International NGOs in China: Which Path to Follow?

第三部门思想汇

中文 English

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The Current Situation

Over 2016 and 2017, three new legal documents concerning overseas NGOs saw the light: the “Guidelines for on Registering a Representative Offices and Filing to Conduct Temporary Activities for Overseas NGOs”, the “List of Fields of Activity, Categories of Projects and Professional Supervisory Units for Overseas NGOs Carrying Out Activities in Mainland China (2017)”, and the “PRC Law on the Management of Activities of Overseas NGOs within Mainland China”.

What are the main points of these three legal documents? At the administrative level, the public security organs are in charge of registration, while the professional supervisory units (hereinafter “supervisory units”) are the relevant government departments. At present, there are two options on the table for international NGOs (hereinafter “INGOs”): one is to register a representative office; the other is to file a record to conduct temporary activities within mainland China.

What have the effects of the implementation of these legal instruments been so far? Nationally, out of the INGOs that had no legal status prior to the laws, no organization has yet successfully obtained legal status. Based on the information made public, in Beijing there is a total of 31 INGOs that have successfully registered with the public security departments, out of which 21 were previously under the supervision of the Ministry of Civil Affairs and the other 10 had registered with the Administration of Industry and Commerce. This shows that none of these were cases of new registrations, but rather “parallel transfers” (from a registration that took place prior to the new law). In addition, there have been no reports of any successful cases of INGOs filing to conduct temporary activities thus far.

Reportedly, there are approximately ten thousands INGOs active in Mainland China. US-based NGOs rank top of the list with a total of 2000, followed by Hong Kong-based organizations. The scope of their activities has spread to 20 different fields and the scale of capital inputs has increased over the years. With the deepening of China’s opening-up and the strengthening of international cooperation, by rights this trend should not alter. Then why has it become so difficult for INGOs to get their legal status verified, with the successful cases so few and far between? Doesn’t this seem to run contrary to the trend of increased international cooperation? What are the major roadblocks for INGOs in this regard?

The Roadblocks

The roadblocks can vary for different players, but overall the issue is the cumbersomeness of the technicalities associated with the procedures. There are just too many bumps along the way, so to speak.

1 – Government departments are fragmented, and each one has limited responsibilities and authorities. While the authorities for registration are clearly defined as the public security organs at the provincial level and above, the supervisory units are far from being clear cut. Specifically, these units span 9 general fields, 50 sub-fields, 192 projects and involve more than 46 government units. If we take the civil affairs department, it shoulders multiple responsibilities ranging from social assistance and welfare to social affairs and disaster relief.

If an INGO were to submit a request to the social assistance division to be its supervisory unit, would this division be capable of assuming such a responsibility? Certainly not. For one thing, the activities of an NGO usually extend beyond one field and the jurisdiction of one particular government unit. If one particular unit is to assume the responsibility as the supervisory unit of an INGO, it may very well run afoul of its legal limits. The risk involved for the government unit is in supervising activities that fall outside of its designated authority.

As illustrated, the challenge of identifying a supervisory unit may implicate a situation where multiple divisions within the same department, for instance the civil affairs department, are involved. The challenge is even more insurmountable when the INGO’s activities involve different government committees, offices, and bureaus, in which case no single government unit will voluntarily assume responsibility. Furthermore, the directors of different government units also have to take into consideration the potential political risks: from their perspective, the less trouble the better.

2 – Even if they are able to register and file to conduct temporary activities, INGOs will still be concerned about the uncertainty of the laws. It is stipulated that the INGOs are prohibited from engaging in or funding profit-making activities or political activities, illegally engaging in or funding religious activities, and carrying out fundraising activities. The problem however is that the definition of the scope of political activities is unclear. For instance, where do you draw the line between “political activities” and fields like equal rights to education, gender equality, legal aid, and cultural exchange? Isn’t the term “political activity” overly broad here?

The same concern goes for “illegal religious activities”. What INGOs are most concerned about is political sensitivity in relating to the Chinese government. They have to evaluate and differentiate their activities into the categories of “not politically sensitive”, “sensitive”, and “very sensitive”. Someone in charge of an INGO once stated that they do not feel protected by the laws even if they only engage in social assistance work, which is considered not politically sensitive.

The Solution

Needless to say the solution lies in reform.

Looking at the big picture, since international NGOs entered China they have established long-term cooperation with Chinese partners in numerous fields, bringing along with them large amounts of funds, diverse concepts, helpful experiences, and a spirit of professionalism. Their positive contribution cannot be discounted. Since an all-round reversal at the public policy level is very unlikely, it is also less likely that there will be large scale outflow of INGOs from China. Based on my daily interactions, it appears that all the involved parties are actively seeking for solutions. Sooner or later, solutions that respond to the technical and procedural problems currently encountered will be placed on the government’s agenda.

