HIV/AIDS and Human Rights in China – Law Professors to the Rescue?
posted by Scott Burris
I was supposed to be in China this week. A New York-based NGO called Asia Catalyst had organized a meeting on HIV and human rights. It was meant to bring together an emerging network of grassroots Chinese HIV advocates with experienced AIDS lawyers from around the world. Late last week, as Reuters reports, the Chinese government stepped in. The meeting was cancelled, the organizers told that “the combination of AIDS, law and foreigners was too sensitive.”
God knows it is flattering for any law professor to be thought of as a threat to social order, but the truth is, our meeting would have been good, not bad, for China. Virtually every country that has mounted a successful drive against HIV has depended in significant part on NGOs to provide services to gay people, drug users and sex workers -– people who are often inclined to duck and cover when government health officials come around with offers of help. Defending the rights of people with HIV is a crucial step towards creating the sort of social environment in which prevention and care reach those who need it. Independent legal advocacy organizations can productively push debate around politically sensitive policies (like de facto discrimination against homosexuals, or the criminalization of sex work), and challenge stigmatizing attitudes. They can monitor the public and private agencies funded to deliver health care and other services to people with HIV. NGOs also provide independent avenues of cooperation and communication with foreigners. And, just for the record, China is far from a disaster on the AIDS control front. More than most countries, its government has paid attention to the evidence and invested substantially in proven interventions like needle exchange. China’s response is not perfect, but it compares well with that of other countries similar stages of their epidemic development. (China’s HIV program is described in a Lancet article; there’s also a comment arguing that China is devoting too many resources to HIV in comparison with other, more prevalent health threats like smoking.)
Unfortunately, the Chinese government is not well-disposed to independent social action, particularly when it might be amplified through contact with foreigners. Some say it’s the Olympics – only nice news from China in the next 12 months, please. Others point to the report that there were something like 87,000 public protests in China in 2005 – enough to make any leadership cadre appreciate a little civil obedience. There’s the pessimistic view that the current leadership is Putinizing the nation, building up China’s military and getting tough on dissent on the home front. Whatever the causes, Chinese leaders are, as a group, ambivalent about civil society. Both NGOs and an independent legal system have the potential to help the Beijing regime deal with its terrible problems of corruption and social injustice – within the law. Many Chinese leaders recognize this, and there is support within the state for these developments. But in the case of our meeting, someone in the Public Security Bureau looked at the prospect of independent human rights lawyers networking with obstreperous global advocates – and blinked.
Like it or not, anyone promoting civil society and the rule of law in China has got to deal with this ambivalence. All kinds of actors in China – government officials, new capitalists, NGOs, members of the rising middle class, peasants – are jostling on road to the future, not entirely sure where they want to end up or the best way to get there. From a pragmatic point of view, one of the best things outsiders can do is invest in the intellectual infrastructure of human rights, rule of law and good governance. One excellent way to do that is to support the work of Chinese academics.
Law professors – the engine of social change. Alright, that’s a bit incredible, so let me put it another way: in China now, it is useful to see “civil society” in functional, rather than categorical terms. The true non-government sector is growing exponentially, but it is hemmed in by legal restrictions and undermined by a lack of money – both of which reflect to some degree the government’s impulse to retain control. At the same time, organizations formally within government — universities, media, “GONGOs”, even religious organizations — perform many of the functions of independent civil society in the West. And when it comes to developing new ideas in the human rights and anti-stigma line – specifically when it comes to making the case for progressive, evidence-based policies for HIV control — academics are typically in the vanguard. The Chinese government is reasonably open to research, social inquiry and policy proposals. It is far more comfortable hearing uncomfortable truths and suggestions for reform when they come from institutions that are under state control, even if that control is in practice exercised lightly and sporadically. Thus, well-established journals and academic publishers regulatory put out papers outlining the same sort of policy recommendations that one would see in our own academic literature. My Chinese colleagues and I had no difficulty, for example, conducting a study of how police and other public officials treated drug users at syringe exchanges, methadone clinics and AIDS research sites, or publishing an article about the tensions between criminalizing sex work and preventing HIV. In fact, China’s leaders seem to pay more attention to the evidence and ideas mustered by academics than our own leaders do. To take just one painful example, China’s central government is paying for needle exchange while ours continues to refuse, and China now has four times more exchanges in operation than we do in the US.
In China today, professors are documenting the social factors that promote HIV, writing about the impact of stigma, law enforcement, rules on migration. It was a Chinese law professor, Zhou Wei, who brought the landmark case of Zhang Xianzhu vs. the Personnel Bureau in Wuhu City, the first successful administrative lawsuit on Hepatitis B discrimination in employment in China. Professor Zhang Beichuan from Qingdao University is a leader in the effort to de-stigmatize homosexuality. Professors influence not just government officials, but also the intelligentsia, civil society and, perhaps most importantly, generations of students. In the end, human rights and the rule of law are ideas, and spreading ideas is still something universities do pretty well. I’m hopeful that China is growing into a freer and more open society. I’m convinced that it will only do so with Chinese ideas leading the way.
