New Law on INGOs: Evaluation and Possible Stakeholder Responses

1. New Law on INGOs: Evaluation and Possible Stakeholder Responses • Dr. Horst Fabian • Civil Society Ambassador • Europe - China • EU-China NGO Twinning 2016, • Changsha, 18. – 20. August 2016 1

2. New INGO Law: Fears and Questions of European Stakeholders of CS Cooperation • Reasons and Experiences: • No single event, there is a global trend (Russia, Egypt, Ethiopia, etc.) – with disappointing experiences • But also perceived shortcomings in the law itself: • Rather vague legal definitions of national security concerns and national interest: the opposite of legal certainty • Strong role of Public Security Bureaus (instead of Foreign Affairs Bureaus as in Yunnan): how will they see and play their role??? • Political context in China: • a wave of repression against citizen rights organizations and lawyers • Notions of civil society and universal rights have been denounced as Western, imperial values and banned from the media and universities • Therefore many EU CS stakeholders ask: will the space of our CS cooperation be closed? 2

3. Structure of Argumentation • 1.Evaluation of risks, opportunities and implementation: • Risks of the new INGO Law: Erosion of cooperation by administrative arbitrariness and spiral of mutual mistrust • Opportunities: there may be some winners of the new law • Can the law be still be revised? No – Focus on shaping implementation • Evaluation of probable implementation: selective repression, no generalized crackdown • 2.How can and should stakeholders of our cooperation respond? • Possible responses of individual NGOs /Foundations • Concerted response of European stakeholders • Concerted response of Chinese /European stakeholders 3

4. Normative Rationale of New INGO Law • As sovereign state China has the right and moral reason to regulate its international civil society cooperation • Regulation is overdue – as of national civil society: INGOs have operated in an underregulated space • Therefore the decisive question not regulation or not but: which kind and goals of regulation • Without questioning the sovereign rights of China: as international stakeholders of our CS cooperation we are affected • This means: we should have a voice and we have to respond • The main message / narrative is defensive: it defines Western values as such as threatening and taboo instead of requesting and offering an intercultural dialogue • In a globalized world there are no national cultures; cultures are moving, dialoguing, colliding, mixing, transformed, adapted • This defensive approach has two shortcomings: • High price: it weakens Chinese innovation capacity as innovation requires 4

5. Are there Opportunities of the New INGO Law? • For some European stakeholders this may be a strange question, • but there may be some opportunities for some winners: • By defining rules the new law could raise the security and predictability of operation of certain bigger NGOs / Foundations regarding non-sensitive issues framing their programs / projects according to Chinese narratives • This would allow bigger projects within a longer operational time frame • Would this exclude sensitive issues as such, e. g. building stones of democratization? • Not necessarily: some aspects of democratization (transparency by public information disclosure, diverse varieties of public participation, innovative tools of local public deliberation (future conferences), public accountabiliuty, public monitoring, etc.) are part of the Chinese reform agenda • How can we explore these potentials: by consulting with our Chinese partners, asking for their advice and trusting their capacity to frame comon projects according tolerated Chinese frames

6. Risks of the New INGO Law • Dominance of discourse of national security (part of a sequence of national security laws) • Leadership role of Public security: a) launched law; b) dominant jurisdiction for registration and supervision • Law operates with general clauses (threat to national security, etc.): openness to administrative arbitrariness • Public security has an all-encompassing mandate of supervision, control and finally, repression (registration, approval of projects, human resources, finances) 6

7. The Main Risk: • Erosion of Cooperation by Spiral of Mutual Mistrust • The main ingredient and bond of cooperation: trust • EU – China CS cooperation supported by broadening, diversifying transboundary trust networks • Main message of new INGO Law is generalized mistrust against Western NGOs as carriers of Western values • We have been perceived as invited partners of the modernization of Chinese civil society • Now we are defined as suspects of illegal acts, as security risks which must be strictly supervised by the police • This is bad public diplomacy: we are forced to doubt Chinese reform path • The general clauses refering to national security and the subordination to an all-powerful police create among EU stakeholders an atmosphere of uncertainty, felt insecurity, fear and responsive mistrust • Such an atmosphere is not facilitating cooperation; instead it threatens to erode trust and trust networks 7

8. Defensive Evaluation of Western Ideas as Threat has a High Price • The main message / narrative is defensive: it defines Western values as such as threatening instead of requesting an intercultural dialogue • In a globalized world there are no national cultures; cultures are transboundary movers, dialoguing and colliding, mixing, transformed, adapted • Rich, innovative societies are mixed, „mestizo cultures“ • This means as well: European stakeholders of our cooperation always have to translate, reframe and adapt their discourse and practice of civil society cooperation to Chinese conditions – by logical necessity, not because of pressure • This defensive approach has several shortcomings and implications: • It underestimates the richness, capacities and resilience of Chinese culture; Chinese culture and society can only flourish in contact and dialogue with other, including Western cultures • High price: it weakens Chinese innovation capacity as innovative research requires dialogue, friction of different perspectives

9. Will the New INGO Law Lead to a Broad General Crackdown on EU – China Civil Society Cooperation?

10. General Crackdown on EU – China Civil Society Cooperation? • Why no broad, general crackdown? • The general strategy of control is a mix of acknowledgement of issues and rights, controlled participation and selective, fine-tuned repression • Civil society is a taboo concept since some time – without slowing down the phenomenal development of civil society (500.000 registered NGOs in 15 y) • The law has been anteceded by an experiment in Yunnan province with no significant negative impacts – But: here responsibility with MOCA!? • There is a double, parallel and at times contradictory movement of Chinese CS policy: 1. Relaxation of rules for many (not all) Chinese NGOs, and 2. Tightening of control and focused repression of some CS activities (human and civil rights, rights lawyers and other „sensitive issues“ (gays,etc.)

