NGOs in China and Europe: Comparisons and Contrasts 9781409419594, 9781315598246

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NGOS In CHInA AnD EURoPe

To those working in NGOs in China

NGOs in China and Europe Comparisons and Contrasts

Edited by YUWen LI Erasmus University Rotterdam, The Netherlands

First published 2011 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business Copyright © 2011 Yuwen Li Yuwen Li has asserted her right under the Copyright, Designs and Patents Act, 1988, to be identified as the editor of this work. The editors and publisher gratefully acknowledge the permission granted to reproduce the copyright material in this book. Every effort has been made to trace copyright holders and to obtain their permission for the use of copyright material. The publisher apologizes for any errors or omissions in the above list and would be grateful if notified of any corrections that should be incorporated in future reprints or editions of this book. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data Li, Yuwen. NGOs in China and Europe : comparisons and contrasts. 1. Non-governmental organizations--Law and legislation-China. 2. Non-governmental organizations--Law and legislation--Europe. I. Title 346.4'064-dc22 Library of Congress Cataloging-in-Publication Data Li, Yuwen, 1962NGOs in China and Europe : comparisons and contrasts / by Yuwen Li. p. cm. Includes bibliographical references and index. ISBN 978-1-4094-1959-4 (hardback) 1. Non-governmental organizations--China. 2. Non-governmental organizations--Europe. I. Title. JZ4841.L52 2010 341.2094--dc22 2010033241 ISBN 9781409419594 (hbk) ISBN 9781315598246 (ebk)

Contents List of Figures   List of Tables   Notes on Contributors   Acknowledgements   List of Abbreviations   1 Introduction: Challenges and Opportunities for NGOs in Different Parts of the World   Yuwen Li

vii ix xi xvii xix

1

PART I NGOS in THe ConTeXT oF CHinA 2 International NGOs in China: Current Situation, Impacts and Response of the Chinese Government   ���� Junkui Han ����� 3

23



The Development and Institutional Environment of Non-Governmental Think Tanks in China   Jia Xijin

4

Development of Charities in China Since the Reform and Opening Up   Liu Peifeng

71

5

The Development of Women’s NGOs in China   Shen Guoqin

95

53

6 Public Interest Legal Organizations in China: Current Situation and Prospect for Future Development   Xie Haiding

117

7 A Review of the Development of Labour Organization in China in the 30 Years Since the Reform and Opening Up   Zhou Shaoqing

141

PART II CiVil SocieTy ORgAniZATionS in EURope 8

The Voluntary Sector and Government: Perspectives from the UK   Liz Atkins

167

NGOs in China and Europe

vi

9

Creating an Enabling Environment for NGOs in Central and Eastern Europe   Nilda Bullain

181

10

Socially Responsible NGOs? A European Perspective   Paul Dekker

203

11

The Role and Organization of Voluntary Action   Richard Fries

213

12

Oversight on Fundraising by NPOs: Dutch Experiences with a European Perspective   Adri Kemps

13

Civil Society in the Czech Republic   Petr Jan Pajas

14

Learning for a Lifetime: NGOs, Capacity Building and Non-Profit Education in Eastern Europe   Balazs Sator

269

The International Human Rights Movement: Not Perfect, but a Lot Better than Many Governments Think   Hans Thoolen

287

15

Bibliography   Index  

227 241

305 313

List of Figures 10.1 NGOs in Europe, their volume as civil society and as the non-profit sector   10.2 Example of corporate social responsibility   10.3 Trust in parliament and in a type of NGO in old (o) and new (■) EU member states   12.1 Fundraising income by charities in the Netherlands, for the period 1965–2008, as registered by the CBF   12.2 Level of trust based on a questionnaire by a panel of donors in the Netherlands  

205 206 211 231 237

13.1 Number of associations registered in regions of the Czech Republic in 2007   13.2 Main activities of Czech associations in 1999   13.3 Number of non-membership based CSOs, in the whole Czech Republic and in Prague as of January 2009   13.4 State subsidies to associations in 1996   13.5 Structure of the assistance to CSOs in Central Europe provided by independent foreign foundations and agencies from 1990 to 1997  

261 262

265

14.1 Number of non-profit organizations, Hungary 1989–2007   14.2 Financing the non-profit sector  

275 276

263 264

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List of Tables 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 9.1

Number of transnational organizations by issue focus   Timetable of INGOs’ entry into China (INGOs covered by the author’s own investigation)   Geographic scope of INGO activity in China (48 INGOs covered by the author’s own investigation)   Geographic distribution of INGO projects in China (INGOs covered by the book 200 International NGOs in China)   Fields of INGO activity in China (48 INGOs covered by the author’s own investigation)   Fields of INGO activity in China (INGOs covered by the book 200 International NGOs in China)   Total budget of INGO China projects in the year 2006 (48 INGOs covered by the author’s own investigation)   Total budget of INGO China projects in the year 2006 (INGOs covered by the book 200 International NGOs in China)   

27 29 30 30 31 31 32 33

The evolving role of civil society in CEE countries, 1948–2008  

188

14.1 Eastern Europe in figures   14.2 Non-profit organizations’ income source and area of operation in 1995   14.3 Non-profit organizations’ income source and area of operation in 2005  

274 278 279

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Notes on Contributors Liz ATKINS is the Director of Public Policy for the National Council for Voluntary Organizations (NCVO) in England. Her role is to create and sustain a favourable environment for the voluntary and community sector and strengthen its voice and reputation. She leads NCVO’s Research, Policy, Campaigns and Communications, Campaigns Effectiveness and Compact teams. She is an effective campaigns and communications strategist and advises NGOs on influencing government, both in the UK and internationally. She contributes regularly to conferences and seminars across the world on how best to devise and implement campaigns and empower citizens. She obtained her BA (Social Sciences) in History from Sussex University and her MSc (Econ) from the London School of Economics. Prior to joining NCVO she was the Director of Strategy and Communications at the National Housing Federation and Head of Policy and Public Affairs at the National Society for the Prevention of Cruelty to Children (NSPCC). Nilda BULLAIN is Executive Director of the European Center for Not-for-Profit Law (ECNL), which aims to promote an enabling legal environment for civil society in Europe. The ECNL was previously operated as the Budapest branch office of the International Center for Not-for-Profit Law (ICNL), an international organization headquartered in Washington, DC, where Ms Bullain has been serving as Senior Legal Advisor. She has been working in NGO legal reform in several Central European countries joining the EU. She has expertise in legal and fiscal areas concerning NGO and civil society development, especially the NGO–government cooperation framework, NGO taxation, philanthropy, public benefit status, volunteering and delivery of social services. Prior to joining the ICNL, Ms Bullain was Executive Director of the Civil Society Development Foundation Hungary (CSDF), a leading resource and support centre for NGOs in Hungary and Central and Eastern Europe. Before her involvement with the CSDF, Ms Bullain worked as a parliamentary aide in the Foreign Affairs Committee of the Hungarian Parliament and assisted the Alliance of Free Democrats. She has been involved in human rights organizations in Hungary since 1988 and was editor of the feminist journal Nőszemély. She graduated from the Faculty of Law at ELTE University, Budapest, and has been working as a trainer and consultant with non-profit organizations throughout Central and Eastern Europe since 1994. Paul DEKKER is Professor of Civil Society at Tilburg University in the Netherlands, and Head of the Participation and Government research unit of the Netherlands Institute for Social Research (SCP). He studied political science at the Catholic University of Nijmegen and the Free University of (West-)Berlin, and received his PhD at Utrecht University in 1989 with a comparative study about governmental planning in Europe. His present research focuses on individual social and political involvement and participation, voluntary associations and the non-profit sector, and public opinion and politics. He is secretary of the International Society for Third Sector Research, vice-chair of the Psychopolitics Research Committee of the International Political Science Association, and member of the editorial boards of Voluntas and the Journal of Civil Society. His (co-edited) book

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publications include: Social Capital and Participation in Everyday Life (London: Routledge, 2001); The Values of Volunteering (New York: Kluwer Academic, 2003); Veiligheid, Vertrouwen en Good Governance (The Hague: Elsevier, 2006); Politiek Cynisme (Driebergen: Synthesis, 2006); Civil Society (Amsterdam: Aksant, 2009); Meten wat Leeft (The Hague: SCP, 2009) and Civicness in the Governance and Delivery of Social Services (Baden-Baden: Nomos, 2010). Richard FRIES was Chief Commissioner of the Charity Commission for England and Wales (the ‘regulator’ of charities) from 1992 to 1999. Prior to this, he had been a career civil servant in the Home Office in London, where from 1987 to 1991 he was the Under-Secretary responsible for, amongst other things, government relations with the charitable and voluntary sector. On retiring from the Charity Commission he became a visiting fellow at the Centre for Civil Society at the London School of Economics (until 2006). He has written and lectured extensively on charity and not-for-profit law and regulation in Britain, Europe and the rest of the world. As well as other positions, he was from 1999 to 2005 the Chair of the Board of the Washington-based International Centre for Not-for-Profit Law (ICNL). HAN Junkui began post-doctoral research at the NGO Research Institute, School of Public Policy and Management, Tsinghua University in 2005, after graduating from Peking University with a PhD in Law and Anthropology. He became a lecturer at the Faculty of Sociology of Beijing Normal University in 2007. His main publications include: A Tree Without Annual Ring: Kinship System of the Lahu Shi on the Border between China and Burma (Kunming: Yunnan People’s Publishing House, 2009); A Study on NGO’s Participation in the Emergency Aid for Wenchuan Earthquake (Beijing: Peking University Press, 2009) and Reports on the Civil Society Action in Wenchuan Earthquake: China NGOs in Emergency Rescue (co-editor) (Beijing: Social Science Academic Press, 2009). Moreover, he has also published over 20 academic papers and close to 20 policy/ evaluation reports. Mr Han Junkui has provided consultancy services to the Asian Development Bank and many other international agencies and international NGOs. Currently Mr Han’s main research interests include: international NGOs; NGOs in the fields of poverty alleviation and the prevention and treatment of AIDS; government procurement of NGO services; and other development related subjects. JIA Xijin is Professor of the School of Public Policy and Management in Tsinghua University. Her research area is Civil Society and Governance. Focusing on pilot studies and comparative studies, she has developed programmes on civil society, citizen participation, NGO–government relationships, social and political transformation, etc. Jia was a Visiting Scholar at Harvard University during 2008–9; a short-term Visiting Scholar at the London School of Economics in the UK; and a Visiting Scholar at the Chinese University of Hong Kong in 2005 and 2004 separately. Jia received her PhD in Law at Peking University, majoring in Sociology. Her BA and MA degrees in Medicine were completed at the Beijing Medical University (BMU). She has two years of experience as an intern at the Mental Health Hospital of BMU, majoring in Social Psychiatry. Jia has published numerous books and articles. Her main publications include: Citizen Participation: Model and Cases (Beijing: Chinese Social Science Literature Press, 2008); The Third Reform (Beijing: Tsinghua University Press, 2005); Mind and Order (Guizhou: Guizhou People Press, 2004); The Role, Mechanism and Administration System of Trade Promotion Association in Transitional China (Beijing: Chinese Social Science Literature Press, 2003); Comparative

Notes on Contributors

xiii

Study on NGOs among China, Viet, Kazakhstan and Mongolia: Country Report of China (Japan: SASAKAWA Foundation, 2006); Global Civil Society: Scope of NPOs (translated from Lester Salamon’s, published in China in 2002 and reprinted in 2007) and Civil Society Index: China (published online at: www.civitus.org, 2006). Adri KEMPS is currently the Executive Director of the Centraal Bureau Fondsenwerving (CBF), the independent Dutch organization for oversight on charities involved in fundraising. He is also a board member and treasurer of the International Committee on Fundraising Organizations (ICFO), which is the international association for monitoring organizations on fundraising. He studied political science and holds an MSc at the Free University of Amsterdam. Since 1978 he has occupied different management functions at non-governmental organizations involved with development cooperation and human rights in Central America and Europe. These include SNV, the Netherlands Development Organization and Amnesty International Netherlands. He has provided consultancy services to the Pan American Health Organization, the Dutch government and international NGOs, as well as authoring articles on civil society, human rights, good governance, international cooperation and fundraising. Yuwen LI is Associate Professor of Chinese Law at the Erasmus School of Law, Erasmus University Rotterdam in the Netherlands. She holds a BA in Chinese Law from Peking University, an MA in International Law and International Relations from the Institute of Social Studies, and a PhD in International Law from Utrecht University, the Netherlands. Since 2002, she has acted as co-director of a number of legal cooperation projects with Chinese institutions, including a project on NGOs in China funded by the Netherlands Embassy in Beijing and conducted in partnership with the Institute of Law of the Chinese Academy of Social Sciences. Her recent books include: Freedom of Association in China and Europe: Comparative Perspectives in Law and Practice (editor) (Leiden: Martinus Nijhoff Publishers, 2005); Taking Employment Discrimination Seriously: Chinese and European Perspectives (editor with Jenny Goldschmidt) (Leiden: Martinus Nijhoff Publishers, 2009). LIU Peifeng obtained his BA (Law) from Northwest College of Political Science and Law in 1990, his Masters of Philosophy from Shaanxi Normal University in 1996, and his PhD in Law from the Graduate School of the Chinese Academy of Social Sciences in 2003. He worked as a post-doctoral researcher at the School of Public Policy and Management of Tsinghua University from 2003 to 2006. He has previously worked as a judge at a local court. He currently is Associate Professor at the Beijing Normal University. His main publications include: Supervision and Administration of NPOs in a Transitional Society (editor-in-chief) (Beijing: Social Sciences Academic Press, 2010); Freedom of Association (Beijing: Social Sciences Academic Press, 2007); Basic Legal Issues Relating to NPOs in China (co-author) (Beijing: China Fangzheng Publishing House, 2006) and General Introduction to Civil Society Organizations (co-author) (Beijing: Current Shishi House, 2004). He has published numerous articles on NGOs in China. Petr Jan PAJAS is currently Programme Manager of the Policy Association for an Open Society (PASOS), an international association of policy centres actively promoting democracy, the rule of law, good governance, respect and protection of human rights and economic and social development in the nine newest member states of the European Union, as well as countries of Southeastern Europe, the Caucasian Region and Central Asia. He was Vice-President for Administration at the Anglo-American University in Prague. He also works as a trainer in EU Affairs for Czech

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government officials, and lecturer at the Faculty of Humanities of Charles University in Prague. He is an external consultant to the International Center for Not-for-Profit Law (ICNL), which is based in Washington, DC. Originally a theoretical physicist and systems analyst, he has since November 1989 been involved in the management of several not-for-profit organizations, as well as in drafting several new legal acts dealing with organized civil society in the Czech Republic, and in several other countries of Europe. His main publications include: Guide to the Not-for-Profit Law (in Czech: Průvodce neziskovým právem) (Praha: ICN&ICNL, 1996); Defining Nonprofit Sector in the Czech Republic (with L. Deverová, P. Frič and H. Šilhánová) (Baltimore: Johns Hopkins University Institute for Policy Studies, 1998); ‘Recognition of Public Benefit in Legal Systems of Several Nations’, in The International Journal of Not-for-Profit Law 2(1) (1999); Organizational and Legal Forms of Nonprofit Organizations in Central Europe (with M. Freise) and Finance of Nonprofit Organizations (with M. Villain), in Annette Zimmmer and Eckhard Priller (eds), Future of Civil Society (Wiesbaden: VS Verlag für Sozialwissenschaften, 2004). Balazs SATOR is the Executive Director, Senior Trainer and Consultant of the Civil Society Development Foundation Hungary (CSDF Hungary). Besides general management duties, he is also involved in training development, overseeing quality assurance of training, and conducting regular training in English, Hungarian and Slovak. Along with his team he has developed a comprehensive Resource Mobilization Training Module that has proved successful in Hungary, as well as other countries of the region. He also serves on the Advisory Committee of the International Fundraising Congress of the Resource Alliance, a UK-based international NGO. He studied at Komensky University, Bratislava and at the ELTE University, Budapest in Hungarian Linguistics and Literature, and Aesthetics. He served as Vice President for the Field of Culture of the Student Network in Bratislava, a nationwide organization in Slovakia. Prior to joining CSDF Hungary, he worked as a Project Manager of a renowned international arts festival at the MEDIAWAVE Foundation (Hungary). SHEN Guoqin is Associate Professor at the Chinese People’s Public Security University. She graduated from the Graduate School of the Chinese Academy of Social Sciences with a PhD in Law in 2004. Her fields of research include human rights theory, constitutionalism and administration of justice, NPO legislation and mechanisms of NPO administration and supervision. Her main publications include: Modernisation of Traditional Administration of Justice in China (Beijing: University of Political Science and Law Press, 2007); An Inheritance Guide for the Elderly (coauthor, Beijing: Jindun Publishing House, 2003); ‘Human Rights Protection from the Perspective of State Power’, in Academic Journal of the Graduate School of Chinese Academy of Social Sciences 6 (2003); ‘Women’s Rights as Human Rights: Reflections on the Feminist Thoughts in Modern Chinese History’, in Human Rights 1 (2009). Hans THOOLEN obtained his LLM from Leiden University. In 1974 he set up the Dutch Lawyers Committee for Human Rights. From 1977 to 1982 he was the Executive Secretary of the International Commission of Jurists in Geneva. In 1982 he became the Director of the Institute of Human Rights (SIM) in Utrecht. From 1986 to 2001 he worked at the United Nations High Commissioner (UNHCR) in a variety of functions and duty stations (including Stockholm and Uganda), and since his retirement continues to work for various human rights organizations.

Notes on Contributors

xv

His main publications include: People Matter (Amsterdam: Meulenhof International, 1982); Human Rights Missions (Dordrecht: Martinus Nijhoff, 1986); and Indonesia and the Rule of Law (London: Pinter Publishers, 1987). XIE Haiding is Associate Professor at the Institute of Law of the Chinese Academy of Social Sciences and editor of the Chinese Journal of Law. He received his BA in Law from Anhui Normal University, his MA in Law from the Southwest University of Politics and Law in China, and his PhD from the Post-Graduate Institute of the Chinese Academy of Social Sciences. He edited the book Women and Law (Beijing: China Foreign Trade and Economy Press, 1999). His recent publications include: ‘Rethinking the Development of Rule of Law Theory in China’, in Chinese Journal of Law 6 (2000); ‘The Dilemma of Legitimacy Facing China’s Civil Society Organizations’, in Chinese Journal of Law 2 (2004); ‘Hot Issues on Recent Research of Chinese Social Organizations’, in Global Law Review (2002); ‘Review and Future Prospects of Judicial Reform in China’, in Global Law Review (2002); ‘Legal Protection on Freedom of Academic Research: Chinese Case Studies’, in Case and Research 6 (2004). His main research fields are freedom of association, academic freedom and legal development in China. ZHOU Shaoqing is Associate Professor in the Institute of Ethnology and Anthropology, Chinese Academy of Social Sciences (CASS). He was a visiting scholar at the Danish Institute for Human Rights and Edinburgh University. He received his PhD at the Law School of Renmin University in 2005. His main publications include: China’s Problems of the Right of Association: in a Rule of Law Framework (Beijing: Law Press China, 2008) and A Critical Review of Community Development and Civil Society Organizations in China (Copenhagen: Danish Institute for Human Rights, 2007). He has jointly published the following books: Foreign Legal History (Beijing: University of International Business and Economics Press, 2008); Blue Book of Chinese Talents (China: Social Sciences Academic Press, 2008); Report on China Law Development – Database and Indicators (Beijing: China Renmin University Press, 2007) and Rule-of-law State under the Globalization (Beijing: China Renmin University Press, 2006).

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Acknowledgements The development of civil society in China’s post-Mao period has to a certain extent benefited from international cooperation programmes. Since 2002 the Institute of Law of the Chinese Academy of Social Sciences (CASS) and the Netherlands Institute of Human Rights of Utrecht University have been supported by the Netherlands Embassy in Beijing to study and promote social organization development in the context of building a legal system aimed at facilitating citizens to exercise their right of freedom of association as enshrined in the Chinese Constitution. This book is a result of joint study on NGOs in China and Europe. I would like to express my genuine thanks to all the contributors and especially the European experts, whose professional enthusiasm towards NGOs and their candid attitude of sharing thoughts and understanding have been instrumental for me and my Chinese colleagues in making a scholarly contribution to the newly emerged Chinese NGO sector. The Chinese authors of chapters included in this volume are leading scholars in the field of NGO studies in China, and they are also the most active reform-minded intellectuals who have introduced Western NGO laws and practices to Chinese society. Their writings on the most dynamic, autonomous and self-regulating Chinese NGOs reflect their interest in, and comprehension of, the most challenging issues facing NGO development in China. My Chinese colleagues and I are grateful to the Netherlands Embassy in Beijing for their sponsorship of the project, and our wholehearted thanks go to Ambassador Rudolf Bekink, who has shown great interest in, and continuously encouraged, our work. Our particular thanks also go to Vera Vroemen, the first secretary at the Netherlands Embassy in charge of the rule of law programme. In this capacity she has been enthusiastically involved in initiating and implementing various projects on strengthening the rights-centric approach of legal development. I am equally grateful to Professor Jenny Goldschmidt, Director of the Netherlands Institute of Human Rights. Her advice and support have enabled me to enhance my Institute’s involvement in legal cooperation with China. My thanks also go to my colleagues Esther Heldenbergh, Hanneke van Denderen, and my student assistant Megan King, for their assistance in dealing with all relevant tasks of implementing the project. Furthermore, I am indebted to Professor Wu Yuzhang and Professor Jiang Xiaohong at the Institute of Law of the CASS, with whom I have cooperated intimately for nearly a decade in promoting academic study of and support for Chinese NGOs. Their dedication, wisdom and modesty have enabled many scholars and NGO managers to benefit from a variety of project activities. I also owe particular thanks to Bi Xiaoqing at the CASS, who has skilfully translated the Chinese chapters into English. In the production process, Alison Kirk at Ashgate has exhibited high professional efficiency and cooperation, for which I am extremely grateful. Last but certainly not least, my greatest thanks go to Nico Schrijver, Lineke and Kees, whose unique support, patience and humour have made my academic work a part of the joy of life. Yuwen Li, January 2011

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List of Abbreviations ACFTU All-China Federation of Trade Unions ACWF All-China Women’s Federation AI Amnesty International CAS Chinese Academy of Sciences CASS Chinese Academy of Social Sciences CC British Charity Commission CEE Central and Eastern Europe CPC Communist Party of China CSO civil society organization CSR corporate social responsibility ECHR European Convention on Human Rights ECJ European Court of Justice ECNL European Center for Not-for-Profit Law EU European Union FIDH International Federation of Human Rights Leagues HBV hepatitis B virus ICC International Criminal Court ICFO International Committee on Fundraising Organizations ICJ International Commission of Jurists ICNL International Center for Not-for-Profit Law INGO international non-governmental organization MOCA Ministry of Civil Affairs NCVO National Council for Voluntary Organizations NGO non-governmental organization PILO public interest legal organization PRC People’s Republic of China UN United Nations UNDO United Nations Development Programme USAID US Agency for International Development

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Chapter 1

Introduction: Challenges and Opportunities for NGOs in Different Parts of the World Yuwen Li

This volume results from a four-year project entitled ‘Sino-Dutch Research Cooperation on the Legal Aspects of Social Organizations in China’. The project was funded by the Royal Netherlands Embassy in Beijing and ran from 2007 to 2010. As part of the project activities, the Institute of Law of the Chinese Academy of Social Sciences (CASS) and the Netherlands Institute of Human Rights of Utrecht University jointly organized three international conferences in Beijing, which provided a unique platform for Chinese and European NGO experts to exchange experiences and enrich each other’s knowledge on NGOs in their respective countries. The chapters presented in this volume are mostly based on presentations prepared for these conferences. Our intention is to provide a comprehensive analysis of the current situation and challenges of NGOs in China and in a number of European countries representing a certain spectrum of legal and regulatory operating environments. Groupings of representative European countries were based upon the following lines: 1. countries with a long-standing history and tradition of civil society and rule of law (i.e. Britain and the Netherlands); 2. countries with re-established civil societies following periods of authoritarian repression (i.e. Central and Eastern Europe (CEE)). The goal of this comparative study is to promote mutual understanding, learn and draw from each other’s experiences for strengthening NGO development in different countries. It should be noted first that the term ‘NGO’ in a strict sense is understood differently in various countries. In China it generally refers to a variety of social organizations (shehui tuanti), foundations (jijinhui), private non-profit organizations (minban zuzhi or minfei) and grassroots NGOs (caogen zuzhi). In Central and Eastern Europe, as Nilda Bullain sets out in Chapter 9, the term is generally used to cover all formally organized forms of citizen action and participation in society that are institutionalized, non-profit making, self-governing and voluntary. In Western Europe, as indicated by Paul Dekker in Chapter 10, it more commonly refers to international and national organizations that are located in Western countries but operate internationally or in foreign countries, mainly poor countries, and in the fields of human rights, humanitarian aid and environmental protection. Despite the diverse utilization of the term, both the title of this book, as well as my introductory chapter, choose to use the term NGO, instead of other terms with a similar meaning, such as not-for-profit organizations (NPOs), civil society organizations (CSOs) or the third sector. This is simply because the term NGO reflects the most common and fundamental nature of such organizations: they are outside the governmental apparatus. Despite the reality that some NGOs do exercise a watchdog function in supervising government policy and action in

NGOs in China and Europe



various fields, it should be noted that the term ‘non-governmental’ does not necessarily imply that the organization is ‘anti-governmental’. Dilemmas Facing Chinese NGOs NGOs, as a new phenomenon in post-Mao China, have developed significantly in the past two decades in terms of number, scope, capacity and impact. Yet, most Chinese scholars and NGO practitioners consider the potential of this sector to have largely not been realized, due to severe policy and legislative restrictions. The government has exhibited undeniably contradictory ideas about NGOs. On the one hand, there is some degree of recognition that NGOs provide social services that governmental bodies cannot do or cannot do well, such as caring for elderly and disabled people, expanding gender consciousness, etc. On the other hand, the fear and suspicion that some NGOs may challenge governmental policy and undermine political stability, has resulted in the government strictly controlling the establishment and operation of NGOs. Thus, in practice, the government has shown some tolerance towards NGOs, and some local governments even encourage certain types of NGOs as they perceive that they are conducive to the development of the local economy. However, the government bans those that are viewed by some officials as ‘politically risky’. In reality, such a controversial mindset mirrors the general quandary the Chinese Communist Party and the government is encountering. The Party must simultaneously lead the economic and political reforms necessary to legitimize its own leadership position; and, at the same time, control those reforms to ensure that they do not go so far as to undermine and even ultimately change the Party’s absolute and unchallengeable leadership in the political, economic and social spheres. This dual posture of leading and limiting has resulted in an erratic and uneven economic, political and social transition in China. While in some aspects China is moving forward, backwards steps are being taken. This creates uncertainty, and frequently what the government permits lags behind modern social demands. The government’s suspicion manifests itself in restrictive legislation on NGOs, which is viewed by most Chinese commentators as the most serious and fundamental barrier to their development. Despite provision for the right to freedom of association in the Constitution, this right cannot be meaningfully exercised due to specific regulations that set up arduous requirements for registration. According to the 1989 Regulations on Registration and Administration of Social Organizations and its 1998 amendment, any applicant must first find a government institution to be its sponsor as a professional leading unit. Only then, with the approval of the sponsor, will the civil affairs department decide whether to register an applicant as a social organization. This is the so-called ‘dual administration’ system. A social organization must have a minimum of 50 individual members or more than 30 institutional members, and minimum assets of RMB 100,000 (approximately EUR 10,000) for national-level organizations and RMB 30,000 for local social organizations. Various supervision and management responsibilities are placed on sponsors, including: conducting a preliminary annual review, facilitating investigations from other government departments, and dealing with the illegal activities of social organizations. Unsurprisingly, most governmental institutions are not willing to act as sponsors simply because they either cannot, or do not want to, take responsibility for a social organization’s acts, which when assessed positively do not add to the political reputation of a sponsor, and when assessed negatively will result in the sponsor

  See generally all the chapters by Chinese authors in this volume.

Introduction



being condemned. Consequently, many organizations are unable to find sponsors and either do not register, or register with the industrial and commercial bureaus as companies. The reality is that the number of unregistered NGOs is far greater than registered ones. According to the most recent statistics from 2009, there were about 420,000 social organizations registered at various civil affairs departments, while the number of unregistered social organizations was estimated up to eight million. Under the 1998 Regulations on Registration and Administration of Social Organizations, if an organization carries out activities in the name of a social organization without being registered, it can be closed by a civil affairs department. Article 2 of the Provisional Measures for Suppression of Illegal Civic Organizations issued by the Ministry of Civil Affairs in 2000 clearly defines an organization that conducts activities as a social organization without being registered as an ‘illegal social organization’. However, to treat a massive number of unregistered social organizations as existing illegally is obviously unsustainable. Thus, an evident controversy is that the 1998 Regulations cannot apply to most social organizations, which certainly raises criticisms of the suitability and legitimacy of the Regulations. In 2005, official reports disclosed that a revision of the 1998 Regulations was soon to be issued, and indeed some leading NGO research scholars have been involved in discussions regarding reforming the law. Whilst the draft amended Regulations did not make substantive changes on the dual administration system of social organizations, it did, however, contain some limited improvements. Two new chapters were added, one concerned representative offices of foreign NGOs and the other addressed encouraging government management, which included: integration of social organization development in the government’s social plan; inclusion of the budgets of social organizations within the government’s budget; government payments for services provided by social organizations; and preferential treatment in labour, personnel, tax and government procurement. Other improvements included abolishing the asset requirement of RMB 30,000 for setting up local social organizations, the exact amount to be decided by local governments. For social organizations at the township and community levels, a simple ‘record-keeping’ system would be introduced in which an applicant is only required to submit certain materials to the local civil affairs department. The latter would not go through examination and approval procedures, but simply keep the application material on record. Another improvement was to allow a certain degree of competition by allowing the approval of similar social organizations in the same region if considered necessary.   See Chapter 4 by Liu Peifeng in this volume.   Yu Keping, ‘Dui zhongguo gongmin shehui ruogan wenti de guanjian’ (‘Opinions on Several Issues Concerning Chinese NGOs’), in Gao Bingzhong and Yuan Ruijun, eds, Zhongguo gongmin shehui fazhang lanpishu (Blue Book of Civil Society Development in China) (Beijing: Beijing daxue chuban she, 2008), p. 19.  Article 35 of the 1998 Regulations provides that: ‘If a social organization engages in preliminary activities without approval, or if it carries out activities as if it were a social organization without being registered, or if a social organization whose registration has been cancelled continues to carry out activities as if it were a social organization, then the registration and management agency will close the organization down and confiscate its illegal assets; in criminal cases, criminal penalties will be applied in accordance with the law; in non criminal cases, a public security sanction may be imposed in accordance with the law.’  Article 2 provides that: ‘Where any of the following situations is the case a civic organization is considered to be illegal: 1. where it conducts preliminary activities without being approved; 2. where it conducts activities as if it were a social organization or a popular non-enterprise work unit without being registered; 3. where it continues such activities after its registration has been revoked.’   See ‘Woguo niannei chutai xinshetuan tiaoli, minjianzuzhi jianghui shidu guli’ (‘Revised Regulations on Social Organizations will be Issued this Year; Social Organization will be Encouraged within a Certain Degree’), see: www.world-china.org/newsdetail.asp?newsid=443 (last visited March 2010).



NGOs in China and Europe

However, the amendments to the 1998 Regulations are currently in deadlock. One of the major causes for such a state of affairs is alleged to be the impact of the ‘Colour Revolutions’ on the Chinese government’s view of NGOs. The Colour Revolutions took place in the former Soviet Republics. Of the highest significance were the ‘Orange Revolution’ in Ukraine in 2004 and the ‘Tulip Revolution’ in Kyrgyzstan in 2005. Both resulted in regime transformations. Some Chinese intellectuals have criticized these revolutions as having been planned by the US government and international NGOs to serve Western interests. International NGOs were analogized as ‘Trojan horses’, planted by Western intelligence agencies. Whilst recognizing that international NGOs have played a certain role in stimulating regime change in the former Soviet Bloc, one should not underestimate the various domestic factors decisive in generating significant changes. Jia Xijin, in Chapter 3 of this book, rightly observed that the Colour Revolutions could not take place in countries with institutionalized democracy, or in non-democratic countries – ‘the prerequisite for the Colour Revolutions is to have democracy in form but without substance’. In her view, what China should learn from such ‘street politics’ is to ‘precipitate the construction of democratic institutions now when the effectiveness of the state is strong, form an orderly mechanism for its citizens to participate in politics, and avoid an excessive gap between the substance and the form of the political system in the long term’. She forewarns: ‘Having a negative attitude to the political participation of citizens, or even suppressing the development of social forces, is not an effective approach to avert social conflicts and might bring higher social risks.’ As such, Chinese decision-makers are at a crossroads. One choice of paths is to amend the 1998 Regulations to meet current social needs and foster the development of NGOs by relaxing the strict registration conditions and procedures. This will also serve to strengthen the legitimacy of the Regulations in regulating social organizations. The other path is to leave the 1998 Regulations as they are, so that they will remain mostly criticized and ignored, thus postponing the resolution of the legal legitimacy of a vast number of social organizations, and generating tension between these organizations and the government. In light of the recent escalation in political conservatism, one may not be optimistic about the imminent prospect of an improved law. However, this does not preclude small experiments being tested by the government to improve NGO practice within a limited scope and, if successful, they may be extended nationwide in the future. For instance, in July 2009, the Ministry of Civil Affairs (MOCA) and the municipal government of Shenzhen signed an agreement entitled: Cooperation Agreement on Advancing Integrated Reforms in Civil Affairs Undertakings. Under this agreement, the Shenzhen government is allowed to take the lead in experimenting with some of MOCA’s major reform measures. Those reform measures relevant to the social organizations include: strengthening the building of grassroots democracy and vigorously developing community-based social organizations; conducting experiments on a system wherein social organizations apply and register directly with MOCA; allowing the city of Shenzhen to launch a pilot project regarding the registration and management of foundations, chambers of commerce and trans-provincial trade associations; transferring administrative jurisdiction over foreign foundations with representative offices in Shenzhen to the Shenzhen municipal government; promoting social organizations to undertake public services, especially government procurement services; establishing a legal incorporation management system for charitable organizations, and;

 Pan Rulong and Dai Zhengqin, ‘“yanse gemin” yu guoji feizhengfu zuzhi’ (‘Colour Revolutions and International NGOs’), Dianzi keji daxue xuebao shekeban, 7, 4 (2005), p. 78. Cited from Jeanne L. Wilson, ‘Colour Revolutions: The View From Moscow and Beijing’, www.ucl.ac.uk/ceelbas/events/Jeanne_Wilson_ paper.pdf (last visited March 2010).

Introduction



exploring the creation of a system that can effectively link the collection, use and supervision of charitable funds. Whilst legal restrictions are certainly hindering the right of freedom of association and the mobilization of public participation in contributing to China’s economic, social and political modernization, some kinds of citizen-organized public interest initiatives have resulted in the emergence and development of ‘true’ NGOs in China. This has occurred mainly since the 1990s. The chapters written by the Chinese authors concentrate substantially on these types of NGOs, such as independent think tanks, public interest legal organizations, and grassroots labour organizations for migrant workers. The simple fact that they exist demonstrates the inevitable trend of social progress and diversity of NGOs in China today. Yet, due to their small scale and the survival challenges they face, the government should improve the relevant laws and policies in order to create an enabling environment. If the government allowed such facilitative conditions to exist, NGOs could contribute to the country’s transition, and the government’s objective of ‘building a harmonious society’, in their own largely complementary way. The Views of Chinese Scholars The development of Chinese homegrown NGOs is certainly affected by the involvement of international NGOs (INGOs) operating in China. This volume fortunately includes a chapter by Han Junkui (Chapter 2), providing an all-around analysis on INGOs in China. Because INGOs are a sensitive issue inside China, there is very limited public information available. This makes Han’s chapter extremely informative as it is based mostly on his own empirical research, including questionnaires and on-site investigation. Han discusses two types of INGOs in China: public interest NGOs, and chambers of commerce. Both types are faced with the same predicament. They are growing in number and size, however, they still face the problems associated with a lack of legal status. While government and society are using and benefiting from their funds, technology and inspiration, the government is suspicious of and restricts their activities. Han believes that an effective approach to solving the problems could be found by understanding the stages of development the INGOs have gone through, as well as their activities, impacts, status of registration and the local government’s measures used in supervising INGOs. With regard to public interest NGOs, his findings include: 1. they are focused in certain areas, such as healthcare, education, poverty alleviation and community development, capacity building for domestic NGOs, environmental and animal protection, etc.; 2. INGOs are most active in the cities of Beijing, Kunming, Shanghai and Chengdu; 3. the impact of such NGOs is mostly positive, but some INGO engagement in illegal intelligence activities has generated negative effects; and   For more detailed information see: ‘Government Advances Civil Society-Related Reforms in Shenzhen’, www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=135081. The full text of the Cooperation Agreement in Chinese is available at: www.sztx.org.cn/ass/detail.asp?id=4164 (last visited March 2010).   The construction of harmonious society was first put forward by the central government under the Hu-Wen Administration at the National People’s Congress in 2005. It aims to shift the country’s focus from economic growth to overall societal balance and harmony. For further information see: http://en.wikipedia. org/wiki/Harmonious_society (last visited June 2010).



NGOs in China and Europe

4. while local governments have taken measures to allow foreign NGOs to operate effectively in aiding local economic and welfare interests, the central government remains cautious of their perceived impact on social stability. Based on Han’s findings, approximately 43.8 per cent of INGOs conduct activities all over China and most of them are not registered. Since the beginning of the 1980s, China has been incredibly successful in attracting foreign investment. The rapid growth of foreign business has produced a network of chambers of commerce serving the various interests of this particular group and beyond. According to Han’s observation, three different models of foreign chambers of commerce can be found in China: 1. the UK and US model established under the Anglo-American legal system; 2. the continental European model; and 3. the Japanese and South Korean models, which are a mix of the first two models. The author, in particular, discusses the American Chamber of Commerce in Shanghai, the German Chamber of Commerce, the Korean Chamber of Commerce and the Japanese Commercial and Industrial Club in Shanghai. Of these, only the last two are legally registered. The others are, as yet, unable to obtain legal status, which poses great challenges to the legitimacy of their business activities. Registration is currently the biggest barrier for foreign chambers of commerce. In Han’s view, INGOs have made a special contribution in China and their impact on the growth and professionalization of domestic NGOs is also impressive. However, there is a tension between INGOs and the political stability of a country in transition. One could not exclude the reality that some INGOs come to China with an agenda that is not welcomed by the government, such as promoting religion or collecting intelligence, thus making the presence of INGOs a sensitive and politicized issue in China. In the search for solutions, Han argues that the legitimacy problems faced by INGOs in China weaken their positive impact and magnify their perceived negative aspects. In order to improve the situation, Han suggests encouraging INGOs with a high level of public trust when engaged in public interest activities in China, and drafting laws and policies and establishing agencies to serve and oversee INGOs effectively. Recognizing the delicacy of such a legal framework, the author points out that the ‘lack of confidence leads to an absence of government regulation, whereas overconfidence leads to over-regulation by the government’. A highly sophisticated form of political wisdom is required to strike this balance. Jia Xijin is one of the very few Chinese scholars who has studied think tanks from a comparative perspective. Her analysis of think tanks in Chapter 3 is based on four criteria, namely: organization, independence, non-profit status, and specialization in public policy studies. In her view, modern think tanks are defined as independent organizations that are responsible for their viewpoints, specialize in studying public policies or broader political, economic and social issues, and aim to make political decision-making more systematic and just. Jia classifies three types of think tanks in China in the reform period beginning in the 1980s: research institutes founded and sponsored by the government for policy purposes; research institutes attached to a university but operating independently; and research institutes founded by civil society, which are generally nongovernmental, non-enterprise institutes, though some have to register as a company in order to avoid the legal restrictions which prevent them from being founded. Jia’s chapter focuses on the distinctive significance of non-governmental think tanks, as they reflect differing interests and a distinct voice from that of the politicians or policy-makers.

Introduction



A few well-known non-governmental think tanks are discussed by Jia. Although these thinks tanks are all relatively new and not yet well known abroad, domestically they play a unique role and are all led by eminent Chinese intellectuals and educators. Most of these think tanks work in the field of China’s transition to a market economy. A few also cover issues relating to the rule of law, democracy and social justice. One or two think tanks specialize in health and HIV issues, with the aim of generating political and public awareness. Despite operating in different areas, the author contends that they all have some common features in their development. First, they are all suffering from a shortage of talented staff and minimal exchange of talented employees, meaning a coordinated group of think tanks is also lacking. Second, whilst they have increased in number, think tanks in China remain marginalized. Third, there is a lack of specialized think tank groups. Fourth, they do not have an institutional position in political decision-making. Fifth, the legal status of think tanks in China remains unclear. Jia examines critically the multiple issues encroaching on the advance of non-governmental think tanks in China. The political institutional environment is the most significant factor, as the success of think tanks is contingent not only on freedom of ideas, but also on an open market of ideas. Because of legal registration requirements, which significantly restrict the establishment and growth of independent non-governmental think tanks, there is no free market of ideas in presentday China. On the other hand, the central government has expressed time and again its willingness to hear different voices from society. Thus, Jia suggests that the priority now is to move towards the formation of a free market of ideas, or put more concretely, to ‘de-ideologize’ public policies. Public policy should be viewed as a type of science rather than as ideology. In addition, the political decision-making system needs to be more democratic if independent think tanks are going to flourish. Moreover, as with any NGO, an enabling legal framework and diversified funding are imperative for the operation of think tanks. Jia further points out that the best way forward is to view think tanks as independent partners of the government in public decision-making, with an equal and adequate expression of diverse and specialist views. However, she accepts that there is still a long journey ahead before this will occur in China. Liu Peifeng’s chapter (Chapter 4) starts with an overview of charities in the early years of the People’s Republic of China. After the Chinese Communist Party took power in 1949 it took a tough attitude towards charities and charitable undertakings, which were considered to be symbolic of instruments employed by the ruling class to deceive the people and contaminate their minds. Some charities were banned, others dissolved, and some were reorganized into state-owned institutions. The latter included some church hospitals, schools, orphanages, and the like. Such an antagonistic approach was gradually modified by the end of the 1970s as a result of reform and an opening-up policy. In the 1980s, charities and charitable undertakings gradually expanded, and were predominantly government led and funded. Some international NGOs were also invited to be involved in poverty alleviation, women’s rights, rural education and education for the disabled. From the 1990s, private foundations and public participation in charitable activities increased. The fields that charities operated in also extended to include rights protection, environmental protection and providing services to the marginalized. The government also issued laws and regulations that contained tax deductions and incentives for donations made in public interest. In 2005, the first national conference on philanthropy was organized in Beijing, at which the ‘Guiding Outline of the Development of Charitable Undertakings’ (2006–10) was adopted. Due to a lack of reliable statistics, we are unable to know how many charitable organizations currently exist in China. Liu states that the number of registered NPOs was 420,000 by mid-2009, with approximately 35 per cent being business associations or academic organizations, and the rest being charitable organizations. In addition, the number of unregistered NGOs is estimated to



NGOs in China and Europe

be five to ten times that of the registered ones, with most of them operating as charitable public interest organizations. The lack of legal legitimacy for the latter group definitely weakens their status and reduces the impact of their charitable activities. Registered charitable organizations can demand that the government improve tax regulations to guarantee preferential tax policies. Those that have benefited from preferential tax policies hope the government will increase procurement of their services. In addition, imbalance in the use of charitable funds is a serious problem. The majority of funds are put towards education, poverty alleviation and disaster relief, and over 90 per cent of charitable funds go to government or quasi-governmental organizations. As a result, Liu claims that a privileged class of charitable organizations has emerged, that relies on public power and a monopoly, rather than their organizational strengths. Judging from the most well known foundations and charitable environmental NGOs, Liu expresses concerns on the capacity building of charities. Most are headed by charismatic leaders, which is inevitable in the initial stages of establishing and developing an organization. However, as the size of the organizations grows and the scope of their activities expands, a professional management structure needs to be set up to secure long-term development. This is a challenge for most charities, whose first-generation leaders are heading towards retirement. Another critical observation from Liu concerns the governmental attitude towards charitable organizations after the devastating Wenchuan earthquake of 2008. This dreadful natural disaster generated an unprecedented amount of charitable donations. The active roles played by charitable organizations and volunteer organizations, immediately set up after the earthquake, meant that they enthusiastically participated in rescue and relief work and this led some scholars to expect that the contribution of NGOs would be better recognized, leading to a new era in NGO development.10 However, this did not happen, and the government instead turned its back on the NGOs immediately after the rescue work came to an end. Liu assessed that: Many volunteers and NGOs were asked to leave the disaster affected areas under the pretext of epidemic prevention. The mass media were told not to publicize NGOs’ activities in earthquake stricken areas but instead to focus on role of local Party organizations in the disaster relief work. NGOs could not carry out activities in disaster stricken areas in their own name, but could do so only in the name of their individual volunteers. The government also tried to bring private donations into government channels through officially organized fund-raising activities.

It is no exaggeration to say that the emergence of NGOs in China began with women’s NGOs. Shen Guoqin’s chapter (Chapter 5) provides a comprehensive overview of the development of women’s NGOs in terms of their types, functions, successful experiences and problems. Essentially there are two types of women’s NGOs in China. The first is the All-China Women’s Federation (ACWF) and its local branches, which was originally established by the government in the 1950s to commit to the advancement of women. The second are those that emerged after the 1980s, including women’s NGOs that are either research focused, service focused, advocacy focused or ‘mutually beneficial’. Different opinions have been expressed as to whether the ACWF can be viewed as an NGO. The ACWF’s origins, its continuing close affiliation with the government, and the fact that part of its functions involve implementing various government policies could be used to support the opinion 10 Wang Ming, Tao Chuanjing and Han Junkui (eds), Wenchuan dizhen gongmin xingdong baogao (Reports on the Civil Society Action in Wenchuan Earthquake) (Beijing: Shehui kexue wenxian chubanshe, 2009).

Introduction



that it is a governmental organization, or at the very least, a semi-governmental organization. On the other hand, some argue that the ACWF has undergone substantial changes in its roles and activities since the middle of the 1990s to the extent that continuing to exclude it from consideration as a women’s NGO is not beneficial to other women’s NGOs in China. Shen states that one of the most successful experiences of Chinese women’s NGOs in the past three decades has been that the ACWF, its local branches, and the newly emerged ‘true’ women’s NGOs, have developed a cooperative relationship in supporting and joining each other’s activities, and strengthening the influence of women’s NGOs as a whole. Any study on the development of women’s NGOs in the reform period of China, by either a Chinese or international scholar, cannot avoid mentioning the significant impact of the 1995 World Conference on Women and NGO Forum in Beijing. This event is widely credited as not only awakening gender-consciousness in China, but also for the birth of many women’s NGOs. Shen points out that Chinese women’s NGOs have, in the post-Conference period, fully benefited from international NGOs in terms of finance, ideas and knowledge (especially on gender-consciousness), field of activities, capacity building, and the like. Most newly emerged and influential women’s NGOs have received full or partial foreign funding, either for projects or for the basic operations of the organization. Foreign support could be viewed as an advantage for women’s NGOs. However, this excessive dependence on financial support from foreign sources also weakens their ability to survive autonomously, which is not conducive to their sustainable development. As foreign financial support is provisional and conditional (usually linked to specific projects and purposes), it can be expected that Chinese women’s NGOs will pay more attention to domestic sources. But, due to the strict legal restrictions on qualifying for tax reductions and incentives, most newly emerged women’s NGOs are unable to generate domestic funding at present. Shen concludes that, in comparison to other types of NGOs, women’s NGOs in China have been privileged in that they receive more friendly recognition from the government. This is mainly because the goal of gender equality pursued by women’s NGOs coincides with government policies on women’s liberation and social development. From 1997 to 1999, when the government launched a wide-scale campaign to rectify NGOs in China, women’s NGOs were barely affected. On the contrary, due to the World Conference on Women in Beijing, the years following 1995 have been described as ‘a golden era in the development of women’s NGOs in China’. This illustrates the selective approach exercised by the government in dealing with different types of NGOs. Nevertheless, Shen is of the view that government tolerance of women’s NGOs is limited to permitting their actions without granting them independent NGO status. Many women’s NGOs face the common problem of not being able to register with the authorities, because they can not find a sponsor to be responsible for their qualification to be registered by the civil affairs department of the government. Some have chosen to register as companies with the industrial and commercial bureau. However, they cannot enjoy the state’s preferential tax policies as such, and are confronted with various barriers in carrying out activities. There are also examples of those who were lucky in initially finding a sponsor, but were rejected by the sponsor later on, which compelled the organization to seek a new sponsor. This has certainly created unnecessary obstacles for these organizations to act as legitimate organizations with efficiency and effectiveness. Thus, granting legitimate status to women’s NGOs is integral to their future development. Another major problem identified by Shen is the imbalance of women’s NGOs in terms of whom they represent. Surveys have showed that the number of organizations of advantaged women’s groups, such as the Association of Women Entrepreneurs or the Association of Women Judges, is greater than those representing disadvantaged women’s groups. Moreover, the organizations that serve the interests of disadvantaged women are usually led by urban elites and, as Shen explains,

10

NGOs in China and Europe

they treat those disadvantaged women as objects to be liberated rather than subjects with their own vitality. Consequently, Shen suggests that advocacy and supportive types of women’s NGOs should place a priority on empowering disadvantaged women. In Chapter 6, Xie Haiding focuses on public interest legal organizations (PILOs), a recently developed type of non-profit organization in China. The author defines PILOs as those organizations that are legally relevant, non-commercial, public interest oriented, non-governmental and with relatively fixed or stable organizational mechanisms. Whilst PILOs are still relatively few in number, their emergence and scope of activities are of great significance in the ongoing social transition that China is experiencing. Apart from meeting the needs of diversified social interests by resorting to concrete legal actions, the author stresses the particular role of PILOs in performing the function of remedying the coalition of the market and the government ‘through the legitimate means of policy and law’. According to Xie, PILOs can be classified into various types based on different criteria. In terms of organizational form, there are substantive type organizations and Internet-based organizations. Most PILOs are substantive organizations with a name, staff, office and organizational structure, while the latter have only emerged in recent years and carry out activities mainly through the Internet. This Internet-PILO trend has led to the establishment of associations of individual PILOs, such as the Anti-Domestic Violence Network of the China Law Society. The Internet helps PILOs reduce costs and strengthen solidarity between organizations, which in turn allows them to better fulfil their social functions in upholding the public interest. With regards to sponsorship, PILOs can be divided into: those established by institutions of higher education and research institutions; those initiated by private law firms; and those initiated by other organizations or individuals. The first category is active on campuses, and organizes legal clinical education courses that promote the development of PILOs initiated by universities through a resource-sharing platform. Additionally, they provide students with practical legal training. An increasing number of private law firms are setting up legal aid centres that specialize in handling public interest cases in parallel to their business practice. PILOs that are established by individuals, companies or NPOs often work in specific areas, such as HBV or HIV/AIDS, migrant workers, women, children, etc. PILOs carry out a broad range of activities: legal consultation; dissemination of legal knowledge and legal training; legal aid; public interest litigation; public interest lobbying; and participation in legislation. The author specifically discusses three activities at length: public interest litigation; lobbying; and participation in law making, which are relatively sensitive and restricted in China. Xie contends that the most challenging issue for PILOs is gaining legitimacy as an organization and for their activities. Due to the political sensitivity of PILOs, some of them have been unable to find a government sponsor in order to be registered, and thus have been registered as companies. Even so, they risk being shut down without proper explanation.11 In connection with such phenomena Xie points out that: ‘Even if the law does not encourage commercial organizations to engage in non-profit activities, it certainly should not prohibit them from doing so, especially in a time when everybody is talking about corporate social responsibility.’ The lack of legal legitimacy is rooted in the lack of political legitimacy, and the uncertain legal status results in PILOs being treated subject to the arbitrary application of ‘political correctness’. Xie points out that political correctness: 11  The example of Gong Meng typifies such risk. Gong Meng is a NGO specialized in legal advocacy, but had to register as a company at the local industrial and commercial bureau. It was banned by the local government in 2008 without a clear legally based reason.

Introduction

11

can be applied differently by different public power organizations, in different time periods, or under different circumstances with regard to the same public interest activity in determining its political nature, restricting its scope and punishing the organizations that engage in such activity. Taking the protection of the rights of migrant peasant workers as an example, such activities can be interpreted as “politically correct” and thus legitimate activities of safeguarding the lawful rights and interests of migrant peasant workers. But they can also be interpreted as illegal activities that are disrupting social order and undermining social harmony. Especially in cases involving group or mass incidents or cases that have great social impact, in which even public interest litigation activities that are considered quite legitimate in normal circumstance can become “politically incorrect”.

This interpretation reflects the true situation. Nevertheless, Xie is optimistic about the prospect for PILOs, in so far as their capacity to meet the social demands for public interest services, and hopefully the relevant laws, including the regulations concerning NGOs registration, the tax law, the civil procedure law and the administrative procedure law, will be gradually improved to allow PILOs to realize their full positive potential. Zhou Shaoqing’s chapter (Chapter 7) first provides a historical assessment of trade unions in China. He argues that the main reason that trade unions in China are so different in comparison to their European counterparts is historical, as they emerged and developed in a semi-feudal and semicolonial society, and fought not only for their own economic interests, but also, more importantly, for political objectives against foreign invasion and the oppression of the government. During the civil war they were forced to choose between political forces. As such, the improvement of workers’ conditions was not their main objective. Rather, the liberation of the people and the country were considered to be a precondition of realizing the workers’ own interests. Since the founding of the People’s Republic of China in 1949, a unified trade union system has been applied as part of the political system, rather than independently and solely for the interests of workers. Since the 1980s, economic liberalization has produced a new tension between workers and capital, resulting in the birth of new labour organizations, such as peasant workers’ ‘self-help’ organizations and peasant workers’ ‘socializing’ organizations. At the same time, in-system (official) trade unions have also gone through some changes. Zhou examines the development of these organizations in three periods. The first period was described as ‘controlled and restricted movement’ (1980–99), during which relatively few influential workers’ self-help organizations emerged despite the deteriorating situation of peasant workers. This was mainly due to insufficient financial support and the political and moral resources necessary for the establishment of self-help organizations. This period was also characterized by the reform and construction of enterprise trade unions being placed off the political agenda. The second period was described as ‘fair movement’ (2000–4), characterized by a reduction in the restrictions outlined in the relevant laws and policies, which led to: the unprecedented development of peasant workers’ self-help organizations; the establishment of many important socializing organizations; and peasant workers being encouraged to join trade unions. The third period has been described as ‘safeguarded and organized’ (2005– present), wherein the government strengthened the work of protecting the rights of peasant workers and the relevant departments adopted regulations to speed up the establishment of in-system trade unions. The government’s active promotion of peasant workers joining the in-system trade unions changed the adverse situation whereby peasant workers were unable to access organizational resources. However, it also weakened the necessity and legitimacy of labour organizations outside the system. The competition between the in-system trade unions and the development of labour organizations outside the system is obvious. As in-system trade unions are admitting more peasant

NGOs in China and Europe

12

workers, there is less of a necessity, and arguably less legitimacy, for the establishment of labour organizations outside the system. Zhou concludes that each type of labour organization has it strengths and weaknesses. First, whilst peasant workers’ self-help organizations have made important contributions in helping peasant workers, a lack of resources has placed them in an unstable and unpredictable position, open to oppression and attack by various forces – effectively making their role symbolic. Second, socializing organizations have made the issue of peasant workers a public topic. However, they have a tendency to see themselves as the ‘saviours’ of peasant workers and have very limited resources. Both the first and the second type of organizations share the major problems of Chinese NGOs, namely a lack of political and legal legitimacy. Moreover, due to the specific objectives they work for, their social legitimacy can even be challenged. Most of them are also heavily dependent on international and foreign financial support, which leaves their survival in constant peril. Third, in-system trade unions have grown in number and there are now many different types and forms of trade unions, greatly facilitating membership. They have also been innovative in their role to respond to the needs of peasant workers. The active government intervention has sharpened a so-called ‘Five-in-One’ operational mode of trade unions, namely ‘led by the Party committees, supported by the government, cooperated with by society, operated by trade unions and participated in by employees’. What is the future of labour organizations in China? Zhou’s supposition is that: Judging from the historical background of traditional trade unions and the basic structure and compatibility of the current political system, it seems unlikely that western style ‘free trade unions’ will emerge in China. The various kinds of labour organizations currently existing in Chinese society, each based on a certain kind of legitimacy, will, under suitable conditions, eventually transform themselves into a new kind of labour organization that has universal significance and, at the same time, is adapted to the market economy and globalisation. However, before this can happen, the development of a tolerant and pragmatic policy on labour organization will be very important.

Western European Experiences Authors from the Netherlands and the UK have addressed the main issues challenging civil society organization in the Western world, such as relationship with government, accountability, monitoring of fundraising, and advocacy in human rights. In Chapter 8, Liz Atkins deals with the relationship between the government and the voluntary sector in the UK. It is no exaggeration to articulate that this relationship is problematic in all countries, and the relevant issues can never be completely resolved. Constructing an effective and efficient relationship depends on two sides. The Labour Party came to power in 1997 and has since created a closer and more interdependent relationship with the voluntary organization sector, due largely to the traditionally healthier relationship it enjoys with the voluntary sector. This has resulted in a positive position for voluntary organizations, with a range of new opportunities to influence public policy and deliver public services. The voluntary sector, mainly through the National Council for Voluntary Organizations (NCVO), has also lobbied actively by submitting a number of recommendations to the government about how to strengthen the sector’s role and its contributions to society. This led to the creation of the Compact, a non-legally binding formal agreement that sets out the relationship between the government and the voluntary sector. However, in Atkins’ view, whilst

Introduction

13

recognition of the independence of the sector is important, it is a greater challenge to turn such independent thinking into action having practical results. Atkins stresses that the campaigning activities of the voluntary sector should be more substantive in order to identify problems and to provide solutions that promote change. In connection to this, she outlines five strategies for successful campaigns. The first is effective targeting, whereby concrete solutions must be identified and achievable within the political context. Second, a strategy must be created that identifies the individual (e.g. the relevant minister or official) who is capable of making the necessary changes. Third, the campaign must be effectively planned so that all those involved know the broad aim, long- and short-term objectives, and work in a coherent manner. Fourth, there must be a mix of campaign tactics, such as direct and indirect lobbying, as well as public campaigning that utilizes an original format. Fifth, impact should be evaluated during the campaign to assist learning and facilitate improvements. By recognizing certain successful campaigning efforts over the past decade, Atkins observes that small voluntary organizations must be conscious of and overcome the challenges associated with ‘working on the inside track’. An example of this would be balancing participation in government consultations and committees whilst still using ‘outsider’ tactics like placing pressure on the government through effective campaigning. The obvious danger is that these organizations could become unpaid consultants to the government and, in turn, become silenced and have little or no impact on policy outcomes. Therefore, voluntary organizations must remain independent, retain focus on delivering real social and political change and not become ‘seduced’ by the more intimate relationships they share with the government. When the 2008–9 financial crisis occurred, an immediate concern to NGOs worldwide was over what impact would be felt by the NGO sector. According to a recent NCVO quarterly Charity Forecast Survey a large majority (77 per cent) of those who responded thought that economic conditions would get worse for the voluntary sector in 2010.12 Atkins outlines ways through which voluntary organizations can deal with difficult economic times. First, an organization should have adequate systems in place for receiving information about their financial performance. Second, an organization should consider areas where costs could be reduced, such as making more effective use of technology. Third, a voluntary organization may also need to diversify income streams, adopt new methods of fundraising, and work in collaboration with or merge with other organizations. Fourth, an organization must provide staff and volunteers with clear information about what is happening to the organization to ease any anxieties. Such a step is important to retain and motivate staff. Finally, voluntary organization leaders have to remain realistic and optimistic. A recession can be a good test of an organization’s ability to balance these skills and also find new opportunities. If this is done successfully, the organization can continue to contribute to society at a time of ever growing need. Paul Dekker’s chapter (Chapter 10) mainly addresses the issue of social responsibility of NGOs, which is a relatively new concept in civil society, drawn mainly from the concept of corporate social responsibility (CSR). He questions whether CSR can be successfully applied to NGOs. In Dekker’s view, this depends on the type of NGO. Non-profit service providers can in fact be very similar to corporations, in that they face the same dilemmas in balancing the interests of their owners, employees and the broader social environment. However, for advocacy and interest groups, these similarities do not exist. Instead, he proposes three alternate applicable definitions of social responsibility: 12  ‘Charities to Lag in Recession Recovery’, www.ncvo-vol.org.uk/news/civil-society/charities-lagrecession-recovery (last visited March 2010).

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NGOs in China and Europe

1. making a contribution to a social good or common interest; 2. behaving in a responsible way towards the membership or supporters; and 3. behaving in a responsible way to society at large. Dekker concludes that NGOs can no longer ignore the need for accountability. Whether the targets and strategies of an NGO are socially responsible is not self-evident. As such, there is a need for public justification. The author argues that the concept of accountability should be understood broadly to include the concept of ‘discretionary’ accountability, as discussed in Chapter 11. This broader accountability requires more than transparency and a willingness to be accountable, as it also allows for the media and the public to express opinions and criticisms. Dekker believes that it is essential to have a critical public sphere to test NGO claims of social responsibility, as well as moral and formal obligations on NGOs to strive for legitimacy and public support. However, he also believes that an over-emphasis on social responsibility for NGOs could be dangerous. In various European countries, different types of relationships exist between the government and the NGO sector. Some countries are more ‘corporatist’, in that they have politically well-integrated and moderate NGOs, whilst others have a more adverse government/NGO relationship that results in a more competitive and autonomous environment for NGOs. Both types of relationships have their advantages and disadvantages. The form of relationship that exists in a country is partially the responsibility of the government. Therefore, governments must give NGOs the space to develop their own forms of social responsibility that enhances their activities, rather than stifle them. In Chapter 11, Fries discusses four key principles concerning voluntary organizations, which he defines as citizens’ organizations operating independently of the government on a voluntary, not-for-profit basis with a social purpose. The first principle he identifies is freedom of association, which, in the author’s view, is a right fundamental to the wellbeing of society: The more people can pursue their own interests and passions, the greater citizens’ wellbeing. Secondly, the more citizens can contribute to meeting their own needs, the more they contribute to the tasks of the state. Thus the state has an interest in, as well as a responsibility for, providing an enabling framework for civil society.

However, freedom of association has to be exercised responsibly to protect citizens from harm, and a balance must ultimately be struck between this right and the stability of society as a whole. The second key concept is governance. Formal organizations can take many forms, yet two basic elements they require are governance and the ability to contract with other parties. However, meeting such requirements does not give an organization a legal personality, which is established through a separate legal process. Having legal personality is highly advantageous for an organization, because, amongst other things, it provides security. The essential features of governance include its accountability and its ethos, as well as its board of directors that sets the objectives of the organization and oversees its implementation. The author distinguishes governance from management, which can be defined as the day-to-day running of the organization and remains the responsibility of the staff and not the organization’s board of directors. The third key concept is accountability, which is the responsibility of the board of directors. The chief executive and the staff are accountable to the board, and the board has the responsibility of fulfilling the accountability of the organization itself. The author highlights two types of accountability: enforceable accountability and discretionary accountability. The former relates to fulfilling the relevant legal requirements, as well as the requirements of the organization’s

Introduction

15

constitution. The latter refers to accountability undertaken by voluntary organizations on their own accord, to fulfil good practice instead of legal requirements. The fourth key concept is independence, which is emphasized in several contexts as the foundation of voluntary organizations. Referring to the right to freedom of association as contained in the European Convention on Human Rights, which strikes a balance between the exercise of individual rights and social stability as a whole, Fries firmly believes in working out a mechanism that will strike this balance without undermining independence. As Fries underscores, the Compact setting out the relationship between the UK government and voluntary organizations recognizes the important role of NGOs in providing public services while both the government and NGOs accept that this service-provision relationship must not undermine the independence of civil society. In the author’s view, these four key concepts are interrelated and persist in the quest for a balance between freedom of association and accountability, especially in relation to the threat of voluntary organizations becoming vehicles for terrorism, which is an ongoing threat in some Western countries. Globalization also confronts civil society with new challenges, such as migration and freedom of religion. It is true that, so far, civil society has responded well to these challenges. However, voluntary organizations must continue to work in a realistic and responsible manner. Raising funds is important for all NGOs. Modern-day fundraising techniques have become an issue for civil society. Adri Kemps’ chapter (Chapter 12) uses the example of the Netherlands to demonstrate the changing trends in fundraising, which has moved away from activities such as door-to-door collections, to the more modern methods of donating through bank direct deposits, the Internet and mobile phones. These changes in fundraising methods began in the 1990s and resulted in an increase in the number of charities, as well as the introduction of modern marketing methods. Nowadays, both individual citizens and central and local governments donate large amounts of money to Dutch NPOs. For example, in 2007, the public donated a total of EUR 1.2 billion to Dutch charities. A further two billion was received by charities by way of subsidies, lotteries and company sponsorships. Dutch charitable NPOs are referred to by the tax authorities as religious, philosophical, charitable, cultural, scientific or public benefit institutions. They receive tax benefits, including not having to pay income tax on donations, and, whilst the government receives less tax as a result of these benefits, the ultimate effect is one of public benefit. Regarding the monitoring of Dutch NPOs, Kemps gives a detailed discussion of the function of the Dutch ‘Central Bureau on Fundraising’ (CBF). The CBF was the result of a joint initiative by local governments and some charity organizations in 1925. The organization has the functions of preventing fraud, unethical fundraising and bad governance. One of the major roles of the CBF is the annual evaluation of large NPOs on ethical principles for responsible fundraising, use of funds, internal governance of NPOs and evaluation mechanisms on expenditures. NPOs that meet the monitoring requirements receive a certification ‘seal’ that demonstrates that they are publicly trustworthy. At the international level, the oversight on fundraising is carried out by the International Committee on Fundraising Organizations (ICFO), an umbrella organization of national monitoring organizations that aims to strengthen the independent monitoring of charities. The ICFO aims to strengthen public confidence and ensure that donations are used for the purposes for which they are given through promoting transparency, gathering and exchanging information with members and formulating standards. Kemps contends that fundraising has become so diversified that there is a need for these forms of oversight organizations. Whilst public oversight organizations differ in each European country, they are all similar in that they focus on crime prevention, rather than fundraising ethics or methods

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to enhance public trust. Therefore, independent and self-regulatory oversight mechanisms provide charities with better concrete standards and more effective compliance mechanisms. Such forms of self-regulation by NPOs include codes of conduct and ethics, and information services to enhance transparency. In Chapter 15, Hans Thoolen focuses on a particular type of NGO, namely international human rights NGOs. Thoolen excludes purely domestic NGOs and limits inclusion in this category to those NGOs that are truly ‘international’ in that they cover international affairs and are actually active in the field of human rights protection. Thoolen distinguishes six core functions of human rights NGOs. The first is normative work, where NGOs have been at the forefront of the development of many legal instruments and mechanisms. NGOs have played a major role in legal developments in the areas of torture, disappearance, human rights defence and the establishment of the International Criminal Court. Their second function is in conducting investigations. In this respect, NGOs have an existential need to be reliable. The author indicates that whilst different NGOs have different standards in the verification and cross-checking of information, the more serious NGOs are aware that their long-term influence depends largely on the credibility and accuracy of their findings. The third function is the denunciation and advocacy function, for which NGOs are most well known. However, the author points out that, whilst the ‘mobilization of shame’ is an important method, the leverage an NGO may exert on the target country or institution can vary greatly. The fourth function is lobbying as it is practised at the intergovernmental level. The persuasive powers of an NGO depend on the reputation of the NGO and the seriousness of threats of public action. The fifth function is providing assistance. However, Thoolen observes that only a small number of international human rights NGOs carry out this function on a meaningful scale. The sixth function covers raising awareness, fundraising, and providing advice, training, education or administrative assistance. Thoolen discusses international human rights NGOs in Eastern European countries in transition during the 1980s and points out that these NGOs played a crucial role in articulating citizens’ demands by encouraging diversity, debating controversial themes and alerting society to dangers that would otherwise have remained off the political agenda. Thoolen also notes that the first hurdle international human rights NGOs face in transition situations is their own ‘presence’ in the country, by having to find good information from reliable local NGOs. Whist international NGOs can bring expertise, funding and pressure, they also need to be careful that they do not overwhelm local NGOs. Thoolen takes a firm view that, following the Second World War, the international human rights movement, in which human rights NGOs are the key players, has contributed greatly to states changing their human rights practices and developing a normative human rights framework. International human rights NGOs are also important to countries in transition, in that they provide the necessary principled values and adaptability in methods. However, some contested issues still exist where states criticize international human rights NGOs because of how they conduct themselves, e.g. for imposing their own ‘foreign’ ideas. However, this is often a knee-jerk reaction from states when their human rights record is criticized, and they need to recognize where they are failing in terms of human rights and work towards correcting these problems. Characteristics of NGOs in Central and Eastern Europe Turning to NGOs in Central and Eastern European (CEE) countries, there has been increasing academic interest in this sector following regime changes. This volume contains three chapters by

Introduction

17

NGO experts from the region that offer readers a great deal of insightful information and critical analyses of the evolving characteristics of civil society in CEE countries. In Chapter 9, Nilda Bullain, the Director of the European Centre for Not-For-Profit Law, examines the political and legal environment for the development of civil society organizations in CEE countries. After discussing the different roles of NGOs before and after the political changes in the late 1980s, the author points out that the impact of Communism on the current civil society sector cannot be overlooked and is manifested in three ways. First, under the centralized and authoritarian regimes, civil society organizations possessed the role of government opposition. This historical legacy still affects some civil society organizations and results in the utilization of more confrontational, rather than cooperative, techniques in dealing with the government. Second, during the Communist period, people were used to believing that the government would take care of them, and this sense of dependence on the government has resulted in a strong expectation that NGOs should be supported by government funding. Third, the distorted morals and behaviour among the public under the oppressive regime will take generations to change. People were used to cheating each other to reach their own goals and distrust, favouritism and corruption were everyday realities. Even though NGOs have a better public image, most people who work in NGOs are not very different from ordinary people. After the collapse of the Communist regime there was a short period of confusion concerning the role of NGOs. Many new democratically elected leaders were active civil society organizers and did not envisage the need for an ‘opposition’ represented by NGOs under the new democracy. However, by the end of the 1990s there was a fresh recognition of the role of civil society organizations. The change in government policy mainly came about because: 1. NGOs were providing services that the state may not have been able to; 2. NGOs’ professional work, with an innovative approach, met the interests of the government in advancing social services; 3. NGOs helped to implement government policies more effectively; and 4. on a more practical level, NGOs were helpful in absorbing EU funds. As a result of these benefits, CEE governments have introduced various financial incentives to support the NGO sector. These include the direct allocation of subsidies, grants, procurement, per capita fees or vouchers, and the creation of special funds for NGOs. The latter include the Czech government’s use of 1 per cent of the proceeds from the privatization of state-run enterprises to form a Foundation Investment Fund to support local foundations. National funds have also been set up in Croatia and Estonia. In addition, some countries have initiated a so-called ‘percentage mechanism’, whereby taxpayers can allocate 1 or 2 per cent of their paid tax to specific public benefit organizations. Despite the good intentions in adopting these systems, such as generating more financial sources for NGOs and promoting a philanthropic culture among taxpayers, Bullain admits that there are also limitations: the fixed percentage scheme creates a ceiling that limits available funding, and the reception of a large portion of the proceeds by a few NGOs decreases the amount available to others. Thus, Bullain advises that governments should view this system as a ‘transitional’ measure for a period of a few years, to enable resources to be generated for NGOs and to promote philanthropic thinking amongst the public. Moreover, such mechanisms should not replace other mechanisms already in existence. Bullain concludes that the development of civil society in CEE countries is ‘unfinished business’. More public participation, as well as active citizenship, is needed. People’s awareness of their rights and their ability to enforce them needs to be strengthened. NGOs should be more

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embedded in communities to gain more support from the ‘bottom up’ in order to prevent them from becoming too vulnerable to political pressure because of funding needs. Funding systems need to be developed to support the sustainable financial security of NGOs, especially advocacy and watchdog types of NGOs. Finally, NGOs need to improve their organizational capacities. Balazs Sator’s chapter (Chapter 14) mainly discusses the booming NGO sector and the consequential need for professional education in Hungary after the political changes that occurred in 1989. Hungary has a population of 10 million people and there are 64,000 registered NGOs, meaning that there is one registered NGO for every 156 citizens. This ratio undeniably demonstrates the rapid expansion of civil society over the past two decades. The Hungarian experience proves that a government that trusts the work of NGOs is a significant stimulus for NGOs to contribute to the political and social transition. The government has introduced the percentage law, tax incentives for philanthropic donations, the law on public benefit activities. In addition, the government has allocated a considerable amount of funding to the NGO sector. The increase in the number of NGOs has led to the need for improved quality. The Civil Society Development Foundation (CSDF), which was established in 1994 as an independent capacity building organization, aims to assist NGOs in improving their professional management. Sator discusses at length the development of the non-profit education and research sector in the past decade, and concludes that generally non-profit education and research has been ‘a major cornerstone in NGO sector development besides funding’. Another factor that has left its mark on the development of NGOs in the recent past in CEE countries is the impact of the funding of international NGOs coming from the United States and Western European countries. Sator concedes that there exists a common fear in many Eastern countries that Western funders may try to use the NGOs they sponsor to pressure governments and force their own values on the public. However, from his own 15 years of experience in the region, Sator has never come across such a situation. To the contrary, he argues that, in his experience: ‘Many local donors learned from their Western peers’ grant-making policies the merits of a simple but result oriented approach, a partnership attitude towards the NGOs.’ He further contends that: Private foundations like the C.S. Mott Foundation, the Rockefeller Brothers Fund, the Kellogg Foundation, and so on, are all committed to developing the NGO sector without political or economic interest. In the late-1990s these funders started to withdraw from the region (they never represented more than 8 per cent of the total income of the sector in Central Europe), and were partially replaced by EU funds. NGOs that were formerly developed by these mostly American foundations became ideal partners for the EU: their management was modern, their boards were functioning well and they were reliable organizations that had relevant project experience.

It is evident from this that one should not oversimplify the possible negative conclusions that could be drawn from the involvement of international NGOs in newly democratic countries. Petr Jan Pajas’ chapter (Chapter 13) begins with an historical examination of the development of civil society organizations (CSOs) in the Czech Republic. The author, through the use of four models of social and political systems, contends that the development of civil society is closely linked with changes in the political system. A better political period leads to an improved civil society. He uses the events of January 1989 to mark the beginning of the process wherein the Czech Republic transformed into a liberal democracy, following a 40-year period of experimenting with ideas of socialism, which resulted in full control over citizens’ activities, and almost total isolation of the population from the rest of the world. Whilst disputes between political leaders as to the role

Introduction

19

of civil society in the new democratic political system caused some delay in the development of legislation, over the past two decades there have been significant positive legislative developments for CSOs. For example, CSOs had been active in proposing draft bills that resulted in the promulgation of the 1995 Law on Public Benefit Corporations and the 1997 Law on Foundations and Funds. In order to help newly established foundations, a scheme was developed that enabled separation of 1 per cent of the shares portfolio of industrial companies privatized during the 1990s to be placed in an investment fund. After several rounds of these portfolio sales, the income generated has been distributed to about 80 new grassroots foundations that have used this money for strengthening their registered endowments. In this way, the foundations reappeared as a stable and substantial source of financial support for Czech CSOs, while, at the same time, remaining independent of government financial support. Pajas highlights the important roles of international NGOs in facilitating the strengthening of national CSOs in the transitional period, and emphasizes that many Czech NGOs have gradually learnt how to generate funds themselves and become less dependent on foreign donor support. Pajas is optimistic but realistic about the future of Czech civil society. Since 1992, it has been gradually developing into a self-sustaining community with active, professional organizations that can be influential at the local and national levels. The study of civil society even forms part of university education. Czech civil society is now supported both politically and financially by central and local governments. CSOs have proliferated in nearly all regions and their work covers environmental, social and political arenas. However, Pajas also points out the weak features of CSOs: the concentration of subsidies towards sport and humanitarian fields; the reluctance of some organizations to demonstrate full financial transparency; and low levels of professional performance and organizational management. In addition, there are several risks to the further development of CSOs, such as the financial crisis and the conflicts of interest inherent to CSOs over how to generate enough resources while preserving the required not-for-profit characteristics. Conclusion In summary, this multi-author volume is certainly an extraordinarily rich source of information on the current status of NGOs in China and selected European countries. This survey reiterates the reality that NGOs have specific and vital roles to play in modern society that neither governments, nor the market, can fulfil. In the arena of societal needs, NGOs provide a necessary platform whereon people can exercise their natural desire to organize themselves for community or social purposes. Even though a large proportion of organized social groups do not necessarily need to be recognized as legal entities, many NGOs must be legally registered in order to carry out their activities lawfully and to attract wide public support. This inevitably raises the issue of the relationship between NGOs and the government, since legal legitimacy is subject to the law, which in turn echoes the government’s intentions. Obviously, such a relationship is different in China when compared with European countries. One could argue that the Chinese government retains ‘firm and effective’ control over NGOs, in the sense that if it is determined to make a NGO disappear, it could do so without causing much trouble for itself. However, the Chinese government is not treating the majority of NGOs in such a drastic manner, and instead tolerates their existence in most cases. Such tolerance has left a space for the gradual expansion of Chinese NGOs over the past three decades. However, an enabling legal and political environment for NGOs as an independent social force has yet to be achieved. Consequently, the legal, political and, to a certain extent, even the social legitimacy of many NGOs

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remain problematic. This not only limits the ability of NGOs to fully utilize their potential to serve the diverse needs of the society, but also undermines their capacity for sustainable institution building and achieving long-term objectives. The passive governmental attitude also results in most newly emerged NGOs becoming heavily dependent on funding from foreign donors as fundraising in the domestic market is almost impossible. In European countries, the ‘closeness’ between the government and NGOs differs, but the bottom line is that no European government is imposing legal restrictions aimed at preventing NGOs from existing lawfully. In Europe, laws and systems have been established and improved over time to allow NGOs to benefit from tax incentives or tax deductions, and in some countries governmental financial support for NGOs has also been institutionalized. NGOs are allowed to criticize or challenge the government, and lobby or organize campaigns for changes in policies or laws. These activities may not always work as expected, but NGOs have no need to fear being punished. Of course, NGOs in different European countries are also facing various challenges. They have to work innovatively to ensure adequate funding, to attract talented staff, to improve management, and to uphold their independence, which is the basic foundation of their existence. Despite the different stages of development and distinctive problems they face, it seems that the social need for NGOs in China and Europe is the same. As some NGOs are becoming larger, professionalized or internationalized, it is to be expected that the cooperation between NGOs at a cross-border level will increase. Mutual learning and support could be conducive to strengthening NGOs in different countries. Just like the enhancement of government ties, the business ties between China and Europe have benefited their respective societies. Most certainly, the growth in NGO ties will also reinforce these benefits.

PARt I NGOs in the Context of China

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Chapter 2

International NGOs in China: Current Situation, Impacts and Response of the Chinese Government Han Junkui

Introduction In the 30 years following the reform and opening up in China, the research on civil society organizations in the country has been mainly focused on two different bodies: ‘quasi-governmental’ non-governmental organizations (NGOs) and grassroots NGOs. The former are usually regarded as an extension of government function and accused by researchers of being ‘the second government’, whilst the latter are seen as representing the rise of genuine grassroots democracy. The intention of this chapter is not to pass judgement on the correctness of this view, but to show that it is impossible to have a profound understanding of the interest pattern of NGOs in the evolution of civil society in China without analysing the third category of NGOs, namely international NGOs (hereafter referred to as INGOs). To put it more clearly, the role played by INGOs in China in the process of internationalization and globalization can never be stressed enough. This chapter divides INGOs into two categories – public interest organizations and chambers of commerce – and discusses each of them in detail. As far as public interest INGOs are concerned, they are all faced with a dilemma in China: on one hand, an increasing number of such organizations are engaged in more and more public interest activities; on the other hand, they are plagued by many concrete problems, such as registration and taxation due to their unclear legal status. In addition, while the Chinese government and society are making great efforts to introduce INGO funds, technology and ideas into some areas, they are at the same time guarding against them and restricting their activities in others. How should such dilemmas be understood? What is an effective approach to solving them? To answer these questions, we must first answer the following: what stages of development have INGOs gone through in China; what kind of activities are they engaged in; what are their impacts in China; whether and how they can obtain legal status in China; and what measures are taken by local governments in administering and supervising such organizations? With regard to foreign chambers of commerce, on 14 June 1989, the State Council, in view of the increasing influence of foreign chambers of commerce in China, and in order to promote international trade and economic and technological exchanges between China and other countries, promulgated the Interim Provisions on the Administration of Foreign Chambers of Commerce, which attempts to bring foreign chambers of commerce into a system of effective administration. According to these provisions, foreign chambers of commerce are not-for-profit organizations. In   This chapter is a part of the research results of an ongoing project entitled ‘An Empirical Study on the Current Development of International NGOs in Mainland China’, which started at the end of 2005. The author of this chapter is the executive director of this project. Here I would like to express my sincere thanks to the following people for their contribution to the project: Professor Wang Ming, Dr Deng Suo, Dr Xu Yushan, PhD candidate Zheng Qi, and Masters students Wang Qingjun and Quan Zhien.

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order to be registered in China they must submit written applications through the Chinese Chamber of International Commerce, which in turn must submit the application to the Ministry of Foreign Trade and Commercial Cooperation for examination and approval. After the application is approved, a chamber of commerce can be registered at the civil affairs department and carry out activities in accordance with the relevant laws. Only one chamber of commerce can be registered for each foreign country. Today, 20 years after the promulgation of the Interim Provisions, only about 20 foreign chambers of commerce have been registered in Beijing. As a result, a large number of INGOs are outside the centralized government monitoring system, a situation leading to continuous ‘game play’ between the government and INGOs. This has not only increased operational costs for the government, but it has also led to many uncertainties. Therefore urgent solutions need to be found for the questions of how to supervise foreign chambers of commerce and what Chinese chambers of commerce and trade associations can learn from their foreign counterparts. Currently the research on public interest INGOs in China has the following characteristics: first, since 2002, there has been a significant increase in the level of attention and the amount of literature by the Chinese academic circle on the issue of INGOs; second, the research results in this respect have been mainly concentrated in the field of politics, especially in the field of international relations; third, as far as content is concerned, such research has been more introductory than analytical; and fourth, they have little relevance to the INGOs carrying out activities in China. A number of books on related subjects have been published in recent years, but very few of them deal with the development of INGOs in China and their relationship with the Chinese government from the perspective of general organizational characteristics of NGOs. In comparison, the English language literature on the same subject, although small in number, is generally of a much higher quality. It mainly adopts the following two approaches: the first is to show, through analysis from the perspective of corporatism, state–society relationships and globalization, that INGOs will play, or already have played, an important role in the fields of social development, grassroots political reform and environmental protection in China, and will influence the evolution of Chinese

  The author of this chapter, by searching the China Periodical Network (www.china-k.net) with the keywords ‘international NGO’, ‘international non-governmental organization’ and ‘international not-forprofit organization’, found that 258 articles, thesis and conference papers had been published on these subjects between 1979 and 2007. Among them, only 79 were highly relevant to international NGOs. Plus search results using ‘NGO’ as the keyword and other relevant literature known to the author of this chapter, there has been a total of 128 articles on these three subjects. The following four characteristics are summarized on the basis of this literature, all of which had been published pre-July 2007.   See, for example, Huang Haoming (ed.), Cooperation with International NGOs: Practice and Administration (Beijing: University of International Business and Economics Press, 2000); Wang Jie, Zhang Haibin and Zhang Zhizhou, International NGOs in the Global Governance (Beijing: Peking University Press, 2004); Sheng Hongsheng and He Bing (eds), The ‘Third Party’ in Contemporary International Relations: Studies on the Issue of NGO (Beijing: Shishi Publishing House, 2004); Han Tie, The Ford Foundation and Chinese Studies in the U.S. (1950–1979) (Beijing: China Social Sciences Press, 2004); Liu Zhenye, NGOs in International Politics: Analysis of an Interactive Relationship (Tianjin: Tianjin People’s Publishing House, 2005); Xu Ying, NGOs in Contemporary International Politics (Beijing: The Contemporary World Press, 2006); and Liu Huaping, NGOs and Nuclear Disarmament (Beijing: China Social Sciences Press, 2008).

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society. The second is to focus on China’s legislation regarding INGOs. Generally speaking, this research has two characteristics: first, the research started at the beginning of the twenty-first century has so far not produced many results, although in recent years this has become the focus of attention for more and more scholars, especially scholars of political science. Second, these scholars are optimistic about the influence of INGOs on the political process in China. However, current research is mainly based on individual case studies and lacks sufficient materials for a macro perspective. Currently, as far as the English language literature is concerned, research results on foreign chambers of commerce in China are extremely rare. As for the Chinese language literature on this subject, a thorough Internet-based search on the China Periodicals Network enabled me to draw the following preliminary conclusions. First, there are a relatively large number of articles introducing the operational mechanisms and characteristics of chambers of commerce in foreign countries. Essentially these articles contain a simple review of the history and operational models of chambers of commerce in foreign countries and their relationship with the government. Some of them also put forward a few constructive suggestions on the basis of such reviews. Second, the literature shows that the main sources of information on this subject have been visiting foreign chambers of commerce, trade negotiations, interviews, etc. Third, I found most of the articles focus on the issue of administration from the perspective of the government and very few of them discuss this from the perspective of non-profit organizations (NPOs). Some articles have discussed the subject from an economic or legal perspective,10 but they are few in number. Fourth, most of   John Flower and Pamela Leonard, ‘Community Values and State Cooperation, Civil Society in the Sichuan Countryside’, in Chris Hann and Elizabeth Dunn (eds), Civil Society: Challenging Western Models (London and New York: Routledge, 1996), pp. 199–221; Becky Shelley, ‘Political Globalization and the Politics of International Non-governmental Organizations: The Case of Village Democracy in China’, in Australian Journal of Political Science 35(2) (2000), pp. 225–38; Paul Thiers, ‘Global NGOs and the Potential for Environmental Pluralism in China’, Mansfield Conference, The University of Montana, Missoula, April 2004, pp. 18–20; Thomas Gold, ‘International NGO’s and Civil Society in China: A Case Study of Pacific Environment’, 2005, a paper submitted to the International Seminar on the Development of Civil Society in China at a Time of Transition: International Perspective, held in Beijing in 2005; Nick Young, ‘NGOs: the Diverse Origins, Changing Nature and Growing Internationalisation of the Species’, in China Development Brief (2004), available at: www.chinadevelopmentbrief.com (last visited 25 August 2009).   Nick Young, ‘INGO Registration FAQ’, in China Development Brief (1999), available at www. chinadevelopmentbrief.com (last visited January 2010).   www.cnki.net (last visited March 2010).   For example, Zheng Chunrong, ‘An Analysis of Chambers of Commerce and Associations in Germany’, in German Studies 4 (2000); Zai Huaming, ‘A Preliminary Analysis of Chambers of Commerce in Japan’, in Research on Industrial and Commercial Administration in China 5 (2004); Yao Dingkang, ‘Characteristics and Role of Chambers of Commerce in the U.S.’, in Manager’s Daily, 21 March 2006.   Li Hengguang, ‘A Comparative Study on the Function and Organizational Structure of Chambers of Commerce in Foreign Countries and Their Reference Value for China’, in Journal of Gansu Economic Management Institute 14(4) (2001); Jin Xiaochen, ‘A Comparative Study on Chambers of Commerce in Europe and the U.S.’, in Management World 1 (2003); Chen Xiwen and Hao Jitao, ‘What China Can Learn from the Experience of Chambers of Commerce in France: Promoting the Development of Small and Mediumsized Enterprises’, in Financial Theory and Practice 25 (2004).   For examples, Gu Jing, ‘Korean Chamber of Commerce in China: Spokesman for South Korean Enterprises in China’, in China Business Times, 11 October 2005; ‘American Chamber of Commerce in China: the Business Environment of U.S. Enterprises in China’, in Business Watch Magazine, May 2007. 10  For example, Wang Zuxing, ‘On the Terms of Reference System of International Chamber of Commerce Arbitration’, in Contemporary Law Review 19(3) (2005).

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these articles have been published since 2000. This means the issue has received marked attention only since China acceded to the WTO. Fifth and finally, there are very few empirical studies. With the exception of a few interviews, almost all the research materials I have so far collected are translations and introductions of, or commentaries on, foreign materials. And with the exception of a few research results,11 publications in this field have the following characteristics: they are more introductory in nature than empirical; there is a lack of description or analysis of foreign chambers of commerce operating in China; most of them have been published in recent years; and there is an unbalanced participation by scholars from different disciplines in the discussion of this topic.12 To sum up, currently there are still many gaps in the research on foreign chambers of commerce operating in China. In view of the above facts, this chapter, apart from research on the relevant literature, has adopted the following three approaches. The first approach is questionnaire investigation. The statistical analysis in this chapter is mainly based on the 48 valid answers to questionnaires I sent out in my investigation,13 supplemented by the brief information on 211 public interest INGOs contained in the book 200 International NGOs in China.14 The second approach is in-depth interviews and field investigations. Between 2006 and 2008, I conducted in-depth interviews with more than 30 leaders, programmes officers, and representatives of stakeholders of public interest INGOs. And from July to December 2007, I again conducted many interviews with the leaders, programmes managers and assistant officers of seven foreign chambers of commerce in China, as well as officials from the relevant government departments and other foreign chambers of commerce. With respect to field investigation, apart from investigations in the area where the four main public interest INGOs are located, on-site investigations at foreign chambers of commerce were carried out in the cities of Beijing, Shanghai and Qingdao. The third approach is comparative analysis. On the basis of the above two approaches, I have also carried out classification of the governance models of INGOs, conducted a comparative analysis of the effects of and the problems faced by different operational models and put forward some policy proposals.

11  Scott Kennedy, The Business of Lobbying in China (Harvard: Harvard University Press, 2005). 12  Zheng Chunrong, ‘The Autonomous Status of Chambers of Commerce in Germany’, ‘The Supervision over Economic Associations and Chambers of Commerce in Germany’, and Pu Wenchang, ‘A Comparative Study on Foreign Chambers of Commerce or Trade Associations’, in Pu Wenchang (ed.), Collected Papers from the Seminar on Market Economy and Non-Governmental Chambers of Commerce (Xian: Northwest University Press, 2006); Zhang Zhiyong, ‘Chamber of Commerce’, in Wang Ming and Liu Peifeng (eds), A General Introduction to Civil Society Organizations (Beijing: Shishi Publishing House, 2004); Wang Ming, Li Yong and Huang Haoming (eds), NPOs in Germany (Beijing: Qinghua University Press, 2006); Wang Ming, Li Yong, Liu Hong and Huang Haoming (eds), NPOs in Japan (Beijing: Peking University Press, 2007); Chen Xiaojun, The Legal System of Mutual-Beneficial Legal Person: A Study Centred on Chambers of Commerce and Trade Associations (Beijing: Law Press China, 2007). 13  From 2006 to 2007 the author organized a large-scale questionnaire investigation into INGOs in China. The questionnaire contained 36 concrete questions divided into the following six parts: basic information; development in mainland China; internal governance; mode of operation; external relations and other information. Over 400 questionnaires were sent to people in charge of target organizations by surface mail, e-mail, or in person. A total of 48 answers to the questionnaires were received. Unless otherwise indicated, all the data in this article comes from this questionnaire investigation. 14  200 International NGOs in China was published in 2005 by China Development Brief; it introduced 211 international NGOs operating in China. The English version of the book is available at: www. chinadevelopmentbrief.org.cn/qikanotherlist.php?id=2 (last visited June 2010).

International NGOs in China

27

Public Interest INGOs Four Stages of Development of Public Interest INGOs in China Since the 1980s, a revolution of global association has been gradually gaining momentum. However, INGOs, which are closely related to this process, emerged and developed long before this. From 1950, the Union of International Associations (UIA) has been conducting systematic recording and categorization of INGOs in the Yearbook of International Organizations (the Yearbook). As a result, the history of INGOs goes back a long way. However, the criteria used by the UIA are very strict and only those INGOs with members, officers and a basic budget coming from at least three countries are listed in the Yearbook.15 A statistical study by Evan Schofer shows that such organizations started activities in the mid-nineteenth century and began rapid development in 1920. With the exception of the period during the Second World War, these organizations have continued to rapidly develop to the present day, with their number growing from only one in 1870 to over 300 in 1990 (see Table 2.1).16 Another more detailed set of statistics show that, with the exception of the two world war periods, the number of INGOs grew continuously from 1875 to 1973.17 Table 2.1 Number of transnational organizations by issue focus18

Issue Human rights Peace Women’s rights Environment World order/international law Development/empowerment

1953

1963

1973

1983

1993

(N = 110)

(N = 141)

(N = 183)

(N = 348)

(N = 685)

33 11 10 2 22 3

38 20 14 5 23 3

41 14 16 10 37 7

79 22 25 26 57 13

190 81 62 123 80 47

Note: These six issues account for approximately 70 per cent of all organizations in each time period.

15  Kathryn Sikkink and Jackie Smith, ‘Infrastructures for Change: Transnational Organizations, 1953–93’, in Sanjeev Khagram, James V. Riker and Kathryn Sikkink (eds), Restructuring World Politics (Minneapolis: University of Minnesota Press, 2001), pp. 26–7. 16  Evan Schofer, ‘Science Association in the International Sphere, 1875–1990: the Rationalization of Science and the Scientization of Society’, in John Boli and George M. Thomas (eds), Constructing World Culture: International Nongovernmental Organizations Since 1875 (Stanford: Stanford University Press, 1999), pp. 250–1. 17  John Boli and George M. Thomas, ‘INGOs and the Organization of World Culture’, in Boli and Thomas, Constructing World Culture, p. 23. 18  Sikkink and Smith, ‘Infrastructures for Change’, p. 30.

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Whilst developing at an accelerating speed, INGOs have also exerted influence on China. The first stage of their development in China was the period before the 1950s.19 At that stage it was not difficult for a large number of INGOs to carry out activities in China – which was still in the process of being colonized – and most of them were church organizations or had religious backgrounds. However, there were also some organizations without religious backgrounds, such as the Rockefeller Foundation and the Ford Foundation. In that turbulent time of violent clashes of state interests, these organizations carried out many activities in the fields of public health, education and cultural exchange and achieved certain positive social effects. However, some of these organizations were accused of being accomplices to colonialists. The second stage (from the late 1950s to 1978) was one of stagnation, where all INGOs were regarded as a part of a reactionary force and driven out of the country. The third stage (1978–90) was a stage of recovery. From an international background perspective, this ‘recovery’ coincided with a period of reforming public administration and Western developed countries restructuring their governments, as they were facing financial difficulties as a result of the two oil crises. Under the influence of new liberalism, a general trend emerged among Western developed countries towards transferring government functions from the central government to local government, and from the government to actors outside the government system. During this process, NGOs had become partners of the government and effective providers of social welfare services.20 Against this background, INGOs were becoming increasingly active. Some people attribute the return of INGOs to mainland China to the proposals put forward to the Chinese government in 1984 by Mr Manfred Kulessa, the then Resident Representative of the United Nations Development Programme (UNDP) in China.21 However, it seems that INGOs had been carrying out disaster relief and other charitable activities long before this. Some large INGOs with high public trust began to enter into China by carrying out activities such as disaster relief and saving the pandas. Although some of the INGOs had religious backgrounds they had maintained a good relationship with the Chinese government for a long period of time. Their main activities at this stage were in the traditional field of charity, such as disaster relief, poverty alleviation and education. The fourth stage, from 1992 onwards, has been a stage of rapid development. According to observations by Lewis and others: A search of the major development textbooks from the 1960s through to the 1980s for mentions of NGOs or voluntary organizations yields little or no references at all (Lewis 2005). Yet the 1990s saw a veritable explosion of writings on the subject as NGOs moved into a mainstream position in development policy. NGOs have appealed both to activists and those interested in development alternatives, as well as to the “establishment”. By the mid-1990s, NGOs had become the “favoured child” of the official development donors (Edwards and Hulme 1995). NGOs became “catapulted

19  ‘The 1950s’ and ‘1978’ mentioned below are the two dividing lines in a typological sense. In fact, INGOs were not totally rejected by China until the end of the 1950s and different INGOs had contacted mainland China through various channels before the beginning of reform and opening up in 1978. For example, the so-called ‘Ping Pong Diplomacy’ between China and the United States was promoted by such organizations. 20  From Table 2.1 we can see that there was a marked increase in the number of international NGOs in 1983 as compared with the previous periods. 21 Huang Haoming, Cooperation with International NGOs, p. 3.

International NGOs in China

29

into international respectability” such that governments and multilateral institutions suddenly saw NGOs as important actors in development (Brodhead 1987, 1).22

We can see proof of this from both Table 2.1 and Table 2.2. One of the important reasons for the increase of INGO activities in developing countries was the dilemma faced by the traditional mode of development, namely the criticism of modernization theory and dependency theory and the distrust towards the traditional mode of state-to-state assistance. In addition, the increase of global issues and the emergence of the global media platform have provided INGOs with the impetus for development. Of course, such impetus also comes from the building up of a positive self-image by INGOs themselves.23 Table 2.2 Timetable of INGOs’ entry into China (INGOs covered by the author’s own investigation) Time periods

Numbers

Percentages

Aggregated percentages

Before 1980 1980–9 1990–9 2000–present Total

2 12 19 12 45

4.4 26.7 42.2 26.7 100.0

4.4 31.1 73.3 100.0

At the current stage, INGOs have enjoyed rapid development in China by seizing the opportunities brought about by Deng Xiaoping’s speech given during his inspection of southern China, the convening of the World Conference on Women in Beijing, and China’s accession to the WTO. Apart from the traditional charitable field of activity, INGOs that have entered into China during this fourth stage are more focused on new issues such as environmental protection, promotion of the interests of women and children, prevention of HIV/AIDS, domestic violence, migrant peasant workers and village governance, and their backgrounds have also become more and more complicated. We can see that during the last two stages INGOs have penetrated deeper into Chinese society with each new step of reform. The result of my own investigations (see Table 2.2) shows that the number of INGOs active in China only began to increase after the 1980s and reached its peak in the last decade of the twentieth century. One of the turning points in this process was the Fourth World Conference on Women held in Beijing in 1995. Among the INGOs covered by my investigation, 53.3 per cent entered China for the first time after 1995. From Table 2.2 we can also see that INGOs entering China after 1990 make up 68.9 per cent of all the samples in my investigation. This data has, to a certain extent, proved the theory of ‘four stages of development’, put forward above. Another of my investigations shows that over 80 per cent of the INGOs in China are ‘very confident’ about their development in China in the next five years. This means the development of INGOs in China

22 David Lewis, The Management of Non-Governmental Development Organization: An Introduction (London: Routledge, 2007), p. 38. 23 Ibid., pp. 39–41.

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remains at the fourth stage. Perhaps following the establishment of their legal status, INGOs in China will enter into a fifth stage. Geographic Scope, Fields and Impact of INGO Activities Before assessing the impact of these organizations, we must first try to understand what kind of activities they engage in and in which fields, as well as in where in China. Geographic scope of activity Table 2.3 Geographic scope of INGO activity in China (48 INGOs covered by the author’s own investigation) Geographical scopes

Numbers Percentages Aggregated percentages

Within the scope of one city, district or county Within the scope of two or more cities, districts or counties Within the scope one province, autonomous region or municipality directly under central government Within the scope two or more provinces, autonomous regions or municipalities directly under central government Throughout mainland China Mainland China, Hong Kong, Macao and Taiwan Others Total

4

8.3

8.3

3

6.3

14.6

3

6.3

20.9

10

20.8

41.7

21 6 1 48

43.8 12.5 2.0 100.0

85.5 98.0 100.0

Table 2.4 Geographic distribution of INGO projects in China (INGOs covered by the book 200 International NGOs in China) Geographic distribution Not specified Within scope of one province, autonomous region or municipality directly under central government Within the scope of two provinces, autonomous regions or municipality directly under central government Within mainland China Mainland China, Hong Kong, Macao and Taiwan Total

Number of organizations Percentage 14

6.6

43

20.3

127

59.9

27 1 212

12.7 0.5 100

Geographical scope is one of the basic features of activities of INGOs in China and can, to a certain extent, reflect the size of an INGO. From Table 2.3 and Table 2.4, we can see that most of these organizations engage in activities that cover two or more provinces, autonomous regions or municipalities under the central government. In addition, 43.8 per cent of INGOs carry out

International NGOs in China

31

activities that cover the entire country. Only 8.3 per cent of INGOs engage in activities that are limited to one city, district or county. The reason for such a situation is that most of these INGOs are not registered in China and are therefore naturally not restricted by the requirement that social organizations in China only carry out activities in their place of registration. Among the nine cities or areas covered by our investigation: Beijing is the city with the largest number of INGO offices (21 INGOs or 58.3 per cent of the total); Kunming comes second (four INGOs or 11.1 per cent of the total); and Shanghai and Chengdu rank third (three INGOs or 8.3 per cent of the total). The above four cities are currently the areas in which INGOs are most active. Fields of activity Table 2.5 Fields of INGO activity in China (48 INGOs covered by the author’s own investigation) Field of activity Education Healthcare Poverty alleviation and community development Capacity building for native NGOs in China Environment and animal protection Government capacity building Others Protection of women’s rights Protection of cultural diversity Children’s development Disaster relief and post-disaster reconstruction International cultural exchange

Ranking

Number of projects

1 2 3 4 5 6 7 8 9 10 11 2

35 22 15 14 12 10 9 8 7 5 3 3

Table 2.6 Fields of INGO activity in China (INGOs covered by the book 200 International NGOs in China) Field of activity Healthcare Education Environmental and animal protection Poverty alleviation and community development Disaster relief and post-disaster reconstruction Children’s development Others Capacity building for native NGOs in China Protection of women’s rights International cultural exchange Government capacity building Protection of cultural diversity

Ranking

Number of projects

1 2 3 4 5 6 7 8 9 10 11 12

86 72 56 47 20 19 19 13 13 10 7 3

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NGOs in China and Europe

Table 2.5 shows that the field of education has the highest concentration of projects implemented by the 48 INGOs covered by my investigation. The top five fields with a relatively high concentration of INGO activity are education, healthcare, poverty alleviation and community development, capacity building for native Chinese NGOs, and environment capacity building. Table 2.6 shows that, according to a survey of 212 INGOs, healthcare is the field with the highest concentration of INGO projects in China, followed by education, environmental and animal protection, poverty alleviation and community development, and disaster relief and post-disaster reconstruction. Moreover, my investigation shows that 31 INGOs (or 66 per cent of the total) indicated that Chinese projects made up only a small part of their total projects, whereas 11 (or 23.4 per cent of the total) indicated that almost all of their projects were implemented in China.24 Although Chinese projects currently only make up a small percentage of most INGOs’ total projects, the percentage is on the rise: 15 INGOs report a rapid rise in them (32.6 per cent) and 22 report a slow rise (47.8 per cent).25 Impacts and consequences  INGOs have made at least the following three positive impacts on China: first, they have brought China much needed financial and technical assistance in the fields of protection of disadvantaged groups where both the government and the market have failed (see Table 2.7 and Table 2.8);26 second, they have brought new ideas and operational methods to the development fields and led to innovation in some of these fields; and third, they have improved the capability of native Chinese NGOs both in the instrumental and expressional dimensions27 and remoulded the idea of public interest in a time of globalization. Table 2.7 Total budget of INGO China projects in the year 2006 (48 INGOs covered by the author’s own investigation) Budget (RMB) 1 million and below 1–4.99 million 5–9.99 million 10–19.99 million 20 million and above Total

Number of projects

Percentage

Aggregated percentage

8 14 5 7 7 41

19.5 34.1 12.2 17.1 17.1 100.0

19.5 53.7 65.9 82.9 100.0

24  Based on the 47 questionnaire samples in which this question was answered. 25  Based on the 46 questionnaire samples in which this question was answered. 26  See Haoming, Cooperation with International NGOs. 27  See Peter Frumkin, On Being Nonprofit: A Conceptual and Policy Primer (Cambridge: Harvard University Press, 2002).

International NGOs in China

33

Table 2.8 Total budget of INGO China projects in the year 2006 (INGOs covered by the book 200 International NGOs in China) Budget (RMB) 1 million and below 1–4.99 million 5–9.99 million 10–19.99 million 20 million and above Total

Number of projects

Percentage

Aggregated percentage

30 49 22 9 18 128

23.4 38.3 17.2 7.0 14.1 100.0

23.4 61.7 78.9 85.9 100.0

The negative impact of INGOs mainly results from the fact that some INGOs engage in illegal intelligence or religious activities in China under the pretext of promoting public interest, thereby posing a certain threat to national security. Of course some INGOs are also trying to put more pressure on China, which is in the process of progressive reform, with the ideas of universal civil rights and global civil society.28 Based on my assessment of the current situation, I believe that, for China, the advantages of INGOs far outweigh their disadvantages. However, the lack of laws and administrative measures in this respect has led to many negative consequences, which mainly include the following. First, because there is no government department in charge of unified administration of INGOs, these organizations are under the administration of different government departments in charge of poverty alleviation, education, women’s affairs, healthcare, environmental protection, etc. As a result, no government department has a clear idea as to how many INGOs are engaged in activities in China, how many projects they are operating with how much funding or how many beneficiaries they have. Nor is there a clear picture of the impacts of such projects. This leads to difficulties in supervision by the government. The administration of INGO projects often involves more than one government department and it is very difficult for different departments to coordinate the implementation of such projects. Generally speaking, this can easily lead to a situation in which different government departments fight each other for projects that can bring them profit, but would shift responsibilities to each other once something goes wrong. Some researchers point out that INGOs have adopted the strategy of cooperating with Party and government departments so as to obtain a higher degree of legitimacy. As a result, Party and government departments are not only bogged down with trivial matters of the daily operation of projects, but would also find themselves in an unfavourable position should a project fail. Moreover, they are also faced with the problems of taxation and the protection of the lawful rights and interests of Chinese employees of INGOs.29 Second, since there is no government department in charge of overall administration and coordination of INGO projects in the country, it is impossible for the different departments to gain sufficient information on the projects implemented in different areas that would allow them to reasonably allocate resources in these areas. This leads to repetitive projects and low efficiency in the utilization of funds and technology. Meanwhile, there is no effective accountability mechanism for INGOs. 28  Bart Van Steenbergen (ed.), The Condition of Citizenship (London: SAGE, 1994), translated by Guo Taihui (Chinese edition) (Changchun: Jilin Publishing Company, 2007), p. 156. 29  Ma Guofang, Ma Jinsu, Jiang Jian, Na Canhui, Zhou Ruilin and Mei Yiquan, ‘A Study on the Development of INGOs in Yunnan Province’, in Journal of Yunnan Administration College 2 (2004).

