general idea of how important US-China exchanges are, how many US organizations will feel very uncomfortable about engaging in projects in China given the general nature of and lack of clarity of the law, and how bad it would be if the entire spectrum of them were disrupted. But avoid a narrow, technical focus on specific provisions that could potentially get interpreted in a negative way.

Which do you think would be most advisable?


Shawn:

Carl, your tactical question is an interesting one. My sense is this is going to be a complex give-and-take process between the PSB and INGOs, and that PSBs in some provinces will have a different approach than others in implementing and enforcing the bei’an process, so even though some sort of standard procedure will emerge, there will be local variations in how it’s carried out. Both sides though will be seeking to come up with a workable process which I have to believe will require negotiation, and not just the PSB or SC just laying down the law. I think this is one of those “crossing the river by feeling for stones” moments where the PSB is trying to do something they haven’t done before. In that spirit, I would advise INGOs to approach the process as a negotiation and not try to establish clear terms or demands at the outset. Instead, work on establishing some good will with the PSB and start a discussion on how the two sides can make this process work.

I had a chance to look at the 2010 Yunnan regulations for INGOs and it’s interesting because there, the bei’an process was used but it was worded as an application process in which the application for bei’an had to be approved. In the Overseas NGO Law there is no mention of an application process or approval, and yet I have to think the drafters knew about the Yunnan regs. To me this suggests one of two things. One is that they made a conscious decision not to copy this aspect of the Yunnan model and require an application and approval to streamline the process. The other is that they didn’t want to put this “small detail" into the law but intend to include it into the implementing regulations.



Saturday, June 11, 2016

2016: the Year of Regulation and a New Future for Civil Society?

Outside China, we look to the past as a guide to China’s future. Here in Hong Kong we continued the wonderful tradition of commemorating the 27th anniversary of the June 4 massacre in Tiananmen Square with the usual candlelight vigil in Victoria Park. In Taiwan, where the Democratic Progressive Party now controls the presidency and legislature, the Legislative Yuan commemorated June 4 for the first time. Memory is used in the service of keeping alive the dream of a democratic China. 

Inside China, the Communist Party has chosen to brush out the past, or perhaps  more accurately to use the past as a guide to what should be avoided in the future. It is more interested in shaping the future, in particular the future of China’s civil society, in a way that will strengthen CPC rule and prevent the reoccurence of the 1989 movement. Memory is used in the service of keeping alive Xi Jinping’s “China dream” - a dream rooted in the future rather than the past.

The year 2016 could be said to be the year that future starts. It is the Year of Regulation when two national laws regulating the nonprofit, NGO, social organization sector were passed within the space of two months – the Charity Law in April and the Overseas NGO Law in May. These are the most consequential nonprofit laws passed in the history of the PRC.  Before this, you have to go back to the more esoteric Public Welfare Donations Law (PWDL, 公益事业捐赠法) passed in 1998 for a national law regulating the nonprofit, social organization sector. In contrast to the more narrow PWDL, the Charity Law and Overseas NGO Law are more detailed and comprehensive in scope. The former defines the scope of domestic nonprofit, charitable work in China, and regulates the establishment and operation of domestic charitable organizations and the sources and uses of charitable property and services. The Overseas NGO Law regulates the operations and activities of overseas nonprofit, non-governmental organizations and their represenative offices in China.

If these two laws had been the only legislation passed this year, one could still legitimately claim 2016 as the Year of Regulation. But we now have news that there is more on the way. In late May, the Ministry of Civil Affairs issued draft revisions of regulations for registration and management of two of the three types of “social organizations” (the Chinese term for nonprofit organizations): Civil Non-Enterprise Institutions (CNIs, 民办非企业单位) and Foundations (基金会). (Note: These draft revisions are being issued for public comment, so if you are interested in commenting, you can go to the Civil Affairs website here and here to download a copy of the revised regulations.) In the revised regulations, CNIs are now going to be called Social Service Organizations (社会服务机构), which is a more accurate description of this type of nonprofit and in line with the Charity Law which uses the new term instead of CNI. A draft of revised registration and management regulations for the third type – Social Associations (e.g. membership associations, 社会团体) – will most likely follow soon. 