11. Selective Repression and Generalized Threat to Shape Future Civil Society Development • Crackdown is rather selective: Human/Civil right lawyers and advocates and organizations which are viewed as organized, potential political opposition (New Citizen Movement) • In quantitative terms the number of affected NGOs (no more than about 20) and people is small in comparison to registered NGOs (500.000) • One of the political goals of the new INGO Law aims at drying out Rights NGOs + 2) to reduce the cultural impact of overseas NGOs • Paradox: These Rights NGOs have not been partners or targets of EU – China CS cooperation – nevertheless we are affected by the new law • We have to respect that the Chinese government does not want a debate about democratic regime transition now – there are even some reasons for it

12. How Should European Civil Society to Selective Repression? Should We Ignore It? • Can we ignore how these groups are excluded? No! Why? • None of these groups is fighting for an immediate democracy transition • Their agenda is akin to a report of the Party School about 2008 Storming the Fortress, requesting measures of liberalization and democratization within the limits of one-party rule • The way they are treated: arbitrary legal procedures and decisions, forced confessions, etc.) • How should European civil society respond? • As Europeans we would deny our cultural, libeeral-democratic identity, if we would ignore tacitly administrative abuses. Therefore we have to voice our concerns • But we should not spend most of our energies on this issue and we should not withdraw from EU – China civil society cooperation • And our Chinese counterparts have to accept that we think differrently on this issue • But our main energies should be on the promotion of EU – China CS cooperation

13. Closed, Closing or Contested Spaces? • My assessment: Contested spaces instead of closing spaces: The new law defines rather restrictive framework conditions but how the new law will be implemented is far from certain. Why? • The new law has two rather contradictory goals: 1. to shape and control civil society cooperation according to national security interests; 2. To promote international civil society cooperation • The Chinese state is not monolithic; sometimes diverging interests and policy agendas • Implementation has been a weak point, in particular of CS regulations (see above) • It is an unknown black box how public security will act • European stakeholders are participants of the game. At least we should try to (re-)negotiate our cooperation and to mitigate the destructive effects of the new law 13

14. Winners and Losers: • Who will lose and who might benefit? 14

15. How Should We, the Stakeholders of EU – China CS Cooperation, Respond to the New Law?

16. Where Are We Now? • Between Law and Implementation • Many European partners and friends are so irritated by and unhappy with the law that they hope that the law still can be revised. I do not think so. Here a summary of my evaluation: • Is this law a threat to EU – China CS cooperation? Yes • Is a revision of the law desirable? Yes • Is a revision of the law realistic? No! It has been approved by the NPC in March 2016 und will become effective in January 2017. Next NPC: 03/17 • Conclusions: • We have to work within the general framework defined by the law. But as stakeholders we are not powerless, • should respond to it in concert, of the European, and as far as possible with our Chinese partners • prepare for the implementation phase (see below) • and try to renegotiate our CS cooperation with China based on intense consultations with our Chinese partners, considering their interests, frames and constraints 16

17. Possible Responses by Single European NGOs • How should single European stakeholders of CS cooperation with China respond to the law? I agree with the recommendations of S. Heilmann: • Consulting with Chinese stakeholders of EU – China CS cooperation (civil society, involved state actors, scientists /Think Tanks, entrepreneurs) how to respond to the new law and how to find smart solutions for a desirable smooth cooperation • Consulting with Chinese partner how to reframe programs / projects in accordance with tolerated Chinese frames • Drawing a red line and preparing how to react to arbitrariness and abuses – if possible, in close cooperation to Chinese stakeholders and in concert with other European stakeholders

18. Should the Stakeholders of EU China - CS Cooperation Develop Joint Initiatives to Shape the Implementation of the New Law? Yes! • Can stakeholders develop initiatives to shape the implementation mode of the new law? • This has to be explored with our Chinese partners. In principle the Chinese policy process is open for cooperative, solution-oriented feedback of stakeholders • We can and should refer to the committment of the new INGO law to facilitate the promotion and legal certainty by transparent regulation • Why should we untertake joint initiatives? • Because our cooperation is an public good to prevent and to manage conflicts and to foster other international public goods (preventing climate change, promoting sustainable development and development cooperation) • Are there differences in terms of more or less opportunities between policy fields? Yes. • Some policy fields are more international as solutions cannot do without international cooperation (preventing the trade oftoxic waste and products, • In some policy fields with international conventions (e. g. climate policy) institutional international arenas have developed with regular inclusion of NGOs • We should use the bargaining power acquired in these fields to voice the concerns of legitimate international stakeholders

19. Possible Institutional Tools to Develop Joint, Shared Responses • Organizational tools to deliberate and develop joint or concerted efforts to shape the new INGO law can only be the result of consultation processes between Chinese and European CS stakeholders. • Here are some tentative ideas: • A joint Future Conference of Chinese and European stakeholders to deliberate on the future of our cooperation under the new framework conditions on rules and rules and mid-term goals of our cooperation • A regular Roundtable of stakeholders preparing the implementation of the law with regular meetings afterwards (monitoring, responses to abuse) • Designing shared objective, science-based monitoring instruments monitoring the im,plementation of the law, e. g. monitoring by both, an European and a Chinese civil society research institute with yearly reports and yearly platforms of deliberation on evaluation and lessons to learn • Such institutionalized tools would allow • To secure transparency and facilitate predictability • And thereby to re-create the eroding trust and trust networks • To broaden and diversify EU – China stakeholder networks • Facilitate a non-repressive cultural translation and adaptation of European civil society traditions to China