WUNRN
WHAT WOULD THIS INCREASED RESTRICTION LAW MEAN FOR WOMEN’S NGO’S IN CHINA, AND FOR THE
POSSIBILITIES FOR WOMEN’S & HUMAN RIGHTS INTERNATIONAL NGO’S TO ENGAGE IN ACTIVITIES IN CHINA?
CHINA – DRAFT LAW ON FOREIGN NGO ACTIVITY WOULD UNDERMINE CHINESE CIVIL SOCIETY & INTERNATIONAL NGO ENGAGEMENT – WOMEN
On May 5, 2015, the Chinese government
released for public comment the Foreign/
Overseas Non-Governmental Organizations Management Law of the People’s Republic
of China (Draft) (Second Review Draft) (《境外非政府组织管理法(草案二次审议稿)全文》”FNGO draft law”). If enacted and implemented in its
current form, both Chinese civil society and international engagement with
it will be considerably degraded. The stated purpose of the FNGO draft law is
to “standardize and guide the activities carried out by foreign NGOs within
China, protect their lawful rights and interests, and promote exchange and
cooperation” (Art. 1). However, the draft law would require foreign NGOs to
accept a high level of state oversight and control over all their activities by
public security authorities and Chinese professional supervisory units. The
proposed regime threatens to harm China’s interests by cutting off significant
resources, expertise, and civil society support necessary to address the
complex environmental, social, and development challenges facing the country.
The draft law further undermines China’s efforts to be perceived as a
constructive and participatory member of the international community.
The spirit and substantive provisions of the
draft are consistent with the intensifying trend of broadened crackdowns on
domestic civil society since President Xi Jinping assumed power in 2013.
As numerous China law experts and commentators have pointed out, elements of
the proposed law create serious obstacles for a functioning civil society and
impede future engagement by foreign NGOs in China.[1] For instance, the lack of clarity of key terms (e.g.,
what constitutes a “foreign NGO,” and what “activities” fall within the law’s
purview) fails to provide guidance to enforcement authorities, leaving the law
vulnerable to corrupt or politicized implementation. The vesting of broad
supervisory power in the public security departments under China’s State
Council, as opposed to the Ministry of Civil Affairs which oversees domestic
NGOs, further sends a chilling message and opens the way for abuse and criminalization
of activities deemed unacceptable by the authorities.
Beyond these domestic considerations, the
FNGO draft law violates China’s human rights obligations by flouting
international standards related to freedom of association, including access
to resources, the prohibition against restrictive and discriminatory regulatory
regimes, and the creation of an enabling environment for civil society. As
a sitting member of the Human Rights Council and an active participant in
international human rights mechanisms and processes, China should be exercising
leadership.[2] Instead, the proposed law would not only blatantly
disregard China’s own obligations, but also contribute to eroding standards
around civil society. To uphold China’s commitments, a revised FNGO draft law
should reflect greater coherence with and respect for these international
standards.
China’s International Obligations
As a signatory to the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW),[3] and as a UN member state,[4] China is obligated to ensure freedom of association[5] for its citizens. The Special Rapporteur on the
situation of human rights defenders has stated that "[a]ccess to funding,
the ability of human rights organizations to solicit, receive and use funding,
is an inherent element of the right to freedom of association."[6] The Special Rapporteur on the rights to freedom of
peaceful assembly and of association has further stated that governments must
“avoid measures that disproportionately target or burden civil society
organizations, such as imposing onerous vetting rules, procedures or other
CSO-specific requirements not applied to the corporate sector writ large
[emphasis added].”[7]
In addition to these standards regarding the
right to freedom of association, the Human Rights Council passed a resolution
in 2014 aimed at supporting an enabling environment for civil society.
The resolution expressed concern regarding regulation efforts similar to the
FNGO draft law, noting that, “in some instances, domestic legal and
administrative provisions, such as national security and counter-terrorism
legislation, and other measures such as provisions on funding to civil society,
have sought to or have been misused to hinder the work and endanger the safety
of civil society in a manner contrary to international law[.]” In light of
this, the resolution called upon “States to ensure that provisions on
funding to civil society actors are in compliance with their
international human rights obligations and commitments and are not misused
to hinder the work or endanger the safety of civil society actors, and
underline[d] the importance of the ability to solicit, receive and utilize
resources for their work [emphasis added].”[8]
The FNGO draft law clearly contravenes these
standards by (1) placing burdensome restrictions on civil society’s access to
funding, (2) targeting the NGO sector in a discriminatory manner, and (3)
exposing civil society to harm under the banner of national security. These
issues are discussed in greater detail below.
Restrictions on access to funding
Though the draft law formally regulates
foreign NGOs, its provisions will result in restrictions on domestic civil
society groups’ access to resources in two important ways.
First, the draft law would restrict the
number of FNGOs able to register and therefore legally support Chinese civil
society organizations. Second, the provisions in the draft in effect limit the
domestic individuals and groups registered FNGOs may work with or provide
funding to.
As noted by experts of varied backgrounds in
the resources provided to the right, under the draft provisions, international
support for and cooperation with Chinese civil society would be limited to
groups that are approved by the authorities (Arts. 6-7) and both willing and
able to adhere to the substantial registration (Arts. 10-20) and reporting,
banking, accounting, and staff hiring requirements (see Arts. 23-38).
