Bilateral Aid To Improve Human Rights
Donors need to adopt a more coherent and thoughtful strategy

Aid to legal projects in China aimed, in the eyes of the
donors, at improving human rights conditions on the ground there have become a
centrepiece of the policy of many Western countries towards China’s human
rights situation since the late 1990s (1). These
projects are part of a package of bilateral “dialogue and co-operation”
that replaced the more critical multilateral approaches focused on the annual
effort to pass resolutions at the annual sessions of the UN Commission on Human
Rights that had been the principal vehicle for Western states’ concerns
about continuing human rights violations in China in the early to mid 1990s (2).


The alternative approach taken up combined regular “dialogues”
in which human rights were discussed, mostly between diplomats behind closed doors,
but also sometimes including accompanying seminars bringing together “experts”
from both sides, and Western-funded “co-operation” programmes in China
to address human rights concerns through a variety of projects. The most common
focus of these projects has been law and legal reform, as both China and its partners
chose this as an acceptably neutral entry point for their co-operation.


This article examines the strategy behind programmes of bilateral
aid directed to legal reform and law-related projects (3)
in China of nine countries: Australia, Canada, Denmark, France, Germany, the Netherlands,
Norway, Sweden and the United Kingdom (UK); and one regional institution, the
European Union (EU).


The choice of countries has been determined by two main criteria:
programmes are part of a “human rights dialogue and co-operation”
package that has been underway in most cases for five or more years (4),
and a substantial programme of aid to legal projects has been established during
this period which is more or less explicitly linked to the human rights dialogues,
and thus to achieving human rights objectives (5).
Information on these programmes has been collected from a variety of sources,
including documentation provided by governments and implementing agencies (6)
and interviews with staff of the implementing agencies and with representatives
of donors (7).


Although it has made a substantial commitment to funding
“rule of law” programmes in China, in part as a way to address human
rights concerns, the United States is not included in this study as it has not
really adopted the “dialogue and co-operation” approach, since a corollary
of this is eschewing more critical action on China’s human rights situation,
particularly the sponsoring of censure resolutions at the UN Commission on Human
Rights, and the US-China dialogue on human rights has been more off than on over
the last few years. In addition, there has already been significant examination
by scholars of US-funded legal programmes in China (8),
while, to my knowledge, almost nothing has been written in English on the programmes
studied here.


 

Standards of assessment


Even when researchers have direct access to all relevant data,
such as internal project documents, participants and intended beneficiaries, the
impact of aid-funded projects that seek to change ideas and address entrenched
patterns of institutional behaviour is notoriously hard to assess. Causation is
often difficult to establish, and inputs may not be of a kind that can be expected
to have an immediate effect. Given the lack of transparency of many donors in
relation to the programmes under review here, the broad comparative scope of the
study and the fact that many projects are likely to have a long-term rather than
immediate impact, making such judgements on the China projects would be unwise,
if not impossible. Thus the aim of this research project has not been to assess
the effects of the aid programmes under review, but to examine the strategy
that has informed them, reflected in their procedures and substantive content,
in order to determine whether they are employing the most effective means and
methods available, in the circumstances, to achieve the objective of improving
human rights. This approach has been informed by study of the practice of such
aid elsewhere.


Although human rights has been a factor in the aid policies
of many countries since the 1970s, significant attempts to use aid as a mechanism
for achieving improvements in human rights conditions were not seen until the
1980s and 1990s (9). Despite this shift, political
aid has been much less studied than development aid generally, while even fewer
researchers have sought to examine aid programmes specifically aimed at achieving
human rights objectives (10). Since much assistance
to legal projects has tended to be concentrated on working towards economic goals—whether
through advice and support for the drafting of economic, financial and commercial
laws, or through support for strengthening legal institutions—study of aid
to legal programmes has also often neglected the human rights dimension.


However, a number of excellent studies published in the past
few years do provide some standards that can be applied to the programmes under
review in this paper (11). In particular,
a 2000 report by the International Council on Human Rights Policy examined foreign
aid to civil and criminal law-related programmes in four countries, with a focus
on collecting the views of recipients of aid (12).The
conclusions of this study are the most applicable to the material covered here,
since it specifically concentrates on aid to “the justice sector”
aimed at human rights objectives, and this is also the principal focus of a substantial
proportion of the projects under review. The International Council’s main
findings were that if done well, human rights aid to the justice sector can have
an important positive impact, but conversely, poorly thought out and executed
assistance can actually be harmful. The study proposes four main criteria for
determining if aid programmes have the potential to be successful: “on the
degree to which human rights are integrated into the development process as a
whole; on the adoption of a strategic approach; on the establishment of effective
and honest partnerships that recognise the authority of beneficiaries to direct
reform efforts; and on careful attention to challenges that particularly affect
the justice sector”. Each of these criteria incorporates a range of specific
and detailed recommendations, some of which will be drawn on in the analysis below.


Adding to their relevance as standards of assessment for
this research project is that fact that some of the perspectives emerging from
the International Council study were echoed in the interviews conducted for this
project with Chinese legal practitioners and scholars, the majority of whom had
been involved in some way in donor projects (13).
In particular, Chinese informants concentrated on the need for effective strategy
based on greater control of programme agendas and specific projects by recipients,
and on more understanding of both actual needs on the ground in China and of the
political context, as well as on a broader conception of human rights than most
donors had adopted.


First this article describes the context for these programmes,
starting with an introduction to the approaches of the donors under study and
a brief assessment of rule of law as thematic focus. It goes on to explore a number
of specific issues related to strategy: the question of strategic planning, both
on the part of donors and the Chinese government; the commitments made on both
sides to these programmes, including funding levels for law and rights programming;
potential and actual harm associated with donor projects; levels of contextual
knowledge among donors and how much is learned from experience; the question of
how needs are identified and by whom; and the issues of substantive focus, choice
of partners and co-ordination among donors. The article concludes with some thoughts
on how donors could improve their programming.


The concerns raised here should not obscure the fact that,
while some were wary of making generalisations, overall those scholars and practitioners
in China involved in donor-funded legal projects and exchanges felt they were
beneficial to both sides involved. One such benefit was exposing people outside
China to the realisation that views within the country on human rights were not
monolithic, according to a Chinese informant. The more constructive engagement
there was on this topic, the less the Chinese government would feel threatened
by human rights-related activities, this Chinese scholar said. There is certainly
a need for foreign support for human rights-related legal programmes, and the
political space for programmes that can have an important positive effect in encouraging
and supporting individuals and groups that are committed to bringing about improvements
in respect for human rights has expanded in recent years. But as the analysis
below indicates, there is also an urgent need for much more strategic thinking
about how this may best be done.


