- Good morning.
(audience chattering)
Thanks for joining us for the inaugural
Conference of the Bernstein
Institute for Human Rights.
It's great that you could all be with us.
We know more folks,
including Bob Bernstein,
will be joining us later in the day.
We've got a terrific
first panel this morning
and want to kick it off.
I'm Trevor Morrison, I'm the Dean here.
My job is simply to thank
all of you for being here,
to thank this first
terrific set of panelists
and our moderator, Professor Cohen.
Anyone who knows anything about China
knows about Jerry Cohen
and the just unparalleled
leadership position that he has held
with respect to the study of China,
advocacy for the rule of law
and human rights in China
over many decades during
my first trip to China
since taking up my current post.
I've started to think
that Jerry Cohen's name
might have been part of NYU's name
because I had about 100
conversations that went like this,
I would say, "Hi, I'm Trevor.
"I'm the Dean at NYU Law School."
They'd say, "NYU, Jerry Cohen."
(audience laughs)
They literally go together in China
and here in New York as well.
So without further ado, Jerry,
I'll turn things over to you.
- Thanks very much.
It's taken about 25 years
'til I have finally succeeded
in branding myself as NYU.
(audience laughs)
I thought yesterday's
discussion was terrific
after a wonderful film,
and it made a perfect transition
to today's important program
and we start in the
morning, focusing on China,
gender and discrimination,
problems that plague American society
and every society in one way or another.
We're lucky we have
three wonderful speakers,
each representing a
distinctive point of view.
And their view is based on participation,
not only on observation.
They are all working
in very important ways
to try to help us understand better
what's taking place in China
and how to improve the situation
in a time of general
darkness for human rights.
But gender should not be controversial,
even during a period of
political repression.
Discrimination should not be opposed
by the current leadership,
and yet we do know, as
recently as recent weeks,
that these are problems.
But I look forward to hearing
what they've got to say,
I'll make a few remarks at
some point along the way.
I only regret that when we're seated here
we're cut off from the people
who are sitting over there,
and if you wanna change
your seat at some point,
but I'll ask the speakers
to use this position
because it's easier for you
to see them and to talk.
My pleasure in introducing
my colleague Ira Belkin
is very, very great.
We were very lucky to lure him to NYU
after his, almost 10 years in Beijing.
First as the legal advisor
to the American Embassy,
and then the legal advisor and operator
for the Ford Foundation in Beijing.
He did an enormous amount to encourage
all kinds of research
programs and law reforms,
suggestions relating to
the criminal justice system especially.
And I've asked them to
speak in English today,
even though his Chinese,
I think, is even better.
(audience laughs)
Ira?
- Good morning.
Thank you, Jerry, for that
very kind introduction.
I hope many of you had a chance
to see the film yesterday afternoon,
and if you haven't, I
would highly recommend
that Jocelyn Ford's film,
"Nowhere To Call Home"
about a Tibetan woman in Beijing,
surfaces a lot of the issues
we're gonna talk about this morning.
And before I get into the
meat of my presentation,
I just want to talk about
the topic of discrimination.
On the one hand, there are aspects of it
that are very specific to every society.
Every society has its own
history, its own cultural history,
its own circumstances.
But there's also something very universal
about discrimination
and that's the feeling
of being excluded.
We've all experienced at
different times in our lives
a feeling of being excluded,
and I think we can all relate
to that feeling in other people.
And particularly if you're
excluded because of a reason
that you have no control over,
whether it's race, ethnicity,
gender, nationality,
there is an emotional
aspect to being excluded
that we can all relate to.
And I say that by way of our introduction,
because the program
I'm going to talk about
is a program that we at
the US-Asia Law Institute
have been doing with Chinese partners
on anti-discrimination law.
And so this is an area
where our circumstances
are quite different.
Circumstances in the United States,
our history of racial discrimination,
as whether other forms of
discrimination is quite different
from China's history
in China circumstances.
And yet we've, through our
program, I think managed to find
a lot of common ground.
So what I wanna talk
about today is a program
we've been working on,
working with public
interest lawyers in China
to combat discrimination,
specifically, gender
discrimination in employment.
I should make a disclaimer,
I'm neither a labor law expert
or discrimination law expert.
I came to this topic, as Jerry said,
I worked for the Ford Foundation
in Beijing for five years,
and part of our program was to support
the growth of public
interest lawyers in China.
The theory being that to
promote the rule of law,
you have to support
people who can use the law
to solve problems.
And in China, as we'll get into,
the anti-discrimination law
on the books is actually quite good.
The problem has been in the enforcement.
I'm gonna see if I can
figure out how to work this.
(chuckles)
I should acknowledge the
assistance of my colleague,
Liu Chao, in putting this
presentation together.
Liu Chao's also been responsible for,
along with Melissa Lefkowitz,
for organizing this program.
So first, let's talk
about the problem in China
with gender discrimination.
Although the law in the
books is quite clear
that gender discrimination
and employment based on gender
is prohibited, it's a
serious social problem.
And there have been some
surveys done on this issue
which I've summarized in this slide.
One of our Chinese partners, in 2011,
did a survey of just advertisements
for civil service employment
and found a high percentage
of advertisements in the
government for men only
for certain positions.
In the private sector,
the problem is much worse.
The other two surveys were
done just of women applicants
for jobs, as well as employers.
And it's quite common in
China to see advertisements
for jobs that specify "Men only,"
or that specify other
physical characteristics,
only people above a certain height,
only people who are attractive,
all sorts of requirements
that we would find unusual
in 2015, in the United States.
But as I said, the law on the
books in China is quite good,
starting with the Constitution.
The Chinese Constitution
guarantees equal treatment,
and specifically, has
provisions guaranteeing
equal treatment for women.
There are other provisions
in the Constitution
that also require equal
treatment for people
of national minorities,
freedom of religion,
but those of us who study Chinese law
know the Chinese Constitution
is not a self-executing document.
Lawyers cannot cite the
Constitution in court cases,
and courts cannot use the Constitution
as a basis for decision.
So the Chinese Constitution
has these principles,
but they're not directly enforceable
and Chinese Constitutional law scholars
will say you need implementing legislation
in order for the Constitutional
provisions to be active.
And when it comes to
employment discrimination,
there are specific statutes
that prohibit discrimination
based on gender, ethnicity,
religion and also disability.
So the statutes that the
National People's Congress
has passed are quite good.
This is just a sample of two provisions
of the employment promotion law.
So when it comes to, again, the principle
of non-discrimination and
equality for Constitutional
and the law are pretty good,
but the reality, the law in
practice is quite different.
There are some gender restrictions
as noted in civil service recruitment.
There are many job ads that exclude women,
exclude female applicants.
China actually has
quite generous pregnancy
and maternity benefits,
in that sense actually,
China's benefits for families
are much much better than ours,
but they create a perverse incentive
and make it, create an
incentive for employers
not to hire women of childbearing age.
And this is a, it's a real life problem,
especially for small
businesses, small organizations,
even some of the small
NGOs that I've worked with
who say they'd like to hire women,
but gee, if they hire
women just out of school
and then they become pregnant,
they're gonna have to pay their salaries
while they're on maternity leave.
They're gonna have to
pay all these benefits
and not get the benefit of their work.
So, this is a kind of
paternalistic legislation
that's gender based,
that then creates a
disincentive to hire women.
And the next point,
it's been a real problem
in using litigation to enforce
the statutes I just mentioned.
Chinese courts, unlike our
courts where you can pay
a filing fee and file your case
and wait for the other side
to file a motion to dismiss,
Chinese courts have a
initial review process,
where the court itself will decide whether
or not to accept your case.
And Chinese lawyers have
had a difficult time
getting courts to accept cases
where the cause of action
is employment discrimination
based on gender.
And we'll talk, in a
minute, about two cases
that we dealt with.
Although the laws are quite good,
getting in the courthouse door
has been quite challenging.
Plaintiffs are also
afraid to come forward.
Women who have experienced
discrimination are afraid
that if they bring a lawsuit,
that this will somehow affect
their future job prospects.
And in the few cases
that have gone to court,
the damages that have been
awarded are quite small.
So there's a general
sense that discrimination
is quite common and also quite accepted.
Now some of the efforts
to battle discrimination
include administrative litigation.
In China, administrative
agencies are charged
with the responsibility
of enforcing China's laws,
and if they fail to do
so, citizens can bring
administrative actions to get the agencies
to enforce the law.
That has not been a terribly fruitful path
for most anti-discrimination lawyers.
I will say some lawyers,
some imaginative lawyers,
have had some success in
challenging job advertisements
under the advertising law.
Advertising law doesn't
permit illegal advertisements,
and it's illegal to
advertise a job for men only.
