"Over more than three decades, foreign nonprofits, foundations, and universities have played an important role, usually welcomed by China, in the extraordinary transformation of the country’s society and economy. The drafting of this new law, and the centralization of control in the MPS [Ministry of Public Security], threatens balanced and effective partnerships built up over decades and has raised fears that a sharply tightened environment in China means a closing to the world — or at least the most significant retrenchment since reforms began in the late 1970s."
Earlier drafts of the FNGOML distributed for comment in 2015 had generated a storm of negative criticism, especially in the West. But not just in the West, and not just to further the interest of Western states in the work of their public and private NGOs (For my commentary on the draft see Here and Here ; Here for the Commentary of Flora Sapio; and Here for Background Briefs; Here for discussion of regulatory architecture of NGOs in China). Chinese internal commentary was not uniformly positive (see, e.g., Jia Xijin, "Legislation for Foreign NGOs; how will the second boot land?" originally in Chinese in Caijing; English version here).
In this short series we post the following
This post includes Larry Cata Backer's comment, "Walls and the Symbolic Barrier in the Era of Reform and Opening Up."
The thrust of discussion of efforts to use barriers of physical and psychological kinds in the Western Hemisphere have tended to focus on the United States and the border states along its southern border. Presidential candidate Donald Trump has become notorious in 2016 for his plan to build a physical barrier to stem the flow of people from out of the Mexican Republic into the United States (see, e.g., here).
Yet the efforts of the United States might be better understood within a regional perspective. A principal actor in the region is not the United States, but Mexico. It appears that Mexico is fierce in the defense of its own nationals as they cross the border northward into the United States. However, Mexico is perhaps even fiercer than the United States right wing in the defense of its own national borders against immigration from its "south"--especially migrants from Central America, either seeking a better life in Mexico or passing through to the United States. For these people, Mexico's elite sometimes tends to mimic the behaviors and politics of the more xenophobic of elements in the United States.
In 2010, Mexican officials announced the construction of a wall of separation between Mexico and Guatemala. It is being built ostensibly to control trade but is understood as a means of controlling migration as well. These walls are not merely physical barriers against incursions from outside. They are not just efforts to preserve what is inside against the potential contamination or disruption from foreign sources. These walls are not just efforts to ensure that this incarnation of the abstraction known as "Mexico" is preserved against the corrupting effects of physical, cultural and social incursions from another Latin American "peoples", who are in reality both a variation of and a politically distinct set of actors. used to define Mexico’s place within hierarchies of power in the Western Hemisphere.
Mexico occupies a middle place within hierarchies of power--the subaltern in its relations with the United States, but also the dominant power in its relations with its Central American neighbors. And, like any dominant power, Mexico appears ready and willing to reproduce the markers of subordinating power relationships between itself and those states lower down on the hierarchies of dominance in the Hemisphere. Whether it does this out of a need to serve the interests of the United States, to which it is dependent, or whether it represents the application of the ideals of power relations applied to inferior powers, is unclear. In either case, within this construct, walls represent a physical and a symbolic manifestation of both sovereign relationships and of the way in which power relationships and their internalization within subaltern states are built on the bodies of migrants. This is not merely a power to bar entry but rather a power to determine what or who is to be permitted in, and on what terms, and who or what is to be denied entry. Inverted, barriers permit states to determine who or what their own populations may be exposed to or who or what the masses must accommodate--and on what terms. That power of accommodation suggests the scope of power relations among states and other actors.
International law both facilitates the construction of “primary” walls but also reinforces the systems of subordination that produces “secondary” walls as well. Within this construct the individual is accorded a derivative and secondary legal significance, as object rather than individual, through a subordinated application of international human rights and humanitarian law. That ordering of territory over individuals is well evidenced in the jurisprudence of international bodies of which two might be considered—one the ICJ’s advisory opinion in the Israeli Wall case (here), and the other the OAS Court of Human Rights advisory opinion on migration into the United States. In the former case the international community acknowledged the authority of states to erect physical barriers, and in the latter that same community acknowledged the ultimate failures of such barriers to stem large scale movements and the need to manage and accommodate rather than to suppress and reject incursions from one societal-political space to others.