 


Donor approaches


The Western donor programmes studied here generally focus
on strengthening “rule of law” in China. In part, this approach is
part of a broader strategy among aid donors globally to concentrate on “strengthening”
this aspect of what they term “governance” (14),
linking it to both economic development and democratisation (15).
Thus, generally rule of law is not presented as a stand-alone goal in donor objectives,
but is linked in with other aims (16). There
is a deep-seated—and possibly erroneous—assumption that the kind of
changes advocated under the rubric of “governance reforms” will inevitably
lead to improvements in protections for human rights (17).
Some commentators question whether aid to “rule of law” may even be
able to achieve less narrowly focused objectives:


 


 


Thus far the field of rule-of-law assistance has expanded
less because of the tangible successes of such work than because of the irresistible
apparent connection of the rule of law with the underlying goals of market economics
and democracy that now constitute the dual foundation of contemporary international
aid. (18)


 


In the China context, the rule of law has been a key element
of the broader bilateral aid programmes of the countries under consideration,
many of which make supporting the development of a market economy in China through
economic reform a principal focus. Multinationals headquartered in the West have
a strong interest in China developing a legal system that can protect their investments,
and this concern may be the most important reason why Western governments are
keen to contribute to this aspect of China’s development. An official of
the Australian Human Rights and Equal Opportunities Commission (HREOC) (19)
linked Australia’s human rights co-operation with China to constructing
a legal system in China that would facilitate trade, saying that China’s
commitment to this objective made co-operation easier (20).
Australia’s possible interest in legal reform for the same reason was not
mentioned.


Despite commitments to human rights as an objective of aid
policy, in the case of many of the countries under review here, integrating human
rights into overall development aid policy often seems more rhetoric than reality
when it comes down to the practicalities of working out a programme in a country
like China (21). The donors studied here either
do not prepare strategy papers that provide analysis of China’s human rights
issues and how the interventions donors are supporting address them, or incorporate
human rights only in a very broad and general way into overall development co-operation
strategy papers (22). Overall, donors make
little or no reference to or use of the information on human rights issues in
China generated by the UN mechanisms (23).


Where human rights is mentioned as a focus for co-operation
with China, the reference is generally exclusively to civil and political rights,
with added attention to be paid to the rights of women, children and minorities.
Virtually without exception, the legal co-operation programmes do not address
economic, social and cultural rights—although these have been covered in
trainings on international human rights law supported by the Nordic countries—as
donors assume that traditional development programmes take care of this area.
Where concern is expressed about the growth in inequality in China in recent years
(24), this awareness does not appear to be
applied to legal or human rights programming. There has been almost no effort
to think through how the extreme inequality that most donors say is now among
their primary concerns is reflected in the legal system.


The rule of law focus has led to a wide variety of donor
approaches. The main methods include study tours, input from international experts,
joint research projects and training inside and outside China, ranging from a
few days to studying for academic degrees. The programmes studied here can essentially
be divided into two main categories: those based on comparative law “modelling”
and those focussing on international human rights law. Most of the programmes
are in the first category, presenting Western practice as a model for China to
follow. Thus France and many other donors have concentrated their programmes on
improving the quality of legal professionals through training, with the primary
focus being on laws governing the economy. Germany has focused mainly on detailed
technical assistance with specific areas of law, also concentrating on commercial
and financial law, and more recently, a substantial number of projects on administrative
law. Another approach still based on modelling, exemplified by Canada, the Netherlands,
the UK and the EU, has been to put the bulk of funding into generalised legal
programmes, while providing some support for work in the area of criminal justice
and a few specifically human rights focused projects. Australia has concentrated
its funding on projects relating to the criminal justice system, working almost
exclusively with government agencies.


The programmes of the Nordic countries are mainly in the
second category. Although their starting point was also “legal exchange”,
Denmark, Norway and Sweden have consistently concentrated on international human
rights law as their main entry point. The combination of a set of agreed rules
that apply to all—international human rights standards—and a clear
goal—building up education on the law that articulates those standards—certainly
qualifies as a more strategic approach than those of the other donors studied
here. It is also one that emerges from the specific expertise that the Nordic
countries have to offer to a country like China, and thus does also incorporate
some degree of modelling and comparative work. Donor programmes also differ greatly
in the method of project implementation (25).
However, in most cases the country’s foreign ministry or international development
agency allocates money, sometimes through a competitive bidding process, to domestic
implementers to run projects in China. In the cases of the Nordics and Australia,
one major implementer is essentially responsible for the whole programme (26),
while the UK and Germany have several established agencies conducting the work,
and Canada mainly channels money through a handful of domestic institutions. The
EU has established special project implementing bodies for its major projects,
but also gives grants to European and Chinese agencies for smaller projects. The
Netherlands is an exception in taking a hands-off approach, providing its funding
through a grant-giving programme which gives money to Chinese institutions for
specific projects.


In the main, neither the Chinese side nor the donors have
set clear objectives for the programmes under review (27).
The general approach to achieving what goals are set is engagement, both through
the dialogue and through co-operation—the co-operation approach centres
on exchange, and is thus not specifically focussed on changing Chinese reality.
On the donor side, however, the co-operation is based on the underlying assumption
that China is committed to improving human rights, and can be helped to do so
through projects that, in a variety of ways, increase Chinese knowledge of solutions
to human rights concerns in the dialogue countries (28),
as well as in international human rights law (29).
Obviously it would be neither wise nor useful for donors to set goals absent any
commitment to achieving them on the Chinese side. Where aims in terms of improving
human rights are specified by the donors, these are very broad and general—and
in some cases, ambitious (30). Others assume
that human rights objectives are inherent to the rule of law agenda and need not
be spelled out (31).


On the donor side, it is mainly in the context of the human
rights dialogues that statements about the overall policy are made, with comments
about the need for “practical results” being a common refrain. However,
most donors also subscribe to the view that the main effects of these programmes
will only be seen in the long term.


Project planning by implementing agencies is more detailed
and sets clearer objectives since they have to justify what they are doing to
the donors. In general, implementers’ goals are more modest than statements
by donors. However, some implementers tend to exaggerate the extent of positive
developments in China and claim more credit for them than might be warranted by
the extent of their involvement (32).


The relative importance of China in the aid policies of the
countries studied here varies widely. Germany is China’s largest bilateral
aid donor after Japan, giving sums that dwarf the contributions of other donors.
China was among the top three recipients of Canadian aid in 2000-01, in Australia’s
top five individual aid-receiving countries for the last six years, while it was
in the top 20 for the United Kingdom. By contrast, Denmark, Norway and Sweden
give a relatively low priority to aid to China, as they all concentrate their
aid on a selected group of what are sometimes known as “programme”
countries that are among the world’s poorest. However, due in part to the
traditional emphasis of the Nordic countries on human rights in their foreign
policy and pressure from public opinion, for both Norway and Sweden the engagement
with China is a major focus. France concentrates its aid on poor countries in
its “priority solidarity zone”, which does not include China. Given
its size, China ranks low down as a recipient of EU aid (33).

“Rule of law”
as entry point


Rule of law theorists may simply expect too much from law…
Instead of reflexively requiring that China immediately adopt the institutional
attributes of a mature legal and judicial system operating in a mature constitutional
culture and advanced economic environment, rule-of-law theory needs to think a
lot more about what special conditions and needs face developing as opposed to
developed societies. (34)


 


Donors consistently describe their programmes as covering
the “rule of law”, but in fact the Chinese side did not accept this
appellation for these bilateral programmes, preferring to describe what was being
done as “legal co-operation” or “legal exchange”. This
indicates that the Chinese government is well aware that Western donors tend to
see rule of law not in a narrow, technical or “thin” sense (35),
but as part of the framework of liberal democracy.


“Rule of law” is a highly contested term, both
in China and in the West, a fact rarely acknowledged by donors. As Tamanaha puts
it, rule of law is like the notion of “the good”, in the sense that
“everyone is for it, but there is no agreement on precisely what it is”
(36). Since there is no agreement among scholars
internationally about what rule of law means, it hardly comes as a surprise
that what donors think they are talking about and what their Chinese partners
are aiming for through these programmes may be very different.