Even groups that are willing to comply with
these considerable requirements and have activities that are permissible under
the draft law may nonetheless be unable to secure the sponsoring supervisory
units necessary for registration (Art. 11). This is because professional units
eligible to serve this function have no clear incentive to assume
responsibility for overseas organizations. Also, as a practical matter, the
onerous monitoring responsibilities imposed by the draft law may limit the
number of overseas organizations they can feasibly supervise.
In addition to these challenging registration
requirements, once registered, FNGOs can only hire personnel on the mainland
that have been processed by an officially designated local unit (Art. 32) and
must submit annual activity plans for inspection and approval by their
supervisory units and public security authorities (Art. 24).
In aggregate, these provisions threaten to
cut independent Chinese NGOs off from financial resources entirely and could
dramatically reduce the resources available even to state-sanctioned groups.
Discriminatory targeting of NGOs
In addition to reducing access to funding,
the FNGO draft law places higher burdens on foreign NGOs than on foreign
businesses. For example, while Article 1 states that the purpose is to protect
the rights and interests of foreign NGOS, Article 13 states that the FNGO
representative office does not have the status of a legal person. Therefore,
unlike business corporations that do have legal status and limited legal
liability, the chief representative and staff may be exposed to personal
liability. Under the international standards outlined above, this constitutes
impermissible discrimination against the civil society sector.
Many NGOs come to China specifically to help
deal with the inequalities, and social and environment impacts created by
unsustainable development policies and practices. By discriminating against
this sector, the draft law would curtail activities that are not only lawful,
but necessary to solving China’s complex problems.
Exposure to misuse by public security
authorities
Lastly, the current oversight authority,
monitoring powers, and vague prohibitions present in the FNGO draft law open
the way for its misuse in the name of national security and public order. As
noted above, the draft law vests oversight authority in the public security
departments of the State Council and provincial-level public security
authorities (Arts. 7, 45-47). Given that domestic NGOs are regulated by the
Ministry of Civil Affairs, the oversight structure of the FNGO draft law
suggests that this regulation is considered a national security measure
directly supervised by public security departments. This security
characterization is concerning given the weakened procedural protections and
transparency in cases related to national security.
This concern is exacerbated by provisions in
the draft law that grant public security authorities the power to enter the
property of registered NGOs to conduct on-site investigations, question staff,
seize property, and copy documents, seemingly without any associated criminal
procedural requirements (Art. 49). The law furthermore permits authorities to
detain NGO staff for up to 15 days where violations do not constitute a
criminal offense (Art. 59).
These powers can be invoked in a range of
circumstances echoing concerns of national security and public order. For
instance, NGOs are prohibited from endangering China’s “national unity,”
“ethnic cohesion,” or “public order and morality” (Art. 5). More specific
sanctions follow when FNGO conduct is seen as encouraging resistance to state
law, promoting “rumors” damaging to state interest, gathering state secrets, or
any number of other circumstances that are damaging to the state or public
interest (Art. 59).
While national security and public order are
legitimate state interests, as demonstrated by the Human Rights Council’s 2014
resolution mentioned above, regulations seeking to advance these aims must be
drafted so as to avoid harm resulting from the misuse of vague or overbroad
provisions. As currently formulated, the FNGO draft law fails to meet this
requirement.
HRIC Suggestions for Revisions to the Draft
Law
To meet China’s international obligations, the
current draft law should be revised to:
·
Clarify the definition
of FNGO, nature of the activities that are covered, and criteria by
which applicant organizations will be evaluated;
·
Create a registration
regime of notification rather than approval, and remove onerous
requirements such as sponsorship and intrusive monitoring of project activities
and finances;[9]
·
Ensure that formal
and informal associations can seek, receive and use funding and other resources,
whether domestic, foreign, or international, without prior authorization or
other undue impediments; and
·
Ensure that oversight
of civil society regulation is consistent and appropriate for international
and domestic groups, and not placed under the authority of police or security
organs.
Finally, in order to promote greater transparency in the
legislative process, the Chinese government should make public the substance
of the comments received.
References cited on website link: http://www.hrichina.org/en/legal-resources/hric-law-note-draft-law-foreign-ngos-undermines-chinese-civil-society-and-chinas
CHINA – THE DRAFT OVERSEAS NGO MANAGEMENT/OPERATIONS LAW
MUST BE SUBSTANTIALLY REVISED
Geneva-Paris,
June 3, 2015 – The Observatory for the Protection of Human Rights defenders (a
joint programme of the World Organisation against Torture –OMCT and FIDH), is
extremely concerned about the draft Overseas NGO Management law, which is under
discussion after its second reading by the National People ’s Congress (NPC) in
April, as it would inevitably shrink the space for Chinese civil society and
severely restrict freedom of association and expression in the country.
In a context where overseas NGOs have been
unable to register in China for the past twenty years, a new draft law proposes
to restrict further the possibility for overseas NGOs to conduct activities in
China. The draft law requires “overseas NGOs ”that want to operate in China to
obtain an approval from a Chinese professional supervisory unit prior to their
registration, and bans the ones that are not registered [1] with the public security departments of
the State Council and provincial public security departments (Art. 7) from
funding any Chinese individual or organization (Arts. 5 and 6). Furthermore, it
prohibits Chinese groups from conducting “activities” on behalf of or with the
authorization of non-registered overseas NGOs, including those based in Hong Kong
and Macau (Art. 38)……..