U.S.–China Week: NGO law moving, Scarborough reclamation? New U.S. spy cases, Fontaine and Rapp-Hooper on world order (2016.04.25)

Welcome to issue 49 of U.S.–China Week. As always: Please encourage friends and colleagues to subscribe to U.S.–China Week. Here is the web version of this issue, ideal for sharing on social media. And please send your comments, quibbles, and suggestions to [email protected].

BOUNDARIES
‘Foreign NGO’ law changed substantially as passage seen likely this week; reported changes leave much uncertain

The Standing Committee of China’s National People’s Congress on Monday began a session that is to include review and possible passage of the much-discussed “foreign NGO” law. My Yale colleague Jeremy Daum, founder of China Law Translate, has posted a detailed discussion of changes to the bill that Xinhua reported are included in the version under consideration. While Global Times reported that police are likely to remain the regulating agency, Xinhua tells us the definition of “foreign NGO” has shifted significantly. While the earlier definition covered vaguely defined “not-for-profit, non-governmental social organizations formed outside mainland China,” the new definition gives examples of covered types of organizations, naming: “foundations, social groups, or think tanks.” Daum adds that the Xinhua article “says that an additional section of the law expressly states that: ‘Exchanges and collaboration between foreign schools, hospitals, natural science and engineering science research establishments or academic organizations’ and the domestic organizations within these same categories, are to be handled ‘according to the relevant provisions of national law.'” This is not certain to be the final language of the law, and in Daum’s assessment this media report leaves significant ambiguity about what activities would constitute “exchanges and collaboration” and therefore fall under the new, differentiated category of activities. There is much more detail atChina Law Translate.

ANALYSIS: Many foreign NGOs have operated in legal gray areas for lack of a way to register as NGOs. This law has been presented as a way to remedy this legal lacuna, but previous drafts raised concerns that a huge range of activities would fall under vague definitions, increasing regulatory burdens and effectively shutting out many actors. Notwithstanding the ambiguities, the revisions appear responsive to some of the Chinese and foreign concerns communicated during public comment. The revisions meanwhile do nothing to allay concerns that the law will be used to cut down on foreign activities and cross-border collaborations on social and political issues. The final text and implementation will tell us much more about what the law means in practice, but today’s news of modifications may be intended to decrease the chance that organizations engaged in “exchanges and collaboration” feel the law means they should close up shop. That may shrink the number of organizations that face real trouble under the new rules, but it would not seem to reduce obstacles for international “foundations, social groups, or think tanks,” which are often influential voices in their home countries.

SOUTH CHINA SEA
Rumors of Chinese plans for Scarborough; U.S. attack planes patrol near Philippines; officials trade accusations

The South China Morning Post, quoting “a source close to the PLA Navy,” reportedthat China will begin land reclamation “within this year” at Scarborough Shoal. The article cited no corroborating source but bears inclusion here because of the reaction it caused. / Several U.S. A-10 “Warthog” attack planes reportedly stayed behind in the Philippines after a joint exercise and patrolled in South China Sea waters west of the Philippine island of Luzon—therefore in the general region of the Scarborough Shoal, though details were unclear. David Axe speculates that the deployment may be a precursor to a U.S. sale of the aging but versatile planes to the Philippines. / Deputy Secretary of State Antony Blinken said in Vietnam China’s “massive land reclamation projects in the South China Sea and the increasing militarization of these outposts fuels regional tension and raises serious questions about China’s intentions.” Foreign Ministry spokesperson Hua Chunying responded: “The United States has repeatedly questioned China’s intentions, but will the U.S. explain its real motive in stoking tensions and increasing military presence in the area?” / Meanwhile, China “reached consensus” with Brunei, Cambodia, and Laos on the South China Sea, Xinhua reported. Laos is landlocked and Cambodia does not border the South China Sea, but Brunei is a claimant in the Spratly Islands. All are members of the Association of Southeast Asian Nations.

ANALYSIS: The SCMP report seems a bit thin. That said, there has been plenty of speculation about whether China might build an installation at Scarborough, where radars could reportedly monitor activities at Philippine bases now set to continually host U.S. forces. There is potential for a test at sea if Chinese crews move in and Philippine and/or U.S. forces try to prevent reclamation. In public, China is not explicitly on notice that moving into Scarborough would cause a confrontation, but it would definitely produce an amplified U.S. and Philippine response. One wonders if any more explicit signals have been sent in private.