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NGOs in China and Europe

Third, the ‘no contact, no administration and no registration’ strategy taken towards INGOs by a cautious civil administration keen to avoid trouble, has not only failed to prevent INGOs from entering China in large numbers, it has also created many problems. As a result, the more problems that arise, the less government departments are willing to deal with them. This has resulted in a vicious cycle in the supervision and administration of INGOs in China. Fourth, such a situation is also not conducive to the normal operation of INGOs in China, especially those truly committed to public interest objectives. Apart from being unable to obtain legitimate status through registration or to carry out localized fundraising, they also find themselves faced with many problems when cooperating with government officials, including difficulties in the implementation of projects resulting from the replacement of, and the conflicts between, government officials, the cultural barriers encountered by INGOs when trying to communicate with some government officials, and abuse of power by some government officials for personal gain. The project officers of some INGOs have even commented: ‘In order to ensure the smooth implementation of projects, we must learn to play along with Chinese government officials.’30 Once this strategy, considered normal by Chinese people, is also accepted by foreigners as the ‘norm’, there will be a danger of obscuring informal relationships and formal institutions. Fifth, when implementing projects in China, all INGOs have to cooperate with the Chinese government or Chinese NGOs. In a situation where government resources are not widely available to grassroots civil society organizations, an interest pattern has gradually taken shape in the cooperation between INGOs and grassroots civil society organizations in China – namely the latter are apparently dependent on the former for resources, while the former can determine the latter’s emphasis of work.31 One result of such a relationship structure is that grassroots civil society organizations, instead of supplementing government functions, carry out their activities around the goals, ideas and the funding directions of INGOs.32 Obtaining Legitimacy The above description of the geographic areas and fields of activity of INGOs reveals the extensiveness and depth of INGO involvement in Chinese affairs. However, the majority of the INGOs covered by my investigation (61.4 per cent) are not registered.33 Among the 17 registered INGOs that have provided further information on their registration status, only one is registered at the civil affairs department, with the rest (82.4 per cent) being registered at industrial and commercial administration departments. What needs to be investigated is how these organizations obtain legitimacy. 30  Source: interviews by the author of this chapter in 2006. 31 Han Junkui, ‘The Cultivation of Grassroots Organizations by Foreign NGOs: An Explanation from the Perspective Resource-Reliance Theory and Based on Case Study’, in Qiu Changtai (ed.), A Study of NonProfit Sector: Governance, Inter-Department Interaction and Social Innovation (Taipei: Taiwan Shengzhi Cultural Undertaking Co., 2007); Han Junkui, ‘Several Questions about the Purchase of Services by the Government from NGOs in the Field of Prevention of HIV/AIDS’, in AIDS and STD in China 2 (2008), pp. 162–3, 166; and Ma Qiusha, ‘Globalisation, INGOs and the Development of Civil Society Organizations in China’, in Kai Fang Shi Dai [Open Times] 2 (2006). 32 As mentioned at the beginning of the chapter, grassroots organizations and INGOs face similar problems in matters of registration and therefore both rely heavily on personal connections to carry out their activities. According to the explanation of new institutionalism, uncertainty leads to imitation. Moreover, the higher the dependency between different organizations, the greater their similarities. See Zhou Xueguang, Ten Lectures on Organizational Sociology (Beijing: Social Science Academic Press, 2003), pp. 87–9. 33  Based on the 44 questionnaire samples in which this question was answered.

International NGOs in China

35

In a nutshell, ‘legitimacy’ means ‘being recognised or accepted because of being judged or believed to be in conformity with certain rules’.34 Based on an analysis of various concepts of legitimacy, Professor Gao Bingzhong deconstructs legitimacy into a group of operational concepts – political legitimacy, administrative legitimacy, legal legitimacy and social legitimacy. ‘Political legitimacy is a substantive legitimacy involving the internal aspects of a social organization, such as its objectives, and the purposes and significance of its activity; being politically legitimate means that a social organization or its activity is in conformity with certain political norms, namely is politically correct and therefore is acceptable’; ‘socially legitimate means that an organization is recognised, even participated in by some common people or groups of people because it conforms to certain social norms. There are three bases for the social legitimacy of an organization: first, local tradition; second, local common interests; and third, commonly accepted rules or precepts. A social organization must have at least one of the three bases in order to gain a foothold in a locality’; ‘administrative legitimacy is a formal legitimacy based on the procedures and customs of a bureaucratic system. The key to administrative legitimacy is the recognition by the leader of a government department at certain level’; whereas legal legitimacy ‘is the key to integrating the above three legitimacies’ in terms of institutional design.35 The above concepts have a strong interpretative power for Chinese social organizations. How can we use these concepts to interpret increasingly active INGOs in China? Is there any logical order among the four legitimacies? What are the more deeply rooted bases for the existence of INGOs? In other words, why should legitimacy be granted to a certain INGO? Due to the lack of relevant laws and regulations,36 political legitimacy is the precondition for the existence of INGOs in China. Without it, such organizations would certainly not be able to enter into China. As we know, the government sometimes fails to perform its functions in fields such as HIV/AIDS prevention, poverty alleviation and primary education. As a result, it is willing to give INGOs in these fields a certain degree of political legitimacy. For example, the State Plan for Poverty Alleviation (1994–2000) and the Outline of Poverty Alleviation and Development in Rural China (2001–10) have recognized the role of INGOs in China. After obtaining political legitimacy, the next thing INGOs need to do is to obtain a certain degree of administrative legitimacy from the government in the areas they implement projects. However, it is not easy to obtain administrative legitimacy from higher levels of government. Apart from relying on the limited political legitimacy mentioned above, they will also need to obtain some quasi-administrative legitimacy from the government not only at the national level, but also at the local level. After all, INGOs can only truly put their resources and expertise to good use and realize their social legitimacy in grassroots communities that are in need of the support of public interest undertakings. Moreover, quasiadministrative legitimacy can also be obtained as a result of an interaction between individuals. For example, an individual government official may take up the matter on behalf of an INGO for various reasons, including for: purely charitable motives; considerations of introducing foreign investment; a desire to improve his own performance as a government official; or because of his good personal relationship with the person in charge of the INGO. Under such circumstances the biggest problem resulting from the lack of legal legitimacy is that cooperation between an INGO and the government depends on an informal relationship. However well connected an INGO is, 34  See Gao Bingzhong, ‘The Question of Legitimacy of Social Organizations’, in China Social Sciences 2 (2000). 35 Ibid. 36 Han Junkui, ‘An Analysis of Current Regulations on Foreign Related NGOs in China’, in Foreign Relations Office of Beijing Municipality and Foreign Exchange and Foreign Affairs Administration Research Base (ed.), Foreign NGOs and Beijing (2007), pp. 24–34.

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NGOs in China and Europe

the lack of political legitimacy is always the key impediment to the close cooperation between the organization and the government. It needs to be pointed out that the attainment of either political or administrative legitimacy must rely on the effective utilization of an informal relationship. In short, political legitimacy is the precondition for administrative or social legitimacy, not the other way round. Moreover, even after obtaining a certain degree of administrative legitimacy and sufficient social legitimacy, an INGO’s political legitimacy will still be repeatedly scrutinized. As far as the social legitimacy of an INGO is concerned, its realization depends on its funding, ideas, efficiency and strategy of project implementation. Generally speaking, the social legitimacy of an INGO is directly proportional to its amount of funding, the compatibility of its ideas with those of the host society, and its work efficiency. Low social legitimacy will endanger the partial administrative legitimacy those organizations have already established. On the other hand, higher social legitimacy achieved through effective work will enhance both administrative and political legitimacy. As for the question of the legal legitimacy of INGOs, it can only be resolved in accordance with administrative legitimacy, on the basis of sufficient social legitimacy and through the scrutiny of political legitimacy. In any case, because of the complicated interest patterns formed between central and local government and between various government departments, there is such a considerable degree of dislocation between the above four legitimacies it provides INGOs with sufficient room to manoeuvre. Strategy Adopted by Central and Local Governments in Response to INGO Activities in China Central and local government have taken a series of measures in response to the activities of INGOs in China to maximize their beneficial impacts and minimize their detrimental impacts. Due to their different needs, different government departments have different attitudes towards INGOs. On the basis of the minimum standards provided for in the Constitution, the Ministry of Civil Affairs has adopted the Measures for the Registration of Branch Offices and Representative Offices of Social Organizations and the Regulations on the Administration of Foundations, both of which contain provisions on foreign organizations, although so far only the latter has been slowly implemented. Currently, only a dozen or so foreign foundations have registered their branch offices or representative offices in China. Among them, about half are headquartered in the United States. These organizations are mainly in the fields of health, education, environmental protection and assistance to disabled people. They are under the administration of the Ministry of Health, Office of Foreign Affairs of the State Council, Ministry of Civil Affairs, State Development and Reform Commission, State Forestry Administration, and State Ethnic Affairs Commission respectively. The Regulations on the Administration of Foundations have, for the first time in China, clearly provided for the registration, scope of activity, appointment of personnel and other matters of foreign public interest foundations. However, Article 25 of the Regulations prohibits them from carrying out fundraising activities in China. A close look at the concrete provisions of the Regulations also reveals that foreign foundations are subjected to the dual registration system applied to Chinese foundations. For a long time many foreign individuals and enterprises have expressed the wish to establish foundations in China and many foreign foundations also hope to open representative offices in China. The Regulations provide a platform for the development of foreign foundations in China. They are conducive not only to creating a legal basis for the effective supervision of foreign foundations, but also to winning more funding for public interest undertakings in China. So far, however, very few international foundations have been successfully registered in China. This situation is caused by the fact that matters relating to the implementation of the Regulations are not determined by civil affairs departments. If a foreign foundation cannot

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be registered in China in the first place, all the other provisions in the Regulations are meaningless. In addition, there are also no detailed provisions in the Regulations on the concrete implementation of preferential tax policy and other matters. Therefore the Regulations on the Administration of Foundations, on which many foreign foundations and enterprises have placed such high hopes, can only be described as something that is ‘better than nothing’.37 Apparently, these Regulations are adopted for native Chinese foundations and have indeed promoted their development in practice. The problem is: what is the legislative purpose of the Regulations? Is it to restrict the development of foreign foundations in China or to treat foreign foundations differently because they do not enjoy the same national treatment as Chinese foundations? It can be said that the former is the purpose of the Regulations, but the latter is the problem faced by foreign NGOs in reality. If all foreign NGOs are to be treated according to these Regulations, does that mean all the unregistered foreign NGOs should be banned in accordance with the Provisional Measures for Suppression of Illegal Civic Organizations?38 If so, the dislocation between the law and the reality will lead to many problems. Moreover, Measures on the Entry and Exit of Foreigners, the Regulations on Religious Affairs, and the Detailed Rules on the Implementation of Measures on the Entry and Exit of Foreigners also have some binding force on INGOs, however, the most important characteristic of these regulations is that they are applicable only to specific matters or persons and not to organizations. On the other hand, some government departments, such as those in charge of poverty alleviation and health, are in favour of actively introducing the funding, technology and ideas of INGOs. However, the rules and regulations made by these departments apparently lack supervision and accountability mechanisms and, therefore, cannot effectively deal with the problems that may emerge in practice. Faced with the ineffectiveness of supervision and administration by the central government or the relevant departments under central government, local governments have begun to take active measures to deal with the INGO problem, which they consider a major and unavoidable problem. Apart from the mechanism of coordination by one single department, my investigations in two prefectures in western China have also revealed two other relatively typical models of mechanisms established by local governments in response to the development of INGOs. The model of Prefecture A: Coordination by the Association for Friendship with Foreign Countries (AFFC)  According to incomplete statistics, in March 2007, about 45 INGOs from more than 10 different countries were engaged in various activities in 15 out of 17 counties in Prefecture A (covered by my investigation). According to statistics of the Prefectural AFFC, between 1998 and 2006, INGOs had implemented 300 projects in the prefecture in such fields as education, health, drinking water, electricity and training, with a total fund of over 100 million RMB. However, since there was no single government department in charge of the unified administration of these projects, they were under the administration of different government departments, including those responsible for poverty alleviation, education, women’s affairs, health, environmental protection, etc. As a result, it was not possible to measure exactly how many INGOs were conducting projects across the prefecture each year, how many projects were implemented and with how much funding, how many people had benefited from these projects, or even what the results were. In order to better supervise and administer INGO projects and better utilize their funding and technology, the chairman of the Prefectural AFFC decided to take the initiative to deal with the 37  Nick Young, ‘INGO Registration FAQ’. 38  See Order No. (2000) 21 of Ministry of Civil Affairs, issued on 10 April 2000.

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situation before anything went wrong. Since the foreign affairs office was a functional department of the government, some foreign staff members of INGOs were unwilling to have anything to do with it. The chairman of the AFFC mobilized the people in his association to do the following work: collecting relevant information; coordinating the work of different government departments; helping staff members of INGOs to solve their problems in daily life, such as helping them to book tickets, providing them with translation services, etc.; and holding prefecture-wide exchange meetings each year where INGOs, grassroots non-governmental organizations and government officials participated. Thanks to the tenacious efforts made by the chairman and the staff members of the Prefectural AFFC, the prefecture government was finally able to have basic information on the INGOs implementing projects in the prefecture, which provided a basis for the supervision of decision-making relating to INGOs by the government. However, the problem was that although AFFC was an agency of the government, its actual political status was lower than those of the Communist Youth League committees, women’s federations or trade unions. Therefore it was not in an ideal position from which to coordinate the work of different government departments. It lacked both the justification and the incentive to do the work relating to INGOs, which was outside the scope of its functions and power. Moreover, there were two more issues that needed to be taken into consideration: first, since such innovative work was driven by elites, it was difficult for other local governments to duplicate at an institutional level; and second, it was questionable whether the AFFC was really suitable to be the government agency in charge of cooperation between INGOs and the government. The model of Prefecture B: Joint meeting coordinated by Foreign Investment Bureau  In recent years, an increasing number of INGOs have been engaging in activities in Prefecture B, which was also covered by my investigation. As far as the prefectural foreign affairs department was aware, there were 21 such organizations in the prefecture, mainly in the fields of poverty alleviation, environmental protection, education and tourism. Prefecture B is different from Prefecture A in that it is an autonomous prefecture of ethnic Tibetans, so INGO activity in this area is more politically sensitive. The inconsistent Party and government strategies and policies on the administration of INGOs may have had a negative impact on the stability of the local society. Therefore, some visionary government officials in the prefecture realized that supervision and administration of INGOs had become a pressing need. The prefectural government adopted the approach of supervising and administering INGOs while adhering to the open up policy. Because the Bureau of Foreign Investment had no administration authority, its work in this respect was mainly exploring strategies for administrating INGOs through the provision of services and integrating service with administration and restrictive measures. A joint meeting system was adopted whereby the leaders of the public security bureau, foreign affairs office, state security organs and other government departments held periodical joint meetings convened by the prefectural foreign investment bureau to discuss matters relating to the supervision and administration of INGOs. According to the Plan of Prefecture B for the Implementation of the System of Joint Meeting on the Administration of Foreign NGOs in Prefecture (the Plan), the objective of the joint meeting system was to give full play to the positive role of INGOs while preventing any of them from engaging in subversive activities. From the perspective of institutional design, the joint meeting system of Prefecture B is the more desirable of the two systems described above. The original intentions of the creators of this new administrative model were very good. However, because some members of the joint meeting lack sufficient sensitivity towards matters of foreign affairs, which were not closely linked to the

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main business of their own departments, they were not active in acquiring or sharing the relevant information. This has brought a new challenge to the system. Foreign Chambers of Commerce Three Different Models of Foreign Chambers of Commerce Due to differences in cultural background and legal tradition, chambers of commerce in different countries have differing characteristics. Generally speaking, there are three models of foreign chambers of commerce: the Anglo-American model; the continental European model; and a mixed model.39 The first model of chambers of commerce is represented by those in the UK and United States and was established under the Anglo-American legal system. Countries under this legal system do not have a special law on chambers of commerce, which belong to the category of legal persons in private law. A chamber of commerce can be established at the initiative of any enterprise or private person without the need for obtaining approval by a government department. The only requirement is that the initiators of a chamber of commerce send the articles of association, and information on the leading members and the headquarters address, etc. to the relevant government department for examination, verification, notarization and registration. Industrial and commercial enterprises are free to join or withdraw from a chamber of commerce. A chamber of commerce is free to decide its own functions and tasks and is totally dependent on membership fees, service fees and voluntary donations for its operation. Although there is no special law on chambers of commerce, US laws provide for policies and treatments relating to chambers of commerce. For example, Article 501 (C) of the US Tax Law lists chambers of commerce as organizations exempt from taxation. In terms of a governance model, chambers of commerce in the UK and the United States mainly implement the members’ congress system whereby the members’ congress of a chamber of commerce democratically elects a council or board of governors to be in charge of the daily operation of the organization. Some chambers of commerce are established as limited liability companies and have governance structures similar to that of companies. Chambers of commerce in Anglo-American countries perform no government functions. Their main functions are the following: policy lobbying; promoting legislation; giving impetus to the development of an industry by publishing relevant statistics; setting industrial standards; coordinating prices; participating in anti-dumping actions in international trade; and providing various advisory and training services for members. They aim to promote the free development and free competition of industrial and commercial enterprises and uphold their lawful rights and interests. The second model of chambers of commerce are those in France, Germany, Italy and other countries in continental Europe. Most of these countries have a special law regarding chambers of commerce. Here, the chambers of commerce are mostly legal persons in public law and disputes involving chambers of commerce are dealt with by administrative courts. Although these countries also adhere to the principle of freedom in establishing, joining and withdrawing from chambers of commerce, most have adopted a compulsory membership system. The establishment of a chamber of commerce in a particular field is proposed by a government ministry in charge of administration in that field and approved by the order of an administrative court. After establishment, a chamber of 39  Markus Pilgrim and Ralf Meier Bonn, National Chamber of Commerce: A Primer on the Organization and Role of Chamber of Systems (Germany: Center for International Private Enterprise, 1995), p. 7.

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commerce must be registered at an administrative court. Apart from providing services to members, promoting the development of their respective industry, balancing the interests of different regions and setting industrial standards, chambers of commerce in continental Europe also have strong administrative powers. For example, local chambers of commerce in Germany have the following administrative powers: to establish, maintain and support facilities conducive to the development of industry or individual commerce; to register and change the registration of enterprises (the enterprise registry chamber of an administrative court must take into account the opinion of chambers of commerce, and when necessary, the latter may independently take legal action against the decision of the enterprise registration chamber); to participate in enterprise bankruptcy mediation procedures and enterprise bankruptcy procedures; and even to intervene in clearance sales of enterprises.40 These chambers of commerce are often auxiliary organs to government and perform many administrative functions, which means that the fund for their operation is, to some extent, legally and financially secured. Members of a chamber of commerce, as industrial and commercial enterprises, share the cost of the chamber by paying taxes and a registration fee. With respect to governance structure, although the members’ congress and the presidium, council or board of governors elected by the members’ congress are in charge of the operation of a chamber of commerce, this operation remains under the supervision of the government, and some of its decisions are subject to approval by the government. The third model of chambers of commerce is a mix of the previous two models and is represented by those in Japan and South Korea. The chambers of commerce in many countries that have adopted this model are also legal persons in public law, except that membership is usually not compulsory – although the laws in different countries may vary. For example, Japanese law provides that ‘special industrial and commercial enterprises’ must register each year at their local chamber of commerce and industry. With regards to organization function, chambers of commerce in countries that have adopted the mixed model must undertake, in part, government functions in addition to promoting the development of their respective industries and adopting industrial norms. The highest leaders of chambers of commerce in these countries usually have public service backgrounds. A membership fee is usually compulsory. An Empirical Study on the Internal Governance under Three Models of Chamber of Commerce in China41 American Chamber of Commerce in Shanghai  The American Chamber of Commerce in Shanghai (Amcham Shanghai) was founded in 1915. It left China after the Communists came to power in 1949 and was re-established in 1987. At the time of writing, the American Chamber of Commerce has 114 representative offices in various foreign countries,42 including six in China, located in 40  See Zheng Chunrong, Small and Medium-Sized Enterprises: Pillars of the Market Economy in Germany (Shanghai: Shanghai University of Finance and Economics Press, 2003), pp. 136–43. 41 Information about chambers of commerce in the following four countries has been obtained by the author of this chapter through interviews. 42  The Headquarters of the American Chamber of Commerce is in Washington, DC. AmCham Washington is a legal entity, all the others are representative offices. The latter must pay a membership fee to the former, while the former provides services to the latter. Each year, representative offices of AmChams around the world send their staff members to AmCham in Washington to attend lectures on various subjects. They also collect the opinions of their members and pass them on to the headquarters in Washington. AmCham also established a regional office in Asia so as to enable the headquarters to keep abreast of development in the region.

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Beijing, Shanghai, Tianjin, Sichuan, Guangdong and Hong Kong respectively. Currently, AmCham Shanghai is the largest representative office of the American Chamber of Commerce in Asia. It has 3,600 members, including 1,500 corporate members. The rest are branch offices of US companies, individual Americans and special members (such as charitable organizations which are exempt from the membership fee). The total number of members of Amcham Shanghai has exceeded that of AmCham Tokyo, in Japan. Membership is voluntary, but only US companies, branch offices of US companies, and companies with a business relationship with US companies can apply for corporate membership. Currently, among Fortune 500 firms, 270 have investments in Shanghai, and more than 250 are members of AmCham Shanghai. The Chamber conducts its business mainly in the Yangtze River Delta area and has branch offices in Suzhou and Hangzhou. Its main business includes: introducing potential clients to corporate members; establishing a platform for enterprises to exchange information; organizing seminars and training courses in various fields; helping enterprises improve their management and business skills; creating information exchange platforms through the publication of the monthly journal Insight; and providing members with such services as applications for US visas, medical insurance and communications with the Chinese and US governments. Currently, AmCham Shanghai has 36 staff members. Of those, six are US citizens and the rest are Chinese. AmCham Shanghai’s office consists of six departments, namely Member Services, Business Expansion and Marketing, Government Relations, Publication and Distribution, Conference Organizing, Financial and Administration. There are also 22 committees under AmCham Shanghai for different industries, such as IPR, In-House Council, Human Resources, Manufacturers’ Business, Hi-Tech Industry and Real-Estate.43 A Board of Governors is in charge of the operation of AmCham Shanghai. The Board is elected by members of the Chamber and consists of 13 governors. Election of the Board is held in November each year. The chairperson of the Board must be a person in the business circle. The membership fee is used to cover the expenses of the Board. The annual budget of the Chamber is determined by the Board. Because AmCham Shanghai is not yet registered, the elected governors are mostly representatives of big companies with relatively great influence so as to better promote the collective interest of the members. To ensure fairness, AmCham Shanghai established a third party committee to be responsible for organizing the election of the Board. The Committee normally consists of eleven people, but sometimes the exact number is decided by the CEO. The members of the Committee can be the former chairpersons of AmCham, retired managers of big companies and some young managers of small companies. Because small companies have little influence, their managers have no chance of becoming chairpersons of the Election Committee. However, if interested, they can become members of the Committee. The main tasks of AmCham Shanghai, in this respect, are collecting materials and making rules on matters such as the term of office and qualifications for governors, and deciding the number of candidates for the chairperson and other governors. After the ballot ticket is designed, the election work is turned over to a ballot collection and analysis agency. When the election result is in, the Chamber sets up an election webpage on which the outgoing chairperson gives a brief introduction to the overall condition of the organization while the newly elected chairperson lays out what he is going to do during his term of office. In order to avoid the negative impact of the yearly election on the continuity of the work or the policy of the organization, the transfer of work between the outgoing and newly elected chairpersons takes place in April instead of at the beginning of the year. 43  See the website of American Chamber of Commerce in Shanghai: www.amcham-shanghai.org/ AmchamPortal (last visited August 2009).

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The financial reports of AmCham Shanghai are available on its website, but only to its members. An individual member who has special concerns about the finance of AmCham Shanghai may directly approach the CEO to check financial records, but very few members actually do so. All 13 members of the Board of Governors are replaced each year through election so the possibility of any of them engaging in malpractice is very small. The finances of AmCham Shanghai are audited each year and matters relating to internal auditing are decided by the Board. The Board exercises very strict supervision over the organization by examining and verifying the budget and auditing reports. It also invites PricewaterhouseCoopers to participate in the audit. AmCham Shanghai also engages in charitable activities. For example: it funded the Wildlife Protection Association and other organizations in 2006; it held a charitable ball in April 2007, at which corporate members auctioned their products and used the proceeds to establish a charitable fund; and in October of the same year it organized a charitable golf event after which all ticket proceeds were used to support charitable projects. The Chamber has corporate social responsibility (CSR) staff specialists. Each year they send notices to about 30 local NGOs and invite them to bid for the Chamber’s charitable funds by submitting their project proposals. After all the bids are received the Chamber selects from among members of the CSR Committee – consisting of managers of corporate members and other people interested in public interest undertakings – to form an appraisal group to assess these proposals. Moreover, AmCham Shanghai holds a charitable auction each year. It sets a theme for the auction and invites all those interested in the theme to donate things to the chairperson for auction. In this way, the Chamber will be able to give all participants sufficient choices and introduce its corporate members to various charitable NGOs. Corporate members can improve the images of their brands by supporting projects closely linked to their own field of business. They can redeem their image in case anything goes wrong with their products. In advocating or implementing CSR, AmCham does not directly intervene in the concrete operations of its corporate members, but only encourages them to improve their own image by sponsoring such social projects. There are many other American trade associations in China, including the China–US Trade Committee, registered in Beijing. They mainly operate in the fields of trade in agricultural products, manufacture, semi-conductors, medical instruments and other industries. Even if they are not allowed to register in China, these organizations still exist and operate in different forms because they consider the Chinese market to be of great importance. Their operational modes vary: some become consulting companies by cooperating with Chinese partners; there are more than 60 representative offices of different states’ governments from the United States and even more trade associations; and some consultation companies have many trade associations under them. German Chamber of Commerce in China  The German Chamber of Commerce is a part of a global network of organizations established by the German government to promote foreign commerce. It has offices throughout the world, including Beijing, Shanghai, Guangzhou and Hong Kong, which provide extensive and continuously expanding services. The German Chamber of Commerce in China is a network consisting of representative offices in Beijing, Shanghai, Guangzhou, Qingdao, Hangzhou and Ningbo. They represent the general economic interest of German industry and commerce in China and keep close relationships with various political, commercial and other organizations in Germany. To my knowledge, the German Chamber of Commerce in China has been rapidly developing in recent years. In December 2006, it had 1,300 members in China, 900 of which were in Shanghai and its surrounding areas. The growth in membership in this area reflects the trend of concentration of foreign capital and activities in

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China, as well as the importance of the Yangtze River Delta area to German companies. In 2005 the German Chamber of Commerce in Shanghai became one of the largest German chambers of commerce in the world. Currently, the office of the German Chamber of Commerce in Shanghai consists of one chairperson, one vice-chairperson, one executive director, one financial officer, and nine members of the Board of Governors. The German Chamber of Commerce in Beijing has 12 board members, including the chairperson, vice-chairperson, financial officer and executive director of the German Chamber of Commerce in Shanghai. German chambers of commerce provide many services. For example, the office in Shanghai offers the following services: organizing regular working meetings, roundtable meetings, commercial meetings and special activities; publicity and advertisement in the media; providing member lists and company lists; offering speedy visa application services; charitable projects; interactive networks; and community projects (schools for children of migrant workers), etc. Korean Chamber of Commerce in China  Promoted by the Korean Association of Industry and Commerce, the Korean Chamber of Commerce in China (Korcham-China) was established in 1993 with a view to expediting the exchange of economic information among Korean enterprises and protecting their interests in China. It was registered at the Chinese Ministry of Commerce and is under the administration of the China Committee for the Promotion of International Trade. Korcham-China is the only Korean chamber of commerce established outside Korean territory. The Korcham Shanghai was originally an informal exchange meeting between several major Korean enterprises in Shanghai and was renamed the Korean Chamber of Commerce in Shanghai only in 2003. It is estimated that currently there are more than 25,000 Korean enterprises operating in China, of which only one-fifth are members of Korcham-China. Only 180 Korean enterprises in Beijing and about 330 (10 per cent of the total) in Shanghai are Korcham-China members. Korean enterprises are concentrated in the Shandong Province, Yangtze River Delta area and northeast China. Currently there are more than 40 Korean chambers of commerce throughout China. Korcham-China’s Beijing office provides the following services: sending a daily e-mail message entitled ‘China Economic Information’ to all members; sending to all corporate members a monthly ‘China Economic Briefing’ containing information about the latest laws, regulations, policies and news relating to investment, taxation, labour, finance, etc. in China; providing information via its website; operating an Enterprise Business Negotiation Centre that provides free negotiation services relating to investment, trade, taxation, finance, labour, intellectual property, etc.; providing a fee-based company establishment procedure; upholding the rights and interests of Korean enterprises; holding exchange meetings with the Korean Embassy in China to solicit the opinions of, and collect information on, Korean enterprises and exploring solutions to their problems; facilitating the exchange of information between corporate members; holding explanation and exchange meetings on taxation, labour service and customs; promoting exchange between Korean enterprises on the one hand, and Chinese and other foreign enterprises on the other, by forming a network with Chinese governments at the central and local levels, economic organizations at various levels, and other foreign chambers of commerce in China; and applying for Korean visas on behalf of employees of corporate members who are going to Korea for short-term training or business trips. According to my interviews, Korcham-Shanghai provides similar services. Except for Korcham-China in Beijing, the ‘Korean Society’ follows the titles of Korean chambers in all other areas. Because of traditional Korean family values, many Korean businessmen in China have brought their families with them. Therefore Korean chambers of commerce also provide services such as education for the children of Korean businessmen and entertainment for their family members. In the opinion of some Korean government officials,

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many Koreans are not familiar with the operation and purposes of Korean chambers of commerce and therefore find Korean societies more appealing. As a result, in most areas Korean chambers of commerce and Korean society are one agency with two titles and the chairperson of a Korean chamber of commerce in an area often holds the concurrent position of the president of Korean schools in the area. Currently the Korcham-China Beijing office has eight staff members, six of whom are ethnic Koreans of Chinese nationality. Unlike AmCham-Shanghai, Korcham-Beijing is not divided into several departments and it is not affiliated to the Korean Chamber of Commerce and Industry, although there are business communication and cooperation between the two. In December each year, the Korean chambers of commerce in China send representatives to Beijing to elect a Board of Governors responsible for the operation of the Korean Chamber of Commerce in China. The Board consists of one chairperson, several vice-chairpersons, one supervisor and several advisors. The term of office of the chairperson is one year, but he can be re-elected. Under the office of vice-chairperson there is an executive director responsible for the daily operation of the Chamber. In December 2006, the Korean Chamber of Commerce (Korean Society) of Eastern China Region (Shanghai Municipality, Jiangsu Province, Zhejiang Province and Anhui Province) was established with a view to further strengthening the exchange of information among Korean chambers of commerce in the region. The Articles of Association of the Chamber clearly state that the purpose of the Chamber is to contribute to the development of Korean chambers of commerce/ Korean societies in China; and that it is a federation of Korean chambers of commerce/Korean societies in the Eastern China Region (one municipality directly under the central government and three provinces) with the objectives of enhancing the good relationship and synergy of these organizations, protecting the rights and interests of its members, promoting the integration and prosperity of Korean societies and contributing to the mutual benefit between Korean and Chinese enterprises as well as regional development. The chairperson of the federation is elected each year and can be re-elected. The office of the Eastern China Federation is located in the office of the chamber of commerce chairperson, which is elected by the president of the Federation. According to China’s Interim Measures for the Registration of Foreign Chambers of Commerce, only one chamber of commerce can be registered for each country. Korcham-Beijing was registered by taking advantage of its geographical location. The fact that Korchams in other regions are not affiliated to Korcham-Beijing does not mean there is no business relationship between them. As mentioned above, at the end of each year, Korchams in other parts of the country send representatives to Beijing to elect the chairperson of Korcham-Beijing. As for the membership fee, the vice-chairman of Korcham-Beijing told me that, in principle, Korchams in other regions should pay this fee to Korcham-Beijing. However, if they do not pay there are no compulsory measures to force them to do so. The executive director of Korcham-Shanghai told me that they pay a membership fee to Korcham-Beijing and in return Korcham-Beijing gives them support in concrete business activities. Apart from the formally registered Korcham-Beijing and unregistered ones like Korcham-Shanghai, there is another way in which the Korean Chamber of Commerce can obtain legitimate status, namely the so-called Qingdao model. Under this model, a Branch Association of Korea Invested Enterprises was set up under the Association of Foreign Invested Enterprises of Qingdao Municipality. The former was established on 4 January 1992, and originally named the Association of Korean Invested Enterprises in Shandong Province, China. It was established at the initiative of some Korean enterprises investing in Qingdao (with 26 initial corporate members) and was recognized by the Municipal Government of Qingdao in 1998. Currently it has a total of 656 corporate members belonging to 11 branch associations. Their main business is manufacturing, but also includes service and transportation. Korcham Qingdao and the Branch Association of

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Korean Invested Enterprises are one organization with two titles. Korean enterprises in Qingdao are members of both the Association of Foreign Invested Enterprises of Qingdao Municipality and the Korean Chamber of Commerce. Part of the membership fee received by Korcham Qingdao is handed over to the Association of Foreign Invested Enterprises of Qingdao Municipality so as to gain the recognition and approval of the relevant government departments. Apparently this is a strategy adopted by the local government of Qingdao Municipality to attract foreign investment. Financial auditing of Korchams is mainly carried out internally. Korcham-Shanghai also invites its qualified corporate members to audit its finances. The results are usually made public at the members’ congress held for the election of the chairperson at the end of each year. Japanese Commercial and Industrial Club in Shanghai  The Japanese Commercial and Industrial Club in Shanghai (the Club), with over 1,300 corporate members, is the biggest Japanese commercial and industrial club in the world. Currently it has 10 full-time staff members. Japanese commercial and industrial associations have been established in Shanghai, Hangzhou, Wuxi, Chengdu, Kunming, Shenzhen, Xiamen and many other cities in China, but there is no relationship of affiliation between any of them. The Club began its activities in Shanghai in 1982, but it was only recognized by the government of Shanghai Municipality in 2004. It is said the organization was initially set up by some homesick Japanese in Shanghai who wanted somewhere to get together with their fellow countrymen in the city. By September 2007 it had 1,905 corporate members. Including individual members (a Japanese employee working in a non-Japanese enterprise can also join the Club, on condition that he has a residence permit and pays an annual membership fee of 700 RMB), the total membership of the organization has now exceeded 2,000. Currently there are about 6,300 Japanese enterprises investing in Shanghai. Among them, 1,850 are members (corporate members) of the Club – all are big companies. Currently, the Club consists of 12 industrial associations, each representing a particular industry, such as metallurgy, electronics, electric machinery, resources, chemicals, finance, insurance, social undertakings and services. In addition, the Club has also set up 10 regional liaison associations in which enterprises of different industries can meet and exchange information. For example, members of the Liaison Association of Songjiang Area mainly exchange business information in that particular area. A legal person can be a member of both a regional liaison association and industrial association. There are also 10 committees under the Club, such as the Cultural Committee, the Social Contribution Committee and the Financial Committee. The Club displays an advertisement for the position of executive director on the website of the Japanese Consulate in Shanghai and in the newspaper Nihon Keizai Shimbun. Japanese in both China and abroad can apply for the job. After an applicant has successfully passed an interview by the chairperson or other members of the Board of Governors, he will be appointed for a term of three years and can be re-appointed by the Board after his term of office has expired. The chairperson of the Board is elected from among 12 selected companies, mainly in the fields of finance, insurance and business flow, and his term of office is one year. Governors and deputy governors come from the 12 industrial associations. Each association has one chairperson who can become a governor and one deputy chairperson who can become deputy governor. They are elected by their respective associations through free discussion. The Club is currently the only foreign chamber of commerce registered in Shanghai. The chairperson of the organization told me: At that time we had a large number of members. However, according to the Chinese regulations, only one chamber of commerce could be registered for each country. So we had to find other

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legal basis for recognition by the Chinese government. We registered as a foreign enterprise in accordance with the Chinese law on foreign invested enterprises. As a result, we must pay tax like other enterprises. This is not compatible with our status as an NPO and is a result of imperfect law in China. Now we are under the administration of the Chinese Ministry of Foreign Trade and Economic Cooperation. But we must also accept the supervision of the Bureau of Social Organizations Administration of the Ministry of Civil Affairs, and the Department of Entrance and Exit Administration of the Ministry of Public Security and have to report to all of them on our activities each year.44

Apart from establishing an information exchange platform and organizing a get-together meeting at the end of the year, the Club also sponsors lectures to provide learning opportunities to its members. For example, it has sponsored lectures on the newly promulgated labour law, on salary standards for employees in different industries and on how to dispose of surplus fuel in factory warehouses. There are usually several lectures each month held in rented hotels or conference rooms. Each lecture is organized in cooperation with a co-sponsor that pays related expenses. Many enterprises want to gain publicity by co-sponsoring such activities. The Club only has to choose the reliable ones from among them. Moreover, the Club also organizes other charitable activities. For example, it donated 500,000 RMB to the Shanghai Paralympics in 2008. A Chinese company conducts the financial auditing at the end of each year. From the individual cases above we can see that only the Club is legally registered. All the others have not yet obtained legal status. This situation has posed a great challenge to them in their normal business activities. With respect to internal governance, most foreign chambers of commerce have good governance structures and strong work capabilities, pursue corporate social responsibility, serve their members wholeheartedly and are quick in responding to new developments in the market. In these respects, Chinese chambers of commerce can learn a lot from their foreign counterparts. Difficulties and Challenges Based on information obtained through interviews, the problems faced by foreign chambers of commerce in China can be summarized as the following. First, registration is the biggest impediment faced by the numerous foreign chambers of commerce that have not obtained legal status in China. Many of them encounter great difficulties setting up offices, carrying out exchange activities, signing contracts, or even establishing an official seal. Moreover, this situation has also led members to question the chambers’ role, difficulties in contacting high-ranking Chinese government officials and dissatisfaction back at headquarters with their work. As one of the interviewees told me: We can make much greater impact through publicity in new media if we can be registered in China. So not being able to register is causing a lot of harm to us: our members are dissatisfied with us; despite all the contributions we have made, we are still unable to obtain a proper status; volunteers who have done a lot of work for us can not get any credit for it; the headquarters in the US also have doubts about the achievements we have made in China and we encounter many problems when we try to contact high ranking Chinese government officials. Many times we have invited the Shanghai Mayor to attend our activities, but he could not attend any of them because we are an 44 An interview by the author of this chapter in 2007.

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‘illegal organization’. We hope that we can play the role of a linkage between the Chinese and US markets, but under the current circumstances it is very difficult for us to play that role.45

Second, the principle that only one chamber of commerce is allowed for each foreign country has led to many difficulties concerning cooperation between foreign chambers of commerce in different regions of China. One programmes officer of AmCham Shanghai Office told me: ‘Although only Beijing and Hong Kong offices of the American Chamber of Commerce are legal in China, the Shanghai office has existed for many years and is the biggest chamber of commerce in Asia in terms of membership. The current practice of the Chinese Government of only recognizing the Beijing office is not conducive to the cooperation between different regional offices of the American Chamber of Commerce in China.’ Other regional offices of American Chamber of Commerce also complained that: ‘We are all independent and equal regional offices, just as the one in Beijing. So why can’t we be officially called the American Chamber of Commerce? This policy of the Chinese government has brought many difficulties to the cooperation between different regional offices of the American Chamber of Commerce.’ The Japanese Chamber of Commerce in Beijing and the Japanese Industrial and Commercial Club in Shanghai are both registered and each of them can engage in independent activities; although there are business relations between the Beijing and Shanghai offices of the South Korean Chamber of Commerce, there is no clear division of power and responsibility between the two organizations. The officers of some foreign chambers of commerce told me that: We are faced with a contradiction: on the one hand, China is currently in a time of social transition and it is very difficult for it to have a stable policy; on the other hand, foreign enterprises in China need a stable expectation on their investment. The cause of this contradiction is the vagueness of many laws which were made at a time when China was still under the planned economy. However, chambers of commerce need stability. Whenever there is a change in policy they have to spend a lot of time understanding and adjusting to such change. Moreover, currently policies change very quickly in China. Many foreign enterprises do not understand why there are different policies and measures in Beijing and Shanghai on a same matter.46

Under the current legal environment the cooperation between foreign chambers of commerce in different regions of China is difficult. The third problem is taxation. The Chinese tax authorities require registered foreign chambers of commerce to pay taxes for their activities and printed materials. The leaders of some foreign chambers of commerce find this requirement difficult to understand. One interviewee told me that: This shows a total lack of knowledge on the part of the Chinese authorities about the operation of chambers of commerce. The income from our activities and the proceeds from the sale of printed materials are necessary to cover the relevant expenses. The taxation made it very difficult for us to carry out any activity or publish any material. The purpose of this tax policy is to send a message to foreign chambers of commerce that they should have as few activities and publish as few materials as possible. But in practice it has only forced foreign chambers of commerce to raise the price of

45 An interview by the author of this chapter in 2007. 46 An interview by the author of this chapter in 2007.

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their activities and publications. As a result, it has impeded the exchange of information within the business circle the chambers of commerce are supposed to facilitate.47

Fourth, due to the difficulty in registration and various other reasons, many foreign chambers of commerce are registered as consultation companies. These organizations have strong motives for profit. This situation has disrupted the non-profit orientation of chambers of commerce and trade associations and caused administration difficulties for the Chinese government. An example is the large numbers of representative offices of state governments of the United States in China, of which currently there are two kinds: those that are part of the government system; and those that cooperate with state governments. It is the latter kind that is problematic. A staff member of a foreign chamber of commerce told me: The latter kind of representative office depends on the deal between the state government and the representative office in China. For example, when the high-ranking officials of a state government in the US visit China, they need some place to stay. That is the duty of its representative office in China. Also, when a company from a state visits China, the representative office of that state has the duty to provide it with one or two hours’ free consultation. If the representative office is a for-profit organization, it should send its financial records to the state government each year for examination because there is a relationship of cooperation between the two. If the profit is very large, then the state government has the right to take part of it. The concrete arrangement depends on the relevant state laws. Some state governments do not care about the particular arrangement. But the problem is: the Chinese government may not necessarily accept such an arrangement even if it is agreed upon by the state government, because China is the one that suffers the greatest loss from such arrangements. Such companies coming to China in the name of representative office of state government are not compatible with the Chinese system. Their bank accounts are not in China. They occupy the Chinese market without bringing any benefit to China. Currently, Chinese government officials have not yet realized this problem. Representative offices of state governments are different from consulates. There are no concrete criteria for determining whether they are for-profit or non-profit organizations because, from the fund-raising perspective, all these representative offices need the support of various companies. The situation varies in different states. In many cases a non-profit committee may have many forprofit units under it. Some of them even make quite a large profit. The fact they are purely for-profit entities means there is no competition for membership. For example, a small company is willing to join the representative office of a state government because it expects the service of the office to bring it substantial profits. If a representative office is a for-profit organization, its membership must be open and should not be monopolized; if it wants to make a profit then it should not come to China as a non-profit organization. Instead, it must come to China as a consultancy firm. The problem is whether there is a conflict between such practice and the relevant Chinese regulations? Can a company adopt the membership system? These representative offices are all registered as consultancy firms and some of them have registered more than one company under the same address. They have agreements on fee rates for their services with their home state governments. For example, if I come to China in the name of the representative office of a state government all the related business is mine. In return I will provide a few hours of free consultation service to the companies coming to China from that state. Such is the relationship of cooperation between the 47 An interview by the author of this chapter in 2007.

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office and the state government. If such representative offices are registered as consultancy firms they are not incompatible with Chinese laws. They are taking advantage of a loophole in Chinese law.48

As for the Chinese government officials, they are faced with a different set of problems. First, the quasi-legitimate operation of a large number of foreign chambers of commerce has become a fact in China. If other foreign chambers of commerce follow their example it would be very difficult for the Chinese government to supervise and administer such organizations. Once the Chinese government adopts a law that conflicts with their current mode of operation, these chambers may take the extreme step of non-registration, thus throwing the Chinese government into a dilemma. All these foreign chambers of commerce are concerned with legislation in China and are continuously exerting influence over it. Second, the relevant government departments do not have a clear understanding of the problem and have adopted a passive approach of non-intervention and no registration, thereby allowing the problem to further deteriorate. It is imperative that the government has a thorough understanding of these foreign organizations so those lawful and conducive to economic development in China can be allowed to register and the unlawful ones restricted. The situation whereby foreigners treat the Chinese law as a trifling concern is not conducive to the building of the rule of law in China. Third, there are no criteria to determine whether a foreign chamber of commerce is a nonprofit or for-profit organization. The current Regulations on the Registration and Administration of Social Organizations were adopted at a time when most social organizations were nothing but an extension of government. As such they were always on the side of the government so there was no need for the government to worry about them. However, today there are many NGOs and private foundations, especially foreign organizations, which all have their own special interest. Moreover, the criteria for determining non-profit organizations across different fields, such as education and health, are another issue. Therefore the supervision and administration of these organizations becomes a difficult problem. Fourth, tax authorities and other government departments need constant communication with the different foreign chambers of commerce. This case-by-case approach is exhausting. Fifth, the Chinese government currently implements a system whereby all social organizations must submit, for the record, the basic information about themselves to relevant government agencies. This system gives the government basic knowledge about the activities of foreign chambers of commerce in the country. It can also facilitate foreign chambers of commerce opening bank accounts in China, a vital tool for carrying out activities in the country. The biggest problem with this system is that if anything goes wrong operationally with these organizations there is no law, regulation or institution that can be used to deal with or censure them. The current situation in China, where only one chamber of commerce can register for each country and the local chambers of commerce are second level organizations with no legal status, is not compatible with the tradition of chambers of commerce in many other countries. Although the method currently adopted by the Bureau of Civil Affairs of Shanghai Municipality, which allows some foreign chambers of commerce to register as NGOs, is safe and reliable, this method cannot be applied in other parts of the country and is inconvenient at the operational level. For example, the Japanese Commercial and Industrial Club in Shanghai is registered as a non-governmental, non-enterprise organization. The initiators of the Club prepared two sets of documents: one was the application materials for the registration of the Club as a non-governmental, non-enterprise organization, the other one 48 An interview carried out by the author of this chapter in 2007.

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was the Articles of Association of the Club as a social organization. It also applies for preferential treatment when paying taxes. Some chambers of commerce from other countries, such as AmCham Shanghai, do not accept this method, and have stated: We insist that chambers of commerce be registered as social organizations because only in this way can our income from membership fees be exempted from taxation. But if we are registered as non-governmental, non-enterprise organization we have to pay taxes. After all, the membership fee must be used to cover all the expenses of our offices. Moreover, because of the imperfection of the Chinese tax laws relating to NGOs, even if we register as non-governmental non-enterprise organizations, we still have to deal with the Ministry of Finance. The second problem is organizational structure: how do we define the Board of Governors? What are the restrictions on the scope of our business? The members of our chamber are governors in their own organizations. Moreover, if we are registered as non-governmental, non-enterprise organization, we cannot call ourselves the American Chamber of Commerce, which is regarded as a social organization. According to Chinese regulations on non-governmental, non-enterprise organization, we can only call ourselves centre or club. It is difficult for us to find an expedient way to operate in China. To American people, the American Chamber of Commerce is a long-standing brand name. It would be absurd that we cannot use that name even if we are registered in China.49

The Chinese government should deal with and resolve the above problems in a timely manner. Conclusions At a time of a global association revolution, the attention of the Chinese government is mainly focused on the rise of domestic NGOs. Far less attention is paid to INGOs that transcend nation states and are exerting a very important impact on developing countries, especially those with different ideologies to Western developed countries. India, Vietnam, Russia and many other countries have all adopted laws and regulations or established special agencies to deal with this issue. For example, Vietnam promulgated the Regulations on the Operation of Foreign NGOs in Vietnam in 1996 and established a Committee for Foreign NGO Affairs in 2001. In 2005, the Committee promulgated the Guidelines on the Implementation of the Regulations on the Operation of Foreign NGOs in Vietnam. The Committee is responsible for the issuance, extension, revision and even cancellation of licences for foreign NGOs. The standing body of the Committee is the Vietnam Union of Friendship Organizations. The People’s Aid Coordinating Committee established under the Union is in charge of administering the concrete affairs relating to foreign NGOs under the leadership of the Committee and the Union. INGOs in China are at a special stage of development against the background of globalization. Complicated legitimacy problems at different levels greatly diminish the positive impact and amplify the negative impact of such organizations. In light of this the author of this chapter puts forward the following two suggestions. First, to encourage INGOs that enjoy a high degree of public trust and have genuine public interest objectives to engage in public interest and charitable activities in China. Compared with domestic NGOs, INGOs have many advantages in terms of mobilization of resources, internal governance, organizational operation and degree of specialization. By providing active guidance, adopting unified norms and strengthening supervision, China can give full play to the role of 49 An interview carried out by the author of this chapter in 2007.

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these organizations in charitable assistance, public interest service, social management and social coordination, thereby making them a positive force in the construction of a harmonious society in China. Against the background of globalization, it has become a consensus that INGOs are playing a positive role in all countries, whether in Vietnam or Russia, or in countries with either restricting or lenient laws towards such organizations. Second, China should adopt the necessary laws and policies and establish specialized agencies with the power and function to service and supervise INGOs in the country. INGOs in China are large in number, widely distributed, have complicated backgrounds and have formed a certain relationship with Party and government organs at various levels in the process of implementing assistance projects over the years. The current NGO supervision and administration system is totally incapable of supervising, let alone servicing, INGOs in the country. Therefore we need a set of unified laws and regulations to tell INGOs what they can do, what they cannot do, how to set up their representative offices, how to make periodical reports and which government departments are responsible for administering and supervising them. We also need to provide them with services in such matters as renting offices, employing local staff and preferential treatment in taxation, thus integrating administration with service. The civil affairs departments should take the lead to establish specialized supervisory agencies under governments at various levels to coordinate the work, share information, and form a forceful and unified supervision and administration mechanism. Because of the lack of relevant laws and regulations and necessary supervision mechanisms, currently some foreign organizations are engaged in such illegal activities as underground missionary work, intelligence and even political subversion, all in the name of promoting the ‘public interest’. Therefore it is necessary for China to learn from the Vietnam experience with regard to the time limit of INGO activity and the determination of the qualification of public interest organizations, so as to prevent them entering China in the first place through a registration procedure. Meanwhile, by notifying INGOs beforehand about activities they are prohibited from doing, we can effectively prevent some of the risks to national security. The basic idea behind the current Chinese mechanism for the administration of INGOs is the same as that for the administration of domestic NGOs: to focus on prevention or, in other words, to allow only the ‘good’ INGOs to enter into China by raising the threshold. However, the lack of necessary sanctions has rendered this threshold ineffective. To sum up, the existing foreign NGO administration and supervision mechanism in China is still mainly the product of the planned economy. It seems strict but is actually ossified. In light of the current situation of foreign chambers of commerce in China, the special nature of chambers of commerce, and the interim provisions promulgated as early as in 1989, a separate legislation is feasible. The following are some suggestions on the principles and concrete proposals in this respect. First, the government should pay special attention to the development of foreign chambers of commerce in China. Currently it is paying a lot of attention to the activities of foreign public interest organizations in China but has adopted an approach of evading major issues by instead taking up minor ones towards foreign mutually beneficial or economic organizations. This situation is not conducive to social stability in the long run. Second, we cannot expect one law or regulation to solve all the problems relating to foreign organizations but should try to tackle the main problems or the main aspects of the problem. I suggest the government put the emphasis of its work not on foreign public interest organizations but on foreign chambers of commerce, and especially on comprehensive chambers of commerce that, compared to specialized ones, represent a broader scope of industries and are more powerful, so able to exert even greater pressure on the economic policy of a country.

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Third, the purpose of the principle of only one chamber of commerce being able to be registered for one country is to strengthen supervision over such organizations. However, over the years practice has proved this system incompatible with the actual situation. This is because the system of direct administration by the central government of foreign chambers of commerce is not feasible because many of these organizations operate at the local level. Therefore administration by local governments is the better system. Moreover, most foreign chambers of commerce used to operate in economically developed areas. This made the administration of foreign related affairs and implementation of the relevant policies relatively easier in these areas than in rural areas of the middle and western parts of the country, where many foreign public interest organizations are now operating. Fourth, in administrating foreign chambers of commerce, the government should combine the registration system with the system whereby foreign chambers of commerce submit the basic information about themselves to the relevant government departments for the record. The areas with a concentration of foreign chambers of commerce are mainly the eastern, southern, northern, northeastern and southwestern parts of China. Those operating directly under the central government in only one province or municipality can be administered by the local government, whereas those that engage in activities in two or more provinces can be administered by the Ministry of Civil Affairs. Regional characteristics should be taken into account when making the relevant laws. For example, there are five or six AmChams in China. They should all be allowed to register and a system of localized administration should be implemented. Fifth, a system of reporting on activities and financial auditing should be implemented with regard to foreign chambers of commerce. Finally, when making laws and policies on foreign chambers of commerce, the government should take into consideration relevant laws and policies in foreign countries so as to give the citizens and companies of a foreign country treatment equivalent to those received by Chinese citizens and companies in that country. At a time of global citizenship and freedom of association there exists a certain tension between INGOs and the political stability in a country in transition. A lack of confidence leads to an absence of government regulation, whereas overconfidence leads to over-regulation by the government. China has already revised the Regulations on the Administration of Foundations so as to bring foreign foundations into an effective regulatory system. Can the system of classified supervision and administration established by the Regulations be applied to the large number of INGOs in China? If so, can such as system cover the broad spectrum of INGOs? The solution to these problems requires a lot of political wisdom on the part of the Chinese government.

Chapter 3

The Development and Institutional Environment of Non-Governmental Think Tanks in China Jia Xijin

Introduction On 7 November 2006, the first ‘Think Tank Forum’ of China, sponsored by the Pacific Society of China (PSC), Chinese Academy of Social Sciences (CASS) and Shanghai Institutes for International Studies (SIIS), was held in Beijing. The forum ranked the ‘top 10 think tanks of China’: CASS; Development Research Center of the State Council (DRCSC); Chinese Academy of Sciences (CAS); Chinese Academy of Military Sciences (CAMS); China Institute of International Studies (CIIS); China Institutes of Contemporary International Relations (CICIR); China National Committee for Pacific Economic Cooperation (CNCPEC); China Association for Science and Technology (CAST); China Center for International and Strategic Studies (CCISS); and SIIS. These think tanks, which were mostly founded after the reform and opening up of China, have played crucial roles in decision-making consultations with the Central Committee of the Communist Party of China (CPC), the State Council, government departments and the army. However, it is still up for discussion whether they are truly think tanks, and what kind of think tanks China needs for its development. The Traditions and Features of Chinese and Foreign Think Tanks The Chinese translation of ‘think tank’ is ‘Si Xiang Ku’ (tank of thoughts) or ‘Zhi Ku’ (tank of wisdom). A think tank, which literally means a tank to collect intelligent persons or thoughts, is a specialized institute formed by scholars or thinkers aiming to participate in public policies. It is a product of modern society and symbolizes the professional and scientific trend in the development of political decision-making. A glance at history shows that advisors, assistants, hangers-on, military counsellors and other persons, who proposed plans and strategies to monarchs, officials, aristocrats, generals or other elites, have existed for a long time in China and abroad. They had two common characteristics: first, they lived in society as individual wise men or pundits and did not form independent organizations; second, when they were incorporated into the institution of political decision-making, they attached themselves with the patrons, schemed for them, and served their interests. The Petition on Taking the Field (Chu Shi Biao), a strategic plan written by Zhuge Liang, a great strategist in the ‘Three Kingdom’ period of China, clearly reflected the mentality and role of these kinds of wise men. In modern society, advisors’ teams that are attached to governments are partially the legacy of that tradition. In traditional China, the advisors were selected and organized by emperors or high-level officials; there were no independent agencies organized by the advisors themselves to do such jobs.

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Think tanks originated from a different tradition. In an exploration of the origin of think tanks, an epochal event can be identified: after the American Civil War ended in 1865, sponsored by the Association for the Promotion of Social Science of the US, around 100 intellectuals from Massachusetts gathered together and discussed how to rebuild the economic and social order from the ruins of the war. The participants, realizing the benefits of sharing knowledge, went on to found institutes specialized in various fields, such as history and economics. The founding of the Institute for Government Research (now the Brookings Institution), which was the first independent organization specializing in public policy studies, marked the birth of the modern think tank. Following the Second World War and especially since the 1970s and 1980s, think tanks, as a type of independent institute and even as an industry, have boomed. Nowadays there are more than 1,000 think tanks in the United States. More than 100 think tanks are located in Washington District. With strong expert teams and outstanding specialized advantages, think tanks not only offer significant policy ideas for the long-term strategy of the United States, but also reserve and provide talent for political circles. Prosperous think tanks have become talismans for the United States to promote effectiveness in political decision-making. Why do think tanks have such an effect? The answer is that as independent specialized research institutes for public policies they have created a specialized mechanism – a market of thoughts where the best talents from all subjects concentrate. Think tanks may be analysed through four characteristics. The first characteristic is organization. A think tank is a specialized agency aimed at policy studies and organization is a prerequisite of a think tank. The second is independence. A think tank must primarily be an independent organization, as distinct from a policy consultant, governmental counsellor or an advisor. Independence should be its core attribute. The vigour and special social functions of think tanks are based on their independence. More specifically, as they are independent from governments, political parties, interest groups and even universities, their studies can transcend the interests of departments or small groups and be neutral and far-sighted. This independence can be reflected in the nature, services and opinions of the organization. Independence in organization is a must for think tanks. Since a think tank is an independent research institute, the research sections in governments, or the schools and departments of universities, should be excluded from being categorized as think tanks. Independent services are mainly signified by independence in funding. While think tanks can accept funding from governments – sometimes even the lion’s share of their funding – the money is accepted by entering into project contracts which are similar to those between the government and businesses. The process should be that the government and think tank choose each other, rather than the government employing the think tank as though it were a governmental research section. Independence of opinion is also vital for the existence of think tanks. Although some think tanks, affected by funding sources and the positions of the core staff, may show partisan attributes or value dispositions, their bottom line remains that their opinions must be independent and based on facts. This is to avoid the think tank degrading itself to becoming a tool of a decision-maker or political clique. If the studies of a think tank violate the principle of fairness or even offer false justification to pander to political propaganda, its reputation and credibility are very hard to uphold. The third characteristic of think tanks is that they are non-profit organizations. The profitseeking private consultancies are usually not seen as think tanks, because the research of think tanks should be independent. Today, where the concepts of public–private partnership, corporate citizenship and social economy prosper, the boundary is sometimes blurred. For example, some   China Institute of Contemporary International Relations, American Think Tanks and Their Disposition in Dialogues (Beijing: Shishi Publishing House, 2003), pp. 10–20.

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institutes may offer corporate consultations for profit while at the same time support research on public policies. Some private institutes that obtain profits by selling high-quality research products on public policies could provide even better opinions in terms of independence and neutrality than those non-profit institutes sponsored by governmental projects or foundations. The fourth characteristic is that think tanks specialize in public policy studies. Think tanks differ from universities because they are specialized research institutes that have emerged alongside greater social development. Their focus is more specific and closer to the applied studies of public policies, such as national security and domestic policies. They are not organizations that purely conduct studies on philosophy or the humanities. Hence, think tanks can be an ‘industry’. Think tanks also differ from the policy research sections within governments because they stand above, rather than below, the decision-makers. The more idealistic a think tank is, the more critical its political proposals will be of current policies. The degree to which a government can accept this criticism reflects its capability to self-renew and self-preserve. In summary, the features of modern think tanks include: an independent organization that is ultimately responsible for its viewpoints; specializing in studies on public policies or broader political, economic and social issues; and aiming to make current or future political decisionmaking more scientific and just. Independence, the core attribute of think tanks, is responsible for them playing an indispensable role in society. First, if we observe the experience of the United States, which has the most advanced think tanks in the world, we can understand why they have considerably assisted US public policies. Primarily, it is because they constitute an independent, objective, professional and neutral research mechanism. The eminent RAND Corporation set a precedent for think tanks. The concept of RAND came into being in 1945, at the end of the Second World War. Henry Arnold, a Five-Star General and the Commanding General of the US Army Air Force, concluded from the war experience that, ‘we haven’t built a coordinated working institution among the army, the other government departments, the industrial sector, and the universities. Scientific planning must precede applied research and practices’. He therefore suggested the founding of an ‘independent research institute conducting objective analysis of the government and the people, in order to avoid national disasters in future and clinch the victory in the next war’. The Douglas Aircraft Company was commissioned to undertake the task, and an independent non-profit company, the RAND Corporation, was founded three years later. It is fair to say that the United States possessed a far-sighted strategy that helped its recovery and rapid growth after the war, in that it founded independent, objective research institutes that avoided the myopia of political clique and the routines of policy implementation. In the United States, independence is the source of vigour for think tanks. Early think tanks usually kept their independence in funding and remained value-neutral. Since the 1970s, think tanks have been more closely linked to governments and have become more oriented towards a political party or business. However, there is still a clear boundary between think tanks and partisan  Ibid., pp. 146–7.  Ibid., pp. 14–25. The book points out that three-quarters of US think tanks were neutral in their stances until the 1970s. In 1996, however, only 46 per cent of the approximately 300 main think tanks were neutral. The book also summarizes four stages of the development of these think tanks, the transitions of which were related to commercialization, a growth in funding-orientation and the dilution of idealism. The four stages are: firstly, in the early twentieth century, the first cohort of think tanks, represented by the Brookings Institute, were characterized primarily by the idealism of the great entrepreneurs and academia; secondly, after the Second World War, the think tanks, represented by the RAND, mostly signed contracts with the government in exchange for funding, and undertook post-war policy studies; thirdly, from the 1960s to the 1980s, the think

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interests and governmental policies. To put it simply, the relationship between the two bodies is one of buyers and sellers who are equal and independent, not employers and employees. Think tanks are ultimately responsible for their research and opinions and do not aim to justify or argue for certain political decisions. For instance, although a think tank may lean towards conservative values and mainly employ conservative thinkers, its role is still to undertake critical and far-sighted studies of policies, rather than to provide interpretations or implementation plans for the policies of the current government. A think tank can conduct research on a topic, such as whether the Iraq War is reasonable, or undertake factual studies from the perspective of US national interests or even its conservative values and ideas, and offer a conclusion. However, if the research topic was rather to study why the Iraq War is reasonable, this would create a political scandal. The Forms and Functions of Chinese ‘Think Tanks’ According to the previous definition, think tanks can be divided into various types. First, according to the nature of the sponsors, they can be divided into government-sponsored and non-governmentsponsored think tanks. Second, according to the nature of the product they produce, they may be divided into general think tanks and specialized think tanks. Third, think tanks can assume various forms, including institutes, forums, foundations, societies, centres, corporations, etc. Three types of think tanks have emerged since the reform and opening up in China. The first type is a research institute founded by the government for policy purposes, such as DRCSC and CASS. Most of them are government-sponsored institutes. Since the Provisional Regulations on Registration and Administration of Non-Governmental Non-Enterprise Units was enacted in 1998, many of them have been registered as non-governmental, non-enterprise institutes. The top 10 think tanks, as previously discussed in this chapter, can be all classified as this type. The second type is a research agency attached to a university but operating independently, such as the China Center for Economic Research (CCER) at Peking University, which received its seed fund from the Ford Foundation. Many institutes are directly or indirectly attached to universities. While they may undertake policy studies, if they do not meet the qualifications for independent legal persons, they should be excluded from the category of independent research institutes. The third type is a research institute founded by civil society, which in general takes the form of a non-governmental, non-enterprise institute, of which some exist as commercial enterprises. Among these three types of research institutes on public policies, the first can be termed as being ‘officially-run’ research institutes of social sciences. They usually explicitly undertake the function of policy studies, and serve as governmental ‘think tanks’. Their status in China is different from that of think tanks with governmental backing in the West. The latter are specialized independent research institutes that sell their products to the government or the army, in the same way as non-governmental think tanks, while the former have to accomplish tasks given by the Party and the government, and undertake some duties in implementing the policy and making political propaganda, similar to research teams hired by the government. Hence, the official research institutes of China cannot play the role of real think tanks for public policies, or that of specialized policy research organizations transcending the political level. Empirical studies have shown that official policy research institutes are much less efficient than non-governmental ones in tanks, which were more commercialized, politically-oriented and partisan, such as the conservative Heritage Foundation, developed very rapidly and sold policy proposals; and, the final stage, from the 1980s onwards, is that two major systems – international and local – have gradually formed.

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using human capital and financial resources, and the farther away they are from the core decisionmaking, the weaker their influence. The second and the third types can be seen as real think tanks. Their degree of closeness to the government and public policies differs: some directly conduct policy studies, whilst others carry out research purely out of interest. The history of many countries around the world indicates that independent think tanks are mostly needed during periods of great social change. The current social and political transformation in China has increased the need for the development of real think tanks from civil society. Research has shown that the development of think tanks has been made possible by the transformation of the role of governments and the idea of governance. From the beginning of the reforms in China in the late 1980s, the development of Chinese think tanks reached a climax. Since the mid-1990s, there has been steady development, along with the reform of government agencies. Since 2000, official think tanks have developed considerably, whilst non-governmental ones have grown at a stable pace. Today, non-governmental think tanks only account for 5 per cent of all think tanks nationwide. The largest non-governmental think tank in China has only approximately 20 employees and two million yuan of annual working capital, compared with more than 400 full-time researchers and US$1.5 billion of annual working capital of the Brookings Institution. The contribution of independent think tanks is significant to both the state and the society. Society now needs think tanks for three main reasons. The first is the huge demand for independent and specialized studies of social sciences. Many social problems have emerged along with the rapid economic development and social transition in China. Various problems, including: a large income gap; unemployment; lack of a social safety net; mass demonstrations; national security; and public order, etc., are related to various interest groups. Therefore, they require objective and professional studies, in order to make policies fairer and far-sighted, and to avoid an adverse impact on the social order. From an even more far-sighted perspective, what lies behind these social problems is the change in social psychology and values. This change requires more fundamental studies in social science. Though the official research institutes and universities are important agencies in social science studies, their core roles (respectively, the ‘support of policies’ and ‘teaching and education’) dictate that social science studies in these two types of institutes cannot be detached either from governmental interests or the goal of education. A diverse range of specialized and independent research institutes reflects the institutionalization of experts’ participation in political decision-making, as well as the democratization and scientific orientation of public policies. The experience of many countries shows that eras of ‘grand social transition’ are usually where the development and growth in prosperity of think tanks occurs. This plays an indispensable role in the stable development of society. The second is the need to reflect different voices in a diversified society. When a government is making reforms, the interests of government departments often restrain or replace the public interest in decision-making and lead to a surge in social risks. How to break the departments’ interests and serve the public’s interests is crucial for the rationality and sustainability of policies. Simply issuing a few documents, or setting up a few large research institutes, is not adequate. There needs to be an open market for thoughts, where a large amount of wisdom and voices from civil society can be consciously agglomerated, so that the final policies can be balanced, comprehensive and beneficial to the development of the nation in the long run. The third is the social need to collect talent and human ‘capital’. Non-governmental research institutes of social sciences are the places where thoughts and talents are discovered and collected   Zhu Xufeng, Network and the Application of Knowledge: the Influence of Chinese Think Tanks on Policies (Beijing: PhD thesis at Tsinghua University, 2005), pp. 146, 218.

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and they can also serve as bridges between the demands of public decision-makers, universities, scholars and the people. Non-governmental think tanks are of particular importance. Advocacy is one of the two major functions (the other being service) and can be called one of the two ‘legs’ of non-governmental organizations (NGOs). Think tanks, which generally belong to advocacy NGOs, intensively embody the function of advocacy. Advocacy from civil society, different from that of the think tanks attached to the government, reflects a voice or a kind of interest distinct from that of the politicians or policy-makers. In order for public policies to be rational, they should not be determined by only one entity. The participation of non-governmental think tanks that represent civil society makes public policies more compatible with modern ideas. The participation of civil society is a crucial part of modern public policies and governance. Participation is very important in its own right. It reveals that non-governmental think tanks play a role that cannot be replaced by government think tanks. Some scholars have summarized that the Japanese model of think tanks amounts to ‘bureaucrats as the brain and scholars as the limbs’, while the American model is ‘political parties as the limbs and scholars as the heart’. The former are think tanks attached to the government, while the latter embody the spirit of non-governmental think tanks. The functions of think tanks should resemble those of a brain. They should be ‘hearts’ and decision-makers, rather than the ‘limbs’ carrying out the decisions of the parties or mere providers of knowledge. The vital point of non-governmental think tanks is that they should be independent entities. The Characteristics of the Development of Chinese Non-Governmental Think Tanks It is still very difficult to accurately describe Chinese non-governmental think tanks because they remain largely unnoticed by society, resulting in a lack of research or statistic data. We can only base our analysis of them on case studies and limited knowledge. Historically, Chinese civil society organizations were very different from those in the West in that they never served as a check and balance to political power. The development of Western NGOs has always followed two threads: one is to provide charity and social services; and the other is to balance the political power, fight for rights and advocate for a balance of rights between different interest groups. In China, charity groups existed, but those attempting to check and balance governmental power were almost non-existent. Though China had a rich variety of associations of literature, learning, art, poetry, and even economic associations, they kept their distance from politics. Once an association mingled with politics it became a secret society or a clique. The weakness of associations in balancing the political power affected the development of think tanks and typical advocacy NGOs in Chinese history. Since the reform and opening up in China, Western thoughts and institutions have been introduced into China, along with the development of a market economy. Hence, several modern think tanks have emerged. In the twenty-first century, think tanks have become more diverse and their numbers have risen. The sponsors of Chinese think tanks are diverse. First, the official sponsors, such as the Party, the government and the army, all have their own think tanks or policy research sections, including the institutes for ideological and political studies (sponsored by the Party), the DRCSC (sponsored by the government), the CICIR (affiliated to the Ministry of State Security, the CASS and local academies of social sciences), the CCISS (sponsored by the army), etc. Second, semi-official think   Zeng Yi, ‘Observation on American Think Tanks’, Jue ce (Decision-Making) 5 (2008).

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tanks usually exist in the name of non-governmental organizations and are registered with the Ministry of Civil Affairs. In fact, they are sponsored and controlled by the government in respect to personnel and administration and ultimately serve the interests of the government. This type of think tank includes the Federation of Social Sciences (FSS), the Chinese Association for Science and Technology (CAST), the China Reform Forum (CRF), etc. Third are those think tanks sponsored by research universities, such as the CCER and the Research Center for Contemporary China (RCCC) at Peking University. Fourth are those sponsored by the media, such as the Research Center for World Issues (RCWI) under the Xinhua News Agency. Finally there are the multinational think tanks, such as the Network of East Asia Think-tanks (NEAT) founded in 2003. NEAT is a crossborder exchange network between think tanks, with members from China, Korea, Japan and other East Asian countries. The Chinese coordinator is the China University of Foreign Affairs. There are altogether more than 100 non-governmental think tanks in China, all of which vary in size. However, there are not too many well-known ones. The following are a few examples. The China Development Institute (CDI) in Shenzhen was founded in 1989. In 1987, since the Special Economic Zone (SEZ) in Shenzhen progressed in China, Li Hao (the then secretary of the city Party committee) and Ma Hong (then the director of the DRCSC), planned to found a research institute of a new type. This research institute would be situated in Shenzhen and serve the whole nation by intensely researching the cutting-edge issues that arose in the process of reform and ‘opening up’. In total, 116 economists, social activists and entrepreneurs, including Ma Hong and Li Hao, voluntarily founded the CDI, which started operation on 14 February 1989. The CDI was a pioneer as the first non-governmental, non-profit, comprehensive, independent and open research and consultant agency for public policies. There were two main reasons behind its founding. The first was to serve governmental authorities of all levels, as well as domestic and foreign firms, through: studying the building of a socialist market economy; promoting the reform, opening up and modernization of China; extending the international academic exchanges and cooperation in science and technology; and independently and pragmatically undertaking researches, consultations and other transactions. The second was to conduct reform and institutional innovation and to explore a new path, which suited the Chinese reality, so that the CDI could serve society and the market economy. The CDI has always persisted in its functional orientation as a think tank for governmental decision-making, and focused its work on offering a consultation service in decision-making to the Party committee and government of Shenzhen. In order to face the trials of the reform and opening up, as well as the social and economic development of the Shenzhen SEZ, it undertook a series of studies on important issues, including: suggesting legislation for Shenzhen; studies on the economic cooperation between Shenzhen and Hong Kong; research on the reform of the government’s examination and approval of institutions; studies on the reform of the governmental financial system; etc. Since 1999, it has held the International Think Tank Forum (ITTF) five times. The ITTF is high-level forum with considerable influence and has become an important academic platform for the CDI to exchange ideas with famous think tanks around the world, such as the RAND and the Brookings Institute. The China Institute for Reform and Development (CIRD) in Hainan, founded in November 1991 and sponsored by the government and enterprises, focuses its studies on the theories of transitional economy and public policy. It is a network-style, internationalized and independent reform research institute, with the functions of training, consulting, holding conferences and compiling policy reports. The orientation of the CIRD is to assist in the decision-making on China’s   www.cdi.com.cn/about (last visited March 2010).   www.chinareform.org.cn/cird/about.aspx (last visited March 2010).

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economic reform, undertake advanced studies on major theoretical and practical issues in China’s economic transition and to offer suggestions on policy and legislation. The CIRD believes that it has the responsibility of ‘speaking candidly on China’s reforms’. The director of the CIRD, Chi Fulin, is a PhD student supervisor, a member of the 11th Chinese People’s Political Consultative Conference (CPPCC), an expert receiving special allowances from the State Council, and he was among the first cohort of experts who made outstanding contributions to the Hainan province. Since its foundation, the CIRD has held more than 120 international forums on reforms and other academic conferences, published around 120 academic books (in Chinese and English), submitted more than 90 reports with suggestions on reforms, released over 1,000 academic papers, and received an array of national and provincial awards, including the national ‘Five No.1 Project’ awards. The CIRD maintains an operational system of ‘small institute, big network’, with a director responsibility system under the leadership of a board. It contains a network of experts, with the famous experts of the institute’s academic committee constituting the core. This is of a particular advantage to the organization in carrying out its work. The network is a sustainable source for the CIRD to advance, innovate and carry out high-level research and training. The Unirule Institute of Economics (UIE) was founded in July 1993 by economists Mao Yushi, Zhang Shuguang, Sheng Hong, Fan Gang and Tang Shouning, as well as the Beijing Elephant Culture Corporation. The incumbent president is Prof. Mao Yushi, the executive director is Prof. Hong Sheng, and the Chairman of the Academic Committee is Prof. Zhang Shuguang. Mao Yushi is one of the most prominent contemporary Chinese economists and an important representative of the Chinese non-governmental economists. He graduated from the Chongqing Nankai High School in 1946, and was enrolled into the Shanghai Jiaotong University in the same year. He developed the principle of optimal allocation in 1979, and published a book on the principle of optimal allocation and its practice in 1985. In the same year, he was transferred to the Institute of American Studies of the CASS. In 1986, he was at Harvard University in the United States as a visiting scholar. He retired from the CASS in 1993 and took part in the foundation of the UIE. As the UIE is one of the most influential Chinese non-governmental think tanks, it aims to support and promote high quality studies on economic theories and cutting-edge social and economic issues, and to offer resolutions on the institutional innovation for China’s reforms. The UIE places a special emphasis on the research and exchange of ideas in the field of economics, especially institutional economics, on the basis of communication with other disciplines of social sciences and humanities. It also attaches importance to the application of fundamental theories and research outcomes in the analysis of social, economic and institutional issues, as well as proposing innovative institutional resolutions. The bi-weekly symposium, which has been unceasingly organized by the UIE since its foundation, numbering 326 times up until early 2007, is famous for its open, tolerant and free academic atmosphere. Its early focus was institutional economics, and the fields for discussion have gradually expanded, including the analysis of and comments on the latest research achievements in sociology, law, philosophy, Confucianism, and so forth. The World and China Institute (WCI)10 is a non-governmental think tank founded in 1993, with research interests in political, economic, social and international issues. Li Fan, the director of the WCI, became interested in the reform of grassroots democratic elections in 1998, when he participated in the election of the head of the Buyun township, in the Sichuan province. He helped to design and organize the first township-level direct election in China through cooperation   www.unirule.org.cn/index.asp (last visited March 2010).   Mao Yushi, Economics and its Basis of Symbolic Logic: The Principle of Optimal Allocation (Changchun: Jinan University Press, 2008). 10  www.world-china.org (last visited March 2010).

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with innovative local officials. This election incurred fierce contention in the field of political reform. After the election, he actively took part in the reform of electoral systems of townships, urban communities and local people’s congresses, through lobbying, offering consultations and designing electoral procedures for the local authorities who were creative and open. He organized independent civil observer missions to observe and oversee the electoral process. Since 1994, the WCI has written many innovative academic research works, such as: Wind from the South: The Influence of Hong Kong and Taiwan on the Reform of the Mainland, and Silent Revolution: A Study on the Society and Citizens of Contemporary China, which were praised by academia at home and abroad. Since 2000, the MCI has focused its gaze on the direct elections of rural and urban communities. It has observed elections in many rural areas, and taken part in the reform of the urban electoral system organized by local governments. Through its practices and investigations into the development of grassroots democracy, the MCI published a series of books and reports, such as the yearbook of Development Report of China’s Grassroots Democracy since 2001, and Reform of Direct Electoral System in Chinese Urban Communities. The Twenty-first Century Institute for Education Development (TCIED),11 founded in 2002 and headquartered in Suzhou, is a non-governmental, non-profit organization focusing its studies on education public policies. Its targets include assembling the knowledge in civil society, offering suggestions for education policies and advancing the practices of education reform. The standing committee of the TCIED consists of several large non-governmental education entities in China, and its academic committee is composed of famous Chinese and foreign scholars. Yang Dongping, the incumbent director, is a famous professor of education at the Beijing Institute of Technology. The honorary director Zhu Yongxin is also a famous scholar on education, member of the National People’s Political Consultative Conference (CPPCC), and PhD student supervisor at the Suzhou University. Since its foundation, the TCIED has organized many discussions on education policies and hot topics of education, and undertaken topic studies, forums, symposiums, lectures and salons. Its publications include: the annual report of Blue Book on the Chinese Education, an English translation of which has been published by Brill since 2008; the Education Information Biweekly; and the Research Brief on Education Policies. The Cathay Institute for Public Affairs (CIPA)12 is an independent, non-profit and nongovernmental research institute. Its founders include Liu Junning, Mao Shoulong, Feng Xingyuan, Yao Zhongqiu and others. The CIPA aims to promote and preserve economic freedom, organize studies on the theories and practices of the decentralized order as a characteristic of the market economy and constitutional democracy, and research on the theories of Chinese and foreign government systems, as well as the theories and practices of public policies. It seeks to advance civil education and political transition compatibly with the market economy, issue unbiased commentary on economic and public policies and affairs, and offer policy consultation to the government and society. Though the CIPA is an institute for public administration, many of the tasks it undertakes are related to economics. Among its founders, Liu Junning, a firm Chinese liberalist, has been well-known for many years. Whilst he is not as forceful as he was in earlier years, he is still studying political science and upholding classical liberalism. Mao Shoulong, another famous scholar who frequently appears on China Central Television programmes, has applied institutionalism to analyse the public administration, and written a large quantity of works. Feng Xingyuan, in cooperation with the Chinese Social Sciences Press, published a series of books on modern thinking, which had a great influence. The series includes translations of many classical 11  www.21cedu.org (last visited June 2009). 12  www.jiuding.org (last visited March 2010).

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European liberalist works and contributed a lot to the development of liberalism in China. Though the CIPA resembles the UIE in terms of dissemination of liberalist thoughts, its theoretical studies lag behind the UIE. The Shanghai Legal and Economic Studies (SLES),13 now the Hongfan Institute for Legal and Economic Studies (HLES), was founded in 2002. In the summer of 2001, at Beidaihe, Wu Jinglian and Jiang Ping met for the first time at a forum attended by about 70 of the country’s experts and chaired by Jiang Zemin, then the president of China. They spent a week discussing many issues in great depth. Eventually, these two leading lights in their own fields made a joint decision: to organize an institute to conduct interdisciplinary studies on the rule of law and the market economy. In the spring of 2002, the SILES was founded. Liang Zhiping, a legal expert, was appointed by Wu Jinglian and Jiang Ping as the director. In 2004, the SILES moved to Beijing and changed its name to the Hongfan Institute for Legal and Economic Studies (HLES). The decision-making body of the HLES is the academic committee, chaired by Wu Jinglian and Jiang Ping. Liang Zhiping is still the director. The academic committee has eight members, including Bai Chongen, Cai Dingjian, Gao Xiqing, Li Bo and Zhang Chunlin, as well as Wu Jinglian, Jiang Ping and Liang Zhiping. The HLES aims to promote a market economy based on the rule of law in China through non-governmental academic studies. As a non-profit organization, all of its income and gains are used for the sustainable development of the institute. Through collecting funds from fixed partners, the HLES organizes studies and publishes academic works. Its specific tasks include organizing academic lectures, symposiums and classes, writing and publishing monographs, translating texts and popular books, undertaking legal and economic studies, mobilizing and integrating various academic resources, and promoting interdisciplinary studies connecting law, economics and other subjects. The works carried out by the institute now include: research projects, such as ‘a study on the legal development in China: a comparison on the national and provincial level’, ‘policies, practices and problems of competition and regulation’, ‘realizing justice: a study on the customary law and dispute resolving mechanisms in contemporary China’, ‘international trade, environment and development, and the problems of China after joining the WTO’; as well as small-scale surveying of social science projects. Its academic publications include: ‘Hongfan Comments’; ‘Legal and Economic Series’; ‘Hongfan Translation Series of Law and Economy’; ‘Popular Books of Law and Economy’; and others. The Beijing Aizhixing Institute on Health and Education (BAI)14 was founded by Wan Yanhai in 2002. Wan graduated in 1998 from Shanghai Medical University with a major in public health and health education, and started education and research on the prophylaxis and treatment of venereal diseases, including HIV/AIDS, in early 1990. In early 1994, he embarked on the Beijing Love Knowledge Action (Aizhixingdong) Project, which was registered in September 2002 as the Beijing Aizhixing Institute on Health and Education, or Beijing Aizhixing Institute in short. Now the institute has changed its name to the Beijing Aizhixing Information and Consultation Corporation Ltd (BAI). The aims of the BAI include: combating discrimination; carrying out HIV/AIDS education; providing help to those affected with HIV/AIDS, including children; undertaking research on health policies; and advocating basic human rights and social justice. BAI has conducted many projects and activities, such as: advocacy activities; helping HIV/AIDS sufferers in rural areas, especially in Henan; offering legal consultation and assistance; and giving small funds to the grassroots organizations, mainly the groups of those infected in rural areas and MSM organizations in cities. Literally ‘Aizhixing’ means ‘love’, ‘knowledge’ and ‘action’. The 13  www.hongfan.org.cn (last visited March 2010). 14  www.aizhi.net (last visited March 2010).

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pronunciation of ‘Aizhi’ is similar to AIDS, creating a metaphor of a project that is concerned with the prevention of HIV/AIDS and the lives of those infected. Wan has undertaken work for the health and rights of homosexuals for many years, and BAI is the first organization in China to advocate the rights of homosexuals. It has for a long time kept working on relations with many Chinese and foreign institutes concerning the health and rights of homosexuals, and related studies. The Beijing Brooks Education Center (BBEC, its former name was the Beijing Brooks Institute for Education)15 is a non-governmental, non-profit education institute founded in June 2003. The founders of the BBEC are Hao Bing and Liang Xiaoyan, who are among the first generation of Chinese NGO advocates. Together with Liang Congjie, a member of the CPPCC, Yang Dongping, Director of the Institute for Higher Education at the Beijing Institute of Technology, and Wang Lixiong, Liang Xiaoyan also founded Friend of Nature (NOF), the first real non-governmental organization in China. Since its foundation in 1994, the NOF advocated for serious environmental issues in China and launched the famous action to protect the Tibetan antelopes. The motto of the BBEC is ‘sit and talk philosophy, then stand up and take action’. Through discussion on theories, exploration in education, and activities for public welfare, the BBEC enriches the educational resources in rural areas, protects the local and ethnic cultural diversity, publicizes the idea of sustainable development, and promotes the formation of civil society. Its prior fields include: integration of educational resources in rural areas; environmental education; and civil education. It is conducting many projects, such as the development of textbooks for rural areas, aid for libraries in rural communities, Tianxia (literally means ‘all under heaven’) Lectures (open lectures that target the public) and a collaboration network promoting civil education, video shows, etc. Gong Meng, or the Open Constitution Initiative (OCI)16 is a non-governmental, non-profit, legal organization located in Beijing. On 14 May 2003, Xu Zhiyong, Teng Biao and Yu Jiang, three LLDs who had just graduated from university, submitted a proposal to examine the ‘Regulations on the Custody and Repatriation of Vagrants and Beggars in Cities’ to the Standing Committee of the National People’s Congress (NPC), which argued that the provisions in the Regulations that restricted citizens’ personal freedom contradicted the Chinese Constitution and laws, and should be amended or abolished. In October of that year, the three LLDs and Zhang Xingshui, a lawyer famous for advocating rights, founded the Sunshine Constitution Research Center, which was re-registered as ‘The Beijing Open Constitution Initiative Consultation Corporation’ in June 2005. The OCI aims at peacefully promoting the constitutional undertaking in China through open civil initiatives. Its main work includes: institutional research and advocacy, i.e. investigating and studying the typical cutting-edge issues in China and presenting opinions on reform and suggestions for legislation; discussing the reports and suggestions through forums that are widely attended by experts, the media and others, and extending and disseminating the outcome of such studies; making proposals to the CPC and legislatures; and advancing the construction of democracy and the rule of law. It also provides legal assistance in individual legal cases, i.e. selecting the typical cases that may help reform the institutions, and offering legal assistance to them. Through background investigation, discussion by experts and public participation, the OCI not only pursues success in individual cases but also draws public attention to the relevant institutions. Besides offering legal assistance, it concurrently promotes and proposes the reform of relevant institutions. It has also participated in public affairs from the standpoint of citizens. It organizes experts to discuss certain public affair issues, and submits proposals containing constructive opinions to the experts or delegates of the NPC in order to help rationally resolve the relevant issues. It also undertakes a neutral investigation 15  www.brooks.ngo.cn (last visited March 2010). 16  www.gongmeng.cn (last visited June 2009).

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of unexpected mass demonstrations and proposes solutions, organizes discussions on such incidents, and promotes supervision by public opinion. It advocates citizens’ participation, rational reconciliation and resolution of social problems, democracy and the rule of law. Unfortunately, the OCI was banned by the Beijing local government in July 2009.17 The Transition Institute of Society and Economy (TISE)18 is a research NGO founded in March 2007, aimed at the investigation and study of freedom and justice issues in the social transition. Its research fields mainly include reform of the tax system, reform of industrial regulations, citizens’ participation, the experience of transition, and so forth. Though the name of TISE’s legal personality is ‘The Beijing Transition Social and Economic Consultation Corporation’, it is still a non-profit organization serving the public interests. Guo Yushan, the Director, is a scholar from Fujian and based in Beijing, with an Internet ID of ‘Haofeng’. Now he works for two NGOs, the TISE, which mainly focuses on research, and the OCI, which focuses on taking action. The TISE’s tasks are mainly investigating and researching the crucial social and economic institutions for the social transition in China, presenting independent opinions and suggestions for institutional transition based on their investigations and research, extending the research outcomes through experts, media and other channels, and advancing the process of institutional transition. It also attaches great importance to the advocacy and practices of social transition. Its target groups include media, college students and rural residents. The Hua Xia Center for Economic and Social Development Research (HCESDR),19 founded in 1995, is a comprehensive non-profit organization undertaking research, consultations, training and information services. The centre advocates a people-oriented, scientific outlook on development; and conducts policy-oriented, cross-sector, multi-disciplinary, far-sighted research on the issues of China’s economic and social development. It also promotes non-governmental academic exchanges and the integration of industries, academia and institutes; offers services in scientific and democratic decision-making; and proposes plans and strategies for the coordinated, sustainable and comprehensive development of Chinese economy and society. Its main tasks include: consultations on policies, administration, and investment and finance; project evaluation and market survey; organizing academic conferences, symposiums and training for working professionals; economic information services; editing and publishing research outcomes; taking part in social welfare activities; and so forth. The Beijing Yingte Center for Economic and Social Development Research (BYCESDR),20 founded by Huang Jianping in 1997, is the research section of the Jian Ping Corporation. The BYCESDR is a public and business consultation and research institute. In its early years, it was mainly in charge of the supervision, evaluation and extension of professional training and labour market reform projects, funded by loans from the World Bank. Now the BYCESDR offers research-based and market-oriented services to the Chinese and foreign governments, enterprises and international organizations, in the fields of public consultation, business consultation and training for individuals, governments and enterprises. Its studies cover many fields, such as labour market reform, education reform, state-owned enterprise reform, social security reform, capacity building for organizations and individuals, protection and planning of natural resources, and the policies and effects of environment protection.

17  18  19  20 

See Chapter 6 in this book. www.transition.org.cn (last visited March 2010). www.hxc.org.cn (last visited March 2010). www.qianyan.biz/pshow-29097.html (last visited June 2009).

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The Beijing Dajun Economic Observation and Research Center (BDEORC)21 is a corporate non-governmental research institute founded by Zhong Dajun in 2000 and registered at the bureau of industry and commerce of Xicheng District, Beijing. In 2007, the Center was re-registered as the Beijing Dajun Think Tank Economic Consultation Corporation. Zhong Dajun is a famous Chinese economist and sociologist. The BDEORC’s studies focus on the influences of institutions and culture on the economy and society, as well as the transition of institutions, thoughts and culture. The core business of the centre is to make rapid and accurate analysis, forecasts and judgements on the domestic and international political and economic situations, changes in markets, and significant social issues, and to offer bases and information for the decision-making of the government, enterprises and citizens, especially to provide a reference for the making of important policies by the central government. The centre is also a consultancy, providing consultation services to clients, undertaking projects on social issues, and conducting investigations and studies in individual cases. The Beijing New Era Citizens’ Education Institute (BNECEI),22 founded on 9 June 1997, is a non-governmental organization conducting studies on social transition and social experiments. The BNECEI is the natural extension of the villagers’ autonomy project of the UIE and the Beijing Xinmin Education Research Center. It aims at providing theories, talents, examples and support to the social transition of China through theoretical studies, the training of talents, social experiments and social mobilization. Its main tasks include: studies and exploration on the theoretical system of social transition; extension of citizens’ education; promotion of communal democratic autonomy; organizing academic events; advancing academic exchange; and advocacy in the society. Its expert team includes Li Shenzhi, He Jiadong, Mao Yushi, Xie Changkui and Qin Hui. The Beijing Sanchun Dadi (literally meaning ‘spring land’) Institute for Social Studies (BSDISS),23 founded in January 2004, is the first non-governmental organization in China aimed at ‘developing the wisdom of the people, making the peasant prosper, and reduce the need for petitions’, in accordance with the principle of rational social reform. Its purpose is to deal with the problems of frequent petitions and the efforts of local authorities to stop them, and to build a platform of dialogue between the local authorities and the petitioners who are in conflict with each other. Niu Yuchang, the founder of BSDISS, thinks that the petitioners are the upholders of the Constitution. Their main work for the future is to get those working in the legal field to: research and classify groups of petitioners; focus on the petitioners representing certain social groups and rationally study their cases; and formulate reports to be submitted to the decision-makers or to be published. It does not exclude using public opinion to pressure the local authority into a dialogue with the petitioners. Moreover, the institute intends to regularly organize forums inviting the experts, officials and representatives of petitioners to communicate, and to offer employment skills training for the petitioners. Currently, the characteristics of the development of Chinese non-governmental think tanks can be summarized in five points. First, though Chinese non-governmental think tanks have evolved from being dependent on prominent individuals, to being dependent on a brand name, the ‘inventory of think tanks’ is still suffering from a shortage. In the early stages, think tanks were dependent on prominent individuals. However, now these organizations have formed their own voices. In general, however, they are still not able to become real ‘think tanks’. In Western countries, the transfer of talents between think tanks is crucial. In China there should be an inventory and exchange of

21  www.dajun.com.cn (last visited June 2009). 22  www.itnpp.cn/?uid-1-action-viewspace-itemid-78 (last visited March 2010). 23  www.chinadevelopmentbrief.org.cn/ngo_infoview.php?id=317 (last visited March 2010).

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talents. If think tanks do not form a coordinated group, and instead rely on just a few organizations, there will be many problems in the future. Second, though the number of Chinese non-governmental think tanks has increased significantly, they are still marginalized. In the earliest stages of the reform and opening up, there were only a handful of think tanks emerging, such as the UIE and a few others. Now there are more than 100, notably the numerous small and even tiny local institutes. Many of them were unheard of by most people and had only one or two members. Unlike in the United States, where the non-governmental think tanks have developed into a powerful group, non-governmental think tanks as a group are still on the margins in China. Statistics show that among all the 2,500 think tanks in China, less than 5 per cent are non-governmental.24 Third, although the undertaking of non-governmental think tanks has gone from being on the sidelines, to specialization, there remains a lack of professional teams. The earliest nongovernmental think tanks were not professional. For example, Meng Weina, a teacher for the mentally disabled, formed an organization that was not a think tank but she had the intention to carry out advocacy and worked as if she was the member of a think tank. At the beginning, many of her organization’s tasks were not focused on this function. It was mainly service-oriented, but also advocated on policies. Later, it developed a stronger advocacy function. Now it is similar to a specialized think tank, though the specialization is still not sufficient. The Brookings Institution in the United States has more than 200 experts and a budget of US$80 million.25 In China, there is no equivalent think tank in terms of size. Many think tanks have multiple aims: serving the government as well as speaking for society; and advocating for vulnerable groups while working under the guidance of the government. Fourth, although non-governmental think tanks have now been able to form their own voices, they are still not institutional. It is a remarkable thing that we can now hear the voice of civil society, which indicates that the non-governmental think tanks have emerged out of the collective aphasia and begun to make their own voices heard. However, the voices do not have an institutional position in the process of decision-making. There is no law stipulating that government, when making legislation, must consult a think tank. At present, many environmental NGOs have outstanding advocacy capabilities, and an evaluation of the environment has been included in the process of decision-making, which indicates great progress. However, similar institutionalized consultative procedures are very rare in China. If the government is enlightened or willing to hear the voices, then it will accept suggestions from the think tanks. Otherwise, there is no legal guarantee that think tanks can play a role. To make their voices heard, think tanks have to rely on their own methods and advantages, rather than any institutional guarantee. The lack of institutional guarantees creates a significant problem for NGO advocacy – much dialogue but little effective advocacy. For example, the Tsinghua University conducted a survey in 2001. Among the 5,000 NGOs that were examined, 58.7 per cent said they had made policy proposals to the government over the past year, and almost 20 per cent had put forward more than six proposals. A total of 42 per cent of the suggestions were accepted by the government.26 It seemed that the non-governmental think tanks were playing a very effective role. However, we should notice that the relationship between Chinese NGOs and government is different from that in many Western countries. There are more government oriented NGOs or government run NGOs in China who accept tasks from the government and play a role as ‘assistant’ to the government. Advocacy 24  Sun Yafei, ‘The Weak Survival of China’s Civilian Think Tanks’, Nanfang Weekend, 15 January 2004. 25  www.brookings.edu (last visited January 2010). 26 Wang Ming, Deng Guosheng and Gu Linsheng (eds), Cases of Chinese NGOs: 2001 (Nagoya: United Nations Centre for Regional Development, 2001), pp. 9–27.

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is not as popular for Chinese NGOs as it is among those in Western countries. In the West, the more channels of dialogue a think tank has, the stronger its advocacy. If civil society has a strong dialogue function with the government, then its influence on the government is also significant. In China, however, this is not guaranteed. For instance, the CAST, one of the eight most prominent people’s organizations, has very sound channels of dialogue and conducts many discussions, such as organizing numerous conferences and making countless proposals to the government. However, the following questions remain unanswered: does it really represent the voice of the people? Does it represent the voice of the professionals of science and technology? And does it represent the voice of scientific decision-making in the field of science? Fifth, although non-governmental think tanks have diversified, their status is still unclear. For example, even UIE’s legal status may face grave threats, which suggests a crisis in the development of think tanks. In general, however, the development of non-governmental think tanks is inspiring. We have to admit that the effect of think tanks is still far from sufficient. Nevertheless, civilian think tanks are more and more in demand with the continued development of a market economy and civil society in China. Facing challenges of legal status, resources, professional training, etc., China’s civilian think tanks are struggling to meet increasing social needs. The Institutional Environment of Chinese Non-Governmental Think Tanks What is the background to the emergence of think tanks? In foreign countries, the risks and changes in social problems presented the opportunity for the development of think tanks. The United States is no exception. After some grave crises or transition, think tanks have always become more active because policies at these times become complicated and for bureaucrats decision-making becomes difficult. This results in the bureaucrats wanting to listen, and civil society wanting to speak, and they therefore complement each other. The opportunities for the development of Chinese think tanks are similar. First, the political institutional environment is the most important factor in the development of Chinese non-governmental think tanks. Since think tanks must develop ideas, without ideas no organization can be dubbed a ‘think tank’. What environment do such ideas need? There must be an atmosphere of freedom, truly independent thinking and academic freedom. If a policy report is written under unitary rules or certain restrictions, it cannot be called a thought. The prosperity of think tanks is contingent not only on freedom of thought, but also on a market of thoughts, where people and all kinds of entities can express their viewpoints through fair competition. The ‘products’ that think tanks produce are their policy proposals. At the same time, the dissemination of thoughts should be transparent so that people can receive information in time. Moreover, the market economy can press for the organizations to take their credibility seriously. Hence, a free market of thoughts is the most important prerequisite for the birth of think tanks. The current political background in China has a double impact on the development of think tanks. On one hand, since non-governmental organizations have to be approved by and register with the government, and the restrictions on social organizations in the field of social sciences are even more stringent, there is no free market of thoughts. On the other hand, the Central Committee of the Party and the government is actively seeking to hear voices from society. For instance, the central government issued ‘the Guiding Opinion on Further Promoting the Development of Philosophy and Social Sciences’ in 2004,27 which underscored that the government should actively hear the suggestions, 27  The Central Committee of the Communist Party of China, 20 March 2004.

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and make the philosophers and social scientists the think tanks of the Party and the government. It indicates that political decision-making now needs the wisdom of civil society. How can nongovernmental think tanks really work? The most important move is to form a free market of thoughts. What we can do under the current situation in China is ‘de-ideologize’ public policies. Under the existing political system, we need to realize that public policy is a sort of science rather than an issue of standpoints or ideologies. Dealing with public policy scientifically is the best we can do to provide an open market of thoughts. Second, the environment at the level of actual decision-making is also important for the development of think tanks. If we observe the development of think tanks, they fundamentally embody democratic decision-making. If think tanks are going to prosper, reforms in the decisionmaking system towards a more democratic one are eventually needed. In the overall decisionmaking process the following institutional designs are indispensable for the existence of think tanks: a legitimate legislative procedure to make ‘good’ laws when the policies are proposed; a hearing in parliament when the policies are being made; laws or regulations stipulating that, when the policies are implemented, consultations should be taken under certain circumstances; and independent supervisory agencies for the evaluation of policies. Hence, the democratization of the public decision-making procedures, including the inquiry, hearing and supervision of policies, as well as the institutionalization of the process of democratic decision-making, is the second most important institutional condition for the development of think tanks. Third, the development of think tanks needs a proper legal environment. For example, the legal existence of non-governmental institutes, especially the ones for social sciences, are under challenge. Hence, the circumstances are relevant to the development of all the NGOs. An environment allowing for the legal existence of NGOs provides space for the development of think tanks. The fourth is funding. At present, most non-governmental think tanks are mainly funded by foreign capital. However, only if channels of funding are diversified, can think tanks achieve real development. Diversified funding channels include: commissions and appropriations from the government; funding from domestic and international enterprises; funding from foundations; private donations; and the think tank’s own operational gains. Only diversified funding can guarantee the effective operation of think tanks. Persuading the government to buy the consultation services, attracting multiple channels of investment, and conducting appropriate operations, are some of the ways for think tanks to obtain funding. The fifth is the relevant social and cultural system. Think tanks are not created in a vacuum, but require a social and cultural system that facilitates them. For instance, the pool of public policy talent in universities is of great importance. The prosperity of American think tanks cannot be separated from the large number of public policy experts educated at universities. There is no such reservoir of talent in China, so the think tanks are not able to operate very well. The question of how to improve the function of universities in this respect is another issue that must be considered. Under the current institutions, networking is also a very important factor. Some think tank networks have already formed. How to form a social network to combine the accumulation of public policy talents in universities and in society is a crucial issue. Only if a sort of coalition can be formed through a social network, can think tanks become a functioning system which makes a significant impact. The last is the internal administration of think tanks. The priority of the internal administration of think tanks is how to administer the thoughts. The administration of thoughts is not like that of products, which only needs basic regulations. It requires suitable and open systematic services in order to make thoughts not only practical, but also far-sighted, diverse and independent. Besides the administration of thoughts, team administration is also needed. The creation of thoughts needs

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independence. Thought must be individual, and the gathering of people does not necessarily bring out the best thinking. The creation of thoughts, however, requires the support of a team. How to unify the independence of thoughts and teamwork is a great challenge to the administration of think tanks. At present the Chinese government, because of the traditional vigilance against social associations and the sensitivity to NGOs as a result of the Colour Revolutions, is rather worried about the non-governmental institutes in the field of social sciences. However, during the complex social process in contemporary China, social problems are accumulating with the deepening of the economic reform, and the functions of the government are changing. It is therefore becoming more urgent for the decision-makers to obtain knowledge, ideas and policy suggestions from society. If we consider the trend in the international community and the trend of political development comprehensively, four aspects of the strategic approach of the government administration towards think tanks can be observed. The first is the transition to global governance and the emergence of civil society since the 1990s. Since the 1960s and 1970s, the new public administration movement aimed itself at reforming the executive and reshaping the government’s presence around the globe. The US and European countries, as well as the newly modernized countries in Asia, made great attempts to promote the reforms in governance. The reforms even influenced the theoretical model of governmental administration that had lasted for more than 100 years. ‘Public administration’ became the basis of the new ideas. In 1992, the World Bank addressed the issue of ‘governance’ as ‘the manner in which power is exercised in the management of a country’s economic and social resources for development’.28 The civil initiatives undertaken by individuals, enterprises and nonprofit organizations, have undeniably become an important factor in good public governance. Movements such as citizens’ active participation, citizens’ involvement and ‘partnership’, are actively initiated by governments in an increasing number of countries, demonstrating that the interdependence between government and the society is increasingly emphasized in the modern governance environment. Against this global background, China must realize that it is very difficult to gain advantages on the global stage unless it bases the construction of the state on the values of citizens. At the international level, the initiatives from civil society and the development of the state, have converged. The second is the comprehensive consideration of the Colour Revolutions. The Colour Revolutions provided a model to change the government through ‘street politics’, a kind of abnormal transition of the political regime, and should be prevented. However, we need to compare two prerequisites: first, is it possible for the Colour Revolutions to occur in institutionalized democracies? The answer is no. Since the legal and political channels are stable in institutionalized democracies, there is no strong political demand outside the legal channels. Second, is it possible for the Colour Revolutions to occur in non-democratic countries? The answer is also no, because there is no democratic system for it to depend on. However, the political demands may accumulate until they break out in more violent ways, i.e. the revolutions throughout the history of China and the world that have ended in bloodshed and the collapse of dynasties. Hence, the prerequisite for the Colour Revolutions is to have democracy in form but without substance. Their impact on the social order is greater than that in institutionalized democracies, but less than the violent revolutions in nondemocracies. What China should learn from them is to precipitate the construction of democratic institutions now when the effectiveness of the state is strong, form an orderly mechanism for its citizens to participate in politics, and avoid an excessive gap between the substance and the form of the political system in the long term. Having a negative attitude to the political participation of 28  The World Bank, Governance and Development, 1992.

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citizens, or even suppressing the development of social forces, is not an effective approach to avert social conflicts and might bring higher social risks. Third, the information age has created new requirements for the social order. The influence of information technology on the social order is that it provides more open and diverse platforms for the participation of individuals. It requires corresponding changes in the governing methods of the state. Otherwise, there might be more movements and expressions outside the system, which are not beneficial to social integration. Fourth, China is now at a stage of drastic social change. The rapid economic development, transition of social institutions, reform of the government, emergence of social problems and the accumulation of social conflicts, all show that China is in an era of transition. Great social development and changes need diversified voices and specialized studies on public policies. China needs the development of independent social science studies and non-governmental think tanks. We should realize that it is not possible to neglect the role of think tanks in the long-term development of society. Think tanks are an effective vehicle to express the voices in society, avert sectoral interests and ameliorate public policies. It is of great importance for long-term social stability and order to view them as ‘partners’ of the government in public decision-making. The key to making the best of non-governmental think tanks is to set up a ‘market of thoughts’, allowing equal and adequate expression of independent, diverse and specialized viewpoints, and hence offering more comprehensive and far-sighted support to public decision-making. The development of this concept in China, however, still has a long and tough journey ahead.

