Thursday, May 05, 2016

Flora Sapio on China's New Foreign NGO Management Law: A Start at Commentary and Analysis

(Pix provided by Flora Sapio 2016)
"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." 
So writes Mark Sidel in, "It Just Got Harder to Make a Difference in China," an article for Foreign Policy 29 April 2016. This nicely summarizes much of the reaction outside of China to the 28 April 2016 enactment of the Foreign NGO Management Law (FNGOML) [中华人民共和国境外非政府组织管理法(草案)]. (See also Shawn Shieh,  Overseas NGO Law FAQs, NGOs in China 1 May 2016; 中国立法授权公安部门管理境外NGO).

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, "Legislations 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
3. Larry Catá Backer on the FNGOML.

This post includes Flora Sapio's comment, ""On China's Foreign NGOs Management Law."

On China's Foreign NGOs Management Law
Flora Sapio

In the past twelve months or so on several occasions Professor Larry Catà Backer has advanced the argument that the Foreign NGOs Management Law will place the People's Republic of China on the “receiving end of the regulatory stick”.

The argument holds that, by introducing a more or less artificial separation between foreign-funded and domestic-funded NGOs, China is not only yielding to a global trend that sees increasing restrictions being placed on civil society organizations. What is worse, the country is closing itself up, and missing a unique opportunity to shape emerging international norms on civil society organizations. I will not go into the specifics of the argument: interested readers are encouraged to read this post from beginning to end, analyze and evaluate the argument on its own merits.

The goal of this comment on the Foreign NGO Management Law is to put forward the point of view that the Law displays some elements of coherence with the prevailing consensus on what NGOs are. This is an extremely important point because, if it were confirmed that the Foreign NGOs Management Law was in line not only with the CCP Constitution and the PRC Constitution, but also with the consensus emerging at the United Nations, then such an “alignment” would truly be of unprecedented significance. It would signal that China is not a “rogue elephant” but a responsible international actor. As a responsible international actor, China would then already be playing an increasingly important role in the making of global norms. Our missing this development would testify to the inadequacies of our epistemologies and methodologies, with all the consenquences these inadequacies may entail. The question of whether we, rather than China, are “closing ourselves up” and missing our opportunities to contribute to the discussion on how international norms on civil society organizations ought to be would then have to be answered in the affirmative.

The role of NGOs in the making of international law and of soft law is, to many China scholars and perhaps also practitioners versed in the subtleties of China's politics and society, somewhat puzzling. Traditionally, international law has been understood as an emanation of the “will” of national states, rather than non-state actors such as NGOs. While NGOs have played a fundamental role in monitoring and measuring states' compliace with their international obligations, their role as promoters of moral norms and makers of 'quasi-binding' norms has been either completely overlooked or downplayed. At least by China specialists. The idea that this role can be played not only by “Western NGOs” but by China's NGOs as well may therefore be difficult to conceive. Yet, I believe that the Foreign NGOs Management Law is already enabling Chinese NGOs to play a role that may soon be comparable to that of their “Western” counterparts.

What may allow China's domestic NGOs to play such a role are not the limitations the law places on the operation of foreign-funded NGOs, but the very rationale behind the Foreign NGOs Management Law. This rationale is stated by article 1 of the Law:

Article 1. This Law is drafted in order to regulate and guide activities conducted by foreign NGOs within mainland China (...). (Chinalawtranslate)

As stated by the People's Daily, “it must be observed how activities conducted in China by foreign NGOs lacked a precise legal basis” (也要看到,境外非政府组织在华开展活动的过程中,由于缺乏一部法律的明确规定). It is difficult to disagree with the point, indirectly made also by academic commentators, that until the end of April China's legislative framework on NGOs was scattered, incomplete, and incoherent at best. The Foreign NGOs Management Law has a very simple goal: that foreign-funded NGOs be formally constituted, and be brought inside of the law. This requirement is not exclusive to foreign-funded NGOs, but applies also to all the typologies of no profit organizations that exist under Chinese law: charities, foundations, social organizations and so on. (see here for an overview of these entities).

While the restrictions and the distinguos introduced by the Foreign NGOs Managment Law can be disputed, the broader point that NGOs are formally constituted organization is a point on which an international consensus exists.