Despite the official endorsement of the idea of “ruling
the country in accordance with the law and establishing a socialist rule of law
state”, adopted by Jiang Zemin in 1996, incorporated into the communiqué
of the Sixteenth CCP Congress in 1997 and into the national constitution in 1999
(37), the debate over the aims of legal reform
in China continues to rage. Even those who are optimistic about the direction
of China’s legal development do not necessarily see it as moving towards
embracing a liberal understanding of rights. The evolution of a number of countries
in the region with highly developed legal systems supports such scepticism. As
Jayasuriya writes, “[I]n East Asia, the rule of law—contrary to what
is assumed in the liberal paradigm—can serve to entrench and consolidate
public or state power” (38). Some scholars
argue that constructing a legal system is an attempt by the Chinese ruling elite
to forestall democratisation and maintain their hold on power (39).


Whatever the aims of the leadership, there are undoubtedly
people within the system who are working towards greater respect for and protection
of human rights through law. And of course, it is far from certain that the Chinese
leadership will be able to control the eventual outcome of legal reforms. The
lack of a conclusive view on the direction of reform should not preclude international
involvement. As the International Council study emphasises, even when government’s
“commitment to reform is very weak”, there are useful things aid can
do, such as supporting reform constituencies and strengthening unofficial institutions,
although even then donors should not abandon work with official bodies (40).


However, other factors call into question an exclusive focus
on rule of law as an entry point to working for human rights goals. First, the
track record of rule of law assistance elsewhere—even given a greater level
of commitment from recipient and donor governments—is not encouraging (41).
Part of the problem may be that the gap between expectations and reality is often
too wide: “Rule-of-law programmes in developing countries are burdened with
expectations that far exceed those placed on development programmes in richer
nations in a previous era” (42). A key
question is how much legal professionalisation and institution building can achieve
in the absence of government adherence to the normative values that are the stated
or unstated objectives of donor programmes. Studies of aid to legal reform show
that an overly technical approach may achieve little as it does not address the
fact that certain deficiencies of legal systems serve powerful interests, and
thus there may be no incentive to change them (43).
Also, the assumption that improvements at the highest levels of the legal system
will automatically trickle down to lower levels may have as little foundation
in reality as the economic version of this idea. The combination of highly competent
legal institutions in capital cities and dysfunctional ones captured by local
elites at the periphery is not a phenomenon unique to China, but common
to many developing countries (44).


Second, the formal legal system may not be the most appropriate
route to addressing some of the particular problems donors are concerned about.
An example is the likely impact of efforts to improve professionalism in China’s
criminal justice system. Hualing Fu argues that given the priority accorded to
“stability” and the fight against crime, in fact the operation of
the courts in this area is most closely in accord with existing law, and thus
the most “professional” and least corrupt judged by the internal standards
of the Chinese legal system (45). In the areas
of civil and administrative litigation, the establishment of a formal legal system
may actually increase the costs of justice for the poor, and make it less accessible
for them (46). In China today, many of the
most difficult cases are taken on by “barefoot lawyers” without any
formal training (47), while large sections
of the population in rural areas rely mainly on “legal workers”, not
lawyers, for legal advice (48). Qualified
lawyers in some places are seeking to bar such paralegals from representing clients
or providing legal advice (49).


Furthermore, the focus on the formal legal system does not
necessarily reflect how rights are asserted in society. For example, in China
rural protesters frequently use laws and regulations to support their arguments,
but rarely consider going to court (50). Such
phenomena raise broader questions about the embeddedness of legal institutions
in society. As a Carnegie Endowment seminar on law reform concluded, “If
law reform is merely a social tool… [it] must arise from or be founded
on underlying social change, or endogenous demand. For some areas, such as human
rights for unpopular ethnic minorities, external pressure on either the public
or government may be the most effective starting point” (51).


 


Lack of strategic planning


Much assistance for justice reform has been poorly planned
and coordinated. Reforms would be more effective if both donors and beneficiaries
adopted a more strategic approach. At national level, clear national policies
and plans should be formulated. Donors should assist these efforts. They should
coordinate their activities better, avoid duplication, and improve their understanding
of local needs. (52)


 


In the programmes under study here, the kind of strategic
planning advocated by the International Council has mostly been notable by its
absence.


The incorporation of “ruling the country in accordance
with the law and establishing a socialist rule of law state” into the constitution
in 1999 is often cited by donors as a basis for their work in the field. But this
constitutional change has not been followed up with any road map for reform: the
Chinese government has not developed concrete plans for reform of the justice
sector, for making human rights improvements, or for the legal system as a whole.
Many legal professionals have been calling for the establishment of some sort
of planning process for legal reform for some time, as they believe that in the
legal system piecemeal and often conflicting reforms may sometimes do more harm
than good.


For the moment, the only plans available are routine documents
issued by individual ministries or departments (53).
In the main, these are not focused on achieving overall goals for the legal system,
let alone for human rights, but on the development of the particular institution
in question. While such plans may provide a good basis for co-operation with one
of these institutions, they do not identify the needs for the system as a whole.


Donor governments do not appear to have offered to support
official planning processes for legal reform, or criminal justice reform, as they
have done in other countries (54), nor have
they tried to reach agreement with the Chinese government on benchmarks that might
be achieved through co-operation programmes. One reason may be the assumption
that because China is not aid-dependent donors have little leverage. Although
the Office of the High Commissioner for Human Rights has raised the issue (55),
governments engaged in dialogues with China have not tried to encourage Peking
to formulate a National Human Rights Action Plan, as all governments agreed to
do at the Vienna World Conference on Human Rights in 1993, let alone offered to
fund the process (56).


 


Low levels of commitment


Governments are only likely to make clear plans when they
are committed to justice reform. This element of a strategic approach will be
considered on three levels: the first will be to look at the level of domestic
commitment to the kind of goals being pursued by donors; the second, to examine
the basis for co-operation agreed with the dialogue countries; and the third,
to explore the environment for co-operation as a reflection of both of the first
two factors.


“When compared with the efforts made for economic reform,
the central government’s attitude towards judicial reform seems to reveal
a lack of commitment”, one Chinese scholar writes (57).
While a full assessment of the current state of legal reforms in China and of
their potential impact on human rights conditions there is beyond the scope of
this article, many legal scholars inside and outside China feel that currently
the main barriers to further institutional development (and human rights improvements)
are essentially political in nature, whether allowing real judicial independence,
the allocation of resources, or breaking log-jams created by institutional rivalry
by making decisions on hard questions about division of responsibilities. As Peerenboom
puts it, “[T]he major obstacles to rule of law in China are systemic and
institutional in nature” (58).


Many of the Chinese scholars interviewed identified the principal
barrier to the protection of human rights in the criminal justice system and more
generally as being political will, with the main blockage being the lack of political
reform. Cultural attitudes were also cited as an obstacle to change that would
take a long time to shift. One academic argued that one of the main constraints
was lack of resources, which would be needed to construct the legal system that
was an essential prerequisite for the protection of rights.


