By Scott Wilson
Since the People’s Republic of China’s Law on Administration of Activities of Overseas Nongovernmental Organisations in Mainland China (the Overseas NGO Law) went into effect on January 1, 2017, several news reports have detailed the law’s origins and its effects on the presence and engagement of foreign organisations in China.
The Overseas NGO Law has forced several foreign NGOs and foundations that previously operated in the grey area of China’s laws governing civil society to suspend operations and even consider withdrawal.
I contend that the law is the latest in a series of actions to drive a wedge between foreign actors and Chinese civil society, rendering Chinese NGOs dependent on China’s state for funding.
Chinese civil society includes relatively independent NGOs as well as government-organised NGOs (“GONGOs”), and China’s state is using laws such as the Overseas NGO Law to strengthen state-backed GONGOs and force the independent NGOs to serve the state’s interests. Here, I examine legal problems of NGOs in two sectors of civil society: environmental protection and HIV/AIDS.
For nearly a decade, China’s state has been codifying rules on Chinese and foreign NGOs to establish greater regulatory control over them. Prior to passage of the Overseas NGO Law, China’s State Administration on Foreign Exchange adopted its “Circular of the SAFE on Relevant Issues Concerning the Administration of Donations in Foreign Exchange by Domestic Institutions” in 2009, which made it difficult for foreign organisations to offer financial support and collaborate with domestic NGOs.
The Circular required both domestic and international NGOs to operate more transparently in China, mandating recipients of foreign donations to have a bank account (which required registration with authorities), a written agreement for how the funds were to be used, and proof that the foreign organisation was a registered non-profit organisation abroad.
The SAFE Circular and trial reforms governing NGOs dampened foreign organisations’ enthusiasm for operating in China and sharply reduced foreign funding for NGOs in some sectors of civil society, especially HIV/AIDS NGOs.
The Chinese government offered to support civil society organisations, but as Yu Fangqiang argues, the support introduced a process that reduced civil society advocacy. After the SAFE Circular and trial reforms were introduced, several international NGOs focusing on AIDS left China.
The SAFE Circular provided legal grounds for harassing several AIDS NGOs that criticised China’s policies. For example, Aizhixing Institute, the organisation that initially uncovered and publicised China’s blood scandal, repeatedly had its accounting books examined by the authorities. In May 2010, Wan Yanhai, the leader of Aizhixing Institute at the time, fled China.
Other legal aid organisations were also targeted. Activists at Tianxiagong, a legal advocacy group involved in China’s earliest AIDS employment discrimination lawsuits, were harassed in 2014.
In 2015, Yirenping, one of China’s foremost legal advocacy organisations, which had argued against employment discrimination, had two of its leading lawyers detained. Besides their commitment to defending legal rights, these organizations all had close ties to foreign NGOs. The SAFE Circular sought to sever that linkage, just as the China’s Overseas NGOs Law does today.
This year, the enforcement of the Overseas NGO Law has compelled activist international organisations such as the American Bar Association, which ran an influential Rule of Law Initiative, to close down. Previously, the ABA had registered as a business, a legal grey area.
The new law forced groups that propelled rights-based movements out of the grey area and, in the ABA’s case, out of the country. Other major foreign foundations and NGOs are facing similar prospects.
China’s Overseas NGO Law, like the SAFE Circular before it, allows authorities to target organisations that imperil the Party-state’s ability to guide civil society toward support for the regime’s goals. Domestic NGOs are reluctant to partner with or receive funds from an international NGO unless it is officially registered in China, reducing international NGOs’ influence.
As Shawn Shieh argues, “The intended effect… was not to drive NGOs from China but to corral them into officially-sanctioned areas and away from more sensitive areas working with grassroots NGOs working on rights protection, advocacy, religion, etc.”
Despite this pattern of incursions on NGOs that focus on rights, the situation of environmental NGOs complicates the picture. China’s environmental crisis poses the greatest challenge to the performance legitimacy of China’s regime, so the state must balance its tendency to repress opposition against its need for activists to help monitor polluters.
In a recent book, I argued that the state grants more space in which to operate to environmental NGOs than other sectors of civil society. For example, the SAFE Circular was not used to target environmental organisations despite a rising tide of environmental protests, and Chinese environmental lawyers and NGOs have sailed through recent political turbulence relatively unscathed.
Moreover, the 2014 revision of the Environmental Protection Law calls for citizen participation in environmental governance. Among other environmental rights, Article 58 of the Environmental Protection Law qualifies NGOs that meet particular criteria to file environmental public interest lawsuits.
China’s Open Government Information Regulations and Article 53 of the Environmental Protection Law grant citizens rights to environmental information, and citizens are even suing local environmental protection bureaus and government agencies for access to such information.
Environmental public interest litigation is an important new area of citizen activism that benefits China’s central government by reining in polluters and restoring the environment, but also illuminates state failure to regulate polluters. The revised Environmental Protection Law was intended to allow more citizen participation in filing lawsuits, but the results have been disappointing.
In 2015, the year after the revised Environmental Protection Law went into effect, the number of public interest lawsuits increased from previous years, but less than experts predicted. During 2016, the number of environmental public interest lawsuits rose, but the number of NGOs participating in the lawsuits decreased.
As such litigation has grown, citizens’ opportunities to participate in lawsuits have narrowed in two senses. First, the number of public interest lawsuits filed by NGOs has been outpaced by those filed by procuratorates and state agents, including GONGOs. Second, the number of NGOs filing public interest lawsuits declined from 11 in 2015 to just 4 in in the first seven months of 2016, with most of the NGOs being GONGOs.
Grassroots organisations such as Friends of Nature are carving out space for themselves in legal contestation from civil society, but their work is limited because of the high costs of environmental public interest litigation.
The SAFE Circular and Overseas NGO Law exacerbate Chinese NGOs’ resource problems by making it more difficult for international groups to collaborate with and support domestic NGOs. Unlike in the U.S., Chinese environmental public interest litigation is consolidating state leadership because the state and GONGOs have more resources for such lawsuits than grassroots NGOs.
Citizen activism in many domains is on the rise, but the state is attempting to limit activism through legal regulations in the name of regime stabilisation. China’s Overseas NGO Law exemplifies such an approach, just as the SAFE Circular did in 2009.
China’s approach to managing civil society is three-pronged: (1) cut ties between international and domestic NGOs in areas that the regime deems potentially destabilising while permitting cooperation in areas that supplement the state; (2) increase NGOs’ dependence on China’s state through the registration process and state funding, often through state contracting of NGOs’ services; and (3) selectively use the new formalised legal framework for civil society to target NGOs and civil society activists who challenge the regime’s ideological hegemony.
Scott Wilson is Professor and Associate Dean for Global Education at University of the South.