Alvin Y.H. Cheung. ChinaFile. Who's to Blame for Hong Kong's Weakening Rule of Law?

January 23, 2018

imsky Yuen, Hong Kong’s third Secretary for Justice, stepped down in early January. He leaves his department, and the city’s reputation for rule of law, markedly worse than they were when he took office in July 2012.

According to the Department of Justice’s website, the Secretary for Justice’s role is to act as “guardian of the public interest in a wider sense.” Yet Yuen’s tenure has been marked by attempts to wield the law against political opponents, a refusal to defend the courts from unfair and racially-charged criticism or Beijing’s attempts to strip them of their power, and a steady attack on the foundations of Hong Kong’s constitutional order. Far from fulfilling his constitutional duty to speak up for the rule of law in Hong Kong, he has been a willing collaborator in Beijing’s sustained campaign to undermine it.

Consider the August 2017 re-sentencing of Umbrella Movement leaders Joshua Wong, Alex Chow, and Nathan Law for unlawful assembly. The three were originally sentenced in 2016 for occupying part of Hong Kong government headquarters, and had served their sentences. Nonetheless, Yuen, a political appointee, insisted on pursuing applications for re-sentencing contrary to advice given by senior career prosecutors.

That case represents the tip of an iceberg of partisan conduct by Yuen’s Department of Justice. The online media outlet Stand News found that the Department consistently declined to pursue applications for re-sentencing against pro-Beijing individuals convicted of violent acts during the Umbrella Movement. Meanwhile, it has consistently sought tougher sentences for activists protesting against government policies. In addition to this spate of prosecutions, Yuen’s Department also expelled six opposition politicians from the legislature. The proliferation of civil and criminal suits against pro-democracy figures points to a strategy of putting political opponents behind bars or in bankruptcy—both of which bar them from running for elected office.

In a May speech, Yuen identified the “core values” of Hong Kong’s legal system as including “the independence of the judiciary,” as well as “the integrity and quality of our legal system.” Yet he has been reluctant to rebuke Beijing’s apparatchiks when they make unwarranted attacks on, or seek to undermine the independence of, Hong Kong’s judiciary. His mealy-mouthed response to Beijing’s White Paper of 2014—which referred to judges as “administrators” who were subject to a “basic political requirement” to love the country—stands in stark contrast to the Hong Kong Bar Association’s rebuke. Nor did Yuen defend the judiciary after the conviction of seven police officers for beating up a protester during the Umbrella Movement led to a spate of racially-charged attacks on judges of non-Chinese descent. In April 2017, over a month after pro-Beijing individuals called for “Chinese” judges and Chinese-language judgments, Yuen merely emphasized “English is of course crucial in maintaining our common-law system,” without condemning the xenophobia behind the attacks. This track record of soft-pedalling Beijing’s campaign to undermine Hong Kong’s judges does not bode well for the independence of or public confidence in the judiciary.

If Yuen’s refusal to defend Hong Kong’s common law judges from Beijing’s depredations raises eyebrows, his attitudes towards the “One Country, Two Systems” doctrine of the Sino-British Joint Declaration, under which Hong Kong is supposed to be governed, is disturbing. In December 2014, in response to concerns over Beijing’s position that the Joint Declaration no longer had legal effect, then Constitutional and Mainland Affairs Secretary Raymond Tam declared, after consulting the Department of Justice, that the Joint Declaration had lapsed after the transfer of sovereignty in 1997. Tam added that the statements of Beijing’s “basic policies” in Article 3 and Annex I were unilateral, and were therefore never legally binding in the first place. Neither claim survives a cursory reading of the Joint Declaration. Article 3(12) states that the “basic policies” in Article 3 and Annex I “will remain unchanged for 50 years.” Article 8 declares that “[t]his Joint Declaration and its Annexes shall be equally binding.”

This contempt for Hong Kong’s constitutional order goes beyond the repudiation of its foundational instruments. In a particularly worrisome recent example, Yuen defended controversial arrangements for the establishment of mainland border control checkpoints as part of the extension of China’s national express rail network into Hong Kong. Under this system, part of the Hong Kong terminus would have mainland laws apply to it in full. (This stands in contrast to, for instance, the operation of U.S. “pre-clearance” checkpoints in Canada, where only the customs and immigration rules of the U.S. apply.) These plans prompted concern that there was no basis in Hong Kong’s Basic Law for the complete application of mainland law as proposed. Nonetheless, Yuen reportedly declared that Hong Kong’s legal system cannot be allowed to impede progress. Unsurprisingly, Beijing rubber-stamped the proposal—a move that was likely calculated to strip judicial review jurisdiction from Hong Kong’s courts. The Hong Kong Bar dubbed it “the most retrograde step to date in the implementation of the Basic Law.”

Perhaps the most disturbing part of Yuen’s tenure, however, has been his disdain for ideas that lie at the heart of rule of law. Consider, for example, the principle that one cannot be punished for doing something that is not prohibited by law. Yuen has insisted that the peaceful advocacy of independence for Hong Kong is illegal and contravenes the Basic Law. Yet he has consistently avoided addressing whether such advocacy amounts to criminal conduct. When pressed, Yuen’s response conspicuously avoided any reference to substantive law:

As to what we would do, we would follow the same procedure as in other cases, namely, when things happen, the law enforcement agency would decide whether or not to conduct investigation and if they have the results, they would pass on the investigation results to DoJ. We would look at it. My colleagues would consider the applicable law and the evidence and then will decide what to do. So at this stage, we would not be commenting whether we would be taking what actions.

Nonetheless, Yuen cannot wave away a fundamental hurdle to any prosecution: his failure to identify an underlying criminal offense.

In fairness to Yuen, the cloud under which he leaves office was not entirely his own making. He is not to blame for the 2015 abductions of the Causeway Bay booksellers—one of them a British national, Lee Bo—from Hong Kong soil. Nor has he emulated the worst excesses of the so-called “guardians” of the Basic Law: mainland academics and Chinese Communist Party functionaries who have insisted the Basic Law means whatever Beijing wants it to mean. Nonetheless, Yuen’s refusal to speak up for Hong Kong’s legal order in the face of pressure from Beijing sets a dangerous precedent in enabling further interference, and one that his successor will find difficult to reverse.

Ira Belkin. Justice in the PRC: How the Chinese Communist Party Has Struggled with Managing Public Opinion and the Administration of Criminal Justice in the Internet Age

Ira Belkin. Justice in the PRC: How the Chinese Communist Party Has Struggled with Managing Public Opinion and the Administration of Criminal Justice in the Internet Age

The influence of Chinese public opinion on individual criminal case decisions is a phenomenon that has received a great deal of attention in China and around the world. Some commentators have lauded the phenomenon as empowering the public to seek justice in Chinese courts. Others have expressed concern that following public opinion may achieve justice in an individual case but does little to improve the justice system.

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ChinaFile. Aaron Halegua. Is Chinese Investment Good for Workers?


