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June 7, 2018

Letter from U.S. Congress Questions U.S. NGO’s Ties to Chinese Government

The United States House of Representatives’ Committee on Natural Resources is “seek[ing] clarification” regarding the advocacy activities of U.S.-based non-profit National Resources Defense Council (NRDC). In a June 5 letter to the NRDC president, the chairmen of the Committee and of its Subcommittee on Oversight and Investigations contend that NRDC’s relationship with the Chinese government might mean that it is acting on behalf of a “foreign principal” in the United States and request information to determine whether the group should register under the Foreign Agents Registration Act (FARA).

The letter states that NRDC “appears to practice self-censorship, issue selection bias, and generally refrains from criticizing Chinese officials” when it conducts its environmental work in China. This is contrasted with what the letter describes as an “adversarial” advocacy approach in the United States, suggesting that the group’s U.S. work is shaped by People’s Republic of China (P.R.C.) interests and mandates that the group be subject to additional oversight on its home turf: “The Committee is concerned that the NRDC’s need to maintain access to Chinese officials has influenced its political activities in the United States and may require compliance with the Foreign Agents Registration Act (FARA).” The Subcommittee has requested NRDC provide, among other materials, documents that show any “remuneration, transaction, or contribution that involves the NRDC or its related tax-exempt organizations and any entity or individual associated with any Chinese official, Chinese national, or Chinese business interest, including their agents, representatives, or intermediaries.”

Responding to the letter, Bob Deans, Director of Strategic Engagement at NRDC, said in a statement on the NRDC website:

NRDC seeks environmental solutions that are grounded in sound science, U.S. law, and the public interest. We work on behalf of every American to protect our people against dangerous pollution and leave our children a livable world. Those are American values, American goals, and advancing them is manifestly in our national interest, as we have consistently demonstrated for nearly 50 years.

FARA, a rarely-used law created in the 1930s to combat Nazi propaganda, has recently been the subject of increased interest due to concerns about Russian interference in the 2016 U.S. presidential election. The Committee letter shows, however, that FARA’s revival has implications beyond Russian-affiliated organizations and, if used on a wide scale, could represent a significant shift in how the United States treats NGOs that have both a domestic and a foreign presence.

FARA’s possible far-reaching impact is partly to do with its vaguely-worded provisions. The statute mandates that a “foreign agent,” or anyone acting on behalf of a “foreign principal” to influence U.S. policy, register with the Department of Justice, yet it does not clearly define what constitutes a “foreign agent,” nor what it means to act at the “request” of a “foreign principal.” Several of NRDC’s activities in China as described in the letter, such as “regularly meet[ing] with senior Chinese and Communist Party officials” hardly seem unusual for an international group working to influence environmental policy, let alone serve as proof that the group is acting on behalf of a “foreign principal.”

Yet, China’s 2017 Foreign NGO Law does mean any international groups registering must submit to Chinese public security officials’ oversight. This means that the Subcommittee letter is accurate when it says that “[t]he NRDC’s ability to work in China is dependent on the goodwill of the Chinese government.” This is true of all foreign NGOs that want to work legally in China; no foreign NGO can open a representative office in the mainland without the express approval of Chinese authorities.

Irrespective of the Committee’s motivations for issuing this letter, one lesson for the international non-profit community seeking to work in China is that the design of its foreign NGO registration system may allow other governments to impute (accurately or not) a superior-subordinate relationship between the Chinese government and foreign NGOs. It also underscores the increasingly contentious political space that international non-profits must inhabit and raises the possibility that barriers to international NGO work may occur even in environments that have long been open to such work.

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