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Mark Sidel on China's Oversight of Foreign NGOs: Eight Years of the Overseas NGO Law
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Welcome to the Seneca Podcast, the weekly discussion of current affairs in China. In this program we look at books, ideas, new research, intellectual currents, and cultural trends that can help us better understand what's happening in China's politics, foreign relations, economics and society. Join me each week for in depth conversations that shed more light and bring less heat to how we think and talk about China. I'm Kaiser Guo, coming to you this week from my home in Chapel Hill, North Carolina. Sinica is supported this year by the center for East Asian Studies at the University of Wisconsin, Madison, a national resource center for the study of East Asia. The Sinica Podcast will remain free, but if you work for an organization that believes in what I'm doing with the show and with the newsletter, please do consider lending your support. You can reach me@senecapodmail.com and as we all know, I am in need of more institutional support listeners. For your part, you can support my work by becoming paying subscribers@sinicapodcast.com you will enjoy, in addition to the podcast, the complete transcript of the show, essays from me, as well as writings and podcasts from some of your favorite China focused columnists and commentators. And of course, you can bask in the knowledge that you're helping me do what I honestly believe is very important work. So do check out the page to see all that's on offer and consider helping out. I had the pleasure of hearing this week's guest speak in Madison back in February when I was up visiting the center for East Asian Studies at the university there. The talk reminded me that we are long overdue for a conversation about an area that has quietly but quite profoundly reshaped China's relationship with the outside world. The Regulatory environment for overseas NGOs, foundations and nonprofits since the Law on the Management of Domestic activities of overseas NGOs took effect on January 1, 2017, it was promulgated in 2016. China has introduced what is now a remarkably comprehensive, vertically integrated system of oversight for foreign civil society organizations. It is a system that, as my guest argues, create combines elements of securitization and political risk management with a selective accommodation of service provision and technical expertise. This is not simply a story of closing space, though that's clearly a part of it. It is also one of molding the types of work foreign organizations can do, of channeling collaboration in certain arenas that are important to China while shutting down others. The numbers alone speak to the maturity of this system. As of January of this year, 20, 25, 779 overseas NGOs have registered representative offices, while more than 6,600 temporary activity filings have been made. But beneath those numbers lie a host of strategic adaptations. There are organizations that have survived and localized those that have moved activities to neighboring jurisdictions, those that have shifted into social enterprise models, and those that have quietly withdrawn. So understanding how these changes unfolded and what they mean not only for foreign NGOs, but also for China's domestic nonprofit sector and for the state's long term goals requires the kind of historical and comparative view that my guest brings to this issue. Mark Seidel is the Doyle Bascom professor of Law and Public affairs at the University of Wisconsin, Madison, and he's Senior Fellow at the International center for Profit Law. He has written extensively on law and philanthropy in China and across Asia, including a widely cited analysis of how the Chinese security state came to play a central role in managing foreign civil society organizations. Mark, a very warm welcome and an overdue welcome to Seneca.
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Thank you. Delighted to be here.
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Great. Well Mark, you've written that China has long distinguished among different types of non state organizations. There's the mass organizations that we know of, like the All China Federation of this and that, government organized NGOs or gongos, grassroots service groups, issue advocacy groups, and then overseas NGOs and foundations. Each are governed under quite different legal and political logics. So maybe let's start with the landscape prior to the promulgation of the law. So before 2016 you've written that China has long distinguished among these different groups. Could you briefly sketch out how those categories emerged historically? I mean, specifically, how did the party state conceptualize civil society or did it avoid that term altogether in the reform era of the 80s and the 90s?
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Thanks Kaiser. Before the reform era, what we might call the civil society community in China was almost non existent. Everything was state created and subject to rule by state or party law. It's really only with the reform era, as you said, that things began to change and we began to see in the mid to late 80s the emergence of some groups that came under somewhat less state control. But those were viewed with significant suspicion. So for example, some of the research and policy groups around the time of Ken and Min, when I was working in China with the Ford foundation, those groups existed, but they were treated with suspicion and then repressed after June 4, 1989. In the 1990s, when things liberalized a bit more, it became possible for a range of research, service and in some cases advocacy groups to emerge. Most of those came under loose control from the Ministry of Civil affairs, but as things tightened up in China, beginning in 2010, 2012, especially 2012, 2013, a number of those groups that try to do advocacy were coming under much control or were forced out of business. So you see an array of groups forming, but the Chinese state, the Chinese party and state deciding to regulate them. The more stricter, the more advocacy work they did, and in some cases a bit looser if they were just doing social service work. That axis is an axis in terms of state control and regulation that has persisted to the current day.
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So Mark, given that historical backdrop, what actually changed? I mean, we often trace the kind of current securitization to external shocks, at least as China perceived them. These color revolutions or the Arab Spring, 2011, 2012. But were those the only drivers? What were the specific domestic anxieties or the bureaucratic debates within China that really finally convinced the state that it needed a dedicated security led law? For foreign NGOs, the color revolutions did.