On December 13, 2017 Affiliated Scholar Aaron Halegua was featured in a ChinaFile Conversation with other leading experts in Chinese labor law. This discussion was conceived and lead by Mr. Halegua. To read his entire report on labor rights in China, visit:

December 13, 2017
Original Post ChinaFile

China’s Belt and Road Initiative is a $1 trillion plan to deepen economic relations between itself and up to 60 other countries worldwide through large investments in infrastructure, construction, and other projects. Many commentators have considered the significance of Belt and Road from a political, economic, or even environmental perspective. This discussion, conceived and led by Aaron Halegua, considers a largely neglected topic: what are the initiative’s implications for labor in China and the target countries? To what extent do China’s investments create jobs for local workers versus Chinese workers? Are the projects positively impacting labor conditions in participating countries or driving down labor standards? Does it matter whether the Chinese investor is state-owned? And how do the answers to these questions vary across jurisdictions?

Commentary from Aaron Halegua

One recent case comes from the island of Saipan, a U.S. Commonwealth in the Pacific Ocean. At least three major Chinese contractors—including state-owned (Metallurgical Corporation of China), publicly-listed (Gold Mantis), and private (Nanjing Beilida) companies—were hired to construct the Imperial Pacific casino and hotel there. Although the U.S. is not technically part of the Belt and Road Initiative, each company identified their work in Saipan as a “One Belt, One Road” project.

Awarding contracts to these Chinese companies resulted in thousands of construction jobs for Chinese workers, but very few for Saipan residents. The managers, foreman, and workers were all brought in from China. After the supply of work visas was exhausted, rather than offer a wage high enough to attract local residents, the companies arranged for more Chinese construction workers to enter Saipan as “tourists.” Some estimate that over 1,000 Chinese heigong (undocumented laborers) worked on the site. Many of them paid thousands of dollars in recruitment fees just for the opportunity to work in Saipan, underscoring how Belt and Road also serves as an important outlet for China’s surplus of unskilled labor in a slowing economy.

Hiring Chinese workers allowed the employers to impose exploitative labor conditions that locals would never tolerate. Many of the company practices resembled those in China, but violate the U.S. federal laws applicable in Saipan. For instance, these workers labored 13 hours per day, seven days per week; they were only paid once per month, if at all; compensation was below the applicable minimum wage; and overtime was rarely paid. Safety conditions were atrocious, resulting in high injury rates and even worker deaths. The companies resisted taking injured workers to a doctor unless absolutely necessary. Employers also confiscated workers’ passports—a legal violation as well as an indicator of forced labor. Accordingly, contracting with these Chinese companies cannot be said to have positively impacted labor conditions on the island.

In this case, the Chinese employers ultimately received some punishment and the workers achieved some modicum of justice. But this result is quite surprising given the lack of labor unions or worker centers in Saipan and the fact that most heigong, themselves in Saipan illegally, are terrified to complain to government agencies. Indeed, these abusive conditions persisted for a long time before a few brave whistleblowers came forward, including hospital doctors and workers themselves, prompting federal law enforcement agencies to intervene. Some of the largest fines for workplace safety violations in 2017 were imposed on the companies and several managers were criminally prosecuted for harboring and employing illegal aliens.

The contractors also agreed to compensate the workers millions of dollars for the minimum wage and overtime violations in settlements with the U.S. Department of Labor. But their motivation to settle was driven at least as much by the attacks on their public image than a fear of legal liability. The exploited workers continuously protested outside the casino for their wages without interference from the police; they received support from labor rights organizations in the U.S. and Hong Kong; and major media outlets reported on their plight. However, this tandem of worker support from law enforcement agencies and civil society institutions does not coalesce in every instance of abuse in the United States and may be particularly hard to achieve in some other Belt and Road target countries.

Read the entire conversation here:

ChinaFile. Margaret K. Lewis. Protecting the Rights of the Accused in U.S.-China Relations.

As President Donald Trump visits China, the Chinese government wishes that billionaire fugitive Guo Wengui would follow suit and board a plane to Beijing. For months, he has regaled the world from his luxury apartment in Manhattan with stories of high-level corruption among China’s elite. Untangling the truth of Guo’s claims is complex, but what the Chinese government wants is simple: to have some of its citizens, especially Guo, returned to China to face a long list of criminal and civil charges.

Guo is not the only Chinese fugitive in the United States. The Chinese government reported in October that its multi-year Operation Sky Net has recovered 9.36 billion renminbi in allegedly stolen funds and returned 48 fugitives that China placed on Interpol’s red notice list. Last spring, Chinese state media reported, however, that 946 fugitives were still overseas, highlighting the United States as a favorite destination.

Also in October, Washington presented contrasting visions of how the United States should respond to repatriation requests. The Trump administration concluded the last of a series of bilateral dialogues on October 4. Following the U.S.-China Law Enforcement and Cybersecurity Dialogue, the State Department emphasized a “results-oriented approach” and reports from the China-side touted “pragmatic cooperation.” The Summary of Outcomes released by the Department of Justice listed “Repatriation” of foreign nationals and “Fugitives” as main topics discussed. Yet the U.S. Department of Justice made no mention of the rights of the accused when engaging in law enforcement cooperation, even though Secretary of State Rex Tillerson said in April, when announcing the dialogues with China, that human rights are “really embedded in every discussion.”

On October 5, the day after the last dialogue, the Congressional-Executive Commission on China released its Annual Report on the human rights situation in China. Chairs Senator Marco Rubio (R-FL) and Representative Chris Smith (R-NJ) urged in their letter to President Trump that, “[p]rincipled U.S. leadership is needed to develop a long-term policy approach that challenges China to abide by its international commitments, adhere to universal standards, and embrace the rule of law.” Specifically with respect to law enforcement cooperation, the Report recommended that the United States “should not agree to any additional repatriations” until China demonstrates that it is meeting international standards on the treatment of criminal suspects.

The Trump administration has ignored the Report. Not only have the United States and China continued to repatriate each other’s nationals since President Trump took office, but also the recent dialogue demonstrated an increased willingness to cooperate through “regular meetings and working groups to identify priority cases.”

Should the United States emphasize human rights considerations when cooperating with China on law enforcement? There are sound reasons to do so.

First, an emphasis on human rights when cooperating with China on law enforcement is not American meddling in China’s sovereignty and is consistent with the human rights standards Beijing has accepted voluntarily. The United States and China are both parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides that member states not transfer a person to a country “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” A case-by-case analysis is needed to confirm that each repatriation meets at least these minimal standards—an inquiry complicated by the opacity of China’s criminal justice system and its Party disciplinary process.

Read the entire article here.

Margaret K. Lewis. East Asia Forum. Taiwan's Enduring Death Penalty.

Taiwan’s enduring death penalty

1 November 2017

Author: Margaret K Lewis, Seton Hall University

In May 2014, a man stabbed four people to death and injured dozens on a Taipei train. He was executed on 10 May 2016 — 10 days before President Tsai Ing-wen assumed office. The pace of executions in Taiwan has waxed and waned over recent decades — after a nearly five-year pause in executions, 33 people were executed between 2010 and 2016. Today, the death penalty remains legal, popular and contentious.

Treason, piracy and serious drug offences are among the crimes for which courts may impose a death sentence, although the overwhelming majority of executions in the last decade have been for murder. Retention of the death penalty is permitted but discouraged under the International Covenant on Civil and Political Rights (ICCPR), which Taiwan adopted as domestic law in 2009.

