China: Three things to know about the draft NGO Law

27.04.2016

Despite significant concerns raised by a range of stakeholders over the past year, including ISHR, Chinese lawmakers look ready to adopt a revised draft law governing activities of NGOs. The negative impact on defenders is expected to be severe.

Photo courtesy of Tibet Post/CHRD

在这里可以阅读中文版

UPDATE: See the 3 May 2016 statement by UN Special Rapporteurs on the NGO law here. 

(Geneva) - Despite significant concerns raised by a range of stakeholders over the past year, including ISHR, Chinese lawmakers look ready to adopt a regressive new law governing the activities of NGOs.

If adopted this week, the law would join a slate of restrictive legislation – the National Security Law, Counterterrorism Law and Charity Law – that together mark a dangerous change in approach to the regulation of civil society, in particular advocacy organisations. Before, there was some conditional tolerance for independent organisations, and some kinds of dissent which the government permitted as a healthy ‘release valve’. Now, activists argue that the NGO Management Law signifies the end of this uneasy partnership and the beginning of their definition as 'enemies of the State'.

‘It is very likely that this legislation will interfere significantly and impact negatively on the legitimate activities of civil society,’ said Sarah M. Brooks, ISHR Asia advocate. ‘And this, despite Chinese auhorities receiving hundreds of public comments, and advice that the draft law is direct contradiction to international standards.’

This draft, the third and likely final, has not been publicly released. Based on coverage by official Chinese- and English-language media, however, ISHR highlights a few important takeaways:

  1. Small improvements: Some restrictions that appeared in the last draft have been removed. For example, overseas-based NGOs can open more than one office, if their work requires it, and no longer face five-year time limits on registration. Restrictions on recruitment of volunteers have also been dropped. Xinhua has stated, ‘these changes intend to make operating in China easier for legal, friendly overseas NGOs.’ Xinhua reporting has also implied that the definition of ‘NGO’ has been narrowed to exclude academic and professional institutions, but this has not been made explicit.

Ms Brooks said, ‘The draft may have been wrested back by savvier lawmakers who recognise the need for moderation; that would explain some of the positive changes in language. But the fingerprints of the Ministry of Public Security, which according to some reporting was explicitly tasked with this job by the State Council, are clearer than ever before.’

  1. Significant controls: The trade-off for these operational-level improvements is an extraordinary concession to oversight organs, such as the Ministry of Public Security. Executives in organisations covered by the law can be ‘interviewed’ effectively at will by local enforcement officials. Those organisations that are determined to be engaged in activities that ‘harm national security, subvert state power or split the nation’ risk having their activities stopped and being added to a blacklist.

The UN Special Rapporteur on Freedom of Association and Peaceful Assembly, Maina Kiai, along with rapporteurs on freedom of expression and human rights defenders, submitted a letter to the Chinese authorities on 16 April 2015. This clearly articulated concerns about ‘the compromising effect of several provisions of this draft Law on… [civil society organisations’] ability to conduct their activities freely and without undue interference from the State.’

This is supported by Maina Kiai’s work to elaborate best practices in protecting the rights of civil society organisations, including a prohibition on requiring the submission of workplans to government officials and on state actions to sanction organisations with suspension or dissolution.

  1. Glaring gaps: Of course, as with many other legal provisions listing such illegal activities, what constitutes such behaviour remains ill-defined, and the determination of legality is at the discretion of those same security authorities. There are no clear mechanisms for appeal or disclosure of that decision-making process. In other words, organisations seen to challenge the Party line might risk having their work undercut from one day to the next, creating an additional level of instability for organisations in an already challenging sector.

The official response to the letter from the UN experts notes that the law is ‘a specific demonstration of China’s strategic deployment of "running the country according to law"', outlines the process for public consultations, and justifies the use of public security offices based on ‘positive experience abroad’. The aim, the response argues, is to ensure that in exchange for protection of these ‘legitimate rights’, overseas NGOs must not ‘undermine the unity of the country, [harm] national security and ethnic solidarity… harm China’s national interest, social public interests and the legitimate rights of other organisations and citizens.’

So where is the outrage?

A number of countries have raised this issue directly with China, in the Human Rights Council and in bilateral dialogues and public statements. The US, Canada, UK, EU and others have noted issues with the sweeping nature of the law and called for the law to be scrapped entirely. The UN High Commissioner for Human Rights raised concerns about the impact of the law on 16 February, noting in a wide-ranging press release on the situation of human rights in China that:

‘…more and more governments around the world are using national security measures to restrict rights… and as a tool to target human rights defenders.’

Contrary to expectations, many defenders in the country have remained subdued in light of this week’s news. For them, this has become business as usual. With so much pressure already put on civil society, small edits to the law are not seen as a meaningful response to their fundamental concerns. NGO workers will still see their relationships with international NGOs cut off, and human rights activists will see the clamp down continue on human rights lawyers like those from the 709 crackdown; leaders of house churches and other Christian communities; and labour and housing rights activists.

As one overseas NGO has noted, the authorities seem to be enforcing the law as they wish – even while still in draft form. They point to Swedish NGO worker Peter Dahlin as one of the first victims of the repressive legislation.

Another activist put it more simply: ‘From the day it enters the national legal framework, this law will allow the state to violate human rights “in accordance with law”.’

For inquiries, contact Asia advocate Sarah M. Brooks at s.brooks[at]ishr.ch or on Twitter @sarahmcneer.

Category:

Region
  • Asia
Topic
  • Freedom of expression, association and assembly
  • NGOs
Mechanism
  • Special Procedures of the UN Human Rights Council
Country
  • China