Here are some specific proposals, put forward for reference purposes:

  • When it comes to the problem of professional supervisory units, perhaps they could be designated by the public security units based on specific conditions. As such, there will be no quandary of being unable to locate a supervisory unit.
  • In responding to the spread of supervisory units among government departments, a general department should be established as the designated supervisory unit of INGOs with clearly defined responsibilities, status and functions. The supervisory unit should shoulder three main responsibilities: 1) management, with professional staff needed in this regard; 2) assistance and collaboration, with coordination and communication needed in this regard; 3) providing the necessary services for INGOs.
  • The National People’s Congress shall provide an interpretation of the laws, and especially the parts that entail ambiguity should be interpreted as clearly as possible. This will reduce the risk of breaking the law for the INGOs.

In the end the answer is quite simple: the solution lies in concerted efforts, advocacy from all stakeholders, and pooling everyone’s wisdom and efforts together.

In the end, staying or leaving is a decision for the international NGOs themselves to take, and both would be understandable.

黄金镖|境外NGO何去何从?

2017-03-16 黄金镖 第三部门思想汇

现 状

2016、17年出台,涉及境外NGO的法律文件三部:《境外非政府组织代表机构登记和临时活动备案办事指南》《境外非政府组织在中国境内活动领域和项目目录、业务主管单位名录(2017)》《中华人民共和国境外非政府组织境内活动管理法》

那么三部法律文件的主要内容是什么呢?管理层面:登记管理机关是公安部门,业务主管单位是政府各部门。NGO要做的就两条:一是代表机构登记,二是临时活动备案。

至今为止,法律实施的效果如何呢?全国范围内,原本没有合法身份,新法出台后成功申请到的合法身份的NGO尚无一例。公开信息显示,北京共有31家境外NGO依法在公安机关登记成功,31家中21家是原民政部管理的境外组织,另10家为原在工商部门登记的,均为平移过来的,没有新增的案例;境外组织临时活动备案成功的也没有耳闻。

据报道,境外组织在国内活跃的有1万家左右,其中美国的2000家左右位居首位,其次是香港,活动涉及20多个领域,资金规模逐年增加。随着对外开放的力度的加大,国际合作逐步加强的趋势,本应不会改变,那么境外NGO的身份认证为什么反而这么少,反而成了问题?难道与趋势背道而驰吗?这其中的主要障碍是什么呢?

障 碍

障碍,作为不同角色分别来说就是各有各的难处,体现在事理上就是技术程序设计的繁琐,所谓的坑太多。

一、政府部门责任分散,各部门职责有限。登记关口是明确的,就是省级以上公安部门。但业务主管部门就太复杂了。九大领域、50个子领域、192个项目、46个部门单位。其中仅民政一家,涉及到的职能部门就包括救助、福利、社会、灾害等多口。如果一家组织把业务主管单位的申请要递到主管社会救助的处室,是否就能承担起来呢?显然不是的。一是社会组织的活动往往跨领域跨部门,主动承担起来做为业务主管的责任,往往跟职能处室的法定权限有矛盾,这里边的风险是,不在我管理范围的其他领域,我怎么管?作为民政内部分工尚且如此,作为明显跨领域的不同的委办局,谁还能主动请缨吗?还有就是政治风险也是政府部门领导不得不考虑的,往往是多一事不如少一事。

二、境外NGO的担心,如果登记备案的问题解决了,主要是法律的不确定性。境外非政府组织在中国境内不得从事或者资助营利性活动、政治活动,不得非法从事或者资助宗教活动,也不得开展募集资金的活动。问题在于,政治活动的范畴包括什么没有明确的解释,比如,从事教育平权、男女平等、法律援助、文化交流等活动与政治活动的界限在哪里?这个筐是不是太大了?非法宗教活动也是同样的问题。境外组织担心的更多的是中国政府的政治敏感度问题,他们从事的活动需要评估哪些是政府不敏感、敏感、过度敏感的;有某组织负责人表示:即便是从事不过敏的救助,也找不到被法律保护的感觉。

出 路

出路在于改革,其实等于没说。

大趋势讲境外非政府组织进入中国,长期在多方面展开合作,带来了大量的资金,多元的理念、有益的经验和专业水准,其正面作用不容抹杀。政策层面不大可能出现全面倒退,境外组织也应该不会出现大规模的撤出潮,从我的日常接触来看,大家都在积极寻找解决问题的办法,一些技术上、程序上问题的解决,迟早也会被提上政府的议事日程。

具体建议如下,仅供各方参考:

  • 业务主管单位的问题,可否由公安部门根据组织的实际情况进行指定。这样理顺了,解决业务主管单位找不到,没人当的尴尬局面。
  • 政府各部门作为业务主管单位,不应在分散管理职责,应该通过成立综合部门的方式,一口对外,作为境外组织的业务主管部门要明确其职责、地位和作用。主管部门要做的,一方面是管理,需要专业人才;一方面是协作,需要沟通协调;还有一方面是服务,为NGO提供必要的支持。
  • 由全国人大进行释法,对一些模糊地带,给出尽量明确的说法,减少境外组织的违法风险。

很简单,出路就在于各方一起努力,共同呼吁,群策群力。

 

对境外NGO来讲,无论是走是留,其实都是合理的。有一句话倒是可以送给他们:宠辱不惊,闲看庭前花开花落;去留无意,漫随天外云舒云卷

Translated by 钟山

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