In January 2017, a group of independent human-rights experts invited by the Taiwanese government to review compliance expressed its ‘strong regrets that there has been no progress in the abolition of capital punishment as the utmost form of corporal punishment’. Since the adoption of the ICCPR, there have been procedural adjustments — such as requiring appellate sentencing hearings in all capital cases — and a concomitant drop in the number of death sentences finalised by the courts. But there has been no change in the government’s basic position that the death penalty is legal.

The death penalty is also popular. A 2016 poll by the National Development Council found that nearly 88 per cent of the public were against its abolition. This high degree of public support is less surprising when viewed in light of the poll’s timing — it immediately followed a public outcry over the grisly murder of a four year old girl. But an earlier 2015 poll similarly found that over 80 per cent of people did not support abolition.

It is also hard to find any lawyers, judges or legal academics in Taiwan who expect this support to markedly decrease anytime soon. They hope to gradually increase public support for abolition by exploring accompanying reforms aimed at shoring up public safety, including the possibility of introducing life without parole.

Despite widespread support among the general public, the death penalty remains contentious in political circles. In 2016, a legislator proposed an amendment to the criminal law that would require the death penalty in most murder cases where the victim is a child. In contrast, at the 2016 European Union–Taiwan Human Rights Exchange Programme a group of legislators met with EU human rights experts to discuss possible alternative sentences to the death penalty.

The executive branch has likewise displayed discordant views. Wang Ching-feng, who served as president Ma Ying-jeou’s minister of justice from 2008–2010, resigned over her refusal to sign execution orders. The next minister, Tseng Yung-fu, promptly approved the execution of six people on death row and signed 21 execution orders in total. His successor, Luo Ying-shay, signed 12 execution orders during her tenure.

The current Minister of Justice, Chiu Tai-san, has been circumspect in his public remarks, calling for dialogue between those in favour of and opposed to the death penalty. President Tsai too has avoided taking a clear public stance since taking office, though in 2015 she did remark that abolition of the death penalty required both a social consensus and comprehensive complementary measures, neither of which she saw present in Taiwan.

Looking to other countries’ experiences, abolition is more often led by political elites than motivated by public clamouring against the death penalty. President Tsai has so far failed to provide such leadership. The death penalty was raised in passing at the National Judicial Reform Conference that President Tsai convened, but it was not included as a specific topic for discussion, nor was there any mention of the death penalty in the summary of major issues.

Tsai’s reluctance to push the death penalty into the spotlight is not surprising considering that her approval rating dipped below 30 per cent earlier this year. In addition, her political capital is already stretched thin with an ambitious agenda underway, including tackling controversial pension reform.

The reality of the death penalty being retained has prompted non-governmental organisations to take a multifaceted approach to curbing the use of the death penalty. For example, in October 2017 the Taiwan Alliance to End the Death Penalty, Taipei Bar Association’s Human Rights Committee and Legal Aid Foundation held a conference on the death penalty.

The Taiwan Innocence Project for its part has shown that Taiwan is not immune to the worldwide phenomenon of wrongful convictions, including death penalty cases.

As 2017 draws to a close, it appears likely that it will be an execution-free year in Taiwan. But there still remains a lack of momentum for outright abolition in the executive and legislative branches, and Taiwan’s Constitutional Court has not yet intimated that it might issue a decision rendering the practice unconstitutional. As such, the death penalty is expected to linger, experiencing periods of disuse disrupted by occasional executions. This enduring use of the death penalty remains a stain on Taiwan’s otherwise steadily improving record of championing international human rights norms.

Margaret K Lewis is a Professor of Law at Seton Hall University and a Fulbright Senior Scholar at National Taiwan University College of Law. Follow her on Twitter at @MargaretKLewis.

Read the original article here. 

Margaret K. Lewis. The Diplomat. "Taiwan’s Human Rights Revolution and China’s Devolution"

October 3, 2017


Taiwan’s Human Rights Revolution and China’s Devolution

The gulf between legal systems across the Taiwan Strait is far wider than a hundred miles. Last month, Lee Ming-che — a Taiwanese citizen and human-rights activist — pleaded guilty to subversion charges in China for peacefully expressing political opinions. Today he remains in custody awaiting a decision on his punishment. Lee’s case has heightened already strained cross-strait relations. It has also laid bare the increasing divergence between China and Taiwan with respect to protecting human rights.

In three decades, Taiwan has transformed from martial law to a flourishing democracy embracing international human rights norms. China simultaneously has not only remained under strict one-party rule but also seen a shrinking space for civil society and a crackdown on lawyers who advocate for their clients’ rights. In Lee’s case, he was denied representation of his choosing. His court-appointed lawyer spent less than five minutes questioning his client and failed to present any favorable evidence. Lee’s defense consisted of a well-rehearsed statement of how he had been misled by Taiwan’s media and had only learned the truth about China from watching television programs while held in criminal detention.

Admittedly, a more zealous defense would have been futile: the conviction rate in China is over 99 percent even in non-politically-charged cases. And, given Beijing’s sweeping view of what constitutes subverting state power, it encompasses activities within the fundamental right to freely seek, receive, and impart information about human rights. Lee’s web-broadcasted confession was a carefully orchestrated spectacle, not a meaningful legal proceeding.

The farce of a trial has implications domestically in China, across the Taiwan Strait, and internationally. First, within China, Lee’s case underscores the intolerance for views that are not in lockstep with the Chinese Communist Party. Criminalization of dissent is, of course, not new: Lee joins scores of PRC citizens whose exercise of fundamental human rights has been construed as criminal behavior, including the late Nobel Laureate Liu Xiaobo who was similarly convicted of subversion. Liu was convicted eight years ago, and heightened repression is particularly common in the lead up to the five-year party congress that will be held later this month. But Lee’s case is further indication of ratcheted-up repression. The scale and ferocity of the ongoing crackdown forebodes that Xi Jinping will continue to squelch dissent as he embarks on his second five-year term as PRC president and party general secretary. Criminalizing political debate is integral to the party’s long-term strategy of maintaining its lock on power.

Second, the Chinese idiom of “killing the chicken to scare the monkey” (杀鸡儆猴) indicates punishing an individual as an example to others. Here, China has struck down Lee with a crime that carries up to a life sentence in order to send a warning to other Taiwanese who travel across the strait.

For the hundreds of thousands of Taiwanese citizens residing in China at any time, Lee’s case is a cautionary tale regarding strict avoidance of political expression. If any of those citizens are detained, Lee’s case demonstrates that China, unlike Taiwan, is refusing to honor the 2009 cross-strait agreement on mutual judicial assistance. The agreement requires one side to give prompt notification when detaining persons from the other side and to provide facilitation for visits by family members — neither of which has been done during Lee’s months of incommunicado detention. Lee’s wife was allowed to view the trial, but China has denied all requests to actually visit her husband.

For Taiwanese who are not physically present in China but maintain contacts there, Lee’s case is a warning of the perils of visiting if their communications have addressed democracy, human rights, or other topics deemed threatening by Beijing. Most recently, the PRC government warned of negative consequences for engaging in “separatism” following pro-independence remarks by new Taiwanese Premier Lai Ching-te. The crime of separatism can carry a life sentence under PRC law.

Third, Lee’s case highlights the contrast between Taiwan’s and China’s international engagement with human rights norms. In 2009, then Taiwan President Ma Ying-jeou signed the International Covenant on Civil and Political Rights (ICCPR). Taiwan could not actually become a party to the covenant due to its unusual international status, but the legislature incorporated the contents into domestic law. Taiwan has since engaged in periodic review procedures by international experts that mimic those state parties undergo.