So in that way, lawyers
have made some small inroads
into this problem.
There's also lobbying efforts.
Although the National People's
Congress is often criticized
as being rubber stamp,
in more recent years individual delegates
of the National People's
Congress have raised legislation
and it is possible if you get enough
National People's Congress
delegates to pay attention
to an issue, you could make a difference.
But probably the most effective strategy
has been social advocacy.
And in this respect, I want to acknowledge
one of our guests here, Lu Jun,
if you could stand up for a second.
Lu Jun is the founder of a NGO in China
called your Yirenping,
which has been one of the most successful
public interest organizations
combating discrimination in China.
We'll talk a little bit more
about Yirenping's activities.
- And I'd like to introduce the mentor
of the five detained
feminists, if that's all right?
- Yeah, so in just a sec,
I should say, many of you
read in the recent weeks
about five feminists in
China who were detained
as they were about to start an activity
to publicize sexual harassment
on public transportation.
Many of those...
If you could stand up for a second.
Those women were loosely
connected with the Yirenping,
many of them trained by your Yirenping,
and we have, Lu Jun you also want
to introduce your colleague?
- The mentor of the five women.
She's lucky enough because
she came here one day
(murmurs) of the detention,
otherwise she must be the face.
(audience laughs)
- Well, we hope not, but
we're happy to have you here.
(audience laughs)
(applause)
So several people here,
including Professor Cohen,
Sharon Hom, Lu Jun and
others publicly advocated
for the release of the five women
and we were very pleased
to see only last week
that they were released
and have not been charged with the crime.
Although they're on
restrictions for a year,
they're released on bail.
Unfortunately Lu Jun's organization
Yirenping Beijing office was also raided,
but we hope that that case will
also be declined eventually.
These are some examples
of the performance art
that Lu Jun and his
organization have organized.
Anyone who has small children,
or has had small children
the last 25 years
knows the movie Mulan.
Mulan was the character,
a woman who wanted
to join the Chinese army
but had to dress like a man
in order to be accepted.
So very clever activists in
China used the Mulan character,
had women to dress up like
men and go to employment fairs
and ask the question in the 21st century,
"Do women still have to dress up like men
"to get jobs, like Mulan had to?"
These kinds of performance art activities
get a lot of media attention.
They're not really threatening,
they shouldn't be
threatening, but they brought
a lot of attention to the problem,
and this is another example.
So, in terms of litigation,
Chinese lawyers have attempted
to use litigation to
combat discrimination,
and with a mixed record of success.
So several years ago, one of
the leading Chinese experts
on anti discrimination
law, Professor Zhou Wei
from Sichuan University,
started bringing cases
challenging the
advertisements that said you
you must be above a certain
height to apply for a job.
And then he took on a case
of the hepatitis B carrier.
In China, there are, Lu Jun
tells me there are 100 million
Hepatitis B carriers, so
these are asymptomatic.
Hepatitis B can only be
transmitted through bodily fluids.
It's not a danger to co
workers, but Chinese regulations
had prohibited Hepatitis
B carriers from joining
the civil service and
from going to university.
So if you think about
it, 100 million people
who are excluded from normal
life, university education
and civil service.
So Zhou Wei brought a
case in Anhui Province
citing the Constitution,
even though as I said
that's not really
permitted under Chinese law
and also citing Chinese law.
The case was interesting.
It got nationwide attention in China.
The judge who heard the
case was very sympathetic,
even found that the civil service employer
did not have a basis to refuse employment.
The plaintiff had scored number one
in the civil service
exam, but when he went
to the required physical
examination, it was determined
that he was Hepatitis B
carrier so he was not able
to get the civil service
job he he had earned.
So the court was sympathetic but said,
"I can't force the Civil
Service Administration
"to hire this person, they've
already filled this position."
But wrote a very sympathetic
opinion and actually awarded
court costs to the plaintiff.
So public interest
lawyers, I think everywhere
are familiar with losing
cases, but using those cases
to get attention for their cause.
And this really put the
problem of discrimination
against Hepatitis B carriers
on the map and made it known
in much broader legal circles.
Lu Jun's organization, Yirenping,
took up the cause as well
and started to use litigation
and non litigation strategies
to change the law.
They provided assistance in
Hepatitis B related litigation,
they wrote open letters,
they did media interviews,
and did public interest
ads and as you saw before,
performance art.
Within a very short period
of time, about seven years,
the Ministry of Health and
the Minister of Education
changed their regulations
and eliminated testing
for Hepatitis B.
This is an amazing victory for
100 million people in China,
and every time we talk
about this, I'm just in awe
of Lu Jun and his organization,
hat they were able
to accomplish this.
So, again, this is one
of the success stories
of combating discrimination in China.
And one of the things we've
tried to do in our project
is bring together Chinese
lawyers, with American experts,
to share success stories and
challenges in cases like this.
In terms of gender discrimination,
when we started this project
there had still not been
a high profile successful
gender discrimination case.
But one of the lawyers
that worked with Lu Jun
and one of the plaintiffs,
one of the young college women
who had been at a European training
came upon an advertisement for a job
with a private training school
where the advertisement said
"Men only," and they decided
to make this a test case.
They brought the case in the
Haidian District in Beijing,
and courts are supposed
to decide whether or not
to accept the case within seven days.
Well, seven days came and went
and the court didn't decide
whether to accept the case,
and the lawyers used every
strategy they could think of
to convince the court to take the case.
They used performance art,
they used administrative cases
challenging advertisements,
they had experts,
law professors, write opinions.
And after 14 months, the court
finally accepted the case.
As soon as the court accepted the case,
the defendant offered to settle
which really just shows you
if the courthouse doors were
open for these kinds of cases,
what an impact they could have in China.
Now the court was struggling
with the issue of,
"If I find for the plaintiff,
how do I determine damages,"
with some sort of legal challenges,
and since there is not a lot
of precedent for these cases,
those challenges are understandable.
But after the court did accept the case,
the defendant offered to
settle, paid 30,000 renminbi
and wrote an apology and
offered the plaintiff a job.
In our project, we were
fortunate this case happened
a few months before our
first workshop in China,
which we held last May.
And we had faculty from NYU:
Laura Sager, Paulette Caldwell,
Cindy Estlund, Ricky Blum,
joined us, Nancy Gertner also
joined us; the idea for our
project was to bring together
people in the United States and
other countries, and lawyers
in China from different parts of China
to create a sense of community.
People working for a common cause,
who have challenges and also successes.
And the idea would be that
they could help each other
overcome some of these
difficult challenges.
And as I said before, one of
the things that was very moving
about this workshop, although people came
who were working on gender discrimination,
or Hepatitis B
discrimination, or in China,
geographic discrimination based
on household registration,
they essentially were
from different causes.
And yet they all shared the
sense of what it feels like
to be excluded.
And how can the law be
used to minimize exclusion?
We were fortunate that
one of the other lawyers
who attended the conference had a case
sometime after May, very
similar to the first case.
And my colleague Yo Chao
created an email group
to share information, and so she was able
to access experience of other lawyers
to put together the second case.
Again, it was another case
where job advertisement
was for men only.
The court was very hesitant
to accept the case,
but with the advocacy of this lawyer,
with the help of other lawyers,
she was able to convince the
court to accept the case.
And that case did not settle
but she won a court judgment.
So anyway, if you saw the film yesterday,
you might get the sense
that this is just such
an overwhelming challenge
and how can we even make
a little bit of a difference?
And our project certainly is not designed
to change everything
overnight, but in a small way
I think we're trying to
bring together people
to help each other to
overcome some of the obstacles
to combating discrimination.
Thank you.
- Very good, thank you!
(audience applauding)
You've just had an excellent overview
of what we're trying to do from here.
But now it's time to hear
about what lawyers encounter
in China, and we're very
fortunate to have Zhou Dan,
or we call him Dan Zhou.
With us, he's been a
visiting scholar at NYU.
I first met him a decade ago at Yale.
He's making a tour of
the Ivy League schools.
I think he's going to
Harvard for an LLM next year
because he seems to think maybe teaching
can magnify his impact even
more than his terrific efforts
in Shanghai to work
against discrimination.
We welcome you back.
- Thank you!
- Zhou Dan, he's a very lively speaker.
He's one of the very few people I know
who could comfortably teach
in an American law school,
even though raised in a
very different tradition.
- Thank you Jerry and it's a
huge pleasure to be back here
and thank you for having me.
Actually, I met Jerry Cohen at 2007.
It's a coincidence!
At Yale Law School at that
time, Robert Bernstein,
Human Rights fellowship
symposium in conjunction
with the (mumbles) Yale law
school, at that exact moment
I met Jerry Cohen.