We have been expecting revisions of these three sets of regulations since 2014 and thought they would be out earlier. What we did not expect was for the sequence to be reversed and have the Charity Law and Overseas NGO Law approved first, followed by revisions of these three regulations. If the revisions of the three regulations are all approved this year, then we will have seen passage of almost all the significant nonprofit laws and regulations in the time span of just one year.  This is unprecedented in the history of the PRC. A review of the history of regulation in the nonprofit, social organization sector shows three major peaks of regulation (See the table below). The first peak (in orange) comes in the 1988-89 period with the appearance of three regulations, two of which were issued after the demonstrations in June 1989. The second peak (in yellow) comes in the 1998-2004 period with the appearance of one new regulation, one new national and two revised regulations. The year 2016 (in blue) eclipses both of these peaks, with two comprehensive national laws, and potentially revised regulations on the registration and management of all three types of social organizations.


Year Major Laws and Regulations Governing Social Organizations in China
1988
Regulations on Management of Foundations

1989
Provisional Measures on Management of Foreign Chambers of Commerce

1989
Regulations on Registration and Management of Social Associations

1998
Regulations on the Registration and Management of Social Assocaitions (revision of the 1989 regulations)

1998
Provisional Regulations on the Registration and Management of Civil, Non-Enterprise Institutions

1999
Public Welfare Donations Law

2004
Regulations on the Management of Foundations (revision of the 1998 regulations)

2016
Charity Law

2016
Overseas NGO Law

2016?
Regulations on the Registration and Management of Social Service Organizations (revision of the 1998 Provisional Regulations on the Registration and Management of Civil, Non-Enterprise Institutions)

2016 ?
Regulations on the Management of Foundations (revision of the 2004 regulations)

2016?
Regulations on the Registration and Management of Social Associations (revision of the 1998 regulations)

Sunday, June 5, 2016

Draft Regulations for Social Service Organzations and Foundations Posted for Public Comment (deadline: June 26, 2016)

This has been an incredibly busy year when it comes to nonprofit, NGO regulation in China.

Following the passage of the Charity Law in April and the Overseas NGO Law in May, the Ministry of Civil Affairs is now issuing draft revisions of the regulations for management of Social Service Organizations (formerly called Civil Non-Enterprise Institutions), and for management of Foundations.

The draft regulations for Social Service Organizations (shehui fuwu jigou, 社会服务机构)can be found here, and for Foundations (jijinhui, 基金会)can be found here. The deadline for your comments is June 26, 2016.

1) Comments can be submitted via the website http://www.mca.gov.cn.

2) Comments can be sent as emails to zcfgs@mca.gov.cn.

3) Comments can also be posted to the following address:

Department of Policies and Laws of the Ministry of Civil Affairs, No.147 North Heyan Street, Docheng District, Beijing, Zip: 100721. (On the envelope please indicate ‘Comments on the Draft Regulation on the Registration and Management of Civil Non-Enterprise Units’) (北京市东城区北河沿大街147号民政部政策法规司,邮政编码:100721, 并请在信封上注明“民非条例征求意见”字样)


Sunday, May 1, 2016

Overseas NGO Law FAQs



I’ve had a chance to look over the text of the law in Chinese, and below are my main takeaways in the form of FAQs[i]. The first few FAQs have to do with basic questions related to the how INGOs can operate in China under the law. The last two FAQs have to do with issues that I’d like to raise as deserving our attention. One is getting INGOs to think about where there are opportunities to participate in the implementation of the law. The second is how this law might affect Chinese grassroots NGOs which have long depended on INGOs for a significant amount of support.

I will be updating this list of FAQs regularly as a public service, so if you have any comments, insights, experiences, suggestions and other feedback, please comment to this post, or send me an email, and I’ll try my best to incorporate them into the next update.


Who are the Overseas NGOs covered in this law?