Chapter 4

Development of Charities in China Since the Reform and Opening Up Liu Peifeng

Introduction: Definition of Charity and Traditional Charities in China Being compassionate and charitable are traditional virtues of the Chinese nation. In the Chinese language, the word ‘charity’ (‘cishan’) is made up of two characters: ‘ci’, which means ‘compassion’, namely being compassionate for the various sufferings of mankind, and ‘shan’, which means ‘philanthropic act’, namely acts beneficial to other people or to society as a whole. Article 60 of the Trust Law of the Peoples Republic of China provides that public interest undertakings include: 1. 2. 3. 4. 5. 6.

relief for the poor; relief assistance to people suffering from disasters; helping the disabled; developing education, science, technology, culture, art and sports; developing medical and public health undertakings; developing undertakings for the protection of the environment and maintaining the ecological environment; and 7. developing other public welfare undertakings. In addition, the 1999 Law of the People’s Republic of China on Donation for Public Welfare Undertakings defines public welfare undertakings as including: 1. activities of relieving disasters, helping the poor, assisting the disabled as well as other social groups and individuals in trouble; 2. education, science, culture, public health and sports; 3. environmental protection, construction of public facilities; and 4. other social and public welfare undertakings promoting the development and progress of society. Therefore, according to Chinese laws, charities cover a wide variety of undertakings that are beneficial to others or to the society as a whole. This chapter will discuss charity and charitable undertakings in China within the framework of this broad definition of the concept. Charities and charitable organizations have a long history in China. Charitable activities in Chinese history took various forms such as: mending roads, building bridges, and setting up schools by individual philanthropists; charitable crop fields and charitable estates maintained by families; and institutions established by the government for sheltering homeless people, the elderly, the disabled and orphans. There were both permanent charitable organizations, such as those set up by religious establishments, and temporary ones set up to deal with specific social crises such as

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community granaries, charitable granaries and soup kitchens. In the Ming and Qing dynasties, new forms of charitable organizations, such as benevolent associations and charitable societies, began to emerge in large numbers. People with high ideals at that time hoped that they would be able solve social problems and restore social order through these charitable organizations. According to Liang Qizi, a Taiwanese scholar who has studied over 2,000 local chronicles in China: during the Ming and Qing dynasties (sixteenth to nineteenth centuries), there had been 973 orphanages, 339 nursing homes for old people, 216 widows’ homes, 589 charitable associations mainly specialized in providing free burial services to the poor, 338 comprehensive charitable organizations and 743 other charitable organizations. Her study shows that the purposes of these charitable organizations were not only to solve the problem of poverty, but also to restore social order through redefining the social strata. These organizations had a strong moral characteristic and took the upholding of social and cultural values as their sole objective. To them, charity mainly meant to uphold such values as filial piety, chastity, enlightenment, orthodox Confucian burial ceremonies, and creating the opportunity for people to participate in imperial civil examinations. At the same time, they also meant to solve social problems through building bridges and roads, establishing schools, donating money, medicine and food, printing free books, running charitable crop fields, community granaries and charitable granaries, assisting poor people in funerals and marriages, and providing relief to famine victims. By the end of the Qing dynasty, charitable organizations became increasingly institutionalized and bureaucratic and gradually lost their original social ideals. In the early years of the Republic of China, there was a major change in the type of charities, which mainly centred on poverty alleviation and professional education, with other traditional functions of charitable organizations either transferred to the medical, educational, police or fire-fighting departments of the government, or abandoned. Charities became the starting point of municipal administration and were incorporated into social undertakings. This trend of development continued throughout the era of the Republic of China, and did not differ much from the development of charities in other parts of the world. In 1949, with the Communist takeover of political power, charities in China entered into a new era. Strictly speaking, charitable organizations in contemporary China have no organizational connection with their predecessors. Today, however, the government’s understanding of and attitude towards charitable organizations and other civil society organizations are, to some extent, influenced by the traditional relationship between the government and civil society organizations. Development of Contemporary Charities in China Suspension of Charities Contemporary charities in China only began in the 1980s. Between 1949 and 1978 there was a period of suspension of charities in China. The process of establishment of political power by the Communist Party of China (CPC) was also a process of dissolution of civil society organizations. The existence of various horizontal organizations was not conducive to the establishment of political power at the grassroots level and the public recognition of various organizations outside the system could have threatened government control over the social trust resource. Therefore, the dissolution of various social organizations was an inevitable step in the process of unification of society and   Liang Qizi, Charity and Enlightenment: Charitable Organizations in Ming and Qing Dynasties (Shijiazhuang: Hebei People’s Publishing House, 2001), p. 2.

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the downward expansion of political power. The government began to ‘clean-up’ various civil society organizations and charitable undertakings were considered ‘tools used by the ruling class to cheat people and poison their minds’ and were subjected to an all-round takeover and reformation. The government divided the existing charitable institutions into three main categories and different methods were used to deal with each of them. In the first category were those to be resolutely banned, dissolved and closed down. They were mainly provincial and county-level charitable institutions established by the ousted Nationalist government. The sponsors of these institutions were mostly high-ranking officials of local or even central Nationalist governments and wealthy people, who became an ‘object of the dictatorship’ because of their political attitudes, which were contradictory to those of the Communist government. In the second category were those to be taken over and reorganized. They were mainly non-governmental charitable organizations sponsored by local celebrities. For example, the Charity School of Beijing Fragrant Hills was very famous in the early years of the Republic of China. After the establishment of the People’s Republic, its assets were taken over by the Beijing Municipal Government and the factories affiliated with it were reorganized. In the third category were those subject to both takeover and dissolution, or those that were first put under control and surveillance and then disbanded. They were mainly charitable undertakings established by foreigners, such as church hospitals, orphanages and foundling hospitals. They were further divided into different categories: those that were ideologically compatible with the newly established political power were incorporated into the political power system; those that were not were disbanded as ‘counter-revolutionary’ organizations; some others ceased their activities of their own accord because of a lack of freedom of activity or a lack of resources at their disposal. After the completion of the ‘socialist reform’, the State realized total control politically and economically, thereby establishing a ‘total society’. Total society is a concept coined by Chinese sociologist Sun Liping to describe the social structure in China after the establishment of the People’s Republic. In such a society, the State has total monopoly over the economy and various social resources; there is a high degree of overlapping of political, economic and ideological centres; and the State has full control over society. Such a society has three basic characteristics: first, the State’s direct monopoly over most of social resources; second, low horizontal differentiation of socio-political structure and a high degree of overlapping of political, economic and ideological centres: ideology is total, politics is highly ideological and the economy is highly politicized; and third, the elimination of the ruling class. The three-level social structure of ‘the State, the civil society elites and the public’ was transformed into a two-level structure of ‘the State and the public’. Because all resources and activities in the society were put under strict control by the State, there was no more space left for the development of new charitable or other types of civil society organizations. The task of helping people in poverty or with special needs was taken over by organizations within the system. A ‘five-guarantee system’ (of providing childless and infirm elderly people with food, clothing, housing, medical care and burial expenses) was established in rural areas and similar functions were undertaken by work units (danwei) and neighbourhood organizations in urban areas. Thus, civil society organizations had lost both their legitimacy and the space necessary for their survival.   See Sun Liping, Transition and Breaking Apart: the Change of Chinese Social Structure Since the Reform and Opening up (Beijing: Tsinghua University Press, 2004), p. 31.  In 1949, the enrolment rate of primary school age children was only 20 per cent and the illiteracy rate was 80 per cent. By 1965, the primary school enrolment rate had reached 89 per cent, which was much higher than other low income countries in the world at that time. By the 1960s and 1970s, the free medical care system covered almost all working people in urban areas and 90 per cent of the rural population was covered by a cooperative medical care system. See Li Qiang (ed.), Changes of the Chinese Society in the Past 30 Years (Beijing: Social Sciences Academic Press, 2008), p. 9.

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The dissolution of civil society organization resulted in the formation of a total society, which marked the completion of the reconstruction of State order, a process that began in the late Qing dynasty, and the transition of China from a feudal empire to a modern nation State. Re-Emergence of Charities With the implementation of the policy of ‘reform and opening up’ in 1978, charitable undertakings began an arduous road to recovery. The development of charities in China since 1978 can be roughly divided into three stages: the beginning stage (1978–92); the expansion stage (1992–2004); and the all-round development stage (after 2004), which correspond to the process of transformation of government functions and the development of civil society in China. Generally speaking, the development of charities has been the result of both the rational cognition and conscientious guidance by the Chinese government and the pluralization of the Chinese society. In 1978, the Chinese government began to change its socio-economic objectives from class struggle to socialist and economic construction. This became the main theme of State policy. Meanwhile, the question of how to mobilize social resources to participate in the provision of public services had also become one of the main considerations of the government. Because of the scarcity of independently disposable social resources at that time, the government and overseas capital played the dominant role in the development of charities. In 1981, the China Welfare Institute, the Chinese People’s National Committee for Defence of Children, the AllChina Women’s Federation, the All-China Federation of Trade Unions, the Central Committee of the Communist Youth League, the All-China Youth Federation, the China Writers’ Association, the China Association for Science and Technology, the All-China Sports Federation, the AllChina Federation of Returned Overseas Chinese, and the All-China Federation of Industry and Commerce jointly established the China Children and Teenagers’ Fund (the Fund), which was the first foundation established in China since the ‘reform and opening up’ and marked the beginning of charitable activities organized by charitable organizations. The purpose of the Fund was to care for, foster and educate children and teenagers, and assist in developing education and welfare for children and teenagers. After the establishment of the Fund, a number of foundations, sponsored by the government or with a governmental background, were established. For example, in 1982 the Soong Ching Ling Foundation was established in memory of the late Honorary State President Soong Qing Ling (it was renamed the China Soong Qing Ling Foundation in 2005). The mission of the China Soong Qing Ling Foundation is to: promote friendly international relations and safeguard world peace; strengthen exchanges across the Taiwan Strait and advance reunification of the Motherland; show concern for the future of the nation; and develop charitable work for children. In 1984, the China Foundation for Disabled Persons was established. Its purposes were to: give full scope to humanitarianism; mobilize social forces to assist the State in developing causes for the disabled; promote equal participation by the disabled in social life and their enjoyment of the spiritual and material benefits of social development; publicize causes for the disabled; call on society to understand, respect, show concern for, and help the disabled; and nurture the spirit of self-respect, self-confidence and self-support among the disabled. Over the following years, various kinds of foundations were successively established. According to incomplete statistics, in September 1987 a total of 214 foundations of various kinds had been established throughout the country, including 33 national foundations and 181 local foundations. These foundations, in the   See Shang Yusheng, ‘Twenty Years of Development of Non-governmental Foundations in China: a Retrospect’, in NPO Exploration (Beijing: Huaxia Publishing House, 2004), vol. 1, pp. 38–43.

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process of raising funds, initiated some influential public interest projects. For example, in 1989, the China Children and Teenagers’ Fund launched a public interest project named the ‘Spring Bud Project’, which was aimed at helping girls in poverty-stricken areas to return to school. By the end of 2008, the Project had raised RMB 800 million in funds, built more than 800 ‘Spring Bud’ schools, helped over 1.8 million girls from poor families go back to school, and provided training in practical skills to more than 400,000 girls. In 2000, the Fund launched the Safe and Healthy Growth Project, under which a large number of children’s classrooms, libraries, bulletin boards and community children’s moral education centres, as well as a Children’s Amblyopia Special Fund, were set up to provide children with a safe and healthy environment. To date, the most influential charitable project in China has been the Hope Project, launched by China Youth Development Foundation in 1989. The purpose of the project is to provide financial assistance to children in poor rural areas so that they can receive education. By 2009, the Project had raised more than RMB 5.67 billion in funding, provided financial aid to 3.46 million students (including primary school students, secondary school students and college students) from poor rural families, and helped in the construction of 15,940 ‘Hope’ schools, thereby becoming a large-scale charitable public interest project with the widest social participation and impact in China. It could be said that the ‘Hope Project’ became synonymous with public interest in China during the 1990s. Apart from the funds from the government, the funds from non-governmental sources had also entered into the field of charities. In 1985, the Amity Foundation, which mainly engages in poverty alleviation, education and the improvement of basic health and hygiene in rural areas, was established by people from religious and cultural circles. While carrying out fundraising activities within the country, the Chinese government began to contact and seek financial assistance from foreign NGOs. Propelled by multilateral organizations, the Chinese government began to cooperate economically with international NGOs. In 1984, Manfred Kulessa, the then Resident Representative of the United Nations Development Programme (UNDP) in China, told the International Bureau of the Ministry of Foreign Trade and Economic Cooperation that China should accept assistance not only from international organizations, but also from foreign NGOs. As a result, that same year the Chinese government, with the support of the UNDP, sent out the first working group on international non-governmental cooperation to Switzerland, Sweden, the UK and Germany and contacted about 50 civil society organizations in these countries concerning possible cooperation. In 1985, an International Organizations Liaison Office was established under the China International Centre for Economic and Technical Exchange; in 1986, a cooperation agreement between the Centre and European China Aid Group (consisting of German Agro Action, Oxfam UK, and the Netherlands Agency for International Development Operations) formally came into effect. The project raised a large amount of funds from overseas, which was mainly used in fields such as poverty alleviation, environmental protection, women’s participation in public affairs, rural education and special education. It not only introduced financial aid to poverty-stricken areas, but also enabled China to learn from foreign experiences in the administration of NGOs, management of projects and training of professionals in relevant fields. Inspired by this project, many other international NGOs began to carry out projects in China.   http://cctf.org.cn/sys/html/-74/2009-05-31/19470.htm (last visited December 2009).   See the official website of China Children and Teenagers’ Fund at www.cctf.org.cn (last visited December 2009).   http://gongyi.sina.com.cn/gyzx/2009-11-19/16111407.html (last visited December 2009).   See Huang Haoming (ed.), Cooperation with International NGOs: Practice and Administration (Beijing: University of International Business and Economics Press, 2000).

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Apart from fundraising charitable organizations, some influential charity support organizations also began to carry out activities. One example of such an organization is the Shaanxi Research Association for Women and Family, which was established in 1986. Initially, its main objective was to promote the study of women’s theories; however in 1996 it began to devote itself to the development of poverty-stricken areas. So far it has helped these areas to set up over 60 projects in the fields of poverty alleviation, health, comprehensive community development, environmental protection, disaster reduction and prevention, women’s political participation, community organizations, and capacity building, and raised a total fund of over RMB 27 million. These projects have played an important role in improving the production and living conditions of rural women, increasing their opportunities to acquire resources, and enhancing their ability to participate in development. Another example is the ‘Charity Parade’, launched in 1988 in Zhongshan City, Guangdong Province. Since its launch, the ‘Charity Parade’ begins every year on the seventh day of the first month of the Chinese Lunar Year, and continues for several months. With the support of the municipal government, the Parade includes a wide range of activities such as donations, charity bazaars, charity performances, free medical treatment, blood donation and volunteer services. Ordinary citizens have been encouraged to participate in these charitable activities. By 2009, the ‘Charity Parade’ had been held for 22 years running and raised more than RMB 600 million, which has been used for many charitable public interest projects, including: the Zhongshan Boai Hospital and the Zhongshan Nursing Home;10 in 1989, the Communist Youth Committee of Shenzhen City opened a Volunteers’ Hotline; and in 1990, Shenzhen Youth Voluntary Social Workers’ Association was established and registered under the civil affairs department, thereby becoming the first the volunteer service organization in China.11 Expansion of Charities In 1992, with the delivery of a series of speeches by the paramount leader Deng Xiaoping during his ‘Inspection Tour’ of the Southern Provinces and the opening of the 14th National Congress of the Communist Party of China, the shackles of the planned economy were shattered and the theory of the socialist market economy was established. The theory of the socialist market economy establishes the basic functions of the government in economic and social development and provides a broader space for the development of civil society organizations. The development of a private economy and the comprehensive social progress had accumulated more independently dispensable social resources and made private investment in charities possible. All these factors contributed to the development of charities in China in the 1990s. During this period, charities underwent a process in which they developed a more positive reputation and became increasingly significant to society. Compared with those of the 1980s, charities in the 1990s were no longer only a cause pushed forward by the government or social elites, but were also participated in by the general public. The scope of charities also expanded from the original fields of education and health, to the fields of rights protection, environmental protection and services to the marginalized. In addition, charities and NGOs began exerting great influence in society. Events that had a crucial impact on the development of charities in China in the 1990s included: the establishment of the China Charity   http://yule.sohu.com/20081020/n260138990.shtml (last visited December 2009). 10 Hu Bo, ‘The Contemporary Value of Charity Parade in Zhongzhan City’, available at: www. redcrossol.com/sys/html/115303htm (last visited December 2009). 11  Tang Jianguang and Yu Bing, ‘Chinese Volunteer Services in a Time of Social Transition’, in China Youth Development Foundation and Research Committee on the Development of Foundations (ed.), Chinese Social Organizations at a Cross Road (Tianjin: Tianjin People’s Publishing House, 2001), pp. 311–12.

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Federation; the launching of the Hope Project; and the non-governmental charitable undertakings that emerged as a result of the large scale flood that occurred in 1998. On 12 February 1994, the People’s Daily newspaper published a commentary that pointed out: ‘Socialism needs its own charitable undertakings and its own philanthropists.’ This positive comment on charities by official Chinese media marked a change of understanding of charities by the Chinese government.12 Article 6 paragraph 4 of the Interim Regulations of the People’s Republic of China on Enterprise Income Tax, which came into force on 1 January 1994, provided that in relation to the expenses for public interest or relief donations incurred by enterprises, 3 per cent of the total annual profit could be deducted from the taxable income. In 1997, the Ministry of Finance and the State Administration of Taxation for the first time provided for tax reductions for charitable donations by enterprises and institutions. The 1999 Law of the People’s Republic of China on Donation for Public Welfare Undertakings provides that its purposes are ‘encouraging donation, standardizing the act of donation and acceptance of donation, protecting the lawful rights and interests of donors, donees and beneficiaries, and promoting the development of public welfare undertakings’, thereby providing legitimacy and legal safeguards for charitable undertakings. Charitable undertakings developed rapidly in China after being officially recognized by State policies and laws. In 1993, the first local charitable association, the Charitable Association of Jilin Province, was established. The Law of the People’s Republic of China on the Red Cross Society was adopted in the same year, providing legal safeguards for the activities of Red Cross societies. In 1994, the China Charity Federation was established and, following this, a large number of local charity associations were also established. Gradually, a system of governmentdominated charitable undertakings, with Red Cross societies, charitable associations and disabled persons’ federations comprising its main body, had taken form. At the same time, nongovernmental charitable undertakings were also playing an increasingly important role in the fields of environmental protection, provision of services to disabled people, and protection of rights. In 1994, an environmental protection organization called Friends of Nature was established by a group of intellectuals who were devoted to the protection of the environment. The organization endeavours to create a platform for public participation in environmental protection, to raise people’s awareness of environmental protection and to turn such awareness into action. It encourages the public to participate in the improvement of the environment and advocates the adoption of public policies on environment protection by various means, including developing membership, carrying out environmental education, organizing various activities and conferences on special topics, publishing relevant materials, giving publicity to environmental issues in the mass media, and supporting and cooperating with relevant grassroots organizations. Over a number of years it has developed more than 10,000 members, including over 3,000 active members.13 Friends of Nature played a leading role in the establishment of new environmental NGOs and in the development of ideas and movements of non-governmental environmental protection. Currently, the leaders of many influential environmental protection organizations in the country participate in the activities of Friends of Nature. They have substantially the same environment protection ideas as Friends of Nature and carry out activities in coordination with them. In 2002, the Global Village and representatives of Chinese civil society organizations participated in the ‘World Conference on Environmental Protection’ held in Johannesburg, South Africa, establishing a positive link 12  Encyclopaedia of China, published in 1991, defines ‘charity’ as: ‘The provision of monetary, material or other practical forms of assistance to the poor or the weak out of compassion, pity or religious considerations … It has a heavy religious and superstitious colour. Its purpose is to get rewards for good deeds … it is only a temporary and passive assistance to a minority of people … and its social effect is doubtful.’ 13  http://sport.cctv.com/special/ziranzhiyou/01 (last visited December 2009).

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between Chinese and foreign environmental protection undertakings. In 1993, the Beijing Stars and Rain Educational Research Institute, the first privately run non-profit organization specializing in providing services to autistic children and their parents, was established and registered at the Chaoyang Administration Bureau for Industry and Commerce in Beijing. By absorbing and localizing foreign experiences, this organization has created a Chinese service mode in providing consultation and training guidance to parents of autistic children. In 1994, Hetong, the first nursing home for elderly people in China, was established in Tianjin City, thereby creating a new model of non-governmental old-age support services. After many years of development, the organization has now grown into the Hetong Industry Group of Social Services for the Aged, with an annual income exceeding RMB 18 million and covering such fields as nursing homes, medical treatment and health service, home care, catering for the old, housekeeping, training of nurses, and special products for the elderly. By introducing and localizing the nursing models from Germany and Japan, it established a standardized quality system for the long-term nursing service for the elderly in China.14 In the late 1990s, the problem of migrant peasant workers became more and more prominent. Establishing a mechanism for the protection of the rights of migrant peasant workers outside of the government’s trade union system became an issue attracting much attention from scholars and experts. Since 1998, a series of organizations devoted to the protection of the rights of migrant peasant workers have emerged in Guangdong Province, Qingdao City of Shandong Province and Zhejiang Province. Among them, the more influential ones include the ‘Xiaochen Hotline’ in Qingdao City, and the ‘Document Service Centre for Migrant Workers’ in Panyu City, Guangdong Province. Currently there are more than 30 such organizations active in China. They not only provide legal rights protection services and guidance to migrant peasant workers, but also endeavour to create conditions to enhance their ability to survive in cities and integrate themselves into urban life. We can see from the above examples that civil society charitable organizations are not only carrying out various public interest undertakings in cooperation with the government, but also actively responding to various social problems by relying on their own strengths, thereby creating a pluralistic mechanism for the solution of social problems. For example, it was through the efforts of civil society organizations that many social issues in the fields of environmental protection, prevention of AIDS/HIV, the rights of disabled people and protection of migrant peasant workers, have been brought to the attention of the government. This can be regarded as a bright spot in the development of charities in China during the 1990s. As charitable organizations grew, the scope of their activities also expanded and new forms of charitable activities emerged. During the ‘Spring Festival’ in 1996, the Charitable Foundation of Shanghai Municipality and the Xinmin Evening News jointly launched the ‘Charitable Donation Day’ that encouraged the public to donate to charitable undertakings through such activities as putting up posters, hosting evening parties, setting up donation boxes in public places, organizing charity sales, and giving free diagnosis and medical treatments. In the same year, the Federation of Disabled People in the Pudong District of Shanghai Municipality, with the support of the Bureau of Social Development of the District and in cooperation with various civil society organizations within the district, established the Joint Committee on Charitable Donations of Pudong New District. The Committee not only organizes various donations, but also distributes charitable funds through a procedure of project application, examination and approval, thereby creating a systematic and transparent charitable donation mode that combines fundraising with fund distribution. Since

14  http://yule.sohu.com/20081020/n260139070.shtml (last visited December 2009).

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2003, the ‘Charitable Donation Day’ has been an annual event in the Pudong District, featuring a series of charitable, cultural and sports activities. In the summer of 1998, unprecedented floods broke out in the drainage areas of the Yangtze, Nengjiang and Songhuajiang rivers. On 30 June 1998, the China Charity Federation, in conjunction with the All-China Federation of Industry and Commerce, the China Association of Entrepreneurs, the China Private-Owned Business Association and the All-China Youth Federation, issued a call for donations and requested charitable associations throughout the country to mobilize to raise emergency funds and materials for disaster relief. The call was met with an enthusiastic response from the public and started an upsurge in donations by private persons. On 16 August 1998, the China Charity Federation, China Central Television and the Chinese Red Cross Society jointly hosted a large-scale TV charity performance entitled ‘Millions of Hearts with One Mind’, creating a precedent of TV charity performances. Over RMB 600 million worth of funds and goods were raised during the performance. Thereafter, large-scale TV charity performances became one of the most important ways to raise funds for disaster relief in China. In this period, major developments were also achieved in the field of volunteer services. In August 1993, 14 ministries and commissions under the State Council, including the Ministry of Civil Affairs, the State Development Planning Commission, the State Commission for Restructuring the Economic System and the State Educational Commission, jointly issued the ‘Opinions on Further Developing the Work of Community Service Volunteer Activities’, with a view to promoting community service work. In April 1994, the Ministry of Civil Affairs and the China Association of Social Workers jointly issued the ‘Notice on Further Promoting Community Service Volunteer Activities’, demanding governments at various levels strengthen the leadership over community service volunteer activities. In December 1993, the Communist Youth League adopted at its Second Session of Thirteenth National Congress the ‘Strategic Plan for the Development of Youth Work in the Process of Establishing Socialist Market Economic System’, which put forward the ‘Cross-century Youth Civilization Project’ and the ‘Youth Volunteer Program’ as its main content. In December of the same year, the railway system began to provide volunteer services under the banner of ‘Youth Volunteers’. On 5 December 1994, the China Young Volunteers Association was established and young volunteer programmes were carried out throughout the country. Promoted by the Central Committee of the Communist Youth League, volunteer service programmes have been carried out throughout the country, especially in colleges and universities, and become another shining spot in the development of charitable undertakings during the 1990s. All-Round Development of Charities With the opening of the Sixteenth National Congress of the Communist Party of China in 2002 and the Tenth National People’s Congress in 2003, a new generation of Party and government leadership came to power. The new leadership adjusted the development strategy and put forward a series of new development ideas such as ‘People First’, ‘Harmonious Society’ and ‘Scientific Outlook on Development’. It focused its work on coordinated economic and social development, the transformation of government functions, building the public service capacity of the government, and improving people’s livelihoods. This transformation of government function and the change in development strategy brought new opportunities for the development of charitable undertakings in China. Compared with those in the 1990s, charitable undertakings after 2004 showed several new features: first, the Party and the government attached great importance to the development of charitable undertakings and adopted favourable polices on charitable organizations, trade associations, community NGOs and rural professional associations; second, the promulgation

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of the Regulations on the Administration of Foundations in 2004 provided a legal basis for the establishment of non-government charitable foundations and, as a result, a large number of charitable foundations were established, and charitable undertakings became increasingly organized and specialized; third, the enthusiasm of the public to donate to charitable undertakings was further boosted, leading to a new upsurge of donations by private citizens; fourth, the scope of charities was further expanded and new fields and new forms of charitable undertakings emerged; fifth, there were new breakthroughs in government support for charitable undertakings; sixth, a series of measures such as the government purchasing services provided by charitable organizations and new preferential tax policies were adopted in support of charitable undertakings; and seventh, charitable organizations broke through the limits of the traditional fields of charitable undertakings and began to influence public policies and the people’s way of life. In September 2004, the CPC stated in a resolution adopted at the Fourth Plenary Session of the Sixteenth National Congress that ‘efforts should be made to establish and improve a social security system that combines social insurance, social assistance, and social welfare with charitable undertakings’. The Regulations on the Administration of Foundations were promulgated in the same year, which provided for measures for the registration of non-public offering funds and opened the door to the establishment of foundations by private persons and private enterprises. Soon afterwards, the first national non-public offering foundation, the Heungkong Charitable Foundation, was established, followed by a number of national non-public offering foundations with registered funds of over RMB 50 million, including the Narada Foundation and the China Social Entrepreneurs and many local non-public offering foundations. The emergence of non-public offering foundations changed the social structure of charitable undertakings in China, with major social impact. By the end of 2003, there was a total of 943 foundations throughout the country, with their fundraising, fund-using and daily management under the complete control of the government or government related agencies. Since 2004, non-public offering foundations have been developing faster than public offering funds. By the end of 2008, there were a total of 643 registered nonpublic offering funds throughout the country. Among them, 604 (94 per cent) were registered as local foundations. Private donations were combined with the establishment of non-government charitable organizations. Among the enterprises and entrepreneurs on China’s ‘Philanthropists List’ of 2008, seven had established private foundations. In May 2005, a government work report adopted at the annual sessions of the National People’s Congress and National Congress of Chinese People’s Political Consultative Conference stated for the first time that: ‘The State supports the development of charitable undertakings.’ Promoted by the government, charitable undertakings were rapidly mainstreamed in China. On 20 November 2005, the China Philanthropy Conference, the first national conference on philanthropy since the establishment of the People’s Republic in 1949, was held in Beijing. At the conference, the Ministry of Civil Affairs gave the first China Charity Awards – the highest government award in the field of charity – to a number of outstanding philanthropists and called on the public to actively participate in charitable undertakings. The Conference also adopted the Guiding Outline of the Development of Charitable Undertakings in China (2006–10). Meanwhile, Chinese citizens’ charitable efforts have also extended to other parts of the world. Immediately after the Indian Ocean Tsunami in December 2004, the Chinese government initiated an emergency overseas humanitarian relief mechanism and provided disaster-affected countries with RMB 521.63 million worth of emergency relief. In addition, the Ministry of Civil Affairs issued notices throughout the country calling for private donations to disaster areas. The call was met with an enthusiastic response from people of all walks of life. By 6 February 2005, a total of

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RMB 497,945,230 in donations had been raised across the country, including RMB 260 million collected by Red Cross societies and RMB 237,945,230 by charitable associations.15 There has also been a major development in the volunteer movement. On 10 June 2003, with the approval of the Central Party Committee and the State Council, the Communist Youth League and the Ministry of Education launched the ‘Go West Volunteer Programme’ (the Programme). According to the Programme, the government would recruit 5,000 to 6,000 volunteers among the 2.12 million college graduates and send them to poverty-stricken townships and towns in 12 provinces and autonomous regions in western China to provide public services in the fields of educations, health, agricultural technology, poverty alleviation and the construction and management of youth centres for a period of one to two years. In light of the western regions’ need for qualified personnel and in order to provide high quality service to the regions, the volunteers selected by the Central Committee of the Communist Youth League were mainly university graduates with bachelor’s degrees or graduates from professional training schools in the fields of agriculture, forestry, water conservation, pedagogy and medicine. After its promulgation, the Programme received an enthusiastic response from society, especially from college graduates. So far, tens of thousands of university graduates have participated in the Programme. In 2005, the Beijing Olympic Games Organizing Committee and Beijing Municipal Government jointly launched the ‘Olympic Games Volunteer Programme’, calling on the public to participate in long-term and extensive volunteer services, mainly in the fields of environmental protection, dissemination of scientific knowledge and promotion of public interests, thereby realizing the organic combination of volunteer services and the preparation for the Olympic Games. The ‘Go West Volunteer Programme’ and ‘Olympic Games Volunteer Programme’ marked a new stage of development in volunteer service in China: volunteer activities have entered into every field of social life. For example, in 2008, the Industrial and Commercial Bank of China organized 1,745 ‘Action Love’ activities. A total of 80,000 employees of the bank participated in the activities, with 180,000 beneficiaries.16 In 2008, stimulated by such major events as the Beijing Olympics and the Wenchuan Earthquake, the number of volunteers in China had increased to at least 14.72 million. Statistics showed that after the Wenchuan Earthquake, over three million Chinese and foreign volunteers carried out rescue and relief work in disaster areas and over 10 million volunteers participated in relief work outside the disaster areas, with a total economic contribution of about RMB 18.5 billion. In 2008, over 1.7 million Olympics volunteers offered over 200 million hours of services. Four Chinese volunteers and the Beijing Volunteers Association also won the ‘UN Distinctive Volunteer Service Award’ and the ‘UN Distinctive Services Organizing Award’, respectively.17 From 2003, charitable organizations have participated and initiated many public actions and public advocacy campaigns aimed at influencing government policies. Among these actions and campaigns, the most typical ones were those launched by environmental protection organizations. In 2003, several water conservation projects in China were met with resistance by NGOs: first, the Mugecuo Dam Project under Gongga Mountain; second, the Yangliuhu Reservoir Project near Dujiang Weir; and third, a dam project on the Nujiang River. As a result of NGO objections, the dam project on the Nujiang River was suspended and the Yangliuhu Reservoir Project was stopped. The Nujiang Dam project incident was the first major environmental protection incident since the 15  See Bulletin No. 59 of the Ministry of Civil Affairs (on the Use of Private Donations to Areas Affected by Indian Ocean Tsunami). 16  Summary of Social Responsibility Report by Industrial and Commercial Bank of China (2008), in China Business News, 20 April 2009. 17  See the Ministry of Civil Affairs and China Charity & Donation Information Centre, Annual Report on Charitable Donations in China (2008).

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Law on Evaluation of Environmental Effects came into force, in which civil society organizations had exhibited great mobilizing and promotional capacities. Through activities such as seminars, lectures and exhibitions, they aroused widespread public concern on environmental issues and created a certain form of public supervision over public policies. By participating in environmental protection, carrying out environmental education, influencing environment-related government decision-making and initiating environmental protection public activities, environment protection organizations have created the space and mode of activities for the public discourse in Chinese society that are relatively independent of government political space. Characteristics of Development of Charitable Undertakings in China An Overview of General Development It is technically difficult to summarize the overall development of charitable organizations in China. Nevertheless, we can get a rough idea of the development of charitable organizations from a review of the development of NGOs in general in China. In 2006, NGOs in China had a total annual income of RMB 63.6 billion, an annual total expenditure of RMB 45 billion and employed 4.25 million people,18 thereby becoming the largest group of social organizations, other than market economy type organizations. Charitable organizations are playing an increasingly prominent role in Chinese society by way of their growth in numbers, the development of organizational structures and the enhancement of their capacity. NGOs are also playing an increasingly important role in the fields of public service, social intermediary policy advocacy and public participation. Service NGOs have put an end to the government’s monopoly over public services by providing the society with pluralistic, individualized public products and satisfying multiple social needs; intermediary NGOs have taken over public functions given up by the government in the process of transformation of functions and have become a bridge and nexus between the Party and the government on the one side, and society and the public on the other; advocacy NGOs, by initiating discussions on public affairs, have broken through the ideological barrier, promoted social openness and transparency, enhanced social resilience and tolerance, and emancipated people’s minds, thereby creating a platform for the smooth social transition and establishment of a harmonious society. NGOs have opened up new channels outside the government and work-unit systems for citizens to participate in public affairs in an orderly way, thereby raising the level of social approval of public policies, greatly mitigating the legitimacy crisis in the process of institutional reform, filling a gap in public service, and creating conditions for the smooth transition of Chinese society. It can be said that, just like the rise of the private economic sector, the rise of NGOs has been one of the most exciting phenomena of the second half of the twentieth century: the former led to the transition of the Chinese economic system from the planned economy to the market economy and the latter has given the impetus to the transition of the Chinese society from a ‘total society’ to a ‘civil society’. Marketization and democratization has become the main theme of social development in China. By mid-2009, there were a total of 420,000 registered NPOs in China. Statistics of the past years show that, among these organizations, about 35 per cent were trade associations and academic 18  See Li Xueju, ‘Unifying People’s Thinking with the Spirit of the Seventeenth National Congress of CPC and Giving Full Play to the Role of Social Organizations in the Construction of Modernisation’, Studies in the Administration of Social Organizations 3 (2007).

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organizations. All the others were charitable organizations in a broad sense. It is estimated that the number of unregistered NGOs in China is about five to ten times that of the registered ones, and the majority of these unregistered organizations are also charitable public interest organizations. This means that the development of charitable organizations in China has been on an enormous scale. Apart from organized charity, charitable donations by individual citizens and private enterprises have also reached a very high level. The ‘Hurun Philanthropy List’ over the past few years has shown that entrepreneurs from the new social strata have great enthusiasm for charitable donations: in February 2009, Cao Dewang, the owner of Fuyao Glassworks, declared that that he would invest RMB 380 million of his family assets in charitable undertakings and another entrepreneur, Chen Fashu, declared that he planned to donate RMB 850 million to charitable undertakings. In the city of Tianjin, Bai Fangli, who made a living by working as a pedicab driver, helped over 300 school dropouts back into education. He donated a total amount of RMB 350,000 over a period of 18 years.19 There has also been a major breakthrough in terms of the scale of donations. In 2007, the total amount of donations reached RMB 22.316 billion, comprising 0.09 per cent of the GDP of that year, with per capita donations of RMB 17.16. These charitable donations were distributed in 12 fields, listed below in order of the amount of distribution: 1. education; 2. poverty alleviation; 3. disaster relief; 4. construction of bridges, roads, houses and other public projects; 5. medical services; 6. development of higher education; 7. assistance to the handicapped; 8. development of sports and support of sports events (Paralympics and Olympics); 9. caring for children, women and the elderly; 10. environmental protection; 11. cultural, scientific and religious undertakings; and 12. encouraging heroic acts of helping others, discouraging the use of narcotic drugs, supporting the army, and other public interest undertakings.20 19  Bai Fangli, a resident of Tianjin municipality, was born into a peasant family in Hebei Province in 1913. He moved to Tianjin as a refugee in 1944. After the Liberation, Bai became an employee of a transportation company in Tianjin, supporting his four children by working as a pedicab driver. In 1987, Bai, then 74 years old, retired and went back to his hometown in Hebei Province, where a group of children toiling in a crop field drew his attention. He learnt that these children had dropped out of school because of poverty. Upon hearing this, Bai made a decision: he donated his life savings of RMB 5,000 to a local school and went back to the city to continue to work as a pedicab driver to earn more money to help these poor children return to school. In 1994, he opened a little kiosk near the Tianjin Railway Station and put up a sign that read ‘Bai Fangli Education Supporting Company’. He hired an assistant to run the kiosk and continued to work every day as a pedicab driver. He spent all his earnings on the education of children from poor families. In 2001, Bai, who was nearly 90 years old and could no longer drive pedicabs or run the ‘education support company’, began to work at a bicycle parking lot at the railway station. He earned small change by looking after people’s bicycles and put all his earnings into a lunchbox. Whenever the amount of the money in the lunchbox reached RMB 500, he would send it out to a student from a poor family to support his/her education. He did this until his death in 2006. 20  See The Ministry of Civil Affairs, Analysis Report on Charitable Donations in China in the Year 2007.

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In 2008, charitable organizations throughout the country received a total of RMB 107.049 billion worth of donations, consisting of 0.356 per cent of the GDP of that year, and an increase of 246 per cent on the previous year. More specifically: 1. The civil affairs departments (including charitable associations) at various levels throughout the country received RMB 53.605 billion worth of donations, including RMB 47.07 billion in cash and RMB 6.535 billion worth of goods. 2. Red Cross societies at various levels throughout the country received RMB 21.44 billion worth of donations, including RMB 19.052 billion worth donations for earthquake relief, RMB 2.14 billion worth of ordinary donations and Olympics-related donations, and RMB 247 million worth of donation for snow and ice disaster relief. 3. The Organization Department of the Central Committee of the CPC and organizations under it received from Party members throughout the country a total of RMB 9.73 billion ‘special membership dues’ for earthquake relief in Wenchuan County, Sichuan Province. 4. Other government function departments at various levels and mass organizations received a total of RMB 10.828 billion worth of donations, including RMB 7.95114 billion worth of earthquake relief donations and RMB 2.8769 billion worth of other donations. 5. Various foundations throughout the country received a total of RMB 7.86 billion worth of donations, including RMB 1 billion raised by 162 newly established foundations and RMB 1.35 billion raided by 18 national foundations for emergency rescue and post-disaster reconstruction in areas affected by the Wenchuan Earthquake. 6. A total amount of RMB 3.636 billion of Olympics-related donations, fundraised through ‘Spring Breeze Action’, and donations collected by organizations other than civil affairs departments or social organizations.21 Expansion of the Fields of Charitable Undertakings At the initial stages of the ‘reform and opening up’, charitable undertakings in China were mainly concentrated in the traditional charitable fields of education, health and protection of women. Later, with the emergence of increasing social problems, charitable undertakings gradually extended to areas such as environmental protection, human rights, protection of rights of migrant peasant workers, services for the elderly, community self-organization and services to homosexuals and AIDS/HIV patients. For example, prior to the 1990s the issue of homosexuality had gradually entered into the purview of Chinese academic circles. During the 1990s, homosexual organizations began to emerge in the form of ‘service hotlines’ and ‘cultural salons’. The establishment of Beijing Aizhixing in 1994 marked the beginning of service organization in China. It was followed by a number of organizations that provided services to gays and lesbians. Because of their special nature, it is technically difficult to know the exact number of homosexual organizations, but around 20 have been reported in the mass media. Activities such as summer camps, seminars and get together parties have drawn public attention to these groups. As a result, the public have begun to treat those of a different sexual orientation in a more rational and tolerant way.22 Apart from the 21  See Social Welfare and Charitable Undertaking Promotion Department of the Ministry of Civil Affairs and China Charity & Donation Information Centre, China Charitable Donation Report (2008). 22  See Zhao Ke, ‘Thirty Years of Development of Homosexual Organizations’, in Beijing Gongyanhui Consulting Centre, Studies on the Development of Social Organizations (Beijing: The Economic Daily Press, 2008), pp. 21–3.

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organizations for these marginalized groups, there have also been major developments in rights protection organizations and non-governmental think tanks, which have radically changed the composition of charitable undertakings in China. Meanwhile, charitable projects have also expanded from the early fields of poverty alleviation and education into the fields of citizens’ capacity building and public policy. Chinese charitable organizations are beginning to seek solutions to social problems that are different from those provided by either the government or enterprises. An example in this respect is the ‘New Citizen Programme’ developed by the Nandu Foundation. With the acceleration of urbanization, more and more peasants are going to cities to seek jobs, resulting in many difficulties in the education, psychological health and moral development of their children (including ‘mobile children’ and ‘stay-at-home children’). If not dealt with in a proper way, these problems will not only adversely affect the development of children of migrant peasant workers, but also result in serious consequences affecting the future of the State and society. In view of this situation, the Nandu Foundation has decided to implement the ‘New Citizen Programme’ to create a better environment for the development of children of migrant peasant workers. Through the Programme, the Foundation invites NPOs to bid for projects on education and the spiritual care of children of migrant peasant workers. Since July 2007 the Foundation has begun to cooperate with NPOs in establishing and managing non-governmental non-profit schools for children of migrant peasant workers, and it has provided each school with RMB 1.5 to 2 million in financial assistance. In addition, the Foundation supports NPOs to carry out various public interest projects and volunteer activities that provide children of migrant peasant workers with guidance on matters such as morality, study, employment, health, lifestyle and social communication, as well as projects that promote research and policy development on improving the environment of the children of migrant peasant workers. As we can see from the list of the China Charity Awards in recent years, there are many other charitable projects that are quite influential in China. They include the ‘Water Cellar for Mothers’ Project funded by the China Women’s Development Foundation; the ‘Lifeline Express’ Project funded by the China Lifeline Express Foundation; the ‘Guangcai’ Programme funded by the China Society for Promotion of the Guangcai Programme; the ‘Poverty Alleviation’ Projects in the Guangxi Autonomous Region funded by World Vision Guangxi Office; the ‘New Great Wall Most Needy Students Self-Improvement’ Project funded by China Foundation for Poverty Alleviation; the ‘Charity 2007’ Activities organized by Hunan TV station; the ‘Lightening Star Action’ Programme sponsored by Shanghai Media and Entertainment Group; the ‘Seeing the World with Mind’s Eye’ Project organized by Beijing Hongdandan Educational and Cultural Exchange Centre; the ‘Life’s Present’ Project that provides free treatment to children with congenital heart disease from poor families and is funded by the Charitable Association of Jiangxi Province; the ‘Construction of Eco-Toilets in Earthquake Affected Areas’ Project funded by China Environmental Protection Foundation; the ‘Public Interest Entrepreneurship Education Project’ initiated by Hunan University; and the ‘Training of Teachers of Ethnic Minorities in Western China’ Project funded by the China Soong Ching Ling Foundation. Charitable public interest undertakings have also become part of the sustainable development strategies of many entrepreneurs. Charitable donations from entrepreneurs are becoming increasingly specialized and organized, and are being transformed from a moral obligation into a development strategy. According to the ‘Hurun Philanthropy List’ (the List), in 2008, 86-year-old Yu Pengnian donated RMB 3 billion to charitable undertakings, thereby becoming China’s most generous philanthropist for the third consecutive year. Zhu Mengyi ranked second, with a donation of RMB 1.1 billion worth of company shares. Huang Rulun ranked third, with a donation of RMB 850 million. In the past five years, the 100 philanthropists on the List have donated a total of

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RMB 12.9 billion; in 2008, the donation made by the philanthropist who ranked 100th on the List amounted to RMB 26.5 million, and the number of philanthropists who had donated over RMB 100 million reached 27, compared to 15 in 2007. In 2009, Yu Pengnian became the most generous philanthropist for the fourth consecutive time, followed by Huang Rulun and Zhu Mengyi, who ranked second and third respectively on the List.23 New forms of charitable donations have also emerged. The Fashion Group hosts a ‘Bazaar Charity Gala’ every year, in which the top 10 ‘philanthropist movie stars’ in China are named. Some of these ‘stars’ have established charitable foundations, whilst others have been closely following and making special contributions to environmental protection and other charitable undertakings. In addition, advertising, the Internet and other mass media have become important means of charitable donations. Most charitable organizations have established websites to introduce charitable projects, accept donations and deal with requests for help. Most provincial TV stations have special charitable programmes to help needy people. For example, the ‘Haoguang Project’ of Shangdong TV station, the ‘New Year’s Eve Charitable Banquet’ of Zhejiang TV station, and the ‘Special Help’ project of Hebei TV station, have achieved good results in providing timely and effective help to those in need. Imbalance in the Development of Charitable Undertakings Although China has made remarkable developments in charitable undertakings in recent years, the development has been unbalanced. This problem is manifested in the following issues. The first issue is the imbalance in the use of charitable funds. In 2007, 58 per cent of charitable donations went into the fields of education, poverty alleviation and disaster relief. The situation was not much different in 2008, and apart from donations for the relief of snow, frost and earthquake disasters, of the other RMB 30.97 billion in donations received during that year, 47 per cent went into the field of education, 18 per cent was spent on Olympic Games and the development of sports undertakings, 22 per cent was spent on poverty alleviation and other comprehensive charitable fields, and 6 per cent was spent on the development of cultural, art, medical and health undertakings.24 To a certain degree, it can be said that in the current consumer tide, charity to some people has become a consumer activity, and has lost its original ideals and imagination. The second issue is the high concentration of charitable resources. Over 90 per cent of charitable donations go to government or quasi-governmental organizations. Currently, the main body of charitable fundraising organizations in China is made up of Red Cross societies and charitable associations at various levels, various kinds of foundations, and other charitable organizations. In disaster-relief fundraising activities, all civil affairs departments at or above the county level and social organizations designated by such departments can accept donations. Because of the frequent occurrence of natural disasters in 2008, resources of charitable donations have become even more concentrated in civil affairs departments, Red Cross societies and charitable associations at various levels. Statistics show that, in 2008, the above-mentioned ‘three-in-one’ fundraising organizations had directly or indirectly received RMB 95.55 billion worth of donations, which made up 89.26 per cent of the total donations in that year. Meanwhile, the Beijing Olympics Organizing Committee, the General Administration of Sports and local governments at various levels had received RMB 1.6 billion in donations for purposes other than disaster relief. This means that 23  See A Record of the Activities of the 100 Philanthropists on ‘Hurun Philanthropy List’, available at: www.chinavalue.net/media/articale.aspx?articaleID=43664 (last visited December 2009). 24  See Social Welfare and Charitable Undertaking Promotion Department of the Ministry of Civil Affairs and China Charity & Donation Information Centre, China Charitable Donation Report.

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government departments and other government or quasi-governmental organizations, such as Red Cross societies and charitable associations, had taken over 90 per cent of charitable donations. Less than RMB 10 billion in donations were received by other public offering funds, schools and colleges, and social organizations. Therefore, a privileged class has emerged among charitable organizations in China. Like its counterpart in the business circle, this privileged class gains an advantaged position by relying on a monopoly and public power, rather than on capacity building or qualified public products. The development of foundations is also unbalanced. In 2008, a total of RMB 4.8 billion was raised by seven foundations, while little money was raised by the rest of the foundations in China. Moreover, there has also been a regional imbalance in the development of charitable organizations. For example, 60 per cent of private foundations are registered in Jiangsu Province, Beijing Municipality, Fujian Province, Guangdong Province and Shanghai Municipality, while less than five such foundations have been registered in Guizhou Province, Ningxia Hui Autonomous Region, Yunnan Province, Tibetan Autonomous Region, Xinjiang Uigur Autonomous Region, and Heilongjiang Province.25 The third issue is the governmental domination of donations and the lack of charitable culture. After the Fourth Plenary Session of the Sixteenth Central Committee of the CPC held in September 2004, a ‘charitable storm’ began to sweep many large and medium-sized cities in Shandong Province, Jiangsu Province and Chongqing Municipality. The governments in these cities called on and adopted new policies to encourage local enterprises to make donations to local charitable associations. This ‘storm’ lasted for over two years. At its peak in 2007, charitable undertakings were put on the top of the work schedule of local governments at various levels. The top leaders of many local governments even personally took charge of the charitable fundraising work. The main method adopted by local governments to raise charitable funds was to encourage enterprises to report the amount of money they planned to donate and then allow them to keep that amount for themselves and only send the interest earned on the money to local charitable associations every year. This method alone enabled charitable associations in many cities to raise hundreds of millions of yuan in a period of only a few months. The Charitable Association of Changzhou City even made a record by raising RMB 1 billion in only 10 days. It is estimated that a total of RMB 5 billion was raised during the ‘charity storm’ in several provinces.26 Currently, the dominant mode of charitable donation in China is still that of ‘mobilization and exchange’. As donations by individuals and enterprises are the result of being ‘mobilized’, in most cases, the fundraising of charitable intermediary organizations is actually an exchange of resources with enterprises. In exchange for donations, they enable enterprises to utilize the administrative resources of relevant government departments or the connection of their leaders (especially those leaders who had retired from high-ranking positions in the government), or to run advertisements in government-controlled mass media. Therefore, charity is a kind of structural, rather than regular, activity, and in most cases occurs only after a major disaster. The published philanthropy lists show that the main fields of donation by entrepreneurs are still education, health services and disaster relief. In 2008, donations for the relief of the two major natural disasters made up 72.3 per cent of the total donations in that year. In commercial activities, charity is considered by enterprises as a ‘soft’ competitive force that can improve the relationship with the government and the corporate image. The China Charity Federation (the Federation) is the biggest charitable organization in China. According to its President, Fan Baojun, of the total donations received by the Federation 25 Ibid. 26  Zhao Guanjun, Song Zonghe and Song Yang, ‘An Investigation on the “Charitable Storm” in Some Chinese Cities: an All-out Effort by Governments to Raise Charitable Fund’, Public Interest Times, 8 August 2007.

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in the past two or three years, only 15 per cent was from wealthy Chinese citizens. Among the 10 million enterprises registered at industrial and commerce administration departments in China, less than 100,000 have donation records. In other words, 99 per cent of enterprises in China have never participated in charitable donations.27 Therefore, it is necessary to nurture among entrepreneurs the culture of charity through long-term moral education, public interest enlightenment and the promotion of the ‘spirit’ of charity. Development is Still the Main Problem Although charitable undertakings have made remarkable developments in recent years, development is still the main problem faced by these undertakings in China. As charitable undertakings develop within the broad environment of the development of NPOs, the problems in the development of charitable undertakings will be summarized below through the examination of the overall development of NPOs in China. Insufficient Extensional Development Currently there are 420,000 registered NGOs in China and it is estimated that the number of unregistered NGOs is five to 10 times larger than this. The number of social self-organizations in China is quite large, as far as its composition in the existing social organizations is concerned. However, in view of China’s population base and the huge demand for social services created by the transition of government systems, the development of NPOs in China is still inadequate compared with those countries with a more balanced relationship between the State and society,28 and people’s enthusiasm for charitable donation has not been brought into full effect. Therefore, the problem with the development of NGOs is insufficient numbers. The demand for social services created by the transition of government systems can be met only through the establishment of a large number of NGOs. The development NGOs in China must first of all be an extensional development. However, one of the problems with extensional development of NGOs is the distribution and fields of activity of NGOs. In terms of fields of activity, 50 per cent of registered social organizations in China are trade associations, 40 per cent of private-run non-enterprise units are educational institutions, and the majority of foundations are public offering funds. A large number of trade associations have been established in response to the transformation of government functions or in order to meet the requirements of the uniform public administrative system. There is a shortage of bottom-up trade associations that are adapted to the needs of mutual development of enterprises. A large percentage of private educational institutions are engaged in full-time regular education and very few are engaged in the education of special groups or provide special modes of education. Most public offering funds are established by way of imitation or through the support of the government and many of them, such as ‘Foundations for Justice and Courage’, are inactive for most of the time. 27  Shu Jie, ‘The Rich in China Are Very “Miserly” in the Face of Charities’, Global People (Huan Qiu Renwu) 10 (2006), p. 30. 28 According to Zhu Jingchang, Director of Social Policy Research Center of the CASS, China currently has 83 million disabled people, close to 60 million people dependent on subsistence allowances, and 60 million people who need special assistance each year because of natural disasters. Altogether there are over 150 million people in China who need assistance each year. Therefore the social need for charitable organizations is enormous. See Long Hao, ‘Policies and Institutions Relating Charitable Undertakings Need to Be Improved’, China Economic Times, 17 September 2009.

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Therefore, currently it is imperative for China to encourage the development of self-help NGOs, advocacy NGOs, solidarity NGOs, NGOs providing services other than education, and private foundations. Another problem with the development of NGOs in China is the imbalance in regional distribution. Currently NGOs in China are mainly distributed in the economically developed eastern part, rather than in the western and, in particular, the central parts of the country.29 Apart from the problem of regional imbalance, the imbalance in the development of NGOs between urban and rural areas is also a prominent problem. Because cities have more qualified professionals than rural areas, it is easier for them to attract the funds of enterprises and overseas NGOs or the attention of the mass media. In addition, because of their plural social atmosphere, cities provide a more tolerant environment for the development of NGOs. As a result, NGOs are concentrated in cities. Even NGOs that mainly provide services to rural people and carry out activities in rural areas have their main offices in cities. Some people call these organizations ‘NGOs that are floating in the air’. Considering the current complicated social environment in China, the survival strategy of these NGOs is understandable. What is needed is to change the environment itself. Nevertheless, the fact that NGOs are far away from the social groups they serve is not conducive to the realization of their ideals, to the implementation of their projects or to the long-term development of these NGOs. The researchers of NGOs and many other issues in China are always faced with a perplexing phenomenon: due to institutional reasons, many activities which should be carried out according to legally prescribed rules are instead carried out according to some underlying ‘hidden’ rules. Gradually these hidden rules replace the legally prescribed rules to become commonly accepted rules, thereby further twisting the already problematic system, and increasing the difficulties in institutional reform and standardization of social administration. Therefore, in order to support the development of NGOs, the government should not only adopt general incentive measures, but also provide specific guidance to different NGOs and support the development of special types of NGOs. The measures adopted by the State in recent years to give special support to industrial associations, community NGOs, public interest charity organizations, and rural professional and technical associations, has been a step forward. What the government now needs to do is to take the needs of society, rather than its trust, as the criterion for determining which NGOs should be supported and, in the process of implementing the strategy of development in western China, provide more support to NGOs that carry out activities in western underdeveloped regions, so as to promote the coordinated economic and social development in these regions. Insufficient Intentional Development The insufficient intentional development of NGOs is the result of unstable legal status and insufficient capacity building, namely the inability of many NGOs to satisfy the basic needs of institutional reform and social services. First, unstable legal status is the biggest obstacle to the 29  Our investigations show that the development of NGOs in western China is faster than the social development in this region. The degradation of the environment, the scarcity of resources and the serious insufficiency of social services in this region has caused great public concern. Local governments in this region have adopted more flexible policies in the fields of poverty alleviation, environmental protection, education and protection of women. As a result, NGOs in some western provinces are more active than those in the central part of China. Examples of such NGOs include educational and women’s NGOs in Gansu Province; foreign NGOs engaged in environmental protection, prevention and treatment of AIDS/HIV, and poverty alleviation in Yunnan Province; those engaged in poverty alleviation in Guangxi Zhuang Autonomous Region; and those engaged in labour services in Sichuan Province.

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development of NGOs in China. Currently, NGOs in China have many internal problems, such as low levels of ability, lack of effective self-regulatory mechanisms, vagueness of the nature and ownership of their assets, and illegal organizations. However, the root cause of these problems is the unstable legal status of NGOs in China. The key to solving this is to safeguard citizens’ freedom of association through the establishment of certain legal systems. Although the freedom of association is clearly provided for by the Constitution and the relevant administrative regulations, and a broad space for the development of NGOs in China has been created by the market economy, the problem of uncertainty of legal status persists. The irregular administrative measures and repeated ‘rectification’ by the government are threatening the survival of NGOs in China. Although, generally speaking, the clean-up and rectification measures taken by the government against some NGOs are necessary and moderate, the instability of legal status can directly affect the structural transformation and capacity building of NGOs and encourage the short-term and rent-seeking behaviours of grassroots NGOs. The history of development NGOs has been one of ‘clean-up and rectification’ by the government. Since the establishment of the People’s Republic of China in 1949, the government has carried out three large-scale ‘clean-up and rectification’ campaigns against NGOs that began in 1950, 1990 and 1997 respectively.30 Such campaigns have had great impact on the development of NGOs. The process of ‘clean-up and rectification’ is in fact also a process of screening NGOs by the government, and the government will inevitably impose its own values and ideas on civil society so as to realize certain forms of total State control. Meanwhile, NGOs are also a kind of social resource and large-scale disbanding and cancellation of the registration of NGOs is a waste of resources. To look at the problem from another angle, large-scale clean-up and rectification of social organizations indicates that the legal mechanism for the regulation of NGOs is defective and has alienated the function of NGOs and impacts negatively on the stability and development of society. Moreover, a large-scale clean-up and rectification also leads to high administrative costs and directly affects the transformation of government functions. Second, the problem of structural transformation in the development of NGOs needs an urgent solution. A review of the history of NGOs in China shows that the story of the development of a NGO is often also a story of one or more charismatic leaders of the NGO. Examples of such famous NGO leaders include: Xu Yongguang, founder of the China Youth Foundation; Liang Congjie, founder of Friends of Nature; Liao Xiaoyi, founder of the Global Village; Xie Lihua, founder of the ‘Rural Women Knowing All’; and Meng Weina, founder of ‘Guangzhou Huiling’. The dedication and charisma of these individuals propelled the development of grassroots NGOs in China. Dependence on the personal charisma of individual leaders at the initial stage is a basic feature of the development of NGOs throughout the world. Dedication and great enthusiasm are no doubt necessary for the promotion of any public interest undertaking. However, the long-term and large-scale development of NGOs must rely not on dedication and enthusiasm, but on an institutionalized mechanism. Otherwise, it would be difficult to avoid the alienation of the ‘spirit’ of public interest or the decline of a public interest undertaking when the well-known leaders leave these NGOs.31 Although the ‘individual charisma’ governance model is a common phenomenon during periods of social transition, and charismatic people can change people’s values and beliefs, 30  See Wang Ming (ed.), Reform of Social Organizations in China: From the Choice by the Government to the Choice by the Society (Beijing: Social Sciences Academic Press, 2001), pp. 101–2. 31  One such example is Beijing Maple Women’s Psychological Counselling Centre. The founder of the Centre, Wang Xingjuan, is already over 70 years old and other key members of the Centre are also ageing. How to find suitable successors has become a question that has bothered the leaders of the Centre for many years. The main difficulty lies in the low salaries at the Centre. Similar problem also plagues Friends of Nature. The person in charge of the organization, Liang Congjie, is already 70 years old. See Wang Ming

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such a governance model has its problems and is not a stable and lasting mode of development for social organization or social authority. No society will be in a permanent state of ‘exciting’ social transformation. Once the social transition is completed, routinization of social development will become the inevitable trend. When charismatic leaders lose their charisma or come to the end of their life, routinized governance models will inevitably take over.32 Moreover, it is human nature for everybody, whether a leader or an ordinary person, to have a dark side and therefore nobody should be relied upon unconditionally. In a secular, routinized and mediocre world, the ‘person-centric’ action model will inevitably be transformed into a ‘business-centric’ action model and an institutionalized mechanism is the precondition for the stable and healthy development of any undertaking. Thus, the problem with social organizations in China has once again become a problem of the legal system. The top priority in the development of NGOs in China is to establish a regular NGO regulatory mechanism or system – especially at a time when the leadership of NGOs in China is in the process of transition from the first generation of charismatic leadership, to the second generation of regular leadership. Third is the problem of capacity building. Currently most NGOs are still at the stage of accumulation of personal charisma. They are established by a few people who share common ideals or are run by a family with few or no professional staff. The personality of these organizations has not yet been completely separated from that of their individual leaders and no regularized social operational model has been developed. With the exception of a few which are dependent on the government system, most NGOs in China do not have a stable source of funding and project operation mechanisms. Their activities are often in response to funds or social problems. This situation has adversely affected the stability of their organizational ideas and dissemination of their values. One prominent problem is that many NGOs have identical fields of activity and modes of project operation, resulting in a so-called ‘NGO industry’ in some fields. There are many causes of this problem. Most importantly, NGOs’ fields of activities are still subjected to many visible and invisible restrictions. In order to avoid troubles that may threaten their survival, many NGOs are forced to crowd into a few fields with low political sensitivity and high social recognition, such as environmental protection and the prevention and treatment of HIV/AIDS. On the other hand, NGOs themselves must also share some of the blame for their failure to effectively explore new resources and new fields of activity. Generally speaking, all NGOs in China are faced with the question of how to improve their own capacity under the condition of the market economy. This problem is especially prominent in NGOs with a government background. NGOs with a government background (mainly trade associations) are the products of the ‘reform and opening up’ and the transformation of government functions. From the very beginning, these organizations have been supported by the government in matters of personnel, material and administrative resources. ‘Quasi-governmental’ is an appropriate description of these organizations. However, with the deepening of the reforms of the government system, these organizations are faced with being ‘weaned’ and surviving on their own. It is imperative for them to find a way to realize the change of their status, to become genuine social intermediary organizations and perform their functions as intermediaries between various actors in the market, and between the government and the society. Finally, the level of networking among NGOs is still very low and these organizations are basically in a fragmented state. In the past 30 years of development, the networking of NGOs has (ed.), ‘Case Study on China’s NGO’, in UNCRD Research Report Series No. 38 (Beijing: UNCRD and NGO Research Center of Tsinghua University, 2000). 32  See Max Weber, Economy and Society (Part 2), trans. Lin Rongyuan (Beijing: the Commercial Press, 1997), pp. 446–70.

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been gradually strengthened and some relatively influential NGO networks, including networks of women’s protection NGOs, foundations and labour organizations, have emerged. These networks are established either on the basis of common need, through liaisons with funding organizations or with the support of the government, and they have carried out some collective actions. For example, the national Anti-Domestic Violence Network has carried out lobbying for the adoption of laws on the protection of women’s rights,33 and the NPO Information Centre has been engaged in the setting of honesty standards for civil society in China. But generally speaking, the government policy of restricting the unionization or establishment of regional branches by NGOs has obstructed the networking of civil society organizations. The main opportunities for NGOs in China to contact each other are seminars and training courses. As a result, it is very difficult for them to reach consensus on joint actions or on a common code of conduct. This scattered existence of NGOs has made it easier for the government to exercise social control, but harder for the civil society to develop, hence is not conducive to long-term social development. Reflections and Discussions China has made remarkable achievements in the development of charitable undertakings in the past 30 years. A charitable undertaking supply system has been established outside the government system. However, nobody is satisfied with the current conditions of NGOs in China and there are many complaints: charitable organizations that have not been able to be registered want the government to relax the conditions for registration, especially to change the dual administration system, so that they can acquire legitimate status – the precondition for the long-term development of an organization; those that have already acquired legal status want the government to change the current preferential system of tax reduction policies so that they can equally enjoy preferential tax policies; those that have already enjoyed preferential tax policies want the government to increase government procurement of their services so as to create a more comfortable environment for their development; society hopes that charitable organizations can provide more specialized social services and that their charitable activities can be more effectively linked to the donors’ intentions. The incident in which a female college student tried to raise money for her mother’s operation by selling herself on the Internet and the incident in which Cao Wangde, the owner of a glasswork company, declared that he would donate RMB 3 billion worth of shares to charitable undertakings have shown that there is no lack of love and compassion in this increasingly plural society. What society lacks are professional service organizations that can establish an effective linkage between donors’ wishes and social needs, as the formal government assistance system is unable to cover diverse social needs. The government is even more dissatisfied with the current situation of NGOs in China and political considerations are still the main reason for such dissatisfaction. The government hopes that charitable organizations will play the role of ‘helpers’, rather than troublemakers, and is trying to incorporate charities into the government value system, so as to prevent them from becoming the initiators of social crisis or competitors for public trust resources. To a government with insufficient legitimacy, the competition for public trust resources from organizations outside the system poses even greater danger to its long-term ruling than the chaos created by such organizations. The government’s dissatisfaction with the current situation of charitable organizations also comes from 33  Song Zhiyuan, ‘A Structural Analysis of Member Participation and Distribution of Power in NGO Networks: the Case of Anti-Domestic Violence Network’, in China NPO Review, Vol. 1 (Beijing: Social Sciences Academic Press, 2007), pp. 182–96.

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administrative consideration: many charitable organizations with government backgrounds still have a long way to go in order to become genuine NGOs; many NPOs do not strictly abide by the non-profit principle and profit-making in disguised forms is common among these organizations; the level of specialization among charitable organizations is still very low and there is no effective separation between fundraising organizations and operational organizations. In general, charitable organizations in China are still faced with a harsh environment. Charitable undertakings are the result of crisis response, rather than of rational understanding of the relationship between the State and society. Although the emergence of crises may have created a broad space for the development of charitable undertakings in China, such space may disappear once the crises are over. The relationship between the State and society has never been straightened out and currently both the government and civil society organizations have found themselves in a subtle and embarrassing situation. Civil society organizations are forced to limit their activities to a few politically insensitive areas, such as environmental protection, education and health, or seek legitimacy by wearing a ‘red hat’.34 There have always been doubts about the legitimacy and legitimate living space of rights protection and advocacy NGOs. Once public resources become adequate, the process of ‘advancement of the public sector and retreat of the private sector’ will also occur in the field of civil society organization.35 For many charitable organizations, their very survival is still in question, and for many grassroots organizations, their legitimacy remains an unresolved issue. They are struggling to overcome the political obstacles and achieve legitimate status. The dual administration system has made it difficult for grassroots NGOs with no social capital, especially with no connections in the government, to find ‘mothersin-law’, namely government sponsor institutions to which they must be affiliated in order to be registered. As for those that have already overcome the political obstacles, they are faced with the problem of how to overcome technical obstacles, acquire a living space for themselves and survive the high government pressure and intense competition in society. These technical obstacles include specialization of the organization, the establishment of a modern governance structure and a strict financial system and, most importantly, organizational transformation.

34  For example, the Hope Project initiated by the Youth Development Foundation. In the process of implementing this project, the Foundation has tried to maximize the social influence of the project by running advertisements in the People’s Daily, and widely publicizing inscriptions of encouragement by Party and government leaders and donations by celebrities. See Sun Liping, Jin Jun and He Jianghui, ‘Reorganising Social Resources through Socialisation: a Research on the Process of Resource Mobilisation under the Hope Project’, in China Youth Development Foundation and Research Committee on the Development of Foundations, Chinese Social Organizations at a Cross Road, p. 136. 35  On 16 October 2007, Jinan High School, a private school in Wangdu County, Hebei Province, was forcibly closed down by local government, and more than 800 students and 35 teachers were removed from the school compound by force. Only 15 days later did the chairperson of the school’s board of directors, Ding Caiying, receive a ‘Notice of Educational Administrative Punishment’ issued by the Educational Bureau of Baoding City, Hebei Province, which contained a recommendation to revoke the school-running licence of Jinan High School and stated that the High School had the right to challenge the decision in accordance with law. Before the licence of Jinan High School was formally revoked, the Bureau of Culture and Education of Wangdu County carried out a ‘blitz operation’ against the school under the pretext that the licence of the school had been revoked. On 16 October, at 11a.m., government officials ‘invited’ Ding Caiying and the school head to a hotel in the county town for an ‘interview’. They were forced to stay in the hotel until 8pm On leaving the hotel, they learnt that the County Bureau of Culture and Education, with the support of the county Party committee and county government, had removed all the students and teachers from their school and forcibly resettled them to Wangdu Middle School, the public school of that county.

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On 12 May 2008, a major earthquake struck Wenchuan County, Sichuan Province. Unprecedented media coverage enabled Chinese people to learn about the horrifying damage caused by the earthquake, thereby generating great public enthusiasm for charitable donations. Many people volunteered in the rescue and relief work and there are numerous heroic and touching stories about these volunteers and donors. Some scholars predicted that the Wenchuan Earthquake and charitable activities that followed would herald a new era in Chinese charitable history. Unfortunately, this did not happen. The nature of emergency incidents has determined that normally they will not bring about long lasting social effects. However, the root cause for the failure of Wenchuan Earthquake to bring about a rapid rise in NGOs, radical improvement of the living environment of NGOs and broad recognition of NGOs by the society, as happened in Japan after the Kobe Earthquake in 1995, was the government’s attitude towards NGOs. What the government should have done in the aftermath of the earthquake was to establish a series of systems and mechanisms to support the activities of NGOs, and to bring scattered volunteer activities into an organized system, and to routinize people’s temporary donations. Because of the difficulty and complicity of post-disaster reconstruction, more volunteers and funds were needed in the earthquake-stricken areas after the initial rescue work was completed. However, immediately after the completion of the rescue, the government rejected NGOs. Many volunteers and NGOs were asked to leave the disaster-affected areas under the pretext of epidemic prevention. The mass media were told not to publicize NGOs’ activities in earthquake stricken areas but instead to focus on the role of local Party organizations in the disaster relief work. NGOs could not carry out activities in disaster stricken areas in their own name, but could do so only in the name of their individual volunteers. The government also tried to bring private donations into government channels through officially organized fundraising activities, such as fundraising by the Communist Youth League organizations, women’s federations and trade unions or by organizing Party members to pay ‘special Party membership dues’. Such measures, aimed at reducing the resources and living space of civil society organizations, were motivated by the government’s distrust of civil society organizations and reminded people of an ancient story about a man who was frightened by an imaginary snake in his wine cup. But the main reason behind such measures was the government’s worry about the competition from civil society organizations for public trust resources. To the Chinese government, the social instability brought about by civil society organizations can be brought under control, but the competition for public trust resources is beyond its control. The charitable activities of civil society organizations indicate the insufficiency of public services offered by the government and defects in the administration by the government. The key to the development of charitable undertakings in China is to change ideas and the construction of systems.

Chapter 5

The Development of Women’s NGOs in China Shen Guoqin

Introduction The interaction between women and NGOs is an important phenomenon in the development of NGOs in different countries of the world as well as in the international community as a whole. In China, women’s NGOs have made remarkable developments and exerted an important influence on society. Compared with those of other types of NGOs, the emergence and development of women’s NGOs in China reflects not only the emergence and development of civil society, but also the awakening and growth of women’s gender-consciousness in the country. Therefore, the development of women’s NGOs, while sharing some common background and attributes with the development of other types of NGO in China, has a unique context and course – which should be the starting point of the understanding of women’s NGOs in China. It is also the starting point of the review and analysis of this type of organization in this chapter. Although the term ‘women’s NGO’ has been widely used in China, so far there is still no clear definition of the term. Therefore, our primary task in the review and analysis of women’s NGOs in China is to give a clear definition to this term. In trying to define ‘women’s NGOs in China’, we are faced with several problems. The first aspect of the difficulty is the definition of the term ‘NGO’. It mainly involves the question of the status of the All-China Women’s Federation (ACWF), which was raised during the preparation of the Fourth World Conference on Women in 1995. Although, in a report on the ‘Implementation of the Nairobi Forward-looking Strategies for the Advancement of Women’ submitted to the UN in 1994, the Chinese government stated that the ‘ACWF is the largest NGO in China committed to the advancement of women’, there have been a lot of disputes concerning the NGO status of the ACWF. However, if we put such debate into the Chinese context and examine it against a constantly developing and changing background, we will see that its focus has become blurred. The ACWF has been continuously changing its functions and re-adjusting its status since the beginning of the ‘reform and opening up’. First, the identity of   There are three different opinions on the status of women’s federations in China. The first one is that they are not NGOs, rather an instrument of the government for implementing its policies. See Chinese Women’s Research Society (ed.), Trend of Development in Women’s Research (1999) 1, p. 39. The second opinion is that they are quasi-governmental organizations, which is an intermediary form of organization between NGO, NPO and governmental organizations, namely NGOs established by the government. See Fu Chun, ‘Transformation of Nature, Evolution of Functions, and Change of Value: an Analysis of the Transformation of Women’s Federations in China Since the Establishment of the People’s Republic’, in Lanzhou Academic Journal 2 (2004), p. 200. The third opinion criticizes the long-standing misunderstandings in mainstream NGO thinking and takes the view that women’s federations in China are in a unique position in that they have the characteristics and functions of both governmental and non-governmental organizations. See Zhong Neihua, ‘NGO Discourse and Its Influence on Women’s Organizations in China’, in Research Institute of ACWF (ed.), Theory and Practice of the Development of Women’s Organization in China (Beijing: Social Sciences Academic Press, 2007), p. 349.

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the ACWF has changed. The development of the ACWF can be divided into three stages. ‘[A]t the first stage, the ACWF was the union of different women’s organizations; at the second stage, it was formally incorporated into the State administrative system established in different administrative areas; and at the third stage, it has redefined itself as a women’s NGO.’ Second, it no longer takes the implementation of government policies on women as its main task, but is beginning to seek recognition by women’s groups so as to acquire a society-based legitimacy for its own existence. Third, the purpose and objective of promoting the liberation and equality of women has been strengthened. The ACWF is trying to promote the realization of this goal not only through its own actions, but also through extensive cooperation with new types of women’s organizations. Generally speaking, the evolution of the ACWF, as a special type of women’s NGO, has reflected the development of women’s NGOs as a whole in China. The second aspect of the difficulty is the definition of a women’s NGO. It mainly involves the question of what criteria should be used for categorizing various women’s organizations and non-women’s organizations that are devoted to the study of women’s issues or the furtherance of women’s liberation causes. ‘Women’s NGO’ is only a general categorization based on gender or gender-consciousness. Further categorizations can be made according to criteria such as the NGO’s operational mechanism or field of activity. The most clear-cut criterion for defining women’s NGOs would be a combination of all the three criteria mentioned above. In terms of operational mechanism, NGOs can be divided into membership organizations and non-membership organizations. Women’s NGOs belonging to the former category are mostly organizations established for the purpose of furthering the common interest of a specific women’s group or pursuing a certain common hobby. Such organizations usually only accept women as their members. Women’s organizations belonging to the latter category are mostly public interest organizations and membership is not limited to women. In terms of field of activity, non-membership women’s NGOs can be subdivided into foundations, research organizations, service-providing organizations, advocacy organizations, comprehensive organizations, etc. Apparently, in order to acquire the status of a women’s NGO, such organizations must have a strong gender-consciousness, a special interest in gender issues and an objective of furthering gender equality. In addition, it should also be pointed out that, with the enhancement of gender-consciousness, some women’s organizations no longer concern themselves merely with gender issues, but are beginning to pay attention to such special issues as environmental protection, poverty alleviation and the protection of vulnerable groups, from a feminist perspective. However, the expansion of their field of activity does not affect their NGO status. The emphasis of this chapter on the organizing of ‘gender’ and ‘gender-consciousness’ is based on the comprehensive consideration of different types of women’s NGO. Evolution of Women’s NGOs in China A review of the development of women’s NGOs in China shows that they emerged against the background of the ‘reform and opening up’ and developed under the effects of internal and external factors. Their development can be divided into three stages.

  Fu Chun, ‘Transformation of Nature’, p. 201.

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Embryonic Stage (1978–95) All the previous studies have put a special emphasis on the important role of the United Nations Fourth World Conference on Women, held in Beijing in 1995 (hereafter referred to as World Conference on Women), in the development of NGOs in China, while often ignoring the embryonic stage of the development of women’s NGOs in China that occurred before the World Conference on Women. This is an external, rather than internal, perspective on the development of women’s NGOs in China. From the internal perspective, it was the changes brought about by the ‘reform and opening up’ and the emergence of embryonic forms of women’s NGOs against this background that laid the foundation for the vigorous development of women’s NGOs in China after the World Conference on Women. The ‘reform and opening up’ initiated in 1978, created the conditions for the emergence of women’s NGOs in China. First, the establishment and development of the market economy made it possible for women with different interest demands to get together and form different groups for the pursuit of common interests. This was the most basic factor that created a broad space for the emergence and development of women’s NGOs in China. Second, the establishment and development of the market economy had also had a negative impact on women. Gender differences became a prominent issue under the market economy. Many problems emerged, such as dismissing female employees, women leaving their jobs to become housewives, difficulties faced by female college graduates in finding jobs, violations of the rights and interests of female migrant workers, girls dropping out of schools, abduction and trafficking in women, prostitution of women, violence against women, loss of land rights by some rural women, and the worsening physical and mental health of women. Women’s social standing, which was relatively high under the planned economy, was also rapidly worsening. The existence of the above problems created the necessity for the development of women’s NGOs. At the embryonic stage of the development of women’s NGOs in China, major changes had taken place within the ACWF system and various kinds of research women’s NGOs, mutually-beneficial women’s NGOs and women’s foundations began to emerge outside the ACWF system. All these changes had a profound impact on the existing social structure. However, the emergence of new types of organizations and the changes that had taken place within the existing organizations were not conscious actions taken on the initiatives of these organizations, but rather adaptive responses to the social changes. Women’s NGOs were still at the embryonic stage, which was when the following changes occurred. Preliminary changes within the ACWF system  The ACWF suffered destructive sabotage during the Cultural Revolution. Geng Huamin, who has studied women’s federations in the period of the ‘Cultural Revolution’, pointed out that: at a time when men and women were carrying out revolution together, women’s federations had lost their professional functions and were relegated to the category of outdated organizations and therefore changed from the intermediaries between the Party and the broad masses of women into objects to be reformed through the Cultural Revolution. After the implementation of the policy of ‘reform and opening up’, the ACWF was restored. In the early days of its restoration, the ACWF continued to emphasize its administrative functions. According to the Constitution of the Fourth ACWF, the ultimate objective of the organization was   Geng Huamin, ‘Evolution of Women’s Federations during the “Cultural Revolution” and the Causes Thereof’, in Research Institute of ACWF, Theory and Practice of the Development of Women’s Organization in China, p. 378.

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to strive for the complete emancipation of women. However, it was also under an obligation to organize and mobilize women to work for the goal of building China into a strong socialist country with modernized agriculture, industry, national defence and science and technology. The objective of the emancipation of women was overwhelmed by the objectives of socialist construction and gender differences were ignored. Later, the many changes brought about by the deepening of reform made it increasingly difficult for the ACWF, with its traditional ideas and existing self-positioning, to meet the demands of the new situation. As a result, it was forced to search for a new way out of this dilemma. This search continued for the entire period from the early 1980s to the convening of the World Conference on Women in 1995. In the early 1980s, the ACWF took the initiative to carry out activities of ‘upholding the lawful rights and interests of women and children’ and established ‘rights-defending’ organs under women’s federations at various levels. During this period, a large number of women’s research bodies had been established either under or at the initiative of women’s federations at various levels. Those established under women’s federations include the Institute of Women’s Studies established under the ACWF in 1991, women’s studies institutes established under some provincial women’s federations since 1985, and research offices established under the working departments of women’s federations at various levels. Those established at the initiatives of the women’s federations include the first Research Committee of Marriage Law, the Women’s Research Centre established under the Futurology Research Society of Henan Province in 1985, and similar organizations established in many provinces and municipalities. While taking concrete action to meet social changes, women’s federations were silently changing their positions. The Constitution of the sixth ACWF, adopted in September 1988, provides that the basic function of women’s federations is to represent and uphold women’s interests and promote gender equality. Apparently, women’s federations had abandoned the idea of representing only the government and seeking legitimacy from the government, and were beginning to emphasize their status as women’s representatives and to develop the intention of seeking organizational legitimacy from the broad masses of women. The starting point of the growth of women’s public interest NGOs: women’s research NGOs and women’s foundations  There are two main types of women’s public interest NGOs: women’s research NGOs and women’s foundations. One of the important features of this stage of development was the emergence of a large number of women’s research NGOs outside the women’s federation system. First, a series of research organizations were established under universities, colleges and academies of social sciences. They included the Women’s Studies Centre of Zhengzhou University established in 1987, the Research Office on Women’s Issues under Northwest Population Research Institute of Lanzhou University established in 1988, the Women’s Legal Study and Service Centre of Peking University established in 1990, and the Women’s Research Centre of Tianjin Normal University established in 1993. Second, there also emerged some independent women’s research organizations, such as the Beijing Maple Women’s Psychological Counselling Centre (originally the Women’s Research Institute of Chinese Academy of Management Science) established in 1988, the Jinglun Centre of Family Science established in 1993, and the Women’s Research Centre established under the Central Plain Cultural and Economic Research Centre of Henan Province in 1993. The emergence of these   Li Xiaojiang, ‘Where Are We Now after Fifty Years? – A Retrospect on Women’s Liberation and Development in China’, in Zhejiang Academic Journal 1 (2000), p. 65.   For information on women’s research organs inside and outside women’s federation system, see Yi Ying, ‘A Tentative Exploration on Women’s Research Organizations in Contemporary China’, in Women’s Research Forum 2 (2000), pp. 24–38.

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research institutions showed that the monopoly of women’s federations in the field of women’s research had been broken up and that the elites in women’s group had already began to reflect and carry out research on many women’s issues by their own initiatives. Independent women’s research organizations were particularly beginning to play a positive role in ‘promoting service to and development of women and the solution of hot issues relating to women’. Women’s foundations also began to emerge at this stage. China Women’s Development Foundation was established in December 1988 with the aim of improving the overall quality of life for women, upholding their lawful rights and interests, promoting their development, and raising funds and materials from enterprises, public institutions, social organizations and individuals, both in China and abroad, and giving full attention to its unique social function in the education and training of women, poverty alleviation, disaster relief and other public interest activities. The emergence of this type of organization was conducive to drawing public attention to women’s issues and attracting non-governmental resources to the field of women’s development. The emergence of women’s mutually-beneficial NGOs  Both types of women’s mutually-beneficial NGOs, namely professional associations and solidarities, emerged at this stage. Their emergence was related to the fact that, in the process of ‘reform and opening up’, the traditional part of the institution designed for resolving women’s problems had been deconstructed and the remaining part was insufficient to meet the actual need. The traditional part of the institution consisted of trade unions in work units and women’s federations, the former were in charge of women in enterprises while the latter were in charge of women in urban and rural communities. Before the ‘reform and opening up’, the function of work units, which was the extension of the function of the government and trade unions in work units, played an effective role in resolving women’s problems. After the ‘reform and opening up’, however, the function of the work units changed: their administrative function had been weakened; their professional or business function had been strengthened; their social function had gradually been taken away; and their integrating function had also been weakened. The changes resulted in the gradual deconstruction of the mechanism for the resolution of women’s problems through trade unions in work units. Meanwhile, the mechanism for the resolution of women’s problems by women’s federations was also faced with serious problems of insufficiency. The ‘reform and opening up’ led to diversification of women’s interests and the formation of different interest groups. Moreover, with the gradual replacement of the ‘acquaintance society’ by the ‘stranger society’, women’s interest demands and hobbies could no longer be satisfied through the traditional channels of work units, neighbours or communities and, therefore, it became possible for women with the same interest demands or pursuits to establish organizations to satisfy their common needs. When rural people were encouraged to get rich and different interests and hobbies were tolerated, women with common objectives and interests were able to get together and form mutually-beneficial organizations. At this stage of development, although women’s federations were already trying to seek more support from the broad masses of women, they were still not able to harmonize different claims and interests. Therefore, ‘faced with different groups of women with different, even conflicting, welfare needs and interest demands, on whose side should women’s federations stand? Apparently, women’s federations, as representatives of Chinese women as a whole, had serious structural limitations in meeting the interests and needs   See ibid., p. 36.   See the website of China Women’s Development Foundation: www.cwdf.org.cn/About_us.asp? classid=337 (last visited 15 June 2009).   See Peng Huining, ‘The Re-socialisation of the Civil Society: From Unit Person, to New Unit Person and to Community Person’, in Tianfu Xinlun (Tianfu New Idea) 6 (1997), p. 50.

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of different groups of women’. It was exactly the insufficiency of women’s federations that created space for the emergence and rapid development of the mutually-beneficial type of women’s NGOs. Among the women’s NGOs established at this stage of development at the national level were: the China Association of Women Entrepreneurs, established in 1985; the Women Mayor’s Branch of China Association of Mayors (formally National Women Mayors’ Association), established in 1991; and China Association of Women Scientists, established in 1993. At the local level, the Association of Women Entrepreneurs of Shaanxi Province and Shanghai Association of Women Engineers were established in 1988 and 1984, respectively. National groups organized for a common economic, cultural or other purpose, such as friendship associations, sororities or alumni associations, including the Women’s Committee of Western Returned Scholars Association (established in 1985) and, at a local level, the Shanghai Mulan Boxing Association (established in 1988) and the Yan’an Association of Alumni of Beijing Women’s University (established in 1993). Although there are many such organizations, it is difficult to know their exact number because only a few of them have been formally registered with the relevant government departments. The Stage of Rapid Development (1995–2004) In the 1980s, although women’s NGOs had already emerged, their development was very slow. There were two reasons for this situation. Slow development was not unique to women’s NGOs, but a common feature of all NGOs in China during the 1980s. This was because the breaking up of State or social holism had been a top-down process, and civil society itself was just about to emerge. Citizens still lacked the consciousness of organizing themselves to express their will or participate in social activities. Moreover, women’s NGOs were faced with a special obstacle in their development, namely the Marxist theory on the liberation of women. According to this theory, which was developed in the revolutionary basis before the establishment of the People’s Republic of China (PRC), ‘the oppression and enslavement of women is inseparable from the reactionary rules of imperialists, feudalists, and bureaucratic capitalists, or of the exploiting classes as a whole. Therefore, the women’s liberation movement in contemporary China is a part of New Democratic Revolutionary Movement and must be closely combined with the movement of liberation of the entire nation’.10 Therefore, women’s liberation was regarded as a link in the movement of destroying the old systems and an important part of social revolution. Such a theory continued to dominate the women’s movement after the establishment of the PRC and was reflected in the constitutions of the ACWF before 1988. There is no denying that the government’s attitude and approach towards women’s issues led to earth-shaking changes in the fate, as well as the status, of Chinese women. However, this theory only emphasized the political and economic causes for the unequal status of women while ignoring women’s issues in other fields. Moreover, because this theory stressed that women’s liberation is the inevitable result of social liberation, women were often mobilized to participate in social revolution and construction and not enough attention was paid to the problem of gender inequality. As a result, Chinese women failed to recognize and reflect on women’s issues or to develop gender-consciousness. It was exactly for this reason that when large numbers of women’s problems and new forms of discrimination against women emerged after the ‘reform and opening up’, women’s groups and organizations could only make some adaptive responses or adjustments, rather than take action against such problems on their own initiative. Under such   Zhang Zhongru and Cheng Fucai, ‘The Rise of Women’s Civil Society Organizations and the Response of Women’s Federations Thereof’, in Journal of Chinese Women’s University 5 (2002), p. 44. 10  Qu Mengjue, ‘How to Become a New Woman in a New Society’, in Historical Materials on Women’s Liberation Movement in China (Beijing: China Women Publishing House, 1991), pp. 425–6.

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circumstances, women’s NGOs, boosted by external forces, began to emerge and build strength for their development. The World Conference on Women, held in 1995, brought to China on a large scale, not only the concept of NGOs, but also gender-consciousness. First, because an ‘NGO forum’ was to be held at the World Conference on Women, the Chinese government established a Committee on NGO Forums in August 1993. The Committee sent representatives to participate in women’s NGO forums held in other regions and under UN conferences so as to observe and study international women’s NGOs, and organised domestic NGOs to prepare for the 47 seminars to be held under the women’s NGO Forum and to learn from the experiences of international NGOs participating in such forums. During the World Conference on Women, ‘[m]ore than 5,000 Chinese representatives and 55 Chinese NGOs participated in 47 seminars held under the NGO Forum’.11 The active participation by China, especially by Chinese NGOs, in the World Conference on Women sent a message to Chinese society about new organizational and thinking methods. Second, the World Conference on Women itself was a conference that focused on women’s issues. At the Conference, various women’s issues were raised and thoroughly discussed. The Beijing Declaration, adopted at the Conference on September 15, 1995, provided Chinese women with a new perspective on women’s issues. The fact that women’s issues were discussed on such a large scale, and that consensus was reached among various countries on these issues, greatly promoted the rediscovery by society – especially by women – of the issue of gender relationships. Apparently, the Conference provided a breakthrough point for various women’s interest demands that had been buried in Chinese society. China began to follow with interest the research results and policy practices relating to women’s issues in other countries, and the gender-consciousness of Chinese women had been awakened. In addition, the concept of the NGO was introduced into China, presenting Chinese women with a new form of organization. The Beijing declaration clearly pointed out: ‘The participation and contribution of all actors of civil society, particularly women’s groups and networks and other non-governmental organizations and community-based organizations, with full respect for their autonomy, in cooperation with governments, are important to the effective implementation and follow-up of the Platform for Action.’12 The World Conference on Women provided Chinese women with a new organizational form and preliminary enlightenment on gender-consciousness. After 1995, large-scale and in-depth research on the issue of women’s liberation was carried out. Such research played a crucial role in the development among Chinese women of a gender perspective, which was a great help to Chinese women in their analysis of social problems and in their search for an organizational form other than a women’s federation for the solution of these problems. Before the World Conference on Women, as a result of the domination by Marxist theory on women’s liberation, the Chinese people, including Chinese women themselves, had put all their hopes for the solution of women’s problems on women’s federations which utilized the governmental resources in a top-down manner. However, it was increasingly difficult for the unitary organizational mode of women’s federations to meet the diverse needs of Chinese women and for the Marxist theory on women’s liberation to give a valid explanation for many women’s problems under the new social order. While looking for new theories to interpret their problems, Chinese women began to take as a reference point the relevant research results from other countries. The World Conference on Women served as a window for Chinese women to learn about international research on women’s issues. After the 11  Liu Bohong, ‘A Study on Chinese Women and the 1995 World Conference on Women’, in Journal of Yunnan Nationalities College (Social Sciences Edition) 2 (1999), p. 13. 12  See ‘Beijing Declaration’, China Women’s Daily, 16 September 1995.

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Conference, the work of studying and learning from foreign theories on women’s liberation began on a large scale. In this process, various theories on women’s liberation, such as liberalist feminism, cultural feminism and radical feminism, even the newly emerged theories, such as eco-feminism and post-modern feminism, were introduced into China. The introduction of these theories played an important role in awakening the gender-consciousness of Chinese women. Women’s NGOs established after the 1995 World Conference on Women no longer took the gender of their members as the symbol of women’s organizations, but began to attach more importance to the purpose and objective as well as the gender-consciousness of the organization itself. The World Conference on Women expedited the development of women’s NGOs in China; in a certain sense, it was an important historical opportunity for the development of women’s NGOs in China.13 However, this chapter sets the starting point of the stage of rapid development in 1993, when China started to prepare for the World Conference on Women. Therefore, the discussion in this section will also cover the two years between 1993 and 1995. The ‘non-governmentalization’ of the ACWF  In the report on the Implementation of the Nairobi Forward-looking Strategies for the Advancement of Women submitted to the UN in 1994, China claimed that the ‘ACWF is the largest NGO in China committed to the advancement of women’. Since then, the ACWF’s NGO status has been repeatedly mentioned and confirmed at the government level. Against this background, the ACWF was beginning to take steps to adapt to its NGO status both at the level of organizational development and at the level of activities. At the level of organizational development, the ACWF began to identify itself as a NGO. In an individual interview, one member of a women’s federation said: ‘The World Conference on Women has strengthened our conviction (that ACWF is a NGO). Before the Conference, we were unwilling to admit this fact. But we must accept the opinion of the international community. Besides, it is in fact impossible for ACWF to play a governmental role.’14 In addition, as far as the objective organizational development is concerned, the ACWF and its local branches have, since 1995, adhered to the basic development objective of representing women’s interests and promoting gender equality and taken the protection of women’s interests and solution of women’s problems from a gender perspective as the core of its work. This determined the direction and the concrete methods of the work of women’s federations. They began to promote the solution of women’s problems by taking women’s development needs as the starting point and participated in the making of public policy on behalf of women. In the most typical field of domestic violence, for example, since October 1995 women’s federations at various levels have successfully established an anti-domestic violence network, which has played an important role in legislation, advocacy and assistance in this field. During the revision of the Marriage Law, the ACWF organized the relevant scholars and judicial workers in carrying out investigations and research, sponsored national seminars, and put forward legislative proposals to the government on domestic violence. As a result, the revised Marriage Law includes provisions on ‘prohibition of domestic violence’ and corresponding remedies. In 2002, the ACWF and women’s federations at various levels launched the ‘Program on Sharing of Strategies on the Elimination of Acts of Domestic Violence in Pilot Provinces’ with a view to giving full attention to their organizational advantages in carrying out

13  Liu Bohong, ‘The Development of Women’s NGO in China’, in Zhejiang Academic Journal 4 (2000), p. 109. 14  See Shang Xiaoyuan (ed.), Impact and Transformation: Chinese Civil Society Organizations in the Process of Opening up to the Outside World (Beijing: China Social Sciences Press, 2007), p. 166.

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dissemination and educational activities aimed at enhancing the anti-domestic violence awareness of the society as a whole.15 Generally speaking, it was without any doubt that women’s federations, regardless of their current degree of non-governmentalization, were developing towards the direction of becoming NGOs. The emergence of large numbers of new types of women’s NGOs with diversified organizational forms  The World Conference on Women led to the emergence of large number of women’s NGOs in China and the NGO Forum at the Conference raised new demands for the establishment of women’s NGOs in China: in order to play a more positive role at the Forum, Chinese women in all walks of life have organised themselves. New organizations such as China Association of Women Judges, China Association of Women Prosecutors, Beijing Association of Women Professors began to carry out various activities immediately after their establishment; the number of women’s research centres established under universities and colleges has increased from four in 1993 to the current 16, and women’s research institutions established by overseas female Chinese scholars have also emerged … a new situation of rapid development of women’s NGOs has emerged in China.16

While the existing public-interest, research, foundation and mutually-beneficial types of women’s NGOs continued to develop, many new types of women’s NGOs, such as service, advocacy and comprehensive types of women’s NGOs also emerged. The diversity of organizational forms was a prominent feature of the development of women’s NGOs in China during the period of the World Conference on Women. First, research-type women’s NGOs continued to emerge outside the women’s federation system. Those established under universities, colleges and academies of social sciences developed rapidly. They included: the Women’s Studies Research Centre of the Centre Party School, established in 1995; the Women’s Research Centre of Remin University of China, established in 1994; and the Centre for Gender and Law Studies of the Chinese Academy of Social Sciences, established in 1995. Meanwhile, independent research-type women’s NGOs also emerged in large numbers and were increasingly exerting greater influence. However, this type of organization often not only conducts research on women’s issues, but also engages in services or advocacy. Therefore, they fall into the category of comprehensive-type of women’s NGOs. Second, there was the emergence of service-type women’s NGOs that provide women with various kinds of services, including aid and assistance, capacity building, and protection and defence of rights and interests. Examples of such organizations include: the Migrant Women’s Club, established by the Cultural Development Centre for Rural Women, in April 1996; the Rural Women Technical Training School, established by the same Centre, in April 1999; the Women’s Legal Service Centre, established by the Women’s Health and Development Committee of the China Mental Health Association, in 1995; the New Sun Women’s Shelter, established in Wuhan City, in 1995; the Women’s Legal Service Centre of Qianxi County, Hebei Province, established in 1995; and the Nanfang Aid Centre for Women and Child Victims of Domestic Violence, established in Shanghai Municipality, in 1996. 15  Chen Mingxia, ‘Women’s NGO and the Fight against Domestic Violence’, People’s Daily, August 2005. 16 Hong Hua, ‘The NGO Forum of the Fourth World Conference on Women’, China Today, September 1995, p. 14.

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Third, advocacy-type women’s NGOs, which are mainly engaged in the advocacy of gender equality and drawing people’s attention to the issue of women’s liberation, also emerged. They included Media Watch for Women, established in 1996, and the Anti-Domestic Violence Network, established under the China Law Society, in 2000. Fourth, many comprehensive-type women’s NGOs that are active in more than one field emerged. One example of such organization was the Centre for Women’s Law and Legal Service, established under the Law School of Peking University, which engaged not only in research on women’s issues, but also in providing various services to women. Another example was the Xishuangbanna Women and Children’s Legal and Health Consultation and Service Centre, established in 1997, which engaged in activities in the fields of research, service and advocacy. Fifth, mutually-beneficial type women’s NGOs continued to develop. The growth of mutuallybeneficial type women’s NGOs continued to be a focus of attention at this stage of development. These organizations included the China Associations of Women Judges, established in 1994, the China Association of Women Prosecutors, established in 1994, the Association of Women Photographers, established in 1995, and the China Association of Women Doctors, founded in 1995. The expansion of the scope of activity of women’s NGOs  The diversity of women’s NGOs demonstrates that, compared with the embryonic stage of development, major changes had taken place in terms of the scope of activity of women’s NGOs. Apart from research, women’s NGOs were beginning to engage in services, advocacy and other activities, and on the basis of such activities were beginning to follow closely and intervene in various women’s issues. It is especially noteworthy that women’s NGOs at this stage of development were no longer limiting their activities to the traditional women’s fields or taking gender as the only criterion for distinguishing themselves from other organizations. Instead, they took gender-consciousness as their distinguishing feature and, through the application of gender-consciousness, expanded their activities to the fields of poverty alleviation, disaster relief and post-disaster reconstruction, building of medical facilities, community service and environmental protection. This trend is clearly shown by the example of the Shaanxi Research Association for Women and Family.17 First, it carries out traditional activities such as research on, and provision of, services to women, more specifically, psychological counselling, social work, support groups, legal consultations, legal representation, and aid and provision of shelter in cases of emergencies. It set up a women’s hotline in 1996, established the first Women’s Legal Research and Service Centre in Northwest China and a Work State for the Defence of the Rights of Women and Children in Shangluo, a poverty-stricken area in southern Shaanxi Province, in March 1999. In 2001, it opened the ‘Special Line for the Prevention and Counselling of Domestic Violence’, the first organization in China to provide such a service to women victims of domestic violence in the form of social work. Second, it closely follows the problems caused by poverty in China, directly participates in poverty-alleviation actions, supports development in poor rural areas, and helps villagers to build their capacity of participation and development. In February 2006, the Association was among the first batch of six NGOs to win the bid for ‘NGOGovernment Cooperation Projects on Village-level Poverty Alleviation’, implemented by the State Council Leading Group Office of Poverty Alleviation and Development, and carried out a poverty alleviation project in Guoxing County, Jiangxi Province. Third, it participates in disaster relief and post-disaster reconstruction. For example, after the flooding in Danfeng Maoligang County in 1998, and in Ziyang County in 2000, the Association immediately initiated emergency 17  For detailed information, see: http://news.sina.com.cn/c/2006-08-25/185710829421.shtml (last visited June 2009).

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disaster relief projects for these two areas. Fourth, it follows closely and actively participates in the comprehensive development of rural communities, including construction of health and educational facilities. The Stage of Rational Development (2004–present) After the World Conference on Women, the rise of gender-consciousness and the extensive dissemination of the idea of NGOs had greatly speeded up the development of women’s NGOs in China, which had displayed remarkable ability in the process of transforming themselves from organizations that passively responded to social changes to those that took conscientious actions aimed at solving specific women’s problems. At this stage of development, women’s NGOs were passionately engaged in various undertakings. After the establishment of a large number of women’s NGOs, issues relating to the overall and internal development of these organizations began to be raised. Actions taken by women’s NGOs in China for the solution of these issues showed that these organizations were gradually maturing and entering into the stage of rational development. The Conference on Capacity Building among Chinese Women’s NGOs, held in November 2004, indicated that women’s NGOs in China were beginning to reflect collectively and rationally on the direction and approaches of their own development. Replacement of passion by rationality and the surfacing of problems in internal governance  The Fourth World Conference on Women enabled Chinese women to come into direct contact with and truly understand NGOs. Since then, many women’s NGOs have been established in China through the efforts of their passionate founders – the majority of whom are well-known or social elites. After their establishment, such organizations continued to depend on their founders’ personalities and active participation for their internal operation and development. Since most of the women’s NGOs at this stage of development were still relatively small in scale and mainly participated in by like-minded individuals, personality or charisma played an important role in the operation and development of such organizations. However, as Professor Wang Ming pointed out: ‘Women’s NGOs had changed at the beginning of the 21st century. Earlier, they were mainly first generation grassroots NGOs established by some famous personages with great social influence. But later they have been joined by many young people who are unknown to the public.’18 The participation by these people changed the internal structure of these organizations and, as most of these organizations grew, their original internal governance mode could no longer meet their development needs. It was against this background that the Conference on Capacity Building among Chinese Women’s NGOs was held in 2004. In the summary of the Conference it was clearly pointed out: ‘NGOs have already developed from the stage of dependency on the pioneering work, personal conviction and charisma of elites to a new stage or a new life cycle, namely they have developed from the stage of the rule of man to the stage of rule of law or institutional governance.’19 The first Conference on Capacity Building among Chinese Women’s NGOs was jointly organized by six women’s NGOs, namely the Shaanxi Research Association for Women and Family, the Cultural Development Centre for Rural Women, the Maple Women’s Psychological Counselling Centre, the Xishuangbanna Women and Children’s Legal and Health Consultation and Service Centre, the Community Education Centre of Henan Province and the Women’s Legal Study and 18  ‘An Investigation on Women’s NGOs in China: Part One’, China Women’s Daily, 14 January 2008. 19  See Wang Xingjuan,’A Reflection on the First Generation of Women’s NGOs in China: Summary of the Conference on Capacity Building among Chinese Women’s NGOs’, available at: www.maple.org. cn/tabid/62/ArticleID/607/Default.aspx (last visited June 2009).

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Service Centre of Peking University. The participants of the Conference extensively discussed the issue of internal governance of women’s NGOs and reached the following consensus: ‘Women’s NGOs need to establish councils and learn from the advanced experience of international NGOs, so as to achieve scientific, democratic and systematic management.’20 They also discussed a series of other issues, including the composition, power and duties of the council, the competence of council members, the introduction of competition mechanism into the council, the reasonableness of the system of lifetime council members, and the salary of the chairperson of the council. After the Conference, many women’s NGOs in China embarked upon the task of constructing internal management mechanisms, which meant their initial passion and impulse had passed and they were beginning to rationally reflect on their own organizational construction. Both women’s federations and new types of women’s NGOs are beginning to pay attention to the integration of their resources  At the beginning of the twenty-first century, there were already a considerable number of women’s NGOs in China. However, there was still no effective platform for these organizations to communicate and exchange information with each other and actions taken by them were individualized. As a result, women’s NGOs in China were fragmented in terms of their force and unable to form synergy in society. It was against this background that women’s NGOs in China began to realize the importance of integrating their forces and to make effort towards this direction. In this process, steps were taken at the following two levels. First, women’s federations, faced with a growing number of women’s NGOs, were trying to change the old simple mode of cooperation that allowed each organization to do things in its own way and explore a new mode of cooperation that would emphasize the role of women’s federations in nurturing and uniting new types of women’s NGOs, so as to strengthen their status among women’s NGOs. For example, the Women’s Federation of Shanghai Municipality had made the following plan of organizational construction: to strengthen the backbone and expand the two wings; to rely on vertical-level backbone women’s federations that have undergone 50 years of development; to expand the scope of their work horizontally to cover new economic and social organizations outside the traditional system; to unite non-governmental women’s organizations; to transform the current organizational structure whereby women’s federations at various levels directly face individual women into a organizational structure whereby women’s federations at various levels attract broad masses of women through the intermediary of women’s NGOs; and to attach more importance to the work of contacting and nurturing women’s NGOs.21

Second, women’s NGOs that were established in the bottom-up way were also joining forces to establish advocacy-type women’s NGOs. On 16 April 2005, Women’s Watch, the first nationwide interactive service platform for women’s NGOs in China, was established. The main task of this organization is to systematically collect and share information on new developments in the field of gender equality and women’s rights. The establishment of this platform is of positive significance for the communication and sharing of information, as well as the integration of resources among various women’s NGOs. The task of Women’s Watch was defined as ‘not only to take women as 20 Ibid. 21 Women’s Federation of Shanghai Municipality, ‘Strengthening the Link between Women’s NGOs and Exploring New Fields of Activity for Women’s Organization’, in Women’s Movement in China 4 (2007), p. 24.