Meanwhile, China’s relentless criminalization of peaceful political expression evinces that its signature on the ICCPR is meaningless. It has been nineteen years since China signed the ICCPR, which provides that “[e]veryone shall have the right to freedom of expression.” As a signatory that has expressed its intent to ratify the covenant, China has an obligation to refrain in good faith from acts that would defeat its purpose. Yet China has repeatedly done just that. It is high time for China either to shift course and ratify the ICCPR or to remove the veneer of compliance and declare its intention not to be bound by this foundational human rights document. At least then the PRC government would be forthright to the world in its repudiation of civil and political rights instead of tacitly subverting international human rights norms in the process of accusing others of subversion.

Margaret K. Lewis is a Professor of Law at Seton Hall University and a Fulbright Senior Scholar at National Taiwan University College of Law. She tweets at @MargaretKLewis.

Read the entire article here:

Eva Pils. CPIA. "A New Torture in China"

A new torture in China


Written by Eva Pils.

‘In China, we say that for a person meditating in a cave, a day passes as though it were a thousand years; it is like paradise. And where did I experience paradise? In there in the detention centre, being tortured. A day was like a thousand years. That’s how it felt. The disturbingly aged and altered face of the human rights lawyer sharing this observation gave me a sense of what he had been through during his most recent detention, and what colleagues who remained ‘in there,’ including Jiang Tianyong and Wang Quanzhang, might still be suffering.

Like my interlocutor, they are victims of the latest attack on this tiny and embattled section of the Chinese legal profession.  The ‘709 Crackdown’—so called after the date it began, on the night of 7 July 2015 when Lawyers Wang Yu, Bao Longjun and their child were detained—has been the largest so far and now affects hundreds of lawyers. Lawyer Wang Yu in her testimony published on 12 July and other lawyers including Xie Yang have disclosed some details about their experience of detention and forced disappearance,  coercive interrogation and torture, and informal house arrests.

During some recent chats about their experience of the ‘criminal justice’ system as suspects, defendants, and defence lawyers in the 709 Crackdown, my interlocutors mentioned details that sounded grimly familiar. For years, we had been hearing about the en-suite guest room in changing locations where a captive would be held, effectively disappeared, for days, weeks, or months on end; the two guards never leaving the room, the blinds always down and glaring ceiling light never turned off; the stress positions; the handcuffs; the beatings; the food deprivation, and the numerous sophisticated additional methods to humiliate, torment and terrorise (such as telling Wang Yu that she had been forgotten by the outside world.)

Some of the manoeuvres to cut inmates off from support were also part of longstanding practices. For example, the authorities have claimed in numerous cases that lawyers chosen by the detainees or their family members had been ‘dismissed’ and replaced by lawyers chosen by the authorities. Using techniques of and ‘dividing and disintegrating.’  they foster distrust and fear in the interminable enforced ‘chats’ with target persons in the wider rights defender community. As part of ‘relational repression’, they try to recruit family and colleagues for ‘thought work ’ purposes. For example, we saw video-recorded statements by loved ones pleading with prisoners to give in, such as the parents of Lawyers Li Chunfu and Li Heping, obtained by means of false representations.

But the 709 crackdowns featured several new, troubling measures. Early on, there were startling public displays of political prisoners incriminating themselves, renouncing rights advocacy, and denouncing former colleagues, including at televised trials. These displays were accompanied by propaganda videos, portraying them as enemies of their country and as dangerous criminals. The sham trials and self-renunciations raised the very anxious question what had been done to 709 crackdown victims to make them collaborate in these displays.

Now, based on conversations with victims, their supporters and relatives, China Human Rights Lawyers Concern Group reports that at least six of the victims have been forced to take medication.  They were allegedly given pills ‘prescribed’ for a variety of supposed medical conditions, but the ‘patients’ were not allowed to see their diagnoses. In some cases, the authorities never even bothered to claim that the drugs were prescribed by qualified doctors.

This has been the most deeply unsettling thing I have ever heard Chinese torture survivors describe. That the ‘medication’ had some physiological effects is unsurprising, but hardly captures the damage done.  As an interlocutor explained, it made them ‘extremely exhausted’ and it made their heartbeat uneven. Others have described muscle pain and blurred vision  as a result of the ‘medication.’ But physical effects were by far not the worst.

‘It made you think you were finished this time. Mentally, it was [the scariest], because you couldn’t know [what you’d been given] and so you thought, for sure they want to kill you. You won’t get out of here alive. It was only in there that I understood what torture was. Whatever we’d been imagining before got nowhere near what it was like.’

Indeed, one of the lawyers ‘released’ in January 2017 had come back from over 500 days of incommunicado detention with signs of serious mental illnessearlier this year, and his friends attribute this to his being forcibly drugged.

There is a serious debate as to whether the forced treatment of mentally ill prisoners is legally and ethically defensible. There is also increasing concern about abuses in health-care settings, and some argue that any kind of involuntary psychiatric treatment amounts to torture.

But in the present case, these difficult questions do not arise. If the allegations that have been made are true, the authorities claimed to be ‘treating’ physical conditions that were, in fact, non-existent, not mental health issues that might have existed. In all cases, we know about, ‘treatment’ had been preceded or accompanied by the more routine torture methods mentioned earlier. At least in one case, the ‘treatment’ initially ‘offered’ to a prisoner from day one of their detention was ‘to strengthen your immune system.’ Considering the mortal fear it produced, it is hard to resist the conclusion that this ‘treatment’ itself was another form of torture, systematically inflicted on human rights defenders. It was done by a method that strips torture down to its worst part – the taking away of one’s personality, one’s inner being, through an attack on one’s physical integrity.

This leaves us to worry about the victims of the 709 Crackdown still detained. As for Jiang Tianyong, the authorities have claimed that he has appointed two lawyers, but refused to disclose these lawyers’ names. His earlier self-incriminating statement on Chinese television confirmed no more than that he was alive. Nothing was heard or seen of Wang Quanzhang for over two years until, at the end of last month, another lawyer claimed to be acting on his behalf and to have met him, without being able to show that Wand had appointed him, or disclosing any further details. Why are Jiang and Wang both denied independent counsel? And, why has Wang not been paraded on television, like most of the others? Is it because he has been able to hold out under torture so far, or because his torture or ‘treatment’ got somehow out of hand?

We also need to ask ourselves what the novel practices displayed in the 709 crackdown tell us about the Xi-era Party-State approach to criminal justice. For a long time, many observers believed that there were ‘dual’ systems, one for ‘ordinary’ and one for ‘sensitive’ cases and that gradually the problems in sensitive cases would be overcome as the system overall become fairer and more open. The Chinese authorities supported this belief, by generally claiming that the legal process complied with the liberal standards of international law, and by doing their worst in great secrecy. As my interlocutors pointed out, judicial persecution in the post-Mao, post-June Fourth system remained reactive and covert; sometimes denying any knowledge of the very people it was disappearing and torturing.