ESPIONAGE
U.S. authorities target two in China-tied spy cases

A Chinese citizen with U.S. permanent residency was charged with “conspiring to illegally export U.S. technology used in underwater drones to a Chinese state-owned entity,” Reuters reported. That “entity” was reportedly Harbin Engineering University. / In a separate case, a Chinese national was reportedly arrested for attempting to acquire a high-grade carbon fiber material used for “aerospace and military applications,” according to Defense News. That case reportedly involved a sting in which the U.S. government created a front to catch illegal export attempts.

ANALYSIS: These two cases are slightly different from some previous cases that focused on trade secrets or “commercial espionage.” In these new cases, national security-related material is at issue. U.S. authorities have been repeatedly embarrassed in economic espionage cases against China-linked individuals, most recently and spectacularly in September when charges against a Temple University professor were dropped when it was revealed that FBI investigators did not understand what had and had not been transferred to Chinese collaborators. The reputational stakes are perhaps higher still with national security-related or dual use technology transfer cases.

YOU AND WHOSE ORDER
Fontaine and Rapp-Hooper: U.S. needs China policy that realizes ‘there is no single international order to be saved’

Richard Fontaine and Mira Rapp-Hooper of the Center for a New American Securityargue in The National Interest that “there is no single answer to the question of whether China intends to embrace the rules-based international order, nor is there a monolithic way to characterize the type of great power China aspires to be. … Because there is no single international order, and because Chinese participation is diverse and complex, U.S. leaders cannot simply absorb China into a preexisting structure. If American policymakers hope to increase China’s participation in the web of institutions, regimes, rules, and norms that together constitute world order, they must craft an engagement strategy that is as nimble as Beijing’s international participation itself.” They argue: in favor of a U.S. strategy that acknowledges that China’s approaches in its region and globally differ; that “there is a difference between Chinese attempts to erode existing international rules (and America’s dominant role in setting them) and a move toward wholesale replacement”; that “as China and others offer concepts for alternative institutions, the United States should not adopt knee-jerk rejectionism itself”; that “U.S.-Chinese relations are bound to be especially competitive in those domains where rules remain unwritten” such as cyberspace and space; and that Chinese approaches may change.

ANALYSIS: The authors reject one of the most stubborn and misguided false dichotomies—between “the” international order and China’s divergent efforts—and offer preliminary points on how to make policy given their insight. The article does not get into detailed policies or discussions of U.S. interests, but it is an excellent frame for further analysis and breaks toward reality and away from the kind of breathless commentary that boils down global politics to a U.S.–China contest over some specific issue or domain.

#USChinaWeek1966 <— follow this hashtag on Twitter for more
William Hunt, ‘old China hand who once controlled all the tea in China,’ dies at 60

“William P. Hunt, an old China hand who once controlled all the tea in China and at another time took over China’s entire merchant fleet, died yesterday,” an obituary inThe New York Times read. “In 1937, when the Government of China was being pressed hard by the Japanese military machine, China’s fleet of merchant vessels was in imminent danger of being sunk or captured. To protect the ships, wharves and warehouses, the Chinese hit upon the idea of signing them over to an American citizen they had learned to trust. This put the maritime properties worth $25-million, out of reach of the Japanese. Seven years later they asked for the ships back and offered to pay $1-million, William P. Hunt indignantly rejected the offer. ‘I loaned you the protection of my citizenship—I didn’t sell it,’ he said. ‘I want $10 [in Chinese money, worth 1/20th of a United States cent] for the properties—with your autographs on the bill.’ So was this extraordinary trust justified.” This can only be a small portion of the story of Hunt, once a young diplomat and later a businessman, but quick searches reveal little about him.

(This entry is part of a new feature of U.S.–China Week, following U.S.–China relations as they developed in another era of change and uncertainty, 50 years ago.)

ABOUT U.S.–CHINA WEEK

U.S.–China Week is a weekly news and analysis brief that covers important developments in U.S.–China relations and features especially insightful or influential new policy analysis.

Graham Webster is a senior research scholar, lecturer, and senior fellow of the Paul Tsai China Center at Yale Law School, where he specializes in U.S.–China diplomatic, security, and economic relations through research and Track II dialogues. His website is gwbstr.com.

Disclaimer: Opinions expressed here are my own (and I reserve the right to change my mind).

Subscription to U.S.–China Week by clicking here or e-mailing me is free and open to all, and an archive of past editions appears at my long-running website on East Asia and the United States, Transpacifica.

Contact: Follow me on Twitter at @gwbstr. Send e-mail to [email protected].

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