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the target group of advocacy, but also to service all women’s NGOs in the country, so that they can make a joint effort in achieving their common goals’.22 The Function and Role of Women’s NGOs in China The existence of women’s NGOs and their activities has had an extensive impact on Chinese society. First, like other types of NGOs, they play an active role in supplementing the insufficient supply of public administration and service provided by the State, meeting individual citizens’ need for an organized lifestyle, providing citizens with space for participation in public social life, and promoting the harmonious development of society. Second, as a special type of NGO, they differ from other types of NGOs in that they are mainly active in women’s fields and in fields affected by gender-consciousness. As NGOs established on the basis of gender or genderconsciousness, they are playing an important role in supplementing the insufficient supply of the public administration and services provided by the State to women’s groups, satisfying the needs of individual women for an organized lifestyle, and providing women with a space for participation in public social life. The performance of the above functions will inevitably have an important impact on the protection of women’s rights and interests, on the resolution of women’s problems, on the enhancement of women’s status, and on women’s liberation. In addition, women’s NGOs armed with gender-consciousness are concerning themselves not only with women and women’s issues, but also with the promotion of gender-consciousness throughout society, studying social problems from the feminist perspective, drawing public attention to women, and promoting harmonious relationship between men and women. As such, their influence extends far beyond women’s groups. In summary, the unique role and influence of women’s NGOs arises from their NGO status and the only particularity of such organizations is that they combine NGO status with gender and genderconsciousness. More specifically, women’s NGOs in China perform the following functions. Providing Women with Public Space, Closely Following Women’s Problems and Being Concerned with Women’s Development Providing women with public space  In this respect, the contribution made by mutually-beneficial type women’s NGOs is especially prominent. Both the professional association-type and solidarity-type women’s NGOs adopt the membership system and the majority of their members are women. Professional association-type women’s NGOs provide women with a public space outside their home and work place for meeting other women of the same professional background. Such a space enables women of the same professional background to communicate not only with each other, but also with the outside world and to have their opinions and demands heard. For example, the China Association of Women Entrepreneurs’ aim is to serve female entrepreneurs. The Association always takes meeting the needs of female entrepreneurs as the emphasis of its work. It serves as a bridge between female entrepreneurs and the government, between female entrepreneurs and women in other walks of life, and between female entrepreneurs themselves. It also serves as a school for training female entrepreneurs and enhancing their qualities, and as a cosy home

22  Song Zonghe, ‘Women’s NGOs and Defence of Women’s Rights’, China Philanthropy Times, 20 April 2005.

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for female entrepreneurs.23 This type of organization is common among elite women’s groups, such as female entrepreneurs, female engineers, female medical doctors, female lawyers, female professors, female judges, female prosecutors, female mayors and other white-collar women. Solidarity-type women’s NGOs are even more widespread and inclusive. Those organizations are mostly based on common interests and hobbies or the need for socialization. They are open to all women, regardless of their profession or social status, and provide a space for public activities for women of common interests. They are especially important for housewives, retired women or rural women because these women normally do not participate in socialized work, but only do housework in their own home. As a result, they have few opportunities to contact or communicate with other people, which is detrimental to their physical and mental health as well as to the awakening of their gender-consciousness. Some of these organizations, such as the Mulan Boxing Association, have played an active role in improving women’s health by organizing them to participate in physical exercise. Closely following women’s issues and being concerned with women’s development  One of the main aims of women’s NGOs is to closely follow women’s issues, to respond to the many problems for women that have emerged in the reform period, and to supplement the insufficient resources available from the government to solving these problems at a time of social transition. Women’s NGOs, through various channels, closely follow the problems of different women’s groups in different fields, and actively promote solutions to these problems. First, they closely follow the demands of different women’s interest groups and endeavour to improve the survival ability of disadvantaged women’s groups. Different women’s NGOs concern themselves with different women’s groups: mutually-beneficial type women’s NGOs mainly concern themselves with advantaged groups, while public-interest type women’s NGOs mainly concern themselves with disadvantaged groups, which include women in rural areas, rural women working in cities, unemployed women, elderly women, single mothers and their children, and other disadvantaged women’s groups in the community. Many women’s NGOs are dedicated to helping rural women. Among them, the most influential is the Rural Women Cultural Development Centre. Established in Beijing in 1993, the centre provides rural women with urgently needed information, reflects their demands, implements literacy projects targeted at them, and carries out examinations and promotes the prevention of gynaecological diseases. The organization also provides help and services to rural women working in cities. For example, it established the Migrant Women’s Club in 1996, which focuses on protecting the rights and interests of rural women, improving their quality of life and their overall quality, and creating the conditions necessary for their full participation in social development. Some women’s NGOs focus their attention on unemployed women. One example is the Women’s Business Incubator, established in 2000. The organization helps women start businesses by providing them with facilities, management, business and training services. Another example is the Service Centre for the Promotion of Women’s Employment of Zhabei District, Shanghai Municipality. Since its establishment in 2002, the Centre has provided many women, especially poor mothers, with employment, technical training and reproductive health examinations, to help them to shake off poverty through work. Some women’s NGOs focus their efforts on disadvantaged groups of women. For example, in 2001, the Maple Women’s Psychological Counselling Centre, in cooperation with the Women’s 23  See Research Institute of ACWF, Theory and Practice of the Development of Women’s Organization in China, pp. 437–8.

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Federation of Tianjin Municipality, implemented a five-year project on ‘Community Intervention in Domestic Problems’ in Hongshunli Street, Hebei District, Tianjin Municipality. The project was guided by women-oriented ideas, and tried to boost the self-confidence of disadvantaged groups of women in the community by showing them love and solicitude. It adopted the operational mode of social work and combined formal community support systems with informal ones to form an interactive network of supporting structures, so as to uphold women’s lawful rights within their families, to provide disadvantaged women’s groups with a support network, and to make women in the community genuine promoters and beneficiaries of social development. Some women’s NGOs focus their attention on elderly women, single mothers and their children, and other special groups of women. For example, in 1998 the Maple Women’s Psychological Counselling Centre opened a hotline for elderly women, and established the Noah’s Arch Family Centre to provide single mothers and their children with psychological counselling and social services. Second, they closely follow women’s issues in different fields. Women’s NGOs are active in the political, economic, family and many other fields. Their activities in these fields enhance women’s political and economic abilities and their independent status inside the family. An example of a women’s NGO active in the political field is the Shaanxi Research Association for Women and Family (hereafter the Association). In 2004, the Association, in cooperation with the Women’s Federation of Shaaxi Province, implemented the ‘Demonstrative Project on Increasing the Percentage of Rural Women in Elected Villagers’ Committees in Huayang County, Shaanxi Province’. During the implementation of the project, the Association designed and printed a total of 18,000 posters which were put up in villages throughout Huayang County and other counties of the province, wrote five local plays and operas, which were performed in 16 townships and 17 villages, compiled 10,000 copies of pamphlets which were distributed throughout the province, produced and broadcast special national TV programmes, and organized various training courses for township and county leaders, cadres of women’s federations and rural women activists. The activities of women’s NGOs in the economic field include providing women with material assistance, financial support and training on survival skills. The following are two examples of such activities. In 1998–9, the Maple Women’s Psychological Counselling Centre, in cooperation with the Women’s Federation of Pinggu County, Beijing Municipality, released small loans to 100 rural women to help them shake off poverty by breeding rabbits. In April 1999, the Beijing Rural Women Cultural Development Centre established the Practical Skills Training Centre for Rural Women to provide training on practical skills. The attention paid by women’s NGOs to the issue of domestic violence has greatly broadened the scope of their activities and drawn public attention to traditional family problems. For example, in December 1999, the Beijing Maple Women’s Psychological Counselling Centre, the Women’s Legal Study and Service Centre of the Law School of Peking University, the Women’s Consultation and Development Centre of Social Work Department of China Women’s College, and the Shaanxi Research Association for Women and Family, jointly established a Working Group against Domestic Violence. In 2000, the Anti-Domestic Violence Network, a network-type civil society organization aimed at fighting gender-based domestic violence, was established under the China Law Society. The network covers 26 provinces, municipalities directly under central government, and autonomous regions and 55 group members and numerous volunteers of all kinds of professional backgrounds participate in the network. Third, they promote the solution of women’s problems and the improvement of women’s status by various means. Many women’s NGOs take direct action, mainly in the form of defence of rights and provision of services aimed at resolving women’s problems. For example, the Women’s Legal

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Study and Service Centre of Peking University is dedicated to the improvement of conditions of disadvantaged groups of women by providing them with legal aid, upholding their lawful rights and interests in social, political and economic life, solving their problems by adopting unique and creative approaches, awakening their legal consciousness of rights protection, enriching their spiritual and cultural life, promoting the development and improvement of their personalities, and helping them to embark on a road towards self-respect, self-reliance and self-support. Another important way for women’s NGOs to improve women’s status is to actively participate in public decision-making and policy-making and to promote the adoption of laws conducive to the protection of women’s rights and interests. For instance, large numbers of women’s NGOs have participated in the process of revising the Law on the Protection of Rights and Interests of Women by presenting to the legislative organs the opinions and demands of the women’s groups they represent. The following are some examples of activities carried out by women’s NGOs in this respect. The Huakun Women’s Survey Centre accepted a commission by the Women’s Committee of the Democratic League to carry out a survey of 10,000 women asking: ‘What kind of Law on the Protection of Women’s Rights and Interests do female intellectuals want?’ The Beijing Maple Women’s Psychological Counselling Service Centre, based on individual cases of telephone counselling, pointed out a major defect in the law, namely that ‘freedom from sexual harassment’ was not included in the list of women’s personal rights and freedoms. In 2002, the ACWF formally put forward to the National People’s Congress, a proposal to put on the legislative agenda the revision of the Law on the Protection of the Rights and Interests of Women. The Women’s Legal Study and Service Centre of Peking University organized several symposiums on the revision of the Law on the Protection of Rights and Interests of Women and, on the basis of these symposiums, formulated an empirical study report, which was submitted through various channels to State legislative organs and relevant administrative departments and ultimately played an important role in the revision of the law. As a result, the women’s ‘voice’ was heard and many of the proposals in the report were adopted by legislative organs. Moreover, women’s NGOs, through their active promotion, have successfully included a provision on women’s land rights in the newly adopted Property Law and a prohibition of domestic violence in the revised Marriage Law. Raising Gender Awareness, Promoting Gender Equality and Furthering Gender Harmony Gender awareness has enabled women’s NGOs to broaden the scope of their activities to cover more women’s groups and more aspects of social life. Moreover, these organizations have also begun to take initiatives to raise the gender-consciousness of the general public and to disseminate the idea of gender equality in society. Their influence has not only taken deep root in women’s groups, but is also gradually penetrating men’s groups, and will ultimately contribute to the realization of gender equality and gender harmony. Women’s NGOs extend their influence by ways of dissemination, training and attracting men’s groups to participate in their activities. One of the typical methods of dissemination is that adopted by the Network of Media Watch for Women (the Network). The Network has the advantage of being a media group and, therefore, has relatively greater influence. In 2003, the Network created a special column in China Women’s Daily entitled ‘Media Watch’, which enabled it to have a fixed space in traditional media. The column declared that its aim was to ‘monitor the media from a gender perspective’. It adopted the method of news analysis to make timely, concise and sharp commentaries on concrete examples that reflected the image of women or gender relationship so as to promote gender equality in the media by both a critical and constructive approach. The topics covered by the column have included HIV/AIDS, sex ratio at birth, ‘beauty economy’, domestic violence, discrimination in employment, sexist

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advertisements, ‘beauty writers’ and other hotspots in the media. The commentaries in the column on women’s issues have generated positive social results. For example, its comments on a sexist real estate advertisement in early 2003 led to the quick withdrawal of the advertisement by the advertising company. In March 2004, the Network published ‘A Complete Report on Monitoring Media from a Gender Perspective’ in the Beijing Youth Daily, which is the first report on the monitoring of the media from a gender perspective published in a mainstream newspaper.24 Training is another important way for women’s NGOs to raise gender awareness. For example, between 19 July 2002 and 12 August 2002, the Woman’s Legal Service Centre of Qianxi County held 17 training courses on ‘Social Gender and Women’s Participation in Public Affairs’. During this period, the centre’s staff, cadres of county women’s federations, teachers from Party schools and officials from the bureaus of civil affairs went to 17 townships to provide training to nearly 3,000 women cadres on gender-consciousness and awareness, and to give them the skills needed to participate in public affairs. Another example is from 2003, when the Community Education and Research Centre of Henan Province and the Anti-Domestic Violence Association jointly implemented the ‘Pilot Project on Community Intervention in Domestic Violence in Henan Province’. Its main activities included training anti-domestic violence promoters and trainers, mobilizing public security bureaus, courts, hospitals, media and other relevant organs to actively participate in the fight against domestic violence, organizing women victims of domestic violence to exchange experiences with each other, training consultants, and giving lectures in the community. The above activities have changed the attitude of the general public on gender relationship, and have also attracted many men to the cause of promoting gender equality. For example, on 29 November 2002, the Network, the United Nations Development Fund for Women, the China Association for NGO Cooperation, and the Canadian Embassy in Beijing, jointly held activities in the Yingdong Academic Hall of Beijing Normal University to celebrate the International Day for the Elimination of Violence against Women. The establishment of the Male Volunteer Group on ‘Opposing Domestic Violence against Women and Promoting Gender Equality’ on this occasion showed the positive impact of gender-consciousness. When all the people of society, whether men or women, join hands in promoting gender equality, the road towards a harmonious gender relationship and ultimately a harmonious society becomes much smoother. Advocating Gender Awareness and Intervening in Social Problems Gender awareness is not only an approach to the solution of women’s problems. More women’s NGOs are now regarding it as a perspective for analysing social problems. By introducing the feminist perspective of equality, mutual love and mutual help, these women’s NGOs have brought a large number of social issues, such as poverty, disease, disaster, education, drugs and environmental pollution, into their field of vision. By doing so, they have played a positive role in changing the ideas of other NGOs, and those of the whole of society. Women’s NGOs also actively participate in poverty alleviation and their activities in this respect have made a great impact on society. For example, in 2000, the China Women’s Development Foundation implemented a public interest project entitled ‘Land of Love: Water Cellars for Mothers’. The project was originally set up to help rural women in western China, but it has actually benefited 500,000 households suffering from water shortages. When the project was initiated, 13 million 24  Lu Ping, ‘NGOs’ Actions for Raising Gender Awareness among the General Public: Network of Media Watch for Women’, in Report on Gender Equality and Women’s Development in China: 1995–2005 (Beijing: Social Sciences Academic Press, 2006), p. 96.

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people in western China were suffering from a serious shortage of water. Among them, nearly three million people in 500,000 households were suffering from a serious shortage of drinking water. The problem could easily be solved through the construction of two water cellars for collecting and preserving rainwater – each costing RMB 1,000 – for each household. However, RMB 1,000 was a huge amount of money to the poverty-stricken peasants in the remote rural areas of western China, which they would never be able to pay. Since two water cellars were needed by each household, a total of RMB 1 billion would be needed in order to solve the severe drinking water shortage for 500,000 households. The appropriation of funds from the government alone was far from enough. The project was initiated against this background, and has achieved remarkable results. As Wang Xiaolin, the Chairwoman of Women’s Federation of Yongdeng County, pointed out: ‘Now water cellars have been constructed in every household, they have not only provided sufficient drinking water for peasants and their livestock, but also conserved enough rainwater for developing courtyard economy and for agricultural irrigation. Some villagers have also planted many trees around their houses. This has not only improved the quality of their life, but also beautified the whole village.’25 The ‘Water Cellars for Mothers’ project was mentioned in the ‘White Paper on the Development-Oriented Poverty Reduction Program for Rural China’, published by the State Council in October 2001. Women’s NGOs are also very active in the fields of treatment and prevention of diseases and disaster relief. Some of them are engaged in dissemination of the relevant knowledge or provision of direct materials support. For example, during the SARS outbreak in 2003, the Shaanxi Research Association for Women and Family carried out many dissemination activities and donated large amounts of medicine and other materials. It printed 30,000 sets, with a total of 90,000 copies of large posters entitled ‘Fighting SARS with United Strength’, produced 400,000 leaflets and 21,000 posters especially targeted at poor rural areas, collected at a short notice 13 tonnes of bleaching powder, 6,000 bars of medicinal soap, 120 protective suits and other anti-SARS materials, with a total value of RMB 376,000. Some other NGOs specialize in providing spiritual comfort to individuals who have suffered personal tragedies or disasters. For example, the Star Harbour Service Centre, Shanghai Municipality, aims at ‘providing spiritual help to families that have lost their children or families in difficulties or spiritual crisis due to serious illness or unexpected incidents’. Its services include psychological crisis intervention, implementation of special projects and mutual help projects, supporting orphans, providing assistance to children who suffer from serious illnesses and solitary childless old people, and ‘spiritual radiation’. Women’s NGO activities also cover the field of education, including giving financial aid to students and the eradication of illiteracy. One example in this respect is the Shaanxi Research Association for Women and Family, which has carried out projects that provided financial aid to poor students in poverty-stricken areas in Yichuan, Ziyang, Danfeng and other counties. It has raised a total of RMB 2 million, and constructed 13 primary schools with clean and neat school buildings, bright classrooms and big playgrounds. Another example is the Rural Women Service Centre, which won the ‘Creative Project in Anti-illiteracy’ award in 2004, for its remarkable achievements in the elimination of illiteracy. Women’s NGOs are also very active in the fight against narcotic drugs and the prevention of HIV/AIDS. For example, in 2005, the Liangshan Women and Children Development Centre of Yi Nationality in Liangshan Autonomous Prefecture established in Zhuhe Village, Shaojue County, a folk art troupe specialized in the dissemination of knowledge about the prohibition of drugs and the prevention of HIV/AIDS. 25  See People’s Daily (Overseas Edition), 18 March 2006.

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Another important field of activity of women’s NGOs is environmental protection. For example, in 2007, the Beijing Rural Women Cultural Development Centre actively participated in the ‘20% Energy Savings Citizens’ Action’, which exerted profound influence on society. Successful Experiences and Existing Problems Compared with other types of NGOs, women’s NGOs have undergone a relatively smooth process of development in China. On 28 August 1996, the General Office of the Central Party Committee of CPC and the General Office of the State Council jointly issued the ‘Circular on Strengthening the Administration of Social Organizations and Private Non-Enterprise Organizations’. In April 1997, the General Office of the State Council relayed to government departments concerned the ‘Circular on Cleaning up and Rectifying Social Organizations’. As a result of these policies, a large scale clean-up and rectification campaign has been carried out against social organizations. This, plus the suspension of the registration of NGOs during the adjustment of the NGO administration system in 1999, led to a slowdown in the development of NGOs in China. However, women’s NGOs were not affected by these policies. On the contrary, thanks to the convening of the World Conference on Women in Beijing, the period around 1995 became a golden era in the development of women’s NGOs in China. This is to a large extent due to the influence of Marxist theory on women’s liberation, which is still adhered to by the Chinese government. According to this theory, the solution of women’s questions is one of the important functions of the government. At the World Conference on Women, the then Chinese President Jiang Zemin clearly pointed out: ‘The Chinese government attaches great importance to women’s development and progress and takes gender equality as one of basic state policies on promoting social development in China.’ Apparently, the goal of gender equality established by women’s NGOs in China with the help of the World Conference on Women coincides with one of the major policy objectives of the Chinese government. This gives women’s NGOs in China a relatively more tolerant environment for development. Developed in a relatively tolerant environment and propelled by both internal and external forces, women’s NGOs in China have made remarkable achievements and accumulated many useful experiences. Nevertheless, numerous problems still exist which are hindering the further development of women’s NGOs in China. Summing up successful experiences and identifying existing problems is a starting point for the continued development of women’s NGOs in China. Successful Experiences First, women’s NGOs in China have fully utilized external resources by actively cooperating with international and foreign organizations and learning from the useful experiences of overseas NGOs. Although the impetus for the development of women’s NGOs has come from demand within the country, the support from overseas cannot be ignored. The support from international organizations has directly led to the emergence of many women’s NGOs in China and greatly promoted their development. Even the development of the most influential magazine in the field of women’s NGOs, Rural Women, has benefited from the support of international organizations. Ever since its establishment in 1993, the magazine has been supported by many international organizations. The initial input of US$70,000 from the Ford Foundation not only ensured the survival of the magazine, but also enabled it to retain its public interest nature. After the World Conference on Women, it received even more support from overseas. For example, in September 1997, with the support of

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the Asian Foundation, the founder of the magazine, Xie Lihua, led a group of five chairpersons of women’s federations of the counties covered by her project on a visit to Bangladesh and Vietnam to investigate small loan projects in the two countries. In January 1998, with the support from the Ford Foundation, the magazine sent one of its staff, Zhang Jufang, to the George Mason University, in the United States, to receive a year’s training in strategic management. Oxfam Hong Kong has also given active support to the magazine in organizational construction. It provided funding for magazine staff to attend several seminars in Hong Kong and has sent its own officials to provide guidance and advice to the magazine on all kinds of management and technical matters, from the drafting of project proposals to the methods of project assessment. In Spring 2001, Oxfam sent a Hong Kong NGO management expert to Beijing to help the magazine carry out self-evaluation and make a development plan.26 From this example we can see that women’s NGOs in China have not only received crucial financial support, but more importantly, have also been influenced by ideas on management, use of personnel and organizational construction from international organizations. Meanwhile, international organizations have also played an active role in drawing the attention of Chinese women’s NGOs to some important fields of activity and to some key issues which had been previously ignored by Chinese society. For example, the widespread attention by Chinese society to the issue of domestic violence is to a certain extent due to the anti-domestic violence projects implemented by women’s NGOs in China with the help of international organizations. In 2000, the China Law Society launched an anti-domestic violence project which was participated in by many women’s NGOs, including the ACWF, the Centre for Gender and Law Studies of the Chinese Academy of Social Sciences, and the Maple Women’s Psychological Counselling Centre. However, this project was totally dependent on financial support from various foreign and international organizations, including the Ford Foundation from the United States, NOVIB from the Netherlands, SIDA from Sweden, and the Norwegian Institute for Human Rights of Oslo University. The British Council and Oxfam Hong Kong have also provided funding for the training of personnel, travel and seminar expenses related to the project.27 Foreign and international organizations have even influenced the direction of the development of women’s NGOs in China. For example, the Project on Capacity Building for Women’s NGOs in China was initiated with the support of foreign funding. The project, supported by Misereor International from Germany, aims at exchanging, sharing and refining experiences accumulated by various women’s NGOs that are compatible to native conditions, providing participants with the necessary training, establishing a platform for exchange, cooperation and mutual support, and disseminating successful experiences to other NGOs.28 As far as women’s NGOs in China are concerned, the World Conference on Women provided them with an opportunity to walk out of the country and into the international arena and to attract attention and support from the international community. This was undoubtedly a positive development. However, the opportunities for women’s NGOs in China to exchange information with, and learn from, foreign and international women’s NGOs are still very limited, which is regrettable because learning from their international and foreign counterparts is conducive to their development. Moreover, there is also a hidden problem in the development of women’s NGO in China because their excessive dependence on foreign resources makes it very difficult for such organizations to have a clear long-term expectation or plan.

26  See Shang Xiaoyuan, Impact and Transformation, pp. 239–48. 27 Ibid., p. 231. 28  Wang Xingjuan, ‘A Reflection on the First Generation of Women’s NGOs’.

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Second, new types of women’s NGOs have actively cooperated with women’s federations to jointly promote women’s liberation. Although there are different opinions on the status and the direction of development of women’s federations, ‘it is an indisputable fact that today, no women’s NGO in China enjoys an authoritative status comparable to that of a women’s federation and no women’s NGO is in a position to replace the role played by women’s federations’.29 Compared to new types of women’s NGOs, women’s federations have extensive grassroots organizations to maintain relationships with broad masses of women and therefore have extensive influence on the society. However, new types of women’s NGOs are playing an irreplaceable role in satisfying the needs and representing the interests of different women’s groups. Ever since the beginning of the emergence of new types of women’s NGOs, there has been an unavoidable question of how to deal with the relationship between new types of women’s NGOs and women’s federations. It is to the credit of both types of organizations that, in the process of concrete operation, they have no feelings of antagonism or enmity, but instead have tolerated, accepted and cooperated with each other. Women’s federations have been continuously adjusting and adapting themselves to new situations, supporting the development of various new types of women’s NGO, strengthening connections with them and participating in their projects and activities while new types of women’s NGOs have adopted the strategy of seeking cooperation from women’s federations. Women’s federations possess extensive organizational resources at the grassroots level, which is an advantage that can be utilized by new types of women’s NGOs to ensure the good social impact of their activities. Most of the new types of women’s NGOs have recognized this fact and attach great importance to the participation by women’s federations in the implementation of projects or carrying out of activities. As Gao Xiaoxian, the chairwoman of the Shaanxi Research Association for Women and Family, has pointed out, currently most women’s NGOs in China are reflecting on the question of how to enhance their advocatory power and driving force in the future. The solution to this question is to unite forces with other organizations, and the core of this solution is to cooperate with women’s federations.30 Existing Problems There are many problems in the development of women’s NGOs in China. Among them, the following two are the most prominent. First, in terms of their own development, the main problem with women’s NGOs in China is the imbalance in the development of organizations of different women’s groups. According to an investigation on women’s NGOs in Shanghai, ‘among various women’s NGOs, the most numerous are those servicing advantaged groups of women (for example, the Association of Women Entrepreneurs, the Women’s Committee of Western Returned Scholars Association, the Association for the Promotion of Women Talents, etc.); less numerous are those servicing middle-class women’s groups; and the fewest in number are those servicing disadvantaged groups of women’.31 The same is true for women’s NGOs throughout the country. Organizations of advantaged women’s groups 29  Jin Yihong, ‘Challenges and Opportunities: Organizational Transformation of Women’s Federations’, in Women’s Research Institute of ACWF, Theory and Practice of the Development of Women’s Organization in China, p. 364. 30  See Han Hui, ‘Women’s NGOs: Reaping in the Process of Sowing’, People’s Political Consultative Conference Daily, 18 July 2006. 31  Zhang Zhongru and Li Hanlin, ‘Women’s NGOs: the “Living Cells” of a Harmonious Society – An Investigation on the Development of Women’s NGOs in Shanghai’, in Research Institute of ACWF, Theory and Practice of the Development of Women’s Organization in China, p. 102.

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are large in number and have strong abilities to acquire resources. They often take the organizational form of membership to strengthen the liaison and exchange among themselves. All these can help them to unite forces to form a common voice, and to accept the concept of gender equality and the idea of participation in public affairs. The situation is quite different for disadvantaged women’s groups. Although more women’s NGOs are focusing their attention on disadvantaged women’s groups, such NGOs are mostly public interest organizations made up of elite women. It is very rare for disadvantaged women to unite and organize themselves to establish their own NGOs. In most cases, they are treated as objects to be helped, protected or liberated, rather than subjects with their own initiatives and vitality. Therefore, generally speaking, in the future development of women’s NGOs in China, advocatory and supportive types of women’s NGOs should pay more attention to disadvantaged women’s groups and encourage them to organize themselves so as to let their own voice be heard. Second, in terms of the external environment, the main problem with the development of women’s NGOs in China is in respect to the legitimization of their status. Although the government adopted a relatively tolerant attitude towards women’s NGOs, this tolerance stays only at the level of factual acceptance. That is to say, it tolerates their actions, but refuses to grant them independent NGO status. Like other NGOs in China, many women’s NGOs are plagued with the problem of their legal status. In order to maintain their existence, they have to either register themselves as industrial and commercial entities, or affiliate themselves to governmental institutions. This is true even for those very successful and influential organizations. For example, for the Maple Psychological Counselling Centre, registered status has always been a problem. At its beginning, the organization was established as the Women’s Research Institute and affiliated to the Chinese Academy of Management Science. In 1994, it was issued a ‘certificate of institutional legal person’ by the Institutional Organization Commission of Beijing Municipality and acquired the status of not-for-profit legal person. In July 1996, the Chinese Academy of Management Science unilaterally terminated their relationship of affiliation and, as a result, the organization lost its status as an institutional legal person. In September 1996, the organization finally registered itself at the Industrial and Commercial Administration Department as a business corporation named the Maple Women’s Psychological Counselling Centre.32 Another example is the Network of Media Watch for Women. It is an organization affiliated to the Beijing Association of Women Journalists and has no independent status as a legal person or any independent finance. The same is true for the Women’s Legal Study and Service Centre of Peking University, which is affiliated to the Law School of Peking University. Although these organizations have all found some kind of expedient way to temporarily solve the problem of their legal status, this problem will seriously impede their development in the long run. Women’s NGOs registered as business entities cannot enjoy the State’s preferential tax policies and are faced with many inconveniences in carrying out activities in society and difficulties in establishing credibility among the public. The future of women’s NGOs affiliated to other organizations allows for even less optimism, as they can neither ensure their independence, nor their sustainable development, because their fate is controlled by other organizations. Therefore, granting legitimate status to women’s NGOs is key to the healthy development of these organizations in the long run.

32  See Xiaoyuan, Impact and Transformation, p. 261.

Chapter 6

Public Interest Legal Organizations in China: Current Situation and Prospect for Future Development Xie Haiding

Introduction On 17 July 2009 the Civil Affairs Bureau of Beijing Municipality issued the Decision on Banning Gong Meng Legal Research Centre (Beijing Civil Administration Law Enforcement Document No.1 2009), which states that: It is found out through investigation that Gong Meng Legal Research Centre is an unregistered organization. By carrying out unauthorised activities in the name of a private-run non-enterprise organization, it violates Article 3 of the Interim Regulations on the Registration and Administration of Private-Run Non-Enterprises. Therefore, in accordance with Article 2 and Article 3 of the Interim Measures for Banning Illegal Non-Governmental Organizations, the Bureau decided to ban Gong Meng Legal Research Centre. The Decision became effective on the date of its promulgation.

As an organization affiliated to Beijing Gong Meng Consulting Company, the Gong Meng Legal Research Centre has been regarded as a public interest organization for its role in many events that have attracted wide public attention. For example, it provided legal aid to the victims of melaminecontaminated milk powder cases, the Deng Yujiao case and other socially influential cases, published the Report on Human Rights Development in China in 2005 and the Research Report on System of Complaint by Letters and Visits in China, and hosted seminars on the election of villagers’ committees, the Green Dam case and the Zhou Zhenglong case. Today the debate over the validity, both in substantive law and in procedural law, of the banning of Gong Meng Legal Research Centre continues. However, this case has raised a more profound issue, namely the present condition of, and the prospects for, future development of public interest legal organizations in China. Currently, public interest legal organizations have not yet entered into the purview of attention of the Chinese academic circle and the concept is rarely used by Chinese scholars. When searching the Internet with such search engines as Google and Baidu, one cannot find direct reference to ‘public interest legal organization’. The first academic literature in China to mention this concept was perhaps the book entitled Harmonious Society and Public Interest Law: A Comparative Study on Public Interest Law in China and the US, co-authored by Tong Lihua and Bai Yu. The book   The predecessor of Beijing Gong Meng Consulting Company was the Sunshine Research Centre for Constitutionalism and Social Science, established in Beijing by Dr Xu Zhiyong, Dr Teng Biao and Dr Yu Jiang of Peking University and public interest lawyer Zhang Xingshui on 28 December 2003. Since the organization cannot be registered as a non-governmental organization at the civil affairs department, it was registered as a company at the bureau of industrial and commercial administration. The registered name of the organization was initially the Beijing Sunshine Research Centre for Constitutionalism and Social Science. It was changed to the Beijing Gong Meng Consulting Company in September 2005.

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defines such organizations as non-governmental and non-profit organizations that ‘aim at the promotion of public interest’ or ‘engage in public interest legal activities’. According to the book, ‘public interest’ refers to ‘the interests of the disadvantaged groups’. There are many different understandings of the term ‘public interest’ and it is impossible to find an absolutely definite and clear definition of ‘public interest organization’ that is acceptable to all. In this chapter I will define ‘public interest legal organization’ using the following five criteria with a view to contributing to the further clarification of this concept: 1. legal relevance, namely provision of legal service based on legal knowledge and through the application of legal means and activities aimed at promoting the reform and progress of the law itself; 2. non-commercial nature, namely the purpose of such organizations is not to make a profit, their incomes are not distributed among their members, or they provide legal services free of charge or at a reduced price; 3. public interest orientation, namely such an organization is established to uphold or protect the lawful or legitimate interests of an unspecified majority of people; 4. non-governmental nature, namely the non-governmental nature of their establishment, operation and status that differentiate them from State organs or their affiliated bodies; 5. organizational character, namely relatively fixed or stable organizational and operational mechanisms that differentiate them from individual persons or the fortuitous association between individual persons. In reality, however, it is very difficult to apply the above-mentioned abstract criteria to specific organizations. Moreover, because such organizations use a variety of different and complicated names, it is also very difficult to identify a public interest legal organization by its name. Therefore, in practice we adopted a flexible approach, namely our study covers all non-governmental organizations that regularly provide non-commercial legal services. Although public interest organizations, as defined according to the above five criteria, are still small in number, their emergence as a kind of NPO in China is of great significance. First, China is currently in a period of transition from a planned economy to a market economy and from the rule of man to the rule of law. On the one hand, as the pursuit of individual interests acquires legitimacy in all fields and at all levels of social life, social interests become increasingly differentiated. As a result, the traditional ethical standard of placing morality above material gain is gradually abandoned and public interest, which is less exclusive in its enjoyment, is more easily ignored by individuals and becomes a blind spot in their pursuit of interest. On the other hand, because vulnerable groups are naturally in a disadvantaged position in the process of the development and implementation of social systems, because democracy and the rule of law are   See Tong Lihua and Bai Yu, Harmonious Society and Public Interest Law: a Comparison between China and the US (Beijing: The Law Press, 2005), pp. 78 and 5–14.   Based on the consideration of the criterion of non-governmental nature, legal aid organizations established within trade unions, communist youth leagues, women’s federations, federations of disabled people and consumers’ associations are not considered ‘public interest legal organizations’ within the meaning of this chapter.   Since the registration status of such organizations is very complicated – some of them are registered as enterprises, some as private law firms, some as associations, and some are not registered at all – it is not possible for us to provide accurate nationwide statistics on these organizations. However, our investigation in some regions shows the total number of such organizations is small.

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still under construction, and because the level of realization of the equality of citizens and freedom of expression is still low, public interest (with the interest of disadvantaged groups as its core) can easily lose its voice in the system. Under such circumstances, the emergence of civil society organizations with public interest orientation, including public interest legal organizations, has met an urgent societal need. Second, theoretically speaking, there are two main approaches to upholding and realizing public interest: one is to improve the market mechanism and give full play to the role of the ‘invisible hand’ on the basis of free competition, and realize the maximization of public interest through the maximization of individual interest. The second approach is for the neutral government to provide public resources in fields where the market economy does not work, and safeguard public interests through regulation by government policies and State laws. When the public interest is ignored or even infringed upon by either the government or the market, the other side may play a supplementary or restrictive role. However, a theoretically perfect market mechanism does not exist in reality, especially in China, which is still at the primary stage of a market economy. Nor does the theoretically neutral government exist in reality. All governments have their own special interests and so does each government department and its staff. Just as the government and the market may supplement and support each other in upholding public interest, specific government departments and their staff and specific actors of the market may also collaborate with and assist each other in infringing public interest. Third, compared with other civil society organizations, the most typical characteristic of a public interest legal organization is its legal relevance. Their legal knowledge enables them to see more clearly the institutional factors behind concrete problems and to perform the function of helping disadvantaged groups and upholding public interest through legal procedure and within the legal order, thereby promoting the improvement of the legal system and the progress of the rule of law. In other words, compared with other civil society organizations, public interest legal organizations are playing a more direct role in upholding public interest and constructing the rule of law in China. Finally, in terms of practice, despite their late start, small number and unequal development, public interest legal organizations are playing an increasingly irreplaceable role in providing legal aid to disadvantaged groups (such as women, children, the elderly, the disabled, peasant workers and consumers), raising citizens’ legal awareness and rights consciousness, promoting the concretization of constitutional rights in the form of specific laws and the adoption of public interest laws and policies. In the process of transition from the rule of man to the rule of law, China urgently needs public interest legal organizations and other civil society organizations with legal knowledge and public interest orientation to represent voices different from that of the government and the market. These organizations are also needed to put forward ideas, demands and suggestions on such matters as rights, law and the rule of law. On the other hand, the institutional space and survival condition of public interest legal organizations, as a kind of civil society organization that uses legal means to promote public interest and the development of the rule of law under the existing framework of legal order, reflect to a certain extent the current stage and level of development of rule of law in China. Based on the above considerations, this chapter tries to describe the current development of public interest legal organizations and analyse their survival conditions and institutional space with a view to providing some guidance for their future development.

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Background to the Emergence of Public Interest Legal Organizations in China The emergence of public interest legal organizations is the result of the increasing demand in society for public interest legal services. In this sense, factors that increase the demand for public interest services, such as those mentioned in the previous section, can all be regarded as background to the emergence of public interest legal organizations. Here I will examine the development of public interest legal organizations mainly from the perspective of the evolution of the lawyer’s system, namely the provision of legal service, in China. In 1976 the Cultural Revolution ended and various legal systems, including the lawyer’s system, were quickly re-established out of the ruins. In April 1979, a special group was established under the Legislative Affairs Commission of the Standing Committee of the National People’s Congress to draft the lawyers’ regulations. In July of the same year, the Criminal Procedure Law was promulgated which contained a special chapter on legal defences; in September the Ministry of Justice was restored and was given the task of drafting the regulations on lawyers. On 26 August 1980, the Interim Regulations of the People’s Republic of China on Lawyers was adopted and promulgated, marking the formal re-establishment of the lawyers’ system in China. However, as far as its content was concerned, the newly established lawyers’ system was merely the restoration of the system of the 1950s. Article 1 of the Regulations provided that: ‘Lawyers are legal workers of the State. Their task is to provide legal assistance to State organs, enterprises and State-sponsored institutions, mass organizations, people’s communes and citizens, so as to ensure the correct implementation of law, uphold the interest of the State and collectives as well as the lawful rights and interests of citizens.’ In addition, Article 13 of the Regulations provided that: ‘Lawyers perform their function at offices of legal advisers, which are State-sponsored institutions. They are under the leadership and supervision of State judicial administration organs.’ According to the Regulations, lawyers were not legal professionals. The government determined the establishment and funding of offices of legal advisers and the latter had to accept the leadership of State administration organs. In other words, the lawyers’ system was established not in direct response to the social need for legal services, but for the purpose of restoration and as part of the State legal system. Demand for legal services in a society will rise with an increase in the importance of the law in the society, and increasing social demand for legal service will in turn speed up the evolution of the legal system. With the restoration of various legal systems in the 1980s, the law began to play a more and more important role in society. As a result, the scope of legal services needed by society expanded, from the field of criminal law to civil law and from litigious activities to non-litigious activities. Apparently, the expansion of legal service requirements meant the number of State-approved and State-funded lawyers could no longer cope with demand. Therefore, from the early 1980s, the lawyer’s profession gradually broke off from the State administrative system, and embarked on a road towards marketization and commercialization. On 8 October 1984, the Ministry of Justice issued the Opinions on Strengthening and Reforming Lawyers’ Work, which put forward proposals for expanding the lawyers’ ranks, reforming the system of administration of the fund for legal advisers’ offices, and increasing legal service organizations by various means. On 3 June 1988, the Ministry issued the Plan for Trial Implementation of the System of Cooperative Law Firms. Cooperative law firms are institutional legal persons established   See Zhang Zhiming, ‘The Legal Profession in Contemporary China: Taking Civil Rights as the Basic Yardstick’, in Xia Yong (ed.), Towards An Age of Rights: a Research on the Development of Citizens’ Rights in China, Revised Edition (Beijing: China University of Political Science and Law Press, 2000), pp. 122–5.

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by at least three full-time lawyers in accordance with the principle of free association and with the approval of judicial administration departments. Such law firms are not part of the government establishment, nor are they funded by the government. Their staff is employed contractually. Financially, they have independent accounting and assume sole responsibility for their profits and losses. On 4 August 1992, the Ministry issued the Opinions on Further Reforming the Lawyers’ Work, which stated that efforts should be made to: speed up the establishment of a system for lawyers with State-run law firms as its main body but with co-existence and co-development between State-run and cooperative law firms; expand the scope and scale of experimental cooperative law firms in due course; and implement ‘one firm, two systems’, namely to allow law firms to hire persons who have already had the necessary legal qualifications but had no experience in working as a lawyer to be full-time lawyers on a contractual basis. On 26 December 1993 the State Council, in an official written reply to the Plan for Deepening the Reform of Lawyers’ Work submitted by the Ministry of Justice, instructed that: ‘Lawyers’ organizations should no longer be defined by the mode of ownership of means of production or the mode of administration. Efforts should be made to encourage the establishment of self-regulatory certified law firms not staffed and funded by the State, to actively develop lawyers’ force, enhance their quality, and establish a lawyer’s system based on the principles of voluntary association, self-reliance, self-development, and selfregulation, adapted to the needs of socialist market economy and international exchange, and with Chinese characteristics.’ The official reply also stated that: ‘Lawyers are professional legal workers who serve society’ and encourages lawyers ‘to be market-oriented and actively develop and open up new business’; ‘actively involve themselves in the handling of legal affairs at various links of the market economy, such as production, distribution, exchange, and consumption, and especially in the such fields as finance, real estate, securities, stock exchange, trade marks, patents, the development of high-tech and other newly emerged industries’; and ‘actively handle foreignrelated legal affairs so as to better serve the policy of opening up to the outside world’. On 15 May 1996, the Standing Committee of the National People’s Congress adopted the Law on Lawyers, which provides that: ‘A lawyer is a practitioner who has acquired a lawyer’s practice certificate pursuant to law and provides legal services to the public’; and a ‘law firm is the organization in which lawyers practise law’ and it can take the form of State-run law firm, cooperative law firm or partnership law firm. By this time, the transition of the status of lawyers from that of State legal workers to that of social workers who provide legal services and the process of marketization and commercialization of the legal profession had basically been completed. These transformations have established a more direct link between the supply and demand of legal services and promoted the rapid expansion of the legal service market by enabling it to reflect, in a more direct and timely manner, on the major changes in the economic and social fields. However, with the development of the commodity economy, the increasingly important role played by the law in society, and the establishment of a direct link between supply and demand of legal services, the supply of legal services apparently can no longer meet the rapidly growing demand. In addition, new problems have emerged in the process of marketization and commercialization of the legal profession. With the development of the market economy, social stratification and polarization between the rich and the poor has become increasingly prominent. As a result, it is very difficult for people with limited financial means or who belong to a disadvantaged group to enjoy equal access to legal services. Even without considering the factor of judicial corruption, equality before the law  Article 2 of the revised Law of the People’s Republic of China on Lawyers, adopted in 2007, gives a clearer definition of lawyers: ‘A practitioner who has acquired a lawyer’s practicing certificate according to law and accepts authorisation or appointment to provide legal services for a client.’

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cannot be safeguarded if legal services can only be bought with money. A person who cannot afford to hire a lawyer can hardly expect a fair result in a lawsuit against another party who can afford a lawyer. Therefore, the marketization and commercialization of the legal profession has resulted in an unbalanced distribution of legal services among different social groups. It could be argued that the root cause of the emergence of public interest legal organizations in China is the insufficient and unbalanced supply of legal services. The unbalanced distribution of legal services among different social groups manifests itself in the following three ways. First, poor people cannot afford to hire a lawyer. In the process of social differentiation, the redistribution of wealth is closely related to the possession of other resources, such as knowledge, a diploma, connections and political status. Those who have no money are usually also those who have no power, no connections and little education and are generally in a disadvantaged position. In the process of law-making, they have very few opportunities to voice their demands; even if they can, their voice can hardly bring any positive results; and in the implementation of laws and policies or in litigation, their interest is often sacrificed, ignored or treated with indifference. In other words, after the marketization and commercialization of legal services, the social groups that are most in need of legal services are also the groups that have the most difficulties in getting such services because of a lack of money. Second, it is very difficult for people from disadvantaged groups to get good legal representation. Considering the fact that commercialized lawyers are ‘rational human beings’ and connections are their social capital for securing customers, winning lawsuits and getting higher payments, in the legal contest between two parties with great disparity in strength (such as between a consumer and a corporation or between an ordinary citizen and a government official), most lawyers would naturally choose to represent the one who is in an advantaged position – although this may not necessarily be true in all circumstances. Moreover, wealthy and powerful parties in lawsuits also tend to choose more famous, capable and well-connected lawyers to represent them in court. As a result, generally speaking, it is very difficult for a person who is in a disadvantaged position to hire a lawyer with expertise that is comparable to that of the opposing legal counsel in the lawsuit. This results in a relative imbalance in the quality of legal services provided. This, combined with partiality and even corruption of the courts, inevitably leads to unfair legal results. Third, the imbalance in opportunity and effectiveness of interest expression can easily lead to the adoption of laws that are biased in favour of those already in the stronger position. The same problem exists in the operation of laws, in which abstract legal rules and principles are transformed into concrete operational codes. Although the orientation of legislation and interpretation of the law is not determined by lawyers, they can influence the interpretation of the law by judges. This imbalance was one of the factors that led to the birth of a legal aid system in China. In 1993, the Ministry of Justice issued the Plan for the Deepening of Reform of Lawyer’s Work. On 3 January 1994, Xiao Yang, the then Minister of Justice and Party-Secretary of the Ministry of Justice, formally put forward a tentative plan for establishing a legal aid system with Chinese characteristics: ‘The legal aid system is the symbol of de facto equality of everyone before the law as well as an important manifestation of a sound social safeguard system. In our socialist country, providing legal aid is not only a bounden duty, but also an important embodiment of the social conscience and professional ethics of lawyers. The draft Law on Lawyers should include specific provisions on the establishment of a legal aid system.’ Immediately following this, actions were taken to establish trial units of legal aid work in Beijing, Guangzhou, Wuhan and other large and   Yuan Dingbo, ‘Footprints of the Rule of Law in the Past 60 Years: Historical Leaps in the Development of Legal Aid System in China’, The Legal Daily (Weekend Edition), 16 September 2009.

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medium-sized cities. On 25 February 1995 the Ministry of Justice issued a document entitled ‘Main Points of National Judicial Administrative Work in 1995’, which took the exploration of ways of establishing a legal aid system as an important part of the reform of judicial administrative work. In 1996, the newly promulgated Criminal Procedure Law and Law on Lawyers established the status of the legal aid system in the Chinese legal system. Following this, the Ministry of Justice adopted a series of normative documents and, in conjunction with the Supreme People’s Court, the Supreme People’s Procuratorate and the Ministry of Public Security, adopted provisions on dovetailing legal aid work with other work related to litigation. In addition, 19 provinces (autonomous regions and municipalities directly under the central government), adopted regulations or measures on legal aid in light of the actual situation of their respective localities. In September 2003, the ‘Regulations on Legal Aid’ formally came into force. The Regulations clearly stipulated that providing legal aid was an obligation of the government, thereby establishing the basic framework of the legal aid system in China. The Regulations indicated that legal aid work in China had completed the stage of institutional building and entered into a stage of rapid development. According to statistics, a total of 3,276 legal aid agencies had been established throughout the country by June 2009. Of these legal aid agencies, 70.6 per cent were either State administrative organs (1,674) or State-sponsored institutions whose employees had the status of civil servants (639), and 27.2 per cent (890) were fully State-funded institutions. A total of 87.4 per cent of them (2,864) were State budgeted. Moreover, 55,229 legal aid workstations were established throughout the country and 36,542 of them were established under local judicial administrative departments. In most provinces, over 90 per cent of judicial administrative departments had already set up legal aid workstations, more specifically, 97 per cent in Jiangsu and Guangzhou provinces and 100 per cent in Zhejiang Province. A total of 18,687 legal aid workstations were established under trade unions, youth federations, women’s federations, associations for the elderly and the disabled, colleges and universities, prisons, and houses of re-education through labour. Legal aid organs throughout the country took up a total of 278,330 cases and 203,097 of them have already been dealt with and closed. Among them, 102,789 were cases involving peasant workers, a 36 per cent increase on the same period in 2008, and 64,382 were cases involving women, an increase of 31.4 per cent on the previous year.10 The legal aid system created institutional space for the emergence of public interest legal organizations. First, although the transformation of lawyers’ status from that of ‘State legal worker’ to that of ‘social worker providing legal services’ has made it possible for the socialization of legal services, a strict licence system has been implemented for practising lawyers, and both lawyers and law firms must pass a strict examination and approval procedure before they can practice. Anyone who does not hold such qualifications or who, although having the necessary qualifications, does not belong to an organization approved for the practice of law, cannot provide legal services similar to those provided by a lawyer. Otherwise he faces punishment as an ‘unlicensed lawyer’. The establishment of the legal aid system recognizes that an institutional space exists outside of law firms for the provision of legal services. Second, Articles 8 and 9 of the Regulations on Legal Aid, promulgated in 2003, clearly recognize the legitimacy of the provision of legal services by social organizations, stating that: the State supports and encourages non-governmental organizations, institutions and other social organizations to rely on their own resources to provide legal aid  Ibid.   Speech by Zhang Fusen, the former Minister of Justice, at a symposium held on occasion of the first anniversary of the implementation of the Regulations on Legal Aid, available at: www.legalinfo.gov. cn/misc/2004-08/29/content_129067.htm (last visited November 2009). 10  ‘Statistical Analysis of Legal Aid Work in China during the First Half of 2009’, available at: www. lvsh.cn/?action-viewcomment-itemid-1035 (last visited November 2009).

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to citizens with financial difficulties; and people’s governmental and judicial administration departments should commend and reward organizations and individuals that have made outstanding contributions in legal aid work. In the process of the establishment of the legal aid system, public interest legal organizations have emerged. The first public interest legal organization in China was the Legal Service Centre of the Law School of Northwest College of Political Science and Law, established on 25 October 1984.11 It was only eight years later, in May 1992, that the second such organization – the Centre for Protection of Rights of Disadvantaged Citizens of the Law School of Wuhan University – was quietly set up. Since then, more and more organizations emerged whose main activity was providing legal aid. They include: the Legal Aid Association of Peking University, established in 1994; the Women’s Legal Study and Service Centre of Peking University, established in 1995; the Women’s Legal Service Centre of Qianxi County, Hebei Province, established in 1995; the Migrant Women’s Club and Beijing Legal Aid Foundation, established in 1996;12 the Student Social Assistance and Legal Aid Centre of Huadong University of Political Science and Law, the Migrant Workers’ Home of Longhua District, Haikou City, and the China Legal Aid Foundation, established in 1997; the Legal Aid Centre for Pollution Victims of the China University of Political Science and Law and the Legal Aid Centre of Nanjing University, established in 1998; the Legal Aid Centre of Renmin University of China, the Legal Aid Society of Hainan University, the Social Rights and Legal Aid Centre of Xiangtan University, the Student Legal Service Centre of Guangxi University, and the Beijing Juvenile Legal Aid and Research Centre, established in 1999. Legal aid is the raison d’être of most public interest legal organizations. Apart from providing legal aid, many such organizations also carry out thematic research and social investigations, submit legislative proposals to relevant government departments or legislative organs, apply for reviews of the legitimacy of specific regulations or rules, participate in the drafting and revision of laws, and supervise the implementation of law by expressing their legal opinions on major cases. Legal aid is playing an important role in mitigating the second and third aspects of imbalance in the supply of legal service, as mentioned above. Types and Activities of Public Interest Legal Organizations Types of Public Interest Legal Organizations Currently public interest legal organizations in China can be divided into different categories according to different criteria.

11  The Legal Service Centre of Northwest College of Political Science and Law is a large-scale student organization under the guidance of Communist Youth League Committee of the College. It is the first student organization established in a college directly affiliated to the Ministry of Justice to engage in student legal aid work and to use Internet resources to carry out legal aid work, as well as the largest student legal aid organization in Northwest China. 12  Both the Beijing Legal Aid Foundation and China Legal Aid Foundation are public foundations with strong government affiliation. The former was registered in April 1996 at the Office of Administration of Social Organizations with the approval of China People’s Bank. It is the first legal aid foundation with the status of an independent legal person. The latter was registered in 1997, at the Ministry of Civil Affairs with the approval of the State Council. It is currently the only national public foundation devoted to the development of legal aid undertakings.

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Organizational forms  In terms of organizational form, there are two types of public interest legal organizations: substantive-type organizations and Internet-type organizations. Most public interest legal organizations are substantive organizations with a fixed name, office, staff and organizational structure, whereas Internet-type public interest organizations have emerged only in recent years and carry out activities mainly via the Internet. The earliest Internet-type public interest legal organizations were the Anti-Domestic Violence Network of the China Law Society and the China Juvenile Legal Aid Lawyers’ Coordination Network. The former was established in Beijing in 2000 by a group of women’s human rights experts, scholars, activists and several women’s NGOs. Currently, it has 112 individual members and 59 group members from 28 provinces, municipalities directly under central government and autonomous regions. The latter was established at the initiation of Beijing Zhicheng Law Firm in November 1999, and held its first annual meeting in July 2000. By the end of 2001, it had 96 members and established workstations in Zhangjiakou of Hebei Province, Taiyuan of Shangxi Province and Shantou of Guangdong Province. Although more politically sensitive, website-type public interest legal organizations have seen healthy levels of development in China in recent years. On 18 October 2008, prompted by rights-protection activist Ge Shuchun, the Union of Directors of Mass Media Supervision Websites was established, consisting of the directors of over ten websites, including ‘China Anti-Corruption and Rights Protection’, ‘Rights Protection China’, ‘China Legal System and Rights Protection’ and ‘Justice’. According to an article entitled ‘Suggestions on Establishing an Official Website for the Union of Mass Media Supervision’ published in Baidu Space by Mr Wu Aiguo, director of the website ‘China Anti-Corruption and Rights Protection’, the Union currently has more than 50 members.13 In January 2009, the website ‘China Public Interest Rights Protection Federation’ was established by Mr Cao Dong, a medical doctor. On 13 March the same year, Shanghai TV Station, Dragon TV, IPTV, Xinhua News Agency Shanghai Branch, Sohu.com and Shanghai Youth Daily, participated in the opening ceremony of the website.14 On 15 March 2009, the Public Interest Lawyers’ Website was established by the Women’s Legal Study and Service Centre of Peking University. Now the website has attracted over 100 individual members (including lawyers and legal workers) and close to 20 group members (including law firms, women’s federations, female legal workers’ associations and large portal sites) from 24 provinces in both the eastern and western regions, and from both developed, moderately developed and underdeveloped areas.15 The emergence and development of Internet-type public interest legal organizations reflects the networking development of public interest legal organizations. Such a trend towards networking has had the following two manifestations: first, the establishment of associations of individual public interest legal organizations, such as the Anti-Domestic Violence Network of China Law Society, China Juvenile Legal Aid Lawyers’ Coordination Network and Public Interest Lawyers’ Network; and second, with the widespread use of the Internet, many web-based public interest legal organizations have emerged, such as ‘China Anti-Corruption and Rights Protection Website’, ‘Rights Protection China’, ‘China Legal System and Rights Protection Website’ and unions of such websites, such as the Unions of Directors of Mass Media Supervision Websites and China Union of Public Interest and Rights Protection Websites. Association between individual public interest legal organizations is conducive to reducing the cost of providing legal service in individual cases, 13  Currently the Federation still does not have an official website. Its address in Baidu Space is: http:// hi.baidu.com/yulun001 (last visited November 2009). 14  The official website of the China Public Rights Protection Union is: www.cprpu.org (last visited November 2009). 15  The official website of the Public Interest Lawyer’s Network is: www.wrpil.org.cn (last visited November 2009).

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strengthening the solidarity of such organizations, and improving the social impact of public interest lobbying, thereby enabling such organizations to better fulfil their social function of upholding the public interest. Further, widespread use of the Internet has expanded the scope of the target groups of public interest publicity, lobbying and supervision, which has in turn accelerated the dissemination of relevant information. Sponsorship  In terms of sponsorship, public interest legal organizations can be divided into those established by institutions of higher education and research institutions, those initiated by private law firms, and those initiated by other organizations and individuals. First, legal aid organizations established by colleges, universities and research institutions are the first contemporary public interest legal organizations to have emerged in China and today they still constitute the main body of public interest legal organizations in the country. Such organizations can be further divided into two categories. The first category is those that are student organizations in nature, with students as their main body and which mainly carry out activities in colleges and universities. According to the Regulations on the Registration and Management of Social Organizations, such organizations do not need to be registered at a civil affairs department. An example of such an organization is the Legal Service Centre established by the Northwest College of Political Science and Law, in 1984. In the second category are organizations that mainly consist of teachers and researchers from colleges, universities and research institutions, which also organize students to participate in the activities of the organizations. These carry out activities outside colleges, universities or research institutions and, according to current laws, need to be registered. An example is the Centre for Protection for the Rights of Disadvantaged Citizens of Wuhan University, established in 1992. From 2000, public interest legal organizations in colleges, universities and research institutions began to combine their activities with clinical legal education and to exchange experiences and cooperate with each other through the Clinical Legal Education Committee (a federation of legal clinics).16 In September 2000, the law schools of seven universities, including Tsinghua University and Peking University, began to offer courses in clinic legal education. On 28 July 2002, with the approval of the China Law Society, the Committee of Chinese Clinic Legal Educators (CCCLE) was established by 11 universities to offer courses in clinical legal education. On 16 November 2009, the Law School of Dalian University became the 177th unit member of the committee. Clinic courses cover a wide range of topics such as: the protection of the rights and interests of workers, consumers, women, the elderly and juveniles; public interest litigation services; clinics for the protection of the rights of vulnerable groups; environmental protection; criminal defence; criminal reconciliation; and community correction for juvenile delinquents. Clinical education can, on the one hand, promote the development of public interest legal organizations initiated by colleges, universities and research institutions through the resource-sharing platform of CCCLE and, on the other hand, develop a large reserve force for public interest organizations not only by providing students with training in the practice of law, but also by raising their public interest consciousness. Second, whilst the Regulations on Legal Aid define legal aid as an obligation of the government and a duty of lawyers,17 they do not contain clear provisions on the concrete forms of lawyers’ 16  www.cliniclaw.cn (last visited November 2009). 17 Article 3 paragraph 1 of the Regulations on Legal Aid provides that: ‘The State has the obligation to provide legal aid. People’s government at or above the county level shall take positive measures to promote legal aid work by providing financial support and coordinate the development of legal aid undertakings with economic and social developments.’ Article 6 of the Regulations provides that: ‘Lawyers shall perform their legal aid obligations in accordance with the Law on Lawyers and these Regulations. They shall provide

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participation in legal aid. In practice, most lawyers perform their legal aid obligations by handling cases assigned to them by the bar associations or by judicial administration departments. Only a few private law firms have established relatively independent public interest legal organizations. They include: the Beijing Zhicheng Law Firm, which established the Beijing Juvenile Legal Aid and Research Centre in August 1999; and the Guolian Law Firm, which established a website on the protection of the rights of victims of industrial injury in April 2005, and the Beijing Yilian Labour Law Legal Aid and Research Centre, in October 2007. Since 2009, an increasing number of private law firms have begun setting up legal aid centres (or legal aid service stations). By July 2009, 42 law firms in Hefei City, Anhui Province, had established such legal aid organizations,18 and by November 2009, five law firms in Zhengzhou City, Henan Province, had also established legal aid stations.19 Although the public interest legal service provided by these stations is usually limited to legal aid only, it reflects a trend towards greater involvement by private law firms in public interest legal services. It could be predicted that in the near future, private law firms will make greater progress in expanding public interest legal services and coordinating their work with public interest legal organizations. Third, apart from the above-mentioned two categories of public interest legal organizations, there are also public interest legal organizations initiated by NPOs, companies or individuals. Among the earliest such organizations are the Migrant Women’s Club and the Little Bird Hotline for Migrant Workers. The former is the first organization to serve women who migrate from rural areas to cities to find jobs. Its predecessor was the Group for the Protection of Rights of Female Migrant Workers, which was established on 7 April 2002. The organization has an administrative secretary in charge of the protection of rights. Over 20 lawyers and many college students have volunteered to work for the organization, which provides legal aid and access to judicial remedies for female migrant workers from rural areas. The latter was initiated by Mr Wei Wei, a young migrant worker in Beijing who came from Henan Province. It specializes in providing free assistance to migrant workers in such matters as looking for a job, claiming for arrears in wages, and legal consultation. There are more public interest legal organizations initiated by NPOs, companies and individuals than those established by for-profit law firms, but fewer than those established by colleges, universities and research institutions. Moreover, their registration rate is also apparently lower than the other two categories of organizations. However, this group of organizations is the most active of the above-mentioned three groups. An example is the Gong Meng Legal Research Centre, mentioned at the beginning of this chapter. Since its establishment in October 2003, it has, apart from hosting the non-periodical Sunshine Rule of Law Forum, published many special research reports, such as the Report on Human Rights Development in China in 2005, and the Research Report on the System of Complaint by Letters and Visits in China. As another example, in January 2006 a group of people, who were concerned about and willing to contribute to the improvement of the health conditions and the right to education of Chinese citizens, established the Working Group on the Health Condition and Right to Education of Citizens. In October 2006, the organization provided legal aid to 19 first-grade students of No. 15 Middle School and several other middle schools in Urumqi City of Xinjiang Uyghur Autonomous Region, who were expelled from these recipients of legal aid with legal services that conform to the relevant standards, uphold their lawful rights and interests in accordance with the law, and accept supervision by bar associations and judicial administration departments.’ 18  See http://ah.anhuinews.com/system/2009/07/17/002297928.shtml (last visited November 2009). 19  See China Legal Information Website at: www.law-star.com/cacnew/200911/295047854.htm (last visited November 2009).

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schools because they were carriers of the hepatitis B virus (HBV). In September 2007, it published the Handbook on Legal Protection Against Discrimination in Employment in cooperation with Beijing Yirenping Centre; supported student groups in many colleges and universities throughout the country to disseminate knowledge about health and the equal right to education; and provided legal aid to 74 students from the Advanced Industrial Technical School of Yunnan Province who were forced to quit the school because they were HBV carriers. In 2008, it cooperated with many college associations and student unions in distributing materials that disseminated scientific knowledge about hepatitis B, such as ‘Hepatitis B and You’; called for and organized volunteers to distribute the Handbook on Legal Protection against Discrimination in Employment in recruitment fairs in major cities; and provided help to nearly 100 college students who were HBV carriers and faced with pre-employment physical examination. Further, the Working Group, in cooperation with the Beijing Yirenping Centre and Beijing Aizhixing Institute of Health Education, published the Annual Report on Public Health Status and Right to Education. In January 2008, it organized 600 diabetics to submit a Joint Proposal on Revising the Guideline on the Physical Examination of Newly Enrolled Students in Regular Institutions of Higher Education and Protecting the Right to Education of Diabetics, demanding the protection of the right to education of students with diabetes.20 Service objects  In terms of service objects, public interest legal organizations provide services to such groups as women, children, the disabled, workers (especially migrant peasant workers), persons suffering from a particular illness (for example, hepatitis or AIDS) and people with economic difficulties. Most public interest legal organizations provide services to all those who are eligible for legal aid. Only a few of these organizations limit their services to specific groups, mainly women and migrant peasant workers. The World Conference on Women, held in Beijing in 1995, greatly promoted the development of women’s NGOs in China. More than half of these organizations provide legal services to women free of charge or at reduced rates. The earlier women’s NGOs include: the Maple Women’s Psychological Counselling Centre established in Beijing in 1992; and the Wuhan New Sun Women’s Marriage Post House, the Women’s Legal Aid Centre of the Law School of Peking University, and the Women’s Legal Service Centre of Qianxi County, Hebei Province, all of which were established in 1995. Influenced by the mainstreaming of gender perspective in the legal field, women’s public interest legal organizations are showing an increasing tendency towards utilizing women’s experiences to fight against traditional patriarchal ideas that suppress women’s rights. For example, on 16 April 2005, a nationwide interactive service platform called the ‘Women’s WatchChina’ was established by a number of women’s NGOs. Since its establishment, ‘the organization has taken the protection of women’s rights and interests and the promotion of gender equality as its mission, devoting itself to the collection of information relating to gender equality and protection of women’s rights, reporting situations of women’s rights, providing a platform for communication, exploring counter-measures, promoting gender mainstreaming, and safeguarding women’s rights and interests’.21 Because of the dilemma faced by the protection of the rights of migrant peasant workers during the transitional period, a relatively large percentage of public interest organizations are mainly engaged in providing services to migrant peasant workers. Apart from the above-mentioned Migrant 20  See a call for volunteers published by the Working Group on its website: www.douban.com/group/ topic/5545057 (last visited November 2009). 21  See the website Women Watch-China at: www.womenwatch-china.org/PageInfo/Default.aspx? CodeType=About (last visited November 2009).

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Women’s Club and Little Bird Hotline for Migrant Workers, other examples of such organization include: the Migrant Worker’s Club, established in the Longhua District of Haikou City in November 1997; the ‘Workers’ Document Service Office’, established in Panyu City, Canton Province, in 1998; the Xiaochen Hotline, established in Qingdao City, Shangdong Province, on 23 November 2000; the Migrant Worker’s Occupational Safety and Health Service Centre, established in the Longgang District of Shenzhen City at the end of 2000; and the Beijing Cultural Communication Centre for Facilitators, established on 31 March 2003. Most of these organizations were initiated and established by migrant workers themselves. In terms of official recognition, public interest legal organizations that mainly provide services to migrant peasant workers are more ‘grassroots’ and therefore more difficult to initiate or establish and are faced with greater risks in carrying out activities than women’s public interest legal organizations. For example, in November 2007, Huang Qingnan, the person who registered the Shenzhen Migrant Workers’ Centre and had engaged for many years in the protection of migrant workers’ rights, was attacked with a knife and seriously injured. On 24 January 2008, the man behind the attack, a local business owner, was arrested.22 However, only a month later, another person involved in a public interest organization specializing in the protection of migrant workers, the Xiaochen Hotline in Qingdao City, Shangdong Province, was retaliated against. In addition, one of its affiliated organizations, the New Citizens’ Club, was vandalized by unidentified persons.23 Apart from those mentioned above, there are some other socially influential public interest legal organizations that provide services to special social groups. They include: the Shangchundadi Research Institute, which was established in January 2004, and is mainly concerned with ‘issues of agriculture, farmers and rural areas’ and farmers who appeal to higher authorities for help; the Beijing Aizhixing Institute of Health Education, established on 10 September 2004, and which provides legal counselling to AIDS patents; and the Beijing Yirenping Centre, which was established in December 2006, and provides anti-discrimination legal services to people suffering from certain illnesses (HBV, AIDS or diabetes). Moreover, it seems that the number of public interest legal organizations serving particular social groups is on the rise. Activities of Public Interest Organizations Activities carried out in the name of or promoted by public interest legal organizations mainly include: legal consultation; dissemination of legal knowledge and legal training; legal aid; public interest litigation; public interest lobbying; and participation in legislation. All public interest legal organizations provide free legal consultation service and disseminate legal knowledge. Here, I will focus on the latter three types of activities that are still relatively uncommon in China. Public interest litigation  There is a large area of overlap between public interest litigation and legal aid. However, the former refers first and foremost to litigation itself and, even in the widest sense, requires that the litigation has a public interest nature that transcends the individual interest of the party being represented in the case.

22  Xu Chunliu, ‘The Case of Attack against the Person in Charge of Shenzhen Migrant Workers’ Centre Goes on Trial’, at: http://news.cqnews.net/sh/shzh/200812/t20081224_2803987.htm (last visited November 2009). 23  ‘Outspoken Xiaochen Hotline Attacked’, Peninsular Metropolitan Daily, 26 December 2007, available at: http://news.bandao.cn/news_html/200712/20071226/news_20071226_582481.shtml (last visited November 2009).

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As it is restricted by the system of qualifications of the plaintiff in Chinese law, public interest litigation carried out by public interest legal organizations mainly takes the form of legal aid provided to specific parties to lawsuits. In practice, however, some public interest legal organizations also initiate public interest litigation in the name of their own individual members and volunteers or by seeking out plaintiffs and offering to represent them in court. There are many cases that fall into the first category of public interest litigation. The more typical ones include: a series of cases involving discrimination against HBV carriers in which legal aid was provided by the Beijing Yirenping Centre and the Working Group on the Health Condition and the Right to Education of Citizens; a series of cases involving the land rights of rural women in which legal aid was provided by the Women’s Legal Aid Service Centre of the Law School of Peking University; cases involving the checking of citizen’s ID cards by public security organs in violation of relevant legal procedures in which legal aid was provided by the Centre for Protection of Rights of Disadvantaged Citizens of Wuhan University; and cases involving the forced closure of schools for children of migrant peasant workers in which legal aid was provided by the Beijing Dongfang Public Interest Legal Aid Law Firm. The above cases belong to the category of legal aid cases in which legal services are provided by public interest legal organizations. At the same time, these lawsuits have impacted on society in a way that transcends the cases themselves. Hence, they are also called ‘impact litigation’.24 The number of cases in the second category of public interest litigation is relatively small. Typical examples include: the class action against the State Tobacco Monopoly Administration and 24 tobacco companies in June 2001, in which the Beijing Juvenile Legal Aid and Research Centre encouraged people to bring lawsuits and then represented them in court; cases involving discrimination against non-local residents in the price of admission tickets to Emei Mountains Scenic Areas, brought by eight students with the help of Human Rights Legal Research Centre of Sichuan University in 2002; and the case involving compulsory insurance for train tickets brought by the volunteers of Beijing Dongfang Public Interest Legal Aid Law Firms in 2006. All these cases have either been declared inadmissible or have ended in defeat in court: the ‘tobacco case’ was declared inadmissible by the court of first instance and this decision was upheld by the court of second instance. In the ‘admission ticket price discrimination case’, the court of first instance dismissed the plaintiffs’ request ‘to declare the administrative act of the Committee for the Administration of Emei Mountains Scenic Areas’ unlawful and this ruling was upheld by the court of second instance; in the ‘railway ticket compulsory insurance case’, the plaintiff’s claim was rejected by the court of first instance and the ruling was upheld by the court of second instance. However, such cases, through the reporting and publicity by the mass media, have brought the relevant public interest issues to the attention of the general public and the relevant government departments and paved the way for the eventual solution of all these problems. In 2009, the All-China Environment Federation instituted a public interest lawsuit as a plaintiff. The organization is a nationwide non-profit civil society organization formed on the basis of voluntary association by individuals, enterprises and institutions interested in environmental protection. It was established with the approval of the State Council, registered at the Ministry of Civil Affairs, and under the administration of the Ministry of Environmental Protection.25 In May 24  For more information about impact litigation in China, see the following website: www.imlawyer. org/Main.asp (last visited November 2009). 25  Strictly speaking, the Federation is not a public interest legal organization as defined in this chapter. It is discussed here because its actions of instituting environmental public interest litigation in its own name as a plaintiff is of great significance in the opening up of institutional space for the activities of public interest legal organizations in the field of public interest litigation.

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2009, the Federation received a report that the eco-system of the One-Hundred Flower Lake in Qingzhen City was under threat by a half-completed factory in the area. After an investigation and preliminary work, the Federation filed a lawsuit at the Court of Qingzhen City against the Land and Resources Bureau of Qingzhen City, with Li Wanxian, the owner of the factory as a third party. The lawsuit requested the court to order the defendant to withdraw the right to use the land and the facilities on it that had been transferred to the third party. The court accepted the case on 28 July 2009 and held a court hearing on 1 September 2009. However, as the defendant had taken action to remedy the situation before the opening of the court session, the plaintiff was able to withdraw the case, thereby winning the public interest litigation without a fight.26 Almost at the same time, another public interest case, brought by the Federation against the Container Company of Jiangyin Port in Jiangsu Province for polluting the environment, was accepted by the Intermediate People’s Court of Wuxi City on 6 July.27 The fact that these federations, as public interest organizations, were able to institute public interest cases in their own names as plaintiffs, and that the cases were accepted by the court with positive results, is of great significance in the opening up of an institutional space for, and encouraging public interest legal organizations to engage in, public interest litigation. Public interest lobbying  ‘Public interest lobbying’ refers to the activity of public interest organizations or citizens contacting legislators or administrative policy-makers to discuss issues relating to the public interest, with a view to influencing existing laws (including bills of law that have not yet been voted on) or putting forward new laws that promote the public interest. It includes: submitting proposals to decision-makers on the adoption, abolishment or revision of laws (namely, the so-called ‘public interest petition’) and information on and analysis of certain issues; exerting pressure on administrative organs over certain issues; and, in a broad sense, mobilizing civil society resources and public opinions with a view to influencing government decision-making.28 Public interest petition refers to suggestions submitted to legislative organs on the adoption, revision or abolition of certain laws, which in public interest legal practice mainly take the form of requests for reviewing the legality of certain normative documents and submission of legislative proposals. The first kind of public interest petition, namely requests for the review of the legality of normative documents, began to emerge in 2003 when several ‘typical’ petitions attracted public attention: the first petition was submitted by Ms Wang Shurong, chairperson of the Villagers’ Committee of Xianghe County, in Hebei Province, to the Standing Committee of the National People’s Congress, requesting it to review the legality of Article 25 of the Amendment to the Regulations of Hebei Province on Land Administration, which she believed to be contradictory to the Law on Land Administration; the second petition was jointly submitted by three doctors of 26  For more information about the court hearing of this case, see Gao Jie, ‘The First Victory in Environmental Public Interest Administrative Litigation: Administrative Organ Performed Its Obligation After Being Sued’, at: www.greenlaw.org.cn/blog/?p=1436 (last visited November 2009). 27  For more information about the trial of this case and the relevant comments, see Xi Jianrong, ‘Wuxi People’s Court Accepts the Case of All-China Environment Federation Versus a Polluting Enterprise: the First Public Interest Litigation Instituted by an Environment Organization’, at: www.legaldaily.com.cn/0801/200907/09/content_1120928.htm (last visited November 2009); and Sun Ruizuo, ‘The Ice-Breaking Significance of the First Public Interest Litigation Instituted by an Environmental Organization’, at: www.gongyishibao. com/news/newsshow.asp?id=705 (last visited November 2009). 28  See Zhu Xiaofei (ed.), ‘The Concept of Public Interest Lobbying’, in Beijing Dongfang Public Interest Legal Aid Law Firm (ed.), Public Interest Litigation, vol. 1 (Beijing: China Procuratorial Publishing House, 2006).

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law, Dr Yu Jiang, Dr Teng Biao and Dr Xu Zhiyong, to the Standing Committee of the National People’s Congress, requesting it to review in accordance with the relevant provisions of the Law on Legislation the legality of the Measures for the Detention and Repatriation of Vagabonds and Beggars in Cities; and the third petition, entitled ‘Constitutional Review: Upholding the Equal Rights and Interests of HBV Carriers’, was submitted by 1,611 citizens, including Prof. He Jiahong and Prof. Zhang Jiansheng and some other professors of law, to the Standing Committee of the National People’s Congress, requesting it to review the constitutionality of the Interim Regulations on Civil Servants and the Interim Regulations on the Employment of Civil Servants adopted by the State Council and the standards on physical examination of civil servants in 31 provinces and municipalities directly under the central government, and autonomous regions.29 It was also in 2003 that Beijing Dongfang Public Interest Legal Aid Law Firm, which mainly specializes in public interest petitions, was established. Since 2005, this firm has submitted over 10 public interest petitions, requesting legislative organs to review the legality of specific normative documents on such issues as the road rights of bicycle riders, the reform of the mechanism for the allocation of funds for compulsory education in rural areas, different compensation standards for death and personal injuries for urban and rural citizens, compulsory insurance for railway tickets, and the dual system of administration of social organizations.30 As far as drafting legislative proposals is concerned, the number is relatively small. Examples include: a proposed draft of the Law on the Prevention and Punishment of Domestic Violence, submitted by the Anti-Domestic Violence Network of China Law Society to the Motions Examination Committee of the Tenth National People’s Congress, in March 2003; a proposed draft of Provisions on the Handling of Sexual Harassment Cases by the People’s Court, submitted by the same Network to the Motions Examination Committee of the Tenth National People’s Congress, in February 2007; and an appeal for the adoption as soon as possible of a Law on Association or Law on Mass Organizations, jointly put forward by close to 300 NGOs throughout the country at the Fourth Annual Meeting of Environmental NGOs that ended on 1 September 2009. The appeal proposed that: ‘If the government wants society to practice something, it must first practice it itself.’31 Since the submission of a public interest petition in the name of an organization is considered politically sensitive and risky, many public interest legal organizations choose to do it in the name of their individual members. Compared with public interest petitions, public interest investigation and research is far more common in China. Because of their relative advantage in academic research, public interest organizations established by institutions of higher education and research institutions are usually more active in this respect. However, some other public interest legal organizations have also carried out investigations and research by taking advantage of their practical experience and have made a positive impact on society. The following are several examples. The Anti-Domestic Violence Network of China Law Society has, since its establishment, conducted a large amount of research and carried out many investigations on issues of domestic violence, including the Research on the Intervention in Domestic Violence in Rural Communities; Research on Intervention in Domestic

29  See Huang Jinrong, ‘A Fledgling Legal Movement: a Review and Commentary on the Practice of Public Interest Litigation in Contemporary China’, in Beijing Dongfang Public Interest Legal Aid Law Firm, Public Interest Litigation. 30  For more information about these petitions, see the website of the organization at: www.dfpilaw. org/show_news.asp?classid=5&boardid=21&id= (last visited November 2009). 31  Xi Jianrong, ‘300 NGOs Call the Government to Adopt as Soon as Possible a Law on Social Organizations’, at: www.csrpioneers.com/c_News/News.aspx?ArticleID=1296 (last visited November 2009).

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Violence in Urban Communities; Research on the Fight against Domestic Violence by the Medical System; Investigation on Women Victims of Domestic Violence; and Investigation on Current Situation of and People’s Attitude Towards Domestic Violence in China. It has published a series of reports, including: Oral Accounts of Women Victims of Domestic Violence and Investigation Report on the Current Situation of and People’s Attitude Towards Domestic Violence in China, which played an important role in promoting legislation and law enforcement relating to domestic violence; in May 2005, the Beijing Juvenile Legal Aid and Research Centre published the Investigation Report on the Cost of Upholding Rights by Migrant Peasant Workers in China, which, by using concrete data to demonstrate the dilemma faced by Chinese migrant peasant workers in upholding their rights, aroused strong social reactions; and in recent years, the Beijing Yirenping Centre has published a series of investigative and research reports, including the Annual Report on the Health Condition and Right to Education of Citizens (April 2007), Annual Report on the Health Condition and the Right to Employment of Chinese Citizens (June 2008), Investigation Report on Discrimination Against Hepatitis B Patients/HBV Carriers in Chinese Institutions of Higher Education (October 2008), Investigation Report on Discrimination Against Hepatitis B Patients/HBV Carriers in Foreign Invested Companies in 2008 (February 2009) and Investigation Report on the Situation of HBV Testing in Pre-employment Physical Examination at Municipal and District Physical Examination Centres in Beijing (October 2009). Participation in legislation  In recent years, with the democratization of the legislative process, NGOs began to participate directly in law-making in China. Among the NGOs to do so, only a few are public interest legal organizations – all of which have a relatively strong political background or possess a large amount of political resources. The following are some examples: the All-China Environment Federation, in an effort to promote anti-smoking legislation, organized the Seminar and Press Conference on Environmental Action of Promoting the Adoption of an Anti-Smoking Law and Advocating ‘a Smoking-Free Asian Games’, held in Guangzhou City on 18 May 2009 and the ‘Seminar and Press Conference on Environmental Action of Promoting the Adoption of an Anti-Smoking Law’ and ‘Regulations of Hangzhou City on the Restriction of Smoking’, held in Hangzhou City on 20 May 2009; the Anti-Domestic Violence Network of China Law Society has promoted and participated in the revision of the ‘Law on the Protection of the Rights and Interests of Women’; and the Beijing Juvenile Legal Aid and Research Centre has promoted and participated in the revision of ‘Regulations of Beijing Municipality on the Protection of Minors’. Challenges Faced by Public Interest Legal Organizations Generally speaking, public interest legal organizations are developing rapidly in China, with increasing diversity, stronger voices and greater social impact. At the same time, the challenges faced by these organizations are also becoming more and more prominent. These challenges include both the tensions between the urgent need for such organizations and the limited institutional space for their development and the conflict between public interest ideas and the limitations of such organizations themselves.

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Difficulties in Obtaining Legitimate Status According to the criteria described in this chapter, the nature of public interest legal organizations is similar to that of NPOs in other countries or to the ‘non-governmental organizations’ as defined in normative documents of law in China (such as the Provisional Measures for Suppression of Illegal Civic Organizations), and their legal status is similar to that of mass organizations or privately-run, non-enterprise units. In practice, however, different types of public interest legal organizations have a different legal status: some of them are registered as mass organizations or private non-enterprise units; some registered as companies; and some are not registered at all. This dislocation or lack of legal status has become a big obstacle to the protection of the rights of these organizations themselves as well as to the performance of their function of upholding the public interest. Moreover, it also shows that the development of public interest legal organizations in China is facing a serious institutional bottleneck. First, if it can be said that the dislocation or lack of legal status is the result of the choice made by public interest legal organizations themselves, then we must say that such a choice is the result of the relevant institutional arrangement. Both the Regulations on the Registration and Administration of Social Organizations and the Interim Measures for the Registration of Private Non-Enterprise Work Units have failed to provide any institutional encouragement for the establishment of public interest legal organizations. On the contrary, by establishing a system of dual examination and approval by both registration organs and operational control organs, they have made it even more difficult for such organizations to be registered as either social organizations or privatelyrun, non-enterprise units. Because of the political sensitivity of the activities carried out by these organizations, such as providing legal aid, instituting public interest litigation, or engaging in public interest lobbying, many organizations that, according to the regulations, are competent to act as operational control units of public interest legal organizations are unwilling to do so, thereby preventing such organizations from acquiring proper legal status.32 Second, because of the dislocation or lack of legal status, public interest legal organizations are living in constant fear for their own survival. As a result, they tend to be overcautious in carrying out public interest activities and are unable to uphold the public interest in a free and self-confident manner. In legal theory, public interest legal organizations registered as commercial organizations, apart from being disqualified to enjoy the preferential treatment received by public interest organizations, such as tax reduction, are still public interest legal organizations. Even if the law does not encourage commercial organizations to engage in non-profit activities, it certainly should not prohibit them from doing so, especially at a time when everybody is talking about corporate social responsibility. In practice, however, many provisions in Chinese law on preferential tax policy for NPOs lack general applicability. In addition, as the Gong Meng case demonstrates, the law enforcement departments have also adopted a prohibitive approach towards non-profit activities by commercial organizations.33 The Regulations on the Registration and Administration of Social Organizations provides for three categories of social organizations that are exempted from 32  For a more detailed discussion on the obstacles posed by the dual administration system to the development of public interest legal organizations and other civil society organizations, see Xie Haiding, ‘The Legitimacy Dilemma Faced by NGOs in China’, in Chinese Journal of Law 2 (2004); ‘Petition for the Abolishment of the System of Dual Administration of Mass Organizations’, in the Website of Beijing Dongfang Public Interest and Legal Aid Law Firm at: www.dfpilaw.org/show_news.asp?id=1173&classid=5 &boardid=21 (last visited November 2009). 33 It is not clear from Article 8 of the Regulations on Legal Aid, which stipulates that the ‘State supports and encourages mass organizations, institutions, and other social organizations to utilise their own resources

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registration. In the first two categories are organizations that have strong political and governmental ties (social organizations that are represented at the Chinese People’s Political Consultative Conference and organizations determined by the Establishment and Organization Commission of the State Council and approved by the State Council to be exempted from registration) and the third category are those organizations that are established by government organs, State-owned enterprises, and State-sponsored institutions as their internal organs and carry out activities only within their parent organizations. These organizations have little relevance to public interest undertakings because their activities are limited to ‘within their parent organizations’. According to the Provisional Measures for Suppression of Illegal Civic Organizations, all unregistered organizations that engage in activities in the name of non-governmental organizations are illegal organizations. Therefore, public interest organizations without proper legal status are at constant risk of being banned by law enforcement organs. Third, the institutional risk related to this dislocation and lack of legal status has not only resulted in a fearful and overcautious mentality among public interest legal organizations, but has also seriously impeded their efforts to uphold the public interest. It is for this reason that organizations or individuals that have infringed upon the public interest are often not afraid of public interest legal organizations, and even accuse their right-protection actions as illegal activities. It is also for this reason that grassroots organizations devoted to the protection of the rights of migrant peasant workers are faced with extreme difficulties, as it is very hard for them to acquire legal status by finding competent organizations that are willing to be their operational control units. The problem of legal status is a fundamental problem for an organization and the root cause of this problem is the institutional arrangement of the legal system. Therefore, the legitimacy dilemma is currently the biggest challenge faced by public interest legal organizations. Difficulties in Obtaining Legitimacy for their Activities Article 8 of the Regulations on Legal Aid stipulates that: ‘The State supports and encourages mass organizations, institutions, and other social organizations to utilise their own resources to provide legal aid to citizens in financial difficulties.’ This Article clearly establishes the legitimacy of the provision of legal consultation and legal aid services by public interest legal organizations. Moreover, Article 90(2) of the Law on Legislation establishes the legitimacy of public interest petitions by public interest legal organizations by stipulating that: ‘Other government bodies or social organizations, enterprises, institutions and citizens not mentioned in the previous paragraph who are of the opinion that certain administrative regulations, local regulations, autonomous regulations or separate regulations contravene the Constitution or the laws, may make a written suggestion to the Standing Committee of the National People’s Congress for review. The working organ of the Standing Committee shall examine the matter and shall, when necessary, forward the matter to the special committees concerned for examination and comment.’ As for public interest investigation and research, dissemination of public interest knowledge, and participation in legislation, there are no legal provisions prohibiting such activities. The main obstacle posed by law to the activities of public interest legal organization is the restriction on public interest litigation. Article 108 of the Civil Procedure Law provides that ‘(1) The plaintiff must be an individual, a legal person or any other organization that has a direct interest in the case’. In addition, Article to provide legal aid to citizens in financial difficulties’, whether it is lawful for commercial organizations to provide public interest legal services.

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41 of the Administrative Litigation Law provides that ‘(1) the plaintiff must be a citizen, a legal person or any other organization that considers a specific administrative act to have infringed upon his or its lawful rights and interests’. A litigation system that adopts the ‘direct interest doctrine’ for the sake of saving judicial resources makes it difficult for public interest legal organizations to directly institute public interest cases in their own names as plaintiff. Moreover, according to the Administrative Litigation Law, only specific administrative acts can be subject to judicial review. In reality, however, abstract administrative acts pose the greatest threat to the public interest. Another aspect of the legitimacy dilemma faced by public interest legal organizations is political legitimacy. Since legal norms cannot be expected to cover every possible situation, the wording of legal provisions is often vague, and law enforcement and the administration of justice are not necessarily conducted in complete accordance with the law. In practice, ‘political correctness’ has often become the guiding doctrine in selective law enforcement and selective administration of justice. As a result, in the process of transformation of law on paper to the law in reality, the nature of the legitimacy issue has partially transformed from legitimacy in legal norms to political legitimacy. However, political correctness is not a concept with a fixed connotation and denotation and therefore cannot provide a rigid institutional restraint. As far as public interest legal organizations are concerned, this guiding doctrine can be applied differently by different public power organizations, in different time periods, or under different circumstances with regard to the same public interest activity in determining its political nature, restricting its scope and punishing the organizations that engage in such activity. Taking the protection of the rights of migrant peasant workers as an example, such activities can be interpreted as ‘politically correct’ and thus legitimate activities of safeguarding the lawful rights and interests of migrant peasant workers. But they can also be interpreted as illegal activities that disrupt social order and undermine social harmony. Especially in cases involving group or mass incidents or cases that have great social impact, in which even public interest litigation activities that are considered quite legitimate in normal circumstance can become ‘politically incorrect’. Moreover, the way ‘politically incorrect activities’ are dealt with, just like the way ‘unlawful activities’ are dealt with, can vary greatly in practice. If a specific activity of a public interest legal organization is considered to be ‘politically suspicious’ or ‘politically incorrect’, but does not violate any law, the law enforcement organs normally will not investigate the responsibility and punish the organization on account of such activity itself, but will actively look for evidence of violations of law by the organization in other matters. That is, they carry out selective law enforcement inspection. As soon as any trace evidence of a violation is found, severe punishment, including banning of the organization, is imposed. Therefore, to a public interest organization, the risk brought about by the political correctness doctrine is not merely that a specific activity of the organization might be ‘law-enforced’, but that all activities, even the very survival of the organization, might be threatened. Difficulties in Securing the Necessary Funds for Survival The survival and development of an organization is to a large extent dependent on its financial condition, and its source of funding may determine the direction of its development. Apart from some grassroots organizations (for example, those specialized in upholding the rights of migrant peasant workers), currently the main sources of funding for public interest legal organizations in China are: development assistance projects of foreign and international organizations; government legal aid subsidies, which have provided some support to a few organizations; and occasionally, donations from some private law firms and enterprises to public interest legal organizations with which they have good relationships. To most grassroots public interest legal organizations, the best

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way to finance themselves is to engage in both public interest and private legal services, at least in the beginning of their existence. The financial support of foreign and international organizations has ensured the survival of some public interest legal organizations in China. However, first, foreign development assistance projects have preferences with respect to the location and type of organization. It is easier for public interest legal organizations located in Beijing, Shanghai and other large cities, those established by law schools, and those that provide legal services to women to get the support from foreign and international organizations.34 Whereas those organizations located in rural areas, small and medium-sized cities, or grassroots communities in big cities are less likely to attract the attention of foreign and international organizations. Further, they also have difficulties in filling out long and complicated project application forms and in complying with strict rules on the implementation of projects. As a result, it is very hard for them to get financial support from international organizations. Second, the financial support of foreign and international organizations has a limited lifespan. It is not sustainable and restricted by the policies of the Chinese government on the administration of overseas organizations and on the use of overseas funds. Once a project is completed, the source of funding is cut off. Third, foreign or international organizations that provide funds through the implementation of projects will naturally impose many specific conditions and requirements on the uses of the funds and the method of implementation of the projects. Some of these conditions and requirements may be divorced from the political reality in China, or even be against the spirit of Chinese laws. At a time when the Chinese government is nervous about the ‘colour revolution’, such conditions and requirements can easily arouse suspicion about their motives. The growth of civil society is indispensable to the development of the rule of law and the progress of the society. This, however, is based on the precondition of the healthy development of civil society organizations. Excessive requirements will not only attract the ‘special attention’ of the government to all public interest legal organizations that receive overseas financial support, but also make some public interest legal organizations lose focus in their effort to comply with unreasonable requirements for the purpose of securing project funds. Article 8 of the 1999 Law on Donation for Public Welfare Undertakings stipulates that: ‘The State supports the development of public welfare undertakings, and gives support and preferential treatment to public welfare associations and not-for-profit public welfare institutions. The State encourages natural persons, legal persons and other organizations to make donations to public welfare undertakings. Natural persons, legal persons and other organizations making outstanding contributions to donation for public welfare undertakings are to be given commendation by the people’s governments or the relevant departments.’ Therefore, the government encourages public interest organizations to apply for direct financial support from the government provided through a system of government procurement of public service, and to seek indirect financial support by soliciting donations from natural persons, legal persons and other organizations. With regard to the direct financial support for legal aid services in the form of State subsidies, Article 24(2) and (3) of the Regulations on Legal Aid provide for legal aid case handling subsidies: When a case is concluded, lawyers appointed to handle legal aid cases or personnel of social organizations that make arrangements to handle legal aid cases shall submit duplicates or photocopies of the relevant legal documents, a report on the outcome of the case, and other materials to the legal aid office. After a legal aid office has received the case materials stipulated above, it shall pay a legal aid case handling subsidy to the lawyer or social organization that was 34  See Tong Lihua and Bai Yu, Harmonious Society and Public Interest Law, p. 81.

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appointed to handle the legal aid case. Standards for legal aid case handling subsidies shall be set by the judicial administrative department of the people’s governments of provinces, autonomous regions, and centrally administered municipalities, working jointly with finance departments at the same level, according to the level of economic development of that locality and with reference to the average cost for a legal aid office to handle each type of legal aid case and other factors. The subsidy may be adjusted as necessary.

In other words, only those appointed or accepted arrangements made by legal aid offices to handle legal aid cases can receive legal aid case handling subsidies. Most public interest legal organizations that accept legal aid cases on their own initiatives are not eligible for subsidies from the government.35 With regard to indirect financial support to legal aid in the form of donations from individuals and organizations, the most substantive measure to encourage such donations is of course preferential tax policies. The Enterprise Income Tax Law that came into effect on 1 January 2008 raises the proportion of expenses from public interest donation that may be deducted from the taxable income from 3 per cent of the total annual profit to 12 per cent, which gives enterprises more incentive to make public interest donations. In 2008, the Ministry of Finance, the State Administration of Taxation and the Ministry of Civil Affairs jointly issued a ‘Notice on the Policies and Relevant Management Issues concerning the Pre-tax Deduction of Public Welfare Relief Donations’, which also contains specific provisions on the conditions for the application for pre-tax deduction of donations to public interest organizations. However, the case-by-case method that has been adopted for the examination and approval of applications for the deduction has a high degree of uncertainty in its actual operation. In addition, preferential tax policies for public welfare donations are mostly provided for in low-level laws and regulations, which can easily lead to conflicts of laws and regulations or other obstacles in their implementation.36 Moreover, there is also a close relationship between the financial dilemma of public interest legal organizations on the one hand, and their poor fundraising ability and irregularities in the use of funds and in financial management on the other. These problems have not only given law enforcement organs excuses to punish, and even to ban, some public interest legal organizations they consider ‘politically incorrect’, but also to put the label of ‘mismanagement’ on all public interest organizations, making it even more difficult for them to raise funds in the future. Difficulties in Attracting Talents Necessary for Future Development It is without any doubt that the progress in the development of public interest legal organizations is inseparable from the efforts made by elites in different fields and at different levels. However, faced with the above-mentioned challenges and difficulties, public interest organizations must also answer the question of how to attract and retain talented personnel for their future development. Apart from the above four main challenges, public interest organizations also face many other problems relating to the understanding, recognition and support by the general public, such as: 35  For the issue of legal aid case handling subsidies, see Lihua and Yu, Harmonious Society and Public Interest Law, pp. 249–56. 36  For more detailed discussions on the issue of preferential tax policies for public interest organizations, see the following two articles by Song Zhongwei, ‘An Analysis of Preferential Tax Policies for Public Welfare Donations in China’, at: http://stj.sh.gov.cn/Info.aspx?ReportId=2a24b888-687a-46fe-8180-77eb6a7c851e (last visited November 2009); and ‘Preferential Tax Policies for Public Welfare Donations: Experiences of Foreign Countries’, at: www.chinanpo.gov.cn/web/showBulltetin.do?id=35788&dictionid=5301 (last visited November 2009).

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how to strike a balance between publicizing public interest causes and seeking personal fame and gain through the mass media, or between cooperating with the government and maintaining the independence of the organizations; how to coordinate the work of different public interest organizations, etc. Concluding Remarks The emergence of public interest legal organizations is ‘the result of legal reform in China, an important component of the burgeoning Chinese civil society, a symbol of the awakening of people’s civil rights consciousness and an embodiment of the rational spirit of law. Their current situation is just like that of the Chinese society as a whole, full of vitality and yet riddled with problems, fills people with both hope and frustration’.37 Optimism about the future development of public interest legal organizations in China is based on the following two conclusions. First, the emergence of public interest legal organizations is a result of the unbalanced distribution of legal services among different social groups and the rise in the need for public interest legal services. Therefore, as long as there is no major change in the current relationship between supply and demand of legal services and the imbalance in the legal service market continues to exist, the demand for public interest legal organizations will continue to grow. In recent years, the Chinese government has been attaching great importance to implementing ‘projects for people’s well-being’ and has made progress in the development of the State legal aid system. However, no government in the world is able to safeguard the public interest on its own, not to mention the apparent differences between the government and specific government officials, the seriousness of the problem of corruption in law enforcement and the administration of justice, and the doubt about whether such corruption can be eradicated. It is especially important to note that public interest is not a concept with fixed connotations and extension. The concept itself contains a rational spirit that public interest needs to be determined, then upheld and safeguarded in an atmosphere and process of public consultation. Without the participation of different social groups it cannot be called ‘public’, and without the ‘public’, public interest is a false concept. In this sense it can be said, that even without going into discussion on the concrete issues of infringement upon public interest in economic, political and cultural fields in contemporary China, the mere concept of public interest suggests that the existence and development of public interest legal organizations is, in itself, a public interest. Second, the institutional space for the survival and development of public interest legal organizations has not yet fully opened up in China. The existing legal system of administration of non-governmental organizations makes it difficult for public interest legal organizations to obtain proper status. The relevant provisions in civil and administrative procedure laws make it very difficult for public interest legal organizations to institute public interest litigation in their own names as plaintiffs, and the tax law also fails to provide institutional incentive for their development. Meanwhile, we have also noticed that public interest legal organizations have, in practice, found various ways to overcome these institutional obstacles, such as registering as companies and instituting public interest litigation in the name of their individual staff members or volunteers; in addition the relevant legal systems are in a process of continuous reform and improvement. In the field of NGO administration, the need for the partial abolition of the dual administration system 37  See Huang Jinrong, ‘A Fledgling Legal Movement’.

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has become a common understanding in the academic circle, as well as among many government officials, and the adoption of a new law in this field is expected in the near future. With respect to tax law incentives, more and more preferential policies towards civil society organizations are being adopted in the form of separate regulations. There is reason to believe that the institutional space for the development of public interest legal organizations is widening. It is without any doubt that public interest organizations, like all other things, have their dark side. They may say something that we do not like to hear, do something that we do not wish to happen, and among their members there are bound to be some people who place their own fame and personal gain above the public interest. However, the way to overcome the weaknesses of public interest organizations is not to restrict or even eliminate them, but to gradually open up the space for their development and, through institutional guidance and incentives, encourage them to overcome these weaknesses through equal and fair competition. Once such an understanding becomes mainstream, conditions will be ripe for the healthy development and prosperity of public interest legal organizations in China.

Chapter 7

A Review of the Development of Labour Organization in China in the 30 Years Since the Reform and Opening Up Zhou Shaoqing

Introduction In the 30 years since the ‘reform and opening up’ of China, labour organizations in China have undergone a distinct process that can be called ‘development’. With the gradual development of the market economy and the corresponding transformation of the social structure, there has been a tendency among traditional trade union organizations (also called ‘in-system trade unions’) to resume their original role as the voice of workers’ interests. Meanwhile, some newly emerging labour organizations, such as peasant workers’ organizations and labour rights protection organizations that mainly serve peasant workers, are also very active in the frontline of the conflict and interplay between labour and capital, and have become a very important force as labour organizations. The interweaving of these two forces has created the core of the development of labour organizations in China. This chapter will, on the basis of a brief introduction to the development of the traditional trade union organizations in China, make summarized reviews of the development of three different forms of labour organizations – namely peasant workers’ self-help organizations, peasant workers’  In a general sense, or under the framework of the International Labour Organization, labour organizations refer to trade unions or similar labourers’ organizations. In contemporary China, however, it seems that the term ‘labour organization’ is not a very clear-cut concept. It has different meanings in different contexts. In a sociological sense, it generally refers to organizations of peasant workers, migrant workers, the non-native population, etc.; in the context of traditional ideology, it refers to an organization of those who make a living by selling their labour. In such a context, the word ‘labour’ often has the meaning of ‘the oppressed’. In the context of trade union policy, it tends to refer to organizations of industrial workers that include peasant workers. Among the concepts that are close in meaning to labour organization, ‘peasant workers’ organization’ and ‘migrant workers’ organization’ are the most concise and to the point. Peasant workers’ organization refers to organizations established spontaneously by peasant workers themselves (hereafter referred to as ‘peasant workers’ self-organization’) or organizations established to serve peasant workers (hereafter referred to as ‘peasant workers’ “socializing” organizations’); ‘migrant workers’ organizations’ are wider in scope. Apart from the two kinds of peasant workers’ organizations mentioned above, it also includes organizations established by labourers from some small towns and cities. Also frequently used is the term ‘organizations of the non-native population’. Generally, ‘trade union’ is the concept most equivalent to ‘labour organization’. In this chapter, it refers to trade unions in enterprises, including those in State-owned enterprises, foreign enterprises and private enterprises. The term ‘labour organization’ in this chapter may denote any of the above organizations according to the specific context.

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‘socializing’ organizations and in-system trade unions – in the three different periods since the ‘reform and opening up’: the period of ‘controlled or restricted movement’ (around 1980–99); the period of ‘fair movement’ (around 2000–4); and the period of being safeguarded and organized (around 2005–present), and point out their respective achievements and problems during each of these periods. On the basis of these reviews, I will outline the general trend of the development of and problems faced by labour organizations in China. A Brief Introduction to the Historical Development of Traditional Trade Unions in China The emergence and development of the working class is the basis for the emergence of trade unions. The earliest industrial workers in China emerged in foreign enterprises in the middle of the nineteenth century. At that time, in order to dump commodities in and plunder raw materials from China, the imperialist powers established a number of enterprises engaged in ship reparation, processing of raw materials and other such industries, out of which came the first industrial workers. Starting from the 1860s, advocates of the ‘Westernization Movement’ in the Qing government established a number of military and civilian industry enterprises in the name of ‘self-support’ and ‘seeking prosperity’, from which the second generation of industrial workers emerged. In the 1870s, stimulated by foreign and government-run enterprises, private Chinese enterprises began to emerge and the third generation of industrial workers were born. The total number of industrial workers was around 100,000 on the eve of the outbreak of the Sino-Japanese War of 1894–5, rapidly increasing to 600,000 on the eve of the outbreak of the First World War, and to over two million – in addition to over 10 million handicraft producers and shop assistants in cities – in 1919. A preliminary working class had therefore emerged in China. It should be noted that, although it shared similarities with those in Western industrial countries, the background of the trade union movement in China had its own unique characteristics which, to a large extent, determined the direction of development as well as the spirit and quality of the trade union movement in China. Chinese industrial workers, like their historical counterparts in Western industrialized countries, have undergone stages of long working hours, low wages, poor working conditions, frequent industrial injuries and strict restrictions on their freedom by the law. More importantly, Chinese industrial workers (or their organizations) emerged and developed in a period of violent social changes, when China was a semi-feudal and semi-colonial society. As a result, the trade union movement in China had not only clear economic objectives, such as better work conditions and higher wages, but also strong political objectives, such as the fight against invasion and plunder by foreign powers and exploitation and oppression by their own government. The Guangzhou Packers’ Union, established in 1851, was the earliest modern trade union organization in China. This organization took the fight against British and French invasion as one of the important objectives of strikes (the organization was suppressed and disbanded soon after its establishment). Since then, the struggle of Chinese workers against colonialism by foreign countries and the feudal rule and exploitation by the Chinese government had never ceased: the large-scale strike of workers in Hong Kong and Macao in 1858; the protest against the abduction and trafficking of Chinese labourers in Shanghai in 1859; the struggle by salt workers in Zigong, Sichuan Province, in 1860; the uprising of miners in Chaoyang City of northeast China in 1861; the struggle against levies and taxes by wheelbarrow workers in Shanghai in 1877; the strike of   See Shi Tanjin, Labour Law (Beijing: Economic Science Press, 1990), pp. 25–6; Xiao Xiaoqin and Li Liangzhi, Chinese History of Revolution (Beijing: Red Flag Publishing House, 1983), p. 29.

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coal miners in Kaiping in 1882; the strike in Hanyang Iron Factory in 1889; and the strike of the workers of the Jiangnan Bureau of Manufacture in 1890, are only a few examples. After the Revolution of 1911, the trade union movement began to integrate with political movements: in 1912, the Labour Party supported the workers of the Shanghai Bureau of Manufacture in establishing the Shanghai Union of Manufacture Workers and the female reeling workers in Shanghai to establish the ‘Reeling Workers’ Association of the Labour Party’; the China Socialist Party organized workers’ leagues among sedan chair bearers and construction workers in Zhenjiang, Jiangyin and other cities in Jiangsu Province; an anarchist party established the first barbers’ trade union and teashop assistants’ trade union; and the United League of China, founded by Dr Sun Yatsen, organized among mechanics the ‘China Association of Machinery Research’ in Hong Kong, the ‘Guangdong Association of Machinery Research’ in Guangzhou, and ‘Friendship Associations’ among seamen of Guangdong origin in Yokohama, Japan. Although most of these organizations consisted of representatives of both labour and capital and had the nature of Hangbang, they ‘were increasingly embodying the spirit and methods of trade unions’. The trade union movement in China further developed after the First World War. In December 1917, some workers in the printing house of the Commercial Press, ‘after witnessing the miserable life of fellow workers under the oppression of the management, established contact with dozens of comrades with a view to seeking a way to liberate these workers from the inhuman conditions’, and established the ‘Jicheng Society’; workers in Tianjin established the ‘Trade Union Office’ during the general strike launched to defend Laokaixi area. After the May 4th Movement of 1919, the trade union movement was as unstoppable as a ‘prairie fire in spring’. Between April 1919 and 1921, 55 so-called ‘signboard’ trade unions, led by the bourgeoisie, emerged in Shanghai alone. Although these trade unions had limitations, they broke the long-existing prohibition against association and assembly by workers, and nurtured modern trade unions in a genuine sense. Around the May 4th Movement of 1919, the ‘China Association of Machinery Research’ in Hong Kong and ‘Guangdong Association of Machinery Research’ in Guangzhou, after restructuring and evolving, became the ‘Chinese Engineers’ Institute of Hong Kong’ and ‘Guangdong Federation of Engineers’ Trade Unions’, respectively, which were employees’ trade unions consisting mainly of workers. In March 1921, the first industrial trade union in Chinese history – the Industrial Union of Chinese Seamen – was established in Hong Kong. During this period, there had been a series of strikes that were closely related to the development of the trade union movement. According to incomplete statistics, there had been over 70 strikes between 1895 and 1913, 17 in 1916, 21 in 1917, 30 in 1918, 46 in 1920 and 49 in 1921. Generally speaking, these strikes were isolated, incidental and lacking in long-term political objectives.   See Chang Kai, Dictionary of Labour Movement in China (Beijing: Labour and Personnel Publishing House, 1990), pp. 70–86; Tanjin, Labour Law, p. 252.   Hangbang was a kind of organization established by handicraft workers and hard labourers in cities in feudal China. With the development of capitalism in China in modern history, hangbangs were also established among industrial workers.   ‘A Narrative History of the Labour Movement in China’, Part Three, available on the website of the Federation of Trade Unions of Shangxi Province: www.sxgh.org.cn/particular.aspx?id=5421&parentID=93 (last visited June 2009).   ‘The Emergence and Development of the Working Class and the Conditions of Workers’ Organization at the Early Stage of Development’, China Workers’ Research Website, available at: http://zggr.cn/?actionviewnews-itemid-676 (last visited June 2009).   Shi Tanjin, ‘Trade Unions in China: History, Current Condition of and Relevant Issues’, Global Law Review 2 (2002), p. 7.

