Flora Sapio on "The Foreign NGOs Management Law; Where do challenges Come From?"

Globalization has produced a number of challenges for the nation-state.  Among the most difficult  involves its relationship to civil society.  Where once civil society could be understood as a national exercise in conversations between a government apparatus and its people, the internationalization of politic, the globalization of interest communities, and the interconnections of institutions and groups across national lines has complicated that once simple two way conversation. Internationalization is not per se difficult when it joins individuals across the globe.  For many states, however, matters become more complex when foreign states seek to fund or direct efforts by civil society in other states.  These interventions, sometimes benign, can also project foreign interests into a conversation between a people and their state organs that are at the heart of the legitimacy of a national political system.  I have written to this point elsewhere (here). 

China is no stranger to these issues.  It has responded, in part, with a draft Foreign NGO Management Law that has elicited wide comment (see, e.g., here, here, here, here, and here).  The Chinese Foreign NGO Management Law has not yet been adopted.

Flora Sapio, one of the finest scholars of China in the West, and whose book, Sovereign Power and the Law in China is a must read, has produced a commentary on the Draft Foreign NGO Management Law as well, The Foreign NGOs Management Law; Where do challenges come from?, which follows.  It is highly recommended for anyone interested both in the substance of the issues raised by this Draft Law and more broadly in engagement with China.

 

The Foreign NGOs Management Law; Where do challenges come from? 

Flora Sapio

Browsing through electronic newspapers, one notices how discussions of the Foreign NGO Management Law ('NGO Law') centre on the limitations the law will pose to the activities of foreign NGOs in China....is it possible no one has thought about the opportunities the NGO Law will create?

After all, Minister of Public Security Guo Shengkun has made statements to the effect the country welcomes the development of foreign NGOs therefore, part of the legislative intent behind the NGO Law 'must be creating more favorable conditions for exchanges and cooperation. There is no inherent reason why these and similar statements should be taken as insincere, unless a convincing proof of their insincerity can be provided.

A focus on the limitations introduced by the NGO law not only ignores how similar limitations exist in the legislation of Western countries. More importantly, this narrative casts certain states in the role of metaphorical adversaries who oppose international NGOs, and plot against them. The role of a 'metaphorical adversary' – where the theological resonances of this role are thinly veiled at best - is a role dense with negative connotations. Of all the archetypes that exist, and subtly influence the way in which we see the world around us, which one - if not the archetype of 'The Adversary' - is the most powerful? Using this archetype, and all those modelled after it to talk about states and persons, offers only two possibilities to those who are labelled as 'The Adversary'.

The first possibility is refusing to play this role, and convert oneself to the 'Western' governance of NGOs. The 'Western' governance of NGOs places a much necessary emphasis on the prevention of the risks associated to terrorism, trafficking, money laundering, and transnational crime in general. There is no reason why China, Russia, or any other country should be blamed for trying to reduce the very same risks we wish to avoid. Global problems require global solutions, and legislation that limits the activities of any organization that might play a role – direct or indirect – in any form of domestic or transnational crime should be welcomed. In this sense, introducing a stricter measure of control on the activities of NGOs is entirely normal.

Any criticism of such legislation can only have the effect of denying China's efforts to find some common ground with 'the West'. A refusal to acknowledge the steps China, and Russia, Iran, Turkey and other countries are making to harmonize their respective legislation with 'Western' standards does not mean that the process of harmonization will stop. It rather means that, even though China has constantly been refusing to play the role of 'The Adversary', if 'the West' will be continue to push China onto the stage, one day China may perhaps choose to don a metaphorical horned cap, with all the implications this choice may have. This is the second possibility.

Such are the effects of basing narratives on deeply-ingrained figures, archetypes, and mechanisms. I have written about these effects in the context of some of China's intellectuals embrace of Carl Schmitt, and his idea of katechon. The ideas of katechon and 'The Adversary', as they have been embraced by some Chinese intellectuals, have a “destructive potential” indeed. The destructive potential of these ideas is not limited to those Chinese intellectuals who look at the world through Schmitt-colored glasses. Do we, 'the West', have antibodies against the ideas of katechon and 'The Adversary'?

My ideas on the narrative about NGOs should not be read as meaning that the NGO Law, and the Charity Law, do not pose challenges. The NGO Law does pose challenges. These challenges, however, do not exist in connection to the European Union, Australia, and the United States. They pertain to China, as China is the country where the NGO Law will be enforced. The challenges posed by the NGO Law do not arise from ideology – ideology plays a limited role in both the NGO Law and the Charity Law, given how both drafts rely on a variety of local experiments, and foreign legal models.

Challenges arise from the choice of a reactive legislative approach, one that has been shaped by experiences, theories, and models which are valuable, yet of limited guidance for the future. These experiences, theories, and models are in part domestic. For the remaining part, they relate to the revival of civil society that occurred in the late 1970s, in Western Europe at least. The context where such revival occurred displayed some very specific features. The consensus goes that in the second half of the XIX Century there existed well delimited boundaries between the state, society, and the market. These boundaries were absent at earlier stages of the history of civil society organizations. Perhaps the Italian Renaissance, and civil society in the Papal States, provide the best examples. It is well-known how in the Papal States no clear separation existed between temporal power; religious power; the economic system; society, and those organizations established by nobles and merchants. The introduction of a neat conceptual separation between state, society, and the market is a legacy of the early modern state. Today, we consider the modern nation-state as the most natural form of social organization and, therefore, the mutual autonomy of state, society, and market is one of our main points of intellectual reference.