So now I met him again
at NYU School of Law
and also at the branding
of Robert Bernstein.
So and also, I would like to
extend a special appreciation
to Robert Bernstein for his
and his family constant support
for human rights cause in China.
And I should say that, you
know, in 2007 at that Robert
Bernstein Fellowship symposium
at the Yale Law School
at that time, lawyer
Xu Zhiyong was also one
of our panelists.
But unfortunately, he is
still in jail in Beijing
for so called the offense
of disturbing crowds
and invoke troubles.
But we just hope he could
be also released immediately
and effectively and to free up free minds.
So my talk is, it's very
interesting, you know,
Ira Belkin as American
scholar gave a very detailed
overview of anti
discrimination law in China.
So I would now like to double his efforts.
So I would like to go to more
intellectual and political pursuits.
So I will talk about so called politics
of unbecoming gender
and sexuality in China
over the past 20 years.
The subtitle is so called
Arrested Development.
(soft audience chattering)
There are a variety of perspectives
from which to conceptualize and
understand the human rights.
I present a fresh framework
of development based upon
the premises that human rights
is about human development.
To be sure, linking human
rights to development
is not new in terms of
international relations
and international human rights discourse.
But I consider the trajectory of China
over the past 20 years as
a narrative of development,
or to borrow the language of
Western literary criticism,
Bill Toombs Roman is a German language.
(soft laughing)
You know, many people say
very probably the Chinese
government is copying Prussian version
of authoritarianism or capitalism.
Development is a major narrative
the Chinese leaderships
have ever presented in
the past three decades,
but development is not just about
national and governmental advances,
but also about individual
and societal development.
In terms of human rights,
development should be understood
as realization of full
potential, a process of reducing
and removing obstacles to
autonomy and prosperity.
One of the major obstacles
for individual and societal
development is ensemble of
discrimination in China.
My talk focuses on gender discrimination
and a sexual orientation
based discrimination.
From a gender and sexuality
viewpoint, the China story
of development is
concerned not only with men
but also with women as well.
In addition, not
everyone's progress towards
self to hood is straight.
Roads for LGBT, which
means it has been gay,
bisexual, transgender people,
and by no means assured.
The French feminist Simone de
Beauvoir provocatively asserts
"One is not born, but
rather becomes, a woman."
Building upon her insights at this panel,
I would like to discuss
the politics of unbecoming
gender and sexuality in China since 1995,
when the world women
conference in Beijing was held.
I would argue that in
the past three decades,
or 20 years, one of the major
features of the discourse
of gender and sexuality
in the Chinese narrative
or development is unbecoming
in its double senses.
On the one hand, undoing a
sexual and agenda identity,
not of one's own choice.
On the other hand, doing a so
called inappropriate activism
against a political regime,
characterized by patriarchy
and heteronormativity.
While unbecoming x and activism
can lead to police arrest
under Chinese law, the
government to use the law
to arrest the progress of civil society.
I call this is phenomenon
Arrested Development.
First, I think I should shed
light on the personal aspect
of unbecoming gender and sexuality.
In today's China, there are
at least two conflicting
conceptions of gender
and sexuality equality.
One is liberal oriented,
the other is dominated
by authoritarianism.
While the Chinese government
has presented the paternalistic
arrangement of interests,
duties and responsibilities
relative to gender and sexuality,
under the party state
capitalism, younger generations
in China tend to seek a more
autonomous sexual agency
and identity and to pursue
freedom to define themselves
against the sex norms
the law imposes on them.
In this way, these
rebellious men and women
make their own choices to
develop manners and becoming
a so-called normal man or
woman in the authoritarianism.
For instance, some women
choose to stay unmarried,
even if the group is applied
to by a derogatory label
Sheng Nu, or leftover women.
Likewise, the emergence of
unbecoming sexual orientation
identity is significant in
the context of legal closet
constructed by the Chinese government.
The Chinese law does not
penalize private homosexuality,
nor provides a sufficient
protection against the sexual
or orientation pace to
discrimination, nor recognizes
same sex marriage or other
similar coupling relations.
In addition, the Chinese
propaganda apparatus pairs
gay themed movies, TV and radio dramas.
Too many lesbians and gay
men, the Chinese legal closet
is both falsely comforting
and chronically suffocating.
However, over the past
decade, increasing number
of lesbian, gay, bisexual
Chinese have opted not to stay
in the closet; instead
they have revealed true
sexual identities to their
parents, friends, colleagues,
classmates, workmates.
A very handful of them show
up in the TV interviews
and other public events
as openly lesbians,
women and gay men with a
strong belief that visibility
is the key to strengthening self-esteem
and changing attitudes of others.
Personal is political.
This is not French jargon,
this is American adage.
(soft audience laughter)
Unbecoming gender and
sexuality is not only personal,
but also political.
Now I would like to move
on to speak about activism
dimension of unbecoming
gender and sexuality.
In recent years, rebellious
women have stepped out
of the rooms of their own and
audacious lesbians and gay men
have come out of the
closet, take to the street,
connect to the internet
and go to the court.
The activism dimension of
unbecoming gender and sexuality
inevitably conflicts with
the goals and techniques
of civilization by the
Chinese security apparatus.
It is understandable
that a government seeks
to maintain law and order,
but the Chinese Party state
has been obsessed with
political and social stability
or public order.
Unauthorized protests,
demonstrations, petitions
have met with administrative or political
and criminal penalties.
The most recent high
profile example is detention
and then conditional release
of five young feminists
who planned to stage a
performance art in advocacy
against the sexual harassment
on public transportation last May.
You know, I just make a joke,
sorry if it is not appropriate
to say sexual harassment
public performance finally
leads to political harassment
by the Chinese Government.
So it is also true of activism leader
to unbecoming sexual orientation.
On May 17, 2013, there was a
gay pride parade in Changsha,
Hunan Province, where
Chairman Mao was born.
With more than 100
participants from 14 provinces,
the organizer was a
gay activist at age 19.
At the night of the
same day, he was seized
by the local police and
then punished by 12 days
of the administrative detention
(speaking foreign language).
The authoritarian state
(murmurs) deploy a myriad
surveillance, disciplinary,
and penal tools and measures
to impede the growth of civil
society and non violence
advocacy for justice and to
ensure conformity with party
sanctions order and a state
sponsored draconian law.
Incompliant and insubordinate,
gender and sexual identities
do not conform, neither does activism.
As a consequence, activism
for genuinely autonomous
gender and sexual rights,
which is a combination of two,
is very likely to be perceived
by the Chinese government
as double challenging
for its hold on power
because patriarchal hierarchy
is one of its foundational institutions.
The ideology of conformity
very often triggers negative
responses typified by police arrests.
As the former United States
President John F. Kennedy
once said, "Conformity
is the jailer of freedom
"and is the enemy of growth."
Constraints on political freedom
for the sake of conformity
carry grave ramifications
for Chinese social justice
and economic growth.
An innovative sustainable
economy and a vibrant robust
community require active
liberties to unleash talent
and to make informed
decisions, as well as equal
opportunities to all people
without discrimination.
Unlawful discrimination is an imposition
of all people of a disability
in its broadest sense
on a group of of unpopular people.
Discrimination, whether
in print or in practice,
imposes a disability on in,
sorry, on nonconformists.
(softly laughing audience)
It's very difficult to
choose prefix if you want I
to fix the problem.
And so who strives for
lives to choose themselves.
Civil society and political
economy with chains
and shackles, results in what
I call Arrested Development.
It looks like a paradox,
a government obsessed
with development is
against the development
of civil society.
A plausible explanation is
that it is not really obsessed
with development, but with power.
Thank you for listening.
(applauding)
- I think that last sentence
is worthy of retention.
It's a lot of truth in that.
Very, very interesting.
Well, we have yet a
third treat ahead of us!
Sharon Hom, another distinguished graduate
of NYU School of Law.
I think five years ago, she was awarded
the Distinguished Alumni Award
for Public Interest Lawyering
at her 30th reunion, is
well known to many of you.
She was a law teacher.
She's lectured in China as the law teacher
and then chose to become
Executive Director
of Human Rights in China.
And has worked for many
years with Bob Bernstein
and his family, and making
Human Rights in China
one of the great organizations working
to improve the situation there.
And she doesn't look like
a counter-revolutionary,
but occasionally is branded as such.
(audience laughs)
She's going to talk to us for 15 minutes
and then we're going to
have time for discussion.
And I'm sure many of you are making notes
about what you want to say,
just as I have been doing.
Sharon, welcome back.
We haven't seen you since last night.
(laughing)
- Thank you, Jerry.
And thank you so much for that kind intro,
but publicly also thank you
so much for the incredible
support you have given to our
work over many, many years.