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In July 1921, the Communist Party of China (CPC), in its first national congress, adopted the Resolution on the Current Practical Work, which took organizing the working class and leading the workers’ movement as its basic task. In August of the same year, the CPC established in Shanghai the Secretariat of Labour Organization in China, which openly exercised leadership over the trade union movement. In May 1922, the CPC held the first labour congress in Guangzhou, which put forward in a declaration the objectives and slogans of ‘fighting for the eight-hour working day’, ‘launching sympathy strikes’, ‘down with warlords’ and ‘down with imperialism’. This congress marked the solidarity and unity of the working class in China and further promoted the upsurge of nationwide strikes. The major strikes that occurred during this period included: the strike at the British-American Cigarette Factory in 1921; the strike by seamen in Hong Kong in 1922; the strike by seamen and reeling factory workers in Shanghai in 1922; the strike by railroad workers and miners in Anyuan in 1922; and strikes by workers of Guangdong-Hankou Railroad, BeijingFengtian Railroad, Kairuan Coal Mine, gold and silver shops in Shanghai, and Japanese cotton mills. The strike by workers of the Beijing-Hankou Railroad held in February 1923 (also called the General Strike of February the 7th), was brutally suppressed. Among the striking workers, 52 were killed, over 300 injured, more than 60 arrested, and over 1,000 were fired or fled. The incident shocked the world. After the establishment of the CPC, political struggle by strike reached its peak. There were a total of 187 strikes between January 1922 and February 1923. In May 1925, the CPC held the second National Labour Congress in Guangzhou and formally established the All-China Federation of Trade Unions (ACFTU). From then on, the trade union movement was further combined with political struggle and became an important political force in the fight against the rule of the nationalist government and invasion by Japanese imperialists. Meanwhile, the CPC also launched a large-scale trade union movement in its own bases. The governments at various levels in these bases adopted a large number of laws, policies, rules and regulations favourable to the trade union movement. They included economic provisions protecting the rights and interests of workers, as well as political provisions enabling the working class to become the masters of their own country. During this period, the CPC had established many trade union organizations, such as the Federations of Trade Unions in Western Fujian Province, the Federation of Trade Unions in Hubei-Henan-Anhui Border Areas, the Employees’ Union of Jiangxi Province, the Federation of Trade Unions in Sichuan-Shaanxi Soviet Areas, the Federation of Trade Unions in Shaanxi-Gansu-Ningxia Border Areas, the Federation of Trade Unions in ShanxiChahaer-Hebei Border Areas, the Federation of Trade Unions in Western Shanxi Province, the Preparatory Committee of the Employees’ Unions in Liberated Areas in China, and the Federation of Trade Unions in Shanxi-Hebei-Shangdong-Henan Border Areas. Apart from trade union organizations under the leadership of the CPC, many other trade unions were also established in various places and industries in accordance with the trade union regulations and laws promulgated by the nationalist governments in Guangzhou and Nanking. Some of them were industrial trade unions and some of them employees’ trade unions. Most of them were established at the spontaneous demand of workers, but some of them had complicated political backgrounds. In 1947, in order to counter the influence of the trade union force led by the CPC, the Nationalist government in Nanking established the Federation of Trade Unions of the Republic of China. In August 1948, the CPC held the sixth National Labour Congress in Harbin, and restored the All-China Federation of Trade Unions, which had stopped operating after the outbreak of   Shi Tanjin, ‘Trade Unions in China’; Xiaoqin and Liangzhi, Chinese History of Revolution, p. 57.   See Shi Tanjin, ‘Trade Unions in China’.

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the war against Japanese invasion. The Congress adopted the ‘Resolution on the Current Task of Employees’ Movements in China’, which defined the guiding principles and tasks of the trade union movement after the establishment of the People’s Republic of China. The Congress was a milestone in the development of the trade union movement in China. The above brief introduction to the trade union movement in China since the Opium Wars shows that the most prominent characteristic of the traditional trade union movement was its non-economic or, rather, strong political nature. In the process of striving for independence and ‘liberation’, the trade union movement did not take the betterment of the workers’ economic conditions as its main objective. Rather, it had a broader and loftier objective – it tied its own fate firmly with those of the people and the country and sought to realize its own interests through the realization of national independence and the liberation of the people. As a result, the trade union movement in China was different from that in Western industrialized countries in that the latter took the betterment of economic conditions as its main objective, whereas the former directly plunged itself into the great whirlpool of political struggle at the very beginning. Due to the violent, antagonist nature of the conflicts between different classes and different nations in modern Chinese history, the trade unions had, almost from their very beginning, lost their neutral character as organizations independent of the struggle between political parties. They were forced to take sides between opposing political forces10 and became important instruments of political struggle. After the establishment of the People’s Republic of China, the ACFTU, as the leading organ of trade unions in China and an important ‘class basis’ relied upon for a long time by the ruling party, the CPC, naturally became a part of the State machinery and an important member of the CPC ruling system. In June 1950, the Central People’s Government promulgated the Trade Union Law of the People’s Republic of China.11 The timely promulgation of this law12 was ample proof of the important political status of the working class and trade union organizations in the newly established State. The trade union movement developed rapidly in the early days of the PRC. However, after 1952 and especially after 1958, the trade union work, like the work in all other fields, suffered great losses. The ACFTU leaders were vilified and accused of ‘opposing the leadership of the Party, competing with the government for power, and engaging in serious factional activities’. Trade unions were requested to ‘unconditionally become a working department of the Party’. At the height of the People’s Commune Movement, the ACFTU was even forced to put forward the slogan of ‘striving for the eventual withering away of trade unions’. After the outbreak of the Cultural Revolution, the ACFTU’s fund was frozen and its operation all but ceased. It was not until after the 1978 Third Plenary Session of the 11th Central Committee of the CPC that these problems were systematically rectified.

10  Take the China Labour Association, established in Shanghai in 1935, for example. The association was originally an organization of labour culture. However, because of the violently antagonistic nature of the political reality at that time, it was forced to choose between two political forces – the Nationalist Party and the Communist Party. It became a group member of the ACFTU in 1948 and disbanded in November 1949. 11  The 1950 Trade Union Law provided that the ACFTU was the highest leading organ of trade unions in China; all wage earners had the right to organize trade unions; trade unions in enterprises had the right to participate in the management of production, negotiation between labour and capital, and the conclusion of collective contracts. 12  The Trade Union Law, together with the Marriage Law and the Land Reform Law, were called ‘the three major laws adopted in the early days of the People’s Republic’. The fact that they were promulgated at a time when there were thousands of tasks waiting to be undertaken showed the importance attached by central government to trade union work.

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Labour Organizations During the Period of ‘Reform and Opening Up’ The problem of labour organizations during the period of ‘reform and opening up’ was to a large extent the problem of peasant workers’ organizations. Since the 1980s, more and more peasants have been leaving their land and joining the army of industrial workers in cities. These peasant workers are vulnerable groups in cities and the infringement of their rights and interests is a very common phenomenon. Due to the fact that this group is very large (their number had reached 220 million in 2008), this phenomenon has become a serious problem in achieving social justice. In the process of dealing with this problem, the issue of organizing peasant workers has attracted widespread attention. In practice, three forces committed to the organization of peasant workers have emerged: the first one is peasant workers themselves who have spontaneously organized themselves to overcome the disadvantage of a lack of organizational resources; the second one consists of the relevant scholars, research institutions and networks of international NGOs, and volunteers, who observe, carry out research on, provide funds for, and help peasant-worker organizations, even establish organizations themselves to provide services to, defend the rights of, or carry out research on peasant workers; the third force is the relevant government departments (including trade unions) that, on the one hand, actively adopt policies safeguarding the rights and interests of peasant workers so as to reduce their demand for organizational resources and their self-organizing activities and, on the other hand, carry out moderate reforms to the traditional trade union system so as to promote the establishment of trade unions in enterprises, increase the peasant workers’ membership in these organizations, actively widen the rights-protection channels, and ultimately realize the objective of organizing peasant workers and truly uphold their rights. The first force can be called peasant workers’ self-organizing force; the second one, the peasant workers’ ‘socializing’ organizational forces; and the third one ‘the force by which peasant workers are organized’. The organizing process for white-collar workers is, theoretically speaking, covered by organizational modes driven by the first and third forces described above. However, the lack of independent organizational form or noticeable activities and characteristics, means that such organizations carry little weight in ‘labour organizations’ as a whole. Based on the above analysis, this chapter will discuss activities at three levels. At the first level is the self-organizing process of peasant workers, including various types of peasant workers’ selforganization. At the second level are the activities of peasant workers’ ‘socializing’ organizations, including activities of scholars and organizations or agencies engaged in protection of the rights of, provision of services to, and research on, peasant workers. The majority of these organizations are funded, supported or even directly established by relevant research institutions or international organizations. At the third level is the process in which peasant workers are being organized, including innovations in the enterprise trade union system, the objective of which is mainly to solve the organizing problems of peasant workers and other groups of workers within the framework of the traditional trade union system, and positive policies on peasant workers (labour) adopted by the government and its relevant departments (including trade unions) aimed at reducing these groups’ need for self-organization. Along this line of thought, the development of various labour organizations will be discussed, which intersect but do not coincide with each other, including peasant workers’ organizations, migrant workers’ organizations, organizations of the non-native population, and trade unions in State-owned, foreign and private enterprises. The activities of institutions and organizations engaged in the protection of the rights of, provision of services to, and conduct of research on,

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peasant workers, and the adoption of policies and laws relating to the above-mentioned labour organizations and institutions (policy and legal environment) will also be discussed. It needs to be pointed out that, because of the high rigidity of their institutional environment, labour organizations in China since ‘the reform and opening up’ have not followed the development pattern of other non-governmental organizations – namely developing from nothing to something, from non-standardized organizations to standardized organizations, and from primitive forms of organization to more advanced forms of organization – but have shown the following general trends of development: on the one hand, there has been great randomness and uncertainty in the development of new labour organizations; on the other hand, in-system trade unions, guided by new trade union policies, have been methodically absorbing, ‘naturalizing’ and enlisting new labour groups into their organizations. It can be said that the main picture of the development of labour organizations in China over the past 30 years was created through the interweaving of these two trends of development. In order to more clearly depict this main picture, I will take the main body of newly emerged labour groups – peasant workers – as an example to explain the development of labour organizations in three different periods, namely the period of controlled and limited movement, the period of ‘fair movement’13 and the period of being safeguarded and organized. Development of Labour Organizations during the Period of Controlled and Restricted Movement (around 1980–99) After 1980, the State control over the rural population by the traditional household register system began to loosen up. As a result, the rural labour force, which had been under strict control for a long period of time, started the controlled and restricted movement towards cities. Starting from 1984, the surplus labour force in rural areas began to flow into cities. Between the late 1980s and mid-1990s, with an increase of tax burdens on the peasants and the drop in the price of agricultural products, the rural economy went into a recession and a large number of peasant workers flooded into cities in coastal areas. The surplus labour force and defective labour protection laws led to a vicious competition of ‘racing to the bottom’ in the treatment of peasant workers. The worsening treatment of peasant workers did not lead to their rapid self-organization. During this period, only a very few peasant workers’ self-help organizations of any influence had emerged. Among them were the ‘Workers’ Document Service Office’ in Guangzhou (1998) and ‘Little Bird Mutual Help Hotline for Migrant Workers’ in Shenzhen (1999). More numerous were peasant workers’ ‘socializing’ organizations. They were established either with the support of certain social institutions – such as the ‘Research Center on Education and Training of the Transient Population’ in Beijing – or in cooperation with in-system trade unions – such as the ‘Nanshan Service Center for Female Employees’ in Shenzhen (1996) – or directly by certain social institutions or agencies – such as the ‘Migrant Women’s Club’ in Beijing (1999). These organizations played the role of indirectly defending the rights and interests of peasant workers. One of the important reasons for this situation was that, during this period of time, peasant workers did not have the sufficient materials, political and moral resources needed for the establishment of self-help organizations: materially, they lacked the financial support from international NGOs and foreign institutions; 13  Bai Nansheng and Song Hongyuan summarized the process of the government’s choice of policies on the movement of peasant workers into the following four periods: the period of ‘permitting movement’; the period of ‘restricting blind movement’; the period of ‘regulating movement’; and the period of ‘fair movement’. See Bai Nansheng and Song Hongyuan, Return to Home Village or Go to the City? – Research on the Backflow of Labour Force into Rural China (Beijing: China Financial and Economic Publishing House, 2002). Here I adopt only the idea of ‘fair movement’ from this book.

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politically, they lacked the support of legitimacy; and morally, they lacked the widespread attention and sympathy from the general public. Another characteristic of the development of labour organizations during this period was that the reform and construction of in-system enterprise trade unions had gradually been put on the agenda. During this period, one of the emphases of the work relating to in-system trade unions was to speed up the establishment of enterprise trade unions – mainly by means of direct administrative intervention – in Quanzhou and other coastal areas, where the first foreign investments had landed. For instance, the Quanzhou Commission on Foreign Trade and Economic Cooperation adopted regulations providing that foreign enterprises that had not established trade unions would not obtain the Commission’s approval for their production plan, or would not be allowed to export their means of production; the Bureau of Industrial and Commercial Administration of Quanzhou City also provided that it would not renew business licences for enterprises that had not established trade unions. It needs to be pointed out that this was also an important historical period of reform of Stateowned enterprises and resettlement of the surplus labour force in State-owned enterprises. The emphasis on the work of trade unions in State-owned enterprises during this period was to support the reform initiated by the government and at the same time to uphold, to a certain extent, the lawful interests of employees during the reform. Development of Labour Organizations during the Period of ‘Fair Movement’ (around 2000–4) In the period 2000–4, when the central government adopted more and more positive policies towards peasant workers, the policies and regulations restricting the employment of peasant workers adopted by various local governments were gradually abolished or modified. The movement of peasant workers’ groups entered into a ‘period of fairness’. The development of labour organizations during this period had the following characteristics. First, the relaxation of restrictions in the relevant laws and policies and extensive attention and sympathy from the general public brought both political and moral benefits to the groups of peasant workers. This double benefit, plus financial support from international NGOs and foreign institutions, led to the unprecedented development of peasant workers’ self-help organizations. More than 20 such organizations were established during this period in the Pearl River Delta area alone. Second, many important ‘socializing organizations’ were established during this period, including the Institute of Contemporary Observation (ICO) in Shenzhen (2001),14 the Cultural Communication Center for Facilitators15 in Beijing (2003) and the China Labour Studies Center at Beijing Normal University (2004).16 These organizations improved the peasant workers’ quality of life by providing them with legal consultation, occupational training, advocacy of rights, cultural entertainment and education. Moreover, organizations like the ICO had also attracted the attention of scholars, lawyers, the media, volunteers and various foundations to the issue of peasant workers’ organizations and, therefore, were called ‘resource starters’. In terms of geographical distribution, the self-help organizations and ‘socializing’ organizations of peasant workers during this period were mainly located in Shenzhen, Guangzhou, Dongguan and other coastal cities where there was a concentration of factories and where the non-native population 14  See: www.ico-china.org/guwm1/china/ksy.asp (last visited June 2009). 15  See: www.facilitator.ngo.cn/ (last visited June 2009). 16  See: www.bnu.edu.cn/laogong/index.htm (last visited June 2009).

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was far greater than the native population. In terms of their activities, these organizations were mainly engaged in legal consultation, representation of parties in court, education and dissemination of knowledge of occupational safety, and cultural entertainment; in terms of resources, most of the organizations during this period were supported by overseas funds and programmes; in terms of the target groups of their services, apart from a very few that served only female migrant peasant workers or peasant workers coming from specific areas, most of these organizations made no distinction among the peasant workers. Due to the similarities of the problems they faced (e.g. demanding the payment of wages in arrears, protection of rights in cases of industrial injury, etc.) and the working methods of their international financial supporters, there was a high degree of uniformity among these organizations in many respects. In terms of the legitimacy of their status, due to the rigidity of the policy of the unitary trade union system, peasant workers’ self-help organizations and ‘socializing’ organizations never acquired legitimate status as labour organizations, either at the legal level or at the policy level. In practice, some of them were registered as individual industrial and commercial entities, soleinvestor enterprises or companies, and some were not registered at all. Interestingly, those registered as an individual industrial and commercial entity, sole-investor enterprise or company claimed to be a ‘lawfully registered’ enterprise on the one hand, and ‘non-profit organizations’ or ‘public interest organizations’ on the other. The relevant departments of local governments normally adopted the attitude of non-intervention or tacit approval towards the labour organizations that were registered as for-profit organizations, but operated as non-profit organizations. Of course, under certain circumstances, they might take such measures as ‘incorporation’ or ‘disbandment through persuasion’ against these organizations. In terms of status, it is worth noting that there also emerged during this period some other forms of ‘labour organizations’ engaged in the protection of the rights of peasant workers. Some took the form of a ‘chamber of commerce’, such as the ‘Quanzhou Branch of the Chamber of Commerce of Ninghua County’, or ‘resident office’, such as the ‘Resident Office of Chongqing Municipal Government in Guangdong’. The emergence of these organizations further demonstrated the complexity of the forms of labour organization in China. Third, with regard to in-system trade unions, after the adoption of various reform policies by the relevant government departments, especially by the ACFTU, the door of trade unions had been opened for peasant workers. In August 2003, the ACFTU announced that efforts should be made to organize as many peasant workers as possible to join trade unions, and treat as employees those peasants who left their home villages to do temporary work in urban areas. In only one month after the announcement, more than 34 million peasant workers had joined hundreds of trade unions in cities and towns where they were working. Later, the ACFTU formally announced in its 14th National Congress that: ‘Peasant workers have already become an important new component of the working class in China’, and the issue of trade union membership of peasant workers was, for the first time, mentioned in the report of the congress. In February 2004, the Central Committee of the CPC and the State Council jointly issued ‘Document No.1 – Opinions of the Central Committee of the CPC and the State Council on Several Policies Aimed at Increasing Peasants’ Income’. The Document pointed out that ‘peasants working in cities have become an important component of industrial workers’, thereby formally putting peasant workers in the rank of industrial workers. In December 2004, the Executive Committee of the 14th Congress of the ACFTU adopted the guiding principle of ‘organising peasant workers and truly upholding their rights’. The above measures laid an important policy foundation for trade unions at various levels to further organize and accept peasant workers as members.

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Development of Labour Organizations during the Period of Being Safeguarded and Organized (around 2005–present) After 2005, the government further strengthened the work of safeguarding the rights and interests of peasant workers. On the basis of the 2003 Circular on ‘Improving the Work of Administrating and Servicing Peasants Seeking Employment in Cities’, which instructed the relevant government departments ‘to give equal treatment to peasant workers and urban residents’, the Ministry of Labour and Social Security issued in 2005 the Circular on ‘Abolishing the Interim Provisions on the Administration of the Inter-provincial Movement of the Rural Labour Force’ and its ‘Supporting Documents’, thereby clearing away more legislation and policies that restricted the rights and interests of peasant workers. At the same time, the Ministry introduced the Peasant Workers’ Guide to Protection of Rights, compiled by the Department of Laws and Regulations of the Ministry. In 2006, the State Council issued Several Opinions on the Solution of Problems Relating to Peasant Workers, which instructed the relevant government departments to strengthen and improve their leadership over the work relating to peasant workers and truly attach great importance to the solution of the problems of peasant workers. The Opinions clearly pointed out to the people’s governments at various levels that resolving in a satisfactory way the problems relating to the interests of peasant workers was one of their important duties and instructed them to place an emphasis in their work on the 10 most pressing issues faced by peasant workers, including arrears in the payment of wages, occupational safety and sanitation in workplaces, occupational and technical training, insurance against industrial injuries and major diseases, old-age insurance and equal rights of peasant workers’ children to compulsory education. In July of the same year, the Presidium of the 14th Executive Committee of the ACFTU adopted at its Ninth (Enlarged) Plenary Session the ‘Regulations on the Work of Trade Unions in Enterprises (For Trial Implementation)’. The Regulations provided for improved legal safeguards for the work of enterprise trade unions, of which most peasant workers were members. In March 2008, Sun Chunlan, the Vice Chairman of the ACFTU, demanded that peasant workers be included in the group of workers entitled to the help and support of trade unions. In August of the same year, the ACFTU promulgated the ‘Measures for the Provisions of Legal Aid by Trade Unions’, according to which a legal aid system must be established by all trade unions at or above the county level. Many provinces, such as Henan Province, have also adopted regulations on the protection of the rights and interests of peasants working in cities. Since 2005, with the implementation of the above safeguarding measures, the mechanism for admitting peasant workers into in-system trade unions have come into full operation. The work of the ACFTU and trade unions at all levels in implementing polices on peasant workers and in admitting peasant workers entered into an unprecedented, active and dynamic stage. There was an upsurge throughout the country in innovations in the systems and mechanisms relating to the trade union membership of peasant workers, and this marked the beginning of the period in which peasant workers were organized by in-system trade unions. In April 2005, the first trade union of peasant workers in the odd-job market – the Luyuan Trade Union of Shenyang City – was born; in September 2005, the first construction site trade union in Shanghai was elected at the construction site of Xuhui Zhenyuan; in February 2006, the Federation of Trade Unions of Peasant Works was established in Zhijiang City, Hubei Province, which adopted a system of dual membership and mobile administration for peasant workers; in March 2006, the federations of trade unions of Changzhou City and Fuyan City jointly established the first inter-city federation of trade unions for the protection of the rights of peasant workers; in April 2006 the United Trade Unions Committee of the Human Resource Market of Jingjiang District, Chendu City, Sichuan Province

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was established; and in August 2006, the first township federation of trade unions in the northern Fujian Province – the Federation of Trade Unions of Nakou Town – formally went into operation after being approved by the Federation of Trade Unions of Shaowu City (Fujian Province). The President of the Federation was Zheng Yonghong, who was concurrently the Party Secretary of the Township – the first township Party secretary to hold the concurrent position of the president of the federation of trade unions in China – and in August 2007, the first federation of trade unions of temporarily employed or re-employed workers of Tianjin Municipality was established in the Dongxin Neighbourhood of Hedong District. With regard to the method of admission, the Federation of Trade Unions of Lin’an City in Zhejiang Province created the method of directly admitting individual employees to trade unions; the trade unions in Langfang City of Hebei Province adopted the method of ‘en mass admission’; trade unions in Yangzhou City of Jiangsu Province opened a ‘green channel’ for peasant workers; and Chongqing Municipality allowed peasant workers to orally apply for trade union membership. Among the various innovations, the most remarkable one was the ‘Three Lower Levels’ model of establishing trade unions (namely establishing a network of trade unions at the levels of township (street), village (neighbourhood committee) and private enterprises). In January 2006, the ‘new model of defending the rights of migrant workers’ created by the Quanzhou Government won the third highest award for innovation (for the years 2005–6) by local government.17 Meanwhile, the relevant departments (including trade unions) of local governments have adopted regulations to speed up the establishment of in-system trade unions. For example, in May 2005, the General Office of the Party Committee of Shaanxi Province and the General Office of the People’s Government of Shaanxi Province jointly issued the ‘Opinions on Relying on Employees to Promote the Work of Enterprise Restructure’, which guaranteed the establishment of trade unions through the issuance of an official government document. In June 2005, the Department of Labour and Social Security, the Bureau of Industrial and Commercial Administration, the Federation of Trade Unions and another four departments of the Government of Zhejiang Province, jointly promulgated the ‘Measures for Organising Peasant Workers to Join Trade Unions’, which systematically provided for the measures to be taken to safeguard the peasant workers’ right to join a trade union. In August 2005, the Federation of Trade Unions and the Department of Environmental Protection of Taiyuan City promulgated regulations, which provided that all private hospitals in the provincial capital with more than 25 employees must establish trade unions in accordance with law; and in 2007, the Federation of Trade Unions of Lingyuan City in Liaoning Province provided that all employers in the city with more than eight employees must establish a trade union. The above safeguards and measures aimed at the establishment of enterprise trade unions and admitting large numbers of peasant workers into trade unions has, on the one hand, changed the long-existing unfavourable situation in which peasant workers had no organizational resource to rely on, but on the other hand, reduced to a certain extent the necessity and the legitimacy of labour organizations outside the system – namely peasant workers’ self-help organizations and their ‘socializing’ organizations. During this period, although many peasant workers’ selfhelp organizations and socializing organizations remain relatively active and some influential new organizations of peasant workers have also emerged, compared with the second period of ‘fair movement’, the driving force behind the development of these organizations has markedly weakened. This shows that there is a relationship of competition between the reform of in-system 17  ‘Chronicles of Fujian Province: January 2006’, available on the website of the People’s Government of Fujian Province: www.fujian.gov.cn/bmdd/dsj/200801/t20080124_55076.htm (last visited June 2009).

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trade unions (including the adoption of relevant State policies, such as policies on safeguarding the rights of peasant workers) and the development of labour organizations outside the system: the more thorough the reform on in-system trade unions and the more peasant workers they can admit and safeguard, the less the necessity, even the legitimacy, of the establishment of labour organizations outside the system. Another noteworthy phenomenon in this period is that peasant workers from some localities, such as those from Mingshui County of Heilongjiang Province, have established ‘peasant workers’ associations’ in cities where they are working under the leadership of Party organizations from their home province. These associations are playing an important role in sharing employment information and defending the lawful rights and interests of peasant workers. ‘Peasant workers’ associations’ established by Party organizations are still rare in China. Achievements and Problems of Labour Organizations Achievements and Problems of Peasant Workers’ Self-Organizations Peasant workers’ self-help organizations have developed at the forefront of the interplay between labour and capital. They are the products of the peasant workers’ struggle against unlawful acts of employers, such as arrears in the payment of wages, refusal to pay compensation for industrial injuries, and poor working conditions,18 as well as a sign of the gradual awakening of peasant workers’ rights consciousness. The number of such organizations is small – there are altogether only a few dozen of them that are relatively influential in the whole country.19 However, under the conditions of an absence of trade unions and lack of supervision by the relevant government departments, these organizations – also called self-help organizations – have made important contributions to providing help to peasant workers, mitigating the conflict between labour and capital, and stabilizing society.20 They provide services to peasant workers in the form of advocacy of rights, legal consultation and legal aid, education in occupational safety and health, cultural education and entertainment, etc. (some peasant workers’ self-help organizations have also participated in the promotion of corporate social responsibility). A brief introduction to the main achievements of specific peasant workers’ organizations is given below. The ‘Workers’ Document Service Office’ is one of the first peasant workers’ self-help organizations to provide legal assistance to such workers. It does so by accepting letters, phone calls and arranging staff or volunteer visits, providing legal consultation (and free legal representation if a worker has a low income and heavy family burdens, or if his case is very complicated), litigation 18 Areas such as the Pearl River Delta and Yangzi River Delta where peasant workers’ self-help organizations first appeared or are relatively active, are also the areas in which there are (or have been) serious violations of peasant workers’ rights. They are also the areas where the opening-up policy and market economy were first implemented. 19 It is estimated that there are about 70 or so peasant workers’ self-help organizations in China. This number does not include the temporary organizations that disbanded soon after their establishment. See Zhou Shaoqing, ‘Chronicles of the Development of Labour Organizations’, in Wu Yuzhang (ed.), Chronicles of the Development of Non-governmental Organizations in China (Beijing: Social Sciences Academic Press, 2010). 20  For instance, the ‘Workers’ Document Service Office’, established in Panyu City of Guangdong Province in 1998, provides various forms of legal assistance to migrant workers in such matters as arrears in the payment of wages and industrial injuries.

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guidance, and lectures on relevant laws. One of the legal aid services provided by the Office is visits to peasant workers suffering from industrial injuries.21 Other services include education on occupational safety and health, cultural development and entertainment, promoting corporate social responsibilities and nurturing the spirit of volunteerism. It is reported that the Office has beneficiaries throughout the Pearl River Delta, enjoys high prestige among peasant workers, and has a great influence on society. Workers from all over the province come to the Office to file complaints or seek consultation. Meanwhile, the Office also receives a large number of letters from workers every day.22 The Little Bird Hotline in Shenzhen is a peasant workers’ self-organization initiated by a young worker from Henan Province. Its objective is to provide peasant workers with free help in matters of job-seeking, demanding the payment of wages in arrears and legal consultation. During the eight years since the opening of the hotline, it has taken over 80,000 phone calls, provided free employment information to nearly 40,000 job seekers, offered free legal consultation to 38,000 workers and helped peasant workers to obtain the payment of over RMB 80 million in wages in arrears. Moreover, it has organized over 200 different kinds of public interest activities with the participation of over 3,000 persons and its activities have been reported over 1,000 times by more than 200 Chinese and foreign media outlets.23 The ‘Peasant Workers’ Home’ is a ‘social service provider’ formally approved by and registered at the industrial and commercial administration department of the Beijing Municipality. It is developed on the basis of the ‘Migrant Workers’Art Troupe’. Apart from providing ordinary services such as legal consultation and training in computer usage, it attaches special importance to the spiritual and cultural life of peasant workers by organizing theatrical festivals, opening ‘Weekend Theatres for Migrant Workers’, establishing libraries and publishing community bulletins. It even (in cooperation with a record company) released an album of songs entitled ‘All Migrant Workers Are of One Family’. Through these activities, it has greatly enriched the spiritual and cultural life of peasant workers. It is estimated that as many as 100,000 people benefited from the services provided by the ‘Peasant Workers’ Home’.24 The Quanshun Human Resource Development Co. Ltd. is a human resource company mainly engaged in the employment of peasant workers from Henan Province. In order to effectively safeguard the lawful rights and interests of peasant workers, the Company made the following rules: all peasant workers who become members of the Company will, after strict military and technical training, be sent to employers in batches of 50 workers; the Company signs employment contracts with employers on behalf of employees; the employment contract contains over a dozen provisions on such matters as wages, living standards, personal safety, etc.; and if any of the lawful rights of an employee is violated, the Company will take up the matter with the employer on 21  According to the estimation by Zeng Feiyang – the person in charge of the Office, there are at least 30,000 industrial accidents in which workers’ fingers are cut off by machines (with over 40,000 fingers being cut off each year in enterprises in the Pearl River Delta area alone). As a result, many hospitals in this area have established a special hand surgery department. Most of the victims of such injuries are peasant workers. The Office first finds the hospitals with a high concentration of patients suffering from industrial injuries, and then sends staff members or volunteers to over 20 hospitals in Guangzhou, Zhongshan, Dongguan, Huizhou, Foshan, Shunde and other cities to visit these patients and provide them with the relevant information, legal consultation, psychological counselling and other services. 22  For more information about the Office, see: http://blog.sina.com.cn/dgzngo (last visited June 2009). 23  http://xiaoxiaoniao.nppcn.com (last visited June 2009). 24  Sourced from a telephone interview with the person in charge of the organization and carried out by the author in May 2009.

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behalf of the employee. In this way, the Company has effectively safeguarded the lawful rights and interests, as well as the income, of peasant workers. As a result, it is not only very popular among peasant workers from Henan Province, but received a large number of membership applications from peasant workers in the neighbouring provinces of Anhui, Shaanxi, Hebei and Shandong. In the first year of its establishment, the Company accepted over 6,000 peasant workers as its members; by the end of 2007, the Company had 15,000 members. They were sent to more than 60 enterprise employers in Shenzhen and Dongguan of Guangdong Province and in Fujian and Zhejiang provinces.25 The Quanshun Company’s model is considered to have effectively solved many difficult problems, such as the difficulties encountered by peasant workers in job-seeking, the high cost of defending their rights and the difficulties faced by enterprises in finding suitable employees, thereby creating a win-win situation for peasant workers and the enterprise employees, as well as the human resource company. Generally speaking, these self-help organizations have played an important role in defending the basic rights of peasant workers, in helping them to integrate themselves into urban life, and in mitigating social conflicts. In terms of their organizational characteristics and external environment, the current peasant workers’ self-help organizations still have many problems. However, these problems are to a certain extent inevitable at the primary stage of development of such organizations. The problems mainly include, first, a high dependency on overseas funding. Most of the relatively active peasant workers’ self-help organizations have a background of overseas funding. It is almost impossible to find any peasant workers’ self-organization that is supported only by domestic funding, whether from governmental or non-governmental sources. This means that such organizations may not be able to survive once being cut off from the financial support from overseas. Second, such organizations tend to be identical in terms of function, mode of activity and even working habits. There is a lack of more advanced forms of organizations that are committed to representing the interests of peasant workers, capacity building, or influencing State policy or legislation. The third problem is the dependency of these organizations on the charisma of certain individuals for their operation. The fate of almost every peasant workers’ self-organization is closely linked to a certain elite peasant worker – for example, the Little Bird Hotline and Wei Wei, ‘Peasant Workers’ Home’ and Sun Heng, Quanshun Company of Shenzhen City and Zhang Quanshou. The dependency of such organizations on certain individual persons in their establishment and operation is not conducive to the development of a reasonable internal management structure, to the construction of external institutions, or to the maintenance of the organizations’ social evaluation and their sustainable development. Fourth, with respect to their external environment, the most serious problem faced by such organizations is the high rigidity of the political and legal environment on which they depend. As a result of such rigidity, not only are unregistered peasant workers’ self-help organizations always in an unlawful position, but those that have registered as industrial and commercial enterprises or other kinds of organizations are also faced with serious legitimacy problems. Compared with other non-governmental organizations, peasant workers’ self-help organizations are faced with more regulatory and institutional restrictions, as well as limitations by their own conditions. According to the current regulations on the registration of social organizations, the establishment of a peasant workers’ self-organization needs a ‘double approval’ from both the government agency responsible for the administration of the organizations’ business and from 25  Li Dejun, ‘Zhang Quanshou: A Bosom Friend of Peasant Workers’, available at: http://npc.people. com.cn/GB/28320/116286/116584/6945539.html (last visited June 2009).

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the government agency responsible for the registration of social organizations. According to the ‘Circular of the General Office of the Central Committee of the CPC and the General Office of the State Council on Further Strengthening the Work of Administration of Non-Governmental Organizations’, issued by the State Council in 1999, peasant workers are a ‘special group’ which should be put under strict control when establishing non-governmental organizations.26 In terms of their own conditions, peasant workers are a social group with the least economic, cultural, political and social resources, and therefore are a ‘disadvantaged group’. This makes it impossible for them to acquire the space necessary for their survival and development by utilizing resources other than legal legitimacy, such as political legitimacy, administrative legitimacy or social legitimacy.27 The absence of resources and legitimate status makes peasant workers’ self-help organizations a kind of non-governmental organization with the least stable position and most unpredictable future. In practice, peasant workers’ self-help organizations have been oppressed and attacked by various forces.28 This situation, plus their very small number, makes the role played by this type of organization only symbolic. Achievements and Problems of Peasant Workers’ ‘Socializing’ Organizations Peasant workers’ ‘socializing’ organizations are the earliest form of labour organization. They emerged against a double background of the daily worsening of peasant workers’ conditions and the adoption by local governments of an increasing number of policies aimed at controlling and restricting peasant workers as a social group. One of the main achievements of such organizations is that they (and the relevant media) have gradually drawn public attention to peasant workers as a long-marginalized social group and made the issue of peasant workers a public topic. After entering into the period of ‘fair movement’, these organizations have shifted the emphasis of their 26  The exact provision of the Circular reads as follows: ‘The civil administration departments throughout the country shall strictly control non-governmental organizations whose businesses are broad in scope and difficult to define. They shall prohibit the establishment of organizations of Qigong practitioners and of special groups of people (ex-servicemen, unemployed workers, migrant workers, etc.), religious organizations and other organizations that are not conducive to national unity or against State laws and regulations.’ 27  For a more detailed discussion on the legitimacy of social organizations, see Zhou Shaoqing, The Problem with the Right to Association in China and Its Solution – A Rule-of-Law Approach (Beijing: Law Press, 2008), pp. 233–73. 28  In November 2007, the office of a non-governmental organization named the ‘Workers’ Occupational Safety and Health Center’ (it was established in 2003 by some victims of industrial injuries and registered as a privately-owned small industrial and commercial business) was vandalized by unidentified attackers and the director of the Center was seriously injured in the attack. Inside the Center there were over 1,000 kinds of books, various leaflets on relevant laws, and a computer with Internet access. Workers in nearby factories had free access to the Center where they could read, acquire knowledge of the law and surf the Internet free of charge. At the end of each month, many workers would go there and use the formula provided by the Center to calculate their wages to see if their bosses had made deductions. After the Promulgation of the Labour Contract Law, the Center actively disseminated the knowledge of this law and provided consultations in many cases. Apparently the Center’s activities had offended some factory managers, who tried to use violence to prevent the Center from carrying out such activities. Huang Qingnan, the director who was seriously injured in the attack, said that: ‘A type of criminal gang has recently emerged in the society. They openly obstruct the implementation of Labour Contract Law and attack labour organizations.’ This pernicious crime committed on the eve of the coming into force of the Labour Contract Law was considered to be a retaliation against Huan Qingnan for disseminating the knowledge of the Law and for defending the rights and interests of peasant workers. A police investigation later confirmed this assumption. See: www.ftchinese.com/ftblog/u/16/ articles/652.html (last visited June 2009).

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work from drawing people’s attention to the living conditions of peasant workers and advocating the protection of peasant workers’ rights, to building the capacity of peasant workers’ self-help organizations, occupational training, consultation on social responsibilities, community service and other public interest undertakings. A brief introduction to three examples of peasant workers’ ‘socializing’ organizations is given below. The Center for the Study of Contemporary China (the Center) is a research institute in which the research staff of Tsinghua University cooperate with Chinese and foreign experts to carry out multidisciplinary research on various issues in contemporary China. Since its establishment, the Center has carried out a series of research projects on issues relating to the protection of labour rights, including ‘Investigation on Disabled Peasant Workers in Longgang District of Shenzhen City’, ‘Follow-up Investigation on Female Victims of the Fire Accident in Zhili Toy Factory on November 19, 1993’, ‘Construction of a Social Security System for Transient Labour’, ‘Corporate Social Responsibility’ and ‘Globalisation, Marketisation and Gender’. Meanwhile, the Center has also actively carried out ‘sociological intervention’ – that is, it closely cooperates with various kinds of NGOs, governments at various levels in areas with a high concentration of migrant workers, and other agencies, to establish a social support system for migrant workers. Its activities in this respect include a project on the training of female migrant workers in the Pearl River Delta area, a project on the training of trainers and volunteers, and a project on providing support to target areas to establish labour service centres.29 Apart from research on labour issues and ‘sociological intervention’, the Center also engages in the building of platforms of exchange and cooperation between academic circles, the government, enterprises and NGOs.30 Such exchange and cooperation, the above-mentioned research on labour rights and activities of ‘sociological intervention’, have played an important role in drawing public attention to the issue of labour protection in a time of social transition. The ‘Migrant Women’s Club’ (the Club) is a labour NGO established in Beijing by the Editorial Office of ‘Rural Women Knowing All’, which was affiliated to the China Women’s Daily (now it is affiliated to the Cultural Development Center for Rural Women) and provides services only to female peasant workers (and its staff members mostly come from the group of female migrant workers). Since its establishment in 1996, it has been mainly engaged in such activities as organizing the defence of rights, providing emergency assistance, operating a domestic workers’ support network, capacity building for female migrant workers, constructing a network of volunteers and establishing community service stations. One of its most successful works is organizing the defence of rights. The Club, in cooperation with the Rights and Interests Department of the All-China Women’s Federation, the Peking University Women’s Legal Aid Center, the Teenagers’ Legal Aid Center, the Beijing Federation of Trade Unions, the Beijing Domestic Service Association and a number of law firms, established a female migrant workers’ legal aid network. The network, consisting of many lawyers and student volunteers led by the Migrant Women’s Club, has broad participation by all sectors of the society, and covers all female migrant workers in Beijing. The main activities of the network include legal consultation, reception of visitors, providing emergency assistance, 29  See the website of the Institute of Contemporary Study of Qinghua University: www.tsinghua.edu. cn/docsn/shxx/site/chinac/laogong/laogong.htm (last visited June 2009). 30  For example, the Center organized a seminar on ‘Economic Globalisation and Labour Issues’ in Beijing in December 1999, a seminar on ‘Service and Innovation: Social Policies on Migrant Workers’ (in cooperation with relevant government departments) in Beijing in December 2000, the ‘Meeting for the Exchange of Academic Information relating to Peasant Workers in the Mainland of China’ in Guangzhou in December 2000, and the ‘Seminar on the Training of Female Migrant Workers in Pearl River Delta Area’ in Shenzhen in June 2001.

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organizing lectures and training courses on relevant laws, and providing legal aid in typical cases. The ‘Emergency Fund for Migrant Women’, established by the Club, provides valuable assistance to female migrant workers who have suffered from sudden illness, industrial injury or violations of their personal rights. In the past seven years, the Club has answered over 6,000 enquiries through a consultation hotline, provided legal aid in 300 cases, and offered RMB 500–1,000 per person emergency relief money to more than 200 female migrant workers.31 Other activities of the Migrant Women’s Club, such as the establishment of the ‘Domestic Workers’ Support Network’ and community service stations, which focus on migrant workers in communities and their children, capacity building for female migrant workers, and establishing volunteers’ networks, have been proved very important to female migrant workers in enhancing their basic quality of life and helping them to adapt to and integrate themselves with urban life. It is worth noting that, in order to influence State policies and legislation on the transient population, the Club also organizes research on various problems faced by migrant rural women and, based on the results of these researches, sponsors seminars and forums on the relevant topics and puts forward corresponding policy proposals. So far, the Club has organized the following seminars: ‘The First National Seminar on Female Migrant Workers’ (1999); ‘Seminar on the Household Register System and Transient Female Population’ (2001); ‘Forum on Informal Employment’ (2004); ‘Seminar on the Protection of Rights and Interests of Domestic Workers and Legal Reform’ (2006); ‘Forum on the Protection of the Rights and Interests of Female Workers in Informal Employment’ (2007); and ‘Seminar on the Employment Conditions and Protection of Rights and Interests of Female Migrant Workers in Beijing’ (2009). These seminars and forums have, to varying degrees, drawn the attention of relevant government departments to the issue of migrant female workers. The Club is one of the first NGOs in China inspired by the World Conference on Women held in Beijing in 1995. During the past dozen or so years, it has earned universal plaudits from the general public and continued attention from funding organizations for its activities of helping, educating and protecting female migrant workers in Beijing.32 It has received financial aid from UNESCO, the World Bank China Program, the Asian Foundation, the US Embassy, the Irish Embassy, the Japanese Embassy, the German Embassy, the Ford Foundation, Oxfam in Hong Kong, the International Republic Institute in the US, and the Organization for the Promotion of Global Literacy and the Global Women’s Fund.33 The Institute of Contemporary Observation (ICO), established in 2001 in Shenzhen, is a nongovernmental and non-profit institute dedicated to promoting labour development and corporate social responsibilities. Since its establishment, the Institute has worked with multinational corporations, international organizations and local government departments in an effort to improve social responsibility management in Chinese factories by applying international labour standards. Meanwhile, it has also been developing various educational programmes to enhance migrant workers’ capacity of self-development and their consciousness of self-protection.34 In the past eight years, it has carried out training programmes for managerial personnel and workers in 25 31  The above statistics were provided by staff members of the Migrant Women’s Club in May 2009. 32 According to the statistics provided by the Migrant Women’s Club, about 20,000 to 25,000 migrant women benefited each year from the Club’s various activities. 33  See the website of The Cultural Development Center for Rural Women: www.nongjianv.org/web (last visited June 2009). 34 In March 2004, the ICO, in cooperation with UC Berkeley, established a community school for migrant workers. The school provides rights education, cultural education and occupational training both in communities and in factories, thereby creating development opportunities for migrant workers.

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enterprises, established an internal complaint mechanism in 1,000 factories, conducted a social responsibility audit in over 150 suppliers of transnational corporations, offered free legal aid to over 10,000 migrant workers, and provided free or low-cost cultural education and occupational training to over 3,000 ordinary labourers in various communities. A total of over 200,000 people have either directly or indirectly benefited from its activities. With the support from International NGOs and foreign institutes,35 the ICO has established a network of various social forces and has won a large amount of acknowledgment in the labour circle and in society as a whole, for its professional ability and influence. In December 2003, it was given the award of ‘The Most Outstanding Organization in the Promotion of Public Interest and Social Progress in China’; in March 2005, it was given the award of the ‘Ten Best Cases of Sustainable Development in China’ by the ‘Sustainable Development in China’ Award Committee (the event was co-sponsored by the weekly Chinese newspaper the Economic Observer and Shell in China. All the members of the Committee were famous experts in their respective fields). The founder of the Institute, Dr Liu Kaiming, later became an Advisory Board member of Social Accountability International. According to a report, today the ICO has become the largest labour NGO in China.36 The above cases show that these organizations have played an important role in drawing public attention to the group of peasant workers and made the issue of peasant workers a public topic in China at certain historical periods. Particularly groundbreaking were such organizations as the ‘Migrant Women’s Club’, which emerged during the mid-1990s when migrant peasant workers were jokingly called ‘vagabonds’ by others. At a time when peasant workers’ freedom of movement was still severely restricted by numerous permit and certificate systems (namely the household register system, the ID card system, the temporary residence permit system, the work permit system, the employment certificate system and the marriage and childbirth certificate system) and the ‘detention and repatriation system’ was still in full operation, the emergence of the ‘Migrant Women’s Club’ was itself of epoch-making significance. Of course, the development of ‘socializing’ organizations is not without problems. First, there is a tendency among these organizations to consider themselves as heroes or the saviours of peasant workers. For instance, the Cultural Communication Center for Facilitators proclaimed in its advertisement: ‘We are endeavouring to achieve basic social justice for peasant workers.’ Also, other organizations, such as the Club ‘from the very beginning have consciously or unconsciously considered themselves philanthropists or saviours of women whose rights and interests are infringed upon’.37 Second, there is a lack of diversity in the functions of such organizations. There is currently still no foundation or charitable organization specialized in serving the needs of peasant workers; and third, the major problem faced by such organizations is that the resources available to them are very limited – most funds come from international NGOs and foreign institutions. Apart from the ICO and a few other organizations, which have relatively secure resources, most of them have uncertain futures. 35  From the very beginning, the ICO has been supported by many international NGOs and foreign institutes. Oxfam was the first to provide funding to the ICO. Other resource providers include transnational corporations, such as Nike and Reebok, charity organizations such as the Ford Foundation, and universities, research institutions, corporate social responsibility auditing organizations and religious organizations. See note 14. 36  For more information, see the website of ICO: www.ico-china.org/guwm1/china/ksy.asp (last visited June 2009). 37  Xie Lihua, ‘Belief and Persistence: Make the Impossible into Something Possible’, Newsletter of Migrant Women’s Club 1 (2007).

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Since 2005, in-system trade unions have accelerated the admission of peasant workers. As a result, there has been a marked slow-down in the growth of peasant workers’ ‘socializing’ organizations, as well as in peasant workers’ self-organization (which indicates a certain relationship of competition between the development of peasant workers ‘socializing’ organizations and the development of in-system trade unions). As the call from in-system trade unions for the safeguarding of peasant workers’ rights and interests becomes louder and louder, the halo surrounding peasant workers’ ‘socializing’ organizations, which have mainly been playing a supplementary, indirect and advocatory role in the safeguarding of peasant workers’ rights and interests, is gradually blocked out by another kind of labour organization with institutional advantages and huge resources – namely, trade unions. The Process of Being Organized – Achievements and Problems in the Development of In-System Trade Unions In-system trade unions are without any doubt the main body of labour organizations in China, both on account of the unitary trade unions system and on account of the actual number of trade unions members. Since the ‘reform and opening up’, in-system trade unions have made remarkable developments in response to the needs of the market economy and society and the enormous organizational needs of the broad masses of workers, especially peasant workers. First, in terms of membership, when the ninth National Congress of the ACFTU was held in 1978, there were only a little more than 50 million trade union members in the whole country, which constituted only 50 per cent of all employees in China. By 1992, the number of trade union organizations at the grassroots level had increased to 589,000 and the number of union members reached 103 million, which constituted 69.8 per cent of all employees in the country.38 Furthermore, during the period from the end of 1999 to the end of 2002, the number of grassroots trade unions had increased from 509,000 to 931,000, covering 1.713 million legal persons, and the number of trade union members had increased from 87 million to 134 million.39 In October 2003, after the 14th Congress of the ACFTU, trade unions began to speed up the establishment of new organizations and admission of new members so as to meet the organizational need of the broad masses of workers, especially the growing number of peasant workers. By September 2008, the number of grassroots trade unions had increased to 1.725 million covering 3.682 million legal persons; the number of trade union members had increased to 212 million (72.16 million of them were peasant workers), doubling that of 1978; the percentage of union members among employees had reached 73.7 per cent, 11 per cent higher than in 1981; trade unions had been established in 82 per cent of overseas enterprises (including enterprises owned by businessmen from Hong Kong, Macao and Taiwan) and 76 per cent of Chinese private enterprises. A total of 82 per cent of the top 500 enterprises in the world, including Wal-Mart, Lotus, Sony (China), Sodexo, Denso and Federal Express, had established trade union organizations in China; and the ACFTU had become the largest trade union organization in the world.40 Second, in terms of the mode of establishment of trade unions, many new admission methods and many new types of trade union organizations have emerged. The former include collective 38 After 1992, trade union organizations were hit hard by the deepening of the reform and large-scale restructuring of State-owned enterprises. By 1999, the number of grassroots trade union organizations had dropped from 580,000 to 509,000, with membership decreasing from 103 million to 87 million. 39  Research Office of ACFTU, ‘Trade Unions in China: Forging Ahead Courageously in the Process of Reform and Opening up’, Workers’ Daily, 30 December 2008. 40 Ibid.

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admission (of peasant workers), oral admission and admission of scattered employees directly by the municipal federation of trade unions; the latter include ‘trade unions of peasant workers in the oddjob market’, ‘construction site trade unions’, ‘community trade union committees’, ‘federations of trade unions of the transient population’, ‘trade unions of social workers’, ‘federations of peasant workers’ trade unions’, ‘committees on the federation of trade unions of the human resource market’, ‘working committees on peasant workers’, ‘trade union groups of shoe polishers’, ‘united committee of waterborne trade unions’, ‘federation of trade unions of temporarily employed or reemployed persons’, ‘federation of trade unions of construction workers’, ‘working committee of trade unions in construction sites’, ‘federation of trade unions of a specific industry’, ‘trade union of exported labour’, ‘regional trade unions’, ‘seasonal trade unions’, ‘trade union of a specific construction project’, etc. All these different forms and types of trade unions have greatly facilitated the joining of trade unions by highly mobile peasant workers and effectively increased the trade union membership of peasant workers. Third, in terms of innovation of working ideas, as a response to the increasingly urgent need of enterprise workers (peasant workers) to protect their rights, the working ideas of trade unions have to some extent returned to that of representing and upholding the interests of workers. Many enterprise trade unions are beginning to play the role of the representative of workers’ interests. Trade unions in some cities have established inter-city federations and begun to carry out transprovincial rights-protection operations.41 Even the ACFTU has directly participated in rightsprotection activities. In April 2007, it made an official statement that the failure by McDonald’s, KFC and other enterprises in Guangdong to comply with local standards on hourly wages had violated the relevant provisions of the Labour Law and such unlawful practice must be rectified. It announced that it would make every effort to perform its functions and resolutely uphold the lawful rights and interests of employees. Fourth, in terms of innovation on the rights-protection mechanisms,42 local trade unions have created different models, such as the ‘Quangzhou Model’, ‘Yiwu Model’, ‘Kunshan Model’, ‘Dalian-Xinyang Model’ and ‘Chengdu Model’, each with its own emphasis and characteristics. The Quanzhou Model is famous for its ‘Three Lower Levels’ network of trade union organizations and the protection of peasant workers’ rights through this network; the core of the ‘Yiwu Model’ is the effort to replace rights protection organizations such as peasant workers’ self-help organizations with ‘centres for the legal protection of rights’ established by the municipal federation of trade unions; the Kunshan Model establishes the mechanism whereby trade unions at the next highest 41  For example, on 17 April 2008, trade unions in the city of Wuhan and eight other nearby cities formally established a Union for the Protection of Lawful Rights and Interests of Peasant Workers. A peasant worker from one member city of the Union working in another member city of the Union is provided with double protection of his lawful rights and interests. The establishment of this union has effectively optimized rights-protection resources, established a rights-protection platform, improved the rights-protection network, and promoted the coordination and exchanges between trade unions of the member cities. According to the Eight-article Union Agreement, the nine member cities to the agreement will strengthen the mobile management of the peasant-worker trade union members within the Union, cooperate with each other in the promotion of employment, uphold the lawful rights to employment, remuneration and social security, make an effort to improve the spiritual and cultural life of peasant workers, provide peasant workers with effective employment assistance, poverty relief, mutual medical assistance, legal aid, financial aid for the their children’s education and other services. In cases of a violation of peasant workers’ rights, especially in major and serious cases, the trade union in the labour-exporting city shall immediately get in contact with its counterpart to cooperate in the investigation of such cases. See Zhou Shaoqing, ‘Chronicles of the Development of Labour Organizations’. 42  See Zhou Shaoqing, ‘Chronicles of the Development of Labour Organizations’.

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level exercise some of the rights-protection functions of grassroots trade unions, since the latter can be easily controlled by employers; the Dalian-Xinyang Model is a mechanism whereby the federation of trade unions in the labour-exporting city (Xinyang) establishes trade unions among exported peasant workers in the city that has imported them, and then turns such organizations to the federation of trade unions of the labour-importing city for administration; the Chengdu Model is a inter-city legal aid cooperation agreement, according to which a migrant worker in any city that is a party to the agreement may get legal aid from the federation of trade unions of the participatory cities in case of a violation of any of his labour rights. In addition, trade unions have also done a lot of work in providing assistance to employees who are in financial difficulties. In the past five years, trade unions at various levels in the whole country have raised RMB 1.617 billion in a ‘heart-warming’ fund and visited and expressed sympathy and solicitude for 643,000 enterprises and 31.918 million families in financial difficulties. Meanwhile, trade unions have established support centres for employees in financial difficulties in all prefecturelevel cities and 92 per cent of counties (cities) in the whole country, and raised a RMB 4.2 billion support fund, given support to 20.9 million employees, and extensively carried out the ‘Golden Autumn’ Student Grant Programme, through which a large number of children of employees and peasant workers who were in financial difficulties were able to go to school.43 It is worth noting that many problems exist alongside these achievements and, indeed, some of these problems go hand-in-hand with the achievements. First, in the development of trade unions, too much emphasis has been laid on quantity and not enough on quality (namely the actual performance by trade unions of their functions). In practice, some local federations of trade unions, in order to establish as many trade unions as possible, have sacrificed basic principles in the process of ‘persuading’ employers to establish trade unions, even made promises that workers would not ‘make troubles’ after joining trade unions. As a result, many of the newly established trade unions have become mere ‘empty shells’.44 In order to increase the trade union membership of peasant workers, very simple procedures, such as an ‘admission window for peasant workers’, were adopted, which have made many trade unions that are mainly constituted of peasant workers a mere formality. Second, many innovative rights-protection mechanisms, such as the ‘Quanzhou Model’ and the ‘Yiwu Model’, cannot effectively protect workers’ rights: although the ‘Three Lower Levels’ trade union networks established under the ‘Quanzhou Model’ have certain advantages in protecting workers’ rights, the establishment of trade union organizations at the township (street) level has cut off the communications and liaisons between enterprise workers, enterprise trade unions and the trade unions at higher levels. Moreover, since the leadership positions of trade unions at this level are concurrently held by township government officials, the effectiveness of their rights-protection function is greatly weakened; the ‘Yiwu Model’ tries to handle the dispersed rights-protection needs and activities of workers through ‘centres for the legal protection of employee’s rights’, uniformly established by the municipal federation of trade 43  Research Office of ACFTU, ‘Trade Unions in China’. 44 It seems that the ACFTU, as the ‘highest leading organ’ of trade unions in China, has not yet realized this problem. Currently it has put forward the following objectives to be achieved in the establishment of trade unions in the year 2009: to continue the establishment of trade unions in the top 500 enterprises of the world and other multinational corporations; to take peasant workers and non-publicly owned enterprises, especially small enterprises, as the emphasis of its work; and to achieve the goals of increasing trade union members by 10 million and establishing 110,000 new trade unions at grassroots level that cover 238,000 legal persons. However, no plan for improving the effectiveness of the work of trade unions has been put forward. See Li Zheng and Wang Jiaoping, ‘A New Historical High in the Number of Trade Union Membership in China’, Workers’ Daily, 30 December 2008.

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unions. One may well imagine the effectiveness of such a mechanism. The ‘Kunshan Model’ tries to solve the dilemma faced by grassroots trade unions in the performance of the rights-protection function by letting the trade unions at the next highest level perform such functions on behalf of the grassroots trade unions.45 This not only keeps enterprise trade unions themselves further away from the labour–capital relationship, but also turns the internal labour–capital conflict in enterprises into external and socialized conflicts. As for the ‘Dalian-Xinyang Model’, it is only a limited extension of the traditional rights-protection mechanism of in-system trade unions, with very limited results. Third, there is the tendency of a gradual pan-politicization in the orientation of trade unions’ basic functions, which has been one of the important phenomena in the development of trade unions in the past 30 years since the ‘reform and opening up’. The ACFTU was still emphasizing trade unions’ rights-protection function at the 11th National Congress of Trade Unions in 1988. It clearly pointed out in the working report of the Congress that: in cases where the employees’ lawful interests are violated and the problem cannot be resolved through democratic channels, trade unions must represent and support the workers in exposing and reporting the unlawful acts of the employers and guide workers in carrying out various forms of lawful struggle against such acts. In case of local conflicts, trade unions should stand on the side of the masses, try to understand their emotions and demands and, under the condition of not harming State interests or the long-term interests of the enterprises, urge the management and other parties to try their best to satisfy employees’ legitimate demands.

However, in the Second Executive Meeting of the 11th National Congress, held only one year later, the ACFTU shifted the emphasis of its work to the upholding of social stability. Although China has established a ‘rights-protection principle with Chinese characteristics’, which requires trade unions to ‘take employees as the basis and uphold their rights in an active, lawful and scientific way’ and has preserved and strengthened to a certain extent some of the traditional functions of trade unions, such as the employee-representative assembly, collective bargaining and participation in legislation, trade unions are required to perform more and more governmental functions, such as ‘handling colony incidents’ and, as a result, their basic functions have become increasingly pan-politicized. Since 1996, when the CPC set the goal of ‘establishing a Party and governmentdominated mechanism for upholding the rights and interests of the masses of people’ in its Sixth Plenary Session of 16th Central Committee, the orientation of the basic functions of trade unions has been further pan-politicized and the so-called ‘Five-in-One’ operational mode of trade unions – namely, ‘led by the Party committees, supported by the government, cooperated by the society, operated by trade unions and participated by employees’ – has taken shape.

45 In 2004, the Federation of Trade Unions of Kunshan City in Jiangsu Province adopted the ‘Measures for the Trade Unions at the Next Highest Level to Perform Some of the Rights-Protection Functions on Behalf of Grassroots Trade Unions’, which provides that trade unions at the next highest level may perform the rights-protection functions of grassroots trade unions on their behalf in cases where an enterprise employer impedes that trade union from holding a workers’ representative assembly, refuses to sign a collective contract without justification, obstructs its participation in the investigation of cases of industrial injury, removes or replaces trade union cadres against the law, or delays the payment of a trade union fund for a prolonged period of time.

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Conclusions Labour organizations have emerged during specific historical stages and have been closely related to specific modes of production. Since the eighteenth century, in keeping with the progress of the Industrial Revolution, all Western European countries have entered into the age of mass production by machines, and a large number of industrial workers have been employed. In order to reduce the cost of production and extract as much profit as possible, entrepreneurs of Western European countries have tried their best to keep the wages of their workers low, doing everything possible to prolong their working hours, and forced them to work in miserable conditions.46 The miserable conditions and despair about their future forced workers to organize themselves and counter the advantageous position of the capital with a trade union movement. Since the 1850s, accompanied by the warships and cannons of Western imperialist powers, the capitalist production mode and its inherent conflict between labour and capital came to China in a way that transcended time and space. What distinguished the early industrial workers in China from their European counterparts was that they imputed their unfavourable working and living conditions not only to capital and capitalists, but also to the invasion by Western imperialist powers and the oppression by the feudal rulers in their own country, which began the anti-imperialist and anti-feudal political tradition of the trade union movement in China. This tradition ultimately enabled the working class to seize political power and become the ‘leadership class’ in China. In addition, trade unions were embedded in the State ruling machine and became a part of the State political power as a matter of course. Since the ‘reform and opening up’, the introduction of the market economy and the profound transformation of the social structure has fundamentally changed the ‘leadership status’ of the working class. In reality, the massive laying-off of workers in State-owned enterprises and the large-scale employment of workers (peasant workers) by foreign and domestic private enterprises has led to an unprecedented number of disputes and conflicts between labour and capital. In response to this grave situation, trade unions, which had always been sitting on a high altar within the system, are gradually getting down from their pedestal and trying to play the role of the genuine representatives and spokesmen of workers’ interests in the conflict between labour and capital. However, because of the institutional and operational inertia that has formed over a long period of time, the reform of the in-system trade unions has failed to achieve the objectives expected by its designers – while it has made certain achievements in policy-making and legislation, in restricting the laying-off of employees by enterprises during certain periods of time, and in providing legal aid and financial assistance to workers in poverty, no major progress has been made on comprehensive issues involving the nature of trade unions as subjects, such as collective bargaining at the grassroots level. Due to the lack of a genuine ‘bottom-up’ driving force from trade unions, most of the socalled collective contracts have become mere formalities and have not played any role in regulating labour–capital relations. In response to the market economy and the corresponding social structure, or rather, in response to the failure of in-system trade unions, a new kind of labour organization – peasant workers’ self-organization or ‘socializing’ organizations – emerged during the period of ‘reform and opening up’. These organizations can better reflect and meet the needs of workers, especially peasant workers, who are at the frontline of the labour–capital game play in local societies.

46  Zhou Shaoqing, ‘On Labour Standards under the Triple Framework’, in Zhu Jingwen (ed.), Legal States in the Process of Globalisation (Beijing: Renmin University Press, 2006), p. 300.

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However, these organizations are faced with a series of problems, including the problems of political and legal legitimacy. Judging from the historical background of traditional trade unions and the basic structure and compatibility of the current political system, it seems unlikely that Western style ‘free trade unions’ will emerge in China. The various kinds of labour organizations currently existing in Chinese society, each based on a certain kind of legitimacy,47 will, under suitable conditions, eventually transform themselves into a new kind of labour organization that has universal significance and, at the same time, is adapted to the market economy and globalization. However, before this can happen, the development of a tolerant and pragmatic policy on labour organization will be very important. In the so-called catalogue of control-policy classified social organizations, labour organizations apparently belong to the category of organizations that are potentially the most challenging. As a result of such a categorization, the development of labour organizations is faced with more complicated political, legal and social environments than any other kind of social organization. It is without any doubt that both the traditional and newly-emerged labour organizations can play a constructive role in communicating and resolving the conflicts between labour and capital and, because of that, governments at various levels are happy with their development. On the other hand, however, both types of organizations have a certain degree of a ‘centrifugal’ tendency in terms of their organizational controllability and their potential impact on social stability. The government has, in an effort to prevent, to a maximum extent, such a ‘centrifugal’ tendency, on the one hand, put the functions and work mechanisms of the in-system trade unions under the control of the Party and government, and, on the other hand, always refused to grant legitimacy to newly emerged labour organizations, especially peasant workers’ self-help organizations. As a result, the development of labour organizations in the past 30 years has been to a large extent the development of in-system trade unions alone. Newly emerged labour organizations not only have very limited membership or target groups, but also a very uncertain status and future. Moreover, from a purely technical point of view, up to now, over half of the peasant workers in China still do not have any effective organizational resources (including in-system trade unions) to rely upon. They are either in a scattered and helpless condition, or have to attach themselves to secret townsmen societies, or take shelter in highly unstable and transient self-help organizations, and thereby become the labour group with the least organizational resources in China.

47  For instance, the traditional trade unions are mostly based on political and legal legitimacy; peasant workers’ self-help organizations are mostly based on social legitimacy; and peasant workers’ ‘socializing’ organizations are mostly based on social legitimacy and certain degree of administrative legitimacy.

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Chapter 8

The Voluntary Sector and Government: Perspectives from the UK Liz Atkins

Introduction The relationship between the UK government and civil society has developed considerably over the last 10 years and has become closer and much more interdependent. It has generated a range of opportunities for charities and voluntary organizations to influence public policy and deliver public services under contract. But the relationship has also created dilemmas including concerns about the legitimate role and independence of the sector. It has raised questions about how voluntary organizations should organize themselves to be effective government influencers, how they should campaign, how they should make the best use of scarce resources and how they should face the challenges of the immediate future. The charity sector in the UK has been growing consistently for a decade. The most recently available figures, from 2006–7, showed the sector was still growing. However, it is anticipated that growth will now slow down as a result of the economic downturn and subsequent cutbacks in public expenditure. Organizations involved in social services, culture and recreation, and health services make up the majority of the sector’s economic activity with social service organizations receiving onequarter of the sector’s income. Earned income now makes up over half of charities’ income and is driven largely by charities delivering greater levels of public services under contract. Around 25,000 charities – mainly large ones – receive more than three-quarters of their income from a statutory source, mostly from local government. However three-quarters of charities – mainly small ones – receive no funding from government at all. Voluntary income remains a defining characteristic of the sector. Grants, donations and legacies make up 41 per cent of the total income of general charities in the UK. This chapter discusses the relationship between the government and the voluntary sector in the UK over the last 12 years; how that relationship has been formalized in the development of the Compact; and how it has resulted in more effective collaborative work in the delivery of public services and in the development of public policy. It sets out the key steps that should be taken to influence government successfully. The chapter reflects on how voluntary organizations can build their legitimacy and credibility, work with limited resources and make the best use of volunteers.

 In this chapter, as in Chapter 11 in this volume, the term ‘voluntary organization’ is used to refer to citizen organizations operating independently from government on a voluntary not-for-profit basis and having a social purpose. The term ‘charity’ refers to voluntary organizations that are on the Charity Commission register and have purposes that are charitable in law and benefit the public.   Jenny Clark et al., The UK Civil Society Almanac 2009 (London: National Council for Voluntary Organizations, 2009), see: ncvo-vol.org.uk/almanac2009 (last visited January 2010).

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Finally, this chapter looks at the uncertain future for the UK voluntary sector, which is facing public expenditure cuts and a change in political direction. The Government and the Voluntary Sector since 1997 Over the past 10 years the UK government has created a new architecture for the voluntary sector. This was mainly in response to lobbying by the National Council for Voluntary Organizations (NCVO) of Labour Party politicians before and after they were elected to government in 1997. The lobbying was based on compelling evidence from a groundbreaking report from the Deakin Commission, entitled Meeting the Challenge of Change: Voluntary Action into the 21st Century. It was an independent commission, chaired by an academic with considerable understanding of the voluntary sector, Professor Nicholas Deakin, and was set up by the NCVO to create an agenda for action for the sector in the new century. The NCVO provided the secretariat and published the report in 1996 that, among other things, made a number of recommendations to central government about how it should act to strengthen the voluntary sector’s role and contribution. These included proposals for the Compact between government and the sector, a Government Office of the Third Sector, an improved tax regime, funding for capacity building and a new Charities Act that required all charities to demonstrate their public benefit to the Charity Commission. It was the implementation of these recommendations that ensured the sector was put on a new footing at the heart of government. The government has, since the late 1990s, created many more opportunities for voluntary organizations to take on a wider range of roles within society, delivering public services under contract and contributing to the development of public policy. This has led to some debate about the extent to which voluntary organizations should take on roles previously undertaken by the state. Some have argued that these changes do not go far enough and that voluntary organizations should seek to compete for many more public service contracts from government so that will they end up delivering a much broader swathe of public services. They have suggested that voluntary sector organizations should go beyond their normal boundaries and break into new areas including the delivery of coercive services, such as prisons and probation. It is suggested that this would give voluntary organizations greater opportunity to influence what happens inside prisons and in the criminal justice system. Others have argued that voluntary organizations should continue to provide services that support prisoners such as drug rehabilitation programmes, skills training and counselling, but have drawn the line at voluntary organizations having a financial stake in the management and running of coercive services such as prisons. They have also drawn the line at voluntary organizations being involved in determining who should and should not receive state benefits. They reason that this would mean voluntary organizations were moving from the role of enabling an individual to access a service, or providing a service for them, to making decisions about the entitlements of individuals. This could entail taking responsibility for imposing sanctions on those who do not meet the requirements of the public policy they are delivering. This is potentially a very dangerous area for voluntary organizations. Their traditional role is to empower individuals and communities. It is not to have power over individuals and communities. That would mean greater public confusion about what voluntary organizations do and what are they for. Voluntary organizations in the UK are   Nicholas Deakin, Meeting the Challenge of Change: Voluntary Action into the 21st Century (London: NCVO, 1996).

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not, and do not want to be perceived as, agents of the state. But the reality is that many people will see the voluntary sector exactly in that light if it has more direct engagement in delivering public policies, particularly if they involve the coercion of individuals. It could pose a serious challenge to public trust and confidence in the sector. Public trust and confidence is the lifeblood of the sector. It gives the sector its legitimacy; it is why people donate their time and money; and why its work and campaigns secure backing. The reason the sector has trust and confidence in the UK is because voluntary organizations are seen to be independent. Voluntary organizations are not part of the state; and equally they are not part of the private sector that is driven by the pursuit of profit. There are also people who question whether charities and voluntary organizations should engage directly with government or accept state funding at all, as they are concerned that in doing so, their independence will be jeopardized. The fear is of the threat to independence from incorporatism (where voluntary organizations, or parts of the sector, become an arm of the state), from isomorphism (where voluntary organizations lose their distinctiveness and start to function more like government) and from incapacity (where government funding prevents voluntary organizations from acting independently, deciding the most effective way to provide a service and challenging and criticizing). Entering into a contract or partnership with a statutory body does not automatically undermine the independence of an organization. What matters is that the relationship is entered into after careful thought, and that it is properly managed. Crucially, this is a matter of good governance. Charities and their trustees must, by law, focus on furthering their charitable objectives. The trustees of an organization must satisfy themselves that the government relationship will help them deliver its mission, not divert the organization from it, or skew its focus away from the needs of its beneficiaries. If this is the case, it is entirely appropriate for trustees to accept funding. If this is not the case, then they should turn it down. Often government and voluntary organizations have shared objectives. By working together, they not only help themselves and each other, but they can also deliver better outcomes for citizens and communities. Being too close to government is not good for the sector, but neither is being oppositional for the sake of it. Independence does not have to mean being separate or isolated. Absolute independence is a myth: the real issue for most voluntary organizations is learning how to manage their relationships and interdependence effectively. This means understanding and managing the real power imbalance that can exist. It also means recognizing that being independent does not mean that voluntary organizations should not be accountable. Voluntary organizations need to take into account the concerns and priorities of all their stakeholders, whether they be government, funders, beneficiaries, the wider public, the media, their staff, trustees, volunteers, businesses or other voluntary organizations. What is regarded as important by voluntary organizations in the UK is that where government works with the sector, it does so in ways that respect its distinctive role, separate existence and independence. Government should not think that in some way it owns the voluntary sector, or worse still, that the sector is in fact part of the government or an agent of the state.

  For further discussion of these issues see: Stand and Deliver: The Future for Charities Providing Public Services (London: Charity Commission, 2007). Available at: www.charitycommission.gov.uk (last visited January 2010). Peter Dyer, Good Trustee Guide 2008 (London: NCVO, 2008).  Ann Blackmore, Standing Apart, Working Together: A Study of the Myths and Realities of Voluntary and Community Sector Independence (London: NCVO, 2004 and reissued 2008).

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The Compact In England the voluntary and community sector has entered into the Compact with government to improve this relationship. The Compact and its codes exist to frame the relationship between voluntary and community organizations and government: it is a formal agreement that sets out how government and the sector should work together. It applies to central government departments, regional government offices, executive agencies and non-departmental public bodies, and to a range of organizations in the voluntary and community sector. Local Compacts, informed by the national Compact and Codes, are local level agreements for partnership working at the local level between voluntary and community sector organizations and public sector bodies. Around 99 per cent of local authority areas have, or are developing, a local Compact. Although it is not a legally binding document, it does provide the basis for a positive working relationship that benefits both sides and the communities they work with. The Compact recognizes the distinct and complementary role of the voluntary and community sector, as well as the values and aspirations it shares with the government. It makes an explicit reference to respecting the sector’s independence. Under the terms of this agreement the government must undertake: to recognise and support the independence of the sector, including its right within the law to campaign, to comment on government policy, and to challenge that policy, irrespective of any funding relationship that might exist, and to determine and manage its own affairs.

The significance of the Compact is that it has established agreement on what constitutes good practice, for example in terms of funding and procurement, policy consultation and volunteering. Voluntary organizations can make use of the Compact to hold statutory partners to account. But its value is dependent on the extent to which it is known and used. Both sides agree that though the agreement is over 10 years old, there is still a long way to go before Compact commitments are routinely put into practice and become part of the culture of government. The most used of the five Compact Codes of Practice on funding and procurement says that government should consult about programme design, recognize it is legitimate for voluntary organizations to include overhead costs when they provide a particular service, make payments in advance of expenditure, be proportionate in monitoring requirements and give enough notice of the end of grants or contracts. But the most common complaints from the sector are that: payments are in arrears; there are disproportionate contract terms and conditions; there is a lack of notice of the end of contracts; and there is poor consultation. The problem is that even after 10 years there is limited awareness of the Compact and therefore it is insufficiently used to tackle poor practice, in spite of the establishment of the Compact Commissioner in 2007 to promote the Compact and ensure that it is upheld. That is partly because   Available at: www.thecompact.org.uk/files/140472/FileName/TheCompact.pdf (last visited January 2010).   The Compact on Relations between Government and the Voluntary and Community Sector (London: Compact Working Group and Home Office, 1998). See also: Volunteering: Compact Code of Good Practice (Birmingham: Commission for the Compact, 2003); Black and Minority Ethnic Voluntary and Community Sector Organizations Code (Birmingham: Commission for the Compact, 2001); and Compact Code of Good Practice and Community Groups (Birmingham: Commission for the Compact, 2003). All available at: www. thecompact.org.uk/information/100023/publications/#thecompact (last visited January 2010).   Funding and Procurement Compact Code of Good Practice (Birmingham: Commission for the Compact, 2005), see: www.thecompact.org.uk/shared_asp_files/GFSR.asp?NodeID=100322 (last visited January 2010).

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of the length and complexity of the Compact and its codes, and partly because the implementation of local Compacts are rarely resourced and therefore rarely promoted. The NCVO is now working with government, the Compact Commissioner and the voluntary sector to ‘refresh’ the Compact. The Compact and its codes are being rewritten into a single, clearer document. The Commission for the Compact will, it is hoped, be given legal powers of investigation and more effort will go into increasing awareness of its provisions. However, it will remain a voluntary agreement. Working with Government What is, of course, more controversial in all cultures is not how the sector and government work in partnership, but the extent to which charities and voluntary organizations can influence and/or openly criticize government policy and practice. The current UK government has said voluntary organizations should, where necessary, ‘bite the hand that feeds them’, though in reality few parts of government are keen to be criticized. The relationship between the voluntary sector and the state has changed significantly in this regard since 1997 and the election of a Labour government. Over the last 12 years the government has become much more open and willing to listen to and debate issues with the voluntary sector than the previous Conservative administration. This is partly because many in the voluntary sector had already developed a good working relationship with the then Labour opposition in the 1990s, helping them develop their policies. Many in the sector became ministers, members of parliament (MPs) and special advisers in the new government and maintained good contacts with ex-colleagues in voluntary organizations. In response to this closer relationship with government, there has been a dramatic growth in the scope, range and investment that charities and voluntary organizations have committed to campaigning activities. It is now through the voluntary sector that much civil engagement takes place, with charity memberships often bigger than those of political parties. It is voluntary sector campaigning that is at the heart of public debate and that is setting the public agenda in many key areas, such as the high-profile UK campaigns ‘Make Poverty History’ and the ‘Full Stop’ campaign against child abuse. The voluntary sector has become far more entangled with the government than ever before and, as a consequence, both have a much more complex set of relationships to manage. While it is still common to talk of taking ‘insider’ or ‘outsider’ approaches to campaigning, that typology masks a much more complex reality. Government has increasingly talked about the sector needing to campaign to ‘create the policy space’ into which government can respond and move. Increasingly, campaigns are becoming the weathervane for testing popular opinion, with government able to judge the resonance an issue has with the public. They can open up the room for government ministers to justify spending bids to colleagues and sometimes to a more sceptical general public. In turn, this challenges the sector into taking a more thoughtful approach. It is not enough any more, as it was with the previous Conservative government, to simply be oppositional. Good voluntary sector lobbyists now need to provide solutions as well as identifying the problem to make change happen.

  For more information on these campaigns see: www.makepovertyhistory.org and www.nspcc.org.uk (both last visited January 2010).

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Government itself has begun to embrace voluntary sector campaigning. Much of the early focus of the Office of the Third Sector10 (OTS) has been on the critical role of the sector in encouraging disadvantaged groups to have a greater voice in policy formulation and delivery of services. Clearly motivated by the public’s disengagement with and distrust of formal structures of power, the OTS is actively looking at how to engage and support the sector in giving voice to public concerns through its campaigning. This has offered unprecedented opportunities for the sector to develop a new dialogue and resources that gives a voice where there has not been one before. This is especially important for those groups that have little profile because their issues, such as supporting refugees and ex-offenders, resonate less with the public and charity donors alike. However, as mentioned earlier, there are obvious dangers in the sector becoming institutionalized within government. The most commonly expressed view is that a powerful funder such as government can prevent legitimate campaigning, lobbying and advocacy either directly or indirectly. Whilst there is little evidence of explicit action by government to prevent campaigning, some voluntary organizations fear or lack the confidence to test government commitments particularly at the local level and, as a result, they effectively self-censor. It is vital that voluntary sector campaigning is seen to retain its independence and dissatisfaction with the status quo and to deliver change. Otherwise it will no longer maintain its credibility with the public. Successful Influencing: The Essentials As the environment in which campaigning takes place becomes increasingly complex, when to campaign and what approach to use now makes all the difference to success. So what is important in influencing government? Many campaigners like to follow their gut instinct, seize opportunities as they arise and adapt tactics as they go. Many of the most successful influencing campaigns are driven by people who are creative and have an intuitive grasp of the best ways to effect change. However, to be successful, government influencing also needs to be focused and built on a thorough understanding of policymaking and political processes. There are some essentials in influencing government and bringing about change. To be successful in influencing government, voluntary sector organizations must be clear about and focused on what they are trying to change, who they should influence and how this could best be achieved. This approach requires five key steps. First, to target their campaigns effectively and efficiently, campaigners must have a good understanding of the world in which they are working and the political dynamics of the situation they wish to influence. One of the criticisms frequently levelled at voluntary sector organizations by politicians and civil servants in the UK is that they are very good at publicizing the terrible state of the world but they are often unclear about what they want done to put it right. They also complain that voluntary organizations focused on the needs of their beneficiaries never have to confront the difficult trade-offs that politicians face, nor decide what should be given less priority. Policy-makers need specifics – they need to know exactly what causes the problem, have clear evidence of its impact and ideally be presented with tried-and-tested solutions that will make a substantial impact for the organization’s beneficiaries. A lot of resources and effort will be wasted if the campaign fails to identify solutions that are achievable within the political context and the policy timetable that it is operating in. 10  For more details of their activities see: www.cabinetoffice.gov.uk/third_sector (last visited January 2010).

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Second, there must be a strategy identifying the target of the campaign – the minister or official who needs to make changes for the desired solution to be achieved – and identifying the best ways of influencing them, working through as many influence routes as possible. It will help if the campaign aim is clear and specific and can be communicated easily and succinctly to anyone who wants to know about it, such as politicians, the media and the voluntary organization’s own supporters. But change will not happen just because the organization occupies the moral high ground and can argue its case eloquently. The voluntary organization must also understand what motivates or deters the key decision-makers in relation to the issue the organization is focused on; otherwise it would restrict its chances of achieving positive change. For example, is the issue something the government might consider in the current political context and could it be framed in a way that fits their planned legislative programme? Politicians are always reluctant to go against their own political party and officials are unwilling to argue against the agreed government position. The voluntary organization also needs to identify everyone who may affect the policy process related to its issue and make sure they take notice of its campaign rather than the other demands brought to their attention. A key step is to work out who influences its target and how. For example, in the UK there are continual informal meetings between MPs (especially government MPs) and ministers and much of the ‘real’ politics in parliament happens when MPs have tea or go to vote. As a result of these informal meetings, a voluntary organization will often seek to engage insiders as allies to help it plan and exploit unofficial influence routes. The media also plays a crucial role in putting issues on the government’s agenda, so getting coverage in newspapers and on television is another way to influence decision-makers in the UK. Third, there must be effective planning so all those working on the campaign are clear about the broad aim and know the short, medium and longer term campaign objectives, to ensure that there is always a coherent approach. People need to know what is happening and when, and what their precise role is in achieving the objectives. Good communication and clear roles are particularly important if the voluntary organization is working in partnership. Good planning can help sustain a campaign effectively. If the objectives are clear and measurable, they can identify what needs to happen in a particular timeframe and can demonstrate what progress is being made. This allows the campaign to be reviewed effectively and, if necessary, to change tactics or revise objectives. Fourth, there needs to be a mix of campaign tactics to hit home a core and well-focused message to government decision-makers in powerful and compelling ways – decisions need to be taken about what tools to use, when to use them and how to focus resources. For example, should the focus be on ‘insider’ influencing of civil servants through detailed, evidence-based policy arguments presented by experts, or on an ‘outsider’ public campaign directed at politicians that engages members of the public. Or should the focus be on a bit of both? When a voluntary organization seeks to influence the UK government, a direct lobbying route is often the first step. The voluntary organization will make contact directly with the key target – usually a senior government official or minister through the relevant government department. As has been mentioned previously, this approach requires strong evidence of the impact of the problem and possible solutions to be presented to the decision-maker by the organization’s senior staff. Particularly with ministers, showing them what a voluntary organization or charity does and the impact it makes for its beneficiaries brings the case to life and can make a real impact. Often in the UK this also involves convincing ministers that if they accept the organization’s demand it will help them get re-elected. The danger of this is always of being ‘captured’ by government and being drawn into lengthy discussions that result in the organization’s silence and little progress being made. It is vital that campaigners fiercely maintain their independence and remain focused on achieving change; otherwise the voluntary organization will lose the support of its beneficiaries

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and the public. If being on the ‘inside track’ and working constructively with government does not bring the necessary results, then the voluntary organization must use other tactics. If direct lobbying has not worked, then indirect lobbying can. Indirect lobbying involves mobilizing other people, such as influential supporters or the public, to pressurize ministers. In the case of a UK children’s charity, the National Society for the Prevention of Cruelty to Children, this often worked well – thousands of its supporters were encouraged to send printed postcards or preferably personal letters to key ministers or chief executives of local authorities to argue for change, such as establishing stronger child protection teams at the national or local level. In the UK voluntary sector lobbyists are in an advantageous position in that locally elected members of parliament are keen to maintain their position and are therefore acutely aware of local public opinion. A member of parliament is dependent on his or her constituents’ votes to get elected and is elected to represent their views. So MPs can be persuaded to act on an issue they would otherwise ignore by using local people in the MP’s constituency to persuade them to support a charity’s case. This can build useful support. If lobbying does not work, then public campaigning can be an option, but it can consume vast amounts of time and physical resources. Only the largest and best funded voluntary organizations in the UK can afford to do so. It is very easy for parliamentarians and government officials to ignore actions, such as a march through the streets, if they are hidden away in their offices. And of course voluntary organizations in the UK need to ensure that they stay within the law – demonstrations and protest marches that seek to show levels of concern are legal, but direct pressure through blockades, destruction of property and violence are not and would alienate public and government opinion. Therefore, UK voluntary organizations usually focus on a range of campaign tools: first and foremost, by providing reliable and pertinent information to key players in a format that is useful to them in a timely manner; second, by using icons such as badges and ribbons to raise public awareness and generate public support; third, by using leverage to maximize the impact of their efforts, for example by recruiting celebrities, experts and/or members of parliament to represent their cause; and fourth, once national or local authorities have made commitments in principle, voluntary organizations are in a position to remind them to keep to their word by encouraging the public to articulate their feelings to elected representatives. For example, they can do this by organizing a lobby of parliament or through a letter and petition campaign to officials and ministers. Doing the unexpected can help to get a campaign noticed and get the issue moved up the political agenda. For example, one of the campaigns that most worried the current UK government was in September 2000, when a group of road hauliers protesting at the cost of fuel blockaded British oil refineries, bringing the supply of fuel to forecourts to a halt. Parts of the UK were brought to a standstill and the government was put under enormous pressure to accede to their demands. Ultimately the government held firm, and the protests fizzled out. But the lesson is that, wherever possible, a campaign should go outside the experience of the people the organization is targeting. Finding an original format, or an unexpected choice of messenger (a celebrity endorsement, a well-known academic, a business executive, or other state leaders) can attract attention and maybe strengthen a case that otherwise might be ignored. But of course government decision-makers are constantly inundated with demands and calls on their time. So how does a voluntary organization get government ministers or officials to change their minds? By shouting at them? Telling them they are ‘evil’? Or by persuading them that it is in their best interests to adopt the campaign demands? Making the moral case is not enough. To reiterate, an organization needs to ensure that any campaign is credible and that practical solutions are available.

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Politically, the influencing campaign has to offer decision-makers a win from which they can get some reflected glory. A voluntary organization may need to reassure decision-makers who are naturally risk averse by, for example, citing examples of where its demands have been carried out elsewhere with good results (perhaps in other countries), or by producing a line-up of supporters, in particular experts and academics, to back its cause. The voluntary organization may also have to persuade decision-makers that its campaign demands are the lesser of two evils and that if they ignore them the fallout could be politically damaging to them and their colleagues. This may involve using a range of ‘what if …’ scenarios. For example, if local government does not install road safety measures in a specific urban area, the voluntary organization’s campaign network will work with others to develop a monitoring system for all future accidents in that area. Every year the network will publicize the findings – and if they are bad, the blame will come back very firmly and publicly to the decision-maker. Fifth and finally, the impact of the campaign – what went right and what went wrong – should be evaluated and monitored during the campaign so the voluntary organization can learn from its mistakes and experiences and improve the way it and others exert influence in the future. This should include looking at how it did things as well as the outcomes it achieved. So how do voluntary organizations go about achieving success in influencing government in practice? The key principles are demonstrated in the following two UK campaign examples: one to ban smoking in public places by Action on Smoking and Health (ASH) and the other to abolish vouchers for asylum seekers by a coalition of the Refugee Council, Oxfam and a trade union. The Ban Smoking Campaign The objective of the ASH campaign was to secure a ban on smoking in public places in England and to persuade the government to introduce comprehensive smoke-free legislation. Campaigners had pushed for many years for measures to protect the public from passive smoking and had secured increasing public support for the issue. However, even though there was strong and compelling evidence that passive smoking killed, the new Labour government in 1997 was committed to a voluntary approach to tackle smoking and instead proposed tax increases on tobacco, antismuggling measures, a ban on advertising and the setting up of Stop Smoking Services.11 In 2003, as little progress had been made, ASH reframed their arguments to focus on health and safety at work for staff in the hospitality industry and put together a coalition of health professionals, environmental health experts and trade unions with the single aim of achieving legislation to stop smoking in all enclosed work areas. Agreement among coalition members to this simple and direct message was crucial. ASH knew that there was public support for smoke-free environments and in 2004 it commissioned a poll that showed a majority of the public supported all enclosed public places being smoke-free, except for public houses, bars and clubs where support was around 50 per cent. However, the government and members of parliament were split on the issue and were unconvinced that they would not lose public support by introducing a ban. Increasingly, the coalition against the ban became divided. ASH used doctors effectively to argue the case for a ban and demonstrate the impact of smoking on their patients and used every opportunity to raise the issue in the media. They were helped by government decisions in other parts of UK – in the Irish Republic and Scotland – to ban 11  See: http://smokefree.nhs.uk (last visited January 2010). The UK government set up a comprehensive National Health Service (NHS) Stop Smoking Service. Services are available across the NHS in England, providing counselling and support to smokers wanting to quit, complementing the use of stop smoking aids, Nicotine Replacement Therapy (NRT) and bupropion (Zyban).

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smoking in public places. This made their campaign unstoppable. They secured a ban through a free, unwhipped vote in parliament in February 2006. The reason for their success was: a clear and understandable aim; a strong evidence base; the decision to reframe the argument; an effective coalition of experts; and the increasing support of public opinion, which convinced politicians to support their case. Asylum Vouchers Campaign Another interesting example is the asylum vouchers campaign. A coalition of the Refugee Council (a largely government established and funded charitable organization), Oxfam (the independent, international charity working on poverty related issues) and the Transport and General Workers’ Union (one of the UK’s largest trade unions) came together to abolish the national voucher scheme for asylum seekers, which was introduced by the UK government in April 2000. Under the scheme, asylum seekers qualified for 70–80 per cent of income support benefit levels, but received the vast majority of their benefit not in cash but in food vouchers redeemable only in certain large supermarkets. The problem the coalition faced was that the Labour government wanted to be seen to be tough on asylum seekers, so any campaign appearing to be soft on migrants would be dismissed. The media was also unfriendly to causes related to refugees, making positive coverage difficult to achieve. However, there was growing evidence that the vouchers scheme was an administratively flawed policy. It was expensive and difficult to administer and did not work well. It also demeaned asylum seekers, providing them with less benefit than indigenous benefit recipients and meant that local businesses lost sales. The scheme also raised ethical issues as the government was in effect subsidizing large supermarket chains. Of particular importance was that the hoped-for reduction in asylum seeker numbers as a result of this tough stance did not occur. The campaign succeeded in scrapping the vouchers in April 2002 for a number of reasons. There was a clear objective – to abolish the vouchers. The unlikely partnership of the three very different organizations added credibility to the campaign. Timely and robust research demonstrated clear evidence of hardship and discrimination. There were excellent, trusting relationships between the lead people in each organization, making convoluted formal agreements unnecessary. The campaign benefited from the close links of the general secretary of the trade union to senior Labour ministers and it built a very broad network of support, including the Local Government Association, the British Medical Association and children’s organizations. Finally, the campaigners had an excellent sense of timing and were willing to negotiate, holding off from campaigning during elections and resuming afterwards, to avoid alienating the government. So, in short, effective campaign organizations have clarity of purpose, they understand why they are doing what they are doing and match their aspirations to their resources. They are fast moving and agile, non-bureaucratic, foster leadership and innovation and support risk-taking. Finally, they are passionate about what they do. Legitimacy and Credibility The key factors that can strengthen the voluntary organization’s authority with government decision-makers and are vital to its ability to influence them are legitimacy and credibility. An organization needs to demonstrate its right to speak on an issue and demonstrate that its voice is trusted and respected.

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A voluntary organization’s legitimacy can come from a range of sources, such as: a result of personal, direct, practical experience on the ground; through its ability to act as an expert on the issue; and from the strength of its membership and supporters. Involving beneficiaries who can talk about how the issue affects them, for example how their disability affects their life, and placing them at the heart of campaigning activities, can strengthen the moral case and increase the impact of the campaign. Credibility comes from decision-makers and the public seeing the organization as providing reliable information that is both expert and trustworthy. Trust and respect come from a track record of delivery built up over time and proof that what the organization does to help its beneficiaries makes a real difference and is cost effective. It can also come from: the quality of the information the voluntary organization provides; policy analysis and expert knowledge; the representative nature of its relationship with its beneficiaries; openness about who it is accountable to; and its perceived independence and objectivity. If the voluntary organization has a credible reputation, it is vital to protect it, as it is hard to regain respect if a single, but catastrophic, error of judgement is made. Collaboration with other organizations will also almost always strengthen the campaign’s voice and impact by increasing resources, the supporter base and profile, thereby improving the prospects for raising public awareness. But it can prove difficult – all participants need to have a common understanding of the purpose and the parameters of the joint campaign activity. In the UK, both major political parties see the relationship between the voluntary sector and the state as broadly positive. However, there are areas of concern where the voluntary sector has had to act with caution in relation to campaigning and influencing. Charities and voluntary organizations have had to accept that greater access to government over the last decade does not necessarily equate to greater influence and impact. Some complain that they are in effect used as unpaid consultants feeding into government policy-making, with little control or impact on the policy outcomes. The challenge, particularly for small organizations limited by scarce resources, has been to balance working on the inside track and participating in government consultations and committees with outsider tactics – putting pressure on government through challenging, proactive campaigns. They must be aware of the real danger of being in effect co-opted and silenced by government. The crux of all this is that campaigners must be resilient and not be seduced by all the attention or by cosy relationships with government, and ensure that they are focused on delivering the social and political change they want to achieve to improve people’s lives. Surviving with Limited Resources Even with committed supporters and the benefits of new technology, campaigns and influencing require significant resources. So how do you maximize resources, especially in a recession, to ensure impact and bring about change? In the UK, the NCVO has offered a range of advice to the voluntary sector – simple steps that any voluntary organization can take to ensure its sustainability in difficult economic times. A good starting point is to ensure that the staff and trustees of a voluntary organization are clear about what it is best at, as well as which of its activities and influencing contribute most to its mission. This should include being aware that recession might well change the pattern of demand for its advice and services, or create new campaigning priorities. So, if an activity has to be cut or deferred, then it should have a clear basis and strategy for doing so. In turbulent times, organizations often have to act quickly and decisively. Having good systems in place for receiving information about financial performance – income, cash flow and costs – will

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make all the difference. An organization should always consider ways to reduce costs, such as making more effective use of technology and using bulk purchasing where it can. A voluntary organization may also have to consider doing things that it would not normally do in order to ensure survival. Diversifying income streams, looking at different methods of fundraising, working in collaboration and merging are some of the options worth looking at. These are things most organizations should be aware of in any climate, so if a recession forces it to consider them in more detail, this could be a positive step. Staff and volunteers might be anxious about what is happening to the organization. Transparent and consistent messages about how the organization is performing will help to alleviate any worries. It is important to recognize the value of people; retaining and motivating the organization’s best people is critical. That should include continuing to invest in their training and development. Finally, leaders have to be realists and optimists. A recession is a great test of an organization’s ability to balance these skills. Many managers in the charitable sector are experts at this and by making the most of opportunities, their organizations will continue to make a huge contribution to society at a time when the need for the sector’s services is greater than ever. For example in February 2009, with evidence of hardship in the sector, the NCVO and other voluntary organizations, supported by the Office of the Third Sector, successfully lobbied the UK government for over £40 million of support. This was to help volunteers, charities and social enterprises face the economic downturn and meet people’s increasing demands on them for help. This included the establishment of a ‘Support Fund’ to give grants to small and medium-sized voluntary organizations that provide services such as skills development and debt and family breakdown advice in the most deprived areas and a ‘Modernization Fund’ to help voluntary sector organizations access specialist services so that they could merge and work in partnership. There was also investment in a volunteering brokerage scheme for unemployed people and in a school and learning programme to support social entrepreneurs. Working with Volunteers One of the benefits of the recession in the UK has been an increase in the number of people available and willing to volunteer their services to voluntary and community organizations. So how should voluntary organizations make the best use of their volunteers? A key starting point, and perhaps a rather obvious one, is to identify how the voluntary organization intends to engage volunteers in its organization. So a key question to ask is: is the organization mostly volunteer-led, or is it looking for volunteers to only help out with certain tasks? A voluntary organization needs to be clear about what it wants volunteers to do and, unless it is a very small organization where everything is done face-to-face, it needs to write it down in a volunteer agreement. This will ensure that, like employees, volunteers know what they can expect from the organization and what the organization expects from them. The role a voluntary organization asks a volunteer to undertake should be reviewed on a regular basis with the volunteer. On a practical note, it is important to look at space and equipment. Volunteers will need adequate physical space to work in and may need access to telephones, computers and other equipment depending on what their actual role will be. It can cause friction to introduce volunteers to already cramped accommodation. While volunteers give their time for free, it is unfair to expect them to be left out-of-pocket for any volunteering activity they carry out for the organization. Therefore, it is good practice to have a budget so that you can reimburse their expenses. It is also good practice to ensure volunteers know

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about the support and supervision arrangements that he or she will receive – including providing an induction where they meet other staff and volunteers and training that the volunteer will need to perform their role. With the exception of only the smallest charities, every organization will need one person who is the main volunteer coordinator. In the UK, volunteers do not have any of the legal rights that employees of charities have. But the sector has learned that it still needs to be as careful in its recruitment and treatment of volunteers as it is with paid staff. Volunteers who feel that they are poorly treated will not stay around for very long. They can add much needed resources and credibility to voluntary organizations and they deserve to be treated well. Conclusion: What Does the Future Hold? What does the future hold for the voluntary sector? With the recession and the prospect of a new government with a different political perspective being elected in May 2010, the charitable sector faces significant challenges. All political parties in the UK see the voluntary sector as a key player in helping them achieve their political and policy objectives for public service reform and delivery, and in relation to citizen engagement at the local level. However, the recession will mean an even tighter funding environment and will result in significant cutbacks in public spending. This will affect the voluntary and community sector no matter which political party is next elected to lead the government. A Conservative government is likely to cut deeper and sooner than a Labour government – and may well choose to contract with the private sector rather than with the voluntary sector. It could also prove to be less sympathetic to the idea of charities campaigning, particularly if they campaign in opposition to some of its policies. Therefore, in the run up to the general election, the NCVO is focusing on maintaining good links with senior officials in key government departments. Examples of this include maintaining links with the Treasury, the department responsible for communities and local government and with the OTS, to persuade them that they need to continue to work with the charitable sector. The NCVO is also building good relationships with all the political parties in the UK but, as was the case before 1997, it is concentrating on building effective links with the official opposition – with key spokespeople on the Conservative frontbench who may well be government ministers in a year’s time. This includes helping them develop their policies on the sector, responding to and criticizing, if necessary, their half-formulated policy ideas and, most importantly, seeking to demonstrate to them that a strong and vibrant civil society is essential to meeting the challenges a future government will face. As part of that influencing role, the NCVO is working with its members to ensure that the value that the sector brings is demonstrated in concrete ways. To counter the impact of funding cutbacks, the voluntary sector will need to be hardheaded in its approach and be able to quantify its benefit to the community and the government in measurable ways. It is a challenge that only some of the larger charities in the UK have successfully addressed. But it will be vital in continuing to demonstrate to any government that the sector has an ongoing and significant role to play in delivering people-focused services that meet need, in campaigning and in providing advocacy to bring about change. It will also be necessary for the sector to demonstrate it will be effective in strengthening community cohesion through generating debate about intractable problems, such as climate change and a rapidly ageing population. In seeking to maintain the interest and support of government in more austere times, the voluntary sector must not let its independence be compromised. It is for the sector to identify and

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maximize its own operating space, not for the state to try and define it. Otherwise, the voluntary sector’s reason for existing – to create a better, fairer and more open society by inspiring people to make a positive difference to their communities – will disappear. That would be a tragedy not just for civil society, but for the most disadvantaged and dispossessed in the wider world.

Chapter 9

Creating an Enabling Environment for NGOs in Central and Eastern Europe Nilda Bullain

Introduction The concept of civil society was rediscovered in the second half of the twentieth century in the context of Central and Eastern European (CEE) countries. Yet the role of civil society is different in the newly democratic States than under the former Soviet regime. This role is very important in the democratic transition but its potential has not been fully developed or utilized. Special challenges have emerged in the cooperation between non-governmental organizations (NGOs) and government, as governments started to recognize the role of NGOs and introduced innovative financing mechanisms to support them. The relationship between NGOs and their communities/ constituencies or society at large is still evolving. A parallel process of NGO capacity building and the development of a more enabling environment is needed to ensure that society benefits from the full potential of NGOs. The European Center for Not-for-Profit Law (ECNL) is a public benefit organization working internationally, which promotes the strengthening of a supportive policy and legal environment for civil society in Europe and beyond. The ECNL used to be the Central and Eastern European (CEE) branch office of the International Center for Not-for-Profit Law (ICNL), which pursues the same mission at a global level. In 2003, the ECNL became an autonomous European legal entity, registered in Budapest, Hungary, and it has remained affiliated with the ICNL. The ECNL provides cutting-edge expertise in initiatives regarding regulation of civil society, including association and foundation law, public financing, philanthropy, volunteering, public participation and partnerships between the State and civil society among others. It shares alternative regulatory models, lessons learnt and experiences across borders, and provides comparative information to assist partners in adapting or creating new solutions appropriate to their environments. The ECNL has successfully undertaken projects for the European Commission, the Council of Europe, the World Bank, USAID, UNDP, UN Volunteers Programme and a number of private donors. This chapter will build on over 10 years of experience of working with civil society and the non-profit sector in the region, primarily from the point of view of creating an enabling legal-fiscal environment for civil society. Included is also the personal experience of the author, who lived under the socialist regime in Hungary and has been involved in grassroots civil society work since the mid-1980s.

  www.ecnl.org (last visited February 2010).

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Definitions Central and Eastern Europe The definition of Central and Eastern Europe (CEE) is not clear-cut, however it traditionally includes at least three major geo-political regions: the so-called Visegrad Four (V4) countries (Poland, Czech Republic, Slovakia, Hungary); the Baltics (Estonia, Lithuania, Latvia); and the Balkans (Bulgaria, Romania and the former Yugoslav States). Another, more recent way of looking at the region is to distinguish between the new EU member States (V4, Baltics, Slovenia, Romania, Bulgaria) and the so-called ‘Western-Balkans’ (Croatia, Serbia, Montenegro, Kosovo, Bosnia and Hercegovina, Macedonia, Albania). This chapter will cite examples from most countries mentioned here, though it will generally focus on the new EU member States and, especially, the V4. Civil Society Civil society is defined in many ways by the relevant literature. Often it is used as a synonym for the totality of its organizations, i.e. the non-profit sector or the non-governmental organization (NGO) sector (see below). However, there is a general agreement that civil society could be defined as something more than an aggregate of organizations. The London School of Economics (LSE) provides a useful ‘working definition’: Civil society refers to the arena of uncoerced collective action around shared interests, purposes and values. In theory, its institutional forms are distinct from those of the state, family and market, though in practice, the boundaries between state, civil society, family and market are often complex, blurred and negotiated. Civil society commonly embraces a diversity of spaces, actors and institutional forms, varying in their degree of formality, autonomy and power. Civil societies are often populated by organizations such as registered charities, development non-governmental organizations, community groups, women’s organizations, faith-based organizations, professional associations, trade unions, self-help groups, social movements, business associations, coalitions and advocacy groups.

In the CEE region, it is important to also shed light on a specific perspective in understanding civil society. For lack of a better phrase, it could be called a ‘political’ perspective. This is not to be understood in the sense of party-politics, but in the sense of the ‘homo politicus’, the engagement of an individual in shaping the decisions that affect him/her and, more generally, having an active role in shaping their own lives. In this sense, by civil society we mean the range of activities by citizens, whether performed on their own or jointly with others, which are deliberate and based on their free will, and the purpose of which is the improvement of their communities or society as a whole – i.e. not to make a profit or to acquire political power. Civil society is therefore the totality of conscious, responsible citizens who take action and organize in order to help each other or to advocate for their interests. This understanding goes beyond the negative definition of ‘nongovernmental’ and ‘non-profit’ and the residual positioning of acting ‘in between’ family, the State and the market. Rather, it relates the concept to ‘citizenship’, or a conscious understanding of rights and responsibilities in a political community. This aspect of the meaning is especially important

  www.lse.ac.uk/collections/CCS/what_is_civil_society.htm (last visited November 2010).

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in the CEE region, where history distorted the meaning of several words related to civil society, including, for example, community, volunteering, social organization. NGOs Civil society may take shape in a myriad of spontaneous and organized, informal and formal actions. NGOs in this chapter mean all formally organized forms of citizen action and participation. As can be seen from the LSE definition above, these can exist in many legal forms, functions and levels. In regard to the topic of this chapter, namely the creation of an enabling environment for civil society, we focus on the typical forms of association in the CEE region, including mainly associations and foundations, but also other legal forms available in the CEE countries, e.g. public benefit companies, simple associations, non-profit service provider institutions, etc. We adopt the definitional elements used by the Johns Hopkins comparative survey: 1. 2. 3. 4.

institutionalized; non-profit making; self-governing; voluntary organizations.

Development of Civil Society and NGOs in CEE Since the Second World War The Underground Period During most of the 40 years of Soviet rule in the CEE region, from 1948–88, there was an invisible, clandestine opposition in existence. There were only a few occasions – the 1956 revolution in Hungary, the 1968 uprising in Prague, the Polish Solidarity movement in the early 1980s – when opposition to the Soviet communist regime became open and visible, and these attempts at regime change were oppressed by force. However, underground movements existed in every country, whether connected to the church (e.g. underground Catholic movements), to the so-called intelligentsia or dissident movement (like the Charter 77 in Czechoslovakia), or the trade unions (like the Solidarity movement in Poland). In the literature referring to this period, these movements are often referred to as manifestations of civil society, which doubtlessly played a role in the eventual fall of the Soviet regime. During this underground period, the main role and identity of civil society was that of the opposition: to try to preserve, create and maintain an alternative to the official State version of the world, including history and philosophy; music and literature; and economics and trade, but also things as mundane as jeans, chocolates or perfumes, which were not allowed to be imported from the ‘imperialistic’ West. These so-called democratic opposition movements played an important role in safeguarding and expanding civic space, i.e. the space for civil society in the political sense (citizens who make the choice of acting on their own will in a dictatorial system). This is what István Bibó, a renowned Hungarian writer-philosopher called ‘the small circles of freedom’, which could be regarded as the core of civil society during oppression. Its main functions included: providing alternative education   Lester M. Salamon, S. Wojciech Sokolowski and Regina List (eds), Global Civil Society: An Overview (Baltimore: The Johns Hopkins Center for Civil Society Studies, 2003).   See for example: www.foreignaffairs.com/articles/50780/michael-ignatieff/on-civil-society-why-east ern-europe-s-revolutions-could-succeed (last visited February 2010).