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Play a significant role. There's absolutely no doubt of that. But in addition to that, China had a relatively fragmented system of overseeing, watching, controlling, regulating the overseas sector. That's foreign foundations and NGOs, Hong Kong, Taiwanese. And in combination with the fears about the color revolutions, the Chinese political system, the party in particular decided in 2012, 2013 and 2014 that there was a need for centralized control over this overseas sector. Again, a number of factors played into that. But they didn't want the overseas groups doing policy work. They certainly didn't want the overseas groups doing advocacy work. They wanted them all under one umbrella so that they could figure out what everyone was doing and know what everyone was doing. And the CO revolutions, Hong Kong and Europe and elsewhere, North Africa played a role. The result was, between 2013 and 2016, the drafting of a document that would govern all of these international or overseas groups and bringing them all under control from a series of fragmented authorities, putting them all under the control of the Ministry of Public Security.
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Right, right, right. So give me a sense of that fragmented control era where what different government bodies were responsible for overseeing the activities of non governmental organizations.
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You had some who were under the Ministry of Civil affairs. You had some who were under the state administration of Industry and Commerce. You had some that were just registered as companies. You had some overseas groups that were affiliated with Chinese universities, and if they were regulated at all, they were regulated by the Ministry of Education. And you had some groups that had adopted in the early days, sui generis regulatory regimes. So for example, the Ford foundation, where I worked in China in the early years, had an agreement with the Chinese State Council that the Chinese Academy of Social Sciences was at that time the host of the Fortunes Conviction. All of these fragmented regulatory streams were brought together in 2016 in what we call the Overseas NGO law.
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Okay, let's look a little bit more into what was driving this desire to put them all under one umbrella. One of the points that you've made in your writing is that the drafting of the Overseas NGO law was influenced not only by political signals from the very top, but also by this growing cadre of scholars and policy thinkers within the security system itself. What you've called public security intellectuals. Who are these guys? What impact did their frameworks and their research have on how the state actually conceptualized the risks and uses of these foreign NGOs?
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There were academics, scholars, what I do call public security intellectuals, who had begun researching the overseas foundation and NGO sector in China, going back at least 20 years. Some would argue, going back to Tiananmen. It is hard to know, Kaiser, to what degree they actually impacted policy. I think that the primary drivers for this new policy that brought everyone together under the Ministry of Public Security came from the political sectors at the top. But the public security intellectuals rapidly became an important force within the Ministry of Public Security, helping the Public Security Ministry, especially in the early days, not so much now, especially in the early days, understand what they were assigned to regulate. And it's, and it's important the Public Security Ministry was assigned to regulate this sector. This is not something they particularly wanted. This was a political assignment, in effect, moving this from the Ministry of Civil affairs and other fragmented groups to the security network.
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It's an interesting decision to put them under that. So for listeners who aren't steeped in all of this stuff, the 2016 law did two critical things. It created a registration and supervision pathway for, for foreign NGOs so that they could establish these rep offices. And it also established a separate filing system for temporary activities. Can you walk us through how these parts work actually in practice and what each one de Facto channels foreign NGOs toward?
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Yep, yep, absolutely. As you say, there are two channels for the vast majority of overseas non governmental organizations, including foundations, including social service groups and others to work in China. One is to have a representative office. A representative office can do more. A representative office, for example, of a foundation can make grants in China, assuming that their annual plan for those grants or other plans are approved by their professional partners in China and by the Public Security Administration. That's the most flexibility there is under the system. If you don't have a representative office, but you want to work with Chinese partners. Then you engage in what's called temporary activities, which are one year project agreements, and you sign an agreement with the Chinese partner. You get blessed generally by a local public security agency, and you're able to engage in temporary activity or temporary activity permit, or sometimes called temporary activity license for a year at a time. Those are really the only two channels. There are groups that continue to operate. There are groups that operate underground. In the now almost 10 years since this system came into effect in China, control over this system is now almost complete.
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So, yeah, help me to understand why they decided to designate the Ministry of Public Security rather than Civil affairs to be in charge of this. What was the thinking? Why was that shift seen as necessary? I mean, what particular problem was it supposed to solve? And what does that tell us about how the party state conceptualizes the relationship between civil society on the one hand and national security on the other?
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You know, beginning around 2012 and certainly by 2014, the work of overseas foundations, NGOs and other groups in China was viewed as a national security matter. It came to the attention of the new National Security Commission headed by Xi Jinping, that came into existence after 2012. And it goes back in significant part to the color revolutions. It also goes back to some degree to a sense within the party and some parts of the security and military establishment that international groups may have played a role that the party doesn't like. Going back as far as Canada groups like Soros and others. But the clan revolutions were a significant driver for this.
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Yeah, yeah. So this is all about document number nine, basically. Right.
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Document number nine is one of the embodiments of this new hardy focus on national security when it comes to foreign ideas and foreign organizations. Document number nine is one result of that concern. The overseas NGO law is another result of that concern. And we can probably see other aspects as well.
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Yeah. So I mean, it reminds me, of course, of how this was mirrored in the west with all this concern over the United Front. Right. The United Front work department. So they sort of see this as the equivalent of NED or other funding for foreign NGOs in China that were supposed to be sort of whipping up anti authoritarian sentiments, mobilizing civil society against. Yeah. In the matter of the color revolutions. Right.
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There are some within China who view it that way. There are some within the security ministries, public Security, State security. There are some within some of the political departments. There are some within the military who view it in that kind of very suspicious way. There are Others within China, academics, and others who view it in what I would call a more nuanced way. They don't see every foreign ngo, every Hong Kong organization as trying to bring down the Chinese Communist Party and the Chinese state. So I think you have different views on this in China. But increasingly, in the 2012-2014 era, it's the National Security viewpoint, or what we've been calling the securitization viewpoint, that came to dominate policy making in this area.