And this is quite an honor
to be part of this panel.
Last night was extraordinary
and I think we're building on that.
My brief was to build on
the domestic discussion
and to say so what, what about
international human rights?
Can it make a difference and
what are some of the issues?
So Ira mentioned and began talking about
discrimination as exclusion.
And what I'm going to do in talking
about the international
perspective is about inclusion
and participation.
So the perspective in
which I would like to share
some of our, not war stories,
but stories and insights
from our experience
over the last 15 years,
is from the perspective
of our efforts to try
to build greater inclusion
and participation
and particularly of civil
society, and particularly,
a Chinese Civil Society.
Because that's where the change
is going to begin and occur.
And I'm going to focus on one treaty body,
that is the independent expert committee
that is convened under a
particular human rights treaty,
to monitor, evaluate and promote
progress under that treaty.
And because this panel
is focusing on gender
and disability, I'm going to
focus on the CEDAW Committee,
which is the committee for the Convention
on the Elimination of All
Forms of Discrimination
against Women.
But I'm going to throw in at the end,
because I'm an optimist by practice
though I'm bit of a
pessimist intellectually,
is that I'd like to offer
some of the examples of,
I think success would be overstating it,
I think I would say some examples
where we were able to move
and make a small contribution
to progress and in what way.
So I'd like to end hopefully, Jerry,
and so we can open up the
discussion on a note of hope.
And I have to note that in trying to push
for greater inclusion at
the international arena,
it can also be quite dangerous.
And I think the recent
example of Cao Shunli
who tried to go and
participate, which ultimately
you know, resulted in her death due
to their withholding
appropriate medical attention
until she died in a military hospital.
So we fully are aware when we talk
about the international
arena that it's really not
like you think it's
geopolitics in the States
or just, you know, elephants battling.
When we talk about trying
to include civil society,
this is an incredible challenge
and can present enormous
security issues.
So our work has focused on
the international arena as one
important prong, because
particularly in a time today,
when there has been
some real retrenchment,
politically, domestically,
and when there's been
an intensified crackdown and restriction
on the civil society space inside China,
this is not a moment we can
discount potential tools.
This is a moment when
we have to figure out
all the tools, everything
that could be used.
So I want to suggest that
the international processes
tend to be an under utilized tool.
And we've been in the practice arena,
but we are very much looking forward
to human rights in China.
Some of us, my colleague Mr. Jian Chen,
a prominent Chinese
historian, and Casey O'Connor,
our Senior Program Officer, we
are very much looking forward
to be part of the HRIC team that will be
at NYU beginning in the fall.
And hopefully we can step back from some
of the last 15 years of
being in the trenches
and we will have this incredible space
in this incredible community
to be able to think about
how we can intellectually build
some of the intellectual resources.
I also want to just pick up
briefly on Zhou Dan's comment
about this narrative of development
that China really, you
know, has been promoting.
It is also a narrative that
China uses as a shield.
In other words, in international arena,
China either says they
want both sides of it,
they want to say, we are
really big and powerful
and you better listen to us.
And at the same time they say,
"Oh, but we are really poor
"and we're a developing
country and you can't expect
"us to be able to meet those obligations,
"which is very expensive
and takes resources,
"and we don't really have them."
So they want to have both ends of it.
And so this is why the
international process
can come in very interesting,
because in the face
of that narrative, what
the international processes
are saying, "Well, wait
a minute, you signed
"these international
treaties, which just means
"that you have signed to
agree to be bound by them.
"And part of being bound by
them means that you agree
"to try to implement these standards
"and norms domestically."
And this is why domestic
and international,
we need to come together.
Okay, the discussion so
far has already surfaced
a lot of the domestic challenges,
but I want to just highlight
a couple very quickly.
That in addition to the access to justice,
which Ira talked about as very
good Chinese domestic laws,
but the difficulty of
getting into the courts
is an obstacle and I'll
talk about some others.
That's, you know, access to justice,
access to information,
participations in public life.
Women, in particular, some of
the women we've worked with,
who've tried to run as independent
candidates were beat up
just for trying to run
for a local election.
The censorship of public discussions,
this is quite obvious in the
detention of the five and,
you know, the timing right
before International Women's Day
to detain them, and they were publicly
trying to raise awareness about problems
that are affect more than,
well, affect almost all women
in China, and then frankly
have indirect impacts
on everyone.
So I'm looking at, we're
going to talk about China
and CEDAW as a window into
the international processes.
And China was one of the
first assigning and ratifying,
you know, CEDAW 1980
Reserved to Arbitration,
which simply means they don't
agree to the jurisdiction
of having to go before the
ICJ in the event of a dispute
if arbitration doesn't work.
China is not a party to
the Optional Protocol.
And what that means is.
the Optional Protocol means
that the committee of experts
will have jurisdiction
and authority to accept
individual complaints.
So for example, if China had
signed it, and the five women
wanted to file directly a
complaint to the committee,
the committee could accept
it, but the committee
cannot accept it because China
has not signed that protocol.
China's had five reviews,
you can see the dates.
The last review was in
2014, and that's the review
that I'm going to focus on.
And to give you a context for the review,
I'm going to show you the
process because it's a cycle
and it keeps continuing each round
where the inputs for civil society are.
This is where we can make an
intervention and contribute.
So this is the input into
the human rights treaty body
process generally, and
then I'm going to show
what happened with CEDAW.
So the state party, that is China,
signing the treaty will submit a report
and that report simultaneously
we NGOs, Chinese domestic
groups, the National Human Rights
institutions of other, but
China doesn't have one,
and the UN, other parts of
the UN system all submit
to the committee.
Then the committee, the treaty
body, will look at China's
report and come up with a
list of issues and questions.
That is they're saying, "You
know, we read your report
and we're very concerned,"
then the state party
may submit written replies
before the actual review.
Our experience has been that
China likes to give written
replies, usually about two
weeks before the actual review.
And it will be only in
Chinese, of which the experts,
none of them speak
Chinese or read Chinese.
And the Chinese member of the committee
cannot participate in the review of China.
So you have this hundred
page document in Chinese
and they're trying to figure
out what did they say,
what did they say, you know,
we're going to be reviewing
that in a couple of weeks!
One round, we put all hands
on deck and we translated
relevant portions, and we
submitted it to the experts.
So that took quite a
surprise during the review
when the experts said, "We
have a question on page 89,
"footnote three something something,
we want a clarification!"
And they were like, "What?"
(laughing audience)
So, so that's something very useful
for bilingual help to do.
So this all leads up to the actual review,
which is called the constructive dialogue.
This is not a cross examination,
this is a constructive
exchange and dialogue
between the committee
members and the state.
Before the constructive dialogue,
civil society can also
submit another report,
further report based on the questions
so we can contribute to that as well.
Then, the treaty body issues
concluding observations,
recommendations, and also states concerns.
And later, I'll give you
another layer on this.
This looks like a very rational,
coherent process, it isn't.
And there's a lot of
discussion and debates
among the treaty bodies,
with the very powerful states
like China and Russia,
all around the edges
promoting certain positions.
And it shouldn't surprise you
that one of those positions
is how to restrict civil
society participation
in this process.
It should not be a surprise.
After the treaty body
issues the conclusions,
where we can also have
input, there is a follow up
procedure and for CEDAW after 2014,
the committee issued a follow up
and I'll walk you through that.
Two years from now China has
to report on the follow up.
Then it all begins again,
next round like this.
So this is why it's a cycle.
And it's not about that
moment when NGOs go to Geneva
and try to make a five
minute intervention.
All the work is done through
this cycle, and it continues.
And meanwhile, as you will
see, the actual process
is being contested right now.
Our HRI Season conventions,
we have participated
in every one of the
treaties, except for the new,
no, we also participated in the committee
on persons with disability
in China's first review,
so we have had at least one
round on every treaty body
and in some cases two or three.
So we have had some pretty interesting
watching what happens over time.
We try to, over the years we have moved
from focusing on a particular
issue where we're pushing it,
and I would say now, our strategy has been
to be more strategic and more structural,
because there are so many problems
and they are so complex.
So we have chosen for CDAW
to focus on systemic issues
that will that will impact
on all women, ethnic women,
rural women, you know, just
all women across the board.
So we focused on that and
I'll show you some of that.
And you will see on the
right the document type input
from civil society organizations.
If you go to the China
review page of CEDAW,
you will see all the working documents
and that's where our report is.
For CEDAW, we made a decision to only go
with the pre-sessional.
That's, you see the
beginning of the process,
the pre-sessional.
That is the list of issues and questions.
We decided to try to come in very early,
and because of our resources
we decided we would not
go with a full report before
the constructive dialogue.