The weakness of law implementation is an example of the way
institutional barriers are blocking progress. As Chen writes, “The involvement
of a multitude of organisations and factors in the implementation of law means
that difficulties and problems encountered by law-enforcement agencies in the
process of the implementation of law are often caused by a number of factors or
a number of institutions. More importantly, and logically then, efforts undertaken
by individual authorities will not resolve these problems” (59).
Even within one institution, the piecemeal approach to reform may have undesirable
results. Li argues that despite the many reform measures tried by the courts,
“because of the lack of a framework design, it seems that some measures
are not coherent and indeed are sometimes conflicting… when reform has
reached a certain stage it is necessary to have a clear goal and coherent design
for further change” (60).


At the bilateral level, the difference over the “rule
of law” label is just one indication of the fact that in terms of joint
commitment to a common set of objectives, the programmes under study began on
a weak basis with little in the way of specific agreement between the two sides
as to what the co-operation would entail in practice. In all these donor programmes,
co-operation in the field of human rights was launched from a minimalist platform
of “legal exchanges” agreed in human rights dialogues or other diplomatic
interactions. In the case of the UK, legal exchanges had already been underway
for some years (61) and were thus a logical
choice, while the work of private foundations, most notably the Ford Foundation,
was frequently seen as a model for combining a focus on rights with work on law.


In a 1999 assessment of Swedish human rights training programmes
in China, Mellbourn and Svensson identified a lack of shared objectives as problematic
and called for more frank and open discussion between the Chinese and Swedish
sides about the nature and aims of the programme (62).
Currently, only in the Australia-China human rights dialogue and the German-Chinese
rule of law dialogue are specific co-operation programmes regularly discussed.
Some representatives of donors and implementing agencies thought that it was better
this way, as the dialogues were overly politicised events with little real substance
involving people who knew little or nothing about the practicalities of co-operation.


Even after the agreement to co-operate, most Chinese officials
remained allergic to mention of human rights as a focus of the co-operation, and
to some extent this continues to date. For example, staff of the Australian HREOC
said that while initially, Chinese officials did not accept that they had any
human rights problems that could be dealt with through the co-operation, they
now acknowledge that Australian assistance may help resolve certain deficiencies
in their legal system. But these are not framed in terms of human rights, and
therefore HREOC “rarely use[d] the human rights term in response”
(63). According to Sweden’s Raoul Wallenberg
Institute, if the term human rights is mentioned in descriptions of projects that
involve foreign participation, the organisers may run the risk of cancellation
(64). The continuing sensitivity of the term
is highlighted by the fact that the Canadian International Development Agency
had originally planned to drop the term “human rights and democratic development”
from the new country development policy framework now under preparation, and refer
only to “good governance”, the goal of which would be to “support
Chinese efforts to increase rule of law as a means to uphold the rights of its
women and men” (65). After the proposed
change met with an outcry from Canadian NGOs, CIDA backed down (66).


Another indication of commitment levels is the fact that
many of the projects still take place in a very difficult environment, despite
the upbeat tone of most donors’ public statements. In the Chinese bureaucracy,
there is still considerable hostility and suspicion to foreign co-operation in
certain quarters. For example, local authorities ordered that the proceedings
of a 2001 three week Nordic workshop in Jilin province for Chinese law teachers
on international human rights law be videotaped (67).
“Anything involving international elements and human rights in China is
still very sensitive”, said one Chinese scholar, while another said foreign
involvement in law per se remained sensitive. Foreign funding was less
of a problem than foreign participation, especially if the project involved examination
of conditions on the ground, added another.


Academics have consistently been less scared of centring
co-operation around human rights—although in practice the work done has
often stayed on a fairly abstract level—and this is one reason why many
donors are more inclined to focus their co-operation on work with them. Chinese
academics engaging foreign counterparts on human rights and researching the subject
was an aspect of the official response to the isolation China suffered after the
1989 massacre (68). This does not mean that
scholars are free to engage as they wish, however, as the incident described above
shows. Teachers who lecture on international human rights law have to be aware
of the fact that students may be reporting on what they say in class to the authorities,
and this can get them into trouble. A statement by an official in a rare article
on foreign aid in China published in a popular Chinese magazine presented a paranoid
view of donor engagement with academics:


 


 


There is no free lunch in this world. If the other side needs
to find out something, they support your experts to do a study, to do some research,
and when it is done, they take all the material away. Some of these things the
government doesn’t even know about… The origins of the figures some
scholars use are problematic, they are not very accurate; some should really be
considered estimates, but they don’t even check them and just put them out.
This can have a really bad effect, and can become a human rights bomb that is
used against you. (69)


 


Despite their clear focus on international standards, the
three Nordic human rights institutes’ work has not been without difficulty.
While the climate for human rights research and education in universities has
certainly improved in recent years, the field remains hemmed in by political restrictions.
A university lecturer prefaces his human rights course with an admonition to students
not to choose to specialise in this field, since “…it is morally
embarrassing, economically unprofitable, politically dangerous and academically
difficult” (70). In addition, “there
is… the problem of scarce financial resources and a pressing need for educated
legal personnel in other areas of law. Students have difficulties seeing any use
in deepening their knowledge of human rights law since there are very few career
opportunities for experts in the field in China. Chinese law teachers engaged
in human rights law research are used to keeping a low profile and often work
without any administrative or financial support from the university authorities”
(71). However, since this comment was written,
the situation has started to change, as universities compete to set up human rights
centres—five were set up just in the past year (72)—and
find donor funds to support them. Domestic funding, however, is generally still
unavailable (73). There are initial indications
that student interest in human rights courses is rising (74).


Considered in purely financial terms, the relative priority
accorded to law and rights programming in China does not match the rhetorical
weight many of China’s dialogue partners give to this co-operation (See
table). The limited nature of the human and financial resources available makes
the question of appropriate strategy even more important. For the majority of
donors covered here, law and rights projects represented well below 5% of their
overall aid programme in China, although Canada, Denmark and Sweden were all above
this level. In China much more money is spent on aid to legal projects relating
to the economy, commerce and finance than on human rights-related projects (75).
This is not unique to China: aid spending on human rights globally is low (76).
For example, between 1995 and 1999, under 1% of the EU’s external aid budget
went to “human rights positive measures” (77).


Of course the low level of funding also reflects commitment
on the Chinese side, particularly the relatively restrictive climate for such
programming and the small number of Chinese partners willing to take it on. Other
factors include the limited capacity of some of the implementing organisations
in donor countries, where the learning curve for engaging effectively in such
programming can be steep (78). Some development
agencies have engaged in such work reluctantly, under pressure from politicians.
Knowledge of human rights issues among staff of development agencies may be limited,
while the complex nature of many interventions in this field could be intimidating.
Measuring the impact of programmes aiming at improving human rights and promoting
democratisation is considered difficult (79),
and thus the shift to results-based management of projects many donor agencies
have made in recent years may militate against taking up such work.



Bad aid can harm


An additional reason why a strategic approach is needed is
one highlighted by the aid recipients interviewed for the International Council
study. Bad programmes are not necessarily just a waste of time and money, but
may actually do harm: “Badly conceived and implemented programmes have sheltered
repressive regimes from scrutiny, wasted vital resources, distorted domestic institutions
and fostered social division” (80).
By contrast, comments on bilateral programmes focused on law in China have generally
assumed that there can be no downside to such assistance (81).