Not anymore. Through the use of mechanisms like ‘residential surveillance in a designated location,’ the new model purports to legalise longstanding measures of repression. The forcible medication of political prisoners held in this way shows a system stooping to new lows.  Displaying them as ‘repentant’ culprits on TV, the authorities do not seem to mind if we can see what their victims have gone through. Perhaps we are even meant to guess, to become habituated to what we see, so we gradually begin to accept these horrors as part of what is discussed more widely as the Xi-era ‘new normal.’ Feng Chongyi has called thisa ‘National Security Commission model’ replacing the former ‘stability maintenance model.’ One of my interlocutors even more pointedly called it a ‘war model.’

Yet it remains difficult to see how the Chinese Party-State could win a war on Chinese civil society, or against the legal principles, it has embraced through much of its own law.  The system is easily able to lock up and torture more and more critics. But its ‘war’ so far is largely being waged against people who refuse to be cast as the enemies this system needs to justify its oppressive existence, and whose experience illustrates how shamefully the system violates the values they defend.

Eva Pils is Reader in Transnational Law at King’s College London. Image credit: CC by Russell Neches/Flickr.

Margaret K. Lewis. China Policy Institute: Analysis. "Penetrating Law Into the Walls of Chinese Detention Centers."

Read the original article here.

July 18, 2017

Written by Margaret Lewis.

Last Saturday, the window closed for comments on the draft PRC Detention Center Law.  The Ministry of Public Security touts the draft law’s ability to protect human rights (人权保障), and the release of the long-awaited draft at least indicates the government’s acknowledgement that existing legal provisions are inadequate. Yet any celebrations about an improvement to current detention practices is premature.

This post briefly explains why detention centres are a focal point of concern and will introduce the draft law. It then urges a sceptical wait-and-see attitude both because other recent criminal justice reforms on paper have fallen short of expectations and because the draft law retains the fundamental power structure that emboldens the police.

Concerns for Human Rights Protections in Detention Centers

In February 2016, the United Nations Committee against Torture reported that the PRC has failed to implement robustly the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Committee seriously questioned China’s claim that it is making “enormous efforts” to stop torture: “[T]he practice of torture and ill-treatment is still deeply entrenched in the [PRC] criminal justice system . . .” (para. 20). The Committee’s report largely reiterated existing concerns rather than breaking new ground, but it was noteworthy for being a scathing rebuke from an international body.

The PRC submitted its follow-up response to the report in January 2017. The response contended that “China has always attached great importance to strengthening the protection of the right of detainees to see a lawyer and to notify family member” and that “[d]uring inquiries into allegations of torture by the public security police, [procuratorates] are able to ensure the independence of the investigation.” The release of the draft Detention Center Law followed on the heels of this rebuke of the UN committee’s findings.

Release of the Draft PRC Detention Centre Law

PRC Criminal Law already criminalises the extraction of confessions via torture (art. 247) and physical abuse of detainees (art. 248). Nonetheless, there have long been calls for a law focused on detention centres because of the vulnerability of detainees to abuse. A string of detainee deaths under questionable circumstances had heightened concerns, with the 2009 death of a detainee that the police ascribed to playing the children’s game “elude the cat” (躲猫猫) as one of the most egregious examples.

The draft law emphasizes that people held at detention centers are “suspects” (rather than previously terminology that indicated they were “criminals” despite not yet being convicted of any crime) and has a number of provisionsaddressing access to counsel, medical care, a streamlined bail application process, and other areas of critical concern.  The draft law also continues the trend towards recording interrogations by providing that interrogations in connection with serious crimes shall be recorded. Videotaping is, however, not a panacea. There are serious questions about what happens to detainees during the time they are not being videotaped as well as the extent to which detainees’ lawyers have access to the tapes and other evidence.

One concrete changes that would improve the draft law is a revision of Article 46, which currently provides that, for most crimes, meetings with lawyers must be allowed within 48 hours of the filing of a request. This is too long. Much can happen within 48 hours. This is especially true when viewed in light of the lack of the right to silence in PRC law. An important step towards protecting the rights of the accused would be to provide a clear right to silence combined with a requirement that, if requested by the suspect, all interrogations must cease until a lawyer is present.

Hold the Applause: Why a Sceptical Wait-and-See Attitude is Warranted

Although the government has not released feedback submitted by the public, Chinese lawyers have expressed wariness over the draft law’s potential impact with one highly critical letter signed by over a hundred people. This scepticism is well founded.

Recent experience with criminal justice reforms urges restrained enthusiasm about the law’s potential impact. For example, China’s introduction of an exclusionary rule for illegally obtained evidence provides a cautionary tale. Rules introduced in 2010 were incorporated into the 2012 revision of the Criminal Procedure Law yet still have had little impact, though China is, of course, a large country with differing reports coming from lawyers in various localities.

New rules issued in June 2017 supplementing previous restrictions on the use of coerced confessions are unlikely to give the existing rules more bite because they maintain a narrow view of what type of evidence should be excluded and also continue to allow subsequent non-coerced confessions after an initial coerced one. For the draft PRC Detention Center Law, will implementation similarly fail to live up to the hype? Will, for example, proposed changes to bail application procedures measurably increase the number of suspects released on bail?

More concerning than discrete wording of legal provisions, the draft law does not change the fundamental power structure: the police are still in firm control of detention centres. This fits the overall power dynamic in the criminal justice system where the police are by far the strongest component of the “iron triangle” of police, prosecutors, and judges. The draft law is unlikely to alter what Professor Chen Ruihua has called the “hidden rules” (潜规则) of China’s criminal justice system (translation here), including that the vast majority of cases are only solved after obtaining a confession of guilt and that, if it were not for intention restrictions on the rights of defense lawyers and extralegal detention measures, solving criminal cases would be extremely difficult for most investigative authorities.

The draft law provides that the procuratorate will have an oversight role (art. 8), but simply writing this in the law does not mean that the procuratorate will seriously scrutinise police practices. The procuratorate needs to be both strong enough to challenge the police and also incentivized to stand up to the police: the draft law does not establish either of these preconditions. Experience from other countries teaches us that robust independent oversight is needed if a country is serious about stopping police abuse behind closed doors. Without greater transparency and meaningful outside scrutiny, we simply do not know what is occurring once a suspect is in police custody.

China’s next periodic report on its implementation of the Convention against Torture is due in December 2019. This could provide an opportunity for the international community to examine closely whether—assuming the draft law is adopted as expected—practices at detention centres are indeed changing. The obstacles faced by a UN human rights envoy during a visit to China this spring, however, do not bode well that outside observers will have meaningful access to detention centres and former detainees. Until there is a marked improvement in transparency, we will be unable to say confidently that law has indeed penetrated the walls of detention centres.

Margaret K. Lewis, Professor of Law, Seton Hall University.

Image Credit: CC by Can Pac Swire/Flickr

Jerome A. Cohen. Peter Dutton. SCMP. "How India border stand-off gives China a chance to burnish its global image."


Jerome A. Cohen and Peter A. Dutton call on Beijing and New Delhi to seek impartial arbitration to resolve their problem. After its heavy-handedness in the South China Sea, the latest row offers China a fresh chance to show respect for international law.

Friday, 21 July, 2017

For the past month, there has been a tense stand-off between China and India in the tri-border Himalayan region that ­includes Bhutan. Troubles began when China resumed building a road on the Doklam Plateau, which is disputed between Bhutan and China. India, because of its own security interests and as Bhutan’s security guarantor, stepped in to defend the position of the kingdom. China now claims India has invaded “its” territory. Tensions are high, and more than a few commentators have suggested this may be the most serious Sino-Indian ­border crisis since their 1962 war.