And these were the issues we focused on:
transparency and availability
of data on policies
and practices impacting
women, because as you know,
under the old state secrets
law, unclear what it is
under the new state secrets law,
data like number of
infanticides, is classified.
So how are you going
to address the problems
of trafficking or
infanticide if this very data
you need to understand the problem,
identify potential solutions
and work with civil society
is classified?
So we felt it was very important
to keep pushing on data,
because civil society groups need data.
The second is we focused
on access to justice
for women's rights violations,
and we'll look at some of them.
And then we focused on
women's participation
in public and private
life, and then we focused
on the ability of civil society groups
to organize and participate.
And this is because domestic Chinese law
and new laws being drafted now,
are putting restrictions on
funding, on who can register,
on the kinds of activities,
on the kinds of monitoring,
and most recently, again, ties
with foreign organizations.
So this is the cluster of issues.
And the CEDAW committee
that we were before
is 23 independent
experts; they're lawyers,
policy professors and NGO leaders.
They serve in a personal capacity.
That is, they they're
not supposed to represent
the country of which they are a national.
The interesting high level
takeaway for the 2014 review
was they took on sensitive issues,
which technically expanded the mandate,
but didn't really but
they expanded the space.
So for example, we had
raised in the briefing
with the committees, which
is what they do with the NGOs
before the interactive
dialogue with the state.
We raised the issue of
(speaking a foreign language),
the political legal
committees, and we said that
they were an obstacle to access to justice
because they compromise the independence
of the judges and the procuracy.
And the experts said, "What?
"What is that?"
And so we say this.
So in the interactive
dialogue, they raised it,
and they said, "We wish
to know about these
"(speaking a foreign language)
and how they are work."
The Ministry of Justice
representative was furious
and he said, "There is no such thing.
"They do not exist!"
And he was furious.
And we were sitting there going, "What?"
You know, so we were asked
for follow up information
by the experts and said,
"Can you provide anything?"
And we said, "Yeah, the day
before President Xi Jinping
"gave a talk, and it was,
you know, was concerned
"that these political legal
committees were compromising
"the independence of the
judges and the procuracy
"and that the masses, law
abiding people were very angry,"
and they had to figure
out a way so we said,
that's pretty good authority, right?
(audience laughing)
So this word, the broader
issue of independence
of legal system, the
black jails was raised.
They also said there are no
such things as black jails.
So the (speaking a foreign language),
they said no such thing.
They said, "These are
run by private people,
"so they have nothing to do with us.
"We don't know what they're doing."
And one of the experts said,
"I can't understand that."
She goes, "I'd like to
come back to that answer.
"Why would a private person in prison,
"like these activists who have
no assets or anything else,
"why would you imprison these people?
"Please explain that to me.
"why would they do such a thing?"
And there was silence and
actually it was never explained.
Okay, so there were, at the end
which they have to
conclude, it's very tight.
They have to make and
issue these recommendations
at the end, and there were
many, many recommendations,
but these are some of them.
They want a comprehensive
definition of discriminations
because China's position is
we don't need a definition
of discrimination.
And the committee and
every other committee,
the racial discrimination,
every other committee has said,
"You need a definition of discrimination
"to battle discrimination."
China says we don't need that.
It's kind of like we
know it when we see it,
but we don't need a definition.
So they have to do that.
Ensure independence of the judiciary.
Strengthen the machinery
for collection of data.
Comprehensively address
violence against women,
because they were saying
we're trying, we're trying!
There's a draft
anti-domestic violence law,
which is going to be getting
a reading this August.
Advanced women's political participation.
They said we're concerned about reports
of women being beat up
for just trying to run.
Protect human rights defenders
concerned about retaliation.
So these are very good recommendations.
And these are the two follow up issues
for the follow up within two years:
Political interference with the judiciary.
Secondly, under representation of women.
Okay, I'm going to just quickly go through
some of the challenges and then
I'm going to give the quick examples.
So the challenges, I
wanted to go through them.
First is resource.
They have eight countries
reviewed in 18 days.
So they're talking about
China is done in a day.
The Secretariat support is very limited,
and these experts serve without staff,
so academics are very important on these.
Professor Philip Alston
of NYU has done amazingly
as the independent expert on a number
and he actually made a major contribution
to the Human Rights Committee by being one
of the major developers
of the grading system
where they grade the answers
from the state parties.
There are political pressures,
which I think you all know about.
In the big institutional
debates that are going on,
which I'll just quickly flag
and perhaps we can talk more
about if anyone's interested
because they're quite complex,
the General Assembly passed
a resolution and it's called
the IB Institution Building package.
And within Institution Building,
they want to harmonize.
Now, for anyone working on
China, when you say harmony,
it makes us nervous, you know,
because one person's harmony
is another person's restriction.
You know, it's like under
the rubric of harmony,
it just means to flatten, you know.
So anyway, under the harmonization,
there's a lot of discussion
about consistency
across all the treaty
bodies, and they're beginning
to say things like the number of issues
that committee can raise
in the list of issues
should be limited to like 25.
And like the torture committee,
for example, raised 45.
So they're saying how
could we have eliminated
half of our issues?
So there's some discussion now.
These are not requirements, but
it's all being experimented.
There are different experiments
and different treaty bodies.
It's not consistent, but
this is what's going on.
The recommendations, there's a push for
don't go on and on about recommendations
that are pushed for.
Short, focused, concrete recommendations,
that's what's being pushed for.
And then there's a push for a
simplified reporting process
so that it's easier because of the backlog
and many of the states are
just not reporting properly.
And then the last part of
the institutional debate is,
what about civil society participation
and can they continue.
Okay, so impact as possible.
Casey always hates when
I put exclamation marks,
but there it is, impact as possible!
But there's no silver bullet,
you must build on work
like Yirenping, the five
women, we must build
on those concerns.
That's what we have to build
on when we go to the UN.
And a lot of the capacity building
that human rights in China
does is, that's what we do.
We build those issues and we carry that.
You have to play the long game.
It is not a game, but you
have to play the long game.
In other words, if you want
microwave expectations,
and you go to a session
and you want the result,
that's not the way it works there.
I don't think it works
in law anyway there.
And it needs strategic patience,
you have to have a strategy.
That's the problem, like
the Chinese government
has a strategy, those
Western governments do not.
And then you have to go
beyond silo diplomacy.
That is, when we engage the governments,
they all like to think in
buckets, you know, trade,
human rights, security.
Well, those buckets are all related
and we've got to get
them out of the silos.
Okay, three quick impacts if I can, Jerry,
just because we don't want to end
with depressing challenges.
- Time is moving!
- CEDAW!
In the CEDAW review, aside from the fact
that it was an incredible
review by a very competent,
well prepared expert
body with very concrete
recommendations, something
very unusual happened
and that's what I want to point out.
It's that the GONGOs, the
government organized NGOs,
which in the NGO community
there tends to be an attitude
of saying, "Oh they're GONGOs, you know,
"they're not real NGOs."
But this is what happened
at the CEDAW review.
All the GONGO reports
which said they represented
all these different NGOs
looked exactly the same.
If you look at the website,
they had the same font,
the same format, the same cover page,
it was exactly the same.
So we said wow, there's
a diversity of NGOs
but it was exactly the same.
The interesting thing
is during the review,
the meeting with the
experts, they spoke out.
And they said, "We are very upset.
"We were told
"we had to submit all our
reports to a Coordinating Group.
"And they took our reports
and made them consistent."
Harmonized them, you know.
(laughing audience)
And what they did say
next was they took out
some of our concerns and issues.
And what they did was
even though those reports
had been edited and censored,
they themselves orally raised them
in the meeting with the experts.
So what I want to say about that is
we need to be careful who we want to label
and that everyone has to do what they can
within their space.
But those GONGOs haven't gone outside
and interact with the
international community,
who knows what they're like absorbing.
This one, I just won't
have time but CERD was
the Elimination of Racial
Discrimination in 2001.
We tried to say Hukou, the
household registration system,
was dissent based discrimination.
In 2001 when I presented it,
the Chinese delegation said,
"The Hukou is not racial discrimination,
"does not belong before this committee,
"why are we talking about it?"
And the experts said, "Well,
'cause I raised the question,
"I want to know what it is."
Eight years later when
we continue to raise it,
and when the China reporter
happened to be an expert
from Latin America on
descent based discrimination,
and we raised it again,
China's response was,
"This is a very important
problem of discrimination,
"institutional discrimination,
we're working on it,
"there are local experiments,
et cetera et cetera."
And torture.
In 2008, the torture
committee, and we had lobbied
this issue as well,
China was defining harm
as physical harm, that is torture,
you had to have a broken
arm, a black eye, you know.