In the China context, it is hard to make an assessment of
whether programmes and projects in this field have caused harm, or have the potential
to do so, since they have been little studied so far. But there are several areas
where there is significant cause for concern: the impact of the programmes on
overall policy towards China; lack of attention to monitoring; the focus of some
specific projects; and the impact of donor agendas on certain fields of academic
research.


A number of critics of the dialogue and co-operation approach
have argued forcefully that this policy has led to diminution of international
scrutiny of China’s human rights record. While examination of this point
is beyond the scope of this study, some comments on the mix of policy options
chosen are important to the question of strategy. The International Council study
concludes that while trade-offs between legitimate criticism and co-operation
should not be made, co-operation should be pursued “except in cases
where the government concerned explicitly rejects and blatantly violates
international human rights standards” (82).


Chinese informants agreed on the need for both co-operation
and pressure, and were not aware of the trade-offs that these programmes often
involve. Virtually without exception, Chinese scholars interviewed stressed how
important international pressure had been and continued to be in pushing the Chinese
government to make human rights concessions and improvements. But they found it
difficult to articulate what pressure should actually involve, evincing a certain
degree of discomfort about criticisms of their country. Some pointed out that
sometimes pressure could also have negative effects, creating resistance to change
among the powers that be. One asserted that pressure should be used in a way that
didn’t make the Chinese government lose face.


Such comments point to a need for sensitivity to the context
and for greater understanding about specific human rights issues, and this requires
human rights monitoring. Good information can be generated by a range of different
actors—both domestic and international—as well as donors themselves.
This means donors should support monitoring, as well as do it, and this is particularly
important in the China context, where quality information on human rights conditions
remains very limited, due to severe restrictions on domestic human rights monitoring.
But very few of the donors studied here have supported work specifically monitoring
human rights conditions, with almost all excluding the work of groups and individuals
working outside China (83). As the International
Council study points out, monitoring the progress of reform is also crucial to
determining how interventions are working and what kind of projects work best.


While these types of actual or potential harm are more in
the nature of acts of omission rather than commission, a few examples can be cited
in which donor approaches may have created problems more directly. One example
is the three training sessions at which Australian officials instructed Chinese
Ministry of Foreign Affairs (MoFA) staff on reporting under the two UN covenants
(84). MoFA is essentially responsible for
presentation of China’s information in the best possible light, rather than
the monitoring of human rights conditions that should be a part of preparing a
report under a human rights treaty. Australia did not invite any UN staff or members
of treaty bodies to participate in these trainings, let alone any NGOs (85).
Recently, Chinese Foreign Ministry officials said that they were getting better
at treaty body reports “so we won’t be criticised” (86).
This is hardly the desired outcome of such “training”.


Another example is the way donors may have contributed to
resistance to reform on the part of some officials in the procuracy by an over-concentration
on support to courts and on projects that enhance the authority of the judiciary
(87). However, a number of donors now have
projects with the procuracy in China (88).


Some assert that donors’ technical approach to legal
reform in China has contributed to the Chinese government’s belief that
it can avoid the normative implications of rule of law. Alford argues that the
international community is reinforcing an instrumental view of law and legality
in China through “the approach that a number of significant multilateral,
foreign governmental, and non-governmental organisations have taken in their technical
legal assistance work in China. Each has touted the role that law can play in
nation building while studiously avoiding associated political questions or implications,
as if to suggest that the ‘technical’ side of law that might foster
economic development can somehow be neatly extricated from its more political
dimension” (89).


Some Chinese scholars felt that donor policies had had some
negative effects on certain academic fields. Agenda-setting by donors in certain
areas of scholarly research was a concern to a number of Chinese scholars interviewed.
Shifting donor priorities made building up a corpus of work in some fields more
difficult, one said. A scholar who was not involved in donor-funded programmes
felt that the involvement of foreign donors had contributed to the field of human
rights research becoming overly politicised, and this meant that few scholars
of real quality would be attracted to it.


The concentration of donor funds on a handful of institutions
can create distorted incentive structures. For example, the Chinese Academy of
Social Sciences has been known to demand speaking fees for its own staff at conferences
it is convening with donor funds. One implementer complained that some provincial
women’s federations just saw donors as “money bags” and didn’t
care much about the substance of the projects (90).


Finally, many projects are merely wasteful in a context where
resources are scarce. Mostly the problem appears to be shifting donor priorities,
which result in what might be termed “hit and run” projects. The most
extreme example of this is the Australian programme, which is essentially a series
of reciprocal study visits with a large number of institutions mostly unconnected
to any practical outcomes or specific reforms. Some of the largest projects also
suffer from short-termism. A key example is the EU’s largest rule of law
project, the EU-China Legal and Judicial Co-operation Project, in which the main
activity was extended study visits of Chinese legal professionals to Europe (91).
Enormous energy went into establishing the project, with its own office in Peking
and a high production value website, but after only four years of operation and
one round of research grants, the whole structure is being abandoned. To be sure,
some say that the money could be much better spent on promoting basic legal education
in China (92), so there are arguments for
not continuing such an expensive form of training, but this is not the reason
why the project is not being continued.


 


Contextual knowledge, transparency
and learning


Another important element of strategy is knowledge: understanding
the context, making information about projects available to others and learning
from experience. This is related to the issue of monitoring. In a paper
on “rule of law” aid, Carothers highlights a lack of knowledge in
this area of aid more generally:


 


 


The rapidly growing field of rule-of-law assistance is operating
from a disturbingly thin base of knowledge at every level—with respect to
the core rationale of the work, the question of where the essence of the rule
of law actually resides in different societies, how change in the rule of law
occurs, and what the real effects are of changes that are produced. The lessons
learned to date have for the most part not been impressive and often do not actually
seem to be learned. The obstacles to the accumulation of knowledge are serious
and range from institutional shortcomings of the main aid actors to deeper intellectual
challenges about how to fathom the complexity of law itself. (93)


 


On the donor side, the aid process generally often suffers
from a lack of people with in-depth country knowledge and language skills working
on project design and management, and this tends to be a particular problem in
bilateral programmes (94). In the programmes
studied here, levels of knowledge of the staff involved were a critical factor
in determining the quality of projects.


Developing such understanding is no easy task in the China
context where there is a serious shortage of accurate information about the functioning
of the legal system (95). A key example is
the serious inadequacy of statistics on the operation of the criminal justice
system, with such figures as the number of executions per year still being considered
“state secrets”. Several of the more knowledgeable people working
in implementing agencies complained about the lack of time and money devoted to
the learning necessary for their jobs. Some Chinese informants expressed frustration
at the lack of knowledge of the China context, particularly the political context,
among people working for some donor agencies (96).


Such a lack of empirical knowledge is a common shortcoming
of legal and judicial reform programmes:


 


 


The story of legal and judicial reform is one of modest successes…
and frequent failures, and of significant gaps between theoretical understanding
of legal systems and project design and implementation. The gap between theory
and practice stems from a number of pressures… It points to the crucial
need for investment in empirical approaches to legal systems development and to
the invidiousness of the distinction that some in the development community make
between action and research. (97)


 


An important part of the accumulation of knowledge is evaluating
work that has been done. But few evaluations of China projects have been done,
and some donors mentioned that Chinese partners did not like evaluations (98).
In many cases, there has not been sufficient follow-up on donor projects (99).
This lack of attention to evaluation and accumulation of lessons learned is also
a common feature of assistance elsewhere (100).
One reason for the lack of learning is the strong pressure for success in law
and rights work in China. The linkage of these co-operation projects to donor
government policies means that the assessments of projects is often over-optimistic.
But the strong interest of implementing agencies in continuing to receive funding
(101) also militates against dispassionate
assessment. Another reason why people lack information is that there has been
insufficient attention to the circulation of donor-supported research, a point
made by both donors and some Chinese informants. Official funders of scholarly
research in China have not required this, so there is no tradition of doing so.


