6.01.2016

Optimism and Interpretive Spaces: China's Foreign NGOs Management Law - A Response to Elisa Nesossi.



Guan Yu - Beijing Opera
In the context of a broader, on-going discussion about civil society space in China, which is for the most part being held at Law at the End of the Day [see here for earlier commentaries by Larry Backer, here for one of my commentaries, here for Zhu Shaoming's background briefs], in May I published a briefing paper entitled "From Rogue Tiger to Global Player: China's Foreign NGO Management Law", under the auspices of the Torino World Affairs Institute. 

The Foreign NGO Management Law has been the object of an heated, almost fiery, international debate, and understandably so. 

In the briefing paper, I argued that - as amply proved by the OBOR initiative among others -  the People's Republic of China is getting closer to playing a more relevant role in the making of global norms. My use of the words 'global norms' was intended to refer to all those legal and non-legal standards that regulate the behavior of state and non-state actors at  both the global and local level. These standards include norms on civil society, but are not exclusively limited to them. The case of civil society is worth observing, as it can contribute to shedding light on far broader dynamics. Due to their complexity, these broader dynamics cannot possibly be analyzed  by a single researcher, or satisfactorily explored within the confines of 1,100 words. After all, these dynamics involve not only China, but the societies of Australia, Europe and the United States as well. Furthermore, as I will soon explain in a separate post, they are of relevance to reforming political, social and economic systems other than Asian countries. 

The importance of these larger, global processes can be nicely summarized by the saying that 'the flutter of a butterfly wing can cause a hurricane on the opposing side of the world'. 

On the very same day my briefing paper was published, the Committee to Protect Journalists, which is

an independent, non profit organization that promotes press freedom worldwide


was denied consultative status with the Economic and Social Council of the United Nations, through a negative vote of the NGO Committee of the United Nations. (see here) News about the negative vote of the NGO Committee was reported by the China Digital Times, which is an "independent, bilingual media organization that brings uncensored views and online voices from China to the world." The article discussing the NGO Committee vote can be found here

In that article, the China Digital Times referred to my briefing paper, observing how 

"Sapio is more optimistic about the new law than many. She argues, for example, that “NGOs benefit from a substantial autonomy in the values they embody and promote through their programs. These values need not be the same as those promoted by the state. As long as it is not seen to pose a political or security threat to the prevailing value system, a certain pluralism in values is becoming a reality.
My friend and colleague Elisa Nesossi (Australian National University), wrote an informal response to my briefing paper. I am sharing her response here, albeit in a slightly edited form, with her permission. 
Dear Flora, this time I feel the need to express my 2 cents in this forum. I understand your perspective and I have re-read the law, article by article, taking into account what you say in your short analysis. I am afraid, I cannot share your optimism. At first glance, it may be true that this law could provide China with opportunities to get closer “to playing a more relevant role in the shaping of global norms on civil society” and that “the decision to bestow legal personality on Foreign NGOs…testifies to the will to broaden and deepen the engagement of foreign NGOs”. However, I cannot detect anywhere how the law can in actual facts promote engagement “on equal footing”. I cannot see in the law any single article that promotes pluralism in values, nor any specific interests to preserve other than those of the Chinese state, perhaps unsurprisingly. How can that then be reconciled with optimism and opportunities? We both know all too well the background political climate in which this and other recent laws have been passed. This is one of the reasons why I cannot identify any positives. This law is a product of its times and of a specific political design. The claim that the Law provides opportunities for China is certainly correct: the problem is that, to me, it exclusively provides opportunities for the Chinese state. In your brief commentary I could not detect any specific references nor clear practical examples of the opportunities that a foreign NGO can grasp in order to operate “on equal footing”. A practical analysis of that kind would probably be more helpful to those NGOs workers who cooperate with Chinese partners and who are trying to understand whether and how they can continue to operate in the country. At this stage the law is still very vague (and the many grey areas are extremely perilous, as we both know) and will need more explanations and clearer rules of implementation. It is precisely because of the political context it spawned from and how it reads right now that this legislation, based on my experience on the ground, prevents me from entertaining any positive thoughts or hints of optimism.
Law can be understood in a narrower sense, as a body of legal norms expressed in written legislation, or in a broader sense. In this latter sense, law consists of all those written and unwritten norms (social, legal, moral, religious, ethical etc.) that can effectively shape and constrain behavior. In any case, law is an interpretive enterprise. 

Beyond the narrower, "purely Dworkinian" sense of this concept, law can be understood as a rhetorical apparatus which is continuously being made and remade through the production of diverse narratives. Man is a story-telling animal, and the narratives that contribute to the eventual making of the law can, and often do, reflect an individual's history, experience,  and intellectual outlook. Because of all the natural and inevitable differences that exist among individuals, no two individuals will be able to ever produce the same narrative about the law. A diversity of narratives does not automatically imply the existence of a conflict among them. Sometimes, different narratives can be in harmony. At times, they can be conflicting or diverging. Their specific nature of their coexistence - divergent, harmonious, conflicting - is less important than the fact each one of the narratives that exist at any given point in time contribute, in their own different ways and to different extents, to the shaping of a "Grand Narrative" about the law, and to the eventual making of the law. 

