(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.