In a Note dated 12 August 2002, the then UN Secretary-General Kofi Annan observed that:

On the issue of the definition of CSOs, members of United Nations System Chief Executives Board for Coordination do not subscribe to a definition that differentiates NGOs and CSOs as two separate categories. Most organizations of the system consider NGOs as part of CSOs as, for example, implied in a definition used by the Food and Agriculture Organization of the United Nations (FAO). In its document entitled “FAO policy and strategy for cooperation with NGOs and other civil society organizations”, it stated that the United Nations system’s definition of NGOs was broad: all not-forprofit actors were not governmental or intergovernmental; the expansion and diversification of that sector and of its relations with the United Nations, however, was being accompanied by an evolution in terminology. According to FAO, “NGO” now tended to be reserved for formally constituted organizations, which often did not represent sectors of the population but provided services and/or mobilized public opinion in areas of relevance to the United Nations system; the term “civil society” referred to the sphere in which citizens and social movements organized themselves around objectives, constituencies and thematic interests; “civil society organizations” included NGOs and popular organizations — formal and informal — as well as other categories such as the mass media, local authorities, business leaders and the research community; and the term “non-state actors” was even more comprehensive, also including for-profit businesses. The above reflects a definition adopted by most of the organizations of the United Nations system.
While “civil society organizations” is a broad term that includes groups of citizens that may be formed and exist outside of a state's legal framework, a necessary feature of NGOs is their existence inside of the legal framework of the state where they operate. In mandating that NGOs be formally constituted, the Foreign NGOs Management Law reinstates a point Kofi Annan made fourteen years ago already.

While it may be argued that Chinese civil society organizations must abide by the mass line, this requirement has not been imposed on foreign-funded NGOs. The Foreign NGOs Management Law does not require foreign-funded NGOs to “represent sectors of the population” according to the political representation mechanisms available in China's political system. It merely poses a much more generic requirement to “abide by Chinese Law” and to refrain from violating norms of jus cogens, the public interest, or the lawful rights and interests of citizens, legal persons and other organizations (Art. 5).

The lawful rights and interests of citizens, legal persons, and other organizations can be understood as including all those rights recognized under Chinese law. These rights have been extended to foreign NGOs (art. 4), for the first time since 1949. Therefore, it can be argued that foreign NGOs now also have positive and negative human rights duties (Art. 5), which are entirely coherent with the mission and values that inspire their work.

Of course, the differences between the context of the UN and China are many. The environment of the UN is given by a complex networks of agencies that interact with civil society organizations. The needs of these agencies are not autonomous. They are determined by the needs of stakeholders, and/or by crises, situations and circumstances that exist “on the ground”. These crises, circumstances and situations can be highly specific, contingent, and unforeseeable. Because of this reason, in mentioning what NGOs are, Kofi Annan cited the FAO, but at the same time he referred to “most organizations” of the UN system. The mechanisms that regulate interaction between UN agencies, CSOs and NGOs are multiple. They are developed internally, and they are tailored to the unforeseeable and changing needs of agencies and stakeholders. In other words, no single standard that governs interaction between UN agencies (or other international donors) and CSOs exists. This does not mean that the UN (or other international donors) are adopting a relativist approach to development cooperation. It rather means that meeting universal goals and ideals requires sensitivity and attention to the concrete needs of beneficiaries and stakeholders. As these needs are highly diversified, the adoption of a highly nuanced approach to interaction with CSOs and NGOs is entirely normal. A fundamental question would be whether it is legitimate, for national states, to adopt a similarly specific approach to shape their interaction with NGOs.

That a domestic legislation placing restrictions on foreign-funded NGOs can display some elements of coherence with the practices followed by the UN and other international donors is only a seeming contradiction. The Foreign NGOs Management Law, after all, has adopted the crucial distinction between NGOs and CSOs. If China regulates NGOs, CSOs are not regulated. For the moment, civil society organizations other than foundations, charities, foreign-funded NGOs, and social organizations continue to exist outside of China's legal framework. Such an existence outside of the law, with all the pros and the contras that existing outside of the law entails, is nonetheless coherent with how CSOs are conceived of both by supranational organizations and Western no profit organizations.

The acceptance of such a fundamental distinction is not yet sufficient to allow China to shape international norms on civil society. Other mechanisms exist, in the Foreign NGOs Management Law, that could speed up this trend. These mechanisms are for the most part set by Chapter 1 of thelaw.

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