Article 2 of the law notes that the term Overseas NGOs refers to “not-for-profit, nongovernmental social organizations lawfully established outside of mainland China such as foundations, social associations, and think-tanks”.  By using the terms not-for-profit (commonly used in the U.S.), NGOs, and social organizations (the official Chinese term for not-for-profit, nongovernmental organizations), the drafting authorities’ intention was to have this law cover a wide range of organizations that include industry and trade associations, chambers of commerce, development and human rights NGOs, cultural organizations, sporting and recreational associations, and so on.

If your organization qualifies as a "Overseas NGO", then any collaboration, funding, and other activities you run in China either with a Chinese institutional partner or individual could potentially come under this law.


Who are the supervisory authorities under this law?

The Ministry of Public Security (MPS) and provincial-level Public Security Bureaus (PSBs) will be the registration authority for overseas NGOs (hereafter INGOs for short).

INGOs that want to set up a representative office will also need to get the formal approval of a professional supervisory unit (PSU) in order to register with the Public Security. The PSU is generally a designated government agency under the State Council. The PSU will play an important role in supervising the INGO’s operations and activities in China.


How can INGOs operate in China under this law?

INGOs will have two legal channels for working in China:

1)    They can set up a representative office; OR

2)  if they do not want to set up an office in China, they can “file a record” (bei’an, 备案) to carry out “temporary activities” (临时活动). (Article 9)

Article 9 of the Law states: “INGOs that do neither of these are not allowed to carry out activities either openly or covertly, or to authorize, fund or covertly authorize any Chinese work unit (danwei, 单位) or individual to carry out activities.”

This is a pretty comprehensive statement which essentially says any Chinese work unit or individual puts themselves at risk if they cooperate with an INGO that has not gone through one of the above two legal channels.


How does setting up an INGO representative office work?

The representative office will be under the “dual management” (shuangchong guanli, 双重管理) of a professional supervisory unit and the Public Security. The system of “dual management” requires that the INGO first needs to get the formal approval of a professional supervisory unit who is willing to be the INGO’s official sponsor and supervisor, before they register with Public Security (Article 11).

The MPS and provincial PSBs will publish a directory of eligible professional supervisory units.

Article 10 specifies the eligibility requirements for INGOs that wish to set up a representative office.

Article 12 specifies the materials INGOs need to submit in order to register.

There is no language in this law about what happens if the INGO cannot find an appropriate professional supervising unit, nor does it specify a time limit within which the registration authorities must provide a response to the INGO’s application for registration.

INGOs cannot set up branch representative offices in China unless otherwise allowed by State Council regulations (apparently the State Council has approved branches for certain types of INGOs) (Article 18).

By December 31 of every year, the representative office must send a activity plan (project implementation, use of funds, etc) for the following year to their PSU which needs to approve it and then “file on record” with the registration authorities within 10 days of approval (Article 19). Under special conditions, changes in the activity plan should be reported to the PS in a timely manner.

Article 31 also states that the INGO rep office needs to go through an annual inspection (niandu jiancha 年度检查).

The rep office must report information about the staff they hire to the registration authorities (Article 27).


How does “filing a record” work for INGOs wanting to carry out “temporary activities?

The “filing a record” procedure[ii] is the other legal channel for INGOs wanting to operate in China. It is intended for INGOs that do not want to set up a representative office but still want to carry out “temporary activities” even if those activities are not intended to be “temporary” in nature.  

The “filing a record” procedure looks like a potentially significant improvement from the second draft, which required INGOs to obtain a “temporary activities permit” from Public Security. Here we need to understand how the “filing a record” procedure has worked in practice in other areas where it has been used as an alternative to registration (see footnote 1). Obtaining a “temporary activities permit” would have meant getting the approval of a PSU and then getting approval of Public Security for such as permit.  “Filing a record” in theory looks easier. It means the INGO now does not need a PSU (e.g. it does not come under "dual management" like INGO representative offices), and does not need to apply for a permit from the Public Security authorities. It only needs to show an agreement with a “Chinese partner” and file certain materials with Public Security authorities, but does not need to wait for their approval.

