Margaret K. Lewis

Margaret K. Lewis. ChinaFile. 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.

Margaret K. Lewis. The Diplomat. "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.

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.

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.

Margaret K. Lewis. A Review of China’s Record on Torture. University of Nottingham Blog

Chinese President Xi Jinping stated that “China has made enormous progress in human rights. That’s a fact recognized by all the people of the world.” The statement is true when viewed against the abuses committed under Mao Zedong. Yet the 2015 UN report on China’s compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment presents a bleak view of the realities in China today.

Margaret K. Lewis. Political Realities of the East China Sea Conflict. The Diplomat

The already tense atmosphere in the East China Sea ratcheted up a notch this past week when China declared a new air defense identification zone. The United States’ flight of a pair of B-52 bombers through that zone on Monday further highlighted the potential for conflict in the contested area. 

Margaret K. Lewis. Leniency and Severity in China’s Death Penalty Debate. Columbia Journal of Asian Law

China has implemented an initial wave of death penalty reforms that returned final review power of all capital cases to the Supreme People’s Court and reportedly significantly curbed executions. After reviewing recent legal developments concerning capital cases, this Article explores how the initial push to reduce use of the death penalty has given way to a more complex and nuanced debate over what factors should determine when the death penalty is appropriate. 

Margaret K. Lewis. Political Realities of the East China Sea Conflict. The Diplomat

The already tense atmosphere in the East China Sea ratcheted up a notch this past week when China declared a new air defense identification zone.The United States’ fight of a pari of B-52 bombers through that zone on Monday further highlighted the potential for conflict in the contested area. The legal issues involved in the use of the sea, are intellectually intriguing for an academic who studies international law. The political realities of this increasingly tough neighborhood, however, are frightening.

Margaret K. Lewis. Taiwan’s New Adversarial System and the Overlooked Challenge of Efficiency-Driven Reforms. Virginia Journal of International Law

In the short span of two decades, Taiwan has gone from a repressive, authoritarian state under martial law to a vibrant democracy.’ This stunning political change has received worldwide attention. Less well-known is the striking overhaul of Taiwan’s criminal justice system that has accompanied these political changes.

Margaret K. Lewis and Jerome A. Cohen. How Taiwan’s Constitutional Court Reined in Police Power: Lessons for the People’s Republic of China. Fordham Law Review

The path toward abolition—albeit winding, long, and complex—is a glowing example of the judiciary, executive, and legislature carrying out their respective duties in a democratic, cooperative, and relatively transparent manner...

Jeremy Daum. Review Essay: Challenge to China: How Taiwan Abolished Its Version of Re-Education Through Labor. NYU Journal of International Law and Politics

Jerome Cohen and Margaret K. Lewis's recent book, Challenge to China, offers a unique historical vantage point from which to understand two recently abolished, severe forms of administrative detention: the liumang system from Taiwan, and China's re-education through labor (RTL) system. The two systems, both of which allowed police to bypass the normal criminal justice system in imposing punishments of several years' detention on light offenders, had long been viewed as indispensable tools for law enforcement. 

Discussion. Rule of Law—Why Now? ChinaFile

Jerome Cohen, Professor of Law at NYU and Co-Director of the US-Asia Law Institute, Ira Belkin, Executive Director of the US-Asia Law Institute, Li Ling, Senior Research Scholar at the US-Asia Law Institute, and Margaret Lewis, Associate Professor of Law at Seton Hall Law School and an Affiliated Scholar at the US-Asia Law Institute, have contributed to a ChinaFile conversation on the upcoming Fourth Plenary Meeting of the CPC.

Margaret K. Lewis and Jerome A. Cohen. How Taiwan’s Constitutional Court Reined in Police Power: Lessons for the People’s Republic of China. Fordham International Law Journal

For over six decades, police in Taiwan could lock up people they deemed “hooligans” (liumang) for years with at most a cursory review by the courts. It was not until Taiwan’s Constitutional Court (the “Court”)—also known as the Grand Justices of the Judicial Yuan—stepped in that important change began to occur, culminating in the ultimate repeal of the law that authorized the police-dominated process. As a result, in 2009, all of Taiwan’s imprisoned liumang who did not have concurrent criminal sentences were released.

Jerome A. Cohen and Margaret K. Lewis. Plenum Pledge won’t Make Scrapping China’s Labour Camps any Easier. SCMP (South China Morning Post)

Last week’s decisions of the Communist Party’s Central Committee promise significant changes to many aspects of China’s legal system. None may be more important and immediate than its announcement that the party is terminating “re-education through labour”, the notorious administrative punishment to which the police alone can sentence anyone for as much as three years of detention in a labour camp, with a possible one-year extension. 

Margaret K.Lewis Interview. Implications of Bo Xilai’s Trial. VOA Daybreak Asia

On September 4, Margaret K. Lewis, professor at Seton Hall University School of Law and a USALI Affiliated Scholar, appeared in VOA’s Daybreak Asia program to discuss the implications of Bo Xilai’s Trial and what it means for China’s legal reforms. 

Margaret K. Lewis. Death Penalty for Polluters: China’s Use of Criminal Law for Economic Ends. CFR "Asia Unbound"

Last month, an opinion piece in the Legal Daily called for China’s Environmental Protection Law to “grow teeth” by including clearer punishments that go beyond monetary fines. This followed a June joint interpretation by the Supreme People’s Court (SPC) and Supreme People’s Procuratorate (SPP) that details standards for handling criminal cases of environmental pollution. The explanation noted that in the most serious incidents of pollution, violators could be subject to the death penalty.