Many possibilities have been advanced for ­Beijing’s motive to stir up trouble. Some suggest ­Beijing seeks to peel Bhutan from India’s orbit. ­Others believe China seeks to take tactically useful high ground from which to threaten a narrow pass connecting to India’s eastern territories. Others focus on domestic Chinese political-military motivations ahead of the 19th Communist Party Congress. Another possibility is that China may be using the tension to create leverage in advance of border ­dispute negotiations. But why provoke India now?

It is important to remember that President Xi ­Jinping (習近平) undoubtedly wants to demonstrate to the upcoming party congress that he has a plan to make his bold foreign policy undertaking, the “Belt and Road Initiative”, a success. The long-term problem Xi faces is that both the maritime “Road” and the overland “Belt” are vulnerable to Indian interference. Thus, the future of the initiative relies heavily on Indian cooperation, or at least non-interference.

What does China have to offer India in return for its important acquiescence? Perhaps Xi created serious border tensions in order to bring India to the negotiating table, where China could offer a settled land border on terms favourable – but not too favourable – to Indian security. There is precedence in China’s negotiating approach with Vietnam ahead of finalising their land border in 2009. Indeed, unlike its thousands of miles of disputed maritime borders with eight other states, Beijing has in fact successfully negotiated nearly all its land border disputes, sometimes explicitly invoking relevant international law. Stark exceptions are China’s still-disputed borders with India and Bhutan.

Yet, almost seven decades of experience suggests that prospects for successful Sino-Indian border negotiations are not bright, and the current military confrontation might lead to actual armed conflict between two nuclear powers.

To avoid such a dangerous development, both Beijing and New Delhi should consider the time ripe for impartial arbitration or adjudication to resolve the problem. This would be a much less dangerous way than military provocations to achieve the “peaceful dispute resolution” that Beijing so vociferously endorses. Moreover, resorting to an independent international tribunal would go a long way towards repairing the damage to Beijing’s reputation caused by its refusal to accept the outcome of the UN Convention on the Law of the Sea arbitration brought against it by the Philippines over disputes in the South China Sea.

As of now, Beijing is vulnerable to criticism that its heavy-handedness in the Himalayas is another example of Xi’s “peaceful” policies. On the one hand, he professes to favour peaceful settlement through negotiations; on the other, he says, “China will never compromise on matters of sovereignty” over what are, in fact, controversial territorial claims. Beijing’s bullying in the South China Sea has also led ­others to conclude it believes only in power-based approaches to international dispute resolution.

When Prime Minister Narendra Modi visited the Council on Foreign Relations in New York in September 2015, he was asked whether India and China might settle their land border disagreements through arbitration. Modi dismissed the possibility without stating any reasons. But since India recently settled its disputes with Bangladesh in the Bay of Bengal through the UN convention arbitration, we are left to infer that the problem is China, not India. Apparently, Modi understandably has no hope that China would agree to such an approach.

Indeed, it is a fair question to ask, especially in view of Beijing’s recent flat-out rejection of the decision in the South China Sea case, why should India seek arbitration with Beijing? Even knowing Beijing will reject the arbitration proposal, India may want to strengthen the global esteem it already enjoys from its gracious acceptance of the adverse Bay of Bengal arbitration award. Seeking arbitration would also ­reflect India’s confidence in its legal position and its rejection of China’s current preference for bullying.

Appearances to the contrary notwithstanding, the Philippines gained much through its arbitration against China. It may take years or even decades for the fruit of its efforts to ripen, but even now it is apparent that quiet bilateral negotiations stimulated by the arbitration have gradually begun to emerge. And it is important to note that through arbitration, even ­“losers” can be winners.

When India was awarded the lesser portion of maritime rights in the Bay of Bengal, Modi’s enlightened acceptance emphasised that now the two sides could cooperate in regional resource development that had been previously stymied.

Beijing has a lot of work to do to repair its international image. What do other members of the UN sea convention think about China’s blatant rejection of its commitment to the agreement’s mandatory dispute resolution provisions? What do the British think about Beijing’s recent unilateral declaration that the 1984 Joint Declaration supposedly guaranteeing Hong Kong’s future until 2047 no longer has realistic meaning? What do other states that have ratified the UN Convention against Torture think about China’s continuing nationwide abuses? What do Australians think about the way Rio Tinto’s Stern Hu was tried despite the bilateral consular convention? What do Taiwanese think about Beijing’s refusal to apply the cross-strait judicial assistance agreement to Taiwan human rights activist Lee Ming-che’s detention? What do forcibly repatriated North Koreans think of Beijing’s violations of the Refugee Convention?

The present dispute with India offers Beijing a splendid chance to demonstrate respect for the institutions and processes of international law.

Jerome A. Cohen is an NYU law professor, faculty director of its U.S.-Asia Law Institute and adjunct senior fellow at the Council on Foreign Relations. Peter A. Dutton is a professor and director of the China Maritime Studies Institute at the US Naval War College and adjunct professor of law at NYU

This article appeared in the South China Morning Post print edition as: move moUntains

*Click here to view original article.


Jerome A. Cohen. South China Morning Post. Taiwan's Landmark Ruling on Same-Sex Marriage Highlights the Gulf with Mainland China.


May 29, 2017 


The decision of Taiwan’s constitutional court last week, invalidating a civil code provision prohibiting same-sex marriage, will have profound implications. Domestically, it will spur the executive and legislative branches to break the political stalemate over the legislative action necessary to amend the code, so as to conform to the constitution’s guarantee of social equality for all. They must now fulfil this constitutional responsibility within two years.

The constitutional court has taken similar actions in other controversial situations in recent decades. For example, its decisions played a critical role in ending the power that Taiwan’s police long exercised outside the regular judicial system, to imprison anyone they chose to declare a “hooligan”. The court also required that the government end an abuse similar to the notorious “re-education through labour” recently abolished, at least in form, in mainland China.

The much more controversial same-sex decision reminds me of the landmark US Supreme Court Brown vs Board of Education ruling, which in 1954 led a divided America away from segregated schools and other previously legal segregation practices. Although Brown, like last week’s Taiwan case, generated a major backlash from many conservative groups, it proved a major step toward social progress.

Read the entire article here.



Jerome A. Cohen. ChinaFile. Comments on Lee Ming-che's Arrest.

April 20, 2017

A Taiwanese Man’s Detention in Guangdong Threatens a Key Pillar of Cross-Straits Relations

Taiwanese human rights activist Lee Ming-che mysteriously disappeared in China on March 19. Ten days later, Beijing, having ignored the Taiwan government’s frantic appeals for information through prescribed channels, finally admitted that Lee has been placed in official custody on suspicion of “endangering state security.”

Yet, even today, a month later, virtually nothing more is known about Lee’s situation. Where is he being detained and by whom? What evidence justifies his detention? Does he have a right to meet his family, see a lawyer, and consult a Taiwan official? How long can he be held until charged with an offense or released? Can he get a fair trial? Why did Beijing not promptly notify Taipei of Lee’s detention, as required by their Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement, a compact in force since it was concluded in 2009? Why has Beijing gone to great lengths to avoid cooperating with Taipei?

