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: 中方合作单位批准的文件) 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 获得 (“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” 中方合作单位应当按照国家规定办理审批手续. 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.

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.

An exchange between Meg Davis of Asia Catalyst and Shawn Shieh on regulation of Chinese NGOs

In a recent posting on her Asia Catalyst blog, Meg Davis reprints an exchange between the two of us on how China's new nonprofit regulations - including new regulations on international NGOs in China's Yunnan Province (for a text of the regulations, see http://www.yunnan.cn/html/2010-02/23/content_1082060.htm) -- were affecting grassroots groups. The essay was reposted to Chinapol (aka C-Pol), an email list of professionals working on Chinese policy issues.

I'm posting it here as well because it gets to an important issue that Meg and I disagree on, and that is, whether or not new regulations (when there were none previously as in the case of Yunnan) represent a tightening of control over NGOs. This is an important issue because China currently has very few laws and regulations governing the NGO/nonprofit sector, and we'll undoubtedly see more laws and regulations. Will this be beneficial or detrimental to NGOs? I realize some people will see regulations as an effort by an authoritarian state to control NGOs, but I'm keeping an open mind. I think having some kind of regulatory structure is better than having none at all for reasons I state below.

Shawn Shieh writes:

Meg,


Thanks for writing this up. I'm actually in the middle of translating the Yunnan regs, so if anyone has the translation already and would be willing to share, I'd be most grateful.

I had one question and a comment. In your discussion of the Yunnan regs on foreign NGOs, you note that foreign NGOs will have to apply for approval with the provincial Civil Affairs and then go on to say that this will make them [government-organized NGOs, or] GONGOs. I didn't understand the connection. How does applying for approval translate into becoming a GONGO?

My comment has to do with the larger question of NGO regulation which has been the subject of some lively discussion on this listserv. You call the Yunnan regs a tightening of control over foreign NGOs, but let me present another way of looking at it. My understanding is that foreign NGOs in China at this point aren't really clear how to register because there are no specific regs governing them, except for foreign chambers of commerce. It's a sort of "don't ask, don't tell" policy where different govt depts and local govts have to deal with them on a case by case basis. Foreign NGOs have been able to work in China by entering into some creative arrangements with their local counterparts, but it's not an ideal situation. I think it's in this context that the Yunnan govt is now experimenting with clearer regulations governing foreign NGOs, just as other provinces are experimenting with regs for other kinds of NGOs such as community-based organizations (CBOs), trade associations, and foundations. Perhaps the experience with these different experiments may eventually percolate upwards to the center and shape the revisions of the NGO regs that we've been expecting to come out for so long.

So I see these regs as a way to clarify the regulatory environment, rather than as a tightening. It seems preferable to have some kind of clear standards and guidelines for foreign NGOs than to have none at all, although of course the devil is in the details and the implementation. If foreign NGOs continue to be stymied by bureaucratic red tape and are unable to register using these regs, then they may just go back to the old way of doing things. Either way, with or without these Yunnan regs, foreign NGOs that are not registered with Civil Affairs are technically illegal.

I'd be interested to hear what people working in foreign NGOs think about this, on or offline.

On the issue of regulating both domestic and foreign NGOs, I'd like to highly recommend Deng Guosheng's article that just came out in Spring 2010 issue of The China Review, "The Hidden Rules Governing China's Unregistered NGOs: Management and Consequences". It sheds a lot of light on a murky subject.

Shawn



Meg Davis replied:

Dear Shawn and colleagues,

Many thanks to Shawn for his thoughtful comments and questions. I'd like to start by referring to Shawn's useful interventions on other C-Pol threads about the fact that there are a lot of different kinds of GONGOs, some of which are empty shells for the purpose of collecting grant money, and some of which do valid and life-saving work (Shawn, I was hoping to find a post to this on your blog that I could cite in the article - if there is one, could you send it offline?). Saying a group is "like a GONGO" is not necessarily a statement about the value of the work the organization does, but more a comment on the restrictions and controls on that work.

