In a sign of support for China’s embattled rights lawyers, the American Bar Association earlier this month announced it is giving the organization’s first ever "International Human Rights Award” to Chinese human rights lawyer Wang Yu.
Wang, based in Beijing and widely known for her work on behalf of women and religious minorities, was arrested by the Chinese authorities last year on charges of “anti-state activity,” and remains incarcerated in China. According to the ABA, she’s awaiting trial, and will receive the award in absentia at the association’s annual meeting in San Francisco next month.
She is one of hundreds of lawyers whom the PRC government reportedly has detained since launching a crackdown last summer in what has been widely perceived as an effort to silence dissent.
A number of bar associations and legal organizations, including the New York City Bar Association and the International Bar Association, issued letters last year condemning the crackdown and calling on the Chinese government to release prisoners.
The ABA also issued a letter , calling for the government to “permit lawyers to discharge their professional duty.” But lawyers, law professors, and even members of Congress alleged the association hadn’t been harsh enough in its condemnation of the arrests.
That criticism grew louder after it rescinded its offer to publish a book by Teng Biao, another prominent Chinese human rights lawyer and Biao made public an email he received from an ABA employee who said the organization was concerned about "upsetting the Chinese government.”
The ABA has said the employee was mistaken and the deal was rescinded purely for business reasons, but the incident nevertheless prompted a letter from Congress asking the ABA for a better explanation.
In a recent interview with Big Law Business, Jerome Cohen, a professor who studies China at NYU Law School, called the ABA’s award to Wang Yu a “brilliant stroke” on the part of the ABA, and a positive sign the organization is taking a stronger stance on human rights.
Cohen also explained why the targeting of lawyers by the Communist Party and Chinese President Xi Jinping isn’t arbitrary: as Xi moves to consolidate power and institute his favored economic program, a lot of “vested interests” are pushing back.
“Lawyers are natural representatives,” Cohen said. “Without them people can’t use law to protect their interests, and that’s why Xi is making sure lawyers will not be available to challenge him.”
A widely recognized expert on China, Cohen is also of counsel at Paul, Weiss, Rifkind, Wharton & Garrison, and writes about China on his own blog .
We recently spoke with Cohen over Skype about the ABA’s decision to recognize Wang, the ongoing saga over Teng Biao’s canceled book deal, and the future of the legal community in China.
Below is an edited transcript of the interview.
Big Law Business: What did you think of the award to Wang Yu?
Cohen: Many, many of us who are involved with law are delighted that the ABA has done this. Those of us who work in the China field are especially happy, and I think this marks terrific progress on the part of the ABA and its leadership. It was a brilliant stroke to move from debating to what extent the ABA should show concern for what’s happening to the lawyers in China to its decision to give Wang Yu this distinguished award.
All of us who’ve been involved in the debate are thrilled by what the ABA has done. We, certainly those of us who’ve been critics of the ABA’s tepid response last year, are thrilled with its new response.
About Wang Yu, you couldn’t find a more appropriate recipient for this award. She is a courageous, dynamic, determined human rights lawyer. You can’t imagine what it takes, today, for any lawyer, male or female, to continue to advocate for human rights in China. It takes an amount of courage that I would find extremely hard to muster, if I were in her shoes. One wonders what is it, in ideology and religion, that sustains somebody’s long-term effort, even though they know it will lead to severe punishment, hardship, and not only for themselves but also for their families.
She is a great person, widely admired, and I think the choice of her, when there are so many other good candidates as well, has been unanimously praised by people who are knowledgeable about the dire situation of lawyers in China.
Big Law Business: What influence do you think criticism of the ABA has had on the organization?
Cohen: I think there’s no doubt the debate last year certainly heightened awareness on the part of all people in the ABA, as well as lawyers outside. I think the ABA had a very understandable concern about retaining its useful activities in China, if it went too far and joined many other bar associations and critics of China. I think education, debate, and the continuing repression by Xi Jinping of the legal profession in China finally tilted the balance. And this was a wonderful way to demonstrate to the United States, the world, and to China and its leadership how much we support the human rights in China.