And the torture committee said that is not
the definition of torture.
Indignity, you know, that is torture.
Mental, you know, non physical harm.
And that was one of their recommendations,
that they had to define harm consistent
with the torture convention.
In 2010, at the end of 2010,
the state compensation law
in China was amended, and
specifically the provision
regarding definition of injury.
And in that definition of
injury was non physical harm.
And in 2011, one of the RTO
who are in the labor camps sued
and actually won compensation for that.
So there was mention of the five women;
if you go to our website,
you can see a wonderful video
about Da Tu, Giant Rabbit.
It's like her documentary,
and these are some
of the CEDAW resource pages.
And so I'll leave you with that.
I'm sorry Jerry, I took too much time!
I tried to talk faster but I couldn't.
(audience laughter)
(applause)
- You can see why so many
of us on the faculty here
were pleased that the Bernstein
Institute has resulted
in also bringing Sharon to our Faculty,
because she's an effective
teacher and a formidable opponent
in the international lawfare
community that goes on
at the UN and elsewhere.
And she will be strengthening
our course offerings.
Because although I teach
about public international law
in China, I have not had
the wherewithal to cover
this very important,
increasingly important subject.
I had a few other random
thoughts and then I want to open
the floor to discussion.
One was, in 1963, I was
living in Hong Kong,
trying to learn about
the Chinese legal system
by interviewing over 40
political refugees from China,
and I saw a wonderful movie.
The English title was "The Lady Barber."
I think the Chinese
title was something like
(speaking a foreign language).
A movie made before
the culture revolution.
That was funny, a real
comedy, light hearted
but with a very important point.
There was discrimination against women.
It was the story of a woman,
who against her husband's
advice and permission,
secretly became a barber.
And then he turned up in the barber shop,
and she had to put on a mask et cetera,
even though she gave him a
haircut to conceal the fact
she was working, and
working in the barber shop.
It was a great film.
And I'm sorry that subsequent
events in China seems
to have diminished the capacity
to produce light hearted
comedy with a good social theme.
Just another point, of course,
geographic discrimination
as we mentioned yesterday
afternoon, is also very important.
I personally ran into discrimination
when I was training a group
of Chinese business officials
in Beijing in 1979, '80.
And one of them was brilliant
young woman, named Wong,
28 years old, good English.
And I arranged for her to
go to Harvard Law School.
And the government, her
government, wouldn't let her
take the opportunity because
she tested with hepatitis B
as a passive carrier.
And that was a very, very sad
and frustrating experience.
More encouraging has
been our recent contacts,
as Ira mentioned, with
the community of lawyers,
scholars, legal activists,
government officials in China,
who are actively working to
try to improve the situation.
I found last year's meeting
with them in Shanghai
a very moving experience and it raises
the inevitable question,
why do these people do it?
Why did they knock their heads
against this dictatorial wall?
Is it ideology, political ideology?
Some of them seem motivated by religion.
You have to ask yourself,
what keeps these admirable people going?
And we have representatives
of them here in the room.
Just a couple of other points.
If you want to know about disability,
which we haven't raised much today,
please read the new
book by Chen Guancheng,
the blind barefoot lawyer
who was a visiting scholar
with us in 2012, '13.
It's a very, very effective moving account
of the bitter life that people
with physical disabilities
suffer, especially in rural China
where instead of sympathy
from local leadership,
they usually find contempt.
It's a very good book.
Finally, two other points.
We shouldn't forget Chinese government
is capable of change.
Even Sharon's brief account
here shows that over time,
under internal and external pressure,
China has changed its
political legal position
on many international legal questions.
And this is one of them,
and we have to keep
that educational pressure effort up.
Finally, we shouldn't ignore Taiwan.
We have Miss Chen Yu-jie here
who's an expert on Taiwan,
one of our research scholars,
and her doctoral thesis
is really about how Taiwan,
although it's formally excluded
from the world diplomatic community,
has brought this human
rights regime voluntarily
to Taiwan and tried to
simulate and even go beyond
the treaty review process
that Sharon so vividly illustrated.
It's created a committee of 10 experts,
Professor Philip Alston and I serve on it.
And what they've done is they've adopted
international human rights standards.
And they've begun to
implement external review
of the extent to which
they have implemented this.
And that's a whole 'nother
encouraging, I think, aspect.
Well, you've all been very patient.
We've got time for discussion,
and I welcome any comments.
Oh, there's a fellow I know!
(laughing)
Robert Bernstein of all people.
- [Bernstein] I know and you
know that we're two wonderful
but very small organizations.
China is 20% of the world's population.
What support do you get from
the large international groups
like Amnesty, Human Rights
Watch, (speaking faintly).
So when you go to these U.N. conferences,
you get as thorough and as
deep participation by them?
You get any cooperation with you
before you go to the meetings?
In other words, are you an
isolated small group going in
making that or are there other pressures?
- Sharon?
- Well we, when you're
small, you really have
to maximize your limited
resources and the best way
to do that is to collaborate
and work with other people.
So we try to do that.
With Amnesty and Human Rights
Watch there are pre-briefings
because they're very, very large.
So they have bureaus for
Geneva and for Brussels
and for the General Assembly in New York.
We are very small, so it's the same team.
It's me, Casey, we go
to all the same things.
So for us, I think the difference is
we're quite concentrated.
So the people who do the
research, who do the reports,
who do the training, it's us,
and we bring it to the UN.
Whereas for the larger groups,
the people who do the
research and who actually
do the lobbying, they're different teams.
They have really good, fantastic lobbyists
who are not actually
the people who did maybe
some of the work.
So we think that's quite valuable.
So we do pre briefings, we coordinate.
Strategically, it's different.
Tone wise, it's different.
And I think to make a
difference doesn't mean
we all speak the same
message and in the same way.
And I think it's good to
have the kind of like,
once we coordinate, we
know the differences,
who's raising issues.
For example, the Tibetan
groups, we always meet
with the Tibetan groups and
with the Uyghurs groups.
And that's because we say,
if you're going to do a full briefing,
we will reference but we
won't do a whole issue
briefing on that.
We once won at the CERD I believe.
We were doing a meeting with
the journalist afterwards.
And it was us, the
Tibetans and the Uyghurs.
And the press corps in Geneva were called
by the Chinese government, paid a visit,
and told them that they could
not come to the briefing
the next morning, because
there would be terrorists
in the room.
So given it was us, the
Tibetans and the Uyghurs,
we were saying, huh, who was it?
We were looking at each other!
(audience laughs)
And so usually the press
corps is not that interested
in what happens and we had a full house!
Like everyone came 'cause
they felt, "We want to!
"We do not back down like this!"
And we thanked them for doing it.
So I think we stand
together, we coordinate.
We make sure we coordinate
messaging and strategy.
We go high level, low
level, we say go do DDL,
we do all the different levels.
And I think Amnesty and Human Rights Watch
tend to be more of the cardio high level
but they also sometimes do some backdoor.
The other group we
coordinate very closely with
is we are one of the over
170 NGO league members
of the FIDH, the International
Federation for human rights.
We work very closely with them.
- One of the things I
learned from participation
in the Taiwan simulated review process
was how difficult it is for
even the best of the NGOs
to get adequate time and access in order
to influence the review committee,
and the review committee, of course,
appreciates all their efforts.
But I think in the international context,
there's an absurdly
limited amount of time,
and it creates certain
rivalries and strategies
and I think that needs to be improved on.
I think the international
formal review process
could learn a few things
from the Taiwan experience.
Questions, comments?
Yes please, this is our
colleague Ms. Yincher,
who for six years was a judge
in the courts of Chengdu
in Sichuan province and is now
our research fellow with us.
- Thank you Jerry, I have a
question for Professor Belkin
and our court.
(speaking faintly) you
mentioned the first gender
discrimination case won
partly because of court
on a separate case and that
party offered a settlement.
So I'm wondering, with the current policy,
we can see that Chinese trying to reform,
trying to be open to
more cases, for example,
the administrative
creation or change the end,
the case of searching
(speaking faintly) so now
it's more you just register the case.
But under the party state
structure, as we can see,
the Xi Jinping's part is kind
of going more conservative
or trying to (speaking
faintly) more harmony.
My question is how much
the new court can do
under this Party State
structure in terms of
promoting or developing
gender discrimination issues?
Thank you.
- Well, firstly, you know
more about this than I do,
having worked as a judge in the corporate.
One of the reforms China
is undergoing another wave
of judicial reform as we speak,
and I think the reform policies
are just starting to come out.
One of them is, as you mentioned,
elimination of the review
process for filing a case.
I think that goes into effect
May 1st, if I'm not mistaken.
So it's going to be, I'm always skeptical
about how these things are
going to work in practice.
