Tuesday, June 14, 2016

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.


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.


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 all these years isn’t going to change overnight.


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?


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.

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