But by 2014 all talk of physical barriers had evaporated, as Mexico and Guatemala joined forces to open their respective borders--at least to the end of facilitating migration to the United States. But the barriers did not disappear--they merely took different form. Now the barrier changed from a physical to an administrative and security manifestation--from the concept of an absolute barrier to one in which people are directed through but not within a jurisdiction. In July 2014 the presidents of both countries announced
a new program that will allow Guatemalan citizens to legally travel through Mexico in their effort to enter the United States illegally. Guatemala is one of three sending countries accounting for most of the illegal aliens coming across the U.S.-Mexico border during the ongoing surge. The agreement grants Guatemalans 72 hours of legal status while they make their journey to the U.S.
The "Southern Border Program to Improve Passage" will increase the number of border checkpoints along the Mexico-Guatemala border, provide medical care, and offer Guatemalans a Regional Visitor's Card. The card grants Guatemalans enough time to make the trek to Mexico's northern border. (Mexico & Guatemala announce agreement to make illegal passage to U.S. easier)
Walls--barriers to entry--then have become increasingly symbolic in an age of globalization. But the symbolism is powerful still. Walls are evidence of the commitment of a territoriality organized space to preserve itself from outside incursions. But they are also evidence of weakness--of the fear of ruling elites, and sometimes of the masses managed by them, that the state and its institutions can survive contact. They are prudent in the face of invasion that overwhelms; they are an ultimately futile effort to protect a community against its own internal weaknesses, its decadence, its corruption, and especially its doubt, societally expressed through its politics and culture, that it is robust enough to engage with others.
Yet states do not merely produce the simple and crude physical barriers to entry of individuals within a physical territory. Though the logic of globalization has eroded the power of states to avoid the free movement of goods, of capital, of investments, and to some extent, of people, it has not made the erection of barriers impossible. The logic of globalization, however, has shifted the focus of walls--away from physical barriers (though they remain potent enough as states deem them expedient from time to time, e.g., HERE). What sort of barriers are these that are now being erected even as the old physical barriers against the free movement of goods, establishment, capital and to some extent labor, have withered away? For some states, these barriers are erected to protect some form or another of cultural production--movies and theater, perhaps (e.g., here). Other seek to isolate their populations in some way or other, usually by erecting barriers to the free flow of information, and communication, across borders and between peoples (see, e.g., here, here, here, and here).
Increasingly, barriers also appear directed toward emerging non-state collectives. That is, as strong transnational non-governmental societal, economic, cultural, and religious organizations emerge in the spaces between states, as these transnational organizations begin to operate across states, and not necessarily under the control of any one state, states begin to see these new organizations as threatening to their ordering and control of life within their territories. That uneasiness grows as these transnational organization acquire an autonomous self constitution which seeks to coordinate efforts to promote their objectives wherever their embers happen to live. These organizations may promote any number of principles, values, objectives and the like--many of which might go to the heart of the political, societal, cultural or religious bases of states. And it is in that guise that they become dangerous--in the sense that they represent a political threat to the state as the superior force for the organization of power over the behavior norms of their citizens (e.g., Managing Civil Society--Next Generation NGO Laws and Resistance to the Internationalization of Civil Society and its Normative Elements).