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This coincides, of course, with a time where the Internet had gotten really, really big in China over the preceding decade. It had gone from just a few hundred thousand users to a few hundred million users. How much did that play into their thinking, into their suspicions about the ability of foreign NGOs to mobilize society?
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There were a number of these concerns. The growing use of the Internet, the growing perceived threat, threat of the Internet, demonstrations, protest movements in Hong Kong and elsewhere, all of this. Some tied to the work of foreign organizations in China. So this was all important to the ultimate decision to take away the control of this sector from the Ministry of Civil affairs and other groups and vest control in the Ministry of Public Security. But I do need to point out, Kaiser, that this was, as I have understood from my discussions with colleagues in China, this was not the first goal of the Public Security Ministry. The Public Security Ministry had long been responsible for investigating and keeping track of a relatively small number of organizations that China has been suspicious of, that going back to at least the 1980s, the Soros network and things like that. That's what the Public Security Ministry was focusing on in 2013, especially in 2014. The decision came from the National Security Commission that the Public Security Ministry would be in charge of this whole sector. But my sense of this is that that is not what the Public Security Ministry initially wanted from these policy discussions.
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So would you say that there were bad apples, that there were any actors who you think were guilty of the sorts of machinations that certain Public Security intellectuals imagined? Or do you think that this was just an entirely fanciful and paranoid reaction?
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I think it was. Personally, I think it was largely fanciful.
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Yeah. Yeah.
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That's not to say that there have not been foreign groups working toward democratization in ways that the Chinese Party and Chinese security services don't like. But I think some of this was overdrawn in China.
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Yeah. It's not hard to imagine how they would have blown it out of proportion. So let's talk about implementation a little bit. A structural pillar of the law is this requirement that foreign NGOs securing registration have to have a professional supervisory unit, a PSU that's willing to sponsor them. How does this dependency relationship function actually on the ground? I mean, is it really difficult to secure a psu? And does it effectively filter what kinds of works are possible by requiring that the sponsoring unit itself be insulated from political risk in some way? I imagine it must.
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It's become enormously important to the system that has emerged. And look, this system was not guaranteed from the beginning. There were those who said, we don't need a dual system of regulation and control, a professional unit and the Public Security Ministry. Just have the foreign groups register with the Public Security Ministry directly.
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Right.
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And to that, the Public Security Ministry said, no, we don't have the skills in all of these fields. We need an intermediate range regulatory actor to make sure that everyone's doing what they're supposed to be doing and not doing what they're not supposed to be doing. We cannot be directly in charge of what is now more than 800 representative offices and more than 7,500 temporary activity projects over the last eight years. So it was Public Security that said, look, all these groups have to have a professional partner of some kind. Those professional partners have become enormously important to the system, both in helping to negotiate the way forward in China to do certain kinds of work, but also making clear to the overseas organizations time and time again what kinds of work is not going to be permitted.
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Do they get anything out of it, the PSUs?
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In some cases, that relationship with foreign organizations may mean that they get certain capacity building. It may increase the possibility of certain grants from foundations, things like that. But at least in the early years, Kaiser, we observed a reluctance on the part of some Chinese associations, ministries, universities, others we noticed a reluctance to play this role because it does put those organizations in the middle between the overseas groups and Public security, and it makes them responsible for the work of the overseas groups.
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Right, right, right. It's a lot of risk with not a ton of upside. Right.
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That is how it was often viewed in China.
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Yeah, not surprisingly.
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So now things have settled down to some degree. But you still hear situations in which these professional partners or professional supervisor units are not happy about what some overseas groups do. They want to expand to new provinces, they want to expand to new types of work. They want to engage in things that look sensitive. And the professional supervisory units or professional partners of various kinds are sometimes there to say, don't go too far.
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So a lot of these organizations historically did capacity building or rights training Like Ford did other work that had elements of advocacy. Not surprisingly, they found their activities constrained or rendered pretty impractical. But this didn't happen through one sweeping prohibition. Instead, as you describe it, it unfolded through slower bureaucratic friction and signals. Can you, Mark, can you describe how the state shifted foreign NGO work away from advocacy without always needing to just ban it outright?
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I think it was a process over many years we saw with organizations that were engaged in support for advocacy work, support for rights training of various kinds, support for certain kinds of advocacy, clinics in law schools, things like that. We saw a gradual process, not just the process of enacting this law in 2016, in which over time the space for those kinds of advocacy rights related work, became narrower and narrower. And that even predates in some cases 2012, which is sometimes considered something of a marker here. But that was already occurring in some cases before 2012. It certainly accelerated after 2012. It's worth remembering that document 9 and the surveilling of universities, the removal of certain university intellectuals, a number of these things predated the emergence of the overseas NGO law in 2016. So there were multiple steps over time.
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Yeah, yeah, that makes sense. And again, consistent with my experience there, having been living there at the time, I remember the space starting to constrict well ahead of the NGO law. So in your recent work, you've noted that some foreign NGOs and foundations have found new kind of safe lanes in certain areas. Poverty alleviation, environmental remediation, disaster relief, delivery of technical services, even in some kind of belt and road adjacent capacity building. So to what extent is this kind of deliberate strategy to channel their activities, their energies toward these forms of cooperation that the state finds useful?
