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April 24, 2017

Some of Your Most Pressing Questions

The following are a few of the questions and ideas we’re still grappling with after our initial discussions with the NGO community and others interested in Chinese civil society. We expect to be revisiting these ideas in the weeks and months to come.

Legal procedures affecting the operations of Foreign NGOs in China have changed significantly since January 1, but how much of a change in underlying government attitudes does this law represent?

On one hand, the law is explicitly part of a suite of national security legislation. This was made clear in the National People’s Congress Standing Committee’s 2017 Work Report, in which the Foreign NGO Law was described as part of the “system of national security laws.” This indicates that, at the highest levels of state governance, foreign NGOs are viewed as one of many complex transnational security threats facing the Chinese state.

On the other hand, public security officials have taken pains to explain that foreign NGOs are still welcome in China. Though such a statement could be cynically read as a talking point designed to mollify skeptical international observers, it is also true that public security officials have not initiated a forced exodus of foreign NGOs; as of April 24, 69 groups have registered representative offices in the mainland, 26 others have successfully filed to conduct temporary activities in China, and some groups have reported working well with various public security offices.

One possibility is that the law does not represent a fundamental change in government attitudes, but rather a codification of trends that had already been underway before its drafting. To those who felt the environment for foreign NGOs had already been tightening for several years, the law didn’t feel like a sudden shift. Rather, it explicitly defined and then made unlawful the “grey” space that so many NGOs had used to carry out work in China. To others, the law represents an increase in transparency and certainty in some ways, giving order to the “Wild West” foreign NGOs had taken for granted as their operating environment in China. Conversely, some wondered if bringing all the under-the-radar NGO activity into the light would allow authorities to more efficiently excise certain foreign NGOs. And many have expressed concern about the fate of foreign NGOs which, due either to logistical and financial issue or to official perceptions of their work, are unable to comply with the law. Does this law represent a conscious change in attitude toward them?

Our research and conversations have also made clear that officials in China do not hold a single, monolithic view about foreign NGOs and their work in China.

What does this law say about China’s push for rule of law more generally, especially given uneven implementation across regions and different documentation standards for different agencies?

In this early phase of implementation, it appears that requirements for documentation necessary to comply with the law differ across regions and offices. Chinese government bureaus and departments who are affected by the law in various ways—including embassies and consulates overseas—may not be receiving clear guidance from the Ministry of Public Security on how to manage new processes and responsibilities. Is this a case of a government bureaucracy working through the kinks inherent in implementing any new law? Will the differences in standards and requirements smooth out and become formally codified over time? Or does vague written documentation and a tendency toward oral communication suggest Chinese officials are deliberately promoting individual flexibility over legal consistency? Will successfully registering a representative office or carrying out a temporary activity always depend heavily on personal relationships with sponsoring units? If so, what does this mean in terms of China’s larger push for rule of law and efforts to stem arbitrary bureaucratic administration? While some are cautiously optimistic that implementation will become more standardized over time, others fear that personal connections will remain the deciding factor in whether a group can successfully operate in China. Does the new set of registration requirements simply mean that foreign NGOs will be swapping out one set of bureaucratic hassles for another?

What does this law mean for notions of civil society more generally, and how will it affect domestic NGOs?

Further questions center on the law’s consequences, intended or otherwise, for domestic NGOs. Does it allow them additional political space to operate, as bifurcated from foreign groups? To what extent does all civil society activity remain a “sensitive” issue even for Chinese groups? Some believe the Foreign NGO Law might benefit the development of Chinese civil society by making more room for domestic groups to take a larger role in China’s NGO scene. Others wonder if it might restrict domestic NGOs’ ability to attract international funding, particularly for sectors that are not high on the Chinese government’s priority list, or if it might encourage some domestic groups to pre-emptively cut off ties with foreign NGOs because of an uncertain climate—a state of affairs that some foreign NGOs have reported.

There are a set of additional questions revolving around a foreign NGOs’ Chinese partner units. For example, what particular concerns might a domestic NGO that is acting as a Chinese partner unit have as they navigate the new process? What concerns should foreign NGOs be aware of with regard to their Chinese partner units? Do foreign NGOs, who have likely spent more time thinking about the new law, have an obligation to engage with potential Chinese partner units to relay their own concerns? What costs might the new procedures impose on partner units, financial or otherwise?

Other issues on our radar:

  • Does an NGOs’ place of origin affect its ability to get registered? How are changes in that country’s bilateral relationship with China likely to affect this process?
  • After a few initial bursts of “transfer” registrations, foreign NGO representative office registration has slowed. How will the pace of registrations change over time?
  • How might the incentive structure for Professional Supervisory Units (PSUs) change over time? Some PSUs included in the MPS’ official PSU list have reportedly expressed hesitation to sponsor foreign NGOs, or simply don’t respond when NGOs write or call. There are a number of reasons a potential PSU might not wish to engage right now: it might not have the extra funding for staff time or resources needed to manage the new registration processes, it might not have experience working with foreign NGOs, or it might simply not want to get involved with foreign NGOs in the current climate of uncertainty.
  • How will the Ministry of Public Security deal with organizations that are unable to find a PSU among those who have been officially approved? Will the ministry assist in finding a PSU or sponsor organizations itself, or will foreign NGOs be forced out even if their work in China is deemed acceptable? What about hybrid or multi-faceted organizations that don’t neatly fit into any of the MPS-prescribed categories? How often will the PSU list be updated?
  • Can foreign NGOs survive this time of uncertainty and slow bureaucratic processes? Even if a given NGO felt confident it would eventually be able to register, does it have the funds necessary to sustain itself during the interim period in which it cannot carry out activities—especially since many grant-making organizations require ongoing activities or programming in order to disburse funds? Will locally-employed staff members choose to leave foreign NGOs in light of all the uncertainty?
  • Will trends in domestic NGO management replicate themselves in the management of foreign NGOs? For example, if a local government is particularly welcoming or particularly harsh toward a sector of domestic non-profit work (health or environment, for example), will that attitude carry over to foreign NGOs seeking to work in the same sector?

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