And indeed, the more porous the more ancient physical borders of states, the more permeable national frontiers, the more likely will a state's foundations be tested. Within globalization, and in the face of the rise of transnational actors, the more fragile the state's sense of itself as an integrated, cohesive autonomous unit the more likely that such internationalized actors will be seen, and the more likely that the state will seek, in the erection of intangible barriers, a means of disciplining and solidifying the state by other means. The point is that porous borders exacerbate fragility; but it may also conform the strength of ideological foundations. That is, traditionally, where states felt fragile or threatened they fortified their borders against threats. Today they erect other sorts of barriers to perceived incursions. Strong states, states that are self confident are more indifferent to borders and their permeability, and the strongest states prefer open borders. Open borders facilitate the communication of robust ideologies. And by strong I mean self reflexively self confident. Conversely, the more fragile the state's sense of itself as a coherent and self-reflexive community, the more likely it is to see in the need to erect intangible barriers. These barriers are not meant so much to protect the state from outsiders as to protect the integrity of the internal components of the state, or of its weakest elements, those most subject through threat in the face of the challenge of the permeability of physical borders.
The more vulnerable a state feels--or rather the more vulnerable the governing apparatus of a state feels itself--the more intense the desire to build walls. These walls serve three purposes. First they make it easier to police internal self conceptions. One builds societies, cultures, political discipline better in isolation--at least in the short term and for a little while. Second they make it easier to avoid external challenges and temptations. They make it possible to avoid or postpone the inevitable moment when an internal order must justify itself, must evidence its own self confidence, its own self assurance, in the face of difference. Political orders that worry most about their legitimacy tend to be fiercest in their defense of barriers; the more confident a state or culture in its own practices and principles the less valuable barriers tend to be. Third, it provides those who control borders with the appearance of a power to manage change. internal managers with a power to use communication instrumentally--to manage the inflow to better control the internal development of the space now isolated by these intangible barriers. The more a political order, or for that matter a cultural order, is grounded on principles of managerialism, the more likely that order will see in barriers not a means of preventing inflows, but of managing them and using them instrumentally to best effect (at least in accordance with their own sense of the meaning of those terms). The tragedy comes when states, and their ruling organs, panic; when they erect barriers out of weakness rather than strength, and when they seek to use internal barriers while seeking to aggressively penetrate other states without impediment.
It is only within this context that it is possible to approach the symbolic power of the recently approved Foreign NGO Management Law. The strengths of these measures is worth emphasizing. From a theoretical perspective, every state ought to be able to manage the way in which foreigners operate within their national territory. That operation should be consistent with the founding ideology of the state and may be managed to enhance state policy and objectives. States also have an obligation to preserve the integrity of their social, political and economic orders from actions by other states. Yet the move from theory to practice produced substantial weakness as well. The weakness was not just related to the openness of the state to outsiders but raised questions about the conformity of the FNGOML to the CCP Basic Line itself. The lost potential of the conception and implementation of the FNGOML has already been considered. For my commentary on the draft see Here and Here ; Here for the Commentary of Flora Sapio; and Here for Background Briefs; Here for discussion of regulatory architecture of NGOs in China). Chinese internal commentary was not uniformly positive (see, e.g., Jia Xijin, "Legislations for Foreign NGOs; how will the second boot land?" originally in Chinese in Caijing; English version here).
Whatever its strengths and weakness as a legislative approach, there has been little discussion of the FNGOML in its role as a wall, as a barrier between China and the rest of the world. And indeed that is a paradox that is explored in the remainder of this essay: Within the logic of globalization, what appears to be the assertion of power within a state may produce the appearance of weakness beyond the national territory. The symbolic effect of the manifestation of power, then, may produce the appearance of weakness. The result is that, within a global environment in which states are now inextricably connected and within which they operate increasingly among transnational public and private actors--a global environment in which the power of states to leverage power beyond their borders is perhaps as important as their authority within their own borders--the symbolic effect of administrative mechanisms to control or discourage global interaction may produce the symbolic manifestation of weakness that the administrative mechanisms were indeed established to avoid. It is to those effects, effects grounded in the way that globalization has begun to shape that discourse in more powerful ways, that might be worth considering more carefully. From that perspective several insights might emerge:
1. The FNGOML might appear to outsiders as evidence of a lack of confidence in the strength and robustness of the ruling ideology to manage its own political space. No ruling ideology can long survive if it dissolves in the face of contact with other systems. The ability of a ruling ideology to engage with and grow with interactions is a key element of a successful ideology, one that adapts to changes in historical context and is sensitive to the political and societal context in which it operates. Political ideologies that are hidden away, that fail to engage in robust exchanges with others are ultimately doomed. The Chinese ruling ideology has long been subject to substantial criticism form the West. It is viewed as illegitimate and incompatible with Western ruling ideologies. This should concern the CPP, as the parry in power, only to the extent that they take these positions seriously. Yet the symbolism of moving the oversight of foreign civil society to the security apparatus acknowledges not just the strengths of foreign ideology, but the weakness of the Chinese. The best protection of the ruling ideology is greater rather than less engagement with foreigners. It is furthered by better and more effective Party work and by a robust development of the CCP line in its actions as well as in its thought. And, indeed, it is hard to square the FNGOML with a robust application of the reform and opening up element of the CCP line.