One of the things, the
justifications, for the court review
in the past has been, courts
don't want to take cases
if they know they can't
enforce their awards.
So there's been some, and it is difficult,
courts in China are not
the most powerful agency
in the Chinese government and
they often have difficulty,
as you could tell from the
hepatitis B case I mentioned,
even getting other government ministries
to follow court judgments.
So I think we have to wait
and see how this process
is going to work.
Is it going to be as simple
as it's been described,
where you just register a
case and the case can proceed?
You know, there are probably thousands,
if not 10s of thousands of
judges currently employed
in that part of the court,
so what are they going to do?
So I'm a little bit skeptical
about, I hope it works
as simply as anyone can file a case
and maybe like our system,
the other party would have
to make a motion to dismiss the case
and justify why the court
should dismiss the case.
That would give people
much more access to courts.
But I think we have to wait and see
how that's going to how
that's going to work.
- We have difficulty observing
court reform in China.
If we only focus on the courts themselves,
we only see half the game.
And it's very hard, even
with respect to court reform,
as Ira implies, to know
what's really happening.
There's talk in China since
the fourth plenary session
of the current party
congress of really trying
to create judicial independence.
But they really don't mean what we mean
by judicial independence.
What they mean is the
Central Party authorities,
what to gain greater control
over the local courts.
Local courts in China are subject
to enormous local influences,
some of which are very pernicious.
Of course, you have
very serious corruption,
but you have very serious
local party government control.
You will also have bias in
favor of local participants,
local parties and disputes,
local protectionism,
but judges get many phone
calls from many officials
and many other interests,
including business.
Guangxi, relationships,
may be the most pernicious
of the influences.
People know whom you
went to high school with,
or cousin of a cousin and
often these have an impact
on the basic court decisions.
The central authorities
want to get control of that.
And judicial independence,
what they mean is,
local judges should
become more independent
of all these other unfortunate influences.
But they want them to not be independent
of the orders in Beijing.
And the orders essentially come from
the Communist Party Central committee's
political legal commission.
They are the most powerful
tool, they control the courts,
the prosecutors, the Ministry
of Justice officials,
the legal profession, and
they want to consolidate,
not give up their control of the courts.
And there are reforms to
the local party committee
as well as the local courts,
so that's the other half
of the judicial process.
And you have to see this
process as an integrated whole
led by the party.
And they are subject
to national influences
such as we're trying to improve on,
as well as local influences.
But we can't see a lot of this going on.
It only becomes apparent over time
and in a very uneven fashion.
But there is from in, there is change,
even with respect to the
local party committee,
and we'd like to ventilate
that a little more.
Yes, please!
Ah, this a woman I wanted
to call on yesterday
when we ran out of time.
I'm so glad you came back for more.
- Thank you!
Betsy Buchalter Adler,
International Center
for Not-For-Profit Law and board member.
I'm fascinated by
Professor Hom's discussion
of the international
process and also curious
what the other panelists have to say
about what little we know
about the new draft law
on civil society regulation.
Unfortunately, I don't have access
to an English translation of it,
but the swirl of rumor tells us
that there will be significant
limits on foreign funding,
following the Putin example in Russia,
and that civil society
for the last 20 years,
there's been a conflict between the desire
to build civil society
and the counter desire
to squash and control civil society.
All of which leads to the
question, what role can
non Chinese actors play in the development
of indigenous Chinese
civil society ability
to change these discriminatory practices?
- That's an excellent question!
Who wants to take a crack at it first?
I can start and I'm sure others will add.
So the regulation of civil
society has been a hot topic
for many, many years.
And China's always about to come out
with a new set of regulations or new law
on civil society.
The latest draft sounds
like the most restrictive
and most draconian.
What we're always told is
that China's very concerned
about color revolutions,
that there's a group
within the Party that believes
that color revolutions,
particularly in former
communist, Eastern Europe,
started with civil society.
I think they have a inflated idea
of how much influence small NGOs can have
on big political changes,
but since they're,
as Zhou Dan said, terribly concerned
with maintaining stability and power,
they want to control civil
society as much as possible.
And the focus seems to be not so much
on what civil society organizations do.
That seems like that would
require a sophisticated judgment
and analysis about what organizations do.
So I'll just say, you
know, to me, Yirenpings
should be getting government awards.
I mean how many organizations can claim
that they've changed the
lives of 100 million people?
And instead, organizations
that accept foreign funding
are immediately under
suspicion as potentially
fomenting a color revolution.
So it's really unfortunate.
I hope that groups that
focus on civil society
can continue their work,
and do so carefully
and strategically.
We should all follow the
principle of first do no harm.
But I think we have to
continue to try to convince
the Chinese government
that in a complex society,
you need civil society.
That if you want to
have better legislation
and better rule of law
as the Chinese government
has said it wants, you need
to hear from your citizens.
And you can't expect to hear
from individual citizens.
People just don't have
the level of expertise
to participate meaningfully
in policymaking
and legislation and solving problems,
and you need to empower
civil society to do that.
So tough situation.
- Anyone else want to add to this?
Oh, Lu Jun.
- So NGOs play an important role (mumbles)
in gender discrimination
and disability information.
For example, the five
feminists were detained,
lasted 12 days (speaking faintly).
They all work for NGOs, and they all are
executive directors, or at
least the project directors
of anti discrimination NGOs.
And all of them were trained by Yirenping.
And another example is
almost all the existing 15
anti-discrimination
lawsuits against disability
is mentioned are organized
by the executive director.
(coughing drowns out speaker) Yirenping.
Yeah, meet (mumbles), stand up!
Unfortunately there has
been a crackdown campaign
against the anti discrimination NGOs.
In the last nine months,
three anti-discrimination NGOs
have offices were raided by police.
And besides, there was
there has been a new normal,
yeah, a new normal.
And under the new normal NGOs,
especially the rise NGOs,
has been a target of the President.
And so anti discrimination NGOs in China
must consider our strategy of survival
and existing our work.
So and I think international
community must consider
their strategy on supporting these NGOs.
So I'm just wondering
what's your comment on
for both Chinese domestic NGOs
and international community
under the new norm.
- Good, this leads up to
what I wanted to stress.
This is not merely an academic problem
for NYU law school and
the Bernstein Institute
and the US Asia Law Institute and
the Center for Global Justice
and Human Rights, et cetera.
We are already beginning
to feel the impact
of this crackdown.
It is not an accident that so many
of your colleagues are here.
They're here because they can't go back
without getting arrested.
And what's going to happen?
I see your crisis developing,
similar to the one
that occurred after June 4, 1989
when so many liberal
Chinese political activists
had to abandon the country and
they came here preeminently.
If some went to France,
England, other places,
but Princeton took them in.
And for years, they became a center
of sort of revisionist
thought trying to help China
get over this tragic experience
and chart a new course.
And we now have an opportunity
or a challenge or crisis,
because what are we going to do?
We haven't got the funds,
we haven't got the space.
We have to have more people
so we have more time.
And yet we must respond to this challenge,
because I see potentially
eight more years of darkness,
at least ahead.
And where are the Human Rights reformers
who are not in jail going to go?
Right now we have many forgotten people
who are in prison in China.
Even Liu Xiaobo, with
his Nobel Peace Prize,
people have forgotten.
Gao Zhisheng, the most
famous human rights lawyer,
he's out of prison but
imprisoned in his village.
Very similar to the way Chen
Guangcheng was illegally
imprisoned in his village.
We mentioned Xu Zhiyong,
your colleague, etcetera,
whom many of us know
well, they're still in.
But there's so many others,
especially new encouraging young people
who have nowhere to go now.
And they need further training.
They need the opportunity for research.
We need their knowledge, we
need their help for scholarship.
This is a big challenge for
the Bernstein Institute.
So our work, we can't rest on our laurels
because this is a happy day
celebrating the inauguration
of a boost to our work.
This boost to our work is too minimal.
And in China, what we're
finding is this anti foreign
influence, fear is spreading
and they're learning from Russia.
Now it's interesting question
is Russia a western country
or as Russia and Asian
country or a Eurasian country?
This is has been one of
the troubling questions
of Russian history, the
Ukraine is divided as an emblem
of this struggle.
But Marx was a Westerner.
The Chinese don't seem to realize
until people make fun
of them when they say
we don't want Western influence.
Marx was not a Chinese.
So they have to deal with that.
Plus they have another
more difficult problem.
If you don't want Western influence,
if you don't want Constitutional law
taught in your law schools,
and Chinese law schools are dominated
by Western Constitutional
legalistic theory,
law professors are
brainwashed, the leaders fear,
because they've absorbed
so many so called Western,
we would say international, values.