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and disseminating underground information (the so-called ‘samizdat’), i.e. books and articles that were forbidden or simply not available; protecting dissidents and the underground movement (e.g. speaking the so-called ‘flower-language’); promoting self-reliance (e.g. maintaining the so-called ‘second economy’, which was, in essence, a black market); and to educate and bring to the surface alternative political forces (e.g. the Solidarity movement). Already during this opposition period, NGO-type entities emerged, which could not be registered but acted in the same way as an official non-profit organization. One example is the SZETA (Fund for the Support of the Poor), the first organization that was created outside the ranks of the government to help the poor in Hungary. It was founded and joined by a group of intellectuals who did sociological research and saw the level of deprivation in many parts of the country. It also served as the cradle of the social policy profession and led to the introduction of social policy and social work in Hungarian universities in the late 1980s. But when it was founded, officially there was ‘no poverty’ in Hungary and so there was no official need for social policy, social work or an organization like the SZETA. Its leaders were persecuted and their work became symbolic of the ‘archetype’ of a true civil society organization: that which recognizes the gaps in State policies and fights to address the real needs in society. As we will see later, this concept of a ‘fighter’ NGO was not easy to change. It has to be noted that a whole range of ‘official’ NGOs also existed throughout the period of the communist and socialist system. These NGOs were approved by the Socialist Party and typically served as the official union of certain professions or parts of the population. There was always only one NGO in one field, e.g. the Women’s Federation, the Association of Journalists, the Union of Pensioners, the National Society of the Disabled, etc. It was unimaginable and out of the question that there would be a need for more than one such organization in a country. As a result, another clandestine part of society, the ‘parallel’ associations of those who did not want to join the State structure, slowly built up. The most outstanding example of this is the Solidarity movement, the first non-communist trade union that was organized in Poland, founded in Gdansk, in 1980. Agents of Change During the so-called Velvet revolutions, in 1989–90, civil society came across as the ‘people’s power’: demonstrations and mass protests were held everywhere from the building site of the dam on the Danube between Hungary and Slovakia, to the Freedom Square of Timisoara (Romania), and of course, the Berlin Wall, which were televised and their effect was infectious. It seemed as though all the steam that was boiling under the lid over the past decades was let out and people were pouring onto the streets to express their dissatisfaction and their willingness to change the situation. Except for in Romania, these demonstrations led to a peaceful change; often the former socialist leaders remained in power or were re-elected into power within just a few years. It can be debated as to what extent ‘the people’ actually contributed to the political change or how much they were simply taking advantage of the weakened regimes to finally freely express their anger and disagreement. Some critics point to several other factors, such as the danger of economic collapse, the shifts in geo-political constellation or the unsustainability of the Cold War, all of which make valid and important arguments in which civil society is of secondary importance in terms of its influence on the collapse of the system. But it has to be acknowledged that the fear and recognition that only another armed intervention could ‘solidify’ the public mood made socialist leaders opt for the peaceful solution of stepping down (and where they did not, they were executed, i.e. Nicolae Ceauşescu, the Romanian President). In that sense, people had the power to determine the course of history and, during this time, those living in that part of the world had

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a sense of exhilarating liberation and control over their own destiny that not everyone has the opportunity to experience in their lifetime. Unfortunately, the decades and perhaps centuries of oppression, left a deeper mark on their souls, causing the exhilaration to pass quickly and the population sank back into a passive mode in which civil society has had a hard time finding its place. Early Transition In the four years between 1990 and 1994, during the early stage of the transition, new political leadership was needed and where else could it have come from other than civil society? Thus, Lech Valesa, the leader of the Solidarity movement, was voted as the first democratically elected President of Poland; Václav Havel, the famous dissident writer, became the President of the Czech Republic; and Árpád Göncz, also an emblematic figure of the democratic opposition, became the President of Hungary. This transitioning into power is a classic role of underground opposition leaders, whose aim is to change the political regime. It happened not only in the Visegrad countries, but also more recently in the Balkans, where renowned NGO leaders and activists took the place of the ousted war-criminal heads of State. This transition stage, however, can cause some confusion as to the role of civil society and NGOs. Thus far, civil society had provided the governments’ opposition. However, now civil society leaders were the ones in power and, as democratically elected leaders, they felt there was no need for an opposition outside their parliaments. At least this is the logic that was often followed by the first generation of democratic government leaders and so there emerged a gap of understanding in the role of any NGO movement that would take the place of the former ‘opposition’. It was not unusual, therefore, that during this period of transition, the issue of NGOs and an enabling legal framework for civil society was marginalized by the politicians. It is useful to point out that there has to be a distinction made between, on the one hand, the constitutional rights and freedoms that were enshrined in the new constitutions everywhere, such as the freedom of speech, freedom of assembly and freedom of association, among others; and, on the other hand, the elaboration of a legal framework that shall ‘operationalize’ this right, e.g. prescribe the principles and procedures based on which NGOs can register, operate, raise funds, recruit volunteers, advocate and give assistance to the needy. Initially, the perception was that it was enough to ensure the freedom of association – in itself an immense step ahead compared to the previous regime – and this meant that there was no need to spend too much time legislating how NGOs should be run. This perception was reinforced by the belief that since NGOs are independent from the State, the less they are regulated (and thereby, restricted, as was the general understanding of the role of law based on the communist past) by the legal framework the better. However, it soon turned out that this was not entirely true. The liberal framework of freedom of association led to a boom in the numbers of NGOs, but also to an increasing number of abuses. Since this area was not a priority concern of politicians, no one concerned themselves with it, e.g. harmonizing tax legislation with the few provisions concerning associations and foundations in the basic laws. Therefore, many new businesses were able to assume a non-profit form – foundation or association – merely to avoid taxation. Famously, the first ever cable TV company in Hungary was set up as a foundation where the subscribers paid a monthly donation to the company, whose income was then tax free. Such abuse is prone to happen everywhere where there is not enough attention paid to NGO law; e.g. Cyprus, one of the new member States of the European Union, was struggling with a similar problem only a couple of years ago (based on an ENCL assessment in

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2007), whereby restaurants were registered as associations and the clients paid their ‘membership dues’ when paying for their meals. Growth and Development As a result, by the mid-1990s, countries of the region realized that they would have to engage in a more systematic approach towards civil society and NGO law. In the decade leading up to the EU membership of these countries (1994–2004), the NGO sector, representing the most active part of civil society, assumed a new role and gained renewed respect as a key actor in addressing social problems of the transitioning society. From orphanages in Romania to homeless shelters in Hungary, from agricultural development in Poland to social assistance in the Czech Republic, NGOs played a key role in social protection and social innovation. Another important function that emerged during this transition period was the so-called ‘watchdog role’ of NGOs. This implied guarding of the newly acquired freedoms and preventing backsliding. While in some countries (like Hungary) the role in social protection was stronger, in others it was the watchdog role that gained special relevance during the 1990s. This was the case in Slovakia, where there were a few years of ‘backlash’ when Mečiar won the elections and took the country in a nationalistic and authoritarian direction. In the wake of the next election period, NGOs led a resoundingly successful advocacy campaign to mobilize voters and get rid of Mečiar. This is still regarded as the most successful period of NGOs in Slovakia. This was also true more generally: the period in the mid- to late 1990s is now being looked at as the ‘golden era’ for civil society. During this period foreign funding was still generous, NGO leaders were able to travel to the West and learn new practices in addressing social problems, a supportive legal environment was being developed, governments became more open to cooperation with NGOs at a central as well as local level, and the general mood was positive given the promising proximity of accession to the European Union (EU). Another important phenomenon of this period was the building of an infrastructure for civil society. In this chapter, infrastructure means those services that are essential for NGOs to operate effectively. These would typically be information services (e.g. up to date grant possibilities, databases of NGOs), capacity building (e.g. training in management, IT, fundraising, advocacy, etc.), consultancy (e.g. assistance in strategic planning, governance support), publications (e.g. directories, guidebooks) and research on the sector. Later on, more sophisticated services also appear, e.g. volunteer centres that would match NGOs with aspiring volunteers, fundraising companies that develop databases of donors, quality assurance services and the like – but these are still only beginning to emerge in the CEE region, which indicates that the sector has not yet reached a more mature level of development. Nevertheless, it became clear from the example of this region that the NGO sector cannot properly develop without good infrastructure. There has been, however, a major dilemma in the development of infrastructure across the region. Initially, these services – or rather, NGOs providing such services, also known as NGO resource centres or NGO support centres – were funded by foreign donors (primarily US foundations and USAID). Once it became clear that US funding would not be available in the long term, these services had to find alternative resources. In most countries, the solution was that the government took over the financing of NGO infrastructure. But this also meant that services became more oriented towards government priorities and less based on actual NGO needs. And where the government did not fund the services, they had to be wound down, since the NGO market was not as developed to be able to sustain them – especially given that the free governmentpaid services distorted the market.

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Becoming a Part of Europe The accession to the EU (Visegrad and the Baltic countries, 2004; Romania and Bulgaria, 2007) brought another dimension into the discussion of role of NGOs. The main value that the EU sees in NGOs is that they ‘represent people’ – unlike political parties, with a clear political mandate, but based on the particular needs, demands and interests that people express. These demands and interests need to be channelled into the political decision-making process and NGOs are seen as the key vehicles for this purpose. The EU also views NGOs as necessary for channelling needs and interests the other way around: NGOs are also seen as a vehicle to communicate EU policies to their constituencies in a credible and cost-effective way. Therefore, the main concern of the EU relating to NGOs is participation: ensuring that citizens’ organizations are able to participate in the decision-making processes, and ensuring that they serve to mobilize citizens to actively take part in the implementation of EU policies and – most importantly – support (or at least, do not obstruct) the political agenda of the EU. At the same time, traditionally, the EU has not directly liaised with NGOs. Instead, the EU focused its efforts to reach out to the public and stakeholder groups of society through other organizations, including, for example, cooperatives, trade unions, academic institutions, professional chambers and the like, which were traditionally stronger in Western Europe. The umbrella term of the EU for all these actors of civil society was that of ‘social partners’. In recent years, the EU has come under pressure to focus more explicitly on NGOs – in part because of the increased visibility and impact of international NGOs at a global level (e.g. demanding the reform of financial institutions, advocacy to act regarding climate change, etc.), and in part because of the entry of the new member States, in which NGOs were often the most credible and most active players of civil society. There are a few areas where NGOs have indeed become the main partner of the EU in policy development, most evidently in the field of international development (EuropeAid). Nevertheless, due to the strong tradition of the ‘social partners’ approach, NGOs remain relatively marginalized when it comes to the major questions of internal, pan-European policies, be it public services, security or research and development. Given the bureaucratic nature of the EU, NGO involvement is realized in a highly institutionalized, corporatist form. At the EU level this means, for example, that certain bodies have a special consultative status with the EU decision-making bodies (such as the European Social and Economic Council, ECOSOC), or that certain types of NGOs (e.g. EU-level federations which represent national associations from a certain number of member States) are given privileged access to funding and are separately considered during consultation processes. At the national level this entails that there are strict rules of representation by civil society in the distribution of EU funds (such funds are distributed by national governments through a specially designed system) both in the programming and the monitoring stage of the projects. However, this corporatist institutional arrangement is not working effectively in CEE countries. On the one hand, the formal representation, and especially the notion that only one or a few NGOs are entitled to have a seat ‘near the fire’, bear too much resemblance to the former communist arrangements and many NGOs do not trust it to be a credible system. On the other hand, decisionmakers in the various bodies tend to look at the small number of NGO representatives as ‘token representatives’ who are there because it was prescribed by law and not because they have something to contribute. It also has to be said that NGOs are often yet to develop the skills and capacities that would enable them to truly represent others – i.e. it is still a challenge for many to function as a bottom-up membership organization. Finally, there are only a few NGOs which have the capacity to engage in policy debates at an expert level, given that this requires a lot of time and resources

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(e.g. to keep up to date in the policy development process, to monitor and react to events, to travel to conferences, etc.), and there is little funding available for this kind of work. Table 9.1 The evolving role of civil society in CEE countries, 1948–2008 Underground period          – clandestine opposition          – open opposition

1948–88 (1956 Hungary, 1968 Czech Republic, 1981 Poland)

‘Velvet revolutions’: civil society as people’s power

1989–90

Former civil society as political power/new civil society emerging

1990–4

Civil society as service provider

1994–2004

Civil society as ‘social partner’

2004–8

Lingering Legacies The way civil society developed and defined itself during the communist era has had a deep impact on its functioning and to a large extent determines its roles and capacities even today, 20 years after the change of the system. Such an impact can be seen in at least three major ways. First, as noted above, during the one-party, authoritarian and centralized system, the main role of civil society movements and organizations was to safeguard civic space; to create and maintain an alternative to the official system. Inevitably, that role established a model of civil society functioning which defined itself in opposition to the State and– implicitly if not explicitly – challenged the status quo. This self-definition of being ‘in opposition’ is very typical among civil society organizations across Eastern Europe, not just the CEE countries, but also in the countries of the former Soviet Union, i.e. the Newly Independent States (NIS). In the experience of the ECNL, this inherited identity is making it more difficult for NGOs to fulfil their desired societal roles later in the transition, when the State is already seen as a legitimate actor in addressing social problems and NGOs become ‘just’ another social actor trying to respond to the urgent social needs. NGOs still tend to regard the government as one to be challenged, and they use confrontational techniques more often than cooperative ones (e.g. open letters, petitions, demonstrations, using media to challenge the government, etc.). At the same time, in the developed European democracies, those NGOs which aim to influence the government to change its policies use more constructive and more cooperative techniques: e.g. they engage in policy research and develop policy papers that provide realistic options for governments to adopt; they participate in cross-sector working groups; they lobby with parliamentarians and government officials; they understand the complexities of the political pressures and are willing to compromise. Second, another inherited impact of the communist-socialist era is, paradoxically, the exact opposite of the previous one. Since people were dependent on the State for their survival, the culture and skills of entrepreneurship and risk taking did not develop very strongly. In addition, being employed by the State has always provided a minimum level of existential security and, thus, the sense of the paternalistic State that ‘takes care of us’ was and has remained very strong. Therefore, especially among social, cultural and educational NGOs and their leaders, there is a general expectation that they should be supported by the State. In those countries, where the

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government responded favourably to these expectations, such as in Hungary, the level of dependence of NGOs on State funding is extremely high. A recent assessment from Poland describes this phenomenon: The sector continues to be dependent on public funds, as opposed to increasing its financial viability in the true sense of the word. Most public funds come from local governments. Many larger NGOs are also becoming dependent on EU funds. NGOs have limited commercial or fundraising activities and make few attempts to gain income from local communities, new members, or supporters.

The third impact is not related to NGOs as such, but rather to the development of civil society in the broader sense: a society of conscious and responsible citizens. Living under oppression for so many decades has led to distorted morals and behaviour among the public which will take generations to change. That is to say, people learned that in order to survive they had to cheat, and assumed that everyone else was cheating too. Consequently, people grew to be suspicious rather than trusting towards others and to assume they had a hidden agenda. People learned not to attach the real meaning to words and they approved of favouritism, self-dealing and conflict of interest, etc. These basic attitudes are still very strong in CEE societies, which is why in ratings of corruption and democratic governance the new EU member States still lag behind their ‘old’ Western counterparts. This is demonstrated, for example, by the fact that besides Estonia and Slovenia, all CEE countries have scores below five on the 2009 Corruption Perceptions Index (CPI) of Transparency International, while in Western Europe only Italy has a score under five (on a scale 1–10, one being the lowest). Although NGOs are often seen as being ‘good’ just because they are NGOs, the truth is that most people who work in NGOs are no different to the rest of society and may be equally prone to engage in less than transparent practices in running their organizations. From 2002–5, national level research on governance practice of NGOs was conducted in Hungary, Bulgaria and the Ukraine. The findings revealed that governing bodies of NGOs in these countries have many conflicts of interest: CEOs are voting board members in 90% of Hungarian and Ukrainian NGOs, and serve as chair in 75% of these. Staff are voting board members in about half of NGOs. Founders retain considerable influence: CEOs are founders of 70% of Ukrainian NGOs and 40% of Hungarian NGOs. Moreover, founders (often the CEOs) nominate and select new board members in about a third of Ukrainian charitable organizations (15% of the total sector) and nearly two-thirds of Hungarian foundations (49% of the total sector). These findings suggest that boards are often intertwined with management and thus riddled with potential conflicts of interest – a situation undermining good governance and full accountability.

 According to data from 2008, 64 per cent of Hungarian NGOs received State funding and 44 per cent of the total income of the NGO sector originated from the State. Source: Central Statistical Office, Hungary, http://portal.ksh.hu/pls/ksh/docs/hun/xtabla/nonprofit/tablnpr08_12.html (last visited January 2010).   NGO Sustainability Index 2009 (Poland). Available at: www.usaid.gov/locations/europe_eurasia/ dem_gov/ngoindex/2008/poland.pdf (last visited January 2010).  Hungary has a score of 5.1. See: www.transparency.org/policy_research/surveys_indices/cpi/2009 (last visited January 2010).   Marilyn Wyatt, ‘New Approaches to Governance in CEE’. Available at: www.ceetrust.org/article/127 (last visited January 2010).

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Summary In summary, it can be said that the role of civil society and NGOs was quite different before and after the change of the political regime: prior to 1989, civil society was constrained and had a political role, while after 1989 it became increasingly enabled to play a role in addressing pressing social needs, both by directly attending to those needs and by holding the government accountable. However, there were challenges presented both by the heritage of the past regime and by the expectations of the future EU accession – therefore, at the end of the first decade of the twenty-first century, the role and function of NGOs in CEE are still evolving. Relationship with the Government The relationship between NGOs and the government has not been straightforward in CEE. Following the change in the political system, initially governments did not pay much attention to the civil sector. However, from the mid-1990s, they slowly started to realize the importance of NGOs. The leader in this respect has been Hungary, where NGOs have been regarded relatively highly by parliamentarians and government officials from the beginning, and laws supporting NGOs were introduced as early as 1996. Other countries followed suit at the turn of the century and by the time of EU accession, most countries of the region had adopted some kind of legislation regulating mechanisms for the public financing of NGOs. Why are Governments in CEE Supporting NGOs? Based on the experience of the ECNL, some of the main reasons why governments in the region have come to recognize and support NGOs are set out below. The first reason is that they provide basic services that the State may not be able to. This occurred in practically all CEE countries when the State was confronted with demands that went beyond the capabilities of its current infrastructure – e.g. childcare in Romania, homelessness in Hungary, disability care in Slovakia or assistance to war veterans in Croatia. For example, at the change of the system in Hungary (in 1989–90), companies closed their State-run workers’ hostels and thousands of people suddenly became homeless. As the State was not prepared to deal with so many homeless, hundreds froze to death during the first winter of the new democracy, and several NGOs were set up to provide shelter and assistance to people on the streets. Because the problem was so visible and received media attention, parliament reacted by making it obligatory for local governments to provide shelters for the homeless. Since many NGOs, however, already ran such shelters, the local governments simply passed the budget money to the NGOs. Even today, practically all the homeless shelters in Hungary are run by NGOs and financed by the local governments. By 2008, in Hungary, over 15 per cent of social services institutions were managed by NGOs and the number of clients receiving institutional social services by NGOs amounted to over 30,000 or 12 per cent of all clients in institutional care.10   Nilda Bullain and Radost Toftisova, ‘A Comparative Analysis of European Policies and Practices of NGO-Government Cooperation’, The International Journal of Not-for-Profit Law 7(4) (2005). Available at: www.icnl.org/KNOWLEDGE/IJNL/vol7iss4/art_1.htm (last visited February 2010). 10 Hand in Hand Foundation, ‘People in Need are Worth More’ (2008). Available at: www.kezenfogva. hu (last visited February 2010).

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The second reason is social innovation. NGOs often lead professional development in fields where the State has an interest by undertaking innovative approaches and thus advancing State services as well. For example, NGOs have developed cutting-edge professional approaches in early childhood development, elderly care, disability care and many other fields. They are able to do this in part because as NGOs they are free of the bureaucratic burdens that similar State institutions have to comply with, thus having more opportunities to learn and find new ways to improve the services. It also has to be noted that after 1990, many of the best professionals in social care and education left the State system because they found it too limiting – thus, those professionals who were really committed to helping those in need were increasingly found in NGOs. Once the new services had been developed they were often adopted as State services and the State may have even started financing civil society organizations for their provision. An example of a successful NGO that demonstrates social innovation and a real social impact is the Salva Vita Foundation in Hungary.11 Its mission is to help people with special needs, especially those with learning difficulties (autistic people and people with various degrees of mental disabilities). Their main programmes work to integrate people with special needs into the mainstream labour market. This is in contrast to the traditional approach that confines these people to so-called ‘sheltered workshops’, financed by the State, where they spend their days producing useless products to keep themselves busy. Over the years, the foundation’s professional team worked out a method that resulted in exceptionally high rates of job placements, retention and reintegration (i.e. people who were placed in the labour market through their method stayed at their workplaces longer and, if laid off, found a new job sooner than those placed by State institutions). This NGO was also the first to conduct a ‘Social Return on Investment’ analysis of its work in Hungary – it may have been the first to do this outside the United States and the UK, certainly in CEE. Its impact is very impressive. It shows through a well-founded method of calculation (as developed originally by US/UK researchers and adapted to the Hungarian context) that every Hungarian forint donated to this NGO yields 4.5 forints in ‘social return’ (e.g. taxes paid by the working beneficiaries, savings in social assistance paid to the beneficiaries, value created by their work, etc.) over a period of three years. Initially the government was resistant to fund this NGO as it found its complex methodology too expensive. However, seeing its results, the government decided to fund them and the methodology for labour market integration they developed was taken up as a model by the government to be applied in their own institutions; they employed the NGO to train government staff. It should be noted that, in reference to the importance of what we referred to as ‘civil society infrastructure’ under the previous section, the Salva Vita Foundation was assisted for over 10 years of its development by the Civil Society Development Foundation in Hungary (CSDF), whose director, Balázs Sátor, is another contributor to this publication (see Chapter 14). The CSDF trained Salva Vita initially on issues of organizational and project management; later on governance, human resources management and communication; provided consultancy and executive coaching; facilitated two strategic planning processes; assisted in crisis management and in financial planning; helped introduce a quality assurance scheme; and introduced them to the idea of calculating the social return on investment. In other words, they were always there to provide assistance, to convey new learning and to give an impetus to the NGO to get to the next level of their development. The success of Salva Vita reflects the success of the CSDF and represents the value added by support organizations; and this was recognized by the Hungarian government when it decided to finance a

11  http://salvavita.hu/index.php?topmenu=4000 (last visited February 2010).

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national network of support organizations (though the CSDF, which does not accept government financing, will not be one of them). The third reason is that NGOs can help implement State policies more effectively. NGOs played an important role in helping the governments of CEE countries realize development objectives. For example, in Poland and Hungary, employment has been a key focus area for the government over the past four to five years. In Hungary in 2007, grants awarded by the National Employment Fund to NGOs to implement projects targeting employment, equal opportunities and social inclusion, amounted to 1.9 billion HUF (around €7 million).12 NGOs were active in complementing government efforts to address a wide range of issues in employment – from job placements of young graduates to integration of Roma employees, from the return of young mothers to the workforce to dealing with disability in the workplaces, or to early retirement schemes. As the example of Salva Vita illustrates, often NGOs were more innovative, more motivated, more professionally managed, closer to the beneficiaries than providers of the central or local government and, most importantly, more credible. It should be acknowledged that much of the investment into these NGOs was made by foreign or domestic private donors, and that they utilized the resources of volunteers and supporters, so they were there ready to implement more effective programmes at a lesser cost than the governments’ own institutions. The government would not have been able to reach out to so many constituencies with its limited capacity – whereas NGOs were able to visit homes and talk to people in the most distant villages and involve them in the projects. By financing them, the government could ultimately claim credit for the results and given that they were held accountable during the elections, this was an important consideration. The fourth reason is ‘absorption capacity’. As a very pragmatic reason, in the new European Union (EU) member States, NGOs were also needed to help in the absorption of EU funds, which was a criterion for being accepted into the EU. For instance, in the Slovenia operational programme for development of human resources for the period 2007–13, which is funded through the European Social Fund, 7 per cent of resources (€53 million) are intended for the implementation of activities of NGOs. Furthermore, in the framework of the operational programme of human resources development, there is a portion of funds intended especially for NGOs. Within one of its priorities (strengthening institutional and administrative capacity) more than €13 million was reserved exclusively for the promotion of the development of NGOs. In Poland, from 2004–6, the total value of projects implemented by NGOs and funded through the EU Structural Funds was around €3.3 billion.13 As a result of the above factors, in most countries some form of cooperation between the government and NGOs has been established and institutionalized. In a few countries this has involved the development of an overall strategic framework in support of NGOs (Croatia, Estonia, Hungary, Macedonia). However, even in countries where such an overall government programme was not developed, interesting mechanisms have been introduced to help address NGO challenges through the support of the government.

12  See: National Employment Foundation Yearbook for 2007, http://ofa.hu/index.php?WG_ NODE=WebIntRedirect&WG_OID=DSDf7ce657338b743f44 (last visited February 2010). 13  See: ‘Structural Funds 2007-2013 for NGOs in Slovenia’, available at: http://ec.europa.eu/regional_ policy/conferences/od2007/doc/presentations/e/Abstract_Tina%20MICHIELI_09E06.doc (last visited February 2010); Kamila Płowiec, Magdalena Plewowska and Artur Gluziński, ‘The Situation of Polish NGOs in Terms of Structural Funds’, available at: www.humszolg.hu/letoltes/lengyel.doc (last visited February 2010).

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Forms of NGO support14 Governments can support NGOs financially, either directly by allocating resources from the State budget, or indirectly by granting benefits to NGOs. In the latter scenario the government reduces the amount of finances that it would have otherwise collected. In addition, some CEE countries have adopted the so-called ‘percentage mechanism’ (see below), which goes beyond the traditional forms of government support. Existing data shows that the amount of government funds available to NGOs in Western Europe varies from 29 per cent of the total civil society organization revenue in Sweden and 35 per cent in Norway, to up to 77 per cent in Belgium and Ireland. In CEE countries, government funding represents an average of 20–30 per cent of the sector’s overall income.15 This could be as high as 43 per cent in Hungary. Importantly, however, the interest of governments in supporting NGOs through funding mechanisms cannot be measured only by the amount of funding that it makes available to them. The rules that regulate the distribution and monitoring of the use of funds should also be considered. Despite the relatively high percentage of funding streams, NGOs in CEE countries have difficulties accessing government funding for a range of reasons. These include the lack of transparency in the implementation of funding mechanisms, a lack of professionalism in contracting and grantmaking, the fact that there are no clear criteria for accessing funding, and the politicization of the decision-making process on grant-making. In addition, there is no effective monitoring mechanism to oversee the use of funds and ensure the accountability of the NGOs that have received them. These issues are equally acute in CEE countries with established NGO financing mechanisms and in Southeastern European countries, where governments have just begun elaborating their systems for support of NGOs. For example, recent research in Macedonia revealed that the government distributes annually €4.1 million from various budget allocations, however only a limited number of NGOs benefit from these funds mainly because of the lack of clear criteria both as to who can receive them and procedures on their allocation. Therefore, when discussing government funding mechanisms, it is also relevant to consider the implementation of such mechanisms that determine the effectiveness of the system. Forms of direct budget support  Government funding can be distributed directly in several traditional ways: subsidies, grants, procurement, per capita fees or vouchers. These funds can be distributed from central level budgets (through the parliament, ministries, lotteries, privatization proceeds, public funds and foundations) or through the budgets of local governments. From the mechanisms of government funding, subsidies and grants are the most common form used throughout the CEE region. In our terminology, subsidies serve as general support to the activities of social economy organization, and are not linked to a specific project and can be used to cover general operating expenses, whereas grants are allocated to support the implementation of a given project which falls within the government’s programmes. Subsidies are generally distributed to NGOs whose contribution to government policy implementation is considerable and may therefore serve as a general indicator of the public sector’s recognition of civil society.16 Funding through subsidies is usually given to major international agencies (such as the Red Cross), national interest representation groups (such as the Associations of Pensioners), major service-providing 14  This section relies heavily on: Katerina Hadzi-Miceva and Nilda Bullain, ‘A Supportive Financing Framework for Social Economy Organisations’, in The Social Economy: Building Inclusive Economies (Paris: OECD, 2007). 15  Salamon et al., Global Civil Society. 16  Bullain and Toftisova, ‘A Comparative Analysis of European Policies’.

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organizations, and very few advocacy organizations. Grants, on the other hand, are generally awarded through an open tender-type application process and can provide funding for a range of targeted activities, from the delivery of social services (such as in Germany, Croatia and the UK) to the implementation of programmes from the country’s international development aid obligations (as in Sweden, Denmark and Germany).17 These procurement mechanisms regulate the government purchase of goods and services delivered by the NGOs. The challenge of these mechanisms is that NGOs generally bid together with other service providers, such as businesses, and may be unable to meet technical requirements (such as collateral), or achieve the high standards usually set by governments. Some countries, such as Bulgaria, have amended their legislation to remove the prohibition on the participation of NGOs in procurement procedures. Others have created specific mechanisms, such as the public benefit contract in Hungary, which have created two categories of public benefit status: the ‘normal’ public benefit organization; and the prominent public benefit organization. The public benefit contract is a special contract that ‘prominent’ public benefit organizations can sign with a State agency to provide public services. The contract entitles them to special public benefit status and additional tax and other benefits. Generally, NGOs engaged in social service delivery are most likely to benefit from this mechanism. Third party payment schemes, common in Western Europe, such as per capita fees and vouchers, are not yet widespread in CEE countries, but have proved to be useful mechanisms of public support mainly for social service delivery NGOs. Per capita fees or normative support systems, which are common in Hungary, essentially mean that NGOs seek reimbursement from the government based on the volume of services they have provided. NGOs that deliver services in areas such as healthcare or education are the beneficiaries of this system. The voucher mechanism, which was introduced in the Czech Republic, allows municipalities to provide vouchers for the services that fall within their obligation and leave the decision to the citizens to choose their provider. Aside from the fact that these two mechanisms are a form of financial support, they also prompt NGOs to compete with service providers from other sectors (public and private), which contributes to higher quality service delivery and ultimately to increased accountability. Innovative forms of support  There are three specific, innovative forms of support from government towards NGOs that address the deficiencies of the funding environment and capacity building. These are innovative in two main ways. First, they emerged in environments where resources are scarce and they do not involve the need to allocate a portion of the government’s budget to support NGOs – rather, they allocate a portion of a foreseeable income so it is not immediately and directly felt in the budget. Second, they avoid the typical problem of decision-making about the funds, i.e. being politically biased, favouring one type of NGO over another – they delegate the power of decision-making to the citizens or to the NGOs themselves. Nevertheless, these systems are not perfect and cannot be easily implemented in any other context. A careful analysis has to point out both the expected benefits and potential dangers of introducing such mechanisms. Endowment support to develop domestic (local) grant-making foundations  The distribution of privatization proceeds to foundations was introduced in the Czech Republic as a result of the privatization of State-run enterprises. The Czech government allocates 1 per cent of these privatization proceeds to a Foundation Investment Fund, which is then redistributed to the local 17 Ibid.

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foundations in the form of endowments. The purpose of this mechanism is to assist with the establishment of endowments as a secure resource base for NGOs. Foundations must keep the endowment within a certain legally prescribed minimum (€16,000) but may use any other donated funds above that minimum to pursue investment opportunities to achieve their statutory goals.18 In 2002, €27 million was distributed to 64 foundations, which at that time represented one-third of all foundations in the country.19 Following the introduction of this mechanism, the government introduced changes to the legal and tax systems to create rules for the good management of the endowments and to enhance the ability of foundations to maximize their potential. The amendments introduced several investment possibilities as they provided for a wide range of investment instruments for foundations. At the same time rules for safe investing were introduced, as was the possibility of the professional management of endowments by financial institutions, tax-free capital gains were permitted, and an easier registration procedure was also introduced. Currently, 375 foundations are registered in the Czech Republic, with the value of their endowments exceeding €80 million.20 This instrument also led to improved cooperation among foundations, which pooled their endowments to establish a joint investment portfolio designed specifically for this purpose. Why is this mechanism especially important? One of the major lessons learnt from the development of civil society in this region is that civil society has to have a diverse and domestic base of support. What does diverse mean? Take, for example, the analogy of the market sector. In a developed market economy there needs to be a range of financial instruments to support the enterprises of different sizes and functions, from small family enterprises to limited liability companies to joint stock companies. This will necessitate a wide selection of financial services, investment funds, credits and loans on different scales and conditions. Market economy cannot develop to its full potential unless its organizations have a financial infrastructure that meets their diverse needs. In a similar way, NGOs and civil society need to have a financial infrastructure. This should include government sources, private support by companies and individuals, as well as the possibility for NGOs to generate economic income. As we can see, each of these sources entails a variety of forms in which they may become available to NGOs. One component within ‘private support’ which was almost entirely overlooked or underestimated by the international donors in CEE countries is the emergence of private grant-making foundations, which are, in developed democracies, the most typical funders of NGOs that are not funded by the government and at the same time do not pursue a popular cause. These are typically advocacy and watchdog organizations, community development NGOs, and capacity building organizations. After the withdrawal of foreign donors from the new EU member States, these NGOs have been left without a core support group and are struggling to survive. Therefore, the Czech example can be instructive in terms of how to start up and nurture a ‘domestic breed’ of independent grant-making foundations that can serve as a cornerstone of civil society support. Arms-length national funds to support civil society development  While the Czech example remains an isolated case, national funds or foundations set up specifically to support civil society have become more ‘popular’. Croatia was the first to establish such a fund in 2003, followed by 18 R. Thomas, ‘Endowments and Sustainability’, Social Economy and Law Journal Winter (2003). 19 Pavlina Kalousova, ‘Czech Endowments: An Improving Framework’, Social Economy and Law Journal Winter (2003). 20 Ibid.

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Hungary (2004) and Estonia (2007). These funds are differently governed and organized; however, they have the following unique traits in common. First, through these funds governments provide institutional support to NGOs, as opposed to the typical project support, to help develop NGOs themselves. For example, they invest in the capacity development of NGOs. They chose to do so because they realized that if they wanted professional and effective NGOs as partners in delivering social services and implementing government policies, they would need to invest in capacity building for the sector as a whole. It has to be noted that in these three countries the government has been more open towards NGOs in general than in some other countries (such as Poland or Slovakia). Second, decision-making is delegated to special boards that have a majority of NGO representatives. This was in response to the criticism that when government officials or parliamentarians distributed public money, they followed political preferences. In Hungary a parliamentary committee existed for NGO support prior to setting up the National Civil Fund, whose decisions were very visibly political. For example, when there was a Socialist Party majority on the committee, it was the Pioneers’ Federation that received the highest amount of support, while during a Young Democrat Party majority, it was the Scouts Organization that was the preferred NGO. Although the best method for the appointment or election of NGO board members remained somewhat of a challenge, it was agreed that delegating decision-making to a non-politically affiliated body was a better solution. The third trait is a funding mechanism designated by law. While government support is typically taken from ministry budgets and therefore prone to be redirected towards other priorities, these funds are regulated by special laws that designate a source of income to the fund. This makes the funds available annually and secures a certain amount of funding for the purposes to be supported. In Croatia, this funding is a percentage of the lottery income; while in Hungary, it equals the amount that taxpayers designate to NGOs through the percentage mechanism (see below). National Foundation for Civil Society Development, Croatia  The government established the National Foundation for Civil Society Development (National Foundation) as a public foundation with the basic purpose of promoting and developing civil society in Croatia and decentralizing the cooperation between the government and NGOs.21 This was based on an amendment of the Law on Games of Chance and Competitions, which created the material basis for the establishment of the National Foundation (the Foundation). According to the Law on Games of Chance and Competitions, which was enacted in 2002, 50 per cent of the monies collected through games of chance should be allocated for civil society organizations in Croatia, and this is the main source of funding for the National Foundation. The Foundation aims to promote the sustainability of the sector, cross-sector cooperation, civic initiatives, philanthropy and voluntarism. Core activities include: education and publications; grant giving; public awareness campaigns; evaluation services; research; and regional development. Importantly, the Foundation is governed by a management board composed of three representatives from the government, one representative from local government and five representatives from NGOs. The establishment of the National Foundation was seen as a critical step towards improving the system of public financing for NGOs. It marked a shift from a highly centralized system, in which the Government Office for Associations played the critical role, into a more decentralized 21  For a more detailed description of the model see: Katerina Hadzi-Miceva, ‘Legal and Institutional Mechanisms for NGO Government Cooperation in Croatia, Estonia and Hungary’, The International Journal of Not-for-Profit Law 10(4) (2008).

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system. Accordingly, the role of line ministries was emphasized and they remain responsible for the funding of and cooperation with NGOs within their own jurisdiction. At the same time, the Foundation focuses on supporting grassroots initiatives and programmes that do not necessarily fall within the competence of any particular ministry. In this way a more equitable distribution of responsibility among government stakeholders is ensured.22 To guarantee that grant-making decisions, whether made by the National Foundation, ministries or local governments, are made according to established standards of transparency, a ‘Code of Good Practice, Standards and Criteria for Providing Financial Assistance to Programs and Projects of Associations’23 (the Code) was adopted by the Croatian Parliament in 2007. The Code establishes the basic standards and principles for granting financial assistance from the State budget to associations. It applies to all State authorities and offices of the government, which support the implementation of programmes and projects that are of special general/public interest in Croatia. The Foundation supports several types of programmes related to its strategic objectives, including the institutional support programme, which supports the organizational development or stabilization for a period of three years, but only for those associations registered in Croatia. A grant is provided to help further the activities of the association and for the performance of its primary activity. Importantly, the Foundation also supports multi-annual grants (2004–7). The Foundation also supports separate projects and programmes to foster research, cooperation and development of civil society on the national and local level. The total annual income of the Foundation for 2006 was approximately €4.5 million. The Foundation granted approximately €1.7 million for the operational support programmes of 2004–6. During the first year of its operations, the Foundation faced criticism about its process of grant giving. This was triggered by the fact that the body that makes decisions regarding grant recipients is also composed of NGO representatives, raising questions about impartiality and conflict of interest. As a result, the Foundation adopted a clearer principle on conflict of interest in the above-mentioned Code. The National Foundation has also developed evaluation grids for tenders that guide not only NGOs, but also the evaluators, through the process of deciding on the grants. Importantly, to further remedy the problem of conflict of interest, the Foundation introduced a register of the potential conflict of interest situations. It is not a public document but it may be presented for inspection to the representatives of authorized bodies upon request. National Civil Fund, Hungary  In 2003, the Hungarian government established the National Civil Fund (the Fund) with the aim of providing a mechanism for institutional support to NGOs. Essentially, the Fund supplements the funds NGOs receive via the percentage allocation (see below), by match-funding the funds that are designated to NGOs. A total of 60 per cent of the resources of the Fund are allocated to NGOs to support operational costs. In addition, funds from this source also support development programmes, including research, education and international representation. The Fund is administered by a council and a number of regionally based colleges. The council is the strategic decision-maker, which sets the priorities of the Fund, divides the resources among the various purposes and develops other rules of functioning. The colleges are regional bodies deciding about concrete grant proposals. NGOs elect their representatives to sit on 22  Cvjetana Plavsa-Matic and Katerina Hadzi-Miceva, ‘From Vision to Change: A New Model for Civil Society Development in Croatia’, Social Economy and Law Journal Winter 2003–Spring 2004. 23  Official Gazette of Republic of Croatia, no.16/2007. Available at: www.ecnl.org (last visited February 2010).

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the council and the colleges. In the first year a total of €28 million was distributed to support the operational costs of over 3,500 organizations. The introduction of the Fund was accompanied by great enthusiasm from NGOs. However, as in Croatia, the first year of distribution saw the Fund confront significant criticism, which raised concerns as to its real effects. This was due to the lack of carefully planned implementation mechanisms. It was revealed that in conceptualizing the Fund, the government had not considered a clear overall strategy to develop the sector. Even the participation of NGOs in the decision-making processes raised controversy over potential conflicts of interest. It was found, for example, that NGOs connected to members of the Colleges were always awarded the full amount sought while other organizations often received less funding than requested. Even the responsible Minister of Youth, Family and Social Affairs called the attention of the Fund’s Council, the highest governing body of the Fund, to such controversies. Although many of the initial difficulties were eventually overcome or improved, after several years of operation it is still questionable whether the implementation of the Fund actually strengthened the NGO sector or only made them more dependent on State funding. However, other similar funds from the region, i.e. Croatia and Estonia, show that government funds to support civil society can be organized to run effectively. The ‘percentage mechanism’  The percentage mechanism was first introduced in Hungary in 1997 and has since been introduced in Lithuania, Poland, Slovakia and Romania. In addition, based on the CEE experience, a local municipality in Japan has also introduced this mechanism. The percentage mechanism is a form of tax allocation as it allows taxpayers to designate a portion, usually 1 or 2 per cent of their paid tax, to one or more specific public benefit organizations. Generally, there are two key objectives behind introducing this mechanism: increasing the pool of resources available to NGOs; and helping to develop a philanthropic culture among taxpayers. The level to which these objectives are being met is difficult to assess, however, it is becoming clear that they can only be reached in certain contexts. At the same time a third objective can be seen as the ‘by-product’ of the percentage mechanism: the strengthening of the link between NGOs and the public at large, i.e. NGOs become more known by and more connected to their constituencies. As to the first objective, there are several considerations to be examined by policy-makers, NGOs and experts in terms of the capacity of this mechanism to increase resources for NGOs. First, this mechanism can only be utilized by taxpayers, and in addition, only by individual taxpayers (although in Slovakia companies can also designate the percentage). Therefore, the potential group of ‘donors’ is limited. Although all taxpayers can designate the funds at no cost to themselves (as they are basically reallocating the tax amount that they would otherwise need to pay to the government) less than 50 per cent of taxpayers utilize the mechanism even in countries where it is well-known. Therefore, in countries like Georgia or Macedonia where the population, and therefore the number of taxpayers, is small, the culture of paying taxes is still developing and the income tax rate is low, this mechanism might not bring the amount of resources that NGOs both need, and aim, to attract. On the other hand, in larger countries, where thus far government funding has been at a low level, such as the Ukraine, it may indeed generate a large inflow of funds into the NGO sector, should taxes be raised. In some ways, the bigger the population and the higher the tax rate, the more potential there is in generating funding for the sector. There is, however, a limitation of the mechanism, in that it allows only a minimum amount, either 1 or 2 per cent of paid taxes, to be designated. Contrary to philanthropic giving, the ‘percentage cake’ available to NGOs has a given size and cannot be increased. Consequently, it is not only that the amount of available funding is limited, but also the receipt of a larger portion by one NGO

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reduces the amount available to others. In the end only a small cluster of organizations (such as those who run the best marketing campaigns) really benefit from the mechanism. In addition, the overall amount may be quite small compared to other sources of revenue as the economy develops. In Hungary, for example, funds flowing from this mechanism have been estimated to be less than 1 per cent of the total revenue of the social economy sector. As for the second objective, the effect of the mechanism on philanthropy cannot be easily assessed, as there are no comprehensive research results that can show whether it achieves its second objective. It is important to note that the mechanism was originally perceived as a mechanism for philanthropy. Consequently, some refer to it as ‘percentage philanthropy’. This led to a misperception of the mechanism by both the public and the government. While the mechanism has increased the level of awareness about the importance of civil society among citizens, it has not necessarily resulted in increased financial contributions by individuals (notably, the percentage of private contributions by individuals in Hungary has been declining). On the contrary, according to some accounts this mechanism might have created a feeling in some individuals that they have done their share in society by ‘giving’ a percentage of their taxes and there is no need to give more. Studies in Hungary have found that the same pool of the population (including those with higher incomes, higher levels of education, those living in urban areas, and women) who already donate more often than others, and who volunteer more, are those who designate their 1 per cent. This raises the question as to whether their philanthropic behaviour would be the same regardless of the percentage mechanism (given that they appear to be more socially aware and willing to give anyway). In addition, in countries where the percentage philanthropy was not introduced, e.g. the Czech Republic, philanthropic giving has been on the rise. There is also the political risk that the introduction of this mechanism could have an adverse effect on traditional incentives for philanthropy such as tax deductions, leading to their abolition, as occurred in Lithuania. NGOs in Poland were successful in lobbying the government to postpone the decision on whether or not to abolish tax incentives after the mechanism was introduced. Although tax incentives are not the prime motive behind philanthropic giving, the example of Slovakia shows that they should not be underestimated. Specifically, even though almost all companies and a high number of individuals decided to designate the 2 per cent, the amount of funding that was distributed to the NGOs was still less than the amount that NGOs had received through traditional philanthropic forms.24 Despite the challenges in implementation, this mechanism does have significant advantages for NGOs, taxpayers and governments. Most importantly: it has proven to raise the awareness of taxpayers as to the existence of NGOs; encouraged individuals to identify the social issues important to them and which they are willing to support; and played a key role in NGOs seeking to reach out to people and ask for support. In addition, it has proven to be a good mechanism that can be utilized by local and smaller NGOs, notably in Hungary, because they relate more closely to their local communities. Accordingly, it is easier to convince taxpayers in a local community to designate their percentage to their local social economy organization. In terms of its effect as a resource, that is the actual amount of funds that can be raised, the mechanism has had a bigger impact on the larger and more service-oriented NGOs who operate at a national level. These organizations are better skilled at communicating, can more easily obtain resources to support professional media campaigns and thus attract a larger number of taxpayers. The mechanism also creates competition among NGOs and other beneficiaries, thereby contributing to their professionalism, improving their communication with stakeholders and 24  See: www.rozhodni.sk (last visited February 2010).

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generally enhancing their image. In terms of taxpayers, the percentage laws provide them with the possibility to decide as to how a certain percentage of tax money is spent, thus decentralizing and de-politicizing the decision-making process. It also increases awareness of the importance of civil society. In turn, governments benefit because they are able to more effectively monitor the needs of their society. In addition, it should not be forgotten that a portion of the designated funds do return to the State budget in the spending process, specifically through value added tax. The percentage mechanism is an innovative tool that can greatly contribute to civil society development in certain country contexts. Lessons learned from the CEE reveal that even if NGOs and governments estimate that the mechanism can significantly contribute to the sustainability of the sector, there are potentially negative factors that should be considered. There are two such important lessons at the policy level. First, governments should consider introducing this mechanism as a ‘transitional’ or provisional measure (e.g. for a period of 10 years, in order to help generate resources for NGOs and spread philanthropic thinking among the public), but not to maintain the potentially hindering effects on philanthropy. Second, if this mechanism is introduced, it ought to complement and not replace other existing mechanisms, as in itself it will not be the remedy for the financial viability problem of NGOs. Conclusions: The ‘Unfinished Business’ in CEE Despite all the great achievements, there are weaknesses that still remain obstacles to the development of the NGO sector and civil society. These are areas where the government, NGOs and their stakeholders have not been able to provide solutions during the last 15 to 20 years, and where further investment of efforts and resources is needed. Lack of Public Participation and Active Citizenship In the CEE region, the culture of State dominance has proven too strong – this is seen not only or not primarily in low voter participation rates, but rather in the extent to which people do or, mostly, do not get involved in the policy and law-making processes that concern them, whether at the central or local level. Unfortunately, NGOs also have a role in this as they did not concentrate as much on citizen mobilization as they did on raising funds from the government and the EU, as illustrated by a description of the Polish NGO sector in the NGO Sustainability Index of 2008: NGOs do not work to build local constituencies. The support of NGO members in terms of their work and membership fees is not significant in comparison to funding from other sources. NGOs tend to be more oriented towards institutions or persons that can provide funding rather than towards their constituencies. Membership is often treated only as a necessary condition to create an association. Moreover, citizens are less interested in being members of local associations. As NGOs provide more services contracted by local governments, they are increasingly perceived as commercialized government extensions. Many young people treat the nonprofit sector as part of the establishment, as opposed to a place for independent thought and action.25

25  www.usaid.gov/locations/europe_eurasia/dem_gov/ngoindex/2008/poland.pdf (last visited February 2010).

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Lack of a Link Between NGOs and the People Related to the previous point, NGOs are often not embedded enough in their communities and there is relatively little social support as reflected in the lack of membership and a lack of ability to mobilize constituencies. This is in a large part due to the distorting effect of initial foreign donations and current government funding. In between the two, NGOs did not learn the skills to engage beneficiaries, supporters and members – in short, people – in rallying their causes. Low Levels of an Everyday Civic Behaviour By this we mean being aware of one’s rights as a citizen and being willing and able to exercise those rights on an everyday basis. For example, being a conscious and assertive consumer, making a complaint if not treated properly by a shop-owner or a bureaucrat, suing a doctor for maltreatment, boycotting a school for their treatment of the children, etc. This is related to the issue of participation but is also a separate one, since the individual actions of conscious citizens are an important indicator of the strength of civil society. Unfortunately, most people in CEE countries still do not assert their rights on an everyday basis. Deficiencies in Community Building By and large, NGOs have not been successful in building viable, supportive communities that could drive development from the ‘bottom up’. This is in part due to the cultural resistance developed during communism (when people were forced to be a ‘community’), and that there were no models to build upon; but also is related to the fact that NGOs cared less about the ‘community’ idea and operated more on the basis of ‘helping people in need’ as opposed to the ‘citizenship’ concept. A community involves people who are active members of it and have ownership over it; most NGOs still think of their constituents as ‘clients’ who need help and contribute to keeping them in a passive state. Politically Tainted NGOs NGOs have become vulnerable to political pressures due to their funding needs and because they have little credibility to those people who only see them from afar. There have been grave cases of abuse of public funds by NGOs, which served to reinforce this image and led people to believe NGOs are merely the puppets of political players.26 Now they face a struggle to gain people’s trust and maintain a level of credibility. Lack of Institutional Support to NGOs There is a lack of locally endowed grant-giving foundations that could provide non-governmental, long-term, institutional support to NGOs. Foreign donors and governments have not made it a 26 An example is a case from Hungary described by the NGO Sustainability Index 2008: the scandal involved a network of 11 NGOs led by a socialist politician that spent 50 to 100 million HUF in grant money – mainly intended for youth NGOs – on political objectives between 2000 and 2005. Even though the network’s activity raised suspicion as early as 2001, it carried on functioning for years, proving how overpoliticized the grants system is and how difficult it is to account for public money spent this way. See: www.usaid.gov/ locations/europe_eurasia/dem_gov/ngoindex/2008/hungary.pdf (last visited February 2010).

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priority to endow domestic re-granting foundations. This is especially painful for the sustainability of advocacy and watchdog type NGOs, which prefer not to take government (or corporate) funding. Weak Organizational Capacities Although much has been invested in NGOs, the majority of small and medium-sized organizations are still relatively weak in their organizational capacities and most are not very sustainable. This manifests itself in many ways, from a lack of accounting systems to a lack of ability to offer permanent jobs.27 The problems indicate that, for a while, continued support and investment in NGO capacity building will be needed in the CEE region.

27  Some illustrations from the NGO Sustainability Index 2008: in Poland, ‘[t]he NGO sector continues to be an unattractive workplace due to the instability of employment. Most NGOs hire people for particular projects’; in Slovakia, ‘the vast majority of NGOs have prioritized implementing approved projects, as opposed to building the capacity of their employees. Generally, NGO employees fulfill multiple roles. For example, one person is both the expert who designs and implements projects and the administrator who takes care of day-to-day administrative tasks. NGOs do not create full-time jobs and prefer external consultants’. See: www.usaid.gov/locations/europe_eurasia/dem_gov/ngoindex/2008 (last visited February 2010).

Chapter 10

Socially Responsible NGOs? A European Perspective Paul Dekker

Introduction The concept of ‘social responsibility’ is rarely used for non-governmental organizations (NGOs) in Europe. However, ‘corporate social responsibility’ (CSR) is nowadays a popular concept for private enterprises. It applies to firms that aim to do more than just make a profit. They claim to be looking for a balance between ‘people, planet and profit’ and accept the idea of a broader range of ‘stakeholders’, not just shareholders. Can we apply the corporate idea of social responsibility to NGOs? That depends on the kind of NGOs we have in mind: there are more similarities in the case of service providers than of pressure, interest and advocacy groups. For the latter organizations we have to develop the meaning of social responsibility from other concepts. That is the main goal of this chapter. I start with a brief description of the types of NGOs and then discuss briefly the history of the idea of corporate social responsibility. Following this, the various meanings of social responsibility for different types of NGOs will be explored, as well as the topic of accountability. Finally, an assessment will be made of the trust of the European public in NGOs compared to other organizations. NGOs In this chapter, the term NGO is used in a very broad sense as a label for all private non-profits, from the Scouts to the Red Cross, the Rockefeller Foundation to regional foundations and associations that operate schools and hospitals, from unions and employers’ organizations to soccer clubs and choirs, from local tenants’ and neighbourhood organizations to Amnesty International, Oxfam and Greenpeace. This broad use corresponds with the Chinese concept of ‘social organizations’. However, one should be aware that the term NGO is often used in a much more restricted way in Europe, sometimes only referring to international organizations and to national organizations that are based in rich countries but operate internationally or in foreign, mainly poor countries, in fields such as human rights, humanitarian aid and the environment. This restricted use is understandable given the history of the concept. According to Martens the term NGO: Is a post-World War II expression which was initially coined by the United Nations (UN). When the UN Charter was adopted in 1945, it was stipulated in Article 71 that NGOs could be accredited to the UN for consulting purposes. Thus, scholars first mainly applied the term NGOs only when referring to those societal actors which are (because of the UN criteria) international bodies and engage within the UN context. In recent decades, especially since the 1980s, the term NGO has also become popular for societal actors of all sorts engaged outside the UN framework, internationally

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and nationally, and has indeed been increasingly adopted more broadly by academics as well as by activists themselves.

However, in Europe the broadening of the concept hardly ever extends to regular non-profit service providers. For the broad field of organizations that are both non-governmental and non-commercial, a number of terms are in use: non-profits and the non-profit sector; third sector organizations; the voluntary sector and voluntary organizations, associations and agencies; social economies; civil society organizations; private organizations or initiatives; intermediary organizations, etc. The terms have different connotations and different national roots. ‘Social economy’, and especially ‘third sector’, might become more popular in Europe because these concepts are used in European politics. Figure 10.1 gives an impression of the importance of NGOs in the broad encompassing sense of the word. It shows national combinations of the percentage of the population who are members of at least one voluntary association with the percentage of the total workforce who are active (paid and unpaid) in the non-profit sector. There is a clear association between the two measurements, but we also see countries with relatively more membership organizations (the Scandinavian countries, Austria and Germany) and countries with more service providers (the Netherlands, Belgium and Ireland). Distinctions can be made by field of activity or by types of organizations. A well-known categorization of the goals of voluntary organizations by Charles Handy distinguishes between mutual support/mutual benefit organizations, campaigning organizations and service-delivery organization. Mutual support/mutual benefit organizations are gatherings of people who want to do things together, for example, find solutions for common problems, organize self-help or enjoy a hobby, sports or club life. They are membership organizations and members are supposed to be active. Volunteers are the most active members and typical tensions are between the volunteers and members who behave as clients. Campaigning organizations do not have clients or customers, but want to convince the world (i.e. the general public, politicians) of their values and policy goals. Volunteers have to be dedicated. There can be tensions between the true believers or core volunteers and the ‘rank and file’. Service-delivery organizations are oriented on services for clients outside the organization. They are often highly professionalized, with many paid employees, but not necessarily members. Volunteers have to be qualified and are managed as unpaid workers. Typical tensions are those that arise between professionals and volunteers.

  Kerstin Martens, ‘Mission Impossible? Defining Nongovernmental Organizations’, Voluntas 13(3) (2002), pp. 271–2.   A measurement of NGOs in the restricted European sense of internationally operating non-profits would focus on the volume of members and supporters (or the assets and number of employees) of international organizations such as the Red Cross, Oxfam, Greenpeace, World Life Fund, Amnesty International, etc. and internationally operating national private organizations for development aid, human rights, animal rights environment, fair trade, etc. No exact numbers are available, but this sector is largest in Northwestern Europe.   See, for example, Lester M. Salamon, S.Wojciech Sokolowski and Regina List, Global Civil Society: An Overview (Baltimore: The Johns Hopkins Center for Civil Society Studies, 2003).   Charles Handy, Understanding Voluntary Organizations (Harmondsworth: Penguin Books, 1988).

'non-profit sector': non-profit workforce as % of total workforce (fte's)

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Note: Countries = Norway (NO), Finland (FI), Sweden (SE), Denmark (DK), United Kingdom (UK), Ireland (IE), Netherlands (NL), Belgium (BE), Germany (DE), Austria (AT), Italy (IT), France (FR), Spain (ES), Poland (PL) and Hungary (HU).

Corporate Social Responsibility (CSR) According to Archie Carroll, the idea of ‘social responsibility’ was introduced into business literature in 1953 by Howard Bowen, who used the words to refer to ‘the obligations of businessmen to pursue those policies, to make those decisions, or to follow those lines of action, which are desirable in terms of the objectives and values of our society’. In the 1960s ‘corporate’ was usually added to the concept, and in the 1970s the ‘objectives and values of our society’ were increasingly operationalized as a search for a balance of interests and the acknowledgement of multiple stakeholders: not only the owners, investors and shareholders; but also employees; consumers; suppliers or subcontractors (and their employees); local communities; and representatives of various general interest groups. Interests to be included were the health and safety of employees, the avoidance of racial discrimination, the reduction of pollution, and the improvement of the physical and social environment of the enterprise. In the 1980s and 1990s, a widening idea of sustainability became an important lead for CSR. First it was focused on the environment and natural resources   The membership data is derived from the European Social Survey 1 (2003/4). For the data regarding the non-profit sector see: Lester M. Salamon, S. Wojciech Sokolowski and Regina List, Global Civil Society: An Overview (Baltimore: The Johns Hopkins Center for Civil Society Studies, 2003).   Archie B. Carroll, ‘Corporate Social Responsibility: Evolution of a Definitional Construct’, Business & Society 38(3) (1999), p. 270.

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(ecological sustainability), but then the idea of looking to more aspects for a longer period of time was extended to include social goals such as protecting communities, preventing excessive inequalities, etc. (social sustainability) and to the original economic concerns, such as long-term needs for profit to survive and for innovation (economic sustainability). Although this broadening of perspective has been criticized as becoming too unfocused and leading to abstract and purely metaphorical discussions, the idea of finding a balance between three general aspects of concern seems to be established firmly in the present thinking about CSR. One expression of this is the notion of the ‘Triple P’ of ‘profit, people and planet’. Figure 10.2 is an example of the self-presentation of CSR by a private company, the Italian power company ENEL.

Figure 10.2 Example of corporate social responsibility   Not to be confused with PPP, which denotes ‘public-private partnership’.   Source: ENEL. The accompanying text for Figure 10.2 reads: ‘For ENEL, corporate social responsibility (which we also call more simply “corporate responsibility” or “sustainability”) is based on the relationship between the three aspects that it comprises: economic responsibility, social responsibility and environmental responsibility. Economic responsibility includes all the people and stakeholders that have a direct relationship with a company in economic, financial and/or commercial terms (shareholders, providers of capital, customers, suppliers, employees, and – to a certain extent – institutions). Social responsibility represents our relationship with “society at large” and considers the communities that live around and near our industrial plants, society in general and the associations that represent it and, again, shareholders, providers of capital, customers, suppliers, employees, and institutions, as components of society at large. Finally, the privileged references for environmental responsibility are the future generations, the associations whose mission is the protection of the environment, institutions, and citizens in general.’

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An important aspect of CSR is that it is something extra, something delivered voluntarily over and above a corporation’s legal requirements. It might be an additional moral obligation, or something motivated by a public relations perspective, to regain the goodwill of the consumers and the general public, but this should not be enforced by governmental regulation. NGO Social Responsibility To what extent can CSR be translated into NGO social responsibility (NSR)? The answer depends on the kind of NGO. Non-profit service providers can be very similar to ‘normal’ companies, facing the same dilemmas regarding balancing the interests of their owners, employees and the wider social and physical environment. Due to the fact that they are producing services instead of goods, the ecological challenges might be less. Being funded to an often substantial extent by the government and social insurance contributions, the pressure to make a profit (i.e. to realize a surplus for expansion of activities and to have a buffer for difficult times) might be weaker, but the conditions for public reimbursement of costs, the intensity of public regulation, the involvement of several layers of public authorities, professional interests, etc. might make things more difficult. However, the CSR model of balancing aspects of sustainability or interests of shareholders can be helpful for the service-providing non-profit organizations.10 But many NGOs are not service providers that are readily comparable with corporations. For interest and advocacy groups, the corporate idea is not very helpful. We need to develop new concepts. Three possible meanings of social responsibility are: 1. Contributing to a specific social good or common interest, feeling responsible for social needs that are not covered by governmental policies or even not yet acknowledged by the public. 2. Behaving in a responsible way towards the membership or supporters by: a. not using them in a cynical, instrumental way; not creating chaos, unnecessary feelings of insecurity, unfounded distrust towards other people and society, etc; and b. contributing to their development, education, social integration and political skills. 3. Behaving in a responsible way towards society at large by: a. not taking illegal actions, not abusing positions of power, putting social peace at risk, etc.; and

  ‘… any good or appropriate corporate response to society should be voluntary. The more laws or policies put in place to require certain minimal actions will indeed generate mediocrity with truly minimal levels of compliance or will drive away those who find innovative ways to continue doing business competitively without the iron hand of bureaucracy. An extensive CSR literature exists with a variety of CSR definitions, definitions that vary by cause, country, and author, but the main theme is that CSR remains voluntary’. Linda C. Rodríguez and Jane LeMaster, ‘Voluntary Corporate Social Responsibility Disclosure’, Business & Society 40(3) (2007), p. 378. 10  In reference to these kinds of non-profits, there is an interesting trend in European countries to make them more similar to ‘normal’ enterprises. In the Netherlands the concept of ‘social enterprises’ is used: service providers that compete in the marketplace but are not allowed to distribute profits.

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b. feeling jointly responsible for societal progress in a more encompassing and active way: not being too focused on the special interests of the organization, keeping an eye on general interests, and trying to be cooperative and inclusive.11 Some of these issues are further elaborated in literature and empirical research. For instance, regarding 2(b) and 3(b), there is a rich body of literature on the contributions of associations to democracy.12 However, we have at least multiple criteria here. They are not all covered by convincing indicators and the balance between the criteria is open for discussion. Because it is not self-evident what social responsibility is and how it can be operationalized, NGOs have to discover this by presenting their claims and actions in both public and political debate. This leads us to a discussion about accountability. Accountability and More According to Mark Bovens, ‘accountability’ is at the same time a golden concept, that no one can be against, and an essentially contested and contestable concept.13 The concept is beneficial, but it means different things to different people in different places and contexts. It ‘often serves as a conceptual umbrella that covers various other distinct concepts such as transparency, equity, democracy, efficiency, responsiveness, responsibility and integrity’.14 Bovens himself defines accountability in a more narrow sociological sense as: ‘a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgements, and the actor may face consequences’.15 It is more than transparency (which does not imply scrutiny by a specific forum) and different from responsiveness, consultation, deliberation and participation (which do not imply the elements of judgement and consequences, and are more often on the input side of policy-making than retrospective). Bovens distinguished types and regimes of accountability based on and combining the nature of the actor (corporate, hierarchical, collective or individual), the nature of the forum (political, legal, administrative, professional or social), the nature of the conduct (financial, procedural or product) and the nature of the obligation (vertical or a hierarchical relationship), horizontal (moral or based on mutual obligations of equals) and diagonal (‘in the shadow of hierarchy’). 11  Edward Shils, ‘The Virtue of Civil Society’, Government and Opposition 26(1) (1991), pp. 3–20. 12  See Mark E. Warren, Democracy and Association (Princeton: Princeton University Press, 2001), pp. 70–93, for a more full list of development effects of voluntary associations on individuals: (1) efficacy; (2) information; (3) political skills; (4) civic virtues; and (5) critical skills. Besides the development effects he mentions: public sphere effects (public communication and deliberation; representations of difference; and representations of commonality) and institutional effects (representation; resistance; subsidiarity; and coordination and cooperation). Also see Archon Fung, for six ways in which associations are supposed to enhance democracy: through the intrinsic value of associative life; fostering civic virtues and teaching political skills; offering resistance to power and checking government; improving the quality and equality of representation; facilitating public deliberation; and creating opportunities for citizens and groups to participate directly in governance. Archon Fung, ‘Associations and Democracy’, Annual Review of Sociology 29 (2003), pp. 515–39. 13  Mark Bovens, ‘Analysing and Assessing Accountability: A Conceptual Framework’, European Law Journal 13(4) (2007), pp. 447–68. 14 Ibid., p. 449. 15 Ibid., p. 450.

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In this perspective, NGOs in Europe are accountable in various ways. Their boards or chairs may be held hierarchically, legally and vertically accountable in court for any harmful actions or products of the organization. There might be internal procedures for the collective political and social accountability of a task force in a meeting of members. Regarding social responsibilities of the NGO, various types of accountability may apply, as board decisions are made, money is spent and legal obligations are obeyed or not, interests of other parties may be negatively impacted, etc. The growing literature about NGO accountability uses the term in a broad sense of ‘stakeholder accountability’. In this perspective, the right to hold an NGO accountable is not restricted to formal authorities, but to ‘any group or individuals who can affect or is affected by … an organization’.16 This kind of accountability is more participatory and proactive, but also more vague and less binding and obliging than the stricter concept of Bovens. Hetty Kovach, Caroline Neligan and Simon Burall operationalize the approach in the so-called ‘Global Accountability Project’ (GAP) of the One World Trust with eight dimensions, of which they use two (member control and access to information) to compare a few international NGOs with intergovernmental organizations and transnational companies.17 The NGOs do not collectively perform better. In a later GAP publication, accountability refers to: The process through which an organization makes a commitment to respond to and balance the needs of stakeholders in its decision-making processes and activities, and delivers against this commitment. The key part of this definition is the notion of balance.18

This idea of balance has some similarity with the idea of balance of the ‘Triple P’ of corporate social responsibility, but it is more indefinite because it might be more difficult to limit the number of stakeholders and to weigh their importance than to make a framework to measure and compare ‘profit, people and planet’. In the literature about NGO accountability, the diversity of stakeholders is an important issue.19 Organizations have to be accountable to their donors, their members and volunteers, their clients and the communities they work for, the public authorities that supervise organizations in general or have given allowance for specific activities, etc. The various perspectives compete and the simplest accounting perspective can easily win. It is easier to show the donors that money is spent on specific 16 R. Edward Freeman, Strategic Management: A Stakeholder Approach (Boston: Pitman Publishing, 1984), cited in Hetty Kovach, Caroline Neligan and Simon Burall, Power Without Accountability? The Global Accountability Report 1 (London: One World Trust, 2003), p. 3. 17  The eight dimensions consist of: member control; appointment of senior staff; compliance mechanisms; evaluation processes (these four for internal stakeholder accountability); external stakeholder consultation; complaints mechanisms; corporate social responsibility; and access to information (for external stakeholder accountability). 18  Monica Blagescu, Lucy de Las Casas and Robert Lloyd, Pathways to Accountability: The GAP Framework (London: One World Trust, 2005), p. 20. See also Hugo Slim, who defines NGO accountability as ‘the process by which an NGO holds itself openly responsible for what it believes, what it does and what it does not do in a way which shows it involving all concerned parties and actively responding to what it learns’. Hugo Slim, By What Authority? (Geneva: International Council on Human Rights Policy, 2002), p. 12. 19  Lisa Jordan, Mechanisms for NGO Accountability (Berlin: Global Public Policy Institute, 2005); Carol Ann Tilt, NGOs: Issues of Accountability (Adelaide: Flinders University, 2005); and Jem Bendell, Debating NGO Accountability (Geneva: UN Non-Governmental Liaison (NGLS), 2006). See also the website of the United Nations Non-Governmental Liaison Service (NGLS) for reports, papers and conferences about NGO accountability, including an ‘Accountability Charter’ of International NGOs. Available at: www.unngls.org (last visited June 2009).

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activities and to show public authorities that rules have been followed than to show that the results of the activities were successful in a broader sense. Moreover, the goals of NGOs can be so vague or abstract that it is unclear what the criteria should be to account on. An NGO is not a business firm and the usual criteria of economic rationality, administrative efficiency and quantitative goal attainment might simply not apply or guide away from the more important discussion about the role and purposes of the NGO in society.20 Regarding social responsibility, the horizontal social accountability to the general public is probably the most important perspective. However, one might dispute whether the term accountability in the narrow sense that Bovens uses it, is adequate in this case. The general public is not a ‘forum’ that can pose questions, pass judgements and enforce consequences for the NGO. The general public can be considered to be represented by (other) interest groups and the mass media, but the problem remains that processes of justification and accounting remain rather unorganized. There are, in general, no formal rights to pose questions and to require answers, and no formal sanctions and only rather unpredictable consequences. The mass media and the interactions between NGOs and interest groups have their own dynamics and the outcomes are not only dependent on the strength of facts and arguments, but also on public relations, prejudices, money, etc. Consequences in terms of increases and decreases in public trust, memberships and donations are not the results of rational collective judgement. The collective rationality will be stronger – or the risks of irrational collective processes of abusing and glorifying NGOs will be smaller – when various conditions of a good public sphere are fulfilled: a plurality of mass media; checks and balances between interest groups; an open and critical public of well-educated citizens that are not easily misled, etc. These conditions are difficult to realize and they are always under threat (for instance, in Europe, because of the commercialization of the media, and the fragmentation of public discussions). Self-regulation of the mass media is important (for instance, rules of good conduct and ombudsman regulations) and government has a role to play as well. Public regulation regarding transparency, donations, election procedures, etc. are important to support a public sphere in which claims about social responsibility can be discussed. Ultimately, one might prefer to drop the term ‘accountability’ because of its connotations, which are too economic and formal. Especially with regard to NGOs, it had developed a broader meaning of a general willingness to go into the public sphere to debate one’s goals and actions. This is a highly relevant attitude. There are no simple criteria on which to decide whether an NGO is socially responsible or not, and trying to regulate and control social responsibility from above would end nowhere (or in repression). It is essential to have a critical public sphere to test claims of social responsibility, and to have moral and formal obligations to search for legitimacy and support in the public sphere. Public Trust Public trust in NGOs is not proof of their accountability or legitimacy, but it is an interesting background against which to consider their need to work on these issues. In the ‘Eurobarometer’ opinion survey, samples of the populations of the 25 member states of the European Union are

20  Tilt, NGOs and Glen Lehman, ‘The Accountability of NGOs in Civil Society and its Public Spheres’, Critical Perspectives on Accounting 18 (2007), pp. 645–69.

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regularly asked about their trust in various institutions.21 There is no category of NGOs as such among these institutions, but the category of ‘charitable or voluntary organizations’, most recently included in a questionnaire in 2005, comes close (although one problem might be that translations of this concept sound unfamiliar in some countries). Figure 10.3 shows national combinations of trust in this category and trust in parliament. Parliament can be considered as the most important impartial political institution. Countries are indicated by their country code.22

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Figure 10.3 Trust in parliament and in a type of NGO in old (o) and new (■) EU member states23 In countries above the diagonal line, the public has more trust in charitable or voluntary organizations than it has in the parliament. This turns out to be the case in all countries except Denmark and Finland. Most new EU member states of 2004 are low in trust on both institutions, but they also prefer NGOs to the parliament. Estonia, Cyprus and Malta are among the more trusting countries, with the highest trust for NGOs in Malta. 21  ‘I would like to ask you a question about how much trust you have in certain institutions. For each of the following institutions, please tell me if you tend to trust it or tend not to trust it’. In Figure 10.3, we use percentages ‘tend to trust’ rather than ‘tend not to trust’ and ‘don’t know’. 22  The 25 EU member states of 2005 in alphabetic order of the country codes: Austria (AT), Belgium (BE), Cyprus (CY), Czech Republic (CZ), Germany (DE), Denmark (DK), Estonia (EE), Greece (EL), Spain (ES), Finland (FI), France (FR), Hungary (HU), Ireland (IE), Italy (IT), Lithuania (LT), Luxembourg (LU), Latvia (LV), Malta (MT), Netherlands (NL), Poland (PL), Portugal (PT), Sweden (SE), Slovenia (SI), Slovakia (SK) and the United Kingdom (UK). 23  Based on data from Eurobarometer 64.2 (October–November 2005).

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Conclusion This chapter began with a description of NGOs and the concept of corporate social responsibility (CSR). For corporations, social responsibility is basically a broadening of the single-minded perspective of profit-making. It intends to broaden the circle of relevant interests (from shareholders to stakeholders) and widen the time horizon (sustainability). This broadening of the business mind can be a helpful guideline for a subgroup of corporation-like NGOs, which concentrate on providing certain services. However, most NGOs are not corporation-like and for them social responsibility is not just a correction of a single-minded, potentially unsocial focus on profits or efficiency. They have social goals and often pretend that contributing to the common good is their core business. However, whether their targets and strategies are socially responsible or not, is not self-evident and cannot be decided in an NGO board meeting. There is a need for public justification. This leads us to a discussion about accountability. In a strict sense, the concept of accountability is too limited and legal. What is needed is not legally enforceable accountability, but what Richard Fries calls in Chapter 11 of this volume, ‘discretionary accountability’24 This concept requires more than transparency and a willingness to give account on the side of NGOs. It also asks for critical journalism, media that offers room for opposing opinions to express themselves, and an interested public. A final remark I want to make concerns the attitude of the government towards NGOs. European countries have very different traditions in the relationship between government and NGOs. Some countries are more corporatist, with politically well-integrated, moderate and ‘responsible’ NGOs. Others are more liberal, with a more adverse relationship between the government and NGOs, which behave in a more autonomous and competitive manner. Both models have their benefits and drawbacks. Too much integration and social responsibility alienates organizations from their rank and file; too much independence and focus on special interests can result in frustrating social turmoil with no other benefit for the rank and file than having the opportunity to express discontent. Governments share the responsibility for these dynamics. They must leave room and time for NGOs to develop their social responsibilities. Over-stressing social responsibility keeps NGOs weak or alienates them from their backers, which in the long run renders them worthless as government partners in any case.

24  See Chapter 11 in this volume.

Chapter 11

The Role and Organization of Voluntary Action Richard Fries

Introduction Civil society and civil society organizations are two of the ways in which the complex issue of informal and formal activity by citizens can be labelled collectively. This chapter focuses on the organizational aspects of this issue, but a few introductory comments are necessary to set the context. The final section discusses some of the issues arising from the changing role of civil society in the West. It is necessary to say a word about terminology. Many different expressions are used to describe civil society organizations. Many focus on particular features of these organizations, like ‘notfor-profit’ organizations (NPOs) and ‘non-governmental’ organizations (NGOs). Throughout this chapter, except where the context requires otherwise, the term ‘voluntary organization’ is used to refer to citizen organizations operating independently of government on a voluntary not-for-profit basis and having a social purpose, often although not always, for the public benefit. ‘Civil society’ is a slippery concept, easier to recognize than define. For practical purposes, it is an unnecessary distraction to spend time debating contending definitions of civil society; and its meaning, or useful application, varies from society to society. In the modern world it is sufficient to recognize that government and business, however organized, are key poles of the organization of society: but that, however far-reaching this encroachment is into the lives of citizens, an important space remains for the activity of citizens in pursuit of goals they themselves set. This leads to the helpful, if inevitably over-simplistic, categorization of society into three sectors: the public sector of government and the state; the business sector of commerce, manufacturing and agriculture organized on a for-profit basis; and the ‘third sector’ of citizen-led activity, whether for private or public interest. It is important to treat the three-sector model as a framework for discussion and not as a precise set of categories into which all organizations and activities can be slotted. The boundaries between governmental and citizen activity and organization are not rigid. Indeed, a valuable feature of governance developments worldwide is the increasing interaction of government and citizen. Similarly, market mechanisms extend beyond the business sector and feature in both the public and ‘third’ sectors. With the foregoing reservations in mind, this section turns to the core issue of voluntary organizations and their link with civil society; that is, the relationship between citizens and citizen organizations. For most people, private (personal) life revolves around the family. Conventionally, ‘civil society’ is treated as the sphere of activity outside the family and domestic sphere; but, as with the relationship between the three sectors, there is no clear boundary between civil society and the family/domestic sphere. Much civil society activity and organization arises out of domestic and family pursuits and concerns. Thus neighbourhood and community activities are an extension of private life. For example, families cooperating to form childcare groups in effect create a simple

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citizen organization. This is replicated across other spheres of activity, in particular in the form of social, cultural and sporting groups. Many may be essentially informal arrangements, based on mutual expectations, without written rules. However, even at a fairly simple level, forms of organization are desirable to help run the activities, such as rules about meetings and especially where the handling of money and property become involved. Participation in such activities carries responsibilities, but they are mutual and reciprocated with other members of the group. The core of organized civil society lies in such citizen’s organizations and the essence of legal and regulatory provisions is to support such activity, so that it can function effectively. This reflects the principle, ultimately enshrined in the Universal Declaration of Human Rights, that citizens have a right to freedom of association. But it also reflects the fact that citizen activity and organization are fundamental to the wellbeing of society. This has two basic aspects: personal (or private); and public. The more people can pursue their own interests and passions, the greater citizens’ wellbeing. Second, the more citizens can contribute to meeting their own needs, the more they contribute to the tasks of the state. Thus the state has an interest in, as well as a responsibility for, providing an enabling framework for civil society. Of course, the exercise of freedoms by individual citizens, alone or collectively, has to take account of the interests of others. It has, in other words, to be exercised responsibly. In particular, the right of freedom of association is not unconditional; it has to be exercised within the requirements of the law protecting citizens from crime and harm. Rights involve duties. Of course the basis for exercising rights is that they are exercised responsibly. The social responsibility of voluntary organizations is a wide issue. Self-regulation, at a personal and organizational level, is fundamental. The role of regulation and accountability in the framework for civil society is dealt with later in this chapter, but the legal basis may be illustrated here by reference to the European Convention on Human Rights (the ECHR). Article 11 establishes the right to freedom of association. Article 11, section 2, however, provides that: no restrictions shall be placed on [its] exercise other than such as … are necessary … in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

This long list of factors which have to be respected in exercising freedom of association (and the other freedoms, like freedom of expression) highlights the balance that has to be struck between the rights of individuals, privately or collectively, in civil society, and the stability of society as a whole. There has to be a mechanism that strikes this balance without undermining independence. Organized Civil Society The institutional framework for civil society must provide for a wide range of legitimate activities that citizens may wish to pursue. A fundamental distinction may be made between activities of an essentially personal or private nature or motivation, such as those activities that are for private enjoyment or interest and of value only to the participants, and in which the state has no interest; and, on the other hand, activities which meet a need or goal of public interest and involve issues which the government has an interest in seeing fulfilled because they are part of the necessary or desirable features of a harmonious society. The distinction between private and public activities, or purposes, is not absolute. Activities pursued for personal enjoyment, like arts and sport, have a public value. This has led some

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commentators to argue that civil society activity (provided, of course, that it is lawful, and takes account of the interests of others) is in itself of value to society as a whole and ought therefore to be supported by the state. Whether one accepts that approach or not, in practice the concept of public benefit organizations (PBOs), as forming the part of civil society in which the state has a direct interest, is a common basis for legal and institutional arrangements (often limited to tax issues). However the distinction is made, there are important consequences. It is fundamental to the distinction between private and public purposes that the former need a secure legal and institutional framework, but not active support and regulation by government: whereas, by contrast, the public interest in voluntary organizations serving the public benefit (PBOs) calls for both more active support and greater accountability. The core of civil society activity is providing things of value or enjoyment. They range from traditional charitable activities like relief of poverty, sickness or distress, to social and cultural activities in which the enjoyment of the participants is as important as that of the spectators. Whatever form such activities take, they are conveniently, if somewhat misleadingly, labelled as ‘service delivery’. This reflects the fact that the aim is to provide a service. This is misleading in that it implies that there must be a separation between the provider and recipient of the service. As implied above, mutual activity, for example in singing or playing sports, benefits those participating, whether or not there are others who benefit. In parallel to ‘service delivery’, voluntary organizations may be involved in expressing views. This may range from opinion forming, for example as part of educational or research activities, to purposeful lobbying, designed to change the attitudes of others, including the policies of public bodies. This is conveniently labelled ‘advocacy’ (though the campaigning implications of that label are not necessarily involved). While civil society bodies may be solely concerned with ‘advocacy’ (in some form), it is equally found in ‘service delivery’ organizations. Indeed, the interaction between providing tangible services and seeking to influence views is often important and fruitful. Thus environmental organizations may well be engaged in particular projects seeking to achieve environmental improvements, and at the same time wish to raise awareness of environmental issues relevant to their projects. It is important that the legal and institutional framework supports both activities. Besides service delivery and advocacy, the provision of resources for civil society activity itself is an important part of civil society activity. Most obviously, the provision of money for the running of voluntary organizations and their programmes can be made by voluntary organizations themselves. Thus ‘grant-giving’ bodies are an important part of civil society. Equally important are ‘human resources’. While professional paid staff are essential for voluntary organizations over a certain size, volunteers (citizens who freely contribute their time and expertise without material reward) are important. Organizations that encourage volunteers are an important part of civil society. In addition, voluntary organizations may be concerned with promoting the efficiency and capacity of voluntary organizations. The legal and institutional environment for civil society has to provide an effective enabling framework for voluntary organizations engaged in some, or all, of these types of activity: service delivery; advocacy; and resource and capacity provision. Formal Organization of Civil Society There are a number of reasons why citizens engaging in activities may need to move from informal organization to a formal, legally structured organization. Quite complex activities can be pursued

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by people linked together in an informal organization, provided there is trust among them and a sufficiently agreed set of procedures. However, formal organization, with rules of procedure and responsibilities, facilitates operations and enables interaction within the organization and relationships with outside individuals and bodies to be conducted more easily and efficiently. Without formal organization it is difficult for a body to have an effective identity, which is necessary for many transactions. Formal structure is expressed in an organization’s constitution. This determines its identity and independence. It also provides for the governance and management of the organization, for its activities and resourcing, and for accountability. The nature of these factors depends on the type of organization. In particular, the extent to which the constitution sets rules and procedures for its members alone, or provides for other individuals and organizations outside the body who have dealings with it, depends on its purposes, and the interest others legitimately have in it. The basic elements for which any constitution must provide are: • • • • •

the identity and purpose of the organization; its composition (membership, resources); its governance (board and accountability); powers and procedures (authority for activities in pursuit of its purpose); and reporting and accounts (activities and finances).

Voluntary Organizations with Legal Personality Organizations take many forms. The simplest are customarily called associations and foundations, reflecting the basic distinction between organizations of members and non-member organizations based on money or other resources. At their simplest level, associations and foundations can be created informally, in effect coming into existence through the activities of those involved. Thus a group of people cooperating for some local activity, for example social or cultural activities, childcare or neighbourly mutual help, or community improvement, can form an association for their purpose by mutual agreement and understanding. How far they formalize their procedures and rules should be a matter of choice. Similarly, people wanting to establish a fund for a particular purpose, for example to deal with a local problem or to undertake community improvement, can do so without formality. This does, of course, depend on mutual trust, in particular in the arrangements for holding money and other resources. As noted above, informal arrangements can only support relatively simple activities. The two basic needs that formal organization must satisfy are: the internal need for procedures and responsibilities among those engaged in the issue (governance); and the external need to be able to undertake transactions with, and commitments to, other parties (contracting). Governance requires rules for the establishment of the organization’s board, and in particular the role and responsibilities of the chair and treasurer. Contracting with other people and organizations involves establishing a relationship between the body itself, as distinct from those individuals who make it up, and other people and organizations, for example for sale or purchase of goods. Any organization requiring property for its activities, for example, equipment, but in particular buildings (even if rented), needs sufficient formalities in order to establish its identity. Even creating a bank account, especially these days when the international community is so concerned with money laundering, requires sufficient formality to enable the organization to be identified so that, if issues arise, for example

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over liabilities, they can be pursued. It is thus customary to require an organization seeking to open a bank account to present a constitution with at least minimum governance provisions. The requirements described above can, in principle, be met quite simply, by agreement among the members of the organization, without formal or legal processes. However this does not give the organization legal identity. For this, a legal process to establish what is known as ‘legal personality’ for the organization is necessary. This means that the body exists in law in its own right, above and beyond the members and individuals operating it. This has a number of advantages. It clarifies ownership and responsibility, and makes it easier for people and organizations dealing with it to engage in transactions. It gives them security in that, if the need arises, they are able to take up their issues with an organization, seeking redress or recompense if necessary. It likewise opens the way to security for the board and members of an organization. This can be achieved by limited liability, under which the constitution of a body ‘incorporated’ into its own legal personality provides for the liability of the board and members to be limited to a sum they guarantee. This is characteristically a small amount. This enables those involved in the organization to separate legally their possessions from the property of the organization. Those dealing with it know that they can rely on the security of the organization but cannot pursue the board or members personally. This of course places a responsibility on board members to act responsibly; limited responsibility is no protection against fraudulent or reckless behaviour. Governance As this chapter has emphasized, voluntary organizations arise out of citizen activity. It is important to retain this ethos even in large organizations far removed from local community or neighbourhood bodies. Whereas the sort of local bodies already discussed – such as social groups or childcare associations – can be self-running, larger organizations need formal structures for governance and management. These can vary, and can be adapted to suit the needs of the organization and the preferences of the people concerned, provided certain fundamental requirements are observed. Governance of voluntary organizations has rightly been given special attention in recent years. The concept covers the arrangements for managing a voluntary organization’s overall purposes and administration. The essential features of governance concern: the purpose of the organization; its strategy for fulfilling it; its organization and resourcing; its accountability; and, of particular importance, its ethos. The constitution of a voluntary organization needs to provide for a board of directors, the fundamental responsibility of which is the governance of the organization. The board and its directors may have varying titles – in English, ‘management committee’ is common. What is important is not the label, but a clear understanding of the role and responsibility for governance which the board, under whatever name, exercises. It is customary to distinguish governance from management. This is one reason why ‘management committee’ can be a misleading title for the board. Governance involves setting the objectives of the organization and overseeing its implementation. This is the organization’s strategy. It contrasts with the day-to-day task of taking action to give effect to the objectives. Managing the resources of the organization and running its administration is the responsibility of its staff. Lack of clarity about this distinction is a source of confusion, often causing difficulties and breakdowns. The board of directors must not interfere with the running of the organization – its management. That is for the chief executive and senior staff – the senior management team. Holding the chief executive and staff to account is the task of the board, normally done by regular reporting to board meetings. Of course, the board is entitled to challenge senior management if it believes that the strategy it has set

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is not being implemented effectively, or if it considers that resources are being improperly used or the organization’s financial viability is being endangered. In these circumstances the board’s duty is to intervene; but it must be done through its senior management, not by taking over management. The board’s ultimate power is to remove the organization’s chief executive if it has lost confidence in his or her ability to fulfil the board’s strategy or manage the organization and its resources satisfactorily. The precise way in which the board and staff interact will depend on personal qualities, time and expertise. In practice, it is often the senior management of a voluntary organization which has the detailed knowledge and professional skills to develop its objectives and policies. The board of directors may lack both the detailed knowledge and the time to draw up the organization’s strategy. What is important is that it does, collectively, have the skill and time to adopt the strategy and oversee its implementation. In a real sense the strategy must be the board’s, even if it is actually drafted by the senior management. The composition of the board must be specified in broad terms by the constitution. For membership organizations the election of a board of directors from its members, and their accountability to the membership is basic. For foundations, and comparable organizations without a membership, the selection of board members through the constitution normally falls to the existing directors. It is important that they cast the net wide enough to ensure the necessary range of skills and backgrounds, reflecting the organization’s mission. Public advertising for board members is increasingly encouraged in the UK, but the power to co-opt board members to ensure that the board has the necessary range of skills and experience is an essential safeguard. The terms of board membership vary, but the notion that the boards of voluntary organizations are voluntary and unremunerated is a general principle in the UK (and the United States). This reflects the tradition of ‘trusteeship’ and altruism, under which directors are regarded as holding the purpose and resources ‘in trust’. Altruism is a valuable virtue, reflected in the belief that the board of a voluntary organization serves as a public service rather than for personal benefit. The precise terms of service, including occasionally some form of payment in addition to expenses, may depend on circumstances. The fundamental principle is the separation of the board’s governance role from the staff executive role. The chief executive and other members of senior staff, especially the finance director, normally attend board meetings; they may indeed be formally members of the board. But they cannot exercise voting rights where issues need to be decided by vote and clearly they must withdraw where confidential issues for which the board alone can take responsibility are under discussion, in particular issues concerning the position and accountability of the chief executive. Perhaps the most important, if less tangible, responsibility of the board of a voluntary organization is for its integrity and ethos. Integrity is, in part at least, clear – it means compliance with the law and the organization’s constitution, and its financial affairs. But it goes further for civil society organizations, particularly those operating in the public interest. The feature which distinguishes civil society organizations from those in other sectors is their social responsibility. Voluntary organizations are independent (hence the use of the terms ‘non-governmental’, ‘not-forprofit’) and are ‘mission-driven’. This is in contrast to the ‘for-profit’ market section, where the ‘bottom line’ overrides other considerations. It is the board’s responsibility to safeguard this ethos. This is the fundamental issue in the social responsibility of voluntary organizations.

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Accountability Accountability is the responsibility of the board. It is a dual responsibility. As discussed in the previous section, internal responsibility focuses on the board: the chief executive and staff are accountable to the board. But the board has the parallel responsibility of fulfilling the accountability of the organization itself. This is complex and varied. In particular, it is balanced by the fact that civil society organizations are independent. This is an equally complex feature. However, fundamentally voluntary organizations are independent of government and independent of other organizations, including founding and funding organizations. This makes their accountability all the more important; and equally important that the board exercises it in ways that preserve their organization’s independence. Voluntary organizations must operate within a legal framework which upholds their independence. The constraints on voluntary organizations are those set, within the general law, by their constitutions and the requirements of the laws relating to voluntary organizations, for example in relation to governance. Therefore, the board has to be accountable for compliance with the law. Whatever regulatory arrangements exist for voluntary organizations (discussed below), they are ultimately accountable to the courts. However, provided they act within the law, it is the board, not the courts, which set their objectives and determines the strategy for implementing them. Voluntary organizations owe a wider accountability to their ‘stakeholders’. At the widest, this means all those who have an interest in the organization and the fulfilment of its objectives. More specifically it covers those from whom it obtains resources (discussed below). General donors, for example the public, are entitled to know how their donations are used. Specific sources of funding, from public bodies, corporate bodies or foundations, may reasonably involve specific reporting and, especially in the case of contracts, to deliver specified services and achieve targets. But this accountability must still preserve the independence of the organization, especially at the stage of contract negotiation. The annual report of activities, together with annual accounts of finances, are the basic vehicles for accountability. They are designed to ensure that voluntary organizations are properly transparent about their activities, in relation to the purposes established in their constitution and the integrity and ethos with which they carry out their activities; and about the resources they draw on and the finances, and financial activities, which underpin their activities. It is helpful to distinguish two types of accountability: enforceable accountability; and discretionary accountability. Enforceable accountability relates to requirements with which an organization must comply. The requirements of the law are obviously of this type. The powers and purposes of a voluntary organization are set by its constitution, and laid down by the law. A voluntary organization must comply with these requirements and must be accountable for its compliance. Failure to meet its legal requirements is subject to sanction, as these requirements are enforceable – by either the courts or regulator – and failure to comply leads to enforcement action (the example of the Charity Commission in England is given as an illustration below). While legal requirements are the core of enforceable accountability, they are not the only ones. Where contracts are entered into, an organization takes on enforceable requirements. This most clearly arises where an organization is funded to deliver specified services. It is accountable for fulfilling the requirements it has undertaken. It is important, however, that the enforcement of accountability, whether by the regulator or by the contract partner (which may be the government or public authority) is limited to the requirements to which the organization is legally or contractually bound. Neither regulation nor contract should remove the independent discretion of voluntary organizations. This is a fundamental principle of civil society, namely that voluntary organizations are a vehicle for

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the independent activity of citizens. If this independence is lacking, the organization becomes a dependent agent of the authority it serves. This is, of course, a perfectly legitimate relationship, but it should not be confused with civil society. Government, in particular, has to be clear about the relationship it is seeking to establish. The right to independent action, and freedom from detailed control, creates corresponding responsibilities. Fulfilling these responsibilities can be described as discretionary accountability. What this means is accountability undertaken by voluntary organizations on their own account, in fulfilment of good practice, rather than legal requirement. It gives expression to the social responsibility of voluntary organizations. In this sense, it is as important as enforceable accountability. It serves to establish the legitimacy of the organization. Voluntary organizations are ‘self-appointed’, in that they derive from the commitment of the citizens who establish and maintain them. This independence is a strength, but the authority that goes with it depends on demonstrating, in action and word, that the organization’s claims are justified. Accountability is the process by which a voluntary organization’s legitimacy, in its field, and according to its aims, is demonstrated. The British Charity Commission Example The British Charity Commission (CC), strictly speaking the Charity Commission for England and Wales, is an example of one model of regulatory body. It registers and regulates charities based (but not necessarily solely operating) in England and Wales. There is also a similar authority in Scotland. Charities are public benefit voluntary organizations (PBOs). The legal details can be ignored here, but the fact that the CC’s remit is concerned with bodies which operate for the public benefit is important. In Britain the view is taken that voluntary bodies with a private or personal purpose (like social clubs) should not be regulated by a public regulator; they should instead be accountable to those concerned, in particular the members or those using their services. The CC’s function is to look after the public interest. This arises from the fact that, through their purpose, PBOs serve the public interest and, in consequence, have a privileged legal and institutional status with commensurate benefits, in particular tax benefits. The CC’s responsibilities are: • • • •

the registration of PBOs on a public register of charities; setting and monitoring annual reporting and accounting; supervising and advising on legal, governance and financial requirements and good practice; and investigating and remedying abuse and mismanagement.

The CC is set up by an act of parliament, with powers to fulfil these responsibilities. Technically, it is a government department, funded by public funds, but its Act makes it independent of governmental control and direction. It is thus a public agency independent of government. It is accountable to the courts for the way it exercises its powers – PBOs and individuals affected by its decisions have a right of appeal, in the first instance to the Charity Tribunal (set up by the Act) and from the Tribunal to the courts. The CC’s role is thus to act in the public interest, safeguarding the independence and integrity of charities. Its aim is to maintain public confidence in the independence and integrity of charities.

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All voluntary organizations based in England and Wales must register with the CC if their purpose is a public benefit one. There are quite complicated legal requirements to assess this, but the tests are ‘objective’ in that they are subject to legal determination, not CC discretion. Thus the CC must register a PBO that meets the legal requirements for public benefit status. Registration is therefore a right, not solely an obligation, and if registration is refused, there is a right of appeal to the Charity Tribunal and courts. The government plays no part in the process, however as registration brings automatic tax benefits, the tax authorities may express a view. That view is however confined to the question which the CC has to decide, normally whether the legal test for public benefit status is met. PBOs in Britain must meet two other tests in addition to having a public benefit purpose. They must be legally independent. This requires them to have a constitution which provides for a board of directors (the ‘trustees’) who exercise ultimate responsibility for the PBO, independent of any outside body or person, whether funder or founder. PBOs must also be non-profit bodies. This means that any financial surplus which a PBO has must be devoted to its public benefit purpose and may not be distributed to its directors or members. It cannot have shareholders, as strictly speaking, PBOs are classified as ‘non-profit distributing’, since they may, under British law, engage in trading activities, making charges for their services or selling goods, and thus make a surplus (profit), but may not distribute this surplus. The function of the CC is to provide the means for PBO accountability as well as to act as a regulator. Charities are subject to accounting and reporting requirements which are designed to ensure that registered charities are open to their stakeholders and the public at large about their activities in pursuit of the public interest, as specified in their public benefit purposes. This is the requirement of transparency. All charities, and public benefit organizations, must prepare an annual report of the activities they have undertaken for the public benefit, and the accounts setting out the finances supporting their activities. The complexity of the reporting requirements depends on the size of the charity – the larger, the more complex. This reflects proportionality. The reports are publicly available, and the larger charities must submit their report and accounts to the CC. The CC’s regulatory role is mainly concerned with monitoring charities’ activities, giving advice and guidance on compliance with the legal requirements and on good governance and management. It has powers to modernize charities’ constitutions and legal powers where necessary. These regulatory activities are conducted in dialogue with charities. Most of the CC’s work is based on cooperation with charities, rather than by compulsion. The CC’s powers to intervene, though substantial, may only be exercised in limited circumstances. This reflects the need to balance the independence and accountability of PBOs. The CC may only override the independence of a charity’s trustees (board of directors) if there are good grounds for suspecting mismanagement or abuse, or that the resources of the charity are at risk. If these thresholds are met, the CC has powers to suspend or remove trustees, replacing them with new trustees (thereby establishing a new board of directors); it may freeze the resources of a charity until the causes of concern have been dealt with; and it may appoint a ‘receiver/manager’ to achieve this. Funding The resourcing of civil society is critical, not just because its viability and impact depends upon adequate resourcing, but also because it raises issues of independence in relation to the sources of funding. Ideally, funding for civil society organizations should be unconditional, at least in the sense that, while integrity is a responsibility and requirement (which regulation and accountability are

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designed to secure), the ‘mission’ of voluntary organizations should be internally driven. Funders should ideally be unconditional supporters of the commitment of those who create and sustain an organization, especially where the purpose is public-spirited. One important issue in civil society is the relationship with the range of funders, and sources of funding, and in particular the protection of the independence of civil society organizations. The resourcing of voluntary organizations is diverse. The fundamental distinction is between internally generated funding and external sources. Some organizations, particularly small ones, are wholly or largely funded by their members. For example, local sports or social clubs may be run on the basis of membership subscriptions. Self-generated funds may involve services, either in the form of use of facilities (as with sports clubs) or provision of goods. On a larger scale, trading is one way in which organizations can generate much or all of their funding. While the commercial activity involved in trading is not incompatible with civil society – provided that the ‘non-profit’ basis for civil society is maintained – issues of ethos do arise. That is to say, the more commercially driven an organization is, in terms of seeking to generate money, the more this may detract from the purpose of the organization. An important responsibility of a voluntary organization’s directors is to ensure that it is ‘mission’ led, in that its purpose remains its priority. Of course, the ideal is where the goods or services traded are precisely those that the organization wishes to produce to meet its purpose. To a greater or lesser extent, voluntary organizations depend on external sources of funding. These take a variety of forms, with different characteristics, and implications for civil society. Broadly, one can distinguish gifts, in varying forms, from grants made for particular purposes. Fundraising, to solicit donations for the purposes of a voluntary organization, has become highly developed in countries like Britain and the United States, virtually a profession in its own right with organizations (like the Institute of Fundraising in Britain) and codes of practice to support it. There are legal provisions on which fundraising is based – though regulation is, up to the present at any rate, left to the profession and civil society through self-regulation. The key legal distinction is between money (or other resources, such as property or gifts in kind, like professional services) given for a particular purpose and money given for any use (within its purposes) at the discretion of the organization. This distinction is reflected in the accounting requirement to distinguish between restricted and unrestricted funds. A particular form of giving is the creation of a capital sum for the benefit of the organization. This has been known as an endowment, in the past required by law to be used only to generate interest to be spent and not itself used up. However, such a restriction is now regarded as unnecessary. This is the basis for the creation of foundations and many of the leading voluntary organizations in Europe and the United States have been formed on this basis, either by wealthy individuals (for example, Bill Gates) or by corporations (such as the Ford Foundation). There are other ways in which foundations are formed, for example through an annual share in the profits of a corporation. Typically, this is the way in which banks establish foundations in Britain, for example the Lloyds TSB Foundation. The important point about foundations is that they are a source of independent funding for voluntary organizations. They enable voluntary organizations to obtain funds for purposes which other funders, for example government, may be unable or unwilling to support without restrictions which interfere with the discretion of the organization. The corollary of this is that the foundations themselves must be independent, for example from the organization which established them: they cannot be controlled by the purposes of the corporation.

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The Role of Voluntary Organizations and Civil Society Today There has been a long and varied history of citizen organization and engagement in the West. Associations, clubs, cooperatives and foundations are just a few examples of the forms it has taken. Such organizations have been concerned with ‘good works’ like relieving the poor and sick – charity in the pure sense, and with private social purposes. Of course some have engaged with the political process, campaigning for their purposes or for reform in general. While there have on occasions been tensions between civil society and government, both the right of citizens to engage and the benefits to society of citizen engagement are accepted, provided that the overall interests of the good order of society are respected. This is of course a difficult balance to strike, both in terms of where the line of permissible dissent is drawn and what authority should be empowered to draw that line between government and freedom. In Europe, the ECHR, enforced by the Europe-wide jurisdiction of the European Court of Human Rights, provides a way of striking this balance. Simplifying greatly, one can characterize the current changes in the role of civil society in the West along the following lines. In the middle of the last century it was the role and responsibility of government itself to provide the services needed to meet the essential needs of citizens. Civil society, in the sense we now use the term covering voluntary action and organization, was parallel but separate. By the mid-twentieth century the ‘welfare state’ had been established in Britain, replacing a patchwork of provision by centrally run public services. Thus the NHS (National Health Services) and local authority social service departments became responsible for health and welfare provision. As noted, this is a simplified picture – private and voluntary organizations continued to operate, but now under the umbrella of the state system. Furthermore the state left some areas of provision to voluntary organizations, for example the maintenance of heritage buildings was left to the well-established National Trust (a registered charity). In recent decades a pronounced move away from this simple public/non-public division of responsibilities has developed. A number of factors have been at work. First, many people, especially those with a passionate interest in a particular issue, for example meeting the needs of children, wanted to continue to exercise their right to engage in issues they felt strongly about. People wanted to take action, for example by setting up their own organizations to meet needs. They also wanted to raise their voices on behalf of those in need, for example for the disabled. Responsible campaigning, to draw attention to need and to lobby for better provision, has as of right a firm place in social organization. Second, and linking with the first factor, increasingly a sense grew that the centrally-organized public services were bureaucratic and inflexible, unresponsive to the needs and wishes of those they were responsible for serving. Both government and citizens placed more importance on the views of the people involved – the ‘users’ of services. The desirability of engaging individuals and communities in the provision of services, both to improve their relevance and the flexibility and responsiveness of their delivery, has become an accepted principle of government. This is reflected in the requirement that policies and initiatives are subject to consultation – made easy in the modern world of electronic communication. It is also reflected in the increasing involvement of users in the governance of services, for example by having users on the boards of public services. Finally it is reflected in the involvement of voluntary organizations in the provision of services as such. In parallel to these factors encouraging the involvement of civil society in partnership with government, economic considerations have played a part. Pressures on government expenditure have grown and it has become increasingly difficult for governments to find the resources necessary to meet the needs and expectations of citizens. Thus ‘push’ and ‘pull’ factors have combined to promote the idea of public/civil society partnership.

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In Britain this development has led to a substantial government programme to support the voluntary sector and encourage its role as a service-providing partner of the public authorities. This has taken the form of investment in efficiency and ‘capacity-building’ programmes. These practical initiatives are covered by an initiative called the Compact. This is a framework agreement between the government and the voluntary sector which sets out the principles which should underpin the relationship between public authorities and voluntary organizations. It covers principles of contracting, consultation and independence. It reflects the fact that the involvement of voluntary organizations in service provision creates a contractual relationship between public bodies, as provisioners rather than providers, and voluntary organizations. It is accepted on both sides that drawing in civil society as providing partners of government must not undermine the independence of civil society. It must not become an agency of government – this would negate the purpose of the development of the public/voluntary partnership, namely the responsiveness and flexibility of civil society. The independence of civil society in this relationship is reflected in the importance attached to the role of voluntary organizations in contributing to policy development. This means that they must be free to comment on policies and not just deliver policies determined by government. This may of course take the form of contributing to government consultations on policies. But it also means that voluntary organizations must be free to raise issues on their own account, not merely waiting for government proposals. This right extends to lobbying and campaigning on issues they consider important. Thus disability organizations have played an important part in reforming the law and policies on services and provision for the disabled. Of course, campaigning has to be carried out responsibly. It is supported by the Compact, which endorses the right of voluntary organizations contracting with public authorities to engage in campaigning. Campaigning is provided for in the law under which charities (PBOs) operate in Britain, but subject to conditions designed to ensure that it is responsible – essentially that it is relevant to the public benefit purpose of the charity and that it is reasonable to suppose that the campaigning will further those purposes. Balancing the independence of civil society with social stability is a delicate issue. Independence requires that civil society cannot be made subject to the government. On the other hand, the need to safeguard the security of society means that civil society cannot enjoy untrammelled freedom. The framework of law, and the subjection of civil society to the courts, is an essential safeguard. However, the courts cannot usurp the discretion of civil society. There is no simple or final answer to establishing the right balance: it has to be constantly maintained. Civil society itself has a role to play. The more organizations in civil society, particularly the ‘umbrella’ or representative organizations, set standards and seek to maintain them, the more ‘self-regulation’ can avoid the need for external regulation. Moreover, in Britain, the independent role played by the Charity Commission and its counterparts in other parts of the UK, make an important contribution to the balance between freedom and regulation. The courts stand as final arbiters of the balance. The pace of change and the challenges of globalization confront Western society with many difficult issues. Many are old issues taking new forms. Poverty, health and education are all issues with which civil society has grappled and made important contributions to over many years. Some are novel – in particular migration, and the diversity it has created in Western societies. Related to this is the continuing question of the role of religion in the modern world – one of the fundamental rights recognized by the Universal Declaration of Human Rights (and the ECHR), but this right is divisive as well as constructive. In addition, terrorism, which is no new issue, but one that has assumed a new salience post-9/11, presents challenges to civil society and its regulation. Civil society has played an important part in responding to the challenges of diversity. In Britain, for example, voluntary bodies, often with a religious affiliation, have played a leading role

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both locally and nationally in helping society respond constructively to the challenges of social and cultural diversity. But it is as important for civil society as it is for government that it is not invested with a halo of virtue. As well as contributing to meeting the problems of diversity, civil society organizations may, inadvertently as well as deliberately, be vehicles for terrorism. Striking the balance between freedom and accountability so that the benefits of the passion, commitment and initiative which citizen engagement brings are preserved, while the devastation terrorism causes is prevented, is an ongoing challenge. The fundamental principle remains however, that whatever the complexities and difficulties to which the freedom and diversity of civil society give rise, the freedoms upon which it is based are not only rights, but are indispensable to the wellbeing of society.

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Chapter 12

Oversight on Fundraising by NPOs: Dutch Experiences with a European Perspective Adri Kemps

Introduction: Civil Society, Transparency and Accountability The central theme of this chapter is the role of independent oversight on fundraising by non-profit organizations (NPOs). The Netherlands is presented as a model, from a European perspective, of independent oversight on fundraising, as developed by the Centraal Bureau Fondsenwerving (CBF). NPOs, fundraising and charity work are important elements to strengthen civil society and accountability. Oversight mechanisms on NPOs are important in building the trust of the public and the authorities in a society governed by the rule of law. Citizens have always organized themselves to support their families or their social group. In literature, the term ‘civil society’ is used to represent all organized bodies in addition to the state and private sector. People organize themselves not only for their own interests, but also for the public interest. These civil society groups can take many forms, including foundations, nongovernmental organizations (NGOs) and social organizations. In this chapter I prefer to use the term non-profit organization (NPO) to prevent any misunderstanding, as some readers may consider non-governmental organizations to be agonistic towards the state, or that governmental entities should not be social organizations. The term NPO refers to organizations acting in the interests of their members as well as organizations with objectives of a general benefit to society. Transparency and accountability are both relatively new notions in the literature on NPOs. These terms were introduced to create a more responsible attitude from the commercial sector towards society. In the 1980s these notions were supported by NPOs in their role as advocates and watchdogs. In the mid-1990s accountability became an issue for NPOs, as more critical stakeholders demanded organizations be accessible for questioning and adopt disclosure policies similar to those of private companies. For NPOs, transparency and accountability to donors or the general public has always been vital, but governments too are now demanding accountability, notably on finances and programmes to prevent misuse of funds. In the debate on transparency and accountability the issue of ‘impact’ is often raised. ‘Impact’ refers to the need for NPOs to identify the objectives they have achieved, i.e. the impact their work has had on their target area. It is difficult to measure the impact of NPOs as their objectives are   The Centraal Bureau Fondsenwerving (CBF) translates into English as ‘the Central Office on Fundraising’. It was founded in 1925 as an independent foundation to gather and publish information on fundraising in order to protect the interests of donors and charities. In 1958, the CBF was one of the founding members of the International Committee on Fundraising Organizations (ICFO). The ICFO has developed standards for monitoring charities involved in public fundraising. See: www.cbf.nl and www.icfo.de (last visited October 2009).  Rollin A. van Broekhoven, Engaging Donors Trust (Berlin: ICFO, May 2008). Available at: www. icfo.de/RvB-EDT-May08.pdf (last visited October 2009).