2. The FNGOML might appear to outsiders as evidence of a lack of confidence in the ability of the administrative apparatus to manage societal space within China. In the usual course, foreign NGOs, like other elements of civil society, might be understood as a matter of management through the appropriate civil authorities in ordinary course. The objectives are the usual--to ensure that these organizaitons operate appropriately, and within the usual boundaries of law and policies that are applicable to all civil society. To single out foreign NGOs, and to enhance the administrative burdens beyond those which ought to apply to all in the service of socialist modernization, suggests again that such foreign NGOs do not serve China in the same way as indigenous organizations, even when they deliver the same govern mentally sanctioned services. These foreign NGOs require special management that is beyond the usual role of civil authorities. It requires state security. That also suggests that civil authority is incapable of such management--again a sign of weakness in the Chinese state apparatus--and that such management is likely to be of a criminal or political nature. But that creates another tension that exposes weakness: if such civil society elements pose such a potential threat, then prudence might suggest they be suppressed entirely. That the state is unable to suppress these element entirely suggests that they do not have the power to do so. That is a sign of weakness rather than strength. .
3. The FNGOML might appear to outsiders to evidence a lack of confidence in the CCP's cadres to continue to successfully engage in the sort of Party work that would enhance the and deepen the socialization of the founding ideology among all social sectors. The CCP Basic Line speaks to the leadership role of the CCP. The victory of the CCP in its establishment of the PRC in 1949 speaks to the strength of CCP cadres in the organization and management of political life. The success of socialist modernization speaks to the value of the CCP's leadership especially since the late 1970s. Yet the FNGOML does little to enhance the interaction of CCP cadres and these now even more isolated foreign civil elements. Rather than embed CCP acdres within such relationships with foreign NGOs, the FNGOML further isolates these civil society elements. Rather than embed these foreign elements into Chinese life, it seeks to make Chinese partners more wary of security scrutiny, of the symbolic notion that Chinese civil society elements that are too close to foreign civil society might well get swept up in rectification processes. The tendency toward greater isolation strengthens barriers but weakens effectiveness of civil society contributions to socialist modernization. It makes it harder for the CCP to assert leadership in the civil society sector by inhibiting the ability of its cadres to engage in party work in their interactions with foreign civil society which conforms to national rules in their operation.
4. The FNGOML suggests that every engagement with outsiders, especially those in global civil society, are inherently political, and that such political engagement is presumptively always adversarial. In effect, the FNGOML starts from the presumption that all institutional apparatus are necessarily both political and tied to the governmental apparatus of states. But that is a two edged sword. First it suggests Chinese misunderstanding of the development and character of civil society space in the global sphere. It misunderstands both the operation and connection between global civil society, states, and international organizations. That misunderstanding will impede Chinese efforts to better and more effectively engage with global civil society effectively--especially in the protection of Chinese interests abroad. The more successful China is internally with its FNGOML the more likely that success will weaken its ability to influence global events and to protect its local foreign interests effectively. It is in this sense that China's adversaries are likely to welcome Chinese efforts like the FNGOML as a measure that ensures their ability to better counter Chinese interests abroad. Second, it suggests that Chinese efforts to go out into global civil space may also suffer from the deficiencies the Chinese state sees in foreign NGOs operating in China. Indeed, that is the greater tragedy--the FNGOML appears to expose Chinese conceptions of its own civil space, not just inside but also outside of China. What the FNGOML says about foreign civil society in CHina is what it is also likely to say about Chinese civil society operating outside of China. And that may well weaken China's position in the world.
