Counterpoint: Universities in China

09 May 2017
Author:

Last month I published an article arguing that western universities in China were failing to uphold human rights and violating the UN's Guiding Principles. An individual with extensive experience in China wrote to me and made powerful arguments opposing my view. With this individual's permission, I reprint below the message that was sent to me. The individual wishes to remain anonymous. 

***

Dear Mr. Precht,
 
Your article sparked interest to which I offer you some respectful random observations. The points I raise below are in no special order of importance, and while I'm not an academic I've tried to lay them out in a clear format, which may generate further academic dialogue on such a relevant topic today. 
 

Not every product of western thought is appropriate in China.

1)  I've read your impressive bio, and see that you have worked with law schools in China. Hence, I was a bit surprised that the goals or standards laid out are achievable under the current regime. I could certainly understand if your goal is simply to raise awareness amongst administrators in the West, but I find it hard to believe any of the foreign institutions currently operating in China, similar to many corporations operating in China, would consider risking their licenses to operate and implement the solutions you have proposed. I believe there is a reason why the Guiding Principles in fact don't dictate or directly apply these standards to academic institutions. At the end of the day, I break it down to a simple cost benefit analysis for these administrators. And I don't mean simply in terms of dollars and cents. I find it hard to believe that website policy statements/joint statements will have any substantive effect, but depending on the approach the cost to the school in operating efficiently or at all are great. I can only assume that administrators feel that they can effectuate far more dramatic change in the rule of law by operating and teaching principles from the West in and outside academic institutions in China, hosting conferences and creating joint research projects/publications utilizing/comparing western principles and ideas. This is similar to the work I was involved with Columbia and the Ford Foundation many years ago. My experience, and maybe the experience of others on the list, is that one has a far better chance of impacting change from within than purely giving negative pressure/criticism from the outside.

We must remember that not every product of western thought, law, practice and culture is appropriate in China as is the case in many places around the world. Change/development in whatever form can take years and even generations. Take the example of IP law in China. For years, governments, actors, singers and private corporations from abroad lobbied relentlessly to crack down on IP infringements in China. That started at a time when the Chinese people didn't completely understand the benefits of IP. Only when Chinese actors, singers programmers, corporations and scientists realized what IP meant for their own personal interests, (in part due to the work and collaboration at the academic levels) then we finally saw pressure from within to implement laws and regulations to protect IP? It’s not a perfect system and one can still buy a DVD of the latest movies in the basement of Silk Alley for 10 yuan, but China now is one of the largest registers of patents in the world. There have been IP judgments in favor of western brands in China and Michael Jordan and Donald Trump can now say that their names are at least registered, and to a certain degree protected, in China. 
 

US institutions should be applauded for past successes.

2)  Your article well describes the guiding principles, but this would/should apply to every academic institution operating anywhere in the world where human rights abuses take place. Why single out China? I think it's one thing to crack down on Western companies manufacturing in China and committing human rights abuses. However, at this stage of China's development, the fact that Western universities are actually operating on the ground, having classes taught by westerners debating western law along with all the other joint programs, is enormous progress. Both the Chinese and US government and Chinese/US institutions should be applauded for this remarkable success and the positive results therefrom. This fact should have been noted in the article. It might not be perfect, but neither are these guiding principles. Any approach to solve the issues you laid out should be fair and balanced, cooperative in nature, and practical and reasonable for the specific country one is operating in at the time. However, I absolutely cannot support the premise that these western academic institutions operating in China are responsible, complicit or “endorsing” human rights violations by not taking a firmer stand in the form you or these guidelines are suggesting.
 

Your article fails to credit the work of scholars who have made a difference. 

3)   I also struggle with the fact that there are far too many groups on the left that no matter what universities or corporations do or don't do, say or don't say, any positive impact (small or large, in the short term or long term) will still be subject to immense criticism for “not doing enough”. In my 25 years, China has made incredible strides when it comes to the rule of law, and to dismiss or minimize that would also be unfair. Take NYU for example, they have established a campus in China. Are you suggesting that they are tainted for not taking a more proactive role in the fight against human rights violations in China? Shouldn't one also take into consideration NYU's activities outside of China and the tremendous work Jerry Cohen (and other institutions) has accomplished in this field (Criminal and Human Rights in China) at the NYU China Law Center? Columbia University and the work that Randy Edwards and Ben Liebman and so many others on this list, working under the auspices of these same institutions, although be it from the U.S., should be taken into account in your article.

There was a time I studied law in China and witnessing the changes in academic freedom, the freedom of the press to report on corruption and even human rights violations by government officials, private and public companies over the last 30 years have vastly improved. Some can argue that this administration has rolled back some of that progress, but I still feel the landscape is far different from decades ago. The motivations may be varied, but prosecuting hundreds of thousands of government officials has certainly had a positive impact on human rights. Foreign corporations and Chinese companies that learn from western companies, western programs (including legal) both in and out of China, programs that have been established to improve judges and arbitrators have vastly improved working conditions and the rule of law in China. Better economic conditions have led to better working and living conditions, and even the ability in China to relocate, something incredibly hard to do prior to 2000. Social freedoms have increased, but challenges still exist. China has also signed several treaties and the majority of the UN Human Rights agreements. The fact that these agreements have been signed, and in may cases integrated into local laws is a massive change, even though following them in every province, county, city, town and village for 1.4 billion people presents its own challenges. Legal aid groups have expanded their work in China, granted they're operating under heavy scrutiny, which you and I can personally say has been helped by the assistance from foreign universities active in China.
 

In the big picture China has changed for the better. 