To “file a record” with Public Security, the INGO needs to have a “Chinese partner” that is a government agency, mass organization (qunzhong zuzhi, 群众组织) (see footnote 2 for a list), public institution (shiye danwei, 事业单位) such as a public university, or a social organization (shehui zuzhi,社会组织) such as a membership association (shehui tuanti, 社会团体), social service provider (社会服务组织) or foundation (jijinhui, 基金会) (Article 16).  (Note: the “Chinese partner” is different from the PSU which is generally a government agency and acts in a supervisory role vis-à-vis the INGO, while the “Chinese partner” can be a quasi-governmental institution like a public university or research institute, or a social organization (e.g. the official Chinese term for a nonprofit, nongovernmental organization).

There is no further description of what constitutes a “social organization”, but presumably it should be a legally registered social organization (there are also many “social organizations” in China that are registered as businesses or unregistered). For some reason, for-profit businesses are left out of this list of potential partners.

To carry out activities, the Chinese partner must go through approval procedures as required by the Chinese government (it does not specify what those approval procedures are) at least 15 days before the activity, and “file a record” with the registration authority in that locality.

Article 17 lists the following materials that need to be filed:

a)     certification of the INGO’s legal establishment;
b)    the agreement between the INGO and the Chinese partner;
c)     materials about the name, goal, location, and time period for the “temporary activity”;
d)    materials certifying the project’s expenses and funding sources, and the Chinese partner’s bank account;
e)     approval documents for the activity from the Chinese partner;

The “temporary activity” cannot exceed one year. If the time period for the activity is to exceed one year, then the INGO needs to refile a record.

INGOs carrying out “temporary activities” need to use the bank accounts of their Chinese partners to manage funds, and must create a special account for their activities. Other than the bank accounts specified, either the INGO or the Chinese partner can use any other form to receive or use funds for these activities (Article 22).

INGOs carrying out “temporary activities” need to use the name they used in  “filing a record” to carry out activities.  INGOs and their Chinese partners need to submit a written report about the activity and use of funds to the registration authorities within 30 days of the activity’s completion.


What other measures apply to both INGOs with a representative office or INGOs carrying out “temporary activities”

The following are some of the more significant measures affecting both categories of INGOs, but certainly not an exhaustive list:

1) INGOs must abide by China’s foreign exchange regulations for foreign exchange transactions (Article 25).

2)    INGOs and their representative offices cannot carry out fundraising in China
(Article 21)

3)    INGO and their representative offices cannot recruit members within China unless
otherwise allowed by State Council regulations (Article 28).

4) Article 32 reiterates that any Chinese work unit or individual cannot be authorized to act for (weituo, 委托), fund, represent or covertly represent INGOs carrying out activities in China.

5) Public Security will place any INGO, whose registration has been revoked or activity been cancelled, on a list of INGOs that will not be allowed back into the country (Article 48).

6) The next to the last article (Article 53) states that overseas schools, hospitals, natural sciences, engineering and technology research organizations, and academic organizations that have exchanges and cooperate with similar Chinese organizations should carry out those exchanges and cooperation according to relevant government regulations. This article suggests, but does not explicitly state, that these INGOs may be exempt from this law.


Where is there room for INGOs to shape the implementation of the law?

In addition to thinking about how to comply with the law, INGOs and their Chinese partners need to think about how they can shape the implementation of the law. It’s often said that China has good laws on the books but they are often not implemented and enforced. In the years ahead, there will be plenty of areas to shape implementation and enforcement.  In this sense, INGOs should see this law as an opportunity to expand and deepen their interactions with Public Security and other implementing agencies. In the past, the relationship between Public Security and INGOs has been largely a one-way street in which Public Security has treated INGOs as an object of suspicion. This new law should provide INGOs with the opportunity to transform that channel into a two-way street in which public security will have to treat NGOs as "customers" and "clients" if they want to justify the substantial addition of staff and other resources that they will need to implement this law. Some people may not agree with me on this point, but I think it’s more productive for us in the long run for us to think about how we can improve the law’s implementation, instead of seeing the law as the state’s weapon to shut INGOs out of China. In short, we shouldn't reflexively see this law as closing the door for overseas NGOs, but as opening other doors. Below are some suggestions for where INGOs could participate and exercise some influence.