When I wrote the blog post on China's NGO regulations, I would have spent more space elaborating on the Yunnan regs, but the post was already quite long; I'm happy to have a chance to do so now. To start, I need to make reference to international rights law, quoting from the report I wrote for HRW in '05 on restrictions on AIDS NGOs in China:

"Under the International Covenant on Civil and Political Rights, which China has signed but not ratified, China has the right to restrict freedom of association, so long as those restrictions are 'necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others'. Any restrictions should be interpreted narrowly, and be proportionate to the reasons for them; a government should use no more restrictive means than are absolutely required. While the state has the right to ensure that NGOs are honest and transparent, legal requirements should be minimal, clear, and attainable, permitting maximum flexibility for NGOs to establish themselves and perform their daily work. They should be enforced without discrimination."

In other words....states do have a right to restrict registration or establishment of NGOs, and this is something that all countries do. To take the US as an example (not because it's a model, but because it's the system with which I'm most familiar), someone registering a nonprofit needs to first file incorporation papers with the state, and then file much a much longer application with the federal government in order to obtain tax-exempt status. In founding Asia Catalyst, I went through both those processes with the help of a pro bono lawyer. While this was certainly a lot of annoying paperwork that had to be done carefully, the requirements were clear, attainable, non-discriminatory, and did not prevent our organization from getting down to business right away. I didn't have to have guanxi [personal connections] in the state attorney general's office, or in the IRS. My lawyer and I didn't have to buy gifts or take anyone out for expensive meals. We sent in the paperwork registered mail and got a letter of determination back within the legally-mandated time frame, end of story.

The Yunnan regulations are not minimal, clear, and in many cases will not be attainable. They also are not simply a matter of filling out paperwork and mailing it in. They require foreign NGOs to obtain "approval" for their work from multiple different, sometimes vaguely defined departments; the documents required are left to the discretion of those departments.

More to the point, because of the vague way in which these regs are written, in practice there is broad leeway to implement them in a discriminatory manner. In practice, in order to register with the Civil Affairs Bureau, the foreign NGO in question is going to basically need a "mother-in-law" agency (a la the GONGO registration requirements); that is, some senior official or friendly high-ranking department that can pull strings, make calls, maybe take some people out to lunch, and smooth the way to registration. That official or agency will then be held accountable for whatever the foreign NGO does, and will have some say over decisions the foreign NGO makes. If the foreign NGO plans something that someone in power finds anxiety-producing, the first call is probably going to go to the Chinese friends who helped facilitate registration.

Of course, to some degree this is already what happens for foreign NGOs that open offices in China, as most of them will say off the record. Most of them won't say it or anything critical about NGO management on the record (as one journalist pointed out, writing to me offline about how she'd like to write about the Yunnan regs but can't find any foreign NGO to comment for the article). This is just part of why some ticked-off Chinese AIDS activist friends tell me they already think of most foreign NGOs working in China as being GONGOs. If Asia Catalyst ever tries to open an office in Beijing, I expect we'll have to become the same way - it's the nature of the game.

That said, Shawn, I'm intrigued by your reference to "other provinces...experimenting with regs for other kinds of NGOs such as community-based organizations (CBOs), trade associations, and foundations" and would be grateful for references/info, either online, offline or on your blog. If this is part of a larger trend, it would be interesting to do some comparing and contrasting.

However, I'm not persuaded by your prediction that organizations that fail to register in Yunnan will just go back to doing things the way they were before. But I guess we'll just have to wait and see how the regs are implemented.

Meg

Shawn Shieh replied:

Meg,

I think we have somewhat different interpretations of what a GONGO is, and maybe that's where my original confusion came from. To me, a GONGO is an "NGO" established by a party or government agency but registered with Civil Affairs as an NGO with the agency that established it being its "mother-in-law" or professional supervising unit. The state provides funds and staff for the GONGO, and determines its leadership. Most GONGOs also have an administrative rank. Then there are "real" NGOs, some of which are registered with Civil Affairs and have a professional supervising unit, but nevertheless are private, formed voluntarily and self-governing. I think there is an important and very real distinction to be made between the former (e.g. GONGOs or top-down NGOs) and the latter (e.g. bottom-up NGOs), and we shouldn't conflate them simply because they have a "mother-in-law". It's one thing to have a "mother-in-law" for registration purposes (and as a number of NGOs I've spoken to indicate, the "mother-in-law" is largely pro forma and doesn't really supervise the NGO that closely). It's quite another to have your funding, staff and leader come from the party-state.

I've written a post on the distinction between GONGOs and NGOs in my blog that is available in the June 2010 section of this blog.