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I would argue that it is entirely intentional. There's a dual intent here. One is to channel the overseas organizations away from sensitive areas, away from areas that the Chinese party and state does not want them engaged in. That's a whole range of advocacy activities, rights related activities. At the same time, the other side of the dual intent is to channel them toward building clinics, building schools, assisting with disaster relief through recognized organizations, a range of what I would call service related work.
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Right.
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I call this more third sector, less civil society. Third sector, meaning social service, NGOs and social service related projects, civil society having an advocacy idea to it.
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Right, right.
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And I think you can. I think we can see the last 15 to 20 years of these developments in China, including but not limited to the overseas NGO law, as more third sector social services, less civil society.
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B
That's a Very, very useful distinction you make. You know, you have kind of a typology of the different responses that these foreign NGOs have had you include in this typology. Survivors, hibernators, regionalizers, workarounders and leavers. Some of these are pretty obvious what they are. And this has kind of become kind of the common parlance within this field. Right, your typology. Could you maybe briefly describe each of these categories and explain what distinguishes, for example, a survivor from a hibernator and so forth?
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Yeah, I think the hibernation category, those are groups that saw what was coming in 2016, 2017, and basically closed up activities to wait for several years and try to figure out what to do by 2019, 2020. When Covid hit, it became pretty clear that you had to work within one of the two channels that China was giving you. You had to apply for and form a representative office. Not so easy. Or you had to do things through these temporary activity one year project permits, pyramids. The survivors were those who in effect understood that the scope for activity in China was narrowing, but that China did not necessarily want them to leave.
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Right.
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China is not Russia. And surviving meant understanding that moving in some cases from advocacy to service related activities and choosing to either open a representative office in Beijing or another part of China, or do your work through a series of these one year temporary activity permits. That's the survivors. There are some underground groups that again in the early years, probably a bit less now, Kaiser, in effect took their work underground. This was mostly small scale work. It is very dangerous to do in China, as you know very well. And they took sort of rights based capacity work and other work. And they in effect continued that work without registering under the new law, without getting a temporary activities permit or filing. And they did that work with individuals that they had long worked with in China. But I think that's become less common over time. We do have a range of organizations, the American Bar association and others, that seeing the writing on the wall with respect to rights based work and things like that, decided to move outside the boundaries of the PRC itself. So one point, the ABA moved to Hong Kong and other groups have moved to other parts of Asia and have tried to do what they can in the PRC from bases outside Asia. So those are some of the categories. And from, you know, call it 2018, 2019, right before COVID Kaiser, you know, probably public security knew what 90% of the sector was doing at that point. At this point, there is almost no one in the overseas sector working in China. Where Public Security does not have relatively full information on what they're doing, there's only those two channels, representative offices or temporary activities. And one of the goals of Public Security here was to establish 100% information certainty over what the overseas groups are doing, including Hong Kong, Macau, Taiwan. And they have come close to achieving that.
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B
What's the strike rate like when people are applying for these temporary activities permits or these year at a time permits? You said there's now 7,000. How many applications are they actually seeing?
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Yeah, unfortunately. And it's more than 7,000. I didn't look up the figures as of today, but I believe it's close to 8,000 now. But unfortunately we do not see numbers on applications. We only see a database, a database that is publicly available through the Ministry of Public Security in Beijing of those that have been approved for these temporary activity one year project permits. So we don't know how many applications there have been that have been formally refused. I think that's relatively small. And we don't know how many applications for these temporary activities projects there have been where there's just been no answer from the Chinese side, which is often the way of dealing with this. We hear anecdotally about temporary activities that have been agreed to with Chinese partners which have not moved forward because Public Security has not allowed them to move forward. But we have no good figures on how many there are. I will say that in the social service field, in some areas of exchanges between China and the rest of the world, those temporary activity one year project permits have become relatively routine for a significant group of organizations. If you were doing projects in China in a particular area, call it primary education, call it basic healthcare, building clinics, things like that, you didn't have a representative office in China and you were doing a series of these projects in 4, 5, 6, 8 provinces of China, and there had been no political issues with those projects, no significant advocacy connected to those projects. And you're a relatively trusted overseas NGO that does that work and has not gotten in trouble before. In general, your temporary activity filings go forward.
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I have a couple of questions related to this. One is, does this make it harder for those NGOs who have to apply year after year for these temporary one year project permits, does that make it harder for them to raise money overseas? Is it frowned on? Does it look sort of dicier?
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It can make it harder to raise money because you sometimes don't know at the time you're raising money whether that activity is going to be approved in China. And of course There are one year limits and to carry it beyond one year, you either have to get some kind of extension or start up a new project. So there is a, there's a lack of certainty in some cases about the temporary activities. A lot depends on the particular organization that can be an issue for temporary activities. Having said that, Kaiser, there are a number of relief and development organizations that do not have offices in China that have now been routinely doing one year projects, temporary activity filings in China since 2018, 2019. And they are used to doing this process. Now, of course, depending on political sensitivities in China, depending on where the project is, depending on whether important political meetings are coming up, things like that, things can be delayed sometimes things are never approved. But in some cases this has become somewhat routine.