5. The FNGOML suggests that the state is so weak that its institutions would fail at the hands of foreign non governmental organization without a constant police presence and surveillance apparatus. In effect, the FNGOML views the messages and activities of foreign civil society as inherently threatening. That threat might be surmised from the idea that every such incursion highlights the failures of the state apparatus to manage its own problems. The greater the number and scope of activity of foreign NGOs, the greater the indictment of the failures of the state apparatus. Again, this requires a firm belief that any activity by outsiders is strong evidence of the weaknesses and failures of the state, and of the political system on the leadership of which the state functions. But such a view goes against the basic line of the CCP. It suggests the sort of paranoia that has tended to ultimately create the weaknesses that are most feared. There is a very small space between the worst implications of the FNGOML and the isolationism of the Japanese Closed Country Edit of 1635 (e.g. here).
6. The FNGOML establishes a base line that can be used against China as it seeks to enhance its Go Out policies. More importantly it may serve to substantially weaken its ability to fulfill the CCP'0s mandate of moving China to a more prominent role in global affairs. (e.g., "We call for promoting equality, mutual trust, inclusiveness, mutual learning and mutually beneficial cooperation in international relations and making joint efforts to uphold international fairness and justice." Hu Jingtao, Report to the 18th Party Congress). That is especially the case where China seeks to send out its NGOs into a global societal and political space while ensuring that global NGOs have no or vastly restricted access to its own territories. Chinese NGOs may well be treated as political organizations seeking to inject Chinese power into the societies of developing and developed states in a way that would require substantial surveillance or suppression. Consider that as recently as 2013 it was suggested that there might be space for Chinese engagement in global civil society:
"China could learn from countries like Japan, which is forming a new model combining government, enterprise and NGOs to offer foreign aid. It should intensify cooperation and partnership of overseas Chinese companies with NGOs and introduce NGOs' services to help fulfill the social responsibilities of enterprises and establish a positive image." (Bi Shihong, NGOs offer valuable chance for popular engagement in Myanmar, Global Times, 28 Aug. 2013)But these opportunities may fail as global NGOs become as wary of Chinese participation as Chinese authorities appear to be wary of global NGO activity in China, even activity already regulated according to law. That would add to rather than reduce Chinese isolation in global civil society and make it harder to China to effectively participate in the production of global norms that ultimately will have an effect within China and to Chinese interests abroad,. In effect, the stronger the NGO barrier the weaker China's position in the world. Global civil society is already appearing to gear up for such campaigns (see, e.g., here). What appears to be strength will produce weakness.