A further barrier to learning lessons is the lack of transparency.
In terms of the programmes studied here, only the Nordics and the Netherlands
were willing to share detailed project information and any evaluations with the
author. Australia, Canada and the UK apparently have no provisions for public
reporting on how aid money in this area is spent. Information provided by France
was minimal, to say the least. While transparency rules for the EU are better,
since none of the large projects under study are completed, written information
assessing their progress is not available, although for some projects there are
basic reports on some activities (102).
Extensive information is provided on Germany’s legal technical assistance
projects implemented by GTZ (103), but little
on other projects.


Transparency was an issue of concern to Chinese informants.
Scholars outside the circle of those involved in aid-funded projects expressed
frustration at the lack of information about what these were focusing on and how
they might apply for funding, and even some of those receiving funding spoke of
donors’ preferences as being “a black box”. It would be better
if the donors could make public the scope of their giving activities, and open
the process up to applications. Some assert that donors tend to work only with
people who speak their language, in both literal and figurative senses. A small
handful of scholars get large amounts of money, said one informant, with obvious
resentment. Confirming such a view, another asserted that it was “easy”
to find donor funding for human rights- and rule of law-related projects.


 


Ownership and identification of
needs


The International Council study identifies local “ownership”
(104) of programmes as a key element of
success—if projects are driven by donors’ concerns and political agendas,
they will not be likely to achieve much.


The process of identifying projects in China has generally
meant a lot of legwork by representatives of donors to find appropriate entry
points. In most cases, personal contacts had already been made—often related
to China’s efforts post-1991 to begin some engagement on human rights issues—that
yielded some initial activities. To start with at least, Chinese partners appear
to have been unwilling to identify gaps in knowledge or deficiencies in practice
that co-operation programmes could help to address. To some extent, this remains
a problem today.


Representatives of implementing agencies acknowledge that
it has often been difficult to engage Chinese partners in identifying their needs
and to encourage them to take the initiative in proposing projects. This is clearly
due in part to the sensitivity of the subject matter, and the lack of commitment
on the Chinese side, since Chinese partners evidently feel that while they know
co-operation is acceptable, they are not sure what its scope should be. But there
are also other factors: for example, it is often the foreign affairs departments,
rather than the people working on the substantive issue in question, who discuss
and negotiate projects with donor representatives (105).
In addition, the rubric of “co-operation” evidently means that the
needs of both sides must be accommodated, and engagement of home country nationals
and institutions in aid programmes is generally an acknowledged donor objective
for aid policies (106). Justifiably, Chinese
partners see co-operation not as aid, but as exchange, in which the fact of working
together may be more important than what gets done (107).
Also, if most of the budget for a particular project is spent outside China, this
understandably diminishes the commitment of Chinese partners.


Until recently, when the Raoul Wallenberg Institute asked
academics what they would like to do in terms of co-operation in the human rights
field, they would turn the question around and ask what RWI would like to do.
Officials from the Shanghai procuracy were bemused by RWI’s insistence that
the focus of the training materials should be on Chinese problems, as they wanted
to do a book series on Swedish law (108).
Despite its long history of working in China, it has been a struggle for RWI to
involve Chinese partners more in programme planning.


People in implementing agencies involved in British-funded
projects mentioned the difficulty of getting down to projects that were specific
enough to have much impact. Often years of working together on more general topics
were necessary before a Chinese partner would be willing (or able) to engage in
a project focused on achieving a practical impact on the ground. To reach this
point, the necessary ingredients, one person said, were a “good working
relationship” with a Chinese partner built up over several years; “a
process-oriented and participatory approach moving from awareness raising of rights
issues and alternative models of law and practice to the identification of a project
to address a specific and defined problem”; and strong contextual knowledge
(109). As donors tend to be concerned mainly
with “outcomes”, they may not be willing to fund the kind of slow
identification process that is often necessary (110).


According to a European Commission official, since governance
and human rights are not China’s priority, the EU has to take the initiative
in co-operation in these areas and “kind of impose” projects on the
Chinese side. However, at the same time, he recognised that without Chinese ownership,
such projects would not work (111). This
dilemma has clearly dogged the EU’s entire co-operation programme, and has
led to long delays between the launch date of projects and their actual implementation,
as details of how the objectives set by the EU side can be accommodated by Chinese
partners are worked out and the extensive bureaucratic requirements of the Commission
systems are met (112).


Few donors consult with Chinese experts beyond their direct
partners in any formal sense on the focus of their programmes in China (113).
A small minority of Chinese scholars interviewed had been consulted, but most
had not even thought of the idea that donors might need to pay attention to what
Chinese people thought. One was very frustrated that donors did not listen to
opinions from Chinese people working in the relevant fields and just had their
own priorities. One who had been involved in discussions with donors on training
of officials said that the main focus had been not on the specifics of the training,
but asking for advice on how to negotiate the authorities’ phobic attitudes
towards critical comments about China. A scholar outside the circle of recipients
was cynical about the motives of fellow academics who worked as consultants for
donor agencies, doubting that they would say if they thought the approach the
donors were using was wrong.


A number of Chinese informants felt strongly that donors
needed to pay more attention to local perceptions of needs. “The country
needs to change itself, and needs help with this. But this should be based on
needs identified by people in China—not telling them what to do, or doing
it for them”, said one. Donors should not come with preconceptions about
what would be useful based on their own system and values, and should use more
Chinese consultants, said another. In their planning, donors should have more
discussion with Chinese academics and officials to identify what are the real
problems that need addressing, stressed another.


The Nordic human rights institutes are the only ones that
have attempted to consult with Chinese people in the relevant field on any systematic
basis. Examples are the feasibility study conducted by RWI in 1999-2000, and the
on-going consultation with academics through the Nordic-sponsored academic meetings,
bringing together Chinese scholars of international human rights law and some
international experts twice annually to discuss certain human rights topics. Just
in the last year, this consultation has been formalised, as the Nordics have set
up an “Education Resource Group” of four Chinese academics who will
provide input on their work on a regular basis (114).


 


Focus, choice of partners and
co-ordination


Many donors end up working with the same set of institutions,
particularly central government agencies, the National Judges College and Peking-based
universities and think-tanks, as well as semi-governmental agencies, such as the
All-China Women’s Federation. A range of factors limit the number of Chinese
institutions that can engage in the types of projects covered here, from the need
for official approval to the ability to deal with donor requirements in terms
of book-keeping and project management. Almost every donor has projects involving
the Chinese Academy of Social Sciences Law Institute, and many also work with
the China University of Politics and Law. Given the frequent failure to circulate
project results and the lack of donor co-ordination, this sometimes leads to duplication
of projects. There is a tendency for donors to work only with people who can speak
English, as this saves time and money, but these may be the people who least
need the kind of exposure which is an important part of such co-operation programmes.