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B
Are you hearing any that seem to you sort of edgy, that maybe verge on actual advocacy work or that touch on areas that you know to be politically sensitive in China? Are there any examples you can give that maybe somebody who's just fed on a usual mainstream US media diet would be surprised to hear are able to do any work whatsoever in China?
- [33:29]
A
You know, there are overseas groups that are supporting, for example, environmental protection groups or climate groups in China that are on the Chinese side, not the overseas side, the Chinese side, seeking to play a constructive policy role in China that is, I think, sometimes not fully understood outside of China. A formal human rights advocacy of the kind that we might see in some other countries is not encouraged in China, as you know very well. But policy advocacy in the environmental field, to some degree, in the climate change field, to some degree, occasionally, perhaps in the disability field, sometimes those are possible in terms of assisting the party state to adopt better policies, putting it in that way. And there are groups that have received support from overseas when they engage in a combination of, of capacity building service and some of those policy discussions or policy advocacy in China, none of this is as easy as it was 15, 20 years ago. There's no doubt about that.
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B
Right, right.
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But it's not a completely closed field.
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B
So among those who have survived, those who are still working in China, who continue to have their temporary permits approved, or who have actually successfully set up representative offices, what correlates with success? Is it localization of staffing and leadership? Is it like reframing their missions or repositioning the issue areas they work in? Is it having long standing government relations or is it just simply being in less politically sensitive fields? What seems to you to correlate with success?
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Well, you're not going to like this Kaiser. But I think it's all of the above.
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Sure. No, I'm not surprised.
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A
I think it's narrowing of what you intend to do in China because what's possible to do has narrowed in China. I think it's bringing on or giving more authority to really good Chinese staff who understand what the limitations and the possibilities are in China. Sometimes the heads, in many cases the heads of these representative offices are highly skilled Chinese personnel who understand both systems. They understand the Chinese system and they have spent years working with overseas foundations, Hong Kong NGOs, American NGOs, etc. They can be a bridge between an increasingly restrictive Chinese environment and an external environment that understands restrictions in China and is trying to figure out how to continue working in China under those restrictions. So I think everything you're mentioning is the case. Overriding or sort of on top of all of this is the sense in a large number of organizations that China is really important and that it is important where we can to continue working with China.
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B
Right, right.
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And if that means that at this stage working with China comes with restrictions and comes with conditions, there are hundreds or thousands of overseas organizations that have an effect said to themselves and to their partners. These are the rules in China these days. We might rather be doing broader things, we might rather be doing more policy or other advocacy, but this is what we can do in China and it's worthwhile to do.
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B
Well, I thank God for that. You mentioned people who do workarounds and that's really interesting. So, you know, cross border convening, doing research, collaborations from outside China, having like remote training models, you know, Zoom, hybrid academic partnerships. How much room does the state make for these sorts of collaborations? Like you said, the PSP is aware of this, but do you see that there are informal red lines at all? And if so, are they made clear enough to the people who are working these workarounds?
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A
Yeah, the first thing to say is that the workarounds are there probably a bit more in the earlier years than they are now. But we do see, for example, convenings outside China. We see certain kinds of work on Zoom or other platforms. Public Security is aware of all of this kind of thing and in most cases it's allowed to go forward because it's not viewed as a substantial threat. In some cases, some of those activities, such as meetings between counterparts and things like that, might even be allowed to go on in China if there were an application or a project proposal put in for it. So we do see what I called at that stage workarounds but as public security has exercised more control over the whole system, they're very well aware that this is going on. Red lines organizations in China with support from overseas donors or overseas groups meeting in Hong Kong or Bangkok or other places with established dissident groups that formally oppose the Chinese Communist Party. That's a red line.
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B
Yeah, as one would have guessed.
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And that's the kind of thing that could bring intervention from public security units with groups in China that might be trying to do this even under the guise of something else like capacity building. But that is not to say that all convenings outside of the PRC are going to be stopped, or all zoom meetings, things like that. Many years ago there was a. There is a well known professor at RENDA in Beijing named Kang Xiaoguang who came up with the. The formulation of graduated controls of the Chinese civil society sector. He wrote a highly influential article now 20 years ago, something like that, about graduated controls. And if anything, we are seeing more and more implementation of graduated controls where the response from the security authorities is not always to shut everything down, but to decide, sometimes on a case by case basis, sometimes on an issue by issue basis, sometimes on an organization by organization basis, what should be allowed and what shouldn't be allowed.
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B
So, Mark, one of the maybe less often discussed effects of the overseas NGO law has been its impact on the domestic nonprofit ecosystem, including professional intermediaries, you know, accounting firms, even, you know, these evaluation platforms, the actual capacity builders themselves, even on kind of quasi government service organizations or associations. What kinds of changes have you observed in this domestic infrastructure of NGOs as foreign actors have been more channeled or more constrained?
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One of the goals of this process and this system, Kaiser, has been to starve aid to explicitly rights related groups.
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B
Right?