Detailed implementing regulations still need to be drafted, and Public Security may outsource some of that drafting to other Chinese academics and organizations who have more familiarity with the management of nonprofit, nongovernmental organizations and their programming.

In addition, and perhaps more challenging, Public Security will need to secure the coordination of the various agencies and institutions involved in the implementation of this law. This includes the Civil Affairs Bureaus, Finance and Tax Bureaus, banks, Human Resource and Social Security Bureaus, Foreign Exchange offices, and the various PSUs that will need to work together with Public Security to supervise the work of INGO representative offices. Who these PSUs are will depend on that INGO’s issue area. For example, an educational INGO’s PSU might be the Educational Bureau, a public health INGO would be the Health Bureau, and an environmental INGO might be the Environmental Protection Bureau.

There is language throughout this law about the Public Security and other government agencies providing services to INGOs to better implement this law. INGOs should hold government agencies accountable to what is in this law. Thus Article 7 of the law notes that Public Security and other relevant government agencies at or above the county level will carry out supervision and management, and provide services, within the scope of their duties, to INGOs carrying out activities in China.

Article 7 also states that the Chinese government will set up a supervising and management coordinating mechanism responsible for researching, coordinating and resolving major problems in supervision, management and service facilitation for INGOs carrying out activities in China.

Article 33 states that the Chinese government ensures and supports INGOs carrying out legal activities in China.  Relevant government departments at all levels should provide the necessary assistance and services to INGOs carrying out legal activities in China.

Article 34 states that the MPS and provincial PS will work with other relevant government departments to formulate a directory of activity areas and projects, and publicize a directory of professional supervisory units, in order to provide guidance to INGOs.

Relevant government departments at the county level and above should provide services such as policy advice and guidance on activities to INGOs.

Registration authorities should set up a unified website to issue procedures for INGOs looking to set up a rep office or to carry out “temporary activities” (Article 35).

INGO rep offices will be able to enjoy tax exemptions and other preferential policies (there is no specific mention of any exemptions or policies, and presumably the tax and finance authorities will need to issue more detailed regulations about this.) (Article 36).


What are the implications of the law for INGOs that work with grassroots organizations

Grassroots organization and groups have grown rapidly over the past 10-15 years. These are generally nonprofit, nongovernmental organizations with few or no ties with the government working on a wide range of issues, and should be distinguished from mass organizations and GONGOs[iii] who also call themselves NGOs. Grassroots organizations developed over the years by relying substantially on INGO funding and support. By regulating and possibly restricting the activities of INGOs in China, this law will potentially have a very significant negative impact on grassroots organizations. I’ll say more about this in my next update to these FAQs.


What else has been written on the Overseas NGO Law that is worth reading?

Below are some links to articles that have been written. This is by no means an exhaustive list, and if you feel an article that merits attention has been left out of this list, please let me know.

In an article she wrote for Caijing magazine and translated into English by China Development Brief before the law was approved, Jia Xijin, an expert on nonprofits and NGOs in China at Tsinghua wrote about the possible impact of the law, particularly on Chinese grassroots organizations and groups.

A comprehensive and concise New York Times article about the passage of the law.

A Guardian article about the law’s passage with quotes from Yirenping’s Lu Jun, and various human rights organizations.

Mark Sidel, a long-time expert on nonprofit law in China and other countries, has this very good and succinct Foreign Policy article.

Jin Jinping, a Beijing University law professor and one of China’s foremost experts on nonprofit law in China, has this Legal Daily op-ed in Chinese.