In this sense, they metaphorical Judge Hercules is by no means an idealized construct. It is rather a composite 'body' (but one much different than the Leviathan). This body is made by all those who chose to invest their time in reading, analyzing, discussing, and commenting upon draft legislation, a piece of law, or unwritten, non-legal norms, regardless of their nationality, opinions and beliefs. These actors included not only the Ministry of Public Security, which views are visible throughout legislation, but the Ministry of Civil Affairs, the NPC Standing Committee, and Law Committee, besides all those Chinese and foreign actors and organizations who offered their comments on the draft law to the NPC Standing Committee, or who have otherwise discussed the Foreign NGO Management Law. 

There is also a second sense in which the idealized constructs of legal theory are less idealized than they seem. Vagueness and ambiguity are two core features of language, and as law cannot but be made by using words, vagueness and ambiguity are and remain two possible features of each and every legal document. Therein lie both the beauty and the dangerousness of the law - in grey areas. Precisely because of their vagueness, grey areas are dense with new interpretive possibilities. The mere existence of these possibilities does not automatically translate into their visibility, or their actual availability to the interpreter. And even if the interpreter could see those possibility, and access the interpretive space they offer, there is no absolute guarantee her interpretation would be acceptable. "Hermeneutical games" are similar to a game of cards. As a game of cards can be played only by those who accept the rule of the game, so "hermeneutical games" can be played only by those who share the rules and principles of interpretation. Sometimes, these rules allow for the use of  a Joker, that is a card which is unique and different from all the other cards in the deck. Sometimes, the use of a Joker is not allowed. In any case, the Joker can only be an addition to the standard four suits - clubs, diamonds, hearts and spades. A suit of Jokers would be unthinkable, and perhaps unpractical, as it would disrupt the game, making it impossible. 

In the two senses I have tried to explain above, pluralism of value is already embodied in the Foreign NGO Management Law. Even though these words are nowhere written in the fifty-four articles that make the Foreign NGO Management Law, the Law is not the product of a single mind. Rather, it reflects the consensus and the values of all those who - to a varying extent - have joined the drafting process in different capacities. Pluralism may be implicit, yet it becomes clearly visible once the legislative iter is considered in its entirety. A provision to the effect that "this law allows the coexistence of different systems of values" is nowhere to be found in the Foreign NGO Management Law. I believe, that the absence of such a provision from Foreign NGO Management Law can be explained by the fact that the Foreign NGO law, coherent with the hierarchy of laws that exists in China, is not the locus where the founding values of the People's Republic of China can be stated. 

I agree that an empirical analysis of the opportunities the NGO law offers is in order. This consideration, however, raises the question of whether intellectuals and academics who are based outside of China can and should substitute themselves to practitioners, who may be in a much better position to design and implement the kind of analysis Elisa has suggested. 







1 comment:

  1. Flora, many thanks for taking the time to respond to my brief comment. I find your analysis certainly correct in terms of legal theory and there is vast literature that supports some of the points that you raise in your reply. So, it is not for me, in this context, to analyze the scope and meaning of the law and its different interpretations. I would not contribute much either to the existing narratives or to the discussion concerning the topic at hand.

    I just would like to reflect on three points that you mention and that, I believe, are quite important. First, the concept of ambiguity and vagueness. As you say, by their nature laws cannot be utterly precise. They can only approximate reality and cannot cover all the circumstances that our real world offers. Without their vagueness and ambiguity, they could not offer space for adaptation and interpretation, and here, I guess, are the possibilities and the beauty that you note. But, this is an obvious statement and the truism in it can be dispelled when laws are looked at in their specific contexts. When I assess PRC laws, including the Law on Foreign NGOs, I tend to ask why such evident, open ambiguities are left there, and consequently reflect on the dangers that they pose. And herein lie both the problem and the explanation at once: laws such as the one we are discussing are not an articulation of some social contract. Some of those ambiguities could be easily avoided, but they are not because they are in line with the spirit and practical purposes that inform this specific law. In a system where we know who and how is interpreting the law and according to which interests, ambiguities can and will pose real dangers to people’s lives and it is this first and foremost consideration that should spring to our mind when we reflect upon a piece of legislation.

    Secondly, I find your view about pluralism a bit problematic. Again, there are plenty of writings out there on the concept of pluralism in general and legal pluralism more specifically, and I certainly don’t want to add any theoretical analysis to an already overpopulated field. However, to my taste, to say that “pluralism of value is already embodied in the Foreign NGO Management Law” because the law “is not the product of a single mind” goes too far and appears decontextualized. I feel that is just a part of the story, even because we don’t really know and fully understand the extent to which different views were actually taken into account into the drafting process and what kind of compromises the final version of the Law hides. I struggle to find a sense of pluralism in a Law that aims at arbitrarily protecting the interests of a single (P)/party and its representatives in the society.

    My last point relates to your final comment concerning the role of academics versus practitioners. Academics could potentially offer valuable reflections and contributions to the NGOs’ world. I believe that, if we want – and that’s a choice that our profession allows us to make – we can offer our concrete support through the deep analysis of a piece of legislation, through comparative analysis and maybe by sourcing analogue examples from other jurisdictions. But this implies a choice on whether and to what extent we want to engage with and contribute to the real world and some of its causes. A fundamental shift in our approach.

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