The revival of civil society organizations has introduced an element of confusion, and it has blurred these boundaries, highlighting how all components of society are both autonomous and interdependent. Civil society organizations do not entirely belong to the state – they do not play the same role as the government. They do not belong to the market – their rationale is not profit-making, but social entrepreneurship. They do not belong to society – but to social entrepreneurs. At the same time, civil society organizations partake of each one of these domains. They fulfil goals set by the state, and in this sense they contribute to the governmental function. Civil society organizations operate in accordance with the market mechanism, therefore they belong in part to the market. They are composed by ordinary members of the public who respond to social problems, and so they are part of society. There is an additional layer of complexity, given by the transnational dimension of NGOs. This dimension is even more difficult to understand, as it blurs the boundary we are the most familiar with – the physical boundary between states.

The challenge for China's legislators is making sense of such complexity, and governing it by means of the most appropriate legal definitions, and categories. Ideally, legislators should construct definitions and categories that can reflect each one of dimensions I have just sketched out. Only in this way can civil society organizations be captured under the law.

This is not an easy task. Western theories on civil society organizations still conceive of NGOs as being distinct from the realm of state-society-market and as being a sort of trait-d'union between them. In reality, NGOs may be much closer to an unusual mix of 'bureaucracy-market-society', active at both the transnational and domestic levels but, this is not how our theories conceive of the non-profit sector.

The original nucleus of Chinese theories on civil society organizations was created before the policy of reform and opening up (gaige kaifang), at a time when organizations other than the state were conceived as mere transmission belts. The revival of Chinese theories, under the guise of 'social management innovation', has drawn heavily on Western studies. Alongside the strengths of Western theories, China has imported their crucial flaws and weaknesses. The same observation is true of the import of legal models. In many different Western contexts, legislation on NGOs maintains a distinction between domestic and foreign legal persons, and so do non-Western legal models, as the Russian legal model, the Israeli model and others.

All models, domestic and foreign, theoretical and legal, have been built around the idea of 'division' or 'boundary'. A division between state and its opposite, society and 'non-society', market and 'anti-market', domestic and foreign. Given how available models are premised on dichotomies, it is difficult to understand how China could have used these models without introducing, in its legislation, the very same dichotomies on which this models are premised. A possible solution could have been drawing on the country's rich intellectual tradition, to use what could be fashionably called a 'holistic' approach to law-making. Yet, for some reason, such an approach could not be adopted.

And so, according to the current legislative framework, all typologies of NGOs have been classified under the categories of 'foreign', and 'domestic'. The former are “not-for-profit, non-governmental organizations established outside mainland China.” (Article 2), the latter are non-profit, voluntary organizations established inside of the national territory. Article 2 has been understood by most Western commentators as referring to 'Western' NGOs, that is NGOs established outside of China by Western citizens, even though the definition of 'foreign' NGOs is much broader, and includes NGOs established in Russia, Iran, Vietnam, Cambodia, and in the African Continent.

The fundamental question is whether the NGO law has the potential to address a number of social dynamics as these are already emerging now, and as they will even more forcefully emerge in a very near future. This question can only be answered by turning our gaze away from the law, to look at NGOs as they exist in practice. Once one looks at practice, it becomes clear how the NGO Law is unable to deal with the following hypothetical cases:

a) a charitable foundation established by Chinese nationals in Africa, wishing to sponsor a Master in Business Administration targeted to African students, and taught at Tsinghua University. We will call this foundation the “China-Africa Friendship Trust”.

Under the NGO Law, the China-Africa Friendship Trust would to all effects be a 'foreign' NGO, because it was formed in Africa. Given the wording of article 2, no reading of this article would allow to make an exception in favor of the Trust. Foreign NGOs are “not-for-profit, non-governmental organizations established outside of mainland China”. That the assets of the Trust were contributed by Chinese nationals, or that the entire staff of the Trust, included its volunteers, were Chinese citizens would matter little. Under the NGO Law, the Trust is and remains a foreign legal person, who cannot raise funds or receive donations in China, cannot create a local branch in Beijing, and must periodically renew its registration.

b) a charitable organization established by Chinese expatriates and Vietnamese citizens in Ho Chi Minh City, with the goal to shelter women and children who have been abducted and trafficked, with local branches in Myanmar, and Cambodia.

Under the NGO Law, this organization would not be allowed to create a branch in Kunming, it would not be allowed to cooperate with the Chinese police in identifying suspected traffickers, and it would not be allowed to receive donations in kind from Chinese citizens. Despite the fact half of its members are Chinese, the NGO would count as foreign because of the simple reason it was established in Ho Chi Minh City rather than in Kunming.

A distinction between 'foreign' and 'domestic' may be easily made in the law but, practice proves how in the real world such a thing as a purely 'foreign' or a purely 'domestic' NGO no longer exists.