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ATAL Risk Assessment Political Risk Assessment China

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					                                                                                                          ATAL Risk Assessment
                                                                                                                     www.atalra.com
                                                                                                                     Tel: +972 9 794 1568



                                             Political Risk Assessment: China
    #     Indicator                                    China        Data Sources                      Comments
    1     Armed conflict, coup d'état,                   1          News archives,                    Very first indicators reflects
          rebellion or any other internal                           Freedom House and                 quality of life defense provision
          violent clashes caused                                    State Department                  in the country
          significant casualties (dozens                            Reports                           Similar indicators (duration of
          killed at least) during last                                                                peaceful period since last conflict
          decade.                                                                                     ) applied as countable variable
    2     Casualties number taken by                                News agencies web-                See above
          world News agencies as                                    sites archives or
          important news (presented on                              monitoring
          the web-site at least for two
          days)
    3     Habeas corpus constitutional                    -1        Constitution's and                The indicators shows presence
          formal guaranties as well                                 other legislation texts           of Personal immunity guaranties
                                                                                                      The period of the norms package
                                                                                                      existence duration used as
                                                                                                      supplemental indicator
    4     States' initiated tortures                       1        Freedom House and
          application                                               States Department
                                                                    reports
    5     The State, as represented                       -1        Press archives                    An example of this is the US
          by high officials and                                                                       Supreme Court’s decision on the
          agencies, can lose, a                                                                       illegality of procedures for
          socially significant and                                                                    detaining terrorists at the
          widely publicized case1 in                                                                  Guantanamo military base,2
          court to an individual                                                                      creating serious problems for the
                                                                                                      US administration.
    6     Judges' term in office – life-                            Legislative acts data             Indicator of the courts system
          term appointment fixed by                                 base                              independence and at the same
          Constitution or constitutional                                                              time of the judge's personal
          tradition (see definition of the                                                            independence (Alternative – the
          Constitution above)                                                                         appropriate term in the office
                                                                                                      duration) – applied by A.Shleifer
                                                                                                      (Glaeser et al, 2004)
    7     Judges removed from the                                   National Legislation              Personal Judges' independence
          office by the impeachment                                 and Law history                   guarantees
          procedure only AND the                                    literature
          number of procedures initiated
          never exceeds 3 for 100 years
          for the country
    8     Confiscation of property cases                   1        Press archives,                   Basic rights violation risks
          or practices occurred for last 4                          Fraser Institute,
          years                                                     Freedom House
                                                                    reports
    9     Opposition media (see                           -1        National Press                    Basic rights violation risks
          definition above) presence                                monitoring
10        Legislation or the Case of                       1        National Legislation,             Basic rights violation risks
          criminal prosecution for the                              press archives,
          religious conversion or for                               States Department
          religious missionary activity                             and Freedom House
                                                                    reports


1
  A state agency or enterprise could lose a case in a court of justice even in totalitarian states, including the USSR, when the case in point was
a labor or property dispute (i.e., when the issue was unimportant).. For example, the instances of reinstatement at work by a court decision
were not rare at that time, with the plaintiff happen to be a private person, and the defendant, a state enterprise or organization.
2
    The decision on the Hamdan vs. Rumsfeld case , 04-702; the decision was announced on June, 29 2006..



                                                                           1
                                                             ATAL Risk Assessment
                                                                    www.atalra.com
                                                                    Tel: +972 9 794 1568




   1) Brief historic review

    The decisive moment in the development of medieval China was strong and
undeniable superiority of agriculture over trade and villages over the city. As the
state received the majority of taxes and income from agriculture, the rights of
agriculturalist - both landlords and peasants, were generally protected by official
institutions. Business and trade were deprived of legal guarantees.
    There was no urban self-government in China, the city stood on the state land
and not being even an independent administrative unit, was only a part of a county.
As a result, its life largely depended on the power of local officials that was
ideologically supplemented by Confucian formula: "Agriculture is the trunk (basis),
trade and crafts are the branches (secondary) and related formulas: "Strengthen the
trunk, limit the branches"; "Forcing people to go into agriculture".
    To understand the mechanisms of regeneration of traditional system we should
first note that the traditional laws of China, as opposed to the European tradition, did
not allow for individual ownership of land. Land could only be in the collective
ownership of families. In turn, property rights of higher-level corporations
(“extended family”, clan) dominated the family rights. Land could not obtain legal
status of private ownership due to a multiplicity of overlapping claims. In such a
system an individual was unable to own or dispose of the land. The instances of
sale of land in China are not an indication of the existence of private property".