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often less tangible than the financial targets of companies. The complex issue of accountability and impact can be used by donors to severely criticize NPOs because of the difficulties of measuring effectiveness and impact. In a politically hostile or competitive environment for NPOs, this can lead to a defensive attitude instead of innovation. NPOs that depend on fundraising need public trust. Transparency and accountability are the cornerstones on which NPOs can build public trust. For fundraising NPOs, external oversight in the representation of donors or authorities can help legitimize them. Oversight on public fundraising is nothing new. For many decades NPOs have collected money to finance their programmes, whilst governments have always had a clear interest in regulating them to maintain public order and control. However, by its very nature, civil society aims to keep the state at a distance and to minimize external interference in its operations. Nevertheless, oversight of public fundraising is needed to prevent fraud and to maintain public trust. As a result, civil society launched initiatives for self-regulation. In around 1900, to optimize the credibility of self-regulation, the notion of independent oversight in fundraising arose in northern European countries, including Germany, the Netherlands and Sweden. My experiences are based on the situation in the Netherlands and lessons learned from colleagues within the International Committee on Fundraising Organizations (ICFO), the international association of national monitoring agencies. The ICFO has members in Austria, Belgium, Canada, France, Germany, Italy, the Netherlands, Norway, Spain, Sweden, Switzerland, Taiwan, the UK and the United States. The ICFO maintains contact with like-minded organizations all over the world, including China. Over the last century the role of NPOs has grown and studies show that these organizations are crucial to European economies. Income to facilitate their work is generated not only by fundraising and lotteries, but also increasingly by financial contributions from state budgets. Their important role in organizing citizens for causes that benefit the public means that the delivery of public services is facilitated more often than not by local or national governments. In the Netherlands, public revenues are more important for many NPOs than private donations. The legal basis for NPOs, and especially charities, differs. In most European countries, civil law regulates the framework of NPOs and charities. In the United Kingdom and Ireland there is a strong charity sector developed under common law. The history of charity work and taxation systems differs in European countries and goes back to those times where the Crown exempted charities from taxes. Charity work is generally strongly related to national identities and rooted in society. However, charity work in many countries is changing due to globalization, the opening up of societies and a liberalization of markets, including tax and fundraising regulations. From an international perspective it is difficult to define in detail what is meant by charities, philanthropy and NPOs. The Johns Hopkins ‘Comparative Non-profit Sector Project’ defined  Ingrid Helen Guet, Monitoring Fundraising: a Comparative Survey of ICFO Members and their Countries (ICFO, 2002). Available at: www.icfo.de/texte/survey-formatted.pdf (last visited October 2009).   See the findings of the Johns Hopkins Comparative Non-profit Sector Project, in Lester M. Salamon and Helmut K. Anheier, Global Civil Society: Dimensions of the Nonprofit Sector (Baltimore: The Johns Hopkins Center for Civil Society Studies, 1999).   Paul Dekker, ‘Civil Society and the Non-Profit Sector in the Netherlands’, in Yuwen Li (ed.), Freedom of Association in China and Europe: Comparative Perspectives in Law and Practice (Leiden: Martinus Nijhoff Publishers, 2005).   Tymen J. van der Ploeg, ‘The Legal Implementation of Freedom of Association in the Netherlands and Other West European Countries’, in Yuwen Li, Freedom of Association.  A clear example is Queen Elizabeth I’s ‘Charity Law’ of 1601.

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NPOs as organizations of a private character that do not distribute profits and are self-governing on a voluntary (non legal obligatory) basis. This is a broad definition that includes schools, hospitals, etc. in the Netherlands. In most European countries, the NPOs working towards objectives of general public benefit often receive tax benefits and are referred to as charities or NPOs ‘for good causes’. Citizens in most countries receive benefits on income tax for donations to charities. A total of 95 per cent of Dutch households donate to charities, giving an average of €244 per year. Studies of NPOs show the size of the sector has grown since the 1970s and that there may be up to one million NPOs in EU member states. These organizations are important actors in national economies. For example, studies have also indicated that the sector, in a broader sense, reflects 5 per cent of the national economic activity in the Netherlands. Patterns and Trends of Fundraising in the Netherlands The Netherlands has a long history of charities influenced by protestant culture and a population comprised of different religious groups. The Dutch population mainly lives below sea level behind dikes and, as a result, people have always had to cooperate in order to protect themselves from the sea. In the Dutch legal system the most commonly established NPOs are associations and foundations. A NPO must set out in its charter what its purposes and activities will be, how the income will be generated and for what purposes this income will be used. In addition, the names and addresses of board members of the foundation or the association have to be registered at the Chamber of Commerce. In the Netherlands, charitable NPOs receive tax benefits and are formally referred to as ‘religious, philosophical, charitable, cultural, scientific or public benefit institutions’ by the taxation authorities, according to the income tax regulations. There is no need to pay income tax on received donations and individuals or companies who give donations are given tax relief on these donations.10 The government receives less tax, but the ultimate effect is that the charitable NPOs use the money for activities that benefit the general public. Examples of well-known charitable NPOs are Greenpeace, the Heart Foundation, Oxfam, the Salvation Army and UNICEF. It has become clear that government institutions are unable to solve all the problems of society. Nowadays activities such as healthcare, education and food programmes for the poor in the Netherlands and other countries are not only tasks for the government, but also for civil society. The government recognizes that people can contribute to a better society with their active participation and/or voluntary financial contributions to NPOs that have public benefit objectives. In the past, the central government played a limited role, while local governments tried to help the poor and facilitate social welfare projects. Churches and the state encouraged the wealthy to voluntarily share part of their wealth with charities, either during their lifetime or by bequest. However, in recent years, businesses have also been encouraged to contribute to public benefit NPOs,11 either financially or by making staff available for voluntary work.

  Theo Schuyt, Giving in the Netherlands Panel Study 2003 (Amsterdam: VU University, 2003).   Salamon et al., Global Civil Society. 10 Ineke Koele, International Taxation of Philanthropy (Amsterdam: IBFD Publications, 2007). 11  Theo Schuyt, B.M. Gouwenberg, R.H.F.P. Bekkers, M.M. Meijer and P. Wiepking (eds), Geven in Nederland 2007 (The Hague: Reed Business, 2007).

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The active and diverse NPO sector in the Netherlands is based upon around 164,000 foundations and 117,000 associations.12 At the end of 2006, approximately 18,000 were awarded public benefit status by the tax authorities.13 Income tax benefits exist for these charities, as well as for companies and individual donors. Charities can legally make a profit but they have to first demonstrate their charitable character. Of those charities with public benefit status, approximately 35 per cent are endowments. Most NPOs do not seek income through large-scale public fundraising, but rather through other sources, such as fixed capital, payments for services and state subsidies. Fewer than 1,000 NPOs receive an annual income of more than €100,000 a year by public fundraising. Less than 50 charities raise more than €10 million a year in donations. Combined, these large charities represent approximately 60 per cent of the total public fundraising amount of €1.2 billion.14 This is raised by large and well known organizations, such as the Red Cross, UNICEF, the Heart Foundation, Oxfam, Greenpeace, CliniClowns and the World Wildlife Fund. These organizations work with professional and paid staff and are often supported by volunteers. The CBF focuses its work on this type of large NPOs, as the majority of funds are channelled through them and public trust is dependent on these well known charities. However, the vast majority of NPOs with public benefit status are small, local foundations that only work with volunteers. The financial contributions and participation of volunteers are more important for these foundations than income generated by public fundraising. A registry of NPOs, combined with transparent basic financial and annual reports, is more suitable for small NPOs. In order to prevent and fight fraud, unethical fundraising and bad governance, the CBF has limited powers to investigate complaints about small NPOs. This more reactive approach, which involves ‘blaming’ and ‘shaming’, is dependent on: the capacity of the CBF to investigate complaints; the cooperation of the press by publicizing ‘bad’ behaviour by NPOs; and the CBF forming good relationships with legal authorities to deal with those cases that involve fraud or criminal matters. Since the 1900s there have been more initiatives to publicly collect money for charities. After the Second World War, for example, initiatives were undertaken to organize fundraising more systematically in public areas, such as street collections. These street collections in the Netherlands are done by many thousands of volunteers organized by a professional staff of NPOs. These nationwide collections are mostly combined with a publicity campaign to boost awareness and to ask for money for specific causes, such as research projects to fight cancer, heart disease, or to support social projects to help underprivileged groups, such as the blind or the disabled. To prevent fraud and public irritation, most local authorities regulated collection by giving permission locally. In the 1960s, new types of charities were established to protect the environment and help underprivileged groups in so-called underdeveloped countries. NPOs, such as the Nature Conservation, Oxfam and UNICEF, initiated fundraising by asking for donations via bank payments using television advertisements and direct mailings to households. In the 1970s and 1980s, awareness of the need to protect the environment and to promote peace and justice increased worldwide. New types of NPOs were established, such as Greenpeace and Amnesty International. Peace organizations were founded to ask the Dutch government to change its policies. These so 12 Ricco Dun, Business and Charities Registration – A European Perspective (Amsterdam: ICFO, 2009). 13  Goed Bedoeld, Preventieve Doorlichting Goede Doelen-Sector (Groningen: Intraval, 2007). The number of registered public benefit organizations did increase in 2007–8 and, although numbers are not published, a list of approximately 30,000 organizations was made available at the end of 2008. See: www. belastingdienst.nl (last visited July 2009). 14  Verslag Fondsenwerving 2007 (Amsterdam: CBF, 2008).

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Figure 12.1 Fundraising income by charities in the Netherlands, for the period 1965–2008, as registered by the CBF called ‘one-issue movements’ used modern media to bring their message to the world and to receive money to finance their work. When, after the 1960s, it became more difficult to mobilize volunteers, charities greatly increased their fundraising by bank transfers. In the Netherlands, contributions per household are relatively stable and in 2005, according to statistics of the CBF, the average contribution per household was €7.30 on door-to-door cash collections. In 2007, charities received €60 million through cash collection. This represented 5 per cent of the total fundraising income in the Netherlands.15 In the 1980s most charities started to use modern marketing methods to raise funds, such as advertisements, television commercials and, in recent years, the Internet and mobile telephone messages. The traditional method of collecting money in the streets has become less important to NPOs, whose biggest source of income is now from donors contributing periodically via bank debits. As families now have more money and fewer children, greater numbers of people are deciding to donate part of their legacies to charity in order to support a better world.16 Since the 1980s, many Dutch charities have received subsidies from national or local governments to finance their work, such as conservation and overseas development programmes. In addition, although government policy restricts the use of lotteries, Dutch legislation gives charities permission to organize a lottery if at least 50 per cent of the income will be used for the public benefit. At the beginning of the 1990s, a so-called ‘charity lottery’ was held by individuals 15 Ibid. 16  Schuyt et al., Geven in Nederland 2007.

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connected to well-known organizations such as Oxfam, the World Wildlife Fund, Doctors without Borders and the Refugee Council. In recent years, businesses have begun to contribute to charities through sponsorship or making donations as part of their public marketing strategy or social corporate policies. Over the last decade, public contributions to charities have increased by an average of about 6 per cent annually.17 This means a higher percentage growth than the gross national product. In the last 40 years the CBF registered only temporary dips in the growth of charities. Such dips normally occur two years after an economic crisis, such as the oil crisis of 1973, the financial crisis of 1983 and the post-September 11 crisis of 2001. In 2007, the public donated €1.2 billion to Dutch charities. Another €2 billion was received by charities from subsidies, income from lotteries and company sponsorships. In 2007 charities had a total of €3 billion to distribute. Of this, 23 per cent was spent by NPOs for charitable causes both in the Netherlands and abroad, 41 per cent was spent by NPOs working only on projects in the Netherlands and 36 per cent was used for projects in developing countries.18 European Registration and Transparency As NPOs in different countries have different legal requirements, there is no single registry of NPOs in Europe. For instance, the legal basis for registration of NPOs in European countries can be found in the Trade Register Act, the Civil Code and directives of the European Union (EU).19 In some European countries, including Italy and the Netherlands, the Chamber of Commerce keeps files with basic information in a registry which is open to the public. In the United Kingdom a special body, the Charity Commission, keeps a register, and in France, Belgium and Germany registration is carried out by the district courts. These registration authorities vary in their registration requirements, as well as in what information will be made public. In 1992 the European Business Register (EBR) was set up as an initiative by a number of company registers to create a network giving access to official company information in Europe. However, NPOs involved in public fundraising are not registered in a common framework, similar to the EBR.20 In some countries, including the Netherlands, tax authorities publish a list of tax exempted NPOs which have objectives that are for the general public benefit. Differences in legal requirements mean a single authority does not monitor NPOs. Oversight models differ according to different objectives. Those NPOs that rely on income from public fundraising need to be transparent and accountable towards (potential) donors and tax authorities when a tax exemption is applied. Information available on NPOs in Europe also varies according to country because of diverse registration requirements. The purpose of NPO registration is mostly to obtain legal status and tax exemption, for example on income tax. However, it is important to realize that there is a clear division in the legal framework for NPOs between common law countries, such as the UK and the Republic of Ireland, and the civil law countries in Europe. In common law countries the treatment of NPOs is based on the activities of the charity rather than its legal form. In civil law countries, the concept of charities is based upon legal forms and not upon activity. In 2007, the European Council formulated recommendations on the legal status of NPOs in Europe. These recommendations provide guidelines for member states to develop a coherent 17  Verslag Fondsenwerving 2007. 18 Ibid. 19 Dun, Business and Charities Registration. 20 Ibid.

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framework for legislation and registration of NPOs in Europe. The Council’s recommendations on transparency and accountability include guidelines for registration, requiring NPOs that have been granted any form of public support to submit reports on their accounts each year, as well as give an overview of their activities to a designated supervising body.21 In recent years the registration of NPOs has received heightened attention from authorities because of policies aimed at increasing transparency and accountability. Most regulatory practices in European countries are a result of European harmonization on preferential tax treatment and the prevention of misuse of funds from the public for criminal and terrorist activities. In well-known cases, such as the Stauffer and Persche cases, which were brought to the European Court of Justice (ECJ) to break down barriers to cross-border fundraising, the ECJ made it clear that tax exemption must be harmonized within the European Community.22 The increased regulation of oversight of NPOs is also a result of the Financial Action Task Force’s (FATF) ‘Special Recommendation on Terrorist Financing’.23 In order to comply with this regulation, several European countries, including the Netherlands, announced measures to intensify oversight on NPOs. Based on the shared experiences of ICFO members regarding a European project of Guidestar,24 it should be noted that up-to-date registration of NPOs in national public databases is not possible without the support of governmental authorities. For example, in the UK, databases are compiled using information received by the tax authorities from NPOs and the UK Charity Commission. The Charity Commission’s oversight is based on different degrees of requirements on reporting.25 Registration with the Charity Commission is compulsory for most charities with an income above £5,000. This threshold is an example of a proportionate approach that is also applied to the reporting requirements in the UK. Charities with an income above £100,000 must prepare their accounts in accordance with the Statement of Recommended Practice (SORP).26 A special reporting framework for the accounts of public fundraising charities has also existed in the Netherlands since 1998.27 This reporting guideline means the CBF can register fundraising data in a uniform system. Almost all European countries have different sets of requirements regarding reporting systems. This lack of a common set of auditing guidelines makes it difficult to develop a single European database for the registration of charities and their financial reporting. In 2009, at the request of the European Commission, the ECNL published a study on European oversight models. The ECNL reported: ‘as an overall trend, self-regulatory initiatives take the lead in attempts to improve NPO governance’.28 As this study points out, self-regulation initiatives

21 Recommendation CM/Rec (2007) 14 of the Committee of Ministers to member states on the legal status of NGOs in Europe, 10 October 2007. 22  Update on Cross-Border Tax Environment of Foundations (Brussels: European Foundation Centre, 2008) and the case C-386/04 Centro di Musicologia Walter Stauffer (2006) ECR I OJ C 281. 23  Special Recommendation VIII of the FATF relates to NPOs and requires member states to: ‘Review the adequacy of laws and regulations, and implement measures to prevent: a) terrorist organizations posing as NPOs; b) escape from asset freezing measures; and c) NPOs funds being diverted to terrorist organizations.’ 24  See: http://guidestareurope.org (last visited October 2009). 25  Charity Reporting and Accounting – the Essentials (London: The Charity Commission, 2008). Available at: www.charitycommission.gov.uk (last visited October 2009). 26  See: www.charity-commission.gov.uk/investigations/sorp/default.asp (last visited October 2009). 27 Raad voor de Jaarverslaggeving, Special Edition Centraal Bureau Fondsenwerving, Guideline 650 Fundraising Organizations (Deventer: Dutch Accounting Standards Board, 2002). 28  Study on Recent Public and Self-Regulatory Initiatives Improving Transparency and Accountability of Non-Profit Organizations (NPOs) in the European Union (Brussels: The European Commission DirectorateGeneral of Justice, Freedom and Security, 2009), p. 29.

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by NPOs will have more ‘meat’ (concrete standards) and ‘teeth’ (more effective compliance mechanisms) if they are developed to be used by a narrow group of NPOs.29 Public oversight organizations differ in each European country: Portugal has a Ministry; Italy has special authorities that act as a central registry on public benefit organizations; the UK has the Charity Commission; and the Netherlands and Hungary use the tax authorities and public prosecutor. These public oversight organizations are mainly focused on crime prevention and not on fundraising ethics or on methods to enhance public trust in fundraising. Therefore, independent and self-regulatory oversight mechanisms allow for a more focused approach for charities themselves, as well as their donors. Standards for Monitoring Charities and the ICFO According to Lisa Jordan and Peter van Tuijl, accountability of NPOs has become more important in recent times because of: the growth in the number and size of NPOs; greater levels of fundraising; and NPOs having a stronger voice in shaping public policy.30 Now NPOs are subject to greater scrutiny by the public and governments, and more debate has evolved around the need for common norms and standards.31 These standards are orientated towards good governance and the role of NPOs in society. An issue often raised by the media and politicians is how NPOs legitimatize their advocacy work. For service delivering NPOs, accounting and reporting are important issues as they are often questioned on their effectiveness and efficiency. NPOs that depend on public fundraising also face questions concerning their fundraising ethics and costs of operations. The London based organization One World Trust operates a website with a global map of civil society organizations’ (CSO) self-regulatory initiatives32 and presents useful links to many forms of self-regulation by NPOs. Shana Warren and Robert Lloyd have observed that with a total of 309 initiatives worldwide, the landscape of self-regulation is more populated than previously thought and that there is no ‘one size fits all’ approach to CSO self-regulation.33 These initiatives include: codes of conduct and ethics; information services to enhance transparency; working groups of peer organizations to discuss best practices; and awards schemes to reward good practice and certification schemes. Certification schemes used by charities include self-certification schemes and third-party certification schemes. Standard setting on accountability of charities began in Europe with the formulation of ethical codes on fundraising and sound financial reporting, as NPOs needed permission from the municipal authorities to collect money in public. In the 1970s, standards were developed by member organizations of the ICFO to prevent fraud by tightening the criteria for a charity’s board and trustees. The criteria governing independence of boards and trustees became more distinct, resulting in an enhancement of internal governance. Often standards included a prohibition on paying board members or trustees for their work on behalf of the charity. The professionalization

29 Ibid. 30  Lisa Jordan and Peter van Tuijl (eds), NGO Accountability, Politics, Principles & Innovations (London: Earthscan, 2006). 31  See: Aruna Rao and Kumi Naidoo, The Evolving Politics of Global Civil Society Legitimacy (Geneva: UNRISD, 2004). 32  See: http://oneworldtrust.org (last visited October 2009). 33  Shana Warren and Robert Lloyd, Civil Society Self-Regulation: The Global Picture (London: One World Trust, 2009).

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of charities, as well as public debates on general principals of good governance, enhanced standard setting on complex governance issues and the costs of operating NPOs. The ICFO is an umbrella organization of national monitoring organizations. The national seals of approvals of ICFO members are used by NPOs to help build trust in their organization among donors and the public in general. The ICFO aims to strengthen public confidence and ensure that donations are used for the purposes for which they are given by: 1. promoting transparency and integrity related to the activities of donor supported nongovernmental charities; 2. gathering information from members and other sources and exchanging this information among its members; and 3. formulating standards for non-governmental charities and charities working internationally.34 ICFO member states differ in a number of ways, such as: variance in legal structures; governmental requirements; fundraising and ethical cultures; relationships with governmental institutions; and the structure of the oversight organizations to monitor charities. In spite of these differences, the ICFO has brought together oversight organizations that subscribe to a similar mission of urging transparency and accountability by charities that engage in public fundraising. ICFO members have a common commitment to monitoring fundraising by charities in their countries. They share the values of good governance, avoiding conflicts of interest, transparency, audited financial statements and truthful fundraising. ICFO membership standards cover at least five key areas of activity, which are: 1. 2. 3. 4. 5.

membership and responsibilities of the governing body; fulfilment of public benefit goals; fiscal control, management and reporting; fundraising practices; and provision of public information.

Guidelines governing public benefit fundraising charities should also require conformity with more specific and ‘best practice’ standards for probity and good governance, which go beyond the minimum national legal and audit requirements. Whilst most voluntary organizations are honest and reliable, there are a few that misuse donors’ money by directing it to activities other than those for which it was raised, or deny their donors access to information about their financial reports. Such dishonest activities are unacceptable and this is where ICFO members can assist donors. The number of monitored NPOs involved in public fundraising differs according to the size and the capacity available from ICFO members.35 In addition, the specific oversight requirements of ICFO members varies. ICFO members have traditionally refrained from urging a common fixed set of complete standards or guidelines for monitoring charities at an international level because of cultural differences and historical legal contexts. However, there are oversight standards set for good governance, disclosure of information and some fundraising regulations. Since the 1990s, prompted by the growth in cross34  www.icfo.de (last visited October 2009). 35 In the beginning of 2009, ICFO members reported the following numbers of NPOs as being monitored: Austria (183), Germany (230), France (54), Italy (31), the Netherlands (326), Norway (54), Sweden (350) and Switzerland (250).

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border fundraising and the stronger presence of NPOs operating internationally, the ICFO has been working towards common standards to apply to NPOs. Independent Oversight on Fundraising in the Netherlands Oversight on fundraising in the Netherlands is organized in a similar manner to Germany, Switzerland and the Nordic countries.36 It is organized by an independent, self-regulatory mechanism without a legal basis. Although the Dutch tax authority keeps a registry of NPOs with tax exemption status, this does not mean that tax authorities or governmental institutions monitor NPOs on ethical standards of fundraising, transparency or accountability. This is because the tax authorities have their own considerations which differ from those that are necessary to enhance public trust in charities. In addition, transparency of NPOs is not promoted in the Netherlands because reports to the tax authorities are not published. The CBF was founded in the Netherlands in 1925 as an initiative of representatives of municipalities and some umbrella organizations of charities. Its aim is to monitor and make available information on public fundraising in the interest of charities as well as the public. During its existence, the activities of the CBF have developed. It has always been an important centre for information on fundraising and local authorities make use of this information in order to give permission to charities to conduct fundraising in public areas, such as collecting money in the street. The board of the CBF is composed of three Mayors (as representatives of municipalities supporting the CBF), two representatives of charities and four independent members, including the President, who represent the academic sector and the interests of donors. The Ministry of Justice has also appointed an observer to the CBF board. Since 1949 the CBF has published annually a nationwide scheme to ensure charities organize their fundraising campaigns in an orderly way and to prevent fraud and irritation to the public. Television companies and newspapers offer extra facilities to these charities to inform the public of their causes. In accordance with this scheme, municipalities give permission to charities to collect funds in the street and 26 national charities, that meet special criteria, are selected to have a fixed week per year to raise funds in public areas. The remaining 26 weeks per year are used to give local or smaller charities the opportunity to raise money in the street. In 1994, the CBF proposed a special reporting framework for charities to the national Council for Accountancy Standards. These special guidelines are accepted by the Council as instructions for charities with public fundraising.37 In 2007 this guideline was modernized on the recommendation of the CBF in accordance with new international accounting practices. In accordance with these guidelines, charities must present their annual report to certified auditors. The advantage of these guidelines is that there is a uniform standard for charities for reporting on balance sheets, income and expenditures. It is important for the CBF to have this commonly accepted standard to monitor charities and to make this information available to the public. The CBF also organizes the certification and monitoring of NPOs on ethical standards, fundraising and good governance. This is in addition to the limited registry of NPOs that is kept by the tax authorities. In 1996, the Dutch Accreditation Council granted the CBF the authority to award the CBF seal of approval to NPOs that meet its standards through a special CBF certificate. CBF standards are very precise, detailing requirements in the areas of governance, policy, spending, 36  Verslag Fondsenwerving 2006 (Amsterdam: CBF, 2007). 37 Raad voor de Jaarverslaggeving, Special Edition Centraal Bureau Fondsenwerving.

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90%

80%

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50%

40%

30%

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10%

0% Little charities

Charities

CBF seal of approval

Media

Authorities

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Figure 12.2 Level of trust based on a questionnaire by a panel of donors in the Netherlands38 fundraising, accounting and reporting. For smaller NPOs, with a budget of less than €500,000 a year, the standards are adapted and less strict for the granting of a CBF certificate. The CBF is well known in the Netherlands because of its CBF seal of approval. According to periodic reviews of the level of trust of donors in the Netherlands, the CBF seal of approval achieves very good results. Although there are small fluctuations to be noted, during four years of research into donor trust, the CBF always ranks highly compared to charities and other institutions. As a result of new marketing methods and an increase in the number of NPOs, new methods of monitoring charities were needed and the CBF seal was introduced. It has become a standards mark which allows qualifying charities to use it in their communication material. Advertising agencies can also offer reductions in the price of advertisements and commercials to organizations where the seal has been awarded. The authorities use the seal to give permission for fundraising and it can help donors choose which charities to support. Enhancing donor trust by having special certification systems on good governance and working methods of NPOs has proven to be effective in the Netherlands to increase the capacity of NPOs in fundraising. A recent study by the Free University in Amsterdam demonstrates this through a statistical dataset of the CBF.39 In the Netherlands, the fundraising income by certified NPOs with the CBF seal was approximately 20 per cent higher than those without it. 38  WWAV Marketing & Communications for the Non-Profit Sector (Woerden: Het Nederlandse Donateurspanel, 2009). 39  Rene Bekkers, ‘The Benefits of Accreditation for Fundraising Nonprofits’, paper presented at the 35th Arnova Conference in Chicago, November 2006.

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The certification work of the CBF is focused on large NPOs with public benefit status. It monitors national fundraising activities and small fundraising NPOs upon receiving complaints about fraud, misleading the public or intimidating fundraising techniques. Substantiated complaints are investigated by the CBF. Its findings are published on its website and communicated to local authorities. In cases involving fraud, it is the authorities, not the CBF, that can take legal action. The CBF specifies in its regulations that to acquire the CBF seal a charity should not spend more than 25 per cent of its fundraising income on the costs of raising the funds. Furthermore, a charity should have an internal evaluation system to control its expenditure according to the objectives of the NPOs. The CBF does not judge the value or importance of a specific objective. Charities with objectives for the public benefit, for example in the areas of healthcare or animal rights, are treated with equal importance as those that support cultural heritage or sporting facilities for underprivileged children. The standards for certification related to the CBF seal initially focused on income and the ethical principles for responsible fundraising. The CBF was influenced by public opinion to monitor the use of donations, and in 2004 the standards were extended to cover internal governance and internal NPO mechanisms to evaluate programme expenditures. The projects of certified NPOs are not evaluated by the CBF on effectiveness or efficiency. However, the charities themselves are required to describe in their annual report how they evaluate their projects and their findings on their successes. This transparency requirement helps donors to judge for themselves whether to give support to a specific charity. The CBF encourages donors to give with their ‘heart’ and to use their ‘head’ in selecting the charities that they will support. The work of the CBF and initiatives such as the annual ‘Transparency Award’ given by accounting firm PricewaterhouseCoopers, confirms the interest in accountability and transparency of NPOs in the Netherlands.40 This is the result of a general trend in society towards the need for transparency and the increased role of NPOs. Concerns about fraud and marketing-driven fundraising initiatives also strengthen the need for improved transparency and oversight on NPOs. Some European authorities expressed their concerns about the involvement of NPOs in facilitating terrorism and are taking preventative measures. However, there are limited findings to prove such misuse of NPOs. Following 9/11, the European institutions and the US government took measures to enhance national level coordination and greater transparency of NPOs. The stimulus of greater accountability and transparency has led to renewed enhancement of independent oversight organizations on NPOs, such as the CBF in the Netherlands, ZEWO in Switzerland and DZI in Germany. In a recent European study, the CBF was presented as an example of a self-regulatory initiative for independent monitoring of NPOs.41 Conclusions and Observations In a more open and globalized society, NPOs are increasingly subject to greater transparency and accountability. Over the last decade, at national and international level, NPOs have taken initiatives to develop common principles and standards on ethical fundraising and good governance. These self-regulatory initiatives are important to strengthen public trust and to share good practice.

40  See: www.transparantprijs.nl (last visited March 2010). 41  Study on Recent Public and Self-Regulatory Initiatives Improving Transparency and Accountability of Non-Profit Organizations.

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Innovative fundraising techniques are needed to build a strong civil society, but should be combined with ethical fundraising standards, good governance, transparency and accountability to maintain public trust in NPOs. Independent certification of NPOs resulting in recognized public seals to strengthen the trust of donors is a proven form of self-regulation in addition to public regulation based on civil laws and tax regulations. Using a well-recognised seal as a trademark of trust can raise the income of charities and help prevent fraud and practices of non-ethical fundraising. Standards of good governance can be introduced to raise the level of professionalism in fundraising. Self-regulatory initiatives to strengthen oversight on fundraising by NPOs are more successful when there is a good stakeholders’ dialogue and an independent mechanism to set standards and to monitor implementation. This helps to enhance the trust of society. Using the principle of proportionality in setting standards for oversight will be more functional and create less of an unnecessary administrative burden for NPOs under a certain size. NPOs with a smaller income, for example less than €50,000, should be subject to a simplified registration and reporting process. One can observe that the drive for transparency of NPOs in Europe has led to improved registration of NPOs and their legal representatives, reporting on incomes, expenses and activities. Differences in cultural and legal systems mean there is no standard mechanism on accountability towards donors, the public and authorities. In EU member states there are a large number of public and self-regulatory initiatives to improve transparency and accountability by NPOs. In the last 20 years, a process of harmonization and formulation of minimum standards has been stimulated by the ICFO. The ICFO’s basic standards can be applied on a national level, taking into consideration cultural and economic factors. In a globalized world, extension of membership in the ICFO should be promoted to build a worldwide network of national monitoring organizations. Such a network is a real possibility. Already in countries including Ireland, Italy and Spain, new initiatives are underway which promote NPOs’ transparency, accountability and good governance.42 In EU member states, one can observe enhanced public regulation on legal frameworks for NPOs and fundraising, including national registries and publicly accessible data on public benefit organizations. In some countries, regulation of fundraising methods and management of funds by NPOs is being tightened, based on arguments of crime prevention and the increased economic and social significance of NPOs. The sanctions range from the withdrawal of fundraising licences, to the termination of public benefit or legal status. Cooperation between NPOs, public authorities and corporations could help to enhance independent, self-regulatory oversight on NPOs, forming part of a vibrant civil society built on the rule of law and trust. National and regional variations between civil societies in how NPOs are organized mean fundraising and oversight mechanisms are also different.43 There is no ‘one size fits all’ solution. However, it is possible to learn from each other’s experiences regarding fundraising and oversight, taking into account the need to balance between international standards, and respecting differences and allowing for innovation.

42 Ibid. 43  These observations are inspired by an exchange of thoughts with participants at the International Conference on the Role of NGOs in Building Harmonious Society and the Seminar on Capacity-Building of Social Organizations, organized by the Institute of Law of the Chinese Academy of Social Sciences and the Netherlands Institute of Human Rights, Law School of Utrecht University, with support from the Dutch Embassy in Beijing, held in Beijing, July 2009. I would like to thank all participants and especially Yuwen Li for her feedback and support.

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Chapter 13

Civil Society in the Czech Republic Petr Jan Pajas

Historical and Geographical Background In order to understand specific features of civil society in the contemporary Czech Republic, it is perhaps worthwhile to provide a few facts about the location of the Czech Republic within Europe and the history of Czech society, which formed more then ten centuries ago. Both these factors have critically influenced the life values of most Czechs, as well as their perception of the rights and obligations of citizens. The contemporary Czech Republic covers territories that have been under the sphere of influence of dukes and kings of Bohemia since the ninth century. The territory was also known as Czech Lands. To the west lies Bohemia, an area surrounded by a characteristic ring of mountains. In the centre is the city of Prague situated on both banks of the river Vltava (Moldau) that, to the north of the city, flows into the Lake (Elbe). The eastern area of the Czech Republic is called Moravia (March). It spreads along the river Morava (March) that merges downstream with the Danube. Finally, the northern area of the Czech Lands, formerly known as Silesia, is situated along the banks of the Odra (Oder). The history of the Czechs as a Christian nation began in the time of the Great Moravia, when in AD 862 Duke Rastislav requested Emperor Michael III, of Roman Constantinople (today Istanbul), send a Christian mission to his lands. The two missionaries – brothers and philosophers Cyril and Method – devised a script (Cyrillic) and translated the Bible into the Old Church Slavonic language, close to that spoken in Great Moravia. The Eastern Orthodox Church’s influence was replaced in the late tenth century in the Dukedom of Bohemia by the Western Catholic Church, introduced as a main religion by Duke Vaclav I of the Premyslid dynasty (Saint Wenceslas). Latin script then prevailed. The first hymns written in Medieval Czech date as far back as the thirteenth century.

  The first mention of any State-like organization of Slavs living in this part of Europe comes from the seventh century (the so-called ‘Reign of Samo’), followed historically and archeologically by the well documented Greater Moravia (about 830–906), which was conquered and partly destroyed by nomadic tribes of Magyars and Avars invading Europe from the east. Since 870, the existence of Bohemia under the rule of the Duke Borivoj I of the Premyslid dynasty has been historically documented, which then became the hereditary Kingdom of Bohemia under Premysl Otakar I, in 1198. The Premyslid dynasty was replaced by the Luxemburg dynasty in 1306, followed by the Jagellon dynasty in the fifteenth century and then the Hapsburg dynasty in the sixteenth century.   The name ‘Bohemia’ probably refers to the Celtic tribes of Boyos, who lived there before Slavic tribes of Czech settlers arrived. The terrain is surrounded on all sides by forest-covered mountains.   The first recorded written note of Prague is attributed to a Jewish or Arabic merchant Ibrahim Ibn Ya’qub, who in 965 described it as a city built of white stone and called ‘Fraga’. The Czech name of the city is Praha.

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The Kingdom of Bohemia was part of the Holy Roman Empire from the tenth century and its rulers belonged to the electors of the Emperor. In 1306, the last King of Bohemia of the Premyslid dynasty, Vaclav III, died. After a short interim, his sister Elizabeth of Premysl married John of Luxemburg in 1310, who then became King of Bohemia confirmed to the throne by Czech, Moravian and Silesian electors. Their son Vaclav was educated in France and later became King of Bohemia and Emperor of the Holy Roman Empire under the name Charles IV. During his rule (from 1346 to 1378), Prague became the capital city of the whole empire. In 1348 Charles IV established a university in Prague, the first in the Holy Roman Empire to be situated north of the Alps and east of Paris. The successful development of the Kingdom of Bohemia under Charles IV enabled the expansion of craftsmanship and education of broader layers of society. One of the masters of the Charles University, who later became its rector, Jan (John) Hus (1372–1415) was influenced by the ideas of John Wickliffe of England (from around 1377). Jan Hus considered Christ and the Bible to be the only and supreme religious authorities, and preached a return to what was written in the Bible. In fact, this was an open rejection of contemporary practices of selling the services of the Catholic Church for money. John Hus considered the clergy inherently corrupt and in need of reform. Hus had many followers, who were not only his university students, but also craftsmen and other free citizens from cities all over the country. Hus was finally asked to defend his views before the Church Council in Constance. However, the Council proclaimed his teaching as heretical and, in spite of previous promises of safety given to him and his Czech supporters by Emperor Sigismund of Luxemburg, he was sentenced and burned at the stake in July 1415. Within a few years, the Kingdom of Bohemia was overwhelmed by a new movement requesting religious freedom, equal rights of communion for both clergy and laymen and a reduction in Church wealth. This was accompanied by a ban on the selling of indulgences. Both the Pope and the Emperor reacted by sending crusade armies against these ‘Bohemian heretics’. The Czechs reacted by creating an army of determined farmers and craftsmen, innovatively using their work tools as deadly weapons and effective defence tools. Following this, for nearly 15 years, several crusades were again defeated one after the other. These wars finally ended when the Treaty of Basel was signed, which gave the Kingdom of Bohemia the right to exercise its own form of religious faith. This was the first time such an agreement had been entered into in medieval Europe. On the one hand, these events represented the beginning of the first religious reforms, an antecedent to Martin Luther’s Protestant reform by more than 100 years. The Czech religious reforms might also be considered the first citizen-driven and massively supported movement for a basic human right – the right of faith and freedom of Bible interpretation. Unfortunately, the cruelty and atrocities that accompanied these events and the impact of a prolonged civil war cannot be positively evaluated. It was also one of the first European religious wars, which were to break out frequently during the following centuries. The consequences of the Hussite revolt against the traditional and highly conservative rules of societal organization remain somewhat imprinted into the characters of most Czechs. However, their ‘own’ specific way of life in Europe did not go unpunished. The freedom of faith for the Kingdom of Bohemia remained in force for about 200 years. In 1617, Ferdinand II of Habsburg, who was known as a devoted Catholic, became King of Bohemia. Roman Catholic officials tried to use this opportunity to stop some of the activities of local Utraquists – a branch of Czech Protestants who originated from the Hussite movement. Infuriated Protestant aristocrats on the Land Council   The so-called Hussite wars lasted from 1419 to 1432, followed by a long period of bad relations between the Pope and the Kingdom of Bohemia.

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proclaimed the Emperor’s Regents guilty of violating the ‘Manifest of Religious Freedom’, issued in the sixteenth century by Emperor Rudolph II. The Second Defenestration of Prague, which saw two of the Regents and their secretary thrown from a window in the Prague castle, followed. This event is commemorated as the beginning of the ‘Thirty Years’ War’ – a destructive religious war between European Catholics and Protestants that devastated the continent. As a result of the Thirty Years’ War and the following famine and epidemics, the Kingdom of Bohemia lost more then a third of its population and was stripped of its relative autonomy within the Holy Roman Empire. Its top 27 representatives of rebel aristocracy and intelligentsia were executed and thousands of Czech Protestants were forced into exile. Prominent aristocrats had their property confiscated, which Emperor Ferdinand II then redistributed to his supporters. German was introduced as the second official language. Open use of native Czech became a risk, as it was treated as a language of rebels and, for the next 150 years, the Czech language effectively ceased to be used as an official language. The place of the Kingdom of Bohemia at the end of the Thirty Years’ War was firmly within the Austrian Empire of Habsburgs. In the second half of the eighteenth century, a formation of strong national States began and the bigger European powers competed for control over the New World and vulnerable parts of the Old World, specifically the culturally diverse countries in Africa and Asia. The Holy Roman Empire, together with tiny States in the territory of contemporary Germany and Italy, proved to be unable to catch up with Spain, Britain, France, Portugal or even the Netherlands. The Kingdom of Bohemia stayed completely out of the colonization ‘game’. Nevertheless, the last quarter of the eighteenth century brought about a new phenomenon. After the period of consolidation and centralization of power in the follow-up to the previous religious war, Europe was confronted with strong manifestations of the will of free citizens. The American colonies declaring their independence from the British Empire in 1772, and the Oath of the Third Estate of France in 1789 changed the world in an unprecedented way. The United States started its development based on pluralistic democracy and declared respect for basic freedoms and human rights. The French Revolution explicitly introduced into general politics the will of organized citizens to be ruled by law and to enjoy basic human rights and freedoms protected by the State. Consequently, during the nineteenth century, the role of citizens in forming the legal framework in constitutional monarchies or newly created republics became indisputable and led to an acceleration of the abolition of serfhood in Europe and slavery in North America, as well as to increasing religious tolerance in many countries. That process also included the Czech Lands within the Holy Roman Empire. Emperor Joseph II introduced major reforms during the second half of the eighteenth century. The influence of the French Revolution was also important. It is fair to mention that the Austrian Civil Code of 1811 had codified the most important rights of citizens. It remained in force until the second half of the twentieth century without substantial corrections being made by the laws of countries that replaced the Austrian Empire of Habsburgs after 1918. Civil society became a visible player in public life and its force grew throughout the nineteenth century. It was driven by the growing participation of citizens in the revival of national and local traditions, as well as by unprecedented developments in industry and agriculture. This caused dramatic changes in the labour market and society as a whole, and increased demands for education. Local citizens’ activities originated in Prague and other cities – lending books to neighbours, organizing local festivities, creating clubs, forming associations of scientists and scholars or associations set up for the purpose of collecting money for common needs. Patriotic and successful individuals were establishing foundations to offer education to talented children from socially handicapped families, shelters for persons in need, hospitals and schools. Even today, when

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walking the streets of Prague, you may pass several edifices built by private foundations during the nineteenth century. The National Theatre in Prague was built with money and jewels donated by ordinary people from villages and towns. The active civil society of the nineteenth century became the grassroots from which political parties and organized movements have grown, which led to the proclamation of independence of Czechoslovakia in October 1918. The Sokol (Falcon) movement played a very important role in consolidating the new democracy following the proclamation of independence. Sokol (Falcon) is a mass-membership organization established in 1860 in Prague, which within a few years spread its activities all over the territory of the Kingdom of Bohemia to cultivate physical fitness and citizens’ patriotic cooperation. During its history, Sokol (Falcon) has been banned several times by totalitarian regimes or occupational forces, but it has survived to the present day. Its survival is also perhaps due to the fact that its units can be found all over the world, within communities of Czechs and Slovaks in exile. It was one of the citizen’s movements banned during the Cold War years of 1949–89, but it is now active again. A similar fate was inflicted on the Scout Movement of Youth, which in the first half of the twentieth century, together with Sokol (Falcon), shaped the character and lifestyle of several generations of Czech men and women. The rich activity of civil society was characteristic of life in the short, but important, period of the first Czechoslovak Republic from 1918 to 1938, the creation of which was negotiated with American Slovaks by Professor Tomáš G. Masaryk, and with England and France by Edvard Beneš, both of whom subsequently became presidents of the newly created liberal democratic republic, which attempted to be a common State of around 10 million Czechs, four million Slovaks, 3.5 million Germans, 500,000 Hungarians, 300,000 Ruthenians, 100,000 Poles and several other nationalities. The social culture created during the 1920s and 1930s, together with the 1,000-year history of the Czech nation, as well as the existence of a fairly democratic system in Czechoslovakia, were key factors in enabling the Czechs to withstand the occupation of National Socialist (Nazi) Germany (1939–45), and the period which saw experimentation with the ideas of socialism (1948–89). Impact of the Degeneration of European Civil Society During the First Half of the Twentieth Century At the end of the nineteenth century, after many religious and bilateral conflicts and wars that characterized the medieval times, Europe finally seemed to be stable and a relatively prosperous society. Industrial development, based upon enormous progress in science and technology, had reached its peak – mankind had stepped over the threshold of understanding its place in nature. New technologies started to take over, like rail transportation powered by steam engines, the first automobiles and airplanes. These developments and the use of electricity for the illumination and powering of industrial machinery changed the lives of many people at an unprecedented rate. At the beginning of the twentieth century, most European countries were governed within constitutional rules of parliamentary democracy based upon the rule of law. Governments supported general education for all children and youth, there had been considerable freedom of creed, and many regulations had been introduced to make the lives of workers easier, including limitations on the length of the working day. Due to the continuing respect for the traditional rules of craftsmen guilds, followed since early medieval times, and the appearance of trade unions in big industrial companies, workers were able to negotiate better working conditions. Therefore, the base of the

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modern welfare state was already in place. In addition, as mentioned above, civil society was expanding its activities all over Europe and North America. In 1914, the war that broke out between Austria and Serbia quickly developed into the First World War, devastating Europe and many other regions of the world. Even during this horrible conflict, in which new technologies and chemicals were used to kill thousands of soldiers and civilians for the first time, the pre-war social and political paradigm seemed to survive. This paradigm even existed in the new post-war environment – several new States appeared to replace the Austro-Hungarian Empire and Prussia, and new frontiers were defined between other nations. There is insufficient space in this chapter to describe the development of the post-war situation and to follow step-by-step all that occurred between 1914 and 1938, or to explore what caused the dreams for a more just and prosperous society to be in ruins less than 20 years after the end of the war. However, for the purposes of this chapter, it is appropriate to mention that within that period of time, Europe appeared to develop four basic models of social and political systems. These four basic models were as follows. Model I: Liberal Parliamentary Democracy Based upon the Rule of Law and Free Enterprise This model was specific to Britain, France, the Netherlands, Belgium, Switzerland, the Scandinavian countries, Czechoslovakia, Yugoslavia and several other smaller nations. In these countries, civil society continued to develop and grow, even if the confrontations with conflicting social and national interests made the processes of democracy increasingly complicated. Model II: Social and Political Quasi-Democratic System Based upon Unlimited Power of a Closed Circle of the Communist Party Elite Brought to Power by the Bolshevik Revolution of 1917 in Russia This period began in February 1917 by the deposing of the Tsar and the attempt to introduce a republican liberal democratic system to Russia. The revolution of November 1917 changed Russia beyond any expectations. It was based on antagonistic class ideas developed in the nineteenth century by Marx and Engels. Led by Lenin and Trotsky, the Bolsheviks made an isolated attempt to introduce a new social system to Russia in which the working proletariat was called to play a decisive role, while private ownership was replaced by a public or collective one. In 1922, the Soviet Union emerged on the European scene with a political system based on the Communist Party’s overwhelming power, complete nationalization of industry and business, as well as completely collectivized agriculture. Stalin took over all powers and eliminated opponents, who were either killed or used as a cheap labour force in a system of work camps built all over the vast country. The fake democratic procedures were misused and all genuinely voluntary and grassroots citizens’ initiatives were either suppressed or subverted under the political control of the Communist Party units in factories, farms and communities. Model III: Fascist Autocratic, Nationalistic and Corporate Rule of Strength Derived from the Fanatical Support of Lower Classes, but Respecting the Market Economy, in Conjunction with a State Monopoly of the Military and Other Power-Securing Industries This model of corporate quasi-democracy under the personal dictatorship of a strong leader first developed in Italy under the influence of the National Fascist Party, led by Duce Benito Mussolini, who became the Prime Minister of the Italian Kingdom in 1922, after the March on Rome. Similar

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developments followed in Portugal, Hungary, Poland, Romania and Bulgaria, as well as later in Austria, Greece and Spain. These regimes were based on a mixture of populist promises to workers and strong powers of the autocratic State with military tendencies and full control of political and civil life by the governing authority – usually the strong dictator. Model IV: National Socialism, with Many Similar Characteristics to Fascism but Stronger Nationalistic Features, and the Objective of Creating a New Order in Europe Based upon: An Idea of a Nation Purified of Alien Elements; Led by a Strong National Leader Heading the National Socialist Party with its Own Military Units; and the State Investing in Infrastructure and the Military to Enable War to Achieve these Objectives This was the fate of the entire German nation in Europe, when Germany, under the leadership of Adolf Hitler since his parliamentary victory in 1932, developed into a strong military power. In 1938 the Nazis annexed Austria; and in 1938–9 destroyed Czechoslovakia and Poland, seizing the significant parts of their territories inhabited by Germans. This eventually provoked the Second World War in September 1939. The system not only totally suppressed the basic rights of individuals, but it enabled the repression and even the mass murder of millions of its Jewish and Roma inhabitants in both Germany and other countries all over Europe that were either occupied by, or allied to, the German armies. The last three political models have several common elements – the existence of a strong, central unit of elites that made autocratic decisions and created State rules using an ideology that promised benefits to the majority of the population at the expense of suppressing the rights of individuals and minorities. That was achieved by applying a range of methods like: conducting fake elections of representatives to quasi-democratic legislative bodies; creating military units subservient to the leading political party; applying an economic monopoly to the State or total nationalization of industry and collectivization of farms; and introducing laws permitting limitations on basic human rights and freedoms, replacing them with the overwhelming rights of those claiming to represent the society as a whole. Thus, the citizenship of Europe of the first half of the twentieth century developed in a completely different way than one would extrapolate from what was taking place during most of the second half of the millennium. Instead of obtaining more freedoms and rights, citizens lost most of their freedoms in totalitarian regimes and, at best, were treated as unimportant individuals within social bodies fully controlled by a small and carefully selected self-perpetuating circle of political and economic elite, or in the worst case, as unwanted ballasts of which the society must be rid of. The effects of this devastating degradation of citizenship and civil society in Europe led to the Second World War, with all its unfortunate consequences. This is perhaps one of the reasons why

  Countries annexed to Germany or occupied by its forces during the Second World War were: Austria, annexed in 1939; Czechoslovakia, with part of its territory ceded to Germany by the enforcement of the Munich Treaty in 1938, with the rest occupied in March 1939; Belgium, the Netherlands, Luxembourg, Denmark and Norway – all in 1940.

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after the defeat of the ‘Axis’ of Germany, Italy and Japan by the ‘Allies’ in 1945, many European politicians and thinkers were looking for a new political system that would make it possible to restore liberal parliamentary democracy, the rule of law and respect for basic human rights and freedoms, as quickly and in as many countries as possible. The opportunity presented itself to Europe through the creation of the Council of Europe in 1949, and through the US proposal of 1947, to provide financial, material and technical assistance to Europe in the form of the European Recovery Program, known also as the Marshall Plan. Finally, in 1952, the process of creating the European Community began, and in 1957 it was reinforced. In 1992, the Treaty on European Union complemented the Treaties on European Communities. Today the EU is comprised of 27 member States, including the Czech Republic. However, the path leading to the present situation was neither easy, nor straightforward. Unfortunately for Europe, soon after the end of the Second World War, it was again divided into antagonistic regions. The Soviet Union played a significant role in the war efforts of the Allies and, of all the fighting powers, suffered the biggest losses of both soldiers and civilians, followed by China, Poland and Indonesia. Consequently, Stalin had a strong voice in his negotiations about the future of Europe with the US Presidents Franklin Roosevelt and Harry Truman; and the British Prime Ministers Winston Churchill and Clement Attlee. The meetings of the Allied leaders in Tehran, Yalta and Potsdam resulted in territorial and political gains for the Soviet Union. Its pre-war gains with regards to Poland and the Baltic States10 were confirmed. Moreover, in exchange for restoration of Czechoslovakia to its frontiers before the Munich Treaty and recognition of the exiled Czechoslovak government, the most eastern part of Czechoslovakia, the Ruthenium, was ceded to the Soviet Union, thus becoming a part of today’s Ukraine. Furthermore, even though they had agreed to hold free elections in post-war Poland, Czechoslovakia, Hungary and Yugoslavia, and to restore or install true parliamentary democracy in these countries, they soon became fully controlled by Moscow. The Communist Party in Czechoslovakia gained strong support in the Czech part of the country during the first post-war free elections held in 1946. This was mainly due to the recognized participation of communists in the resistance movement against Germans. At the same time, the Communist Party was not successful in Slovakia. Nevertheless, the Communist Party was able to form a coalition government and even create an umbrella for most of the reinstated and newly   The term ‘Axis’ referred to those countries led by Germany, Italy and Japan in the war for dominance over Europe and rest of the world. The main countries were: Germany; Italy (previously occupying Ethiopia and Albania and entering the war in 1940); and Japan (invading China’s Manchuria in 1931, mainland China in 1937, and occupying most of the East Asian countries and many Pacific islands). The three Axis powers were joined by Slovakia (1939), Hungary (1940), Bulgaria (1941) and several other European nations.   The term ‘Allies’ referred to the countries that victoriously confronted the Axis nations in the Second World War, and who were led by the ‘Big Three’: the UK; the United States; and the Soviet Union. They were later joined by France to settle the political arrangements in Europe.   The Treaty on Establishment of the European Community of Coal and Steel was signed in Paris in 1951, and from July 1952 it was in force for 50 years. It expired on 23 July 2002.  In 1957, the Treaty on Establishment of the European Community of Atomic Energy and the Treaty on Establishment of the European Economic Community were signed in Rome. From December 2009, the two Treaties form the essential part of the Treaty on European Union and the Treaty on Functioning of the European Union. 10 In September 1939, the Soviet Union made use of its pact with Germany, seizing the eastern parts of Poland and forcing the three small countries along the eastern shore of the Baltic Sea – Latvia, Lithuania and Estonia – to accept its protection and become Soviet republics, an integral part of the Soviet Union, from 1940.

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established political parties and nationwide citizens’ associations representing sportsmen, women, youth and children, war veterans, handicapped people, minorities and many mutual assistance associations supporting various leisure activities. This semi-political umbrella organization was named the National Front, to reflect the ideology of unifying the efforts of the whole nation for post-war reconstruction of the country. The system was functioning for only about a year and a half when, in February 1948, it was misused by the Communist Party to accomplish a kind of a coup d’état during the first serious governmental crisis after the elections. Besides more concrete reasons, the crisis had been actually caused by the decision of the Communist Party to establish the ‘People’s Militia’ – armed units of workers in bigger nationalized companies – to allegedly protect the companies against the terrorist activities of opponents of socialism. Most of the non-communist ministers in the government offered their resignation in protest against such a violation of basic constitutional rules. They expected President Edvard Beneš to reject the offer and thus open the way to new elections. Against all expectations, perhaps from the fear of a civil war in which the well-armed People’s Militia would be involved, President Beneš accepted the resignations. This enabled the Communist Party to enforce a reconstruction of the government. The membership organizations of the National Front, including political parties, were immediately forced to restructure their leading bodies to get rid of those who supported the resigning ministers and who had in any way opposed governmental actions. As a result, a very short time after the end of the Second World War, Czechoslovakia became one of the countries with the Model II social and political system described above, which was introduced in a modified form. However, its introduction was sufficiently effective to completely subdue all initiatives of citizens to the supervision of the secretariats of Party units – sometimes directly, sometimes using the National Front organization as an intermediary. In addition, all basic freedoms, such as freedom of speech, expression, association and later even faith, were practically abolished. Moreover, during the 1950s many people were arrested and spent a decade or more in labour camps and jails, while some opponents were even executed. Main Characteristics of Citizens’ Lives in Czechoslovakia During the Cold War (1948–89) The hard, repressive actions of the ruling Party after 1948 and the internal repressions inflicted upon the Party by Stalin, killed most people’s belief in the ideals of socialism. Shortly after Khrushchev, the Soviet Union leader, condemned Stalin’s ‘cult of personality’ in 1958, the intellectual life of Czechoslovakia started to show signs of renewed intensity. The 1960s are remembered as years in which the best Czech films were made and when authors and actors who showed any hint of being fresh and ideology-free were readily applauded. However, during this period the economy started to decline. Czechoslovakia was dropping down the scale of industrially developed countries.11 The need for change became evident. In 1962 Czechoslovakia started a discussion on inevitable economic reform, which was promoted by 11 In 1924, shortly before the Second World War, Czechoslovakia was ranked 10–12 on a scale of industrial countries in regards to the percentage of industrial production, whilst regarding its per capita gross national product that reflects also the agricultural production, trade and services it was in the 15­–16 position in the world and represented thus about 70 per cent of the European average. After a relatively quick recovery during the 1950s and early 1960s, Czechoslovakia’s position on the scale began to slide down to the present position of the level of 29 to 39. See, for example, Angus Madison, Monitoring the World Economy, 1980– 1992, the World Economic Outlook Database of the International Monetary Fund, data of the World Bank

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Ota Šik, an economist who gained the support of the political elite. The aim of the reform was to complement the central planning of a fully nationalized industry with elements of the free market. Even the State-owned companies were expected to implement entrepreneurial management. Efficiency was to be measured by gross product value rather then by achieving the goals set by the national development plan. That period of change culminated in 1968, when economic reform was accompanied by changes in the political leadership of the Communist Party. Czechs accepted, and had high expectations of, the chairman of the Slovak Communist Party, Alexander Dubček, because of the soft rhetoric with which he addressed them in January 1968. The closed society that had existed – where elite circles of professionals, writers and other intellectuals debated political issues in secret – quickly transformed into a stream of grassroots initiatives and meetings with politicians, where Czech people demonstrated a real desire to participate in policy formation. Some citizens’ freedoms were spontaneously reinstated without many legal changes, such as freedom of expression, association, assembly and others. This was perhaps because of some kind of general understanding of the limits inherent in the main slogan of the time, ‘Socialism with a Human Face’, which to some people meant returning the political system back to its ideal as a system subservient to the people. However, these developments in Czechoslovakia took place at a difficult time for the majority of the rest of the world – a time that culminated in the Vietnam War, the revolt of youths in France, and last but not least, the Soviet Union’s leadership’s refusal to allow any attempts at reform. Soviet armies and those of several other Eastern European countries entered Czechoslovakian territory. The elite of the political leadership were arrested and forced to sign an agreement allowing the Soviet army to stay in Czechoslovakia for an unlimited period of time. The result was that the period that saw the outburst of freedoms for civil society in Czechoslovakia ended, and the ‘normalization’ period began. Fortunately, the conceivers and activists of the reform and their families were punished ‘only’ by loss of their profession and similar ‘soft’ and ‘human’ penalties, which nevertheless lasted until 1990. As a result, Czech civil society was, for several generations, influenced by the 1950s experience of society being divided into ‘good’ and ‘bad’, the fear of arrests and executions, the disastrous complete expropriation and collectivization of farmers, the impact of induced emigration and the experience of forced ‘voluntary’ work on great projects of socialism. The failures of the reforms of the 1960s and its bitter end, followed by the post-totalitarian, uninspiring and bureaucratic regime, as well as the evidently illegitimate ‘normalization’ regime, created in Czech civil society an atmosphere of disillusionment, apathy and narrow self-interest. In spite of this, active civil initiatives started again. This was partially a consequence of the Helsinki Agreement between European countries, the United States and Canada, signed in 1975, which opened the door for economic cooperation through the Iron Curtain dividing Europe, in exchange for a proclamation made by the Soviet Union and its allies to respect basic human rights. It inspired some more audacious, or less cowardly, citizens into action. The Charter 77 Group, formed around Václav Havel, started to formulate letters addressed to the President of Czechoslovakia, Gustáv Husák, reminding him and the government of the commitments signed in Helsinki. Others, in the Slovakian capital Bratislava, started to organize activities to protect the environment – instigated by the governmental decision to build a huge chemical company in the immediate vicinity of Bratislava and an aluminium factory in an unventilated deep valley within the Slovak mountains, which until then had remained unspoilt by heavy industry. on gross national product and populaton of countries, and Groeningen Growth and Development Centre, available at www.conference-board.org/economics (last visited March 2010).

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Nevertheless, the recovery after such a long period of decline and the shock caused by the occupation was not easy and took time. The reasons behind this slow recovery should be taken into account when trying to understand the development of civil society in the Czech Republic, even after 20 years have passed since the ‘Velvet Revolution’ of November 1989, where seemingly unexpectedly, thousands of Czechs gathered for several days in the streets of Prague. As a result of this protest, the communist government was overthrown and the lost freedoms of liberal democracy were finally brought back. The End of the Cold War in Europe On 15 January 1989 about 300 people gathered in the early afternoon on the upper part of Wenceslas Square in Prague, to attend a meeting commemorating the young student Jan Palach, who, 20 years previously, died after setting himself on fire in protest against the growing resignation of the Czech society to the unfortunate consequences of the occupation of Czechoslovakia by Soviet and other armies in August 1968. The call for the meeting and others to follow, was issued by five independent grassroots civic initiatives: Children of Bohemia; Charter 77; the John Lennon Peace Club; the Independent Peace Association; and the Community of Friends of USA. Police were informed about the preparations and prevented many people from attending by closing part of the city to both mass and individual transportation. Those who came to the area were dispersed using water guns and other instruments. Police statistics show that more than two-thirds of those present were workers. The following day, several people came to put flowers beneath the Saint Wenceslas Statute, where Jan Palach set himself alight. They were arrested together with some others in the neighbouring streets. Václav Havel was also arrested at that time. Yet, Charter 77 was able to use the unnecessary and unprovoked brutal police action as an example of how the Czechoslovak government was violating the Helsinki international treaty, which at the same time, on 17 January 1989, was being reconfirmed in Vienna. The events above of the so called ‘Jan Palach Week’ of January 1989 are considered to mark the very beginning of the process by which Czechoslovakia was transformed into a liberal democracy after 40 years of unsuccessful experimentation with socialism. The regime had been based on a totally centralized economy with full control over citizens’ activities, combined with nearly total isolation from the outside world which was deemed ‘unreliable’ by Soviet leaders. A number of great changes occurred in Eastern Europe in 1989. From March to April 1989 the free trade unions in Poland, known as Solidarity and led by Lech Wałęsa, regained their strength and won elections to the Senate of the National Parliament. During the summer of 1989, Hungary made several transformative reforms that made it a liberal democracy. In October 1989, the Hungarian Republic officially required the Soviet army to leave the country and during the summer months it opened the Iron Curtain on its frontier with Austria. Many citizens of East Germany, who went through Czechoslovakia to Hungary in an attempt to reach their families in the German Federal Republic, immediately made use of this opportunity. During this time, the West German Embassy in Prague served as a shelter to thousands of these people, who were enthusiastically supported by the sympathetic Czechs. Finally, during the October visit of the Soviet leader Gorbachev to Berlin, it became clear that he no longer intended to protect the existence of the Berlin Wall. On 3 November, even the Czechoslovak authorities allowed East Germans to cross the frontier to West Germany. Finally, on 9 November, the Berlin Wall – the symbol of division of Europe – was opened in many areas and the isolation of the East from the West of Europe became a thing of

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the past. Moreover, on 10 November, Bulgaria joined the countries of Eastern Europe who had transformed their systems and decided to hold free elections. Nevertheless, even with Gorbachev’s ‘Perestroika’ already changing the internal and external policy of the Soviet Union, and with Poland, Hungary, East Germany and even Bulgaria changing into open democracies, Czechoslovakia seemed to stand alone as a stubborn pillar of the authoritarian political system within Central Europe, despite growing tensions within society. As if waiting for the right moment, and in need of some stronger stimulus for action, the Czechs seemed to be observing events in the surrounding countries with little more than a detached interest. Building Democracy and Using the Freedom of Self-Determination Before his abdication, the last communist President, Husák, appointed the new so-called ‘Federal Government of National Understanding’ in December 1989, presided over by the communist Čalfa and composed of experts constituting a mixed committee of representatives of the Communist Party and two newly born initiatives: the Civic Forum in the Czech Republic; and the People Against Violence in the Slovak Republic. In December 1989, the Federal Parliament of the Czechoslovak Socialist Republic (CSR) was also modified, and elected Václav Havel, the most prominent leader of the Civic Forum, to the position of the President of the Republic. During the first half of the 1990s, the Federal Parliament managed to approve several important amendments to existing laws and adopt new acts. The CSR Constitution was amended by cancellation of the article that defined the Communist Party of Czechoslovakia as the leading force of the society and, in April 1990, the republic was renamed the Czech and Slovak Federal Republic (CSFR). The National Front of political parties and other mass organizations were dissolved. New legislation on political parties, citizens’ associations and others were also adopted. Specific laws confirmed the freedom of assembly, freedom of expression, abolition of censorship of the press and other media, and other important freedoms. The regulation of commercial activities was substantially amended to allow private ownership and its protection, as well as to reintroduce the notion of a foundation.12 Immediately after November 1989, many new citizens’ initiatives were created. New laws at the beginning of 1990 permitted their legal existence. During the first few months of 1990, in all regions of the CSFR, many new associations and foundations appeared. More then 100 representatives of these new grassroots citizens’ initiatives met in the summer of 1990 at a Conference of Foundations and other Not-for-Profit Organizations (CFNPO). The CFNPO initiated the establishment of the Information Centre of Foundations and other Not-for-Profit Organizations (ICN) and created a Commission for Drafting the Bill on Foundations. During the following years, the ICN developed into a strong pillar, supporting the independent citizens’ organizations by creating a library of books and documents related to the activities of associations and foundations, as well as by organizing training and a series of events.13 In addition, the Commission for Drafting the Bill on Foundations was formally recognized as an advisory body of the CSFR Federal Government. In 1992, under the guidance of the Vice-Premier Mikloško and together with legislative experts, it prepared a draft of the Bill on Foundations and Funds. Despite the avalanche of newly created initiatives, the mass organizations that survived from previous years entered a phase of restructuring. The history of two nationwide organizations, Junak 12  All but one foundation were abolished and had their property confiscated in the 1950s. 13  See www.neziskovky.cz for more details about the current activities of this organization.

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and Pioneer, may serve as an example of this development.14 Both organizations focused on the extracurricular activity of children and young people. Pioneer was created in 1948, by the Communist Party of Czechoslovakia (CPC), to help with the indoctrination of youth with communist ideology and counter the influence of the abolished Czechoslovak Scouting Organization, represented at that time by Junak or the two international youth organizations, YMCA15 and YWCA,16 as well as the traditional Czech organization Sokol. During the February 1948 events, the leadership of Junak was forced to accept its membership in the newly created Union of Czech Youth – a part of the National Front. Shortly after, in the 1950s, Junak, Sokol, the YMCA and the YWCA were abolished, while Pioneer was organized as a union with local sectors operating at schools in nearly all communities of the CSR. Its membership was reported as representing more than 1.2 million pupils of basic and high schools, i.e. about 85 per cent of all children in that age group. A short interim took place, between 1968 and 1970, when Junak reappeared in an attempt to restore the scouting movement and ideals, and Pioneer lost nearly 80 per cent of its members and started to reformulate its mission in order to behave as an organization independent from central control. Both Pioneer and Junak opposed the occupation of Czechoslovakia on 21 August 1968. In 1970, the CPC, as part of its ‘normalization’ and purification of reformers, decided to form the Socialist Union of Youth (SUY).17 This organization took over the activities and property of Pioneer and Junak and lasted until 1990, when it was dissolved and both Junak and Pioneer renewed their activities, partially taking over the property of SUY. The restructuring of the ‘old’ mass organizations began with proclamations of independence of local units from the central union bodies. This disintegration stage lasted for several months or even years. Essentially, the union, as an umbrella of the local branches, had to be newly formed. The process also required electing new central bodies within strictly democratic procedures. On the one hand, the ‘old’ organizations were in a better position compared with the new grassroots organizations, as some of the subsidies for youth organizations introduced during the 1970s and 1980s continued to flow to them. On the other hand, these organizations were handicapped by their past relations to the National Front and CPC. They could only gain the trust of the general public slowly and through concrete activities. Other mass organizations were in a similar position, such as the Czechoslovak Women’s Union, Union of Invalids, Czechoslovak Red Cross Organization, Czechoslovak Union of Physical Education, Czechoslovak Scientific and Technological Society and others. They also underwent restructuring, adopted new bylaws and democratically re-elected their governing bodies on all levels. Besides Junak, organizations like Sokol, Rotary International, The Lions, YMCA, Transparency International, Greenpeace and others reappeared and became active not only in Prague, but all over the country. The environmental organizations, which were already active before 1989, kept a certain distance from other newly established or renewed organizations. They formed the so-called Green Circle, which did not cooperate with the CFNPO. Similarly, as with all internationally based organizations, it tended to act more on an international, rather than national, platform. The new economic environment began to form by way of changes in the legal environment that governed the commercial sector. The quick progression of schemes aimed at the reintroduction of 14  Matyas Novak, Junak and Pioneer (in Czech) (Prague: Oikos, 2000). 15  YMCA – the Young Men’s Christian Organization, established in London, England, in 1844, has been very active in Czechoslovakia since before the Second World War. 16  YWCA – the Young Women’s Christian Organization, began in the United States in the 1850s. 17  In Czech, the ‘Socialistický svaz mládeže (SSM)’ – The Socialist Union of Youth – was created by the CPC to ensure ‘proper’ work with youths, and to counteract the activities of independent student organizations and those of the re-established Junak and independent Pioneer.

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a market economy based on competition between privately owned enterprises, led to a situation in which efforts to develop civil society organizations operating on the not-for-profit principle seemed to be unrealistic. Nevertheless, due to the enormous support of the European Union,18 the United States,19 the UK,20 the Germans21 and the Dutch,22 as well as State agencies and independent foundations, the institutional development of the new grassroots civil society organizations (CSOs) and Czech universities and schools, hospitals and local government, was quite rapid. In many cases, the newly established CSOs served as bridges between foreign donors on the one hand, and universities, schools and smaller associations, as well as public administration, on the other. Via CSOs, the country was supplied with new technology that was unavailable in the East at that time, such as personal computers, copy machines, faxes, printers and relevant software products. Training in corporations and human resources management, public administration governance, foreign languages, conflict resolution, communication and other skills flourished and was organized by CSOs. The privatization of State-owned industry and business started with a restitution process, in which shops and smaller manufacturing firms were returned to the families of former owners. Where the former owners were not identified or did not exist, the shops were sold at auction. Rather quickly, this created a sector of small private enterprises. Several new banking houses emerged, which supported transactions with loans guaranteed by the expected future profits of acquired enterprises. This was a real ‘Klondike’ phase of early capitalism, where those who were informed and prepared to take the risk were either awarded by entering the sphere of the rich or suffered losses. At the same time, the general population was exposed to a quick rise in prices, while being tempted by the influx of fancy goods from more developed countries. Nearly everybody tried to visit neighbouring Austria or Western Germany, to see how much better the standard of living was in those countries. In 1991, the privatization wave reached medium and bigger industrial complexes. The government decided to implement the so-called ‘voucher competitive’ method for privatizing the State-owned companies, which were transformed into shareholding companies with all shares held by the State. In order to create shareholders from the general public, where free capital was scarce, the government distributed the voucher booklets for a minimal price. People then started to ‘buy’ the shares for vouchers. The reason behind this method of privatization was to evaluate the companies 18  The European Union supported the Czech Republic civil sector in the framework of the PHARE programme via NROS – The Foundation for the Development of Civil Society – with about US$659,000 in 1994. Source: Kevin F Quigley, For Democracy’s Sake (Washington, DC: The Woodrow Wilson Centre Press, 1997). 19 USAID, directly and via the Foundation of Civil Society, provided approximately US$630,000 per year, while independent US foundations have provided much more: the MacArthur Foundation – US$1.713 million; the Open Society Fund – US$1.323 million; the Foundation for Civil Society – US$824,000; the Mellon Foundation – US$620,000; Rockefeller Brother Foundation – US$312,000; the Ford Foundation – US$222,000, National Endowment Foundation – US$209,000; National Democracy Institute – US$178,000; the Lynde & Breadley Foundation – US$138,000; Stuart Mott Foundation – US$113,000; German Marshall Fund – US$112,000; and other US foundations together – US$210,000. In total, around US$6.603 million came into the Czech Republic from the United States in 1994. Ibid. 20  The UK, via the Westminster Foundation for Democracy, provided around US$490,000, while the Charities Know How Fund contributed with around US$222,000 and the Pew Charitable Fund around US$43,000. Ibid. 21  Contributions of around US$372,000 came from the Volkswagen Stiftung in the Federal Republic of Germany. Ibid. 22  Cooperating Dutch Foundations contributed US$416,000. Ibid.

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and distribute the shares to those interested in the products or ownership of the companies. Some individuals were better informed than others. Some did not know what to buy and how to make use of the voucher offer. At the end of 1991, some individuals started to organize investment funds – they were either buying the vouchers from others or offering a service of investing vouchers on behalf of the original owner while making a percentage on the later sale of shares. In that atmosphere, an idea was developed on how to overcome one of the common drawbacks of all countries in transition from a centrally planned to free market economy, namely the lack of private foundations equipped with endowments that would support the development of grassroots and independent CSOs. As mentioned above, at the end of the nineteenth and during the first half of the twentieth century, many foundations existed that were particularly committed to supporting education, science and social care activities. But foundations, as such, were abolished in 1951, and their property was confiscated by the State. Moreover, during the restitution period of 1990–1, the government refused to return the property, with the exception of a few: Sokol; some other sports clubs; and to the Josef and Marie Hlavka foundation. The rest were left without a chance to retrieve their property, forests or land lots, which had been the main source of their income before confiscation. Moreover, with over 40 years without private ownership, any chance of creating an endowment capable of sustaining an efficiently functioning foundation had been diminished. What was the best way to remedy this unfortunate situation? The primary idea was to set aside 1 per cent of the privatized shares of industry and to form an investment fund that would generate endowment for new grassroots foundations. The idea was announced and a call for projects supporting the development of civil society was publicized by a specially established Council on Foundations at the government of the Czech Republic. As a result, many new foundations were created and hundreds of project proposals were accumulated at the Council of Foundations during the first half of 1992. At the same time, the political life of Czechoslovakia was quickly evolving. Many new political parties had been created. The Civic Forum split into the Civic Democratic Party headed by the Minister of Finance of the Czech Republic, Václav Klaus. In Slovakia there was a strong emphasis on national issues and growing disagreement with the decision supported by President Havel to reduce the military industry, which was mostly located in western and central Slovakia. In June 1992, the first free elections after 1989 were held. To the great surprise and dismay of dissidents who had created and led the Civic Forum in the Czech Republic and the People Against Violence in Slovakia, these two movements were defeated by newly created political parties – the Civic Democratic Party on the Czech side of the Federation, and the Christian Democrats and Slovak National Party on the Slovak side. Soon after, the Czech and Slovak Prime Ministers, Václav Klaus and Vladimir Mečiar, began tough negotiations on the future of the Federation. Unable to find a consensus on how to put into balance the Slovak aspirations for a more internationally visible and independent role with the costs of creating sustainable economic development in both national States, the two leaders negotiated a split of the federation into two independent States. In light of this, President Havel abdicated, and soon after both national republics started to prepare and negotiate the conditions under which the Federation could peacefully divide itself into two independent nations. Naturally, the political split also affected civil society. The promise of cooperation with CSOs in both national States started to dissipate and many common efforts disappeared one after the other. On 1 January 1993, the two new countries replaced the CSFR – the peaceful divorce of the Czechs and Slovaks resulted in the formation of the Czech Republic and the Slovak Republic, both with their own currency, flag and a part of the previously common anthem. Many families and CSOs, as well as companies, found themselves split between the two countries and forced to

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make a hard and painful choice of domicile. In the Czech Republic, Václav Havel was elected by the Czech National Council to serve as the first president. The Council, in turn, became the lower chamber of the Parliament of the Czech Republic. The journey of the Czech Republic towards its membership in the European Union on 1 May 2004, and the story of its concurrent civil society development, is described in the following section. Civil Society in the Czech Republic Disputes About the Role of Civil Society Since June 1992, when Václav Klaus became Prime Minister of the Czech Republic, disputes had already started in the national government with the then President Havel about the role of civil society and its constituent organizations in the newly developed democratic political system. From President Havel’s point of view, Czech society stood on three columns: the private sector; the State administration; and the free, not-for-profit, or voluntary activities of citizens – the so-called ‘Third Sector’. He even floated the idea of a further extension of the taxation laws to include the possibility for the taxpayers to make their own decision about how or where a certain small, but well-defined, part of their tax payments should be put to use. This view was clearly unacceptable to Prime Minister Klaus, who retorted in a series of articles. He disputed any need for a ‘third way’ and claimed that what was needed was a society of free citizens who, first and foremost, should take care of their duties with respect to the State. He could not envisage any special need for charitable associations to become an obligatory part of political life. Indeed, he equated such ideas with historical experiments in collectivism, hinting that they had their origins in a previous historical epoch. Tax assignations, he stated, were an extravagance because the State bureaucracy is the only legitimate tool for decisions regarding the use of money collected in taxes. President Havel requested much greater attention to the civic grassroots activities, which he expected to play an important role in citizens’ participation in political and common interest affairs. On the other hand, the Prime Minister declared that the society of free and self-conscious citizens does not need any artificial collective formations standing between the State and the citizens. These disputes influenced not only the development of civil society itself, but also delayed the correct adoption of new laws to regulate the operation of associations and foundations. In fact, Czech society still remains split into two or more groups with regards to a common understanding of the role and rights to participate in the policy-making of political parties and movements on one hand, and organizations and initiatives of citizens on the other. The disputes culminated in 1995, during the parliamentary readings of several bills important for the further development of civil society in the Czech Republic. These were the Bill on Not-for-Profit Legal Persons, the Bill on Foundations, the Bill Amending the Act on Association of Citizens, the Bill on the Czech National Foundation, the Bill on the National Ombudsman, as well as several other bills concerning social and family affairs, healthcare and other important issues. The fate of some of these bills may be used to demonstrate the difficulties that accompanied the re-creation of civil society as well as the overall political development in the Czech Republic after 1993.

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The Fate of the Bill on Not-for-Profit Organizations The US Agency for International Development (USAID),23 together with several independent foundations, had shown strong interest in the reappearance of civil society in all countries of Central and Eastern Europe that had entered the transition from the one-party system to an open society. The goal of these efforts was to create a multi-party democratic system based on the rule of law, including citizens’ participation in policy-making. This interest was reflected in the direct promotion of legislative steps that led to the creation of appropriate legal instruments protecting these values. In the Czech Republic, the US based International Centre for Not-for-Profit Law (ICNL), with a grant initiated by USAID in late 1993, began negotiations with a group of deputies of the Czech Parliament and the Ministry of Finance about a proposal to adopt a special law allowing the establishment of not-for-profit organizations. At the same time, the Standing Committee of CFNPO decided to reopen efforts to draft and advocate a law on foundations. The ICNL entered into cooperation with the experts of the CFNPO, which resulted in the proposal of a common draft of the Bill on Not-for-Profit Legal Persons, submitted in March 1995 to the Czech parliament. The working name of the bill was misleading, so the deputies renamed and modified it. As a result, Act No. 248/1995 on Public Benefit Corporations was adopted. It introduced a new type of non-membership and not-for-profit civic organization: the Public Benefit Corporation (PBC).24 The Act came into effect on 1 January 1996. During the first years of its existence, the law was found to limit the Act’s application for some important purposes. For example, it did not allow the PBC to open a branch outside the Czech Republic, which complicated the use of this legal form for providing humanitarian and other services abroad. Neither did the law clearly define what public benefit services were. In addition, it required a fairly rigid organizational structure whereby the board of directors, as a statutory organ of the PBC, was required to renew one-third of its members every year. Other limitations on the membership of the board were introduced to prevent conflicts of interest. In 2002, these limitations were removed by an amendment to the law.25 The Law on Foundations and Funds The work of the mixed Committee of CFNPO and the government on drafting the Bill on Foundations was already completed in December 1992, just before the Federal Parliament of Czechoslovakia met for the last time. Unfortunately, the Bill was not transferred to either the Czech National Council, or the Slovak National Council, and the work that had been invested in its drafting was lost for a long period of time. The completely redrafted Bill on Foundations and Funds was completed and submitted to parliament in March 1995, but the legislative process was not completed before the elections that year. After the elections, the new parliament refused to take over the previously prepared legislative agenda and bills. In September 1997, after another round of redrafting, parliament finally approved the new law regulating the establishment, registration, governance, economic activities and winding-up of foundations and funds, i.e. civic organizations expected to provide financial support, by way of 23 USAID is an agency active in transition countries that provides economic, humanitarian and institutional building assistance. 24  In Czech, the ‘Obecně prospěšná společnost’. This can also be translated as the Commonly Beneficial Company. 25  For details see Petr Pajas, ‘Czech Parliament Amends NGO Laws’, Social Economy and Law Journal Summer (2002).

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grants, to other organizations. Act No. 227/1997 on Foundations and Funds26 became effective on 1 January 1998. It introduced two types of foundation. The term ‘foundation’27 is used for a legal body that is conceived as representing the property endowed by a founder(s) to generate income, which in turn is used to provide grants to third persons to support specific public benefit purposes or activities. The term ‘fund’28 is used for a legal body established with the objective to collect assets and use them for public benefit purposes. Therefore, a fund is not obliged to have an endowment, whilst a foundation must have a minimum endowment, the value of which is about US$30,000. The income generated by the endowment of a foundation is exempt from corporate income tax. Similarly, as in the case of PBCs, collective statutory organs govern foundations and funds. Foundations established under the previous laws were given one year to decide whether they would like to continue their existence as a foundation or a fund, or to become a PBC. Other options were to merge with another foundation or to terminate and transfer the liquidation balance to another foundation. The transformation took place during 1998–9. As a result, the number of foundations, who were mostly inactive and waiting for some monetary input, dropped dramatically, from more than 5,500 to less than 100. However, the following years saw the start of a steady growth in the number of foundations, funds and PBCs. The Investment Fund and Endowments of Foundations Since November 1989, branches of several foreign foundations started to operate in Czechoslovakia. In 1992, during the privatization process, the State Privatization Fund established the Foundation Investment Fund (FIF) as a shareholding company, and the government of the Czech Republic created a Council for Foundations as its advisory body. The former institution was presumed to take care of the 1 per cent voucher privatization portfolio and then distribute the shares or dividends from it to the foundations. The Council for Foundations, on the other hand, was assigned the role of looking for foundations to which a contribution should be made. However, the work of these institutions was not very successful. After a very emotional proclamation of the Council of Foundations in the summer of 1992, according to which foundations with good public benefit projects could apply for funds from the privatization portfolio, there was an avalanche of newly created foundations with well-designed future projects. In 1994 there were 5,000 newly created foundations, of which more than 600 applied to the Council of Foundations for an expected contribution. However, this occurred before any money that had been set aside from the privatization portfolio became available. From 1992–5, this situation was severely criticized, however no solution was found regarding how to implement the governmental promise. In March 1995, after consulting specialists mainly from the US Charles Stuart Mott Foundation and others, the idea of establishing a National Endowment Foundation, which would take over and further maintain the portfolio assigned originally for the FIF, was enshrined in the form of a draft law. While the government rejected the project, the Council of Foundations voted in support of it. The draft law was finally taken over by a group of deputies of parliament and resubmitted again in 1996 as a proposal to establish a Czech National Foundation with a democratic decision-making structure responsible for distributing annual contributions to the endowments of active foundations. The Bill on the Czech National 26  See Petr Pajas, ‘Foundation Law in the Czech Republic’, Social Economy and Law Journal Winter (2002). 27 In Czech, ‘nadace’ means a grant giving foundation with registered endowment, which must not be misappropriated and its value must be maintained at a set level. 28  In Czech ‘nadační fond’ means a grant-giving organization entitled to collect money, but not required to possess an endowment.

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Foundation passed successfully through two readings in parliament, only to be taken off the agenda at the last session before the 1996 elections, together with several other Bills that were not acceptable to Václav Klaus’ Civic Democratic Party government. The new parliament did not return to the issue again, effectively ending the life of the Bill. The disputes about how to use the shares set aside for the foundations have continued within the Council of Foundations, which in 1997 was transformed into the Council for Non-Governmental Not-for-Profit Organizations (CNGNPO), composed of appointed representatives of CSOs and officials of several ministries of the government, and chaired by a government minister. Existing influential Czech foundations did not support the idea of the Czech National Foundation, as they wanted to directly receive government contributions. This led to the dissolution of the Standing Committee of CFNPO and the creation of several groupings of CSOs active in different fields – social and health care, the environment, human rights protection, care of youth, etc. At the end of 1997, a new concept of how to distribute the privatization fund was developed. At that time the FIF portfolio value was estimated to be between US$20 million and US$100 million. The new Act on Foundations and Funds made it easier to define the legal entities to which the contributions from the privatization fund could be given. In May 1998, a tender for foundations interested in securing a contribution from the privatization fund was announced and in March 1999, seven committees of the Council decided the fate of 93 applications accumulated during the tender. Only 39 of these fulfilled the formal requirements of the tender. Finally, upon recommendation of the CNGNPO and approval of the government, parliament decided to provide contributions to endowments of 36 foundations. Of these, 26 scored best in six nominal groups (healthcare promotion, social care promotion and humanitarian assistance, education promotion, culture promotion, environment protection and human rights protection). A total of ten other foundations were selected from the seventh group, which was open to foundations with regional activities. During this first tender about US$20 million was distributed, which the receiving foundations were obliged to register as part of their endowment, and to regularly distribute its annual yield to other CSOs in the fields of their activity. In 2001 there was a second round of a similar tender, in which US$33 million was distributed to 64 foundations. Thus, some foundations received a second contribution to their endowment. Thanks to this procedure, 73 foundations with a significant endowment now operate in the Czech Republic. The CNGNPO continues to operate as an advisory body of the Czech government. It contributed to the transparency of the distribution of subsidies from the State budget to CSOs and to the further development of the Czech legal system governing the foundations, funds and public benefit corporations. The endowed foundations have formed their own association called the Donors Forum in cooperation with corporate donors, which has developed an ethical code for foundations and a strategy for the not-for-profit sector. It has also, in partnership with several banks, developed tools allowing for common investment activities of endowed monetary assets. Impacts of Political Development on Civil Society Regarding the development of the political environment in which the CSOs operate in the Czech Republic, the following five basic tendencies have prevailed in the post-Cold War society: 1. The Reformed Communist model: supported mostly by members of the Communist Party of Bohemia and Moravia, this model is based on the promotion of the rights of employees. It relies on reflections of the ‘good old times’ in which all were equal in terms of access to assets. About 15 per cent of the Czech electorate votes for the representatives of this model.

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2. The Social Democratic model: supported mainly by the members of the Czech Party of Social Democrats, it promotes a responsible and strong State and regional administration, working within the market economy. It counts also State-owned or controlled companies which might generate additional income to the State budget. About 30 per cent of the Czech electorate votes for the representatives of this model. 3. The Christian Democratic model: religious values and State responsibility should be in balance within a democratic and open political system based on free entrepreneurship within a market economy. Mostly members of the Czech People’s Party, the Christian Democratic Party and a wing of the Civic Democratic Party support it. About 10 per cent of the Czech electorate votes for the representatives of this model. 4. The Open Society model: a free entrepreneurship society of liberal economy and strong civil society, exercising strong citizens’ participation in policy-making with a significant watchdog mission towards political parties and protecting the living environment and natural or cultural values. It is supported by most of those who either are not involved with any political party or are members of a smaller political party, such as the Green Party, the Freedom Union, the Party of European Democrats. About 15 per cent of the Czech electorate votes for the representatives of this model. 5. The Liberal Democratic model: democracy based on exclusive power of political parties with a tendency to promote very liberal economic legislation and a decentralized state, with as little State interaction as possible, with the private sector operating in a fully privatized market economy. This model is mostly supported by entrepreneurs and a majority of members of the Civic Democratic Party and several other right-wing formations. About 30 per cent of the Czech electorate votes for the representatives of this model. In the short history of the Czech Republic, there have been free elections in 1992, 1996, 1998 and 2006. They resulted in the following formations of power: in 1990–2 there was the Open Society government of the Civic Forum; from 1992 to 1997 there was a coalition between the Liberal Democrats and Christian Democrats under Václav Klaus; an interim administrative government in spring 1998; the Social Democrats under four consecutive prime ministers in 1998–2006; and since 2006, once again there has been a coalition between the Liberal and Christian Democrats and the Greens under Prime Minister Topolánek. During each of these periods, civil society has been confronted with differing government attitudes. However, in general, it is gradually developing into an interactive community of selfsustainable, active, professionalized organizations, sometimes influential on a local or even national level. Besides the Donors Forum, there are several other umbrella organizations or groupings of similarly oriented CSOs in operation. Politicians often visit their conferences, workshops and seminars and their recommendations are sometimes taken into account. Associations, such as Junak with Scouts, Pioneer, YMCA and many others take care of the leisure time of children and young people, while there are many PBCs that provide services for families with small children. Sokol and many sport clubs take care of amateur sports activities, while bigger clubs have become businesses making a lot of profit from professional sporting events. The Czech Union of Blind and Semi-Blind, Friends of the Deaf, the League of Wheelchair Users, and many others take care of the disabled or provide services for them and their families. In addition, many theatres, orchestras, galleries, museums and similar cultural institutions as well as many basic, high and professional schools or universities in Prague and other cities are operating as PBCs. The Policy Association for an Open Society (PASOS), or Association for Promotion of Democracy and Human Rights (DEMAS), together with Czech Transparency International, the Czech Helsinki

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Committee and similar organizations are either networks of independent think tanks providing policy recommendations, or serving as watchdogs monitoring the quality of governance of both local and national governments and public administration, together with investigative journalists. In 1997, the United States decided it was necessary to withdraw most of its support from the Central European countries that had already achieved decisive progress towards democracy and a free market economy. Within several months, the support of governmental agencies and most independent foundations was terminated. Fortunately, the Czech government and the EU, along with some other European donors, continued to support the most vulnerable CSOs, while many of them learned how to combine additional economic activities with their main not-for-profit activities in order to generate an income and become less dependent on donor support. However, the kind of corporate philanthropy that would ease the dependence on subsidies still coming to the civil sector from the State budget, and from municipalities and communities, has not yet fully developed. Nevertheless, Czech society as a whole has demonstrated its readiness to provide voluntary work and financial assistance in cases of urgent need. For example, in 1997 and 2001, when the Czech Republic was exposed to disastrous floods, as well as in cases of natural disasters, such as the 2004 Indian Ocean tsunami. The Donors Forum even invented a special tool for collecting small donations from the general public – it negotiated with the mobile phone operators a kind of SMS message, called DMS, by which everybody may contribute to a nationwide collection and the State contributes by waiving the value added tax of this service. The study of civil society and the civic sector now forms part of university level education. This is preparing many young men and women for jobs within CSOs or for taking positions in public administration or political life with a real knowledge of the conditions and peculiarities of not-for-profit and publicly beneficial activities, such as the life of associations and the governance of foundations, funds and public benefit corporations or the charitable establishment of churches. Several Czech or Czech Republic-based CSOs are very active on an international scale, working either in humanitarian fields, like Rotary Clubs, People in Need, Adra and several charities of the Catholic Church or Diaconal organizations of several Protestant churches. Others are developing activities aimed at strengthening civil society and promoting good governance, democracy, the rule of law and respect for human rights, as well as direct participation in humanitarian aid activities abroad, such as: People in Need; the Foundation of Civil Society; Adra; Junak (the Association of Czech Scouting Youth); Genders Studies Association; Transition On-Line; PASOS; DEMAS; and Rotary International District 2240. Civil Society in the Czech Republic in Numbers and Graphs The most prevalent type of CSO in the Czech Republic is a civic association, which is simple to establish. In order to do so, it is sufficient to submit the bylaws of the association, prepared and signed under office by a minimum of three persons, out of which one must be an adult (above 18 years of age). The Ministry of Interior shall register the association unless it is established for prohibited purposes, such as to deny or limit basic human rights, spreading hatred between people, or trying to develop its own military subunits. Associations are also prohibited from acting as though they are replacing the role of the public administrative authorities. Since the economic activities of civic associations are limited only by the requirement that entrepreneurial activity should not be the main purpose of the association, in the first few years after 1989 it was quite

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Figure 13.1 Number of associations registered in regions of the Czech Republic in 200729 common to establish an association of a fixed and small number of persons and carry out some business. The lack of any tools to detect such a violation of the laws governing civic associations was, perhaps, one of the reasons why there is now quite a high number of civic associations spread rather evenly around the country. The Czech Republic is divided into a number of administrative regions. However, these administrative regions are not even roughly equal concerning the number of inhabitants. Therefore, the following graphs and figures relate to bigger units: Capital city Prague; Central Bohemia (the region surrounding Prague); Western Bohemia (Plzen region and Karlovy Vary region put together); Northern Bohemia (Usti region and Liberec region put together); Eastern Bohemia (Hradec Kralove region and Pardubice region put together); Southern Bohemia (C. Budejovice region plus half of the Vysocina30 region); Northern Moravia (Moravian/Silesian region), Central Moravia (Olomouc region and Zlin region put together); and Southern Moravia (Moravian region plus half of Vysocina region). Approximately one million inhabitants populate each of these regions with a density of about 150 inhabitants per square kilometre. The total number of inhabitants of the Czech Republic amounts to about 10,200,000. 29  Based on data from Tereza Vajdová, ‘An Assessment of the Czech Civil Society in 2004: After Fifteen Years of Development’, CIVICUS Civil Society Index for the Czech Republic (Prague: Charles University, 2005). 30  The Vysocina region has been formed in a mountainous part of the country, along historical frontiers between Bohemia and Moravia, so that half of its territory lies in Bohemia and the other half in Moravia.

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14000 12000

11708

10000 8000 5187

4000

2661

2000

1569 1347 862

2844 745

562

261

219

170

166

121

fo

re s

t

sp

or t hu nt in g ed uc at io n cu ltu le re is ur e tim pr e of es si on he al yo th ut an h d so ci al ec ol og y sc ie nc ch e ar ita in bl te e rn at io na m l in or iti es

0

ot he r

6000

Figure 13.2 Main activities of Czech associations in 199931 Act No.83/1990 on the Association of Citizens also regulates the establishment of trade unions. To establish a branch of a trade union at a factory or any other firm, farm or office operating as an independent legal entity, it is sufficient to report it to the Ministry of Interior, which is obliged to make the appropriate entry into the register without further proceedings. These units then apply for membership in broader, professionally based, unions. For some professions there are even several competing nationwide or regional unions. However, neither the trade unions nor the interest associations of employers are treated as belonging to the grassroots civil society since, together with political parties, they are involved in power struggles and are created first and foremost to protect the interests of their members. Professional chambers are another form of membership organization. They are usually established by a special law and in most cases there is mandatory membership in a chamber for those who want to work in a licensed profession on their own or to accept a responsible position in any public institution. The main chambers acting in the Czech Republic are: • • • • • • • • •

The Czech Medical Chamber; The Chamber of Veterinarians of the Czech Republic; The Czech Dentists’ Chamber; The Czech Bar Association; The Notary Chamber of the Czech Republic; The Chamber of Auditors of the Czech Republic; The Executors’ Chamber of the Czech Republic; The Chamber of Tax Consultants; and The Czech Chamber of Architects.

Besides these membership-based associations, chambers and similar organizations, there are three basic types of CSOs that may be established as independent legal entities. On the one hand 31 Ibid.

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these are the endowed foundations or funds without endowment that support publicly beneficial activities of other persons by providing financial grants or achieving their purpose by organizing social, educational or cultural activities, or by publishing or doing similar activities on a not-forprofit basis. On the other hand, there might be public benefit corporations (PBCs) that provide services of common benefit to any interested party under the same conditions and on a strictly not-for-profit basis. In general, a Board of Directors or a Board of Trustees governs all three types of CSOs. Persons of integrity, who are elected or appointed to these boards by the founders, may not be employed by the organization. The Board should guarantee the achievement of the goals set for the organization by its founder(s) and decide on all strategic issues. In the Czech Republic, registered churches may establish their own organizations, which then operate as legal entities that are subordinate to the churches’ internal regulations, but otherwise fulfil certain charitable purposes, such as providing humanitarian services in health and social care. Figure 13.3 shows the numbers of these organizations in the Czech Republic as a whole and the proportion of those with a seat in the capital city Prague.

Figure 13.3 Number of non-membership based CSOs, in the whole Czech Republic and in Prague as of January 200932 32 Data based on statistics compiled by ARES – the Administrative Register of Economical Subjects – available at: www.info.mfcr.cz/ares (last visited December 2009).

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Figure 13.4 State subsidies to associations in 1996 (millions of US dollars equivalent) The financial resources of CSOs have three main origins. The Czech government continued the practice of subsidizing some associations, introduced under the previous political regime. These mostly consisted of associations related to educational and amateur sport activities focused on youths and their leisure time, as well as several kinds of voluntary associations, like those of fire squads, forestry hunters, individual gardeners, animal breeders, beekeepers, as well as nationwide organizations such as Pioneer and the Union of Women. In fact, the Czech national budget includes a provision for such support. From 1990 until 1998, the distribution of governmental subsidies was organized via the line ministries. Figure 13.4 demonstrates the amount of the governmental subsidies that were distributed to citizens’ associations in 1996. Shortly after the changes caused by the events of November 1989, agencies of several developed countries appeared on the scene and started to support mostly the new grassroots organizations or

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branches of existing international organizations that were set up in the Czech Republic with the aim of building a strong civil society. Many independent private foundations from the United States, UK, Canada and elsewhere assisted these agencies and also contributed large sums of money or technology. The combined fiscal and technological assistance of foreign agencies and foundations to the institutional building of CSOs in the Czech Republic, as well as in other countries of postCold War Central Europe, was enormous and has already been mentioned above. During the period from 1990 to 1997, this was the second pillar supporting civil society in all Central and Eastern European countries (CEE countries). The structure of this pillar, regarding fields of support all over the CEE region, is shown in Figure 13.5.

Figure 13.5 Structure of the assistance to CSOs in Central Europe provided by independent foreign foundations and agencies from 1990 to 1997

Source: Based on data from K.F. Quigley, For Democracy’s Sake (The Woodrow Wilson Centre, Washington, DC, November 1995).

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When most of the foreign support began to be withdrawn from CEE after 1997, the CSOs were forced to learn how to survive as economic entities. Some ceased to exist, but many started to operate by combining their main not-for-profit activities with economically productive uses of their technical and human resources – the proportion of those with their own incomes from economic activities started to grow rapidly, and may currently be seen as replacing foreign assistance, together with the support provided by domestic foundations, whose endowments were heavily engrossed by the money contracted from the Foundation Investment Fund (FIF) described earlier. In recent years, corporate philanthropy has also started to grow. Since 1998, many big international companies began to operate and produce their goods in the Czech Republic. Many of them have also brought in a kind of corporate practice allowing the companies to build their own specific target groups of socially weaker or culturally important beneficiaries or purposes to be supported either by financial donations or by the voluntary work of experts. The present structure of subsidies to CSOs from public resources, i.e. from the State budget and from budgets of all public administration offices (regional and communal, as well as from State funds) of the Czech Republic,33 demonstrates the fact that in 2007 the total amount of subsidies to CSOs reached an equivalent value of US$264 million (the present rate is approximated at 1 US$ = CZK 17), of which 70 per cent is provided by the Ministry of Education and Sports, together with the Ministry of Labour and Social Affairs. Nearly half of the total value of the subsidies has been absorbed by those CSOs with a seat in Prague. In addition to the subsidies from the State budget, CSOs gained another US$43.8 million from the 14 administrative regions and US$126.6 million from more than 6,000 communities. Another US$12 million was also added from the few State funds. Thus, the overall total of the subsidies to CSOs in 2007 reached the value of US$446.4 million.34 Strong and Weak Features of Czech Civil Society This section summarizes the strong and weak features of Czech civil society, as well the challenges it will face in its future development. The strong features of civil society in the Czech Republic include: the many devoted, experienced and, more recently, specifically educated persons, who work with and for CSOs; the comparatively well differentiated distribution and structure of CSOs that cover all regions of the Czech Republic, with only a few exceptions; the continued support of the activities of CSOs by government and the self-government of regions and communities, who consider these activities to be of great importance to the general public; the strong and influential CSOs operating in the fields of nature and environmental protection, social care and democracy promotion, combined with humanitarian assistance abroad and the media helping to spread public awareness about the important activities of some foundations and associations, mostly whenever there are events generating a desire of the people to help those in need; and the tools that have been developed for collecting small donations from individuals using mobile phones and the Internet, supported by State or commercial TV stations. The weak features of civil society in the Czech Republic could be considered to be: the concentration of subsidies towards sporting and humanitarian fields, with the evident survival of 33  See Analysis of Financing CSOs from Public Resources in 2007 (in Czech) (Prague: Governmental Council for Non-Government Not-for-Profit Organization, 2008). 34 Data taken from ibid., and converted to US$ using the exchange rate 17 CZK/USD valid for 2007.

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client preferences; some CSOs are still reluctant to demonstrate full financial transparency; many CSOs suffer from a lack of public relations capabilities and skills; some CSOs have a low level of professional performance and organizational management; voluntary work by members is not the main resource of CSOs; in spite of the existence of State and public administration subsidies, too many CSOs suffer from restricted financial resources; there is insufficient cooperation in fundraising for common goals; CSOs compete for subsidies and donations; and corporate philanthropy has still not developed to a scale that would enable less dependence of CSOs on State and regional subsidies. In addition, there are several risks to the further development of civil society in the Czech Republic. First of all, the financial crises, which erupted in the last quarter of 2007, affected the Czech economy throughout 2008, and might result in a drastic decrease in donations and subsidies from both the private and public sector, causing the termination of many activities of CSOs and their dissolution or liquidation. Second, there are conflicts of interest inherent to the CSOs within the legal environment of the Czech Republic, such as: how to generate enough resources by economic activities while preserving the required not-for-profit characteristics; how to counterbalance diminishing external funding and develop long-term financial sustainability enabling them to keep a qualified staff in the CSO; how to develop a professional approach and achieve a high quality of provided services and other products when so many of those who work for CSOs are laymen applying the ‘take it easy’ approach; and how to develop a complementary, rather than competitive, approach in promoting the interests of CSOs within fundraising campaigns and when promoting ideas in communities, on a national or regional level. However, there are also several new opportunities that might strengthen Czech civil society. These include networking on a regional, national and international level, especially the development of stronger relations with civil society within the European Union, which might bring about higher levels of transparency, a professional approach to common issues of interest and a multiplicative effect of the use of human resources. In addition, the democratic approach that has been developed, for the choice of CSO representation within bodies participating in policy-making on a national or EU level might be a way to terminate the tendencies for an ‘autocratic’ or ‘client-based’ choice of representatives. Moreover, CSOs have gained more access to the media and thus improved the visibility of their activities and successes in the public eye. Finally, they have the opportunity to enter into joint projects and participate in the mutually supportive advocacy of CSOs.

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Chapter 14

Learning for a Lifetime: NGOs, Capacity Building and Non-Profit Education in Eastern Europe Balazs Sator

Introduction Since 1997 I have worked at the Civil Society Development Foundation (CSDF), in Hungary, where I have been executive director since 2001. The CSDF was established in 1994 as an independent capacity building organization to tackle problems related to the lack of professional management expertise within the booming NGO sector. It aims to strengthen non-profit organizations and enhance their effective and sustainable development, thus enabling them to mobilize citizens and fulfil their significant societal roles in Hungary and in Central and Eastern Europe. In 2009 I was privileged to visit China and speak at the conference on the Role of NGOs in Building Harmonious Society, jointly organized by the Institute of Law of the Chinese Academy of Social Sciences and the Netherlands Institute of Human Rights of Utrecht University. I was honoured to give a short lecture at Tsinghua University and to learn from Chinese academics, NGO representatives and students about their situation, conditions and plans. I was informed about Chinese culture and its situation because for several years I had closely followed the so-called Chinese model of development and before my visit I tried to familiarize myself with what was happening in China. I have experienced Western consultants, trainers and professors who come to Central and Eastern Europe without understanding the relevant situation here and proposing, or even imposing, things on us that we found absolutely irrelevant or useless. Although I must admit that looking back over 15 to 20 years, sometimes we could have listened more. Sometimes they ignored our fundamental beliefs, cultural or historical issues, and sounded arrogant or disrespectful (that was, and still is, true in many cases). However, on occasion our own beliefs and issues actually hindered us finding a solution to our problems, while the Westerners’ ignorance of these issues helped them come up with the right solutions. But in many cases these advisors failed because some of the above-mentioned factors made our society reluctant to embrace even brilliant ideas simply because things were not presented in the right way, or perhaps because it was ‘too much, too soon’. Had the Westerners shown more respect for our culture, history and politics, and more understanding of our economic and societal stage of development, these beneficial ideas may not have been rejected. This chapter will first try to show the transition process in Eastern Europe through Hungarian eyes, while the second part will try to give an overview of the education and research fields looking at NGO development in Hungary. I found this particularly relevant to China, where the education and research fields have developed an interest in NGOs.

  www.csdf.hu (last visited March 2010).   ‘Wrongly Labeled’, The Economist, 9 January 2010.

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The Transition Experience The reform process that resulted in China’s incredible economic growth, and also brought about the emergence of more specific societal needs and challenges, began more than 30 years ago. In Eastern Europe we have a shorter history of these reforms. Hungary had been more open to economic development and private enterprises from the early 1980s, and the former Yugoslavia was also relatively Westernized; there were no restrictions on travel, meaning a large part of the population had direct or indirect connections with family members in Western Europe, many of whom lived and worked there. The rest of the region remained relatively closed, following a more dogmatic version of socialism. After 1989 most of the countries of the former Soviet Bloc became independent States operating under the democratic societal model with a market economy. However, any euphoria from the new freedom and changes was over in less than a year. After the common enemy – the Communist Party – failed, a natural process started where former allies began fighting each other, becoming more ideological, and ultimately trying to position themselves on the political scene. The weak State lacked the controlling and monitoring mechanisms to balance the influence and growing power of the groups that had immediate access to the former nationalized companies. During this period the majority of State companies were privatized and land that had been confiscated between 1948 and 1989 was returned to private ownership. This was an important time for most Hungarians, bringing positive changes to their lives (e.g. they could buy the houses or flats they lived in for a token amount thanks to subsidized government loans), but this was also the darkest period for Hungarian democracy. A shadow of corruption was cast on the new Hungarian rich. This corruption led to political scandal, and hindered reform initiatives and societal reconciliation. After a period of ‘wild capitalism’, the NGO sector began to play an important role. The public had seen first-hand the weak Hungarian government’s incompetence in dealing with the country’s unprecedented new problems. State-financed healthcare institutions and social services had been of a poor quality for decades, not serving the citizens they were assigned to serve. Now a free press was able to highlight appalling conditions in the system: abuse of disabled and/or elderly patients in care homes; and a general lack of available places even in the worst and biggest institutions. Private NGOs were now in a position to attract donations to take over where the State had failed. Western donors began to finance pilot projects in various fields to test proven models, or to create new models based on tested principles. Individuals and businesses quickly recognized that the NGO sector was able to bring the solutions and provide the services that were so urgently needed without State support while, in many cases it was doing so in a hostile legal environment. The State first reacted in a hostile manner against the unwanted competition and comparisons. But it had a significant change in attitude when its various attempts to reduce unemployment failed, pushing the issue to the centre of political campaigns. NGOs provided services that were often as successful, or even more successful than those provided by State unemployment agencies. In the early 1990s, State institutions started to cooperate more with such NGOs, which were helping reduce the increased unemployment by being more flexible and having a better understanding of business expectations (e.g. profiling applicants better than State institutions were able to, thereby reducing the work of the HR department of the employing company, etc.). Another field of early cooperation was at the municipal level. Often specific tasks were delegated to municipalities (running schools and hospitals) within the new framework of decentralization. These municipalities often lacked the necessary professional capacities, as during the socialist  Hungary has the highest proportion of owner/occupiers within the EU.