Lee was “disappeared” while entering Mainland China from Macau. A former worker for Taiwan President Tsai Ing-wen’s Democratic Progressive Party (DPP) and more recently an administrator at a Taipei community college, he has been a long-term volunteer for Taiwanese human rights NGOs. He often discussed human rights, democracy, and Taiwan’s experience on Chinese social media, called for support for the families of detained Chinese human rights activists, sent Taiwanese books on history, literature, and social sciences to Chinese friends, and traveled to the mainland every year to see them.


Taiwanese human rights activist Lee Ming-che mysteriously disappeared in China on March 19. Ten days later, Beijing, having ignored the Taiwan government’s frantic appeals for information through prescribed channels, finally admitted that Lee has been placed in official custody on suspicion of “endangering state security.” Yet, even today, a month later, virtually nothing more is known about Lee’s situation. Where is he being detained and by whom? What evidence justifies his detention? Does he have a right to meet his family, see a lawyer, and consult a Taiwan official? How long can he be held until charged with an offense or released? Can he get a fair trial? Why did Beijing not promptly notify Taipei of Lee’s detention, as required by their Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement, a compact in force since it was concluded in 2009? Why has Beijing gone to great lengths to avoid cooperating with Taipei? Lee was “disappeared” while entering Mainland China from Macau. A former worker for Taiwan President Tsai Ing-wen’s Democratic Progressive Party (DPP) and more recently an administrator at a Taipei community college, he has been a long-term volunteer for Taiwanese human rights NGOs. He often discussed human rights, democracy, and Taiwan’s experience on Chinese social media, called for support for the families of detained Chinese human rights activists, sent Taiwanese books on history, literature, and social sciences to Chinese friends, and traveled to the mainland every year to see them.

Read the entire article here.

Jerome A. Cohen. Storm Media Group. 孔傑榮專文:北京錯估逮捕李明哲的後果

June 06, 2017





Read the entire article here.

USALI Affiliated Professor Eva Pils Quoted in Guardian Article

April 28, 2017

China convicts rights lawyer Li Heping of 'subversion of state power'

Li, once told that China considered him ‘more dangerous than Bin Laden’, sentenced in secret trial to three years in prison with a four-year reprieve

A respected Christian human rights lawyer has been convicted of “subversion of state power” at a secret trial in China, almost two years after he was first detained in a sweeping crackdown.

Li Heping was sentenced to three years in prison with a four-year reprieve, the court in the eastern city of Tianjin said on an official social media account, meaning he should be released but could be arrested and jailed at any point.

The trial was held behind closed doors on Tuesday because “the case involved state secrets”, the court said, but was only announced along with the verdict on Friday.


'I want to rescue my dad': children's heartbreak for the lawyers China has taken away

Li was swept up in a nationwide crackdown on rights lawyers and activists in July 2015, where police detained or questioned about 250 people. Since assuming power, China’s president, Xi Jinping, has launched a new wave of attacks on activists and the lawyers who defend them.

Li’s case drew attention around the world, and EU officials, as well as the embassies of 11 countries, called for his claims of torture while in custody to be investigated. His wife has said authorities used electric shocks on him.

“A suspended sentence does not mean he’s free until we actually get to see him and he’s allowed to speak freely, and given what we’ve seen in the past that probably won’t happen,” said Eva Pils, a professor at King’s College London and longtime friend of Li.

“It was a secret trial so we don’t know what state he is in,” Pils added. “In addition to our usual concerns about torture and physical health, I’m worried that this entire process may have robbed him of his mental health, especially after what they’ve apparently done to his brother.”

Li’s younger brother, Li Chunfu, emerged from 500 days of secret detention in January and was later diagnosed with schizophrenia, according to his family.

Li became well known for defending the disenfranchised, including Christian house churches, victims of forced evictions and free speech advocates. He worked within the scope of China’s legal system, rather than taking to the streets in protest. One Chinese security agent reportedly once told Li that the state considered him “more dangerous than Bin Laden”.

Although Li is likely to be released in the coming weeks, he has already spent more than 20 months in detention. At least 11 activists who received suspended sentences disappeared shortly after they were released, with some forced to undergo months of political education classes before being placed under house arrest by local police, according to human rights groups.

The court’s verdict was seen as a warning to other activists, and included a catalogue of vague charges, without citing any specific examples of illegality.

“The court ruled that since 2008, the defendant Li Heping repeatedly used the internet and foreign media interviews to discredit and attack state power and the legal system,” the court said. The court also accused Li of accepting foreign funds and employing paid defendants.

A lawyer hired by Li’s family to defend him was rejected by authorities and he was ultimately given a government appointed lawyer, an increasing trend in political prosecutions.

The conviction came on the same day that another civil rights lawyer, Xie Yang, was set to go on trial, but it was later cancelled.

Read the full article here.

USALI Affiliated Professor Eva Pils Quoted in Reuters Article

June 5, 2017

China activists fear increased surveillance with new security law

By Christian Shepherd

(Refiles this May 25 story to add "Chinese" to advocacy group's name in paragraph 13.)

By Christian Shepherd

Chinese activists say they fear intensified state surveillance after a draft law seeking to legitimize monitoring of suspects and raid premises was announced last week, the latest step to strengthen Beijing's security apparatus.

Half a dozen activists contacted by Reuters say they already face extensive surveillance by security agents and cameras outside their homes. Messages they post on social media, including instant messaging applications like WeChat are monitored and censored, they said.

The draft of a new law to formally underpin and possibly expand China's intelligence gathering operations at home and abroad was released on May 16.

However, the law was vaguely worded and contained no details on the specific powers being granted to various state agencies.

"State intelligence work should...provide support to guard against and dispel state security threats (and) protect major national interests," the document said.

The law will give authorities new legal grounds to monitor and investigate foreign and domestic individuals and bodies in order to protect national security, it said.

Public consultation for the draft ends on June 4. It is unclear when the final version may be passed.

Hu Jia, a well-known dissident, said the release was met with fear and despair in his circle of reform-minded activists, where it was seen as a sign of strengthening resolve in the ruling Communist Party to crush dissent.

"Before, the party acted in secret, but now they have confidence to openly say: 'We are watching you'," Hu told Reuters.

"The law is also partly to frighten people ahead of the 19th Party Congress; to tell them to be careful, to be quiet," he added. Hu was referring to the once in five years congress of the Communist Party likely to be held in October or November in which President Xi Jinping is likely to further cement his hold on power by appointing allies into the party's inner core.

Read the entire article here.

Margaret K. Lewis. ChinaFile Conversation. "The World Is Deserting Taiwan. How Should the U.S. Respond?"

On June 14, USALI Affiliated Professor was featured in a ChinaFile Conversation. Below is an excerpt from the conversation which featured several experts. 

On June 12, the small Central American nation of Panama announced it was severing diplomatic ties with Taiwan so that it could establish relations with the People’s Republic of China. Now, only 19 countries and the Vatican recognize Taiwan. Why did this happen? How does it affect Taiwan’s relationship with the mainland? Should the United States get involved in preventing the further diplomatic isolation of Taiwan? —The Editors

From Margaret K. Lewis: The Democratic Progressive Party (DPP) took back power last year on an upbeat campaign that it would “Light up Taiwan” (點亮台灣), but President Tsai Ing-wen must be feeling anything but sunny at this moment.