August 3, 2007 at 10:30 am
Posted in: Civil Rights, Health Law, Politics
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Responses (5)
China Law Blog - August 3, 2007 at 12:08 pm
Great post. Unfortunately, China does not yet understand the benefits of free speech. Sorry your trip was cancelled.
Patrick S. O'Donnell - August 3, 2007 at 12:15 pm
This strikes me as a thoughtful and very nuanced if not sophisticated picture of things in China today. Only the last sentence, taken literally, seemed a bit out of place: “Chinese ideas”? Democratic theory and practice are not “Chinese ideas,” nor are “human rights,” but both have relevance to social change and reforms in China, even if they get translated into Chinese idioms (e.g., academic papers showing how Confucius had an incipient notion of human rights or that his philosophy–or that of neo-Confucianism for that matter–does not contravene human rights norms). If you mean, on the other hand, that leadership and momentum for change will need to be of Chinese provenance in a manner that speaks to Chinese traditions and worldviews while wending its way through Chinese social media and institutions so as not to be seen as threatening to formal structures of (traditional and novel) legal and political power in China, then I think you’re absolutely right. And you remind us that civil societies are not democratic by definition, necessarily structured in conjunction with the State (hence never wholly apart from the State). In any case, China has had enough of (violent) revolution, be it political or cultural. And today’s China seems to have distanced itself in some respects from the type of rule and policies that contributed to the famine of 1958-1961 in which it is estimated some 23 to 30 million people died.
By the way, I’ve found both the China Law Blog (http://www.chinalawblog.com/) and the Chinese Law Prof Blog (http://lawprofessors.typepad.com/china_law_prof_blog/) to be informative on many topics, not all strictly related to economics, business and law (the former with a nice list of China blogs). And Randall Peerenboom’s articles and books I’ve found to be reliable guides on many topics (non-medical) raised in your informative post.
Frank - August 3, 2007 at 12:15 pm
That’s a fascinating analysis. . . especially regarding the GONGO’s (I’d only heard of Quango’s.)
Your post raises the difficult question of the relative efficiency of supporting the work of groups within and outside the government. As I understand it, you are suggesting that the former are likely to do more for positive social change–even if their conclusions may well be tempered by their close connection to existing power centers.
I’m reminded of Google’s situation in China. They can either play by the government’s rules (essentially becoming an arm of the government to the extent they carry out its wishing–a bit like our phone companies re NSA spying). . . or risk being thrown out altogether.
A.J. Sutter - August 4, 2007 at 1:44 am
Interesting and sad but true IMHO. I’m involved in an incipient NGO-like project with the finance department at a Top 5 university in Beijing. (Organization was formed in Hong Kong, since it’s such a hassle on the Mainland.) Focus is on environmental problems, corporate social responsibility and the like. Student attitudes are very interesting — their ideas for change are *all* based on the government’s enhancing control-oriented measures (e.g., complex evaluation schemes for punishing local government officials, certifying the “greenest” companies, etc.), rather than liberalizing ones, much less that citizens or NGOs should take any initiative.
The point about supporting Chinese academics is important (though I think “Chinese thinkers” rather than “Chinese ideas” in the post’s last line might be more to the point?). The lead tenured prof on my project is a Beijing-born, naturalized US citizen. I think folks like her are an important channel for bringing fresh thinking into the country. Nonetheless, even she sometimes becomes extremely sensitive and worried about rubbing the government the wrong way, in contexts that just baffle me. Which brings us back to ambivalence, and self-censorship: the last thing you want to do is to advocate actions that can get your friends in trouble. It’s hard for us to appreciate the gravity of the consequences of too-free speech in China, even about things like clean water and public health.
Apropos of this, I think the reference to “Putinization” is not apt. Unlike Russia, China has been a Communist, nondemocratic country continously for the past 50+ years. Among the people I know there, the consensus is more that Hu & al. actually *believe* more of what they learned in their courses on Marxist-Leninism than did their predecessors. So the recent apparent tightening up of the country may be a manifestation of a very scary sort of idealism.
Apropos of Frank’s comment about who will do more for positive social change — I’d agree that groups within the government are more likely to effect change for now. But I hope that groups outside the government, including just ordinary citizens, will have a role in more substantial and positive social change for the future. For this reason, talking with students is an even higher priority for me than talking with the profs.
LM - August 6, 2007 at 9:57 pm
Frank,
Actually, I think it may be Yahoo that you’re thinking of, not Google (though I could be wrong…). In response to claims that its cooperation with the Chinese government has resulted in the arbitrary detention of Chinese journalists, Yahoo said that it had no choice but to comply with local laws in China, and was legally obligated to hand over the identities of its private customers. Yahoo’s servers are located within China, so, according to the corporation, any official request for such information must be complied with.
Google, on the other hand, does not provide e-mail or blog services in China, for precisely that reason: it does not wish to hand over the identities of its customers when doing so will likely enable the PRC to imprison (or worse) journalists and internet users for exercising their freedom of speech via the internet. It seems that Google has, indeed, found a way around Chinese laws, while still providing some services in China.
Much more detailed information may be found here: http://www.hrw.org/reports/2006/china0806/.
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