There’s no doubt the debate helped unite the troops. I assume that with the new foreign NGO law going into effect in China on January 1, the ABA will have to cope, just like so many other excellent foreign organizations, with the obstacles that the Chinese government is putting in their way. How they’ll cope we shall see.
I think eventually, if not immediately, there will be a new leadership in China that will have a much higher, more sophisticated awareness of the great value that organizations like the ABA have been providing to China. They will give a much warmer welcome, as they used to in the 1980s.
Big Law Business: What new leadership in China?
Cohen: There are very difficult struggles going on in China today, not only with respect to the degree of repression, but also with respect to how to help the Chinese economy meet its current, very great challenges. And the two are related. Xi Jinping is a high-roller, a bold gambler who has taken many bold measures to get the Chinese economy to become more responsive to the current challenges. The problem is he is facign a lot of opposition, and he himself has not pursued a steadfast policy with respect to economic reform.
But he doesn’t want to brook any opposition. He feels he can’t afford any opposition, and therefore is repressing any independent group, not just lawyers, but also journalists and NGOs, civil society. It’s only the communist party that can be supported, he believes.
And the problem is the party is badly divided. Even today, Xi and his prime minister don’t have agreement as to what course the economy should pursue. In these circumstances, a lot of struggle is going on in China. There are a lot of vested interests that don’t want their wings clipped. Lawyers are natural representatives: without them people can’t use law to protect their interests, and that’s why Xi is making sure lawyers will not be available to challenge him.
We’re facing a very difficult situation in China. Many people think it’s certain that Xi next year will get another five-year term. There are many people who think he will maneuver like Putin to extend his term. That would be a violation of practice, and it would certainly concern many people, but yet one can’t be confident that he will fill out a second term. He has assumed so much power that all responsibility will come to his door step, and more and more people will be able to see him go. He’s a powerful, tough guy, who’s violating his father’s precepts that the party should be more democratic and allow more opinions.
Big Law Business: On your blog, you say, “Unfortunately, in its defense, all too often [China] is able to cite previous United States violations.” What are some examples where the U.S. could be more consistent?
Cohen: China’s only defense, and its one that’s been used by Russia also, is that in 1986, President Reagan, having lost a jurisdictional argument before the International Court of Justice, in a dispute with Nicaragua, did not take part in the final decision, and then ignored the court’s decision. This has been a black eye for the United States. What people have ignored is that in many respects the U.S. has abided by adverse decisions of the International Court of Justice, or international arbitrations, but what everyone abroad certainly focuses on is the way Reagan thumbed his nose at the ICJ over Nicaragua.
That was a long time ago, the U.S. has improved its record since then, but the big failing with the U.S. as I pointed out in my recent letter to the New York Times , is the refusal of the Senate to grant advice and consent to our signature and ratification of the UNCLOS Treaty. This puts us in a terrible position. We’re urging The Philippines and others to resolve disputes by UNCLOS, but we refuse to subject ourselves to the same procedures.
[Editor’s Note: The United Nations Convention on the Law of the Sea, or UNCLOS Treaty, is an international agreement that defines the rights and responsibilities of nations with respect to their use of the world’s oceans.]
Big Law Business: The ABA’s been criticized a lot for not moving ahead with Teng Biao’s book deal. Where do you think the ABA’s apparent pivot leaves him?
Cohen: Teng Biao is a great man. He’s also highly appreciated and constantly traveling because people want to hear from him, and he knows its very important that they do hear from him. We’re delighted at NYU’s U.S.-Asia Law Institute that he’s a distinguished visiting scholar, and we have renewed his appointment for the coming academic year.
I hope he can find the time in between his many obligations to actually finish the book. Certainly the ABA’s new attitude I think will be helpful in maybe supporting a publisher’s appreciation of the book, and it certainly has helped with publicity, so I think this whole incident that started with the ABA’s refusal to pursue a book contract with him is turning out well for him. I’m in touch with him very frequently, and I think this award — which he might well have deserved himself, except he has been out of China for last two and a half years or so — is going to help him.