    A similar scheme was in place in craft and trade corporations (tight workshop
structure). Negative attitude to personal ownership rights was reflected in traditional
moral standards. The very notion of "private", as opposed to "public" has negative,
reprehensible connotations and is synonymous with personal greed, antisocial
desires, selfish goals and aspirations. It is related to the spirit of greed, moral
impurity and turpitude, spiritual treason to society. In the framework of the
"extended family", for example, children and grandchildren did not have separate
property. Their attempts to break out and maintain a separate economy classified as
a crime.

    Contacts with the West, because of the incompatibility between the traditional
and capitalist structures, resulted in a collision. While the pressure was low, the
Chinese used the opportunity associated with isolationist policies. A series of
defeats of China (1841, 1858, 1860, 1884, 1894, 1900) in the wars with the West
and the modernizing Japan led to breaking of traditionalist "defense" and forced
introduction of alien elements into its structures.
    Beyyan (1913-1927) and Kuomintang (1927-1949) regimes are transitional
regimes with regard to both the traditional collectivist society, and the society that
could be called "Europe-oriented".


                                           2
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                                                                                                                www.atalra.com
                                                                                                                Tel: +972 9 794 1568



    In the legal sphere state structures had an overwhelming dominance over all
other structures. The lack of clear legislation leaves a lot at their discretion. At the
same time, the remaining structures left in a situation of legal vacuum are forced to
exist in the conditions of constant uncertainty and the need to somehow reach an
"agreement" with the state. This, among other things, leaves the legal field, as well
as the public structures, divided and fragmented, replicating the situation that
existed in the traditional China.


       2) Victims of internal conflicts (in the last years)

   The number of victims of internal conflicts is hard to estimate, because the
available data are not reliable, or complete. Where freedom of press is not ensured,
the information is systematically distorted, and the number of victims understated.
However, indirect evidence shows that the number of casualties is at least several
dozen.
Thus, the Bureau of Democracy, Human Rights, and Labor reports several cases of
clashes between the police and the population that caused deaths3
   One of the major sources of discontent in both rural and urban areas is the
confiscation of land without adequate compensation, often involving collision
between local government and developers eager to profit from China’s rapid
urbanization. The authorities continue to frequently employ excessive force to quell
such disturbances4.


       3) Principal constitutional guarantees

The guarantees of personal safety are effective in the regions of [Syangan and
Aomyn] from the colonial times. There is no such guarantee in the rest of China.
   There are few legal guarantees in China that would ensure fair trial, and the
judicial system on each level is controlled by political and legal committees that can
deliver their judgement without even listening to the evidence of guilt5. China’s
Criminal Law provides for the possibility of the arrested people’s access to the
lawyer no later than a week prior to the beginning of court proceedings. However,
3
 «On September 30, People's Armed Police at the Nangpa La pass fired at a group of approximately 70 Tibetans attempting to cross into
Nepal, killing 17-year-old nun Kelsang Namtso and wounding others.
In December 2005 police shot and killed at least three protesters in Dongzhou Village, Guangdong Province. Villagers claimed that as
many as 20 villagers were shot and killed by paramilitary riot police, with approximately 40 others missing. The government said the
shooting occurred after protesters threw explosives at police and claimed that three protesters were killed. On May 24, 13 villagers from
Dongzhou were sentenced to prison terms ranging from three to seven years for alleged crimes during the protest. Four government
officials were given internal warnings, but only the deputy director of the local Public Security Bureau (PSB) was removed from his
position». (Country Reports on Human Rights Practices - 2006)
http://www.state.gov/g/drl/rls/hrrpt/2006/78771.htm
4
    Freedom House http://www.freedomhouse.org/inc/content/pubs/fiw/inc_country_detail.cfm?year=2007&country=7155&pf
5
    http://www.christusrex.org/www1/sdc/hr_facts.html



                                                                       3
                                                                                                   ATAL Risk Assessment
                                                                                                              www.atalra.com
                                                                                                              Tel: +972 9 794 1568



even this minimal protection is not always observed. Generally, inmates cannot call
for defense witnesses or interrogate those witnessing against them. In politically
sensitive cases, lawyers have been instructed that they may enter a not-guilty plea
only if they get approval from the judicial administration. Even in death-penalty
cases, appeals are usually cursory, and defendants may have only several days to file
an appeal.