The president continues to struggle in opinion polls, with the economy remaining a point of deep concern: compared with many of Taiwan’s formal diplomatic allies, Panama was a fairly large trading partner. Yes, the loss of diplomatic relations with Panama will have a small effect on Taiwan’s total foreign trade. Yet it is notable as another straw on the proverbial camel’s back, building on other economic pressure from Beijing, such as moves to curb mainland visitors that provide crucial tourism revenue in Taiwan.

The diplomatic mood with the mainland is dreary as well. Combined with the loss of diplomatic relations with Sao Tome and Principe in December 2016, Panama’s diplomatic switch signals an unfortunate return to the days of “dollar diplomacy” where China and Taiwan used economic sticks and carrots to woo diplomatic allies. It is unlikely that Beijing will relax its pressure as long as Tsai stands firm in her refusal to recognize the “1992 consensus”—a political formula recognized by her predecessor, Ma Ying-jeou, under which both sides of the Strait acknowledged that Taiwan and the Mainland are part of “one China” but maintained their own interpretations of what that meant. Indeed, there threaten to be darker days ahead if the recent criminal subversion charges by China against Taiwanese human rights activist Lee Ming-che indicates future trends.

I question the wisdom and efficacy of the United States getting directly involved in bilateral relations between Taiwan and its remaining diplomatic allies. Instead, the United States should focus on how to increase Taiwan’s international space in key multilateral institutions for which statehood is not a prerequisite, because it is in the United States’ interests. In particular, the United States should continue to press for Taiwan’s participation in the World Health Organization (WHO). In May, Beijing once again blocked Taiwan’s inclusion in the World Health Assembly, the governing body of the WHO. Pathogens do not care about diplomacy: Leaving Taiwan outside of the WHO hampers the international community’s ability to prepare for and respond to disease outbreaks.

Taiwan is also shut out of the International Civil Aviation Organization (ICAO). This exclusion is especially concerning considering Taiwan’s position in an extremely busy section of East Asian airspace. The bottom line is that including Taiwan in international health and air-traffic safety is good for the safety of American citizens (not to mention Chinese citizens, as well), which is good reason for the United States to press Beijing to remove the obstacles it places in Taiwan’s path. Perhaps it is time for a new slogan: “Lighten up on Taiwan.”

Read the entire article here.

Peter Dutton. Isaac B. Kardon. LawFare. "Forget the FONOPs — Just Fly, Sail and Operate Wherever International Law Allows"

Written by Affiliated Professors Peter A. Dutton and Isaac B. Kardon

On May 24, the guided-missile destroyer USS Dewey (DDG 105) operated within 12 nautical miles (nm) of Mischief Reef, a disputed feature in the South China Sea (SCS) controlled by the People’s Republic of China, but also claimed by the Philippines, Taiwan, and Vietnam. The Dewey’s action evidently challenged China’s right to control maritime zones adjacent to the reef —which was declared by the South China Sea arbitration to be nothing more than a low tide elevation on the Philippine continental shelf.  The operation was hailed as a long-awaited “freedom of navigation operation” (FONOP) and “a challenge to Beijing’s moves in the South China Sea,” a sign that the United States will not accept “China’s contested claims” and militarization of the Spratlys, and a statement that Washington “will not remain passive as Beijing seeks to expand its maritime reach.” Others went further and welcomed this more muscular U.S. response to China’s assertiveness around the Spratly Islands to challenge China’s “apparent claim of a territorial sea around Mischief Reef…[as well as] China’s sovereignty over the land feature” itself.

But did the Dewey actually conduct a FONOP? Probably—but maybe not. Nothing in the official description of the operation or in open source reporting explicitly states that a FONOP was in fact conducted. Despite the fanfare, the messaging continues to be muddled. And that is both unnecessary and unhelpful.

In this post, we identify the source of ambiguity and provide an overview of FONOPs and what distinguishes them from the routine practice of freedom of navigation. We then explain why confusing the two is problematic—and particularly problematic in the Spratlys, where the practice of free navigation is vastly preferable to the reactive FONOP. FONOPs should continue in routine, low-key fashion wherever there are specific legal claims to be challenged (as in the Paracel Islands, the other disputed territories in the SCS); they should not be conducted—much less hyped up beyond proportion—in the Spratlys. Instead, the routine exercise of freedom of navigation is the most appropriate way to use the fleet in support of U.S. and allied interests.

Read the entire article here.

Margaret K. Lewis. CFR. "What Would Trump Do if There Were Another Tiananmen Incident?"

May 31, 2017

Margaret K. Lewis is a professor of law at Seton Hall University School of Law and a Fulbright research fellow at National Taiwan University School of Law.

As the world reflects on this week’s anniversary of the Tiananmen Square protests and subsequent violent crackdown by the PRC government, it is worth contemplating what President Donald J. Trump would do if faced with a similar situation. When asked about Tiananmen during the campaign, Trump said he was not “endorsing” China’s response, but he called the demonstrations a “riot.” Would President Trump see a riot or a massacre if the events of June 4, 1989, were replayed today?

The U.S. bombing raid in April that President Trump linked to the Syrian government’s use of chemical weapons against civilians suggested that human rights would be prominent in shaping foreign policy. Yet President Trump’s remarks during his recent visit to Saudi Arabia and praise for leaders with deeply problematic human rights records, such as Egyptian President Abdel Fattah al-Sisi, caution otherwise.

Specifically regarding China, in March 2016 the Obama administration joined eleven other countries in issuing a rare statement expressing “concern[ ] about China’s deteriorating human rights record” and calling on China “to uphold its laws and its international commitments.” The United States was noticeably absent a year later when eleven countries—including Canada, Australia, and the United Kingdom—sent a letter to the Chinese government expressing “growing concern over recent claims of torture and other cruel, inhuman or degrading treatment or punishment in cases concerning detained human rights lawyers and other human rights defenders.”

The Trump administration is admittedly not breaking the mold: U.S. government policy towards China has always been, at least to some degree, pragmatic. President Jimmy Carter entered office with human rights as a cornerstone of his foreign policy. Nonetheless, even he recognized the United States’ many interests when dealing with China and normalized relations. President George H. W. Bush suspended military contracts and technology exchanges with China following the Tiananmen Square massacre. President Bill Clinton, however, restored China’s most favored nation trading status four years later and quickly relaxed rhetoric that China must make significant progress towards conforming with international human rights standards.

While the tension between principles and pragmatism is not new in U.S. policy towards China, the current dismissive attitude towards human rights is jarring. The past four months indicate that policy decisions based on immediate economic and security calculations will prevail over long-held human rights values. As I have argued elsewhere, this is a mistake. Addressing human rights in both a principled and pragmatic way requires not just stating that human rights matter in the abstract but also articulating an integrated, executive-branch-wide plan for how human rights will be raised in various contexts.

Read the entire article here.

Justin Shen. 司法周刊. A Study on Citizen Participation in Criminal Trials in European Commission Countries.

Visiting Scholar (2016-2017) Judge Justin Shen from Taiwan published an article in the Judicial Journal (司法周刊), where he examines the institution of citizen participating in criminal procedures in multiple European Commission countries and how that impacts criminal procedure regarding evidence rules, discovery, adjudication and appeals. Read the article here (Chinese language only).