Although human rights remains controversial in most contexts—less
so now as a subject of academic study than in the past—many representatives
of donors and some from implementing agencies were not aware of approval processes
that Chinese partners needed to go through to work with them. However, one said
that the universities they work with need to report to the Ministry of Foreign
Affairs on their co-operation (115). A Chinese
scholar said the central government sees human rights as a “reserve domain”,
and does not allow provincial or local level institutions, official or academic,
to work with foreign bodies on this subject without permission. Some internal
regulation probably required that provincial or local institutions wishing to
stage an activity of this type apply for permission from the Ministry, this academic
said, adding, however, that the growing density of international interconnectedness
would make it increasingly difficult for the centre to control. Almost no projects
sponsored by the donors under review have been cancelled (116),
a fact which could either indicate that official tolerance is increasing, or that
donors have not been very adventurous in their programming.


Scholars and practitioners outside Peking and Shanghai felt
that donors concentrate far too much of their attention on those cities, to the
exclusion of other areas. Not only were these cities not representative of the
country as a whole, but also the concentration of donor attention made recipients
blasé about it, and thus they might not put in as much energy and commitment
to the projects as people in other, less favoured, areas. Questions can certainly
be asked about the relative need for foreign funds of some of the institutions:
for example, while many donors are doing projects to support high-level training
of judges, Shanghai pays to bring in American teachers to teach judges and sends
its judges to the United States for a study programme (117).
Guangdong is planning to establish a similar programme for its judges. The concentration
of donor resources in the richest areas replicates a historical pattern in aid
to China, in which, until recently, the major donors—such as the World Bank
and the UN Development Programme—have acquiesced in supporting the central
government’s focus on developing the coastal areas, thus arguably contributing
to the overall pattern of regional inequality (118).


The International Council study identified co-ordination
between donors as a key feature of successful programming. At a minimum, this
is necessary so as to avoid duplication of efforts, but ideally it means pooling
resources and supporting broader approaches than any one donor may be able to
mount alone.


But unfortunately co-ordination is not common: “Bilateral
donors tend to adopt projects without a general overview of other donors’
activities. In consequence their impact is only local, and in any case their
choice of strategy usually reflects their own national priorities and idiosyncratic
choices
. For example, Sweden wants to export the Ombudsman institution; Germany
to disseminate its experience in Constitutional Courts; and the United States
to transplant its own civil society experience” (119).


In China such co-ordination is only practiced by the three
Nordic human rights institutes, which initiated co-operation to promote international
human rights law teaching in 1999. For the rest, “co-ordination” is
essentially limited to information sharing. In terms of the dialogue countries,
meetings of the “Berne Process” initiated by Switzerland and the Office
of the High Commissioner for Human Rights have brought together the representatives
of the dialogue countries on an occasional basis since April 2001. Co-operation
programmes are discussed, but in the main, the people directly responsible do
not attend these meetings, so their utility is very limited. The Ford Foundation
holds meetings of donors in the legal area in Peking once a year, and there are
also occasional meetings of donors working specifically on human rights-related
projects, but this is not formalised. One indication of the actual level of co-ordination
is the fact that a list serve set up by the British Council as a forum for exchange
among donors supporting legal projects in China was shut down last year as it
was not being used (120).


The lack of co-ordination can be attributed to a number of
factors, including the focus on promoting national models in countries’
aid programmes, the pressure for success due to the linkage to broader foreign
policy goals, the desire of many donors to “be in China” and competition
among donors. Such a competitive environment is a common problem in aid generally.
Even in a climate of commitment to reform, such as that in Russia, donors were
all doing competing judicial training projects, rather than pooling their funds
to support a comprehensive training programme (121).
Of course it could be argued that the proliferation of different projects potentially
promotes more democratic and multi-faceted approaches to reform. This might be
the case if donors were primarily funding NGOs. But in addressing official rule
of law building, as in the Russia case and many of the China projects, they are
trying to engage with broad questions of institutional reform that require systemic
solutions and large sums of money.


Some of the donors studied here could certainly make more
effort to go beyond the safe circle of recipients and to support those in Chinese
society who are explicitly (or even implicitly) committed to working towards achieving
practical human rights goals. For example, they could provide more support for
legal aid, including that provided by non-lawyers, and fund independent organisations
and networks involved in specific human rights issues, including those outside
the legal sphere. This might mean putting more money into funds to be disbursed
as small grants with minimal bureaucratic requirements. They could also remove
limitations that exclude certain types of human rights-related projects, in particular
support for exile organisations or human rights projects outside China (122).


Two Chinese scholars thought that the key area of concentration
for donors should be the implementation of law. Giving money for pure scholarship
was a waste, thought one informant, but donors should be more willing to support
empirical studies, which were often costly. Another view was that more effort
should be made to support work that found bases for rights in local and traditional
concepts. Since academics could change people’s thinking, supporting their
work would be a very important component of helping China build up its own capacity
to establish the rule of law and protections for human rights (123).
Several said that donors should be more willing to put money into improving basic
legal education (not necessarily human rights related), something most seemed
unwilling to do at present.


Some legal scholars were critical of the overly theoretical
emphasis of much academic work in the field, which, they said, focuses too much
on what is good and what is right, and not what is possible. Also, academic
work may have more impact in stages of legislative reform than in the messy business
of law implementation, where political commitment and broader social conditions
become more important. People on the front-lines of law implementation may have
better ideas about how to address real problems than academics (124).
However, one implementer emphasised that Chinese legal scholars have always had
a much stronger role in policy formulation than their Western counterparts, so
it remained important to work with them as a way of influencing government (125).


Chinese informants expressed contradictory views about the
potential of the international human rights law field and the contribution of
donors to its expansion. The efforts of the Nordic countries to promote teaching
in the field, particularly their focus on developing a network of teachers, were
much appreciated by the scholars involved. An academic who was in a different
field of law and one who no longer worked on international human rights law topics,
however, were dismissive of what might be achieved through study of human rights
in the current political climate in China, seeing no possible practical benefits
from the resulting scholarship, and little scope for real academic achievements,
either, due to the restrictions on what scholars in the field might research and
publish.


Several Chinese interviewees felt that donors had an overly
narrow conception of rights and how to support their improvement in China. According
to one scholar, a broader approach was needed that addressed rights issues on
the level of civic education about the role law could and should play in society.
A number of Chinese informants were concerned about donors’ interests in
overly “political” projects. Certain donors want too much specific
involvement, both in terms of substance and administration, said one.


 


After more than five years of human rights dialogues, privately
many diplomats say that these meetings themselves achieve little, and that the
real achievement of the policy has been in the co-operation programmes (126).
Thus, on donors’ own terms, the kind of work studied here should be considered
as a measure of the success of this policy approach. But the lack of clear objectives
for the co-operation framed in terms of specific human rights improvements means
that in general the fact that an activity took place at all is often sufficient
for donors to claim success. Thus donors’ reporting on the co-operation
tends to be quantitative rather than qualitative in nature: how many people went
on such and such a training, what kind of a seminar was staged, or the visit of
a Chinese delegation to the donor country on a study tour, without identifying
the actual or potential impact, or even linking the activity in question to any
specific reform agenda. By contrast, reports of some implementing agencies are
more likely to make an attempt to identify impacts of their work (127).