- [40:51]
A
The first thing to say about this is that explicitly rights related groups that were trying to do explicitly rights related activities in China, some feminist groups, some LGBT groups, labor kinds of environmental groups, certainly labor groups, their resources coming from abroad have been to some degree or largely starved as a result of the strictures, the restrictions of the overseas NGO law. At the same time, we've seen, as you're pointing out, a series of sort of intermediate professionals, accountants, lawyers and others who have sprung up in the past 10 years to serve a variety of domestic and overseas groups that see the desire to continue linking activities where possible. So I now refer, for example, overseas foundations and other groups that need help in China to either lawyers or accountants in China who can assist them, who understand the regulations, can speak with both local and national public Security offices. And we have seen that sort of professional class of accountants and lawyers developing in China in 2016, when this system was enacted. In 2017, as you said, when it came into effect, there was virtually no one like this in China. Eight years later, we can point to accountants, lawyers and others who can assist both sides in trying to make this happen.
- [42:24]
B
So, I mean, a silver lining, I mean, maybe it's. It could be argued that the strengthening of a domestic nonprofit capacity in these, in these areas is an unexpected side effect of the NGO law, foreign NGO law. Do you find that to be, I mean, to what extent is that, is that the case? I mean, is it considerably more robust now than it was, as you say, eight years ago?
- [42:49]
A
Certainly the professional class of those who can assist in these matters is more robust than it was 10 years ago. But overall we are seeing a weaker NGO and civil society sector in China.
- [43:04]
B
Yeah, yeah.
- [43:05]
A
So the professional class of lawyers and accountants that I'm mentioning, that you're mentioning is one aspect of this. But if you look across the broad spectrum of civil society activity in China, with the exception of some large and very active Chinese foundations that are active in social service and other kinds of provision in China, we've seen in many cases a weakened civil society set of organizations in China. And those that remain are focused primarily on social service provision and the provision of charity.
- [43:43]
B
So the rationale behind the law was clearly to try to reduce kind of ideological or normative diffusion from these foreign advocacy oriented NGOs into these, their domestic counterparts. Would you say that they've been successful in that regard?
- [43:59]
A
Yes, I do think they have been successful in the ways in which the political authorities, the National Security Commission and others and the Public Security Ministry would put this, which is reducing the diffusion, including the diffusion of funds for rights related and advocacy activities, while not completely reducing the diffusion of funds for, for third sector social service charitable activities.
- [44:28]
B
So I mean, as they're evaluating it from their perspective, from the, from their priorities, it seems to have been a success.
- [44:35]
A
I think that the Public Security Ministry and they are coming up on a 10 year evaluation of this in 2025, 2026. I think the Public Security Ministry's evaluation of this will be that they were able to fulfill the political objective of gaining control over this fragmented system, knowing what the overseas actors, including foreign Hong Kong, Taiwan, Macau actors, are doing in China, shutting off funding flows to a variety of human rights and advocacy activities in China that the state wanted to see shut off, while keeping going at least some less political social service and charitable activities.
- [45:23]
B
So when we look comparatively, Mark, because India, Egypt, Bangladesh, Russia, Vietnam have all had similar moves to reassert state authority over foreign NGO work. In your view, first of all, what makes China's system distinctive? I mean, is it the bureaucratic sophistication or something tied to the durability of China's one party rule? Or is there something maybe even more deeply tied to Chinese political culture? What's different?
- [45:54]
A
For me, what's different about the Chinese system is the A to Z soup to nuts. Comprehensive control of the overseas sector. In China, in some other places, India, the focus is on flows of funds, not so much registration of organizations or other kinds of contact. In other parts of the world, sometimes the focus is on what we would call agents of influence, foreign political influence. The Chinese system in effect envelops all of that, right? And has set up a comprehensive system to monitor, surveil, regulate, control virtually everything in the third sector or civil society that has to do with China. Having said that, there are still some boundaries or gaps that the Chinese authorities are dealing with. I'll give one or two examples of that. There are organizations that work with China that have converted what they do into for profit companies or social enterprises or consulting firms and tried to work their way out of the overseas NGO law framework by becoming, in effect, more commercial. That is something that over time, of course, public security is fully aware of. They're not always objecting to that. If it's business development activities, for example, they may be fine with that. Making its way into a social enterprise or making its way into a consulting firm. But there are attempts to sort of move to the boundaries and then move to another organizational format. Increasingly, the Chinese authorities are asking questions not of everyone working in China, but certain kinds of groups. They're asking questions about where the foreign funds are coming from.
- [47:52]
B
Right?
- [47:53]
A
So if you're an organization that takes funds from multiple donors in the United States and through a representative office or through temporary activities, you channel those funds into China. We have seen since COVID the public security authorities asking more questions about what the ultimate origin of those funds are. So this is a dynamic system. It's a system in which public security identifies what you might call weak points or boundary issues that need to be addressed, and they are addressing those over time. I do think, Kaiser, that from the perspective of the political authorities and public security, they would view this eight year experience as having been a success. From my own viewpoint, I think it has significantly and to some degree unnecessarily narrowed the kinds of relationships and activities that overseas organizations can carry out with their Chinese counterparts. But frankly, that was part of the intention of this whole exercise.
- [48:58]
B
Yeah, you mentioned they're paying a lot more attention to the sources of funding. Is there evidence that China has been maybe learning from some of the approaches of other states? NGO regulatory models? What you've described sounds a lot like India. India has this fcra, this Foreign Contribution Regulation Act. That regime has focused really, as you mentioned earlier, on sort of sussing out the sources of foreign funding for NGO activity inside of India. Is this the case that China has been learning from these others, or is it more the case that others are looking to China as a model?