4)   A little off topic, but take another example of change that I experienced in the nineties. When I sat in my first law class in 1994, not one question was asked nor answered. It was a simple two hour lecture leading to a final exam. By the my middle of my tenure at Beijing University, the Socratic method had been implemented in most of my classes. I don't believe all these changes happened in a vacuum and without the influence of Western law schools operating or cooperating with their Chinese counterparts, and in some cases the Chinese government, e.g. Ministry of Justice and Ministry of Education. 

5) What probably hasn't been done is a real analytical research project into where have these graduates or attendees of foreign programs and projects operating in China ended up. What influence have these people had on the system, policy, law and the decision-making process. Some of these programs are new and cannot yet be evaluated. What practices from the West have they tried to implement in their government or even in the private sector, including SOEs, which has positively impacted human rights issues and raised the bar for the standards in the working and living environments. I have yet to see a study that really surveys the changes that are being achieved from within by the beneficiaries of western educational programs. Some may not want to be quoted either, but that doesn't mean change hasn't been implemented. Simply look at the laws and regulations established or revised between then and now, and the improvements in judicial and arbitration decisions from 30 years ago until today. Look at the Chinese scholars and their literature that have actively studied western law and practices in China or studied abroad and returned to China and have integrated these into their classes and throughout the system.

 

Where do we draw lines? 

6)  You also raised a comment off-line as "To what extent do we engage, and to what extent do we draw the lines" ? The former is a lot easier to answer than the latter. The former includes everything that has been done and can continue to be done, e.g. western teachers, western institutions on the ground, conferences, collaborative research projects and publications, exchange of visiting scholars, training programs for lawyers, judges, prosecutors and even government officials. One very critical component that should not be forgotten and should be praised are the MILLIONS of dollars that have been committed and spent on these programs by both US and Chinese institutions. Remember that professor/judge/prosecutor from a Chinese institution can't take off for a year to study at Columbia without permission and the support of the home institution/government. NYU and other have spent millions setting up programs in China. The fact that's encouraged is also huge progress. During my years at Columbia we had a judge from the Supreme Court as a visiting scholar for a year on full scholarship. I have not kept up with it, but I'm assuming these and other programs have continued and have been funded by a variety of academic/government institutions. This is an active and not passive role and the fact that these institutions have spent millions of dollars, time and energy to set up programs in China and negotiate these terms with local authorities in and of itself shows that these institutions are not playing a passive role. Those who have worked hard and continue to push for more programs should be recognized and commended.
 

7) Now the harder question- where does one draw the lines? My answer here from a practical standpoint is that it's simply a "moving target" . This will depend on who is in power at the national, local and institutional level. One can always try to push the limits from time to time, and one does have to accept the current government's authority/limits/restrictions on free speech in China. However, I think senior US administrators can engage with the government and local counterparts when specific human rights issues come up in the press to offer their opinion in a "constructive" dialogue. NYU or others can and should continue to speak out in the US as Jerry has done on numerous occasions and creating that dialogue I suggested may not change the overall thinking of the leadership, but dialogue in a constructive fashion as has been done for years has made a positive impact. These programs and institutions can work with the decision makers and the advisors to decision makers, think tanks and chambers of commerce, as has been done for years, in another effective way that has already made enormous impacts on the ground.

8) Coincidentally, the following article was just published by the NYT and I think is relevant to your article and my comments. While I've stated that US institutions have limited abilities to become activists on HR issues within China, the article below is troubling to me if US institutions operating in the US can be subject to any form of long-arm censorship within the construct and environment of US universities protected by the first amendment. Academic freedom and free speech in the US is the bedrock of our system and US constitution, and as much as I have zero tolerance for the liberal left suppressing conservative speech at the University of California or anywhere else in the US, I would also object to the University of California giving in to any outside pressure from China to suppress speech on it's US campus.

https://mobile.nytimes.com/2017/05/04/us/chinese-students-western-campus...

 

It's not the role of universities to be human rights activists.

9)  Part of what I'm saying is that I don't believe the institutions should become "human rights activists" and risk losing their licenses to operate. I believe I’ve made the case that the benefits still outweigh the costs. The work that you’re suggesting should be left to organizations like the UN, G to G negotiations, and Human Rights Watch, Amnesty and other NGOs that have raised millions of dollars to focus their efforts on these types of cases and that type of lobbying. Let the academics operating on the ground in China focus on teaching, learning, collaborating this generation and others in a constructive fashion. The new NGO law has created some new challenges for them operating in China, but again that doesn't mean the responsibility should fall on the academic institutions and certainly doesn't mean that they are "endorsing" or complicit in any way as to HR violations by not speaking out in the way you are suggesting while the NGOs figure out how to get registered or operate in China. 
 

Conclusion

10)  Allow me to summarize an already lengthy email, which some may appreciate and others may not. As you can see I very much enjoyed reading your article and learning about the "Guiding Principles ", but I think what may be lacking in your article was twofold: 1) The hard work, investment, success and impact of programs, lectures, conference and articles by professors and institutions operating in China and abroad and their substantive impact on the Rule of law and China's human rights issues, but yet still have a very active program, although alternative approach and presence in China, and similar in point 2) a more balanced view and even minimal recognition that serious change and improvement in human rights has in fact taken place, and I believe much of that can be accredited to foreign academic institutions operating in China on various levels for 30 years…or longer in the case of Jerry, Randy and Don and many others I respect and have learned from.
 
Respectfully yours,
 
PS While not a legal institution, nor a US based university and still developing, it will be interesting to see how you or the authors of the guiding principles will view the Schwartzman Scholars Program and their approach to these issues in the coming years.