7. But what has the FNGOML actually undertaken? Shorn of the symbolism and the overtones--the message the law itself might send to internal and external constituencies--the great bulk of the FNGOML is administratively unproblematical. What does FNGOML do? It quite unremarkably seeks to manage the activities of foreigners who undertake activities in China in the form of NGOs. It seeks to ensure that foreign activities within China serve the state as its government determines and it serves as a bulwark against the use of these NGOs to serve, in disguise, the interests of foreign states. This later point is not to be underestimated--consider the contemporaneous use of NGOs and social media by Russia to aggressively intervene in the affairs of the European Union and especially its Baltic Member States (see, e.g., here, here, here, and here). It limits and frames that engagement within those activities that China finds useful to its and in accord with its public policy. FNGOML prohibits any number of activities that Chinese authorities find incompatible with its political system and political values. It is cautious about NGOs that are funded by and operated around foreign state actors. And, indeed, China and other states should be sensitive to the way in which even the most innocuous of foreign NGO interventions, backed by funds or the ideologies of foreign states, can have deeply political and potentially destabilizing effects. Cuba's aid to Venezuela, for example, combined the most innocuous sort of aid--the provision of doctors and other medical aid--with political consciousness raising and organization (see, e.g., here and here). And it provides mechanisms for the indigenization of these efforts by foreign NGO elements--tying them more energetically to indigenous organizations, themselves now regulated either as charities or elsewhere. It does add substantial burdens to these efforts, and it makes compliance both more precise and in the case of some ambiguities in the law, may vest an unwarranted amount of discretion in administrative officials. But none of this falls beyond the legislative practices of China, at least as evidenced over the last 30 years. As an administrative mechanism--as a feat of technical approaches to the management of a policy issue--the FNGOML should not raise particular issues--though it is fair to criticize the measure as failing to adequately move forward the project of socialist modernization because better alternatives could have been pursued.
What, then, about the FNGOML warrants a reaction that even in the guise of this essay runs several thousand words? The answer is embedded in the symbolic rather than administrative elements of the statute. And the symbolic is quite potent in this case. First, the detachment of foreign NGOs and the statutory social treatment as something apart form other NGOs. Second, the migration of NGO oversight to the security services. Third, the development of a more intense administrative structure that injects approvals and reviews by administrative personnel. Taken together, and in the context of China, the symbolic creation of a barrier becomes unavoidable--at least to outsiders. That sense of symbolic barriers may augment the otherwise benign effects of the statute, transforming it into something else, something more problematic. It is possible for the state to see in ts FNGOML an effort to regularize and make coherent a policy of opening up and of welcoming foreign elements into its great communist experiment. But it is also possible to see the symbolism in an altogether different light, not welcoming but one of segregation, surveillance ans suspicion. And this symbolism then feeds into other and quite deep streams of symbolic thinking about China--the legitimacy of its system, the confidence of the CCP in the robustness of its system, the fear of the effects of direct contact with foreigners on the masses served by foreign NGOs, and ultimately of a distrust of foreigners who may either represent the potential for interference by foreign states (raising the old horrors of the pre 1949 period of impeded sovereignty) or the vanguard of an internationalist element whose agendas are at best incompatible with those of the CCP.
And it is here that the symbolic effects of policy in the United States and China appear to converge in their pursuit of internal controls that at first blush appear quite different. That convergence works this way: Just as the West fears that its society, politics and culture could not survive the waves of physical migration that have accelerated from developing states in Central America, Africa and Asia, it appears that China fears for its society, politics and culture when they come in contact with non governmental organization that are not Chinese. For the West the fear is physical and is bound up in their inability to absorb and assimilate individuals. That, in turn, is a function of the increasing weakness of the confidence of the West in their own institutions, cultures, politics and society. That, in turn, produces an unwillingness to assimilate into common elements of communal principles while at the same time increasingly willing to enforce strict suppression of communication in the societal sphere and especially in its post secondary educational institutions--the incubator of social experimentation in the West (see, e.g., here). For China, the question revolves around more intangible elements. They center on the confidence of the state and CCP authorities in their own system and in their own ability to enhance that confidence in the strength and soundness of a social and economic system that has brought substantial stability and prosperity to a nation that for over a century saw little prospect of either. In this sense the United States and China suffer the same lack of confidence expressed in different ways. For the United States the fear is expressed in the bodies of migrants; for the Chinese it is expressed in the power of ideas. Each state has the power to resist threats to its integrity, and each ought to use it in the service of their systems. But each might be mindful of the powerful symbolic effect of the measures undertaken--for actions that appear to evidence the great strength of a state may actually underline its lack of confidence in itself, and thus also expose its weakness. And in that lies the tragedy of barriers the conception and implementation of which might have benefited by greater fidelity to the founding ideologies of each of these states.