[i] An unofficial English-language translation can be found at China Development Brief and ChinaLawTranslate.
[ii] The “filing a record” procedure is often used by local government as a simply method for keeping track of small community-based organizations (CBOs) in their jurisdiction. It was also used in the Yunnan provincial government experiment a few years ago to regulate INGOs in the province. INGOs were asked to “file a record” and in return they would be allowed to operate in the province.
[iii] Mass organizations are organizations directly under the Communist Party of China and include the All-China Federation of Trade Unions, All-China Women’s Federation, Communist Youth League, All-China Federation of Industry and Commerce, All-China Federation of Youth, All-China Students' Federation, All-China Federation of Literary and Art Circles, and Chinese People's Association for Friendship with Foreign Countries. GONGOs are organizations that were either established by government and party agencies, or have close ties with the government/party. There are tens of thousands of GONGOs in China, perhaps hundreds of thousands if you include their local branch organizations. Some of the better known GONGOs include the All-China Environment Federation (established by the Ministry of Environmental Protection), the All-China Lawyers’ Association (the equivalent of China’s bar association), the Chinese Red Cross, the China Youth Development Foundation.

Friday, April 29, 2016

The Overseas NGO Management Law is Now Official


The Overseas NGO Management Law was passed yesterday at the 12th session of the Standing Committee of the 12th National People’s Congress by a overwhelming margin and will go into effect January 1, 2017. The final version of the law bears a slightly different name from the previous drafts: Law on the Management of Overseas NGOs’ Activities in Mainland China  (境外非政府组织境内活动管理法). It’s quite a mouthful, and in the future I’ll refer to it simply as the Overseas NGO Law[i]. We're fortunate to now have two unofficial English-language translations of the law at China Development Brief's English-language website and ChinaLawTranslate.

Over the last two months, we have now seen two major national laws passed regulating the nonprofit, NGO sector in China: the Charity Law (慈善法) and the Overseas NGO Management Law (see Tables 1 and 2 below). We are also expecting revised regulations later this year for the registration and management of the three different types of social organizations (China’s official term for nonprofit, nongovernmental organizations).  This state of affairs is unprecedented. The last national law passed in this sector was the Public Welfare Donations Law (公益事业捐赠法) in 1999, nearly 17 years ago. Since then, we’ve seen very few regulations governing this sector come out. The most recent was the Foundation Management Regulations 基金会管理条例 issued in 2004. During this period of time, we’ve seen the rapid growth of both Chinese and overseas nonprofit, nongovernmental social organizations. Yet the large majority of these organizations have operated in a grey legal area due to the lack of regulation. In short, as many experts have noted, these two laws address a serious need to regulate what has largely been an unregulated sector. The real question is whether they will do so in a way that will foster the healthy development of both Chinese and overseas nonprofit, nongovernmental organizations in China. An answer to this question requires taking a close look at the two laws, and more importantly, seeing how they are implemented and enforced over the next few years.

I’ve already provided an analysis of the Charity Law in past posts, and will continue to update that analysis in future posts. In my next post, I’ll provide my analysis of the Overseas NGO Law, with an eye on how it will affect grassroots NGOs in China.

Table 1: Timetable of national security-related NPC legislation


1st reading
2nd reading
3rd reading
Approved
In Effect
Counterterrorism Law
November 3, 2014
(public comments)
March, 2015
December 2014
Dec 24, 2015
January 1, 2016
National Security Law
December 2014 (internal)
May 7, 2015 (public comments)
July 1, 2015
July 1, 2015
July 1, 2015
Overseas NGO Management Law
December 22, 2014
(internal)
May 5, 2015 (public comments)
 April 25-28, 2016
 April 28, 2016
January 1, 2017
Cybersecurity Law
July 6, 2015 (public comment)
 N/A
N/A
N/A
N/A


Table 2: Timetable of other civil society-related NPC legislation


1st reading
2nd reading
3rd reading
Approved
In Effect
Anti-Domestic Violence Law
November 25, 2014 (State Council, public comments)
August 2015 (NPC, public comments)
October 2015
December 27, 2015
March 1, 2016
Charity Law
October 2015 (public comments)
December 2015
 March 2016
 March 16, 2016
September 1, 2016




[i] Two minor points on the translation of the Chinese name. The Chinese term jingwai (境外) really means anything outside of mainland China, including Hong Kong, Macao and Taiwan, so this is why I use the term “overseas” rather than “foreign”. Whether Hong Kong, Macao and Taiwan are really foreign would get us into a endless debate over the international legal status of these territories/countries. The same goes for the term jingnei (境内) which really refers to mainland China.