- [49:36]
A
I think now it's more the latter. I think China came up with a system in part by looking at what Russia, India and others were doing. Hungary, you know, and the key time for devising, designing this system was 2014 to 2016. And we can see this through the various drafts and reports on the law, things like that. They were doing comparative analysis at this point. But Fast forward to 2024, 2025, I think we see a variety of countries that are looking at the Russia experience, looking at the India experience, looking at the Chinese experience, and probably learning more from the Chinese experience than China is currently learning from them.
- [50:20]
B
Got it? Yeah, yeah. So university partnerships are increasingly important for scientific collaboration and public health work, as you know, we know very well. You know, I'm constantly worried about the near death of the US Science and Technology Agreement. This brings up the so called Article 1553 problem for our listeners. Article 53 allows foreign NGOs to conduct temporary activities if they find a Chinese partner, often in this case a university, to file on their behalf. But Mark, I'm wondering, why does this create such persistent uncertainty? I'm given that universities now have very strict party oversight, are we effectively seeing universities themselves becoming deputies of the public security apparatus?
- [51:05]
A
There was a kind of carve out for university partnerships with overseas foundations and non governmental organizations that came into the law as a result of pressure both in China and abroad in 2016. Fast forward eight years or so, most of those universities are under now the regular provisions of the law. There's no longer an easier exception or easier carve out in which foundations, overseas NGOs can work more easily with Chinese universities. That's what Article 53 allowed. As a result of pressure both in China and abroad. The universities complained, some of the overseas organizations complained. And Article 53 in the law was inserted in 2016 to in effect say we're going to make those partnerships A bit easier. But these days it's really pretty much the same system. At this point I've given talks in which I have shown the diagrams at Chinese universities of the kinds of permissions that need to be obtained within the Chinese system to have a grant from a foreign foundation, to have a partnership with an overseas ngo. Those have become more difficult over time, in part because, as you were just saying, universities are under more and more control these days. The party systems within universities have become more important and of course on the US and other sides.
- [52:42]
B
That's right, yeah.
- [52:44]
A
More and more sensitive working with Chinese universities. So the carve out of Article 53 that made those non governmental relationships with Chinese universities, at least ostensibly a bit easier in 2017 through call it the beginning of COVID roughly because nothing was happening really during COVID for a couple years. Those easier systems are now fading away for the most part.
- [53:11]
B
Mark, we're now more than a year into, well, not into the administration, but since the elections of the election of Donald Trump, we've seen a distinct hostility from D.C. toward the so called globalist institutions and international NGOs, many of whom we've mentioned toward Ford, toward Soros. Does this US posture inadvertently validate the Chinese security state's worldview? In other words, if the US is cracking down on foreign influence and rolling back support for civil society, does that give Beijing sort of COVID to tighten the screws even further? Are we seeing a dynamic of kind of negative reciprocity here?
- [53:52]
A
You know, I think at this point we're close to a decade into this Chinese system. I think that the Chinese side of this doesn't feel that they need cover, doesn't feel that they need legitimacy from a new administration in the United States to be suspicious of a range of overseas organizations. Ironically, at this point, at least in the United States, Chinese policy, while very restrictive, is at least a bit more consistent and easier to predict than sometimes what we see going on in the United States itself. With attacks on a certain number of American organizations that work with China. You just mentioned some of those. But I don't think this is necessarily affecting the implementation of policy in China. I think from the view of the Chinese security establishment and the political establishment above the security establishment, this has been their policy since 2016, 2017. The fact that a new administration, administration is now suspicious of some of those organizations and their activities in China, from the investigation letters we've seen in the US and other activities, I'm not sure that affects the Chinese very much at all.
- [55:09]
B
Right, right, right, right. So today if there were sort of a mid sized international foundation or an NGO who approached you, you're an expert on this stuff. And look, we've got this really important mission in China. Should we come in, should we stay out, should we rethink the thing entirely? What would your sort of candid counsel just sort of at that level be to them?
- [55:32]
A
Yeah. And this happens?
- [55:33]
B
KAISER yeah, I imagine it does.
- [55:35]
A
Which I think is one of the reasons why you're raising the question. I sort of have a two part response right now, at least in the fall of 2025. One is that Chinese policy is restrictive. China's going to look carefully at what you want to do, especially if you're a new actor in China. China's going to look carefully at where the funds are coming from. But there are systems in place, representative offices and temporary activities. And if what you are doing is social service or charitable related and does not relate too close to advocacy or policy reform in China, there is a reasonable possibility that Chinese policy will be relatively consistent and relatively predictable. And if you want to go build clinics in China or do school lunches or work with certain registered policies approved environmental groups in China on environmental issues, you will be able to do that. I also say to groups, especially now this year, that American policy is less consistent, American policy is less predictable. And there have been attacks on groups that are working in China. We know who those groups are. The attacks are for the most part public attacks. And there is a chance if you're a mid level American foundation or NGO that has not worked in China before and you decide you want to take up some China work, you have to be aware that there are restrictions to comply with in China and that there is a relatively unpredictable policy environment in.