This is not to say that the programmes under review have
not achieved anything, or that the activities they have supported may not be worthwhile.
But often, as outlined in this article, too little information is available to
allow for a meaningful assessment of what the achievements—actual and potential—might
be.


Of course, changes over the life of these programmes in the
overall political climate in which they operate—particularly the growth
of more independent non-profit organisations and more media reporting on sensitive
subjects including those related to rights issues—mean that conditions for
donor-funded projects have improved to a certain extent, affecting the sensitivity
of issues that can be addressed and the degree of practicality of some projects.
Donors and implementing agencies learning from experience and building trust with
Chinese partners through co-operation over a number of years have undoubtedly
contributed something to the changed atmosphere. Notable among the improvements
are the current fad for human rights centres in universities, the fact that the
Ministry of Education now lists international human rights law as an approved
elective course for law faculties and the expectation that the Ministry may soon
make such a course mandatory.


In the light of the analysis presented here, it is no surprise
to find that the field of education on international human rights law has experienced
some breakthroughs. This may be attributed to a number of factors, including the
interventions of donors, particularly the Nordic human rights institutes. The
struggle of the Nordic institutes to contribute to the development of international
human rights law education in China is instructive in what can be achieved through
a concerted, longer-term approach involving greater co-operation between donors.


There is evidently a need for a more coherent and thoughtful
strategy on the part of the donors. In sum, donors need to address the following
areas: support more empirical work on the legal system and human rights to help
guide their work; in work with government agencies, adopt a more concerted approach,
involving donor co-ordination and encouraging rights-related planning; put more
effort into reaching out beyond the usual set of favoured institutions to support
Chinese actors engaging with rights concerns; and choose a better mix of policy
options combining pressure with engagement.


Making such changes is far from an easy task: a substantial
proportion of the strategy deficit is not unique to the China context; some of
its effects are common features of aid programmes in the rule of law field more
generally. Thus donors also need to address some broader problems, such as the
fact that priorities set through domestic political and institutional processes
in the donor country are not always the most useful ones in a given country context.
Furthermore, the mixed motives of donors—including the insistence on employing
home country institutions and experts, regardless of their levels of contextual
knowledge or expertise and the confusion between supporting the needs of multinationals
and rights-friendly rule of law—create additional barriers to achieving
the human rights objectives through aid programmes.


In the China context, among the most crucial manifestations
of the strategy deficit are the lack of attention to empirical work—including
human rights monitoring—which would help to determine the most appropriate
kind of interventions, and the failure to encourage and support processes of official
planning at macro-level and needs identification at micro-level. Empirical approaches
would lead to specific solutions aimed at concrete problems, rather than one-size-fits-all
rule of law answers, which, as studies of aid to legal reform have found, are
at best likely to be a waste of time and money. An example is judicial training:
a number of authoritative studies have found that if training is not connected
to an agreed reform agenda that includes incentives to change it may have little
effect (128). The idea that mere exposure
of a few individuals to foreign models of practice can be sufficient to induce
change is naïve, and has led to much waste of resources.


Adopting a strategic approach does not mean that donors
impose their views and priorities on Chinese partners. As one implementer put
it, “There must be local ownership in defining the problem and how it may
be solved—and then we have to welcome and accept that projects don’t
necessarily turn out the way we had imagined” (129).


Thus one of the central questions is who to engage with,
particularly whether the elite-focussed approaches donors have adopted are the
most likely to affect the human rights situation on the ground. Could the lengthy
process of trust-building (and the necessity of donors taking the initiative to
start with rather than following the lead of their Chinese partners) mean that
they and other donors have been concentrating their attention on the wrong type
of people and groups? What if they had begun by exploring what type of initiatives
Chinese individuals and institutions were taking that could have an impact on
various human rights problems—regardless of whether these are labelled as
such by those working on them and regardless of what their field of endeavour
is—and tried to support such efforts, both financially and through opening
up international channels of communication and expertise to them?


In a society in which rights violations increasingly reflect
class divisions, the degree of commitment of intellectuals as a group to addressing
the sources of violations may even be suspect: “Since [1989] the government
has bribed intellectuals with fat paycheques—university professors’
salaries have increased by a factor of ten in the last decade. Universities and
research institutes have been showered with grant money. Most intellectuals now
lead comfortable lives and are allowed to publish their ideas fairly freely”
(130). Yet many donor programmes expect
academics to be more activist in China than they are elsewhere.


Donors evidently need to put more effort into identifying
areas where groups and individuals have already started engaging with human rights
issues on their own and be more willing to take risks on supporting such initiatives.
It is very clear that where there is already a strong constituency in China working
on an issue, there is great potential. Examples are the nationwide Domestic Violence
Network, currently supported by a consortium of donors, and the work of Wan Yanhai
and his colleagues on HIV/AIDS issues (131),
as well as some criminal procedure law scholars working to introduce international
standards into domestic law (132). It should
also be recognised that although much can be done inside China these days, there
is still an important role to be played by human rights groups conducting advocacy
outside the country. An example is that they are still the only ones that are
able to lobby and submit shadow reports to UN treaty bodies considering reports
on China’s compliance with international human rights standards.


Some donors have established grant-making programmes that
support more locally-generated projects. However, these often end up funding the
same semi-official agencies as other donor programmes. It would help if application
processes were made more open and simple, and efforts were put into disseminating
information about how to apply.


Of course there is also value in pursuing projects with more
official partners, provided they are able to address practical concerns. A positive
example here is the work of a number of UK implementing agencies, funded both
by the UK and by the EU, on juvenile justice issues (133)
and child trafficking in southwest China (134).


Along the same lines, the appropriateness of the exclusive
focus on the formal apparatus of law as an entry point for human rights concerns
in China can also be challenged. After a frustrating experience of failure in
US programmes on “administration of justice” aimed at improving legal
institutions in many Latin American countries, the need to pay attention to the
“demand side” is now being discussed (135).
In other words, if people don’t demand that their rights be protected through
the legal system, practices won’t change. But to do this one needs to go
beyond legal institutions to support such entities as community groups, bodies
providing legal services to the poor, media reporting of legal processes, and
so on.


In China, while such grassroots groups have been developing
in recent years, they remain constrained by central and local authorities’
desire to control independent organisations. This points to another element of
strategy: that donors may need to engage more with the political obstacles in
the way of achieving more human rights-oriented legal reform if they are serious
about this kind of co-operation. Chinese informants for this study were virtually
unanimous in asserting that international pressure has played an important role
in contributing to human rights concessions by the Chinese government, and if
there is a trade-off between the donor programmes covered here and continuing
to exert such pressure, this is something they would not find acceptable. Their
message was clear: people want both co-operation and continuing pressure
on the government, and the two have an essential synergy. This is one reason why
the terminology issue is important—making human rights work labelled as
such politically acceptable potentially expands the space for domestic activism,
and makes it easier for people to engage in co-operative projects on this theme.


Such engagement need not lead only to what the Chinese government
dismisses as “confrontation”, but could involve assistance and encouragement
to the Chinese authorities to engage in exercises that identify their priorities
in the human rights field, such as formulating a National Human Rights Plan of
Action with assistance from the United Nations, employing the kind of participatory
processes recommended. This could potentially open up the field of engagement
and allow donor programmes to have more impact. It would serve to generate a national
dialogue on human rights, which would open up space for domestic human rights
advocates—arguably the most crucial aspect of achieving practical change
on the ground.

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