           4) Torture application

    Although China became party to the UN Convention Against Torture in 1988,
the government has not taken effective measures to diminish the risk of prisoners
being tortured or ill-treated. Despite strong evidence of torture in several cases of
death in custody, state prosecutors have refused to release autopsy results to families
or to initiate investigations6.
    The law forbids prison guards from extorting confessions by torture, insulting
prisoners' dignity, and beating or encouraging others to beat prisoners. However,
police and other elements of the security apparatus employed widespread torture and
degrading treatment when dealing with some detainees and prisoners7. Application
of torture probably comes as the consequence of institutional weakness and lack of
judicial independence in a system that pressures police to solve cases and allows
them wide discretion in matters of arrest and detention8. The ones suffering most
from torture were members of religious groups - Falun Gong adherents, Tibetans,
and Uighur prisoners9.
    Up to 200000 people

Judges' term in office – 5 – 10 years10

           8) Confiscation of property

   In most regions of the country natiolization is carried out without any
compensation. The example can be mass expelling of peasants from their land plots
in the vicinity of large cities, and demolition of “private” property by city
authorities, which assumed unprecedented scope beginning with 2002. At best, the
victims of such actions received minor compensation, and, left without land, lost


6
    Ibid
7
    http://www.state.gov/g/drl/rls/hrrpt/2006/78771.htm
8
    Up 200000 yearly – see Sukharev A. (eds) “Pravovye sistemy stran mira” (Legal systems around the World) Moscow, Norma, 2003, pp.384
9
 Since the crackdown on Falun Gong began in 1999, estimates of the numbers of Falun Gong adherents who died in custody due to torture, abuse,
and neglect ranged from several hundred to a few thousand (там же)
10
     Sukharev A. (eds) “Pravovye sistemy stran mira” (Legal systems around the World) Moscow, Norma, 2003, pp.384-385



                                                                       4
                                                                                            ATAL Risk Assessment
                                                                                                       www.atalra.com
                                                                                                       Tel: +972 9 794 1568



social support11. It is not hard to list other, more concrete examples of confiscation
of private property12
Criminal law of China directly provides for such possibility13.

        9) Opposition media

    Although the PRC's 1982 Constitution guarantees citizens freedom of expression
and of the press, its preamble mandates adherence to "four basic principles" - the
Communist Party leadership, socialism, dictatorship of the proletariat and Marxism-
Leninism Mao Zedong Thought. In practice, the People Republic of China employs
a wide range of controls that violate the right to free expression and interfere with
independent media. These include severe restrictions on contact between foreign
news media and Chinese viewed by the government as critical of the regime. An
extensive censorship bureaucracy licenses all media outlets and publishing houses
and must approve all books before publication.
    The primary mechanism of control over the news media and publishing is self-
censorship. Chinese journalists, editors and publishers are expected to make the
information they disseminate conform to CCP Propaganda Department guidelines.
For example, news coverage is required to be "80% positive and 20% negative."
Sanctions for infringements range from official criticism of the coverage to the
demotion, firing or imprisonment of the individuals responsible and the closing or
banning of the offending publication.
    Dissidents who make their opinions known to the foreign media are often subject
to threats, detention, harassment, intensive surveillance or imprisonment. During
1994, at least 20 Chinese writers, journalists, editors and publishers were persecuted
in connection with their work. Also during the year, foreign correspondents from the
British Broadcasting Corporation, Newsweek, Reuters, United Press International,
The Wall Street Journal, The Washington Post, U.S. television networks (NBC,
CBS) and other foreign media outfits were detained and interrogated by PRC police
regarding their work as journalists, including the interviewing of Chinese dissidents
and students and filming in Tiananmen Square. Police also banned broadcasts of
CNN in Beijing hotels for five days surrounding the fifth anniversary of the 4 June
1989 military crackdown on democracy demonstrators.




11
     Я. Бергер "Синие книги как источник для изучения социальных процессов в Китае". "Проблемы Дальнего Востока" № 4, 2005
12
     http://www.danwei.org/ip_and_law/property_rights_in_china_equal.php
13
     http://www.colaw.cn/findlaw/crime/criminallaw1.html



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                                                             ATAL Risk Assessment
                                                                   www.atalra.com
                                                                   Tel: +972 9 794 1568



        10) Suppression of Religious Freedom

   Traditionally, China respects freedom of faith (one of the exceptions – Maoist
period of 1949-1978). However, the activity of sects that pretend to play a political
role is severely suppressed.
China’s laws restricting contact with foreign coreligionists, prohibiting parents from
exposing children under the age of 18 to religion. In January 1994, the PRC
government increased restrictions on religious practice by foreigners in China:
foreign nationals may bring in religious materials only "for their own use," and bans
materials deemed "harmful to the public interest." The decrees prohibit
evangelizing, establishing religious schools and other missionary activities and give
authorities substantial leeway in restricting religious activities deemed harmful to
"national unity" or "social stability," and limits the practice of religion by foreign
nationals to state-sanctioned places of worship14.




14
     http://www.christusrex.org/www1/sdc/hr_facts.html



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