- [57:07]
B
The US Very good, very good. Well Mark, thank you so much for taking the time to explain this and you know, it's a really good time to check in on this. As you say, they're up for kind of a review in China and we are closing on the 10 year anniversary of the actual promulgation of this law. So it's not entirely grim though I think that is what I take away from this, that there is still room for some action. We kind of know where the no go zones are, but those have long been no go zones and there are still some areas where you can do meaningful work there. I'm going to continue to believe that. So thank you so much. And can you point us to some of your writing that's available online that I should link to in the show? Notes to this episode so that people can find what you've written on the topic.
- [57:59]
A
Yeah, I can. I've done some shorter form writing for nyu, the US Asia Law Institute for a couple of European think tanks that lay out some of these issues at various times, as well as a couple of longer academic articles. I'm pleased to send you those links if you'd like to link to them. And I continue to write on these.
- [58:19]
B
Issues, please do send me those links and I will make sure to put those right here in the show notes. So thanks very much. Let's move on now to the segment that I call Paying It Forward where I ask my guests to sort of name check a younger colleague, somebody in the field that you work in, who's doing work that is worthy of our attention.
- [58:37]
A
You know, I'm going to name somebody. He's not that much younger. He probably won't like my putting it that way. But it's someone, Kaiser, that you and I know well, who I think at this point has the most successful series of engagements with China across academic and policy fronts in the United States of almost any organization. And that's the PEN Project on the I'm getting up the full title here, Pen Project on the Future of US China Relations, headed by our mutual colleague Neyson Mahbubi at the University of Pennsylvania. I think the PEN Project has developed into an important source engagement between the two countries. So that's who I would point to. There's other organizations as well. The National Committee on US China Relations continues to do excellent work in this area. The foundations that have offices in Beijing and China continue to be important bridges. But if you asked me to name one in terms of a younger colleague, I'd name Nason and the Penn Project.
- [59:47]
B
Yeah. I should also mention that he interviewed you back in 2021 on this same topic. And it's an excellent, excellent interview. I highly commend it. Yeah, Nation, I should mention he's a very good personal friend of mine. Of course he has been on the show. And I should also disclose that I am a senior advisor to the Penn Project on the Future of US China Relations. So.
- [60:09]
A
And having raised that, I should disclose exactly the same thing, but I'm raising it anyway.
- [60:14]
B
Yeah, no, great, great. I mean that's exactly what this exists for, what the segment is for, and I heartily endorse that. What about recommendations? There's a book or something that you've read recently that you would doesn't even have to do with NGOs in China or anything at all anything that's caught your attention recently.
- [60:35]
A
If you're looking at the domestic Chinese ecosystem for I'll call it civil society, not a term that's in favor in China. You see a largely restrictive, even larger, largely repressive environment. And yet there are small groups, often at the grassroots level, that are staying out of trouble with the state. They're not dissident groups, but they are embodying ideas of participation and values. And the person who's written about this most recently is an American scholar in Australia named Anthony Spires, S P I R E S, who's at the University of Melbourne. His book Everyday Democracy, Civil Society, Youth and the Struggle Against Authoritarian Culture in China, which came out from Columbia University Press at the very end of last year, can give us some hope that even in the midst of this widespread repression of domestic civil society organizations in China, as well as tremendous innovation in the philanthropic and charitable arena in China, there are groups and there are people that are thinking of a brighter future. So I'd recommend Anthony's book.
- [61:49]
B
Yeah, you know, I was going to be surprised if that book didn't come out at all during the course of our conversation. I'm not at all surprised that it was your recommendation. Excellent, Excellent. I have yet to read it, but I'll make sure to pick up a copy. All right. My recommendation is a musical one. I want to recommend the music of Steve Morse, M O R S E. Whether as part of the Dixie Dregs, which she fronted for a long time and it's later called the Dregs, or as part of the Steve Morse Band Trio that he's run for a while, and he. Now they have a new album out. Haven't actually given it a full listen. I've listened to it once, but it's mostly instrumental. It's very American rock, jazz, fusion, sort of progressive rock, hard rock. There's. There's.
- [62:33]
A
He's.
- [62:33]
B
He's. He's a absolute virtuoso as a guitar player with an enviable tone. He's just a beautiful player. So the Steve Morse Band, Dixie Dregs. The Dregs. And if you. If you haven't heard him before and you like instrumental rock music, please check him out. He's just one. Probably my favorite guitar player if I have to name just one. So, yeah, the musical Steve Morse. Mark, what a pleasure. It was really great to see you. And how are things up in Madison?
- [63:07]
A
Doing fine, as well as anyone can be doing at this stage. And Kaiser, thank you. You know, this area and the China Field backwards and forwards and it's a pleasure talking with you.
- [63:21]
B
Yeah well I hopefully will see you next time I'm up in mad. I'll probably go up there to move my daughter out in May after she graduates. So yeah, yeah. Great to see you Mark.
- [63:31]
A
Very good. Thank you.
- [63:32]
B
You've been listening to the Seneca Podcast. The show is produced, recorded, engineered, edited and mastered by me, Kaiser Guo. Support the show through substack@cinecapodcast.com where you will find a growing offering of terrific original China related writing and audio. Or email me@cinecopodmail.com if you've got ideas on how you can help out with the show. Don't forget to leave a review on Apple Podcasts. Enormous gratitude to the University of Wisconsin Madison center for East Asian Studies for supporting the show this year. Huge thanks to my guest Mark Seidel of that said center. Thanks for listening and we'll see you next week. Take care.
- [64:20]
A
Sa.