What do you substitute for it?
And occasionally, Xi Jinping brings up
the Chinese legal tradition.
They've resurrected Confucianism.
And he's even mentioned the
opponents of Confucianism
the legalists, who were
very dictatorial people
using law as an instrument of repression.
He's had to go easy on that,
because people remind him
that may not sound too good
for the current regimes propaganda.
So but they are facing
an intellectual vacuum.
And that vacuum is a
struggle now over ideology,
ideology and law, what
is going to be taught
in the universities?
Can there be conferences,
training programs,
now on university grounds in China?
Or are they going to be
forbidden because groups
like ours are going to be seen
as the embodiment of
sinister Western influence.
So this is not pure
academic academic stuff.
This is very, very important,
realistic political,
matter of the greatest
significance for China's future.
And the future of many
people in this room, I think.
Yes, please!
Let's have one or two more points
and then I see they have
box lunches over here.
And we have another
program beginning at 1230.
Yes, please.
- [Audience Member] I'd like
to focus on (speaking faintly).
- I can't hear.
- [Audience Member] I'm
very happy that people
are doing this work.
- Can you hear?
- She's happy that people
are doing this work.
- [Audience Member] Your
point that the law school,
what they're teaching, all
that, is very interesting
so (speaking faintly).
I was interested in having discrimination,
whether you're tall or (speaking faintly),
all this type of thing?
It's interesting about
the United States I find
(speaking faintly) really
on haves and have-nots,
blacks and whites, it's much worse
than when I was a girl in 1968.
And what I'm noticing, when
I was a teenager it was cool
that Erasmus Cole was on the cover
less than two weeks ago
and I ran out of there
for my life in like 1978.
But during that situation,
I couldn't get a job.
I had my own car, I had my own apartment.
And I noticed that most
of the jobs we built
today that involve making
anywhere between $15 and $27
an hour (speaking faintly)
20-something years old
involved sending a picture.
You know, now, I'm kind of dumb,
but I think you can learn
a lot from a picture.
Whether you're a man or a woman,
whether you're young or old,
whether you're black or white.
At first I thought it was
just (speaking faintly)
and just still discriminating.
But I notice now it's
for all kinds of jobs.
You know, you could be an
after school counselor,
you could be whatever, they
asking you to send a picture,
but discrimination is wide
open here in the United States.
No one's paying attention,
has raised any, you know,
this is obvious.
And then with regard
to that it's very hard
for a person like me to make voice.
They're making it very hard.
They shut down blogs, they put you
on all kinds of crazy lists.
So you have to be really quite creative
to get your word out there.
Also, it's hard to know what's going on.
I find in China, I can't
really see because,
you know, I have a sharp
mind but I'm just confused
that you're not talking
about the election.
But there's this big thing
about the middle class in China,
and how they're (mumbles), and I noticed
that the stuff that
they're buying this money
that they have is all like
American leisure stuff.
And I just wonder what are
what are the teenage girls
and the women in the
household, and I really believe
that they will have the biggest impact
on what happens in China
as opposed to (mumbles).
So what's really going on
with this middle class?
Are they really that sexist against women?
Are they really, like
really with us or are they
(mumbling), and what
do they feel about it?
- Okay, let's ask our panelists
for some brief answers
to that, and we'll break for a box lunch.
And the next session is
a further continuation
with one of America's
leading human rights experts,
who has just joined the
NYU faculty, Mike Poster.
Sharon, you want to respond to that?
- I want to say something
very quickly, and then maybe
the person who raised the bigger question
about what can be done we
can talk a little bit more
because I think that's a great question.
I want to say just quickly
about this pushback
on Western values, Western
ideas, Western stuff.
The young people in Occupy
Central and Hong Kong,
when they said there's
clearly foreign instigators
behind all this and
providing foreign tools.
Did you see the response?
I just want to point that out.
Those young people took all
their iPhones, you know,
and all their device and
said, "Made in China."
That's what they did, yeah.
And I think that that
was a very good response
to saying, when you try
to say Western blah blah,
that is true.
On the other hand, in a
global economy, you know,
when there's interrelated,
let's be really careful
when they're trying to like
when they try to raise these,
so that was a very good.
The middle class, the
quick answer is, yes,
that that is like what was formerly known
as the Washington Consensus,
you raise the middle class
and the middle class will rise,
and then it's going to float down
and it's going to do all these things.
So in China, if you want to argue
about the middle class numbers,
and I'll say 200 million, you
folks might want to weigh in,
but let's say 200 million.
I give it 200, 250 million
out of 1.4 billion people.
That's out of 700 million that
are still have rural glucose,
that means living on very little,
or 400 million that are
drinking water contaminated
by human waste, you
know, or the whole north
of the country is going
to go through losing water
and so then their solution
is to take it from the south
and make it go uphill and then, you know,
make the south have no water too, so.
So I think my own view,
because I'm not a historian
and I haven't lived that long
to watch this whole process,
I highly doubt that trickle
down, didn't work real well
in the West, I don't think
it's going to work in China.
So I think what's really going to happen
is it's bottom up and top down
is what's going to really
be part of the change.
And the middle class,
what are they buying?
Well, they're buying iPhones.
But aside from that, take a look at,
this is not a product placement,
but take a look at Apple's website launch
for the new iPhone.
And you could have sworn you
thought it was a China thing
because it opens up and it's in Chinese.
And it goes Chengdu Shi
Hu Western and you go,
"What, is this Apple, what is this?"
It's the new Apple Store in
China and when you see it,
it's not middle class.
It's old, young, old people, young people,
like me old people, you
know, they're all online
and they're just waiting
when the doors open,
it's like a stampede in
and they're like, you know,
it was crazy.
So the only thing about that,
Jerry, was that the irony
of it, the profound irony of it.
You know, those of you who
know Chinese literature
and Opera, Xi Hu, what
happened in Xi Hu (murmurs).
Baishe zhuan, the beautiful
woman that appeared
was actually a snake.
White Snake seduced the
monk, and turned out
to have been all about
not what appearances were.
So I thought somebody should have gotten
a better advisor for Apple.
- Okay, final remarks by
Ira and then Zhou Dan.
And I see our next speaker
has already arrived,
and we have to have time for a box lunch.
But I think this has gone very well, Ira?
- I just want to make a quick response to
I think the suggestion
about things are not perfect
in America, which I agree with.
And when we do our programs we don't,
I think we always have to
combat this misconception
that we're going to
China to bring America,
the American way of doing things.
It's not really what we're about.
We actually share a great
deal about the challenges
that American Public Interest lawyers
or American anti discrimination
lawyers are facing.
We had a presentation last
year by Nancy Gertner,
who's a retired federal judge,
about the difficult time
that plaintiffs are having
in discrimination cases,
getting classes certified
in American courts.
So I just want to make that point clear.
Our panel today is, this
morning, is about China
so that's why we focused on China.
But I don't want to leave the impression
that we come with the notion
that we figured everything out in America
and that we just have
to share how to do that
in China, that's not our job at all.
- And we have frequently taken
our distinguished colleague,
Jim Jacobs, expert on
American criminal justice,
who tells it like it is to China
and there's no attempt
to compare our theory
and their practice.
That would be the worst kind
of comparative law, Dan Zhou?
- I just want to like to
comment on Chinese government,
you know, strategies.
I think what can foreigners
in a foreign government
and international community
came to help, you know,
civil society developer in China.
I think is it is kind of a war of ideas.
This is very important, you know.
I also think it's also very important
for the American government,
American people still engage
Chinese government, because
if you do not engage
the Chinese government, Chinese government
very probably will be together
with Russian government.
This is also very important
to part of the way you know,
I do not say, this is kind of
Chinese government strategy,
so called trade off,
you know, but in terms
of geographic politics we
also should know that the
interesting thing is that even
Chinese current leadership,
Xi Jinping stresses that the importance
of engagements of the
United States government
and American people.
And also, I think, why
Chinese government would like
to strengthening and also restructuring
our civil society development
in China and also put our
stricter grip on foreign funds
and foreign NGOs in China.
I think this is kind of so
called signal of deterrence.
Actually, I'm really out
about the real enforcement
of that kind of law, but
they do need some kind
of law in place so that
is send a strong signal to
foreigners and foreign government,
as well as, just in
case if they were there
to enforce the law, they
would probably think
they can use the law.
But I have to tell you that
according to very solid,
reliable sociological
investigation and the survey,
80% of foreign funds goes to
Chinese government agencies
and the Chinese government
sponsored institutions,
which means if that
kind of law is enforced
and if in place, who will
be the potential criminals
or potential violate overcharges laws?
- Well, we've had a very
stimulating morning!
I want to thank our speakers very much.
(applause)