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regime, centralized economic plans ruled and there was no need, nor much freedom, to adjust plans locally. In schools, curricula had been centralized. When this suddenly changed, the municipality became responsible for running the institutions and also for adjusting the curricula to suit local needs. A number of NGOs started providing services not only in education, but also in child protection and childcare, which helped solve these problems at the local level. The Law LXV of 1990 on municipalities, created the legal framework for them to contract-out the provision of obligatory services to NGOs, which generated a boom in organizations specialized in such fields. The State realized that some NGOs could effectively raise funds in addition to those it provided, as well as deliver quality, cutting edge and often more efficient services than those offered by its own agencies. In Hungary there are 64,000 registered NGOs. In a country of 10 million inhabitants it means there is a registered NGO for every 156 citizens. It is also estimated that there are at least the same number again of unregistered institutionalized civic initiatives. These usually operate on a local level such as pensioners’ clubs, youth groups and sports clubs. If they want to run longer-term programmes, or receive State or municipal funding, they usually register as an association, or a non-grant-making foundation. If a non-registered group wants to organize an event, or a trip away, an individual member takes legal responsibility for the group if necessary. But in most cases they just coordinate their own individual actions at their own individual expense. The need to recognize these groups becomes increasingly important when they start to benefit people other than their members. In such cases, the Hungarian legal framework makes it relatively easy to register an NGO. In the end it is in the State interest as well: the level of taxes in Hungary is extremely high. If NGOs are able to collect money from individuals and companies to match their income from the State it clearly makes economic sense; not to mention the better quality of more decentralized services they will be able to deliver. The State’s subsidies and its control of the registration process ensure it keeps a tight rein on NGOs. In Hungary and other East European countries there were initiatives to legally include government or local municipality representatives on NGO boards. For various reasons not all countries have adopted this practice which has proved, for them, to be a good decision. In the NGO field there is far less corruption and mismanagement than on boards with sophisticated representation schemes where different parties, ministries, authorities and interest groups have representatives. A NGO needs a board, a structure and a business model that is flexible. If there is an earthquake, or floods, there is no time to wait until the official representative of the State makes him/herself available. The great advantage of NGOs is that they can react to any need immediately. NGOs can make mistakes, however the most critical stakeholder – the donor – judges each mistake. They give their funds because they want problems to be solved. It is very different than paying taxes to the State, which distributes money according to government priorities. Often these priorities are a result of negotiations, lobbying, or even strategies to win votes (especially in a multi-party environment, such as Hungary). But what if these priorities do not match the donors’ expectations? This is not a political question. The donor (individual or company) contributes to government priorities through taxes, but can choose to finance NGOs that have goals that match their personal priorities.

  This became especially important when municipalities tried to attract foreign investors to settle in their localities. Along with the potential to reduce or annul local taxes, the size of the educated, local workforce became a key to success.

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NGOs in Eastern Europe It is always questionable how much the experience from Eastern Europe is relevant to a country like China. The entire population of these countries is often less than the population of even one district of Beijing. Still, through the various models these countries have applied in terms of NGO– government relationships, their approaches to motivating businesses and individuals to support NGOs and the different ways NGOs communicate with the public, the region does offer a colourful range of solutions, which can be considered an interesting comparative exercise from the Chinese perspective. The region itself has approximately 190 million inhabitants. In terms of NGO development it can be divided into several sub-regions. Traditionally the strongest and most advanced sub-region is the so-called Visegrad Four countries: the Czech Republic, Hungary, Poland and Slovakia. These countries were in a better economic and social situation, and their geographical situation helped them connect quickly with the West after the political changes. They quickly adopted the laws facilitating the establishment of NGOs. This was critically important as there were high expectations from citizens for a quick and smooth transition. People wanted positive results in a short period of time. The former Czechoslovakia’s division into two separate entities was implemented in an organized, violence-free way, in 1992. The second group contains the Baltic States. This is the smallest subgroup by population, and until 1991 they were part of the Soviet Union (unlike the Visegrad Four these were not independent countries). These countries are characterized by the unanimous intention to get rid of Soviet history. This region has had to face incredible challenges of modernization and self-definition as nations and cultures, so societal and economic changes happened at an enormous speed. They were extremely successful in opening their markets and attracting foreign investments as well as creating favourable conditions for business. During the current financial crisis these countries were hit badly, but we should not forget their GDP growth figures from the past have far exceeded the European average for decades. The third large subgroup is the Balkan region, where the largest division of models and approaches are found. Bulgaria and Romania were slow in their economic reforms and experienced hard times in the 1990s, characterized by poverty, corruption and lack of political stability. The motivation to be accepted into the EU finally helped these countries to implement the needed reforms and they were able to join in 2007. Slovenia provides yet another model. As the most developed country within the former Yugoslavia, it wanted to get rid of its ‘Balkan’ label. It was successful in doing so, and after some short periods of fighting against the Yugoslav Army, the country became fully independent, was accepted into the European Union in 2004, and was among the first countries from Eastern European to introduce the euro (the currency has strict financial conditions that are hard to meet even for some Western countries). The countries affected by the Balkan wars represent another model. After the war the international presence was trying to help reconciliation and peace. Huge subsidies were available to modernize and rebuild the most badly affected countries. Together with these subsidies there was also a pressure from the international community to quickly introduce a legal and fiscal system and to bring life back to normal. However, despite their often quite modern legal frameworks, these countries had a long way to go until they saw a relative stabilization after the wars. It is only in the   The Visegrad Four is made up of Hungary, Slovakia, the Czech Republic and Poland. It was named after the Hungarian town Visegrad, where their leaders first met to agree on developing common or coordinated policies during the EU accession process.

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last three to five years that the majority of affected countries have shown steady improvements in their various fields of development. As recognition of the progress they have made, Croatia, Serbia and Macedonia have been invited into talks about joining the EU. The last big group is the western tier of former Soviet Republics. They have a much less clear position with regard to their influential neighbour, Russia. While officially both Ukraine and Moldova have declared an interest in becoming EU members, there are also strong forces in their politics, society and economy that are pushing them closer to Russia. Belorussia is more straightforward in this strategy, with the current leadership clearly preferring Russian ties. The post-1989 historical aspects are important to help understand the character of these countries’ NGO sectors. Where there was a threat to newly earned rights – like in Serbia during Prime Minister Slobodan Milosevic’s regime, or in Slovakia under Prime Minister Vladimir Meciar – NGOs mobilized themselves to protect citizens’ freedoms. Where there was no threat to their existence, some of these initiatives became political, with some groups actually setting up political parties – but the majority continued as NGOs. In countries where such threats were not present, like Hungary or Poland, NGOs relatively quickly became contracting partners for governmental or municipal bodies to provide services on their behalf. This was further strengthened after these countries’ accession to the EU, as the main motivation behind Union funding is to purchase socially beneficial services for the public according to the priorities of different EU bodies. Balkan countries affected by the war were in an interesting situation. On the one hand they had to deal with the difficult situation after the war: providing aid, dealing with migration and interethnic conflicts. On the other hand they had a somewhat easier situation in terms of establishing and running NGOs. The experiences from other, more advanced East European countries served as an incredible pool of resources, as those countries had already learned from the transition. They had already adopted and tested Western models, and developed their own that were much closer to Croatian and Serbian models than, for example, British charitable organizations. This helped the region develop faster than the central region was developing. This transition experience (e.g. the way to transition from a centralized power to a more open, decentralized, democratic country) is as yet not well developed. There are, however, some efforts being made: leading NGOs try to disseminate the learning through various international development projects; the new EU member countries are working on their ODA (Official Development Assistance) strategies to utilize their learning. An important factor in terms of this experience means it is limited in terms of where it can be used: by the time of the political changes, the Eastern European region had already reached a certain level of development; there was a centralized but somehow functioning State system, education, services, etc. So learning from it is probably best applicable in countries with similar conditions. Some of these conditions in China are already much better than they were in the former socialist countries in the East; however, there are still areas where sharing information and analysing various approaches may be mutually beneficial to Eastern Europe and China.

  New EU member countries are required to create an international assistance scheme, i.e. to become a donor country, as a condition of membership.

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Table 14.1 Eastern Europe in figures (number of citizens, percentage of the total population of the region) Country

Population

Percentage of Eastern European region

1 2

Albania Belarus

3,581,655 10,293,011

1.9 5.4

3

Bosnia and Herzegovina

4,498,976

2.4

4

Bulgaria

7,385,367

3.9

5

Croatia

4,494,749

2.4

6

Czech Republic

10,235,455

5.4

7

Estonia

1,324,333

0.7

8

Hungary

9,981,334

5.2

9

Kosovo

2,000,000

1.0

10

Latvia

2,274,735

1.2

11

Lithuania

3,585,906

1.9

12

Macedonia

2,050,554

1.1

13

Moldova

4,466,706

2.3

14

Montenegro

15

630,548

0.3

Poland

38,536,869

20.2

16

Romania

22,303,552

11.7

17

Serbia

9,396,411

4.9

18

Slovakia

5,439,448

2.8

19

Slovenia

2,010,347

1.1

20

Ukraine Total

46,710,816 191,200,772

24.4 100.0

The NGO Sector in Hungary and its Relation to Other Countries Table 14.2 demonstrates that membership-based organizations (primarily, associations) dominate the non-profit sector in Hungary. The number of foundations is also growing steadily. Some countries, such as Slovakia or the Czech Republic have fewer registered foundations as their legal system defines a foundation as a registered grant-making organization with a significant endowment. In those cases, there is a third legal form for non-membership based, operating (nongrant-making) organizations, called non-profit public benefit corporations. In Hungary most of the registered foundations are operating ones, which means they are implementing projects and not necessarily using their funds for grant-making.

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70,000 60,000 50,000 40,000 30,000 20,000 10,000 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 Foundation

Membership orgs

All NPOs Hungarian Central Statistical Office

Figure 14.1 Number of non-profit organizations, Hungary 1989–2007 Source: Hungarian Central Statistical Office.

Over the last two decades, the Hungarian NGO sector has been the front-runner of Eastern European NGO sectors. The percentage laws, the modern tax benefit schemes for philanthropic donations, the level of funding and recognition by the government, the definition and legislation on public benefit activities and the systemic processing of data on NGOs by the Central Statistical Office of Hungary have made this country a perfect learning place for NGO leaders to draw inspiration. These benefits still exist, however, there has also been a major slide backwards. While the NGO sector in Slovakia and the Czech Republic is still growing, Hungary’s advantage is disappearing. In part, this is definitely linked to its economic situation, but in addition there are significant differences among these three countries. In the Czech Republic, shortly after the privatization of Czech national companies, 1 per cent of this income was used to create a fund used to endow close to 300 Czech foundations. In Slovakia, Western donors and their re-granting NGOs in the country jointly supported a network of community foundations mobilizing international and local support for re-granting. In Hungary no such initiative has happened. While in both Slovakia and the Czech Republic there are groups of domestic, independent donors financing local initiatives, there are no such groups of donors in Hungary. In Hungary, governmental funding plays a dominant role. This is not necessarily a bad thing. What makes the situation more difficult is that this type of funding is much less flexible and leaves much less space for innovation. While large-scale national governmental programmes have to use standardized and impersonal funding procedures, local or smaller scale funders leave space for personal relationship building, for convincing and campaigning, for selling a good idea. While in the first case well-established NGOs that can meet bureaucratic requirements are in a better position, with smaller donors, local initiatives that have earned the trust of their communities and have demonstrated results, tend to be more often supported. This is not a question of either/or. It should be both. Ideally the State is subsidizing services that are provided on its behalf, while private sources take more risk in the case of innovative ideas, or require less bureaucracy so have more capacity to work on their causes.

 Under the percentage law taxpayers can donate 1 or 2 per cent of their paid taxes to a NGO of their choice.

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In Hungary, NGOs have to lobby for fewer legislative limitations and possibly more incentives for private grant-making foundations to be established. This can be achieved by allowing the founder to influence the organization (now almost impossible after the foundation is registered) or creating tax incentives, as has been done in many Western countries. 1993

23%

13%

12%

16%

15% 18%

32%

2007

2004

42%

41%

1%

3%

11%

19%

26%

28%

Government support Business activities

Statutory activities Private support

Other

Figure 14.2 Financing the non-profit sector Source: Hungarian Central Statistical Office.

In many Eastern countries there is a fear that if Western funders are allowed into the country they will try to manipulate the public and the government through the NGOs they finance. Indeed, this may happen, but so far, based on our 15 years of experience, this is not the case. Many local donors learned from their Western peers’ grant-making policies the merits of a simple but resultoriented approach, a partnership attitude towards the NGOs. I remember an example with one of the largest corporate foundations in the United States, the Pfizer Foundation. The CSDF was invited to submit a proposal to implement capacity building training for patient advocacy groups throughout the whole region. A pharmaceutical company to finance enabling NGOs to be more effective in advocating for rights of health consumers? For many that may sound strange. I have to say, I have never experienced such a generous attitude from a donor. They were flexible, helpful and imposed no conditions on us or the NGOs. What they wanted was the best service they could get for those NGOs. Private foundations like the C.S. Mott Foundation, the Rockefeller Brothers Fund, the Kellogg Foundation, and so on, are all committed to developing the NGO sector without political or economic interest. In the late 1990s these funders started to withdraw from the region (they never represented more than 8 per cent of the total income of the sector in Central Europe), and were partially replaced by EU funds. NGOs that were formerly developed by these mostly American foundations became ideal partners for the EU: their management was modern, their boards were functioning well and they were reliable organizations that had relevant project experience. This type of funding has not been replaced since: the newly-established family foundations, or corporate foundations, do not match the ‘start-up donors’ by size, level of professionalism or volume.

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The Non-Profit Education and Research Segment in the Last Decade: From Market Supply to State-Supported Market This section reviews the formal and informal educational and research activities provided by or for non-profit organizations. These activities played a key role in building the capacity of the NGO sector to achieve all the results described in the previous chapters. It can be seen as the major cornerstone in NGO sector development besides funding. They have also been key in developing employment opportunities and a highly skilled workforce in Hungary through a system of nonformal adult education. This is also what CSDF Hungary has been engaged with for 15 years, and it is now aiming to share its learning to assist other countries in the educational development of their non-profit sectors. In Hungary, like in most of the countries of the region, after the turmoil of the transition, education and research on this topic was primarily started by non-profit organizations. State research and education institutions reacted slowly to the establishment of the new segment. Nonprofit organizations offering training services often intended to import and apply cutting-edge knowledge from Western Europe or North America, while universities and research institutions still relied on the obsolete knowledge of their instructors and professionals. Today the situation is somewhat different. The formal education and research institutions employ well-trained instructors, rely on the knowledge of the local non-profit professionals and maintain good relationships with leading Western education institutions. Nevertheless, they are still much slower at developing and introducing new curricula while their focus is less practical than that of the non-profit providers. The analysis includes a range of formal and non-formal forms of education: organizations providing education and research as their main activity; civil organizations providing training for the carers of handicapped children; non-profit organizations offering re-training for the unemployed; foundation schools and the foundations supporting schools; different training institutions; university non-profit sector courses and organizations providing education on writing proposals. The chapter primarily relies on the analyses of the Central Statistics Office of Hungary (KSH) and the registered data of the non-profit organizations providing education and research. Second, it is based on the publicly available research results, including market research, marketing, service providing data and internal analyses, gathered by the CSDF over the past 15 years. In the last 10 to 15 years, the education segment has gone through several dramatic transformations. In terms of quantity, the transformation has come partly in waves, whilst from a quality point of view it has fluctuated. At first, the sector focused on gathering the primary or basic non-profit knowledge and data available, and many non-profit organizations introduced services to provide that data while interest was growing. Later, with an abundance of service providers and the fulfilment of such needs, interest decreased. Second, the non-profit professions were included in university and college curricula as well as other forms of accredited education with ever growing popularity. Fluctuations also became evident (with the exception of the more prominent universities) and several poor-quality courses were introduced. Interestingly, a similar tendency could be observed in the field of research as well. At first, besides the analyses of the State-owned Central Statistics Office and the independent Nonprofit Research Team, there was hardly any objective research at all. Now there is a huge amount   This chapter is an adaptation of an article by the author, published in Hungarian in the Civil Review, 2008.   By non-profit organizations we mean the NGOs as discussed in the previous chapters, as well as other non-profit forms, e.g. social and cultural institutions established by municipalities or churches that essentially operate as NGOs.

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of research but of a mediocre quality. Quality fluctuations follow a similar pattern where somebody does the pioneering part of the job and others soon follow. As soon as it becomes profitable10 more newcomers follow and, in the end, when interest and sources decline, the only people who remain active in the field are those who consider training to be their ‘mission’. The process itself can be perceived as organic since, practically, a for-profit principle prevails in a non-profit environment. What the Numbers Demonstrate Many non-profit organizations undertake training and provide educational services. In 1995 more than 5,700 non-profit organizations provided educational services, in 2005 that had risen to approximately 9,300, and by 2009 that number exceeded 10,000. Both these numbers and the analysis of the income and costs of the segment clearly determine that there were significant changes in the non-profit education market during the above-mentioned period. In the mid-1990s, supply was greater than demand. In many cases, for both the inner (nonprofit members) and the outer market, the services were either provided for free or for a highly supported price. On the other hand, during this period the financial independence of the education market and the stability of the sources were the highest. The proportion of different sources of income, such as State support, private donations or income from basic or economic activities, was more or less the same. In 1995, we witnessed the biggest ever gap between State support (21.8 per cent) and income from economic activities (27.2 per cent). Table 14.2 Non-profit organizations’ income source and area of operation in 1995 Area sources

State support

Private support

Leisure 7,402.7 7,769.6 1,814.5 2,404.0 Health Social 10,216.1 5,700.6 Education 4,779.7 5,712.8 Economy 5,310.9 11,737.4 Culture 7,945.9 5,756.2 Environment 266.9 606.0 Youth 717.1 1,842.1 1,509.0 387.0 Handicapped Legal 2,525.0 2,524.0 Local development 902.5 770.2 Total 43,390.3 45,209.9

Statutory Economic activities Other Total income income income income (in million HUF) 13,389.8 637.9 1,418.2 5,422.8 19,148.4 2,905.5 214.8 858.6 126.8 17,742.3 248.3 62,113.4

12,761.5 884.0 4,630.7 5,970.6 20,374.2 6,477.9 1,709.0 923.1 106.2 11,571.9 1,104.3 66,513.4

132.6 22.5 14.3 70.3 102.2 41.1 6.8 3.3 36.8 73.1 8.5 511.5

41,456.2 5,762.9 21,979.9 21,956.2 56,673.1 23,126.6 2,803.5 4,344.2 2,165.8 34,436.3 3,033.8 217,738.5

Subsequently, income ratio in the education sector changed significantly when in 2005 state support reached 46.3 per cent while the income from economic activities dropped to 8.6 per cent. We get 10  ‘Profitability’ can come not only from solvent market demand but also from lucrative state financing.

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a broader picture if we take into consideration the fact that while the amount of State sources has increased 13-fold, economic income has barely doubled (inflation influence not included). Table 14.3 Non-profit organizations’ income source and area of operation in 2005 Source area Leisure Health Social Education Economy Culture Environment Youth Handicapped Legal Local development Total

State support

Private support

Economic Statutory income activities income

31,167.1 12,339.4 30,846.1 43,162.6 10,495.5 11,675.2 30,054.3 12,240.1 12,925.3 60,735.4 31,439.4 26,757.3 72,588.5 12,687.1 124,665.6 69,446.4 14,767.2 30,443.5 13,635.4 2,425.6 6,349.4 4,887.4 6,016.2 1,367.2 10,832.4 3,323.0 857.3 18,318.4 7,882.8 55,209.2 8,132.1 3,406.5 2,029.3 3,629,600 1,170,228 303,124

27,159.8 6,461.4 9,212.8 11,281.2 53,780.0 10,027.8 9,993.3 1,541.1 444.8 14,737.3 1,054.1 145,693,6

Other Total income income (in million HUF) 2,913.9 1,223.0 572.4 948.3 2,813.8 3,783.9 725.2 248.0 211.1 1,193.1 396.4 150,291

104,426.3 73,017.7 65,004.9 131,161.6 266,535.0 128,468.8 33,128.9 14,059.9 15,668.6 97,340.8 15,018.4 9,438,309

Quality Development and Milestones in the Non-Profit Education and Research Segment Several studies11 that examined the development of the Hungarian non-profit sector, state that non-profit organizations played an important role in maintaining and strengthening the results of the transformation after the regime change. It is important to professionalize and stabilize NGOs in order to secure the positive outcome of the social transition. Education is an essential part of this preparation. In the early stages, the education segment offered training and workshops that covered universally applicable content for a large number of participants. From the mid-1990s the geographical location of training facilities improved and regional educational centres were established thus providing a training network infrastructure. By the end of 2005 the market had gone through intense specialization and stratification. Educational programmes had become clientoriented, basic services were stabilized and new ones (management counselling, coaching services) emerged in the sector. Part of the process was that more and more organizations (not only those regularly providing educational services) had accumulated significant expertise and begun disseminating it through training. This was a positive sign and showed that not only were the NGOs able to create knowledge, they could back it up with a capacity for distribution and market gain, publicity and professional prestige. Such factors contributed to their improving sustainability. The only doubt over the sector is the previously mentioned State support. Often, non-profit service providers can 11  For example, Daniel Siegel-Jenny Yancey, ‘American Thoughts about the Development of the Nonprofit Sector in Hungary’, in Éva Kuti (ed.), The Nonprofit Sector in Hungary: Studies (Nonprofit researches nr. 3) ( Budapest: Nonprofit Research Group, 1992).

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only sell educational services to the State for an amount way below the market price and in many cases they also have to disclaim their copyrights – even in cases where another donor financed the intellectual result. In this way State donors can often jeopardize the potentially profitable services of organizations with highly developed knowledge. Often, it is forgotten that many employees in the sector work in different professions (e.g. doctors, lawyers, teachers, engineers, etc.), thus they need to adapt their knowledge. As a result, the volume of ‘internal’ education is very high, although this is reflected neither in the statistics nor in the organizational reports. At the same time, this training ensures the professional development and the continuity that the actual training systems fail to offer. According to the CSDF’s nonrepresentative management studies,12 organizational leaders spend 15-18 per cent of their time preparing, training and coaching new colleagues and members of governing bodies. Results and Lack of Results An important question to be asked is what has changed as a result of the incredible growth of the education segment? In the case of non-profit organizations, specialized education ensured the capacity needed for their growth. Though more professionals with non-profit qualifications are joining the sector, the majority still takes part in internal education and organized non-profit training programmes to learn how to write proposals, create strategies, raise funds and deal with public procurement. Second, in many cases, training programmes helped the organizations involve a broader, not necessarily non-profit audience. The third most important achievement was the rise of effectiveness. Training itself is an outstanding instrument of dissemination, it increases effectiveness, provides indepth knowledge for qualified participants, stimulates active participation and does it in a more concentrated and focused manner than an official vocational training course. At an organizational level, the increase in training can lead to a structured development of expertise, although very few NGOs take advantage of this opportunity, leaving their knowledge outdated and failing to meet current expectations. Hungarian non-profit organizations are delayed in terms of knowledge management compared to their peers in Western Europe. There is no empirical data around this, we have experienced this shortcoming through the observation and evaluation of hundreds of organizations per year. In 2009, the CSDF worked with 298 Hungarian NGOs. On a personal level, at some point we have all probably felt thrilled or stimulated at high-quality training or an educational event, or after finding a solution to our problems in a detailed research paper. Nevertheless, there is still no information available about the results or effects of educational activities or to what extent the results of a research project turn out to be useful in practice. For many service providers, quality control or impact assessment is not seen as essential, which undermines the overall ethos of the education segment. Success rate analyses, launching benchmarking projects and the application of quality standards could promote the further development of the sector. Why is the Non-Profit Education and Research Segment Important for Development? The ever-changing legal, professional and non-profit market expectations always demand new knowledge. The education segment has the important task and responsibility of generating and effectively disseminating knowledge and various experimental projects in the sector. The donor often expects this function as well. For this reason, the range of services is expanding year by year, 12  CSDF Action Research 2001.

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such as: research and analyses that examine the dissemination; economical analyses; standardization and quality standard services; training aiming at enabling the application of new methods; and counseling and monitoring programmes enhancing dissemination. The function that enables the distribution of professional innovations not only improves quality levels but also assists in saving costs for the research and development programmes that are usually more expensive. From 2004 to 2009, i.e. after joining the EU, there were an unprecedented number of financial sources available for NGOs. It was the education segment which made it possible for the less prepared and lower capacity organizations to access EU financial sources with a significant transfer of knowledge on the specialized EU project cycle management and proposal writing. In addition, education in general played a socially important role in shaping public opinion through raising awareness. Different educational programmes help to solve social conflicts and ease tensions in society; they also raise awareness of prejudices and other shortcomings. Besides the more common tools of education these programmes have also effectively applied the so-called ‘popular education’ methods thus reaching layers of the population that are harder to approach.13 In the last couple of years some long-awaited work has been conducted in the research field. Assessments were made regarding corporate donation and citizen donation practices including analytical research, which analysed well-known trends and little-known methods in smaller regions and various non-profit fields of activity. The main donor to this research was the National Civil Fund (NCF) which has also supported several smaller research undertakings. Unfortunately, they vary in terms of quality. Nevertheless, in many aspects we have been able to receive detailed information of segments not professionally analysed before. From early on, the main task of the non-profit education sector has been to reach and to reintegrate, those adults and young people who were excluded from the mainstream. From a social point of view, these programmes are the most fascinating in the segment if we consider that they help the long-term unemployed and often marginalized people and groups to regain self-confidence, dignity and find an opportunity for a new career. These people are often overwhelmed by returning to the world of exams, training and vocational courses. Perhaps, the education providers of this sector hold the biggest responsibility of all: if their services lack quality, they adversely affect the chances for those who are already at a disadvantage. Non-profit education programmes played an important role in modernizing the methodology of adult education by distributing new, more effective learning techniques and competence-based, participative methodology (Gordon training, training of the psychodrama association, CSDF participatory training, Waldorf and Rogers methodology in teaching children, etc.). For many years after the regime change, slides and PowerPoint presentations were the most widespread in the business world, while outdoor team-building and experience-based learning ideas and professional techniques were imported later, in many cases from the non-profit sector. To the social reform functions of the segment, we must add that the modernization of elementary and secondary school education (which meant a more children and student-focused approach) was greatly influenced by schools run by NGOs. The education segment has been quite popular in donor circles. It is easier to predict the outcome of training and research and to plan the programmes and timelines. In this way the phases can be separately assessed and give a more detailed review of their effectiveness. In terms of mid and long-term effectiveness, measurements are rarely done and are not usually publicly available.

13  For example, fake advertisements, campaigns that prompt you to think critically about ads and consumerism.

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Non-profit organizations in this field tend to rely heavily on the volunteer workforce. KSH (Central Statistics Office) data shows that in 2005 a volunteer worked a total of 309 hours per year for educational organizations (the highest ratio of all fields, compared to 203 hours per year in the field of local patriotism and 161 hours per year for advocacy). In the case of foundation schools, many parents volunteer, thus the number of volunteer working hours is greatly influenced. Still, it is important to consider that the average annual salary of a full-time employee in the field is EUR 8,940 (this is also high compared with other non-profit segments), which results in both qualified employees and willing volunteers. A Picture of Today: More Players, Less Quality Alongside the wide variety of university courses, specializations and accredited training courses there are other, for-profit participants present in the market that offer a growing number of nonprofit education programmes. Many for-profit providers that have appeared on the market are able to employ great capacities and present financial and professional references that the non-profit participants are rarely able to do. In most cases, neither the donors (most often a State institution), nor the implementing organization publishes any information about the level of professional quality of such programmes, participation levels or the satisfaction ratio. However, due to the mass-education nature of their services, they are able to reach out to a large number of participants across the country. The two above-mentioned aspects also mean there are fluctuations in terms of quality: in regions where well-qualified trainers are available, training is effective, while in other places with a shortage of trainers even the standardized modules fail to bring good results. In general, it is true that the free educational courses offered can lead to a deterioration in quality, which, in the long term, can negatively affect enrolment and the overall view of such courses. The shift in the proportion of income referred to earlier (almost half of the income of the sector is financed by the State), indicates that State actors assign an important role to training organizations promoting the development of the sector. However, it also means that sources available for further development of the sector are practically limited to authorized State priorities. The education segment is extremely fragmented. It lacks standards promoting cooperation and association of institutions, ethical codes, and unified tools for impact and effectiveness measurement. Perhaps the major problems in the past were caused by the lack of ‘in-house’ training capacity and institutionalized knowledge. From 2005 organizations began to buy more ‘materials and services’ and turned less income into salaries than in previous years (while in 1995 and in 2000 the tendency was the opposite). This means that educational providers started to use more contracted trainers and consultants rather than having in-house (exclusively contracted employed) trainers. There might be several reasons for this. One could be the significant increase of payroll taxes, another the widespread EU practice that in budgets and reports the use of experts is more easily accepted than the payment of salaries. One other reason for buying more training services, however, is the lack of a provider’s own expertise and training capacity. From an economic perspective, it is worth buying services if the organization does not provide training services continuously but only occasionally or seasonally. In this case, the organization shifts more to a training-manager or training-organizer status. It writes tenders for programmes, outsources professional content development and charges an administrative, managing or organizing fee. This model is very similar to that followed by for-profit businesses. By minimizing payments for contractors and pursuing the maximum cost effectiveness, they are able to make a net profit; but this also often means lowering investment in, and standards of, training and scientific work.

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If this is the case, providers often lack quality, training effectiveness and flexible problem-solving techniques, more so if there is no institutionalized expertise to improve the organization; it may become professionally empty. Statistical data, and my personal organizational experience, show that the latter is a general tendency in the non-profit field. Internal workshops and development centres close one after the other and organizations tend to buy programmes that are less customer specific and lack knowledge of specialist fields. These initiatives are destined to fail. Unlike the cost effective measures mentioned above, there is a growing need for assessments, audits and specific problem-solving in a given organization, or exclusive development training aimed at a team or an organization leader. Such training can be extremely effective as a wellprepared premium service adapted for its audience, where the counsellor, organizational developer, coach, trainer, auditor or instructor is highly experienced. Sector employees also show an urgent need to be able to prove, with a certificate or a diploma, their qualifications received through formal education after years of experience in the field. Of all the segments in the sector, the regional distribution of organizations in the education segment is the most evenly balanced even though the centralization of Budapest is evident. We should note that foundations and associations supporting schools, which were established according to an already existing school network, are also included in this segment, therefore the geographical distribution is inherently more even. Interestingly, in 2005 the education segment received the highest number of the 1 per cent tax offerings (6,016 organizations) as well as the largest amount in total (20,613 billion HUT). ‘To Do’ List It is essential to rationalize the allocation of State support in order to achieve effective utilization. The segment does not need more resources, but needs those it does have to be proportionately distributed, easy to plan (for the civil sector) and more focused on quality. First, we need to increase the competence of the State in grant distribution. The experiment-like approach of donor programmes, financed by the EU but facilitated by Hungary, should no longer be permitted. Determining guidelines, process control, exact requirements and decision-making responsibilities could raise effectiveness on both sides. Since these requirements were not available when the programmes were made public, but were created and introduced when they were already underway (when the support was already allocated), they not only violated the law but put the organizations in a very difficult position. On many occasions they wanted the organizations to sign a contract with a completely different content than stated in the tender, or they wanted to alter the contract after the programme had been conducted. Both the country and the distributors of grants were definitely unready to conduct a tendered project of this kind. It would also be useful to consider financing less of the education activities from State money, thus bringing to an end the serious distortion of the market. In several fields solvent demand was established for some services, including both paid courses in higher education and non-formal training. From an economic point of view, it is a waste of State money to subsidize these. There are issues that both the education segment and the State must solve together. If decisions are transparent, requirements are clear and there are no privileged training providers, the market is able to decide which provider offers quality services and which does not. In case of effectiveness, the players are mutually interdependent. Complex effectiveness measurements can only be done if the donor or financer can see the mistakes committed during the realization of a project. In this case the donor or financer should examine his own responsibility for the problem and refrain from sanctioning the accountable organization (which took responsibility for its mistakes unlike many

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others), just as the organization and the donor should alter their procedures so as not to repeat the same mistake again. The biggest challenge for organizations in the education segment is constant renewal. If modern knowledge is created and accepted by the market, the organization can become too successful and complacent. In the education segment, it is difficult to deal with innovations, modelling and search for unknown reasons and solutions without any guidelines and standards established during the modelling period. It is not easy to define what is right and wrong. Benchmarking can be a great help because it allows us to see the practices, the experiences and the results of others. If such benchmarking practice threatens an organization’s market position, it can receive valuable feedback by comparisons with practices abroad. Conclusion Over the last two decades, the face of the NGO sector has changed significantly in both Hungary and Eastern Europe. The former activist character of the sector has become more professional, better managed and more strategic. There is still a long way to go, as the sector itself has only just started the transition towards qualitative development and increased sustainability. There is a growing interest in the transfer of expertise between countries, although there still remains a lot of ignorance about many of the conditions needed to make a transfer successful. For example, the Hungarian tax designation scheme might be appealing for NGOs in Bosnia and Herzegovina, but an important condition is missing: certain levels of taxpaying morale means the volume of taxes collected is low. NGOs often fail to see the full picture, which is partly their own fault, but there is another aspect to it as well: the gulf between research and practice. Practitioners are often ignorant about the new research available, while the research and policy sector is often ignorant about the everyday problems NGOs face. There was a significant improvement when new practitioners were invited to participate in research and teach at universities, because the expertise they had accrued from actually running an NGO became valuable to the State and the business sector. Now we often see projects where the research is strongly linked to the implementation or testing within the framework of a project. The other great learning and attitude change that has occured within the sector was when both NGOs, their employees and volunteers grasped the concept that their work had a market value. At first the general notion inside and outside the sector was that NGOs should work for free, with only the help of volunteers. The belief was that any staff at all should be low paid. This belief is changing, albeit very slowly in the minds of the general public. It would be incorrect to say that both companies and the State see NGOs as equal partners, but in certain areas, where NGOs’ concrete experience is needed, they are already accepted as quality providers and cooperating allies. However, the largest change has occurred at the State level. Initially there was a rather hostile attitude towards NGOs. It was rooted in a fear of them as well as the expectation that they would not be able to contribute constructively to the development of society and would only criticize the government. As described in the previous sections, NGOs in most cases actually took on duties of non-functioning or weak States and channelled funds that were unavailable to the State into public services. The other main complaint from States was that NGOs gave ineffective advice about cooperation. NGOs have to understand that commitment to the cause cannot compensate for professional competence. The government became aware, however, that certain NGOs focusing on specialist areas had more advanced and more applicable expertise than States. The governments in the region, especially Hungary, started to develop legal frameworks to reduce burdens on NGOs

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and to recognize their achievements. The registration of NGOs is relatively easy now, so individuals or legal persons aiming to contribute to the development of the country can do so with little effort. States have also learned that time would show how many of these initiatives will survive and become reliable – therefore, there is now no need to filter them in advance. With all of these changes, and despite all the difficulties and uncertainties, the NGO sector in Hungary and Eastern Europe has largely contributed to the political, economic and social development of the region.

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Chapter 15

The International Human Rights Movement: Not Perfect, but a Lot Better than Many Governments Think Hans Thoolen

Introduction This chapter emanates from a presentation given in Beijing in the context of a conference on the development of ‘social organizations’ in China since 1978, when it started its transition. As countries develop economically and socially, the number of non-governmental organizations (NGOs) tends to increase and they demand a greater role in decision-making, including but not exclusively, in the area of human rights. China has an elaborate, control-driven system for the legal existence of all NGOs, with a dual registration requirement that is hampering their sound development. The numbers alone seem to confirm this: in 2001 there were an estimated 26,000 civic organizations at national and regional level, which is very small for a country of the size of China. The fact that there are thousands of unregistered, and therefore technically ‘illegal’ NGOs, is further evidence that the system is not workable. In general terms, the Chinese government seems to regard the development of ‘civil society’ with ambivalence: it wants the economic and social progress benefits of a stronger civil society, but the prospect of the disturbance of ‘social harmony’ that may accompany it makes the authorities reluctant to move towards a ‘free’ society. A complete revision and simplification of the system of registration would mean less work for the State, as well as bringing China more into line with the international standards on freedom of association. However, it is clear that  In the most part, this chapter is based on a presentation ‘NGOs in Transition: the Teeming World of the International Human Rights Movement’, at the International Symposium on the Development of Social Organizations in China Since 1978, Beijing, 2–3 November 2008, organized by the Institute of Law of the Chinese Academy of Social Sciences and the Netherlands Institute of Human Rights, Law School of Utrecht University.  Huang Haoming, Li Erping and Bai Xingji, ‘The State and NGOs in China’, in Erik André Andersen and Lis Dhundale (eds), Revisiting the Role of Civil Society in the Promotion of Human Rights (Copenhagen: Danish Institute for Human Rights, 2004), p. 122.  While there is no benchmark for what an ideal number would be, a ratio of civil society organizations (or non-governmental organizations) in the order of 1:1,000 citizens would be quite normal in most countries.   Liu Xiaobo, ‘The Rise of Civil Society in China’, China Rights Forum 3 (2003). He is very critical and regards ‘unauthorized’ (underground) groups as the only true civil society, while registered NGOs are controlled by the Party and security services. The article is available at: www.hrichina.org/public/PDFs/ CRF.3.2003/Liu_Xiaobo.pdf (last visited November 2010).   Yuwen Li (ed.), Freedom of Association in China and Europe: Comparative Perspectives in Law and Practice (Leiden: Martinus Nijhoff, 2005).

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the ‘fear’ of what these organizations would do – by themselves and in cooperation with the international human rights movement – plays a role in the debate of possibly liberalizing the general regime for civil society organizations. To the extent that the perceived perfidy of the international human rights movement plays a role in the reluctance of governments to liberalize their civil society, I hope that the reflections below will make a difference. One cannot hide the inherently critical tone of this movement, but a better understanding of its true nature could dispel some of the more irrational fears. Definition of NGOs and Other Preliminaries Civil society – a term prevalent in political science – is a vague term that can be useful to describe the totality of organizations, groups and even individuals, which have the fact that they are not ‘government’ in common. A non-scientific, but attractive definition of civil society is: ‘the glue that binds people together and constitutes some kind of organised sphere or culture’. Civil society organizations (CSOs) are therefore the most active ingredients in this glue. However, the application of this terminology to the international scene is more difficult. The terms ‘voluntary organizations’ or ‘third sector’ (meaning between government and the business sector) are also used to describe the kind of organizations that populate the human rights scene. They have the advantage of evading the rather negative-sounding ‘non’. The term ‘nonstate actor’ normally denotes a larger gamut, including corporate business, research institutions, liberation movements and criminal groups. ‘Non-profit organization’ is another term that correctly describes the majority of human rights organizations, but this overly stresses a single aspect. Nowadays, the preferred acronym is NPO (not-for-profit organization), as it makes clear that what matters is that the income is reinvested in the goals of the organization, rather than paid out to the owners. ‘Network’ is another term that is regularly used, but the context has to make clear whether the term is meant to describe one organization (with a network structure) or is used to describe movements and actors that have common features in the eyes of the observers or researchers. The term ‘transnational advocacy networks’ denotes networks that are formed around ‘principled ideas or values’, as in the area of human rights and the environment.10   See, for example, Neil Young, ‘Does This Cat Catch Mice? Human Rights and Civil Society in China’, in Andersen and Dhundale, Revisiting the Role of Civil Society, pp. 53–107. In the same publication, one finds a more ‘governmental’ approach by Huang Haoming, Li Erping and Bai Xingji, who describe the NGO scene in China as young and unique. They argue human rights organizations in particular will not be able to develop as they do in the West and will remain subordinated to the government. Social, economic and cultural rights – especially in their collective aspect – are the areas where NGOs could function with a degree of independence, but in the more individualistic arena of civil and political rights the margins will remain small. Ibid., pp. 109–41.   Defined by Michael Walzer as the ‘space of uncoerced human association and also the set of relational networks … that fill this space’, in The Concept of Civil Society (Providence and Oxford: Berghahn Books, 1995), p. 7.   See an interesting overview of different concepts in Andersen and Dhundale, Revisiting the Role of Civil Society, pp. 15–21.   See, inter alia, Daphne Josselin and William Wallace, Non-State Actors in World Politics (New York: Palgrave Macmillan, 2001), and Karsten Ronit and Volker Schneider, Private Organizations in Global Politics (New York: Routledge, 2000). 10  Margaret E. Keck and Kathryn Sikkink, Activists Beyond Borders (Ithaca: Cornell University Press, 1998), is probably the most seminal study to appear in this area and I have borrowed liberally from it.

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Ultimately, the preferable term is ‘non-governmental organizations’ (NGOs), which is the term most commonly used in international circles. This choice does not solve the issue of definition as it would literally cover every organized group that is not governmental, leaving unanswered whether ‘government’ means the State or the government of the day, and whether the independence should cover all aspects: legal, financial, etc. To give some meaning to the element ‘non-governmental’ in the definition, it is useful to consider that organizations that do not relate in any way to the exercise of governmental power (e.g. chess club, fishing club, football club,11 etc.) are, of course, non-governmental but do not really need this qualification. In areas such as human rights, development policy and environmental matters, NGOs are working in the same areas as the government, so it is useful and even indispensable to mark them as ‘non-governmental’. In other words, the term non-governmental can only be understood in context, and in the area of human rights its use makes perfect sense. Size obviously does not matter, but it is good to point out from the start that some NGOs – even in the humanitarian and human rights area – are quite big in terms of budget and staff. The ICRC12 has a budget (field and HQ combined) of around €600 million. The Red Cross claims 181 national sections with a combined number of members and volunteers in the order of 90 million. In 2007, Amnesty International (AI) had 2.2 million members and contributors. In order to exist, a NGO must have formulated its aims and means (including decision-making mechanisms) in a published13 and binding document (binding on members and management). While there is no formal time requirement, very short-lived alliances of an ad hoc nature would not qualify as an ‘organization’, but some ‘campaigns’ have in fact become NGOs.14 Some NGOs have ‘consultative status’ with an inter-governmental organization (IGO). Article 71 of the UN Charter empowers the ECOSOC ‘to make suitable arrangements for consultation with non-governmental organizations’. Other IGOs and regional organizations have followed suit and established their own consultative status.15 Many of the well-known international human rights NGOs have some formal link to the UN-family or regional bodies. Suffice to say that this status is not a quality benchmark16 and even less a precondition for existence. From the point of view of international law, international NGOs have no formal existence as such. They are all ‘national’ organizations or, from the point of view of both international and national law, ‘foreign’ bodies. While nobody knows the exact number of human rights NGOs in the world, even a conservative estimate must still run into several thousand. The online version of the Yearbook of International Organizations lists about 60,000 organizations and those that are concerned with human rights has grown dramatically since the Second World War.17 In addition, 11 It is interesting to note that in the world of sports, many national and international bodies exercise great executive and quasi-judicial powers although they are ‘just’ NGOs (e.g. FIFA, Olympic Movement). 12  The ICRC is not really a NGO, but rather a very special international organization. 13 In exceptionally repressive circumstances a NGO may want to keep its founding document or – more likely – its membership a secret. 14  For example, the Human Rights Campaign (the HRC) is a large civil rights organization, founded as far back as 1980, that is working to achieve gay, lesbian, bisexual and transgender equality in the United States. 15  For more details see, inter alia, Sergey Ripinsky and Peter Van den Bossche, NGO Involvement in International Organizations (London: British Institute of International and Comparative Law, 2007). 16  Some organizations have managed to get into the system without really being a NGO, which has enriched UN parlance with new acronyms such as: QUANGO (Quasi Non-Governmental Organization) and even GONGO (Governmental Non-Governmental Organization). 17 An interesting illustration is the increase of ‘international social change organizations’ as measured by the Union of International Associations between 1953 and 1993. In this relatively short span of 40 years

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almost all countries in the world have domestic human rights NGOs and in many of the larger countries the number runs into the hundreds. Two important categories of non-governmental actors in the area of human rights remain outside the scope of this chapter: corporations and political parties.18 Commercial organizations are indeed essentially non-governmental but the NGO definition used in this chapter requires some kind of idealistic cause. Regarding political parties, one has to make the proviso that human rights NGOs are often eminently political and that they have to be. In particular, in a closed political system where opposition parties are not allowed to function, unsurprisingly, NGOs function as a kind of opposition. The Element ‘Human Rights’ in Defining NGOs A short and easy answer to the question of what constitutes the main area of work of the international human rights movement, is the universal human rights as laid down in ‘The International Bill of Human Rights’ (i.e. the Universal Declaration and the two Covenants). Although the answer is in itself correct, it does not address the issue that many government officials, including those in China, have in mind when they describe human rights as a ‘Western’ or ‘foreign’ product, alien to their culture. In responding to this charge, a crucial distinction needs to be made between the universality of human rights and its universalization (or universal application). The first is the moral and legal principle that a core of human rights exists and applies to every person in the world irrespective of his or her culture, country, etc. As famously formulated in Article 1 of the Universal Declaration: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’ This basic universality is nowadays accepted by the majority of mankind and in the words of Normand and Zaidi, ‘the speed by which human rights has penetrated every corner of the globe is astounding. Compared to human rights, no other system of universal values spread so fast’.19 The second is the process by which these universal standards become a reality. Here one cannot make the same optimistic observation about the speed by which human rights are spreading, but this is not only due to the ever-present gap between rhetoric and reality. The international system itself allows for differing interpretations by giving a margin of appreciation at the regional and national level and by permitting States to make reservations to international agreements. The big question then is to what extent cultural and religious practices20 can be accommodated by the international system without losing its coherence. Most of the debate on cultural exceptions to, or the limited character of, ‘universality’ is in fact

the number of organizations working on human rights increased five-fold. See Keck and Sikkink, Activists Beyond Borders, pp. 10–11. 18  Note that the non-profit federations of corporations and political parties are considered NGOs and are sometimes quite active in the human rights arena, e.g. the Chambers of Commerce, the Socialist and Liberal International, etc. 19 Roger Normand, Human Rights at the UN: The Political History of Universal Justice (Bloomington: Indiana University Press, 2008), p. 6. 20  Certainly, culture and, perhaps to a lesser extent, religion are also dynamic concepts that change over time as illustrated by opposition to the right to vote for women, racial segregation and foot binding (to mention just a few major themes), which were defended on cultural grounds less than a century ago.

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a debate within the universalization process of human rights.21 Particularly relevant here is the concept of ‘Asian values’, which a number of Asian governments – including China – promoted strongly, especially in the 1990s. Although there is no regional agreement on what these values are (nor is that likely to ever occur in a region as vast and diverse as Asia), it would seem that they centre around a morality that stresses ‘respect for authority’, the primacy of the family, consensus over conflict and an emphasis on communal welfare and discipline.22 There may be a principled problem with a hard-line religious position which claims that there can be no reconciliation between precepts of a religion and those of international human rights,23 but that should not be relevant to China, an admittedly secular nation. Therefore, when the Chinese government castigates human rights groups and the international human rights movement for using ‘foreign’ or ‘Western’ concepts, it is probably not making a frontal assault on the universality of human rights, but rather on the ‘interference’ aspect. In this respect China is not unique. Other countries – especially the more powerful ones – have similar knee-jerk reactions when their human rights record is criticized, and even more so when it is done from abroad (and no domestic accountability is possible). Russia, India and the United States all have had their government state that such criticism is politically motivated, slanderous and constitutes unwanted interference, although an important difference remains that they do allow internal opposition and respect for the freedom of speech, to varying degrees (with Russia showing regressive tendencies). In short, although the debate on universality is far from over, it should not be a major stumbling block for China to progressively implement international standards, especially as the number of human rights treaties it has ratified is slowly increasing. If it looks to the United States – which it often does in the human rights debate – it will see another country that has its own problems accepting international oversight.24 Most of the opprobrium meted out by governments tends to be reserved for interference in the area of civil and political rights, while often defensively stating that what matters most in a country in transition is the realization of social, economic and cultural rights. It will be interesting to see what the reaction will be when international human rights NGOs express criticism relating to social, economic and cultural rights. Such criticism is likely to happen more frequently and not only because the global economic crisis is making this area more tense. International NGOs have been expanding their mandate or areas of interest and expertise beyond the traditional civil and political rights. Economic globalization has also resulted in the number of non-governmental actors increasing dramatically along with international companies and businesses. This in turn increases the importance of social and economic rights. 21  Notable is that the claim of cultural exception is usually made by social groups within a country rather than the State itself. When these groups are dominant (and/or the State relatively weak), governments are especially tempted to echo these views. 22  110 NGOs in the Asia-Pacific region adopted the Bangkok NGO Declaration on Human Rights on 27 March 1993, which shows no major concern with universality: ‘Universal human rights standards are rooted in many cultures … While advocating cultural pluralism, those cultural practices which derogate from universally accepted human rights, including women’s rights, must not be tolerated.’ Quoted from the General Assembly, ‘Report of the Secretariat: Bangkok NGO Declaration on Human Rights’, 19 April 1993, UN Doc. No.: A/Conf.157/PC/83. 23 A mild example is to be found in Article 24 of the Declaration of Human Rights in Islam, which stipulates that ‘all rights announced in this Declaration are subject to the precepts of Sharia’. Adopted and Issued at the Nineteenth Islamic Conference of Foreign Ministers in Cairo, 5 August 1990. English translation available at the General Assembly, ‘Cairo Declaration on Human Rights’, 9 June 1993, UN Doc No.: A/ CONF.157/PC/62/Add.18. 24 However, the reasons are quite different, including a domestic tradition that is more focused on civil rights than human rights and a heavily politicized ratification procedure.

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As stated above, the word ‘non-governmental’ becomes operational when organizations are active in a domain where governments are also active. This is surely the case with human rights, an area where governments claim to, and do in fact have, pre-eminent responsibility and authority. However, accepting a broad definition of human rights (including social, economic and cultural rights) should not mean that every organization that does something noble or something that ultimately benefits the rights of people should now be considered a human rights NGO. A NGO that runs a school is likely to contribute to the realization of the right to education, but to consider it a human rights NGO solely on this basis would stretch the definition beyond meaning, at least in the eyes of this author. Even the recent fashion of applying a ‘rights-based’ approach to development does not bring all these organizations into the definition of a human rights organization used in this chapter. On the other hand, the explicitness of the language can be misleading. There are human rights organizations that, for a variety of political and historical reasons, do not use the word ‘human rights’ but clearly make it their main mandated activity, e.g. Memorial and the Helsinki Committee. Another confusing factor is that some of the most influential actors are part of a larger NGO. Think of the churches,25 bar associations or trade unions, which often have separate departments for human rights. The main test is therefore whether an NGO wants to be seen as a human rights organization and is active in human rights in a verifiable manner, devoting an important part of its resources to that field. Some of the social change movements in the nineteenth century would nowadays certainly be called human rights campaigns, e.g. slavery and the slave trade, the suffrage movement and the eradication of foot-binding in China. Domestic and International NGOs and the Question of ‘Members’ The terms ‘national’ or ‘local’ are very much context-dependent. For example, when national NGOs (e.g. the federated All-India Organization of Women) refer to a ‘local’ NGO it is clear that they mean a NGO at the provincial, state or municipal level. However, other actors, such as foreign development agencies, refer to ‘local NGOs’ as those in developing countries, whether at the national or lower level (as opposed to ‘national’ NGOs, by which they usually mean those in the home country of the development agency). This chapter will use the terms interchangeably when referring to non-international NGOs, or use the term ‘domestic’, which more comprehensively refers to all non-international NGOs. The adjective ‘international’ also requires some explanation. Many, if not most, of the human rights NGOs that refer to themselves as international do so on the basis of their mandate rather than their governing structure. In the absence of agreed benchmarks, it is hard to argue with this qualification, but in fact the term ‘transnational’ would often describe the situation more appropriately. Sometimes it is very clear. For example, a Dutch NGO that deals with the human rights of indigenous peoples in the Americas could, and most likely would, describe itself as international even though its structure is more transnational. Some international NGOs are truly ‘federated’ in the sense that their members are national or local NGOs, such as the International Federation of Human Rights Leagues (FIDH), or Amnesty International, whose national sections

25  The Catholic Church is certainly one of the oldest and largest ‘transnational’ actors. Religions that are more nationally organized find each other in the joint World Council of Churches, World Lutheran Federation, World Muslim League and many others. A special case is the Organization of Islamic States.

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even carry the same name,26 followed by the name of the country. However, in many cases it remains difficult to properly qualify an organization as ‘international’, when it has a governing structure and funding base that are essentially national (or limited to very few countries) but whose mandate is genuinely global, especially when that mandate includes the human rights record of its own country or region. This issue is closely related to the question of membership and funding. At the national level, the issue of who is a member is usually quite straightforward, as the national legislation normally requires some form of registration and stipulates the rights and duties of members, who tend to be individuals. Even then, the question remains whether a ‘supporter’, donor or volunteer is, or should be, counted as a ‘member’. At the regional and international level however, the question of membership becomes murkier. Sometimes there is the possibility for an individual to be a ‘member’ directly, especially when membership is in fact limited to being a contributor, but in most cases the members of an international or regional NGO are other organizations. It could be a straightforward case, where national sections operating under the same name and mandate constitute the general assembly, elect the governing council and contribute a fixed proportion of the international budget. But this is in fact the exception in the human rights world; the majority of NGOs utilize a network or umbrella type organizational structure, in which ‘national sections’ are affiliated to the international NGO, but maintain a separate identity. They may have some say in the policy and governing structure and they may sometimes have to pay a fee for belonging, but that is it. There is no controlling influence by the ‘membership’ and the international NGO is financed independently, more often than not from a limited national or regional basis. Even NGOs with a high international governing structure (with regular assemblies and elections) do not really depend on their national sections in terms of funding.27 Basic Typology of Human Rights NGOs There is an almost infinite number of ways to categorize the multitude of human rights organizations. The only purpose of this short section is to give an overview that allows them to be distinguished on the basis of their mandate. First, there are general human rights organizations, i.e. their mandate covers all human rights or at least a broad range. This category could be split into two main types: 1. those open to all, meaning that everybody can become a member or supporter, e.g. AI and Human Rights Watch; and 2. those with a limited membership, meaning that only certain people can become a member or adhere, e.g. churches, students and professional groups, such as the International Commission of Jurists (ICJ). Second, there are the specialized human rights organizations that focus on one or a few specific rights, or are concerned with a defined group (e.g. children, women). Again this category could be split in two main types: 26  For the FIDH that is not always the case but often the national section will use a by-line explaining its adherence. This is also the case for the International Commission of Jurists. 27  To my knowledge only Amnesty International – among the larger NGOs – has an international secretariat that is financed mostly from its members in national sections.

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1. those in which everybody can become a member, e.g. Save the Children, the World Organization Against Torture; and 2. those in which only certain people such as trade-unionists, students or professionals can become members, e.g. Lawyers for Lawyers, the Human Rights Committee of the InterParliamentary Union. Coalitions, campaigns, networks, etc. usually make no distinction between which section they fall into, and all types of NGOs collaborate to achieve short or long-term goals. A specialized category of NGOs are so-called ‘solidarity’ organizations. It could be said that these solidarity organizations base their appeals on common ideological commitments, while rights organizations, in principle, are committed to defending the rights of individuals even when they do not share the ideas of the victim.28 This distinction – which cannot be made too rigid and does not mean that solidarity NGOs are less trustworthy29 – is useful in understanding the sometimes vocal disputes which occur within broad coalitions that focus on a country situation. A related question is to what extent NGOs that fight mainly for their ‘own’ rights (e.g. organizations of victims, women’s groups, trade unions), should be on a level playing field with the more general human rights organizations. An illustration of this is the dilemma that arises when family members of the ‘disappeared’ demand justice for the victims. In this respect, the family members are definitely a human rights organization and that demands a dominant voice in the extremely delicate debate on balancing the need for ‘reconciliation’ against ‘amnesty’. Sometimes these groups are the only ones with the motivation to put issues on the international agenda and keep them alive (think of indigenous peoples, minorities, the disabled and the women’s movement in earlier years). On the other hand, there is a clear understanding that human rights organizations should not be purely ‘self-interested’. In my own organization, the Martin Ennals Award for Human Rights Defenders, we addressed this question by defining a human rights defender as the one ‘who risks or suffers victimisation, harassment or disadvantage for exercising the rights expressed in the International Bill of Rights, and who, in conformity with these instruments, promotes and protects the human rights and fundamental freedoms of others, individually or in groups’.30 Humanitarian NGOs This category comprises a large number of NGOs, ranging from those dealing with humanitarian law in the strict sense (law applicable in times of international or internal conflict), to those dealing with ‘development assistance’ in immediate post-conflict situations, crises or otherwise very difficult circumstances, such as countries in transition from (civil) war to peace. There is no doubt that these NGOs are active in a broad area of human rights, either by intent or by effect, and most could be considered human rights NGOs. However, they themselves sometimes prefer not to be classified as such and describe their work as development assistance or simply ‘humanitarian’. The term ‘humanitarian’, which originally had a broad meaning covering all beliefs and actions in which the human being stood central, has in the last few decades acquired a special meaning in the context of providing assistance in the context of conflict. The Red Cross stresses its ‘humanitarian’ principles and a number of NGOs are doing the same, with the purpose of positioning themselves 28  Keck and Sikkink, Activists Beyond Borders, p. 15. 29  Far more important is the question of accuracy of information. 30  Emphasis added. Quoted from: www.martinennalsaward.org/en/press/2005-11-25_1.html (last visited May 2009).

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in the conflict area: ‘The most important principles of humanitarian action are humanity, which posits the conviction that all people have equal dignity by virtue of their membership in humanity, impartiality, which directs that assistance is provided based solely on need, without discrimination among recipients, neutrality, which stipulates that humanitarian organizations must refrain from taking part in hostilities or taking actions that advantage one side of the conflict over another, and independence, which is necessary to ensure that humanitarian action only serves the interests of war victims, and not political, religious, or other agendas.’31 Sometimes these humanitarian organizations are accused of only dealing with the symptoms, especially when they refuse to speak out publicly on the human rights violations they encounter, which many are indeed reluctant to do in order to ensure their continued access to the victims. In this respect it is interesting to note the difference between the Red Cross and Médecins Sans Frontières (MSF). The Red Cross will only bring any violations of humanitarian law it sees only during prison visits to the attention of the government in a confidential report. In contrast, MSF was created precisely for the purpose of combining aid with public testimony (aider et témoigner). RELIEFWEB32 has a web-based directory of humanitarian organizations that starts with ABColombia Group and ends with ZOA Refugee Aid. In May 2009, the total number of NGO sources stood at 1,579, including quite a few well-known human rights NGOs, illustrating the overlap between the two categories. Many donor countries have humanitarian aid budgets that are far larger than their regular development aid budgets.33 In addition, philanthropic and corporate donations are usually more generous in respect to humanitarian assistance. The frequency and scale of humanitarian disasters is one factor that can explain this phenomenon, but it also reflects the increased willingness of the public – and thus politicians – to give to what they see as urgent and immediate causes. This is largely thanks to the media limelight, which shines more brightly on massive and sudden disasters. In particular, in emergency situations, such as immediately after severe armed conflict, there is usually a lack of local capacity and the humanitarian NGOs are, by design, able to be on the ground quickly and deal with issues that normally would be considered the domain of regular human rights NGOs. Although there are many similarities, it is important to point out that these emergency situations are not necessarily the same as countries in ‘transition’, where there is political turnaround without major violence (such as Eastern Europe or South Africa). Emergency situations are characterized by the immediacy of life-saving operations and the security concerns surrounding them, making comparisons rather difficult with what human rights NGOs do in ‘peaceful’ transitions. It is not 31  Nicholas de Torrent: ‘Humanitarian Action Under Attack: Reflections on the Iraq War’, Harvard Human Rights Journal 17 (2004), p. 4. 32 RELIEFWEB is an online gateway to information on humanitarian emergencies and disasters, designed to assist the international community in the delivery of emergency assistance. RELIEFWEB was launched in 1996 and is administered by the UN Office for the Coordination of Humanitarian Affairs (OCHA). The UN General Assembly endorsed the creation of RELIEFWEB in Resolution 51/194, 10 February 1997. It maintains three offices in different time zones (New York, Geneva and Kobe) to update the website around the clock. The database contains nearly 300,000 maps and documents dating back to 1981. See www.reliefweb. int (last visited May 2009). 33  Assistance to human rights activities in the narrower sense of the word is normally financed by either the Ministry of Foreign Affairs, the Ministry of Development Cooperation, a combination of both or a special fund within one of these ministries, either specifically called ‘human rights’ or (increasingly) put together with desirable goals such as ‘good governance’, ‘democratic governance’, ‘empowerment’, etc. Some countries have separate and fairly autonomous institutes – financed from the State budget – to disburse development assistance.

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easy to say exactly where one phase ends and the next one begins. However, it is crucial that there is policy cooperation between all actors in order to ensure that what is done in the emergency phase is laying the groundwork for normal development work, or at least that it does nothing to create new obstacles (e.g. by destroying what little local capacity there was). In quite a few humanitarian operations in the last two decades, the central issues have been closely related to human rights, such as the organization of elections, investigation of past crimes, impunity, building up the judiciary and measures to (re-)establish the rule of law. One could think in particular of the UN-led operations in the Balkans, East Timor, Iraq, Afghanistan and Congo. There are a few lessons for NGOs from these operations which are particularly relevant to human rights. First, NGOs should better coordinate their programmes to avoid duplication of services, although ‘eating the cherries out of the cake’ is often not done by error but on purpose to attract visibility and funds. Second, the international NGOs should avoid soaking up all the trained people from the small pool of human resources, leaving the government struggling to pay the same salary. Finally, they should establish clear benchmarks and timelines for success in capacity building (e.g. between three to five years) and then hand over their resources to local NGOs or the government. Human Rights NGOs: Their Core Functions There are many ways to slice the ‘cake’ of human rights NGOs work, but it makes practical sense to distinguish the following six functions: 1. 2. 3. 4. 5. 6.

normative work; investigation; denunciation; lobbying; assistance; and other (e.g. institutional; education).

Normative Work This function of NGOs is often less known and therefore less appreciated. At the regional and international level, NGOs have certainly been at the forefront of many legal instruments and mechanisms. That their work lacks recognition is mostly due to the fact that law-making is formally and in the first place a responsibility of governments. At the international level (where political parties are absent), it is often the NGOs that have taken the initiative, but governments remain the ones that formally submit and adopt resolutions and treaties. The stages in which NGOs tend to be most involved are: identifying the need for a norm or mechanism; drafting a text (e.g. for a UN Resolution, a treaty or a human rights mechanism, such as a UN Rapporteur34); lobbying for progress on a strong text; campaigning for ratification of and bringing a treaty into effect;35 and following the implementation and interpretation of the treaty 34  The Office of the UN High Commissioner for Human Rights maintains an elaborate website where all the different human rights treaties, procedures and bodies are listed. See: www.ohchr.org/EN/HRBodies/ Pages/HumanRightsBodies.aspx (last visited June 2009). 35  This includes monitoring and trying to reduce the reservations that States may make to a treaty when ratifying.

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or mechanism. Some examples of areas where NGOs have played a major role include: torture; disappearances; and human rights defenders. Regarding torture, a group of NGOs first pressed the UN to adopt a formal declaration banning torture in 1975 and then worked for a decade with States to elaborate and adopt an international treaty in 1984. A year later they convinced the UN Commission on Human Rights to establish a Special Rapporteur on Torture. Finally, in 2002, the UN adopted an Optional Protocol to the Torture Convention, which adds a preventive system of regular visits to detention places. In the area of disappearances, NGOs first managed to get a mechanism at the level of the UN Commission on Human Rights (the Working Group on Enforced and Involuntary Disappearances) in 1980. Then, in 1992, the General Assembly adopted a declaration, followed in 2006 by the International Convention for the Protection of All Persons from Enforced Disappearance, which is still awaiting enough ratifications to enter into force. Finally, NGOs lobbied for 13 years to get a declaration on human rights defenders, which was adopted in 1998 (with the somewhat contorted title ‘Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms’). It then took another two years to get a mechanism in the Commission on Human Rights in the form of a Special Rapporteur on the situation of human rights defenders. Two other areas in which large coalitions of NGOs have played a crucial role in recent years are the banning of land mines36 and the establishment of the International Criminal Court (ICC).37 Investigation The most common methods of investigation for NGOs are: research; analysing the media; interviews with victims and family; fact-finding missions; and trial observations. Although there are differences among the various NGOs in their standards for verifying and cross-checking information, the serious ones are aware that their (long-term) influence depends on their credibility and that this in turn depends to a large extent on the accuracy of their findings. As a consequence – and this may come as a shock to the more governmentally-minded reader – the accuracy of the information produced by the major human rights NGOs is, on average, superior to that provided by States.38 However, this is only in reference to the accuracy (reported facts, spelling, numbers, etc.), not what the organization does with it. The actions chosen may well be considered unwanted, undeserved and even biased. The packaging and timing of the release may all be criticized as ‘political’, but this is not the same as labelling the information as lies. The reports by AI and the ICJ in the mid-1970s on the atrocities committed by Idi Amin in Uganda were qualified as lies by Amin, who was still elected to the Presidency of the Organization of African Unity (OAU). Several years later, the new Head of State, Museveni, berated the same OAU for lack of action and stated that the reports were all true. There are many more such striking examples.39 States can simply 36  The International Campaign to Ban Landmines (ICBL) started in 1991 and by 1997 it had over 1,000 affiliated NGOs and a treaty had been adopted. See also: www.icbl.org (last visited May 2009). 37  The Coalition for the ICC was founded in 1995 and now includes 2,500 organizations around the world. See also: www.iccnow.org (last visited May 2009). 38 As the director of two different documentation centres that specialized in human rights information, from 1982 to1993, I had many encounters with government officials who found this hard to believe, especially when the published NGO information contradicted their own government’s statements; the information from other States was rarely given similar credence. 39  One exceptional case from my own work with the ICJ in Geneva was an ambassador from a country in the Middle East who had provided us, confidentially, with a list of political prisoners in his own country and

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afford to ‘lie’, while NGOs have an existential need to be reliable. An unintended consequence is that States supplying patently wrong information (or blatant denials) to international procedures dealing with human rights violations are in fact undermining the very foundation of the interstate system of sovereign States by forcing the inter-governmental organizations to take the NGO information as the most reliable. Denunciation This ‘advocacy’ or ‘watchdog’ function is what human rights NGOs are best known for, even when it is only a relatively small part of their work. When NGOs possess information that they are convinced concerns a violation of human rights, in reality they have quite an array of options: they could run to the press (at least in some countries) in the hope that going public will shame the government concerned into better action or force their own government to take a position and exert diplomatic pressure; they can submit it to one of the international or regional mechanisms, especially when it reveals a gross and systematic pattern of violations; they could help the victim to get judicial redress in the country concerned or, after the exhaustion of domestic remedies, through the individual complaint procedures at the regional and international level; they could bring it (confidentially) to the attention of the authorities concerned in the hope of finding a settlement; and finally, they could do nothing, either out of fear of a backlash against the victims or to keep it for some other occasion. The ‘mobilization of shame’ is of course the key notion here but this cannot be considered in a vacuum, as leverage on the target country or institution varies greatly. Smaller countries that are dependent on foreign aid, military aid or trade concessions are easier to influence than more autarchic countries, but there are interesting examples of both larger countries that are ‘vulnerable’ to external pressure (e.g. Argentina in the early 1980s, the Soviet Union and the 1975 Helsinki Accords) or weak countries being impervious to such pressure (Haiti in 199240 or Zimbabwe recently). It would seem that one factor in order for moral leverage to work, is how strong the desire of the country concerned is to belong to the community of respected nations. Especially when countries want to improve their standing in the world community (often those countries in transition), they tend to be more concerned about their human rights reputation. Another factor is the need to ‘frame’ issues in a way that can be understood by normal people and the media. Sometimes the topic is so basic and widely understood, for example torture, that the main question is how to illustrate it in a way that engages people, thus the use of personal testimonies or shocking film images. Sometimes the underlying issue is more complex and not suitable for direct presentation. Think of the question of ‘female circumcision’, which needed to be renamed female genital mutilation before it was raised to the level of a human rights concern, or the baby food issue, in which both the industry (claiming to provide a healthy product to mothers) and the NGO lobby (denouncing the health dangers of baby food formula that is a breast-feeding substitute) made claims of a medical nature. Here the public needed to be approached in a way so that it could see the wood from the trees. Pamphlets describing Nestlé as ‘baby killers’ perhaps went overboard, but certainly helped to get attention.41

then, after we had made some of this public in the UN, he denounced the information as libellous lies. 40  See generally Elizabeth D. Gibbons, Sanctions in Haiti: Human Rights and Democracy Under Assault (Washington, DC: Greenwood Publishing Group, 1999). 41  This and other examples in this section come from the study mentioned in Keck and Sikkink, Activists Beyond Borders, pp. 20–5; the book adds that the NGO in question was sued for libel by Nestlé, which provided a further platform for public debate.

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Lobbying This is closely related to activities of a normative or denouncing character, but deserves special mention as it is something that international NGOs practice more than normal, especially at the inter-governmental level, where there is less room for on-the-ground activism (for example, sitins, demonstrations, concerts and other mass mobilizations, which all fit well into a diplomatic setting). By definition, it is difficult to assess the impact of diplomatic lobbying – or even to know how much it is really practiced – but surely the power of persuasion increases with the reputation of the NGO and the seriousness of the threat of more public action, which would back up the soft lobbying. The meetings of the Human Rights Council in Geneva serve many purposes other than just for States to meet and consider human rights. Over a thousand people attend these meetings at one stage or another, and they exchange information, lobby and even discuss lobbying strategies among NGOs. Assistance Only a minority of international human rights NGOs engage in assistance on a meaningful scale, and most of those are among the humanitarian NGOs described above. A few human rights NGOs have assistance as their main goal, such as the organizations that provide medical assistance to torture victims.42 However, for most NGOs, providing material assistance is limited to occasionally funding legal defence, assisting the families of imprisoned human rights defenders, or paying for the travel, language courses, etc. of activists. Of course, donor organizations of a non-governmental character, which direct a share of their development assistance specifically at human rights and democratic governance (such as Oxfam and Bread for the World, to mention only two examples), will often be seen as human rights organizations in their own right. Other Finally there is a category that includes awareness raising, fundraising,43 advice, training, education (both in and out of school) and administration. All human rights NGOs – especially those dependent on funds from the public at large – spend considerable time on fundraising and, in the process, engage in promotion, education and awareness (even when these are, to some extent, side effects of self-promotion). However, only a few engage in large-scale general awareness raising or promotion of human rights. This is illustrated by the marked absence of human rights NGOs on television and radio, in comparison to the written press (and subsequently the Internet). Only a few of the larger NGOs44 regularly make use of film images or are involved in film festivals. On the other hand, 42  Eric Sottas in his paper ‘NGOs and Human Rights’, delivered at the 6th General Assembly of OMCT in 2001, describes a sensitive split among these NGOs: some think that their gambit should be only therapy, while others want to deal with all the rights of the torture victim (e.g. asylum, reparation, impunity, etc). 43  For the role of international NGOs in human rights funding see, inter alia, Simia Ahmadi and Hans Thoolen, ‘Human Rights Funding: Time to Move from Projects to Strategies’, in Fons Coomans (ed.), Rendering Justice to the Vulnerable: liber amicorum in Honour of Theo van Boven (The Hague and Boston: Kluwer, 2000), pp. 259–75. 44 AI, Human Rights Watch, Human Rights First and more recently FIDH and OMCT. A number of smaller NGOs have been created in recent years that focus on how to make better use of film images for human rights, e.g. Witness (www.witness.org), Movies that Matter (www.moviesthatmatter.com) and True Heroes (www.trueheroesfilms.org) (all last visited May 2009).

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the development of the Internet has boosted tremendously the capacity of human rights NGOs to receive and provide up-to-date information, to make themselves known, recruit supporters, seek funding and organize campaigns. Several NGOs have specialized in capacity building in this area and in providing overviews of actions, such as the concrete examples of HURIDOCS, the Communications Initiative, and the Association for Progressive Communications (APC).45 Sovereignty and International NGOs The international arena recognizes States, as represented by their governments, as the main actors. Whether these governments are the result of truly democratic systems is not really the issue. The theory and practice of State ‘recognition’ are linked to ‘effective control’, not to democratic legitimacy. However, it cannot be denied that perhaps a majority of people in the world are ‘represented’ in the United Nations by governments whose democratic credentials are weak to say the least.46 Moreover, certain groups, such as national minorities, may not feel represented by any government, however democratically elected. Without subscribing to the view that there exists an effective ‘right to democratic governance’,47 it is easy to see that the democratic deficit in world governance creates space for other entities to claim some democratic legitimacy or, at least, to dint the force of the charge by governments that international NGOs themselves are not ‘elected representatives’. Globalization is another factor that leads to the diffusion of State power. NGOs and civil society tend to occupy the new social space created by such a diffusion. Even if a country is relatively closed to the outside world, it is likely to have some form of civil society. The individuals and NGOs, when confronted with an unresponsive government, will find ways to engage like-minded souls abroad who have better access to their own citizens and governments, and in turn will put pressure on the unresponsive government. This ‘boomerang effect’ is nowadays even more likely to occur since international telecommunication has become so pervasive and cheap. In other words, when one discusses the role of international human rights NGOs, the question of sovereignty cannot be left out all together. Clearly, sovereignty is and remains one of the central organizing principles of the international system as we know it. At the same time, there can be no doubt that the very idea and doctrine of internationally protected human rights is a powerful limitation. There is a clear tension between human rights law and general international law. The 45 HURIDOCS stands for Human Rights Information and Documentation System, which has, for example, launched a specialized search engine, HURISEARCH. See also: www.huridocs.org. The Communications Initiative covers the wide area of alternative development, which includes human rights. See also: www.comminit.com. The Association for Progressive Communications (APC) describes itself as a global network of civil society organizations whose mission is to empower and support organizations, social movements and individuals in and through the use of information and communication technologies to build strategic communities and initiatives for the purpose of making meaningful contributions to equitable human development, social justice, participatory political processes and environmental sustainability. See: www.apc. org/en/home (all last visited May 2009). 46 In addition, quite a few countries with elaborate democratic systems and traditions suffer from a lack of active participation by the electorate or ‘dumbing down’ of the electoral process. 47 As formulated in the Vienna Declaration and Programme of Action, 25 June 1993, UN Doc. No. A/CONF.157/23, para. 8, which was devised at the World Conference on Human Rights, 14–25 June 1993: ‘Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. Democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives.’

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concept of the sovereignty of States and the principle of non-intervention in internal affairs is laid down in Art. 2(7) of the UN Charter, but the qualifying word ‘essentially’ should be noted.48 Moreover, the Security Council may use the existence of a threat to international peace and security to take action, which overrides sovereignty. From the beginning of the twentieth century, international human rights NGOs played a major role in this process of norm shifting, from the Dumbarton Oaks Conference up to the recent debates on the ‘right to inference’ (droit d’ingerence49). After decades of slow but steady development, the Vienna Declaration and Programme of Action in 1993 confirmed that human rights are a ‘legitimate international concern’. Of course, this short chapter cannot settle the complex debate surrounding the issue of sovereignty and intervention, but it demonstrates that it is far from static and that the international human rights movement is an active ingredient in its development. Human Rights NGOs and Countries in Transition Although ‘transitions’ can go in all directions, international parlance seems to reserve the term mostly for cases of transition moving from a more authoritarian regime to a more open or democratic one. Any comparison between China’s transition and that of other regions,50 should look primarily at situations where the State was all-powerful and the trend was towards less State intervention (as in Eastern Europe), rather than the opposite situation where the transition was from a free market economy to a more interventionist State (such as – perhaps understandably – South Africa,51 and more recently a number of Latin American countries). Generally speaking, most research over the last century has concluded that democracy presupposes and benefits from a strong civil society. NGOs play a crucial role in articulating citizens’ demands, especially when they do so by encouraging diversity, by debating new and controversial themes, and alerting society to dangers that would otherwise have remained hidden much longer. Examples from outside the narrow human rights area are the environmental movement (global warming, pollution, clean energy) and the efforts to integrate minorities and migrants into society. This dual role of civil society, as both a precondition and a supplement to democratic progress, makes it hard to draw firm conclusions but this should not stop us from looking at some of the main features of transition as far as it concerns the international human rights movement. 48 Article 2(7) reads: ‘Nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.’ 49  The use of French here is related to the concept that was brought to prominence by the French Minister of Foreign Affairs, Bernard Kouchner. In 2001 the International Commission on Intervention and Sovereignty of States (led by Canada) released a report and in 2005 the General Assembly of the UN adopted a Resolution on this topic (2005 World Summit Outcome, 24 October 2005, UN Doc. No.: A/RES/60/1, paras. 138-139). This resolution limits the scope to genocide, war crimes and crimes against humanity and added that States have to protect their population. The exact scope of the issue came to the fore again in 2008, when a natural disaster struck Myanmar. 50  See Chapters 13 and 14 in this volume. 51  One of the most remarkable transitions in recent history occurred in South Africa, but the circumstances (especially the apartheid regime) were so special that one should be careful not to draw too many conclusions. One relevant aspect was that the apartheid regime – unintentionally I am sure – did leave de facto space to NGOs and blacks who practiced a considerable degree of organized self-help through churches, voluntary organizations, etc.

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The first thing international NGOs have to deal with in transition situations is their own ‘presence’ in the country. Sometimes there will already have been a national member organization but with the demise of the totalitarian regime, the situation has changed dramatically. The existing NGOs may be too tainted by association with the previous regime52 or may have become political parties. New NGOs spring up, sometimes explosively and without much of a base in the local population (in donor parlance, called ‘briefcase NGOs’). In addition, the State moves from being the ‘enemy’ to something more complex, which a local NGO has to learn to work with and still keep some distance from. This is also true for the international NGOs, either in direct relations with the State concerned or via a national affiliate. Repression is, in some ways, the binding and mobilizing element in a weak civil society. Afterwards, the challenge becomes to find common ground that is based more solidly on human rights philosophy and has a forward-looking element (not only ‘nunca mas’ (never again), as the report of the Argentine government was called, which looked into the mass violations in that country in the late 1970s and early 1980s). International NGOs – especially those with links to a variety of domestic NGOs – may be helpful in building consensus. What is also subsequently required from NGOs is constructive participation in debating, designing and implementing a host of new regulations, processes and mechanisms, including those relating to democratic governance and the ratification of international human rights standards. International NGOs – again directly or through national affiliates – can bring expertise, funding and pressure, but have to take care that they do not overwhelm the local NGOs. Monitoring the transition process (which is often subject to ups and downs) is another function that international NGOs are well placed to undertake, if they have good information from reliable partners on the ground. The creation of democratic governance institutions also requires a human rights ‘culture’. Many people in transition countries will not fully understand the human rights discourse. However, international NGOs may have a limited role in that respect, as their credibility is often tainted by the propaganda of the former regime, at least in the eyes of many officials and senior civil servants.53 On the other hand, domestic NGOs are often small and weak in the early phases of transition and international NGOs can help with quick access to relevant information, sharing experiences, staff training, visibility and access to donors. However, again, the risk is that this privileges certain NGOs relative to their national counterparts and the ‘foreign’ resources may hamper the feeling of ownership. Quite often the transition is taking place in a (sub-)regional context in which the situation in neighbouring countries is crucial to the country concerned, or so similar that lessons can be learned. So, it is not surprising that several regional networks have sprung up, such as: the Balkan Human Rights Network,54 the Euro-Mediterranean Human Rights Network (EMHRN)55 and the

52 As an example: the government-controlled domestic associations of lawyers in former communist countries were the key members in the Brussels-based International Democratic Lawyers Association (IADL) and with the change in regimes in Eastern Europe in the 1990s it lost most of its support and influence. The latest ‘Report of Activities’ by the Chairman Jitendra Sharma, is entitled ‘Since the Havana Congress’, Paris, 8 June 2005, and can be found at: www.iadllaw.org/files/Opening%20Speech%20President%20Jitendra%20 Sharma.pdf (last visited June 2009). 53 Hence the importance of individual human rights defenders, who have been operating in their own country, or the academic cooperation offered by institutes such as the Netherlands Institute for Human Rights and the Raoul Wallenberg Institute in Sweden. 54 It had 40 organizations in 2002, but the current status of the network is unclear. 55 It claims to have 80 human rights organizations in 30 countries in the Euro-Mediterranean region. See: www.euromedrights.net (last visited March 2009).

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Asian Forum for Human Rights and Development (Forum Asia).56 These structures have proven helpful in dealing with regional issues and may have strengthened the growth of national NGOs, but they may also contribute to excessive growth of the ‘human rights industry’ – especially where they come on top of existing international coordination and networking. As stated above, truly international NGOs are rare, in the sense that the structure of international NGOs is usually either a loose alliance for achieving a number of goals or a single entity with international goals supported by or linked to (more or less independent) national affiliates who share these goals in their own territory. Finding one’s way in this maze of networks, alliances and acronyms requires time and experience that is often missing in the transition phase. Rather than forcing the national NGOs to align themselves quickly with one international organization, domestic NGOs should be given time to establish their own base and possible funding.57 In situations of transition there is an even larger dependency on funding from outside than in ‘normal’ development situations. Whether this funding comes directly from foreign governments or through international or regional NGO channels may be of political relevance, but it still contributes to the phenomenon of donor-dependency and lack of local roots. In particular, obtaining project funding is only possible with specialized professional experience in administrative and financial procedures, exactly the kind of skills that are rare in transitions. Also, when the human rights activists have learnt these skills, the question is: are they still the human rights NGO with an ear to the ground or have they given in to the ‘projectisation of human rights’ as one critic called it,58 while abandoning the ‘real’ human rights movement. Conclusions In the last 50 years, the international human rights movement has been able to pressure States into making changes in their human rights practices and, in the process, has helped to establish a normative framework that does put de jure and de facto limits on the sovereignty of States. The universality of fundamental human rights is now almost a truism, but its universalization and global application remains subject to the vagaries of diplomacy, as well as real differences in culture and economic development. There are an enormous variety of actors in the movement, including governments, inter-governmental organizations, foundations, companies and individuals, but the key players are the human rights organizations. The sociologists who use the term ‘advocacy networks’ to describe the voluntary and horizontal collaboration in promoting principled ideas that are not purely selfinterested, have concluded that NGOs play a central role in all such advocacy networks59 and this is particularly true of the human rights movement. This movement is a constantly changing network, in which international (but in reality, often more transnational) and domestic NGOs work together on the basis of shared universal values and rapid exchanges of information, blurring the boundaries between the international and domestic arenas. The globalization of information (driven by faster and cheaper technology) will only strengthen this process. 56 It claims 40 member organizations in 15 countries in Asia. See: www.forum-asia.org (last visited March 2009). 57 An interesting example of home-grown structures is to be found in Indonesia where many so-called ‘PUSHAMs’ were created and organized into a national network. A PUSHAM is a university-based human rights unit that undertakes socially relevant activities in its own region. 58  Steven Samson, ‘Too Much Civil Society? Donor-driven Human Rights NGOs in the Balkans’, in Andersen and Dhundale, Revisiting the Role of Civil Society, p. 217. 59  Keck and Sikkink, Activists Beyond Borders, p. 9.

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Knee-jerk negative reactions by governments to criticism from international human rights NGOs is often a defensive political stance and neither means that the universality of human rights is denied, nor that the factual information provided by the NGOs is necessarily inaccurate. In times of rapid change – such as in countries in transition – the international human rights community could provide both the firmness in principled values and the informality or adaptability in methods that are needed. There is an important role for the international human rights movement in countries in transition, in particular in supporting the establishment or reconstruction of the human rights infrastructure, with an emphasis on helping a local human rights culture to come into existence and grow stronger. The main danger for domestic human rights organizations is to become too ‘executive’, too ‘issue oriented’ and to neglect the building of their own popular base without which progress could be undone, as a lack of mobilization power leads to a lack of influence.

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Index absorption capacity 192 accountability 208–10, 212 INGOs 33, 37 NGOs 14, 193, 194, 209–10 NPOs 227–28, 233, 234, 235, 236–38, 239 voluntary organizations 14–15, 214, 216, 218, 219–20, 221 ACFTU (All-China Federation of Trade Unions) 74, 144–45, 149, 150, 159, 160, 161n44 , 162 Action on Smoking and Health see ASH ACWF (All-China Women’s Federation) 8–9, 95–96, 97–98, 100, 102–3, 110, 114 advocacy networks 288, 303 advocacy NGOs 16, 58, 66–67, 82, 195, 202, 298 women’s, China 8, 10, 96, 103, 104, 106–7 AFFC (Association for Friendship with Foreign Countries) 37–38 All-China Environment Federation 130–31, 133 All-China Federation of Trade Unions see ACFTU All-China Women’s Federation see ACWF AmCham-Shanghai (American Chamber of Commerce in Shanghai) 6, 40–42, 47, 50, 51 AmCham Washington 40n42 Amity Foundation 75 Anti-Domestic Violence Network 10, 92, 102–3, 104, 109, 111, 114, 125, 132–33 ASH (Action on Smoking and Health) 175–76 Association for Friendship with Foreign Countries see AFFC Asylum Vouchers Campaign, UK 176 Atkins, Liz 12–13 BAI (Beijing Aizhixing Institute on Health and Education) 62–63, 84 Bai Fangli 83n19 Balkans 182, 185, 272–73, 296, 302 Baltic States 182, 187, 247, 272 Ban Smoking Campaign, UK 175–76 BBEC (Beijing Brooks Education Center) 63 BDEORC (Beijing Dajun Economic Observation and Research Center) 65 Beijing Aizhixing Institute on Health and Education see BAI Beijing Juvenile Legal Aid and Research Centre 124, 127, 130, 133

Beijing Sanchun Dadi Institute for Social Studies see BSDISS Beijing Yingte Center for Economic and Social Development Research see BYCESDR Bill on Not-for-Profit Organizations, Czech Republic 256 BNECEI (Beijing New Era Citizens’ Education Institute) 65 Bohemia, Kingdom of 241, 242–43, 244 Bovens, Mark 208, 209, 210 British Charity Commission see CC Brookings Institute 54, 55n3 , 57, 59, 66 BSDISS (Beijing Sanchun Dadi Institute for Social Studies) 65 Bullain, Nilda 1, 17–18 BYCESDR (Beijing Yingte Center for Economic and Social Development Research) 64 campaigning 13, 171, 172–75, 177, 204, 223, 224 Asylum Vouchers 176 Ban Smoking 175–76 Cathay Institute for Public Affairs see CIPA CBF (Centraal Bureau Fondsenwerving) 15, 227, 230, 231, 232, 233, 236–38 CC (British Charity Commission) 167n1, 168, 219, 220–21, 224, 232, 233, 234 CDI (China Development Institute) 59 CEE (Central and Eastern Europe) 1, 182, 183–84, 265–66 civil society 181, 182–83, 184–86, 187–90, 194–98, 200–201 NGOs 1, 16–19, 183, 184, 185–86, 187, 188–89, 190–98, 200–202 percentage mechanism 198–200 Center for the Study of Contemporary China (the Center) 156 Central Bureau on Fundraising see CBF (Centraal Bureau Fondsenwerving) chambers of commerce 5, 6, 23–24, 25–26, 39–40, 46–50, 51–52 AmCham-Shanghai 40–42, 47, 50, 51 German 42–43 Japan 40, 45–46, 47, 49–50 Korcham-China 40, 43–45, 47 ‘Charitable Donation Day’ 78–79

314

NGOs in China and Europe

charitable donations 8, 80–81, 83–84, 85–88, 92 charitable organizations 7–8, 71–72, 73–74, 77–81, 82–88, 92–93, 94 charities 7, 71, 72–82, 228, 234–35 UK 167, 168, 169, 171, 177, 178, 220–21, 232, 233 Charity Parade 76 Charter 77 Group 183, 249, 250 Chengdu Model 160, 161 children 73n3, 74–75, 78, 85, 161 China CSOs 73–74, 77–78, 93, 94 education 32, 85, 86, 88–89, 112, 126 INGOs 23–24, 27–31, 30, 31, 32–39, 50–52 NGOs 1, 2–5, 7–8, 82, 88–92, 94 NPOs 7–8, 82–83 think tanks 7, 53, 56–57, 58–66, 67–70, 85 see also Chinese government China Association of Women Entrepreneurs 9, 100, 107–8, 115 China Charity Federation (the Federation) 77, 79, 87–88 China Children and Teenagers’ Fund (the Fund) 74, 75 China Development Institute see CDI China Foundation for Disabled Persons 74 China Institute for Reform and Development see CIRD China Juvenile Legal Aid Lawyers’ Coordination Network 125 China Soong Qing Ling Foundation 74 China–US Trade Committee 42 China Women’s Development Foundation 85, 99, 111–12 Chinese government 2–5, 19–20, 66, 67–68, 69–70, 113, 137, 287–88, 291 charitable organizations 92–93 charities 72–73, 74–75, 76–77, 94 foreign chambers of commerce 23–24, 47, 48–50, 51–52 INGOs 23, 33–34, 52 PILOs 139–40 CIPA (Cathay Institute for Public Affairs) 61–62 CIRD (China Institute for Reform and Development) 59–60 citizen’s organizations 213–14, 215–16, 223–25 see also voluntary organizations civic associations 260–62, 271 civic organizations 3, 135, 287 civic space 183–84, 188 civil society 213–15, 227, 288

CEE 181, 182–83, 184–86, 187–90, 194–98, 200–201 Czech Republic 19, 249–50, 255–60, 266–67 Europe 223–25 Civil Society Development Foundation, Hungary see CSDF civil society organizations see CSOs Colour Revolutions 4, 69–70, 137 Communist Party of China see CPC Communist Youth League 79, 81, 94, 124n11 Compact, The 12, 15, 167, 168, 170–71, 224 comprehensive-type women’s NGOs 104 Conference on Capacity Building among Chinese Women’s NGOs 105–6 ‘controlled and restrictive movement’ period 11, 142, 147–48 corporate social responsibility see CSR CPC (Communist Party of China) 2, 7, 53, 72–73, 79–80, 113, 144–45, 149, 162 Croatia 17, 190, 195–96, 198, 273 National Foundation 196–97 CSDF (Civil Society Development Foundation, Hungary) 18, 191–92, 269, 276, 277, 280 CSOs (civil society organizations) 1, 17, 234, 288 China 73–74, 77–78, 93, 94 Czech Republic 18–19, 253, 258–59, 260–66, 267 CSR (corporate social responsibility) 13, 42, 203, 205–7, 212 Cultural Revolution 97, 120, 145 Czech Republic 17, 182, 194, 241–44, 247, 251–55, 275 civil society 19, 249–50, 255–60, 266–67 CSOs 18–19, 253, 258–59, 260–66, 267 Czechoslovakia 244, 245, 246, 247 Dalian-Xinyang Model 160, 161, 162 Dekker, Paul 1, 13–14 denunciation 16, 296, 298 disadvantaged women 9–10, 108–10, 115–16 discretionary accountability 14, 15, 212, 219, 220 ‘Document Service Centre for Migrant Workers’ see ‘Workers’ Document Service Office’ domestic violence 10, 92, 102–3, 104, 109, 110, 111, 114, 125, 132–33 dual administration system 2–3, 36, 92, 93, 139–40, 287 Eastern Europe 188, 193, 250–51, 270–71, 272–73, 274, 276, 284–85 ECHR (European Convention on Human Rights) 15, 214, 223, 224

Index ECNL (European Center for Not-for-Profit Law) 181, 188, 190, 233–34 education China 32, 85, 86, 88–89, 112, 126 Czech Republic 252, 254, 260 Europe 244 Hungary 18, 277–79, 280–84 endowments 19, 194–95, 222, 257–58 enforceable accountability 14–15, 212, 219–20 environmental protection organizations 77–78, 81–82, 113, 130–31 EU (European Union) 186, 187, 192, 211, 211n22, 247, 253n18, 272, 273, 276, 281 NPOs 232–34, 239 Eurobarometer 210–11 Europe 1, 223–25, 244–48 NGOs 20, 193, 203–4, 205, 209, 212 NPOs 232–34, 239 voluntary organizations 222, 223 European Center for Not-for-Profit Law see ECNL European China Aid Group 75 European Convention on Human Rights see ECHR European Union see EU ‘fair movement’ period 11, 142, 147, 148–49, 151, 155–56 Feng Xingyuan 61–62 foreign chambers of commerce 6, 23–24, 25–26, 39–40, 46–50, 51–52 AmCham Shanghai 40–42, 47, 50, 51 German 42–43 Japanese 45–46 Korcham–China 43–45 foreign foundations 36–37, 52, 257, 265–66 foreign investment 6, 38–39, 148, 271n4 Foreign Investment Bureau 38–39 Foundation Investment Fund, Czech Republic 194–95, 257 freedom of association 2, 5, 14, 15, 90, 185, 214, 287 Friends of Nature 77, 90n31 Fries, Richard 14–15, 212 Fund for the Support of the Poor see SZETA funding 17–18, 20, 193–94, 198–200, 275, 276, 293, 303 INGOs 33, 36 PILOs 136–38 think tanks 54, 68 voluntary organizations 169, 221–22 fundraising 13, 15–16, 222 China 36, 75–76, 80, 86–87, 94 Netherlands 15, 229–32, 233, 236–38 NPOs 227, 228, 232–33, 234–36, 238–39

315

GAP (Global Accountability Project) 209 gender awareness 110–11 gender-consciousness 9, 95, 96, 100–102, 104, 105, 107, 108, 110–11 gender equality 9, 96, 98, 100, 102, 104, 110–11, 113 Geng Huamin 97 German Chamber of Commerce in China 6, 42–43 Germany 40, 246, 247, 250–51, 253n21 Global Accountability Project see GAP ‘Go West Volunteer Programme’ (the Programme) 81 Gong Meng Consulting Company 117n1 Gong Meng Legal Research Centre 10n11, 63–64, 117, 127–28, 134 governance 14, 217–18 Han Junkui 5–6 Handy, Charles 204 harmonious society 5n9 , 51, 79, 82, 107, 111, 214 Havel, Václav 185, 249, 250, 251, 254, 255 HCESDR (Hua Xia Center for Economic and Social Development Research) 64 HIV/AIDS 62–63, 112 HILES (Hongfan Institute for Legal and Economic Studies) 62 homosexual organizations 63, 84–85 Hope Project 75, 77, 93n34 Hua Xia Center for Economic and Social Development Research see HCESDR human rights 290–92, 303 human rights NGOs 16, 289–90, 291, 292–94, 296–300, 301–3 international 16, 288, 289–90, 291, 292–93, 299, 300–301, 302, 303–4 humanitarian NGOs 289, 294–96, 299 Hungary 186, 189n7, 190–92, 194, 201n26, 234, 250, 270–71 CSDF 18, 191–92, 269, 276, 277, 280 education 18, 277–79, 280–84 National Civil Fund 196, 197–98, 281 NGOs 184, 190–92, 270–71, 274–76, 284–85 NPOs 275, 276, 277–84 percentage mechanism 18, 196, 197, 198, 199, 275, 284 Hurun Philanthropy List (the List) 83, 85–86, 87 ICFO (International Committee on Fundraising Organizations) 15, 227n1, 228, 233, 234–36, 239 ICNL (International Center for Not-for-Profit Law) 181, 256

316

NGOs in China and Europe

ICO (Institute of Contemporary Observation) 148, 157–58 in-system trade unions 11–12, 141–42, 147, 148, 149, 150–52, 159–62, 163, 164 Indian Ocean Tsunami 80–81, 260 INGOs (international non-governmental organizations) 5–6, 23–26, 50–52 China 23–24, 27–31, 30, 31, 32–39, 50–52 foreign chambers of commerce 6, 23–24, 25–26, 39–50, 51–52 public interest 5–6, 23, 24, 27–39, 50–51 Institute of Contemporary Observation see ICO International Center for Not-for-Profit Law see ICNL International Committee on Fundraising Organizations see ICFO international human rights NGOs 16, 288, 289–90, 291, 292–93, 299, 300–301, 302, 303–4 international non-governmental organizations see INGOs Internet-PILOs 10, 125–26 investigation 297–98 Japanese Commercial and Industrial Club in Shanghai (the Club) 6, 40, 45–46, 47, 49–50 Jia Xijin 4, 6–7 Jinan High School 93n35 Junak, Czech Republic 251–52, 259, 260 Kemps, Adri 15–16 Klaus, Václav 254, 255, 258, 259 Korcham-Beijing 43, 44 Korcham-China (Korean Chamber of Commerce in China) 6, 40, 43–45, 47 Korcham Qingdao 44–45 Korcham-Shanghai 43, 44, 45 Kunshan Model 160–61, 162 labour organizations 11–12, 141, 142–45, 146–52, 163–64 ‘controlled and restrictive movement’ period 11, 142, 147–48 ‘fair movement’ period 11, 142, 147, 148–49, 151 in-system trade unions 11–12, 141–42, 147, 152, 159–63, 164 ‘safeguarded and organized’ period 11, 142, 147, 150–52 self-help organizations 11, 12, 141n1, 146, 148–49, 151, 152–55, 164 socializing organizations 11, 12, 141n1, 146, 147, 148–49, 151, 155–59, 163–64

‘Land of Love: Water Cellars for Mothers’ project 111–12 law making, participation 10, 122, 133 Law on Foundations and Funds, Czech Republic 256–57 Legal Aid Foundations 124n12 legal aid system 122–24, 126–28, 130, 135, 137–38, 139 legal personality 216–17 Legal Service Centre of Northwest College of Political Science and Law 124n11, 126 legal services 118, 120–24, 125–29, 139 legitimacy 34–36, 134–36 Li Fan 60–61 Liang Qizi 72 Little Bird Hotline 127, 129, 147, 153, 154 Liu Junning 61 Liu Peifeng 7–8 lobbying 10, 13, 16, 131–33, 134, 173–74, 299 Macedonia 192, 193, 198, 273 Mao Shoulong 61 Mao Yushi 60, 65 Maple Women’s Psychological Counselling Centre 90n31, 98, 105, 108–9, 110, 114, 116, 128 Media Watch for Women 104 migrant peasant workers 11–12, 85, 128–29, 130, 133, 141–42, 157–58 in-system trade unions 11–12, 141–42, 147, 152, 159–62, 163, 164 rights protection organizations 78, 135, 136, 141, 146, 160–62 self-help organizations 11, 12, 141n1, 146, 147, 148–49, 151, 152–55, 163–64 socializing organizations 11, 12, 141n1, 146, 147, 148–49, 151, 155–59, 163–64 Migrant Women’s Club (the Club) 103, 108, 124, 127, 147, 156–57, 158 Ming dynasty 72 mobilization of shame 16, 298 mutually-beneficial women’s NGOs 99–100, 104, 107–8 Nandu Foundation 85 National Civil Fund, Hungary 196, 197–98, 281 National Endowment Foundation, Czech Republic 257–58 National Foundation for Civil Society Development, Croatia 195, 196–97 NCVO (National Council for Voluntary Organizations) 12, 13, 168, 171, 177, 178, 179

Index Netherlands 207n10, 253n22 fundraising 15, 229–32, 233, 236–38 NPOs 15, 227, 228, 229–32, 236–38 Network of Media Watch for Women (the Network) 110–11, 116 ‘New Citizen Programme’ 85 NGO Forum, Beijing 9, 101, 103 NGO Sustainability Index 201n26, 202n27 NGOs (non-governmental organizations) 1–2, 19, 203–4, 289, 292–93 accountability 14, 193, 194, 209–10 CEE 1, 16–19, 183, 185–86, 187, 188–89, 190–98, 200–202 China 1, 2–5, 7–8, 82, 88–92, 94 Europe 20, 193, 203–4, 205, 209, 212 humanitarian 289, 294–96, 299 Hungary 190–92, 270–71, 274–76, 284–85 Slovakia 186, 190, 196, 202n27, 274, 275 social responsibility 207–8 see also human rights NGOs; INGOs; women’s NGOs NPOs (non-profit organizations) 1, 227–29, 234–36, 238–39, 288 China 7–8, 82–83 Europe 232–34, 239 foreign chambers of commerce 23–24, 25, 26 Hungary 275, 276, 277–84 Netherlands 15, 227, 228, 229–32, 236–38 NSR (NGO social responsibility) 207–8 OCI (Open Constitution Initiative) 10n11, 63–64, 117, 127–28, 134 ‘Olympic Games Volunteer Programme’ 81 One World Trust 209, 234 Open Constitution Initiative see OCI Pajas, Petr Jan 18–19 Palach, Jan 250 PBCs (public benefit corporations) 256, 263, 274 PBOs (public benefit organizations) 17, 181, 194, 198–200, 215, 220–21, 224, 230 peasant workers see migrant peasant workers ‘Peasant Workers’ Home’ 153, 154 percentage mechanism 17, 18, 193, 196, 197, 198–200, 275, 284 PILOs (public interest legal organizations) 10–11, 117–19, 120–24, 125–33, 134–40 Pioneer, Czech Republic 252, 259, 264 Poland 182, 185, 189, 192, 246, 247, 251, 272 percentage mechanism 198, 199 Solidarity movement 183, 184, 185, 250

317

professional association women’s NGOs 99–100, 107–8 Project on Capacity Building for Chinese Women’s NGOs 114 Provisional Measures for Suppression of Illegal Civic Organizations 3, 37, 134, 135 public benefit corporations see PBCs public benefit organizations see PBOs public interest INGOs 5–6, 23, 24, 27–39, 50–51 public interest investigations 132–33, 135 public interest legal organizations see PILOs public interest litigation 10, 122, 123, 129–31, 134, 135–36, 139 public interest petitions 131–32, 135 public interest women’s NGOs 98–99, 108, 111–12 public trust 210–11 Qing dynasty 72, 74, 142 Quanshun Human Resource Development Co. Ltd. 153–54 Quanzhou Model 151, 160, 161 RAND Corporation 55, 59 ‘reform and opening-up’ period charities 74–82, 84 labour organizations 141, 142, 146–52, 159–62, 163 think tanks 53, 56, 58, 66 women’s NGOs 97, 99, 100–101 Regulations on Legal Aid 123–24, 126–27, 134n33, 135, 137–38 Regulations on the Administration of Foundations 36–37, 52, 80 Regulations on the Registration and Administration of Social Organizations 2, 3–4, 49, 56, 126, 134–35, 154–55 research-type women’s NGOs 98–99, 103 rights protection organizations 78, 125–26, 135, 136, 141, 146, 160–62, 294 Rural Women 113–14 Rural Women Cultural Development Centre 108, 109, 113 ‘safeguarded and organized’ period 11, 142, 147, 150–52 Salva Vita Foundation 191–92 Sator, Balazs 18, 191 Schofer, Evan 27 self-help organizations 11, 12, 141n1, 146, 147, 148–49, 151, 152–55, 164 service-type women’s NGOs 103, 106–7

318

NGOs in China and Europe

Shaanxi Research Association for Women and Family 76, 104–5, 109, 112, 115 Shanghai Legal and Economic Studies see SLES Shen Guoqin 8–10 Shenzhen 4–5, 59, 153, 157–58 SLES (Shanghai Legal and Economic Studies) 62 Slovakia 182, 247, 254, 272, 273 NGOs 186, 190, 196, 202n27, 274, 275 percentage mechanism 198, 199 Slovenia 189, 192, 272 social problems 111–13 social responsibility 13–14, 203, 205, 207–8, 210, 212 Social Return on Investment, Hungary 191 socializing organizations 11, 12, 141n1, 146, 147, 148–49, 151, 155–59, 163–64 Sokol (Falcon) movement 244, 252, 254, 259 Solidarity movement 183, 184, 185, 250 solidarity-type women’s NGOs 99–100, 107–8 sovereignty 300–301 Soviet Union 245, 247, 248, 249, 250, 251, 273 sponsorship 2–3, 9, 10, 56, 58–59, 126–28 Spring Bud Project 75 stakeholder accountability 209, 219 Sun Liping 73 TCIED (Twenty-first Century Institute for Education Development) 61 think tanks 5, 6–7, 53–56 China 7, 53, 56–57, 58–66, 67–70, 85 United States of America 54, 55–56, 58, 66, 67 Thoolen, Hans 16 TISE (Transition Institute of Society and Economy) 64 torture 297, 298, 299 total society 73–74, 82 Trade Union Law 145 trade unions see in-system trade unions Transition Institute of Society and Economy see TISE transnational advocacy networks 288 transparency 208, 212, 221, 235 NPOs 227–28, 233, 236, 238, 239 Twenty-first Century Institute for Education Development see TCIED UIA (Union of International Associations) 27, 289n17 UIE (Unirule Institute of Economics) 60, 62, 65, 66, 67 UK 39, 253n20

charities 167, 168, 169, 171, 177, 178, 220–21, 232, 233 voluntary organizations 167, 168–69, 171, 176–79, 224 voluntary sector 12–13, 168–69, 170–72, 176–78, 179–80 UK Charity Commission see CC underground movement, CEE 183–84 UNDP (United Nations Development Programme) 28, 75 Union of International Associations see UIA Unirule Institute of Economics see UIE United States of America 18, 39, 48, 218, 222, 243, 291 AmCham Shanghai 6, 40–42, 47, 50, 51 CEE 260, 265, 276 think tanks 54, 55–56, 58, 66, 67 Universal Declaration of Human Rights 214, 224, 290 USAID (US Agency for International Development) 186, 253n19, 256 Velvet revolutions 184, 250 Vietnam 50, 51 Visegrad Four (V4) 182, 185, 187, 272 voluntary organizations 12–13, 14–15, 172–76, 204, 213–14, 215, 223–25, 288 accountability 14–15, 214, 216, 218, 219–20, 221 governance 14, 217–18 legal personality 216–17 UK 167, 168–69, 171, 176–79, 224 voluntary sector, UK 12–13, 168–69, 170–72, 176–78, 179–80 volunteer services, China 8, 79, 81, 94 volunteers 178–79, 204, 230, 231, 282 voucher mechanism 194 watchdog NGOs 18, 186, 195, 202, 298 WCI (World and China Institute) 60–61 Wenchuan Earthquake 8, 81, 84, 94 Women’s Business Incubator 108 Women’s Legal Service Centre of Qianxi County 104, 111, 128 Women’s Legal Study and Service Centre of Peking University 98, 105–6, 109–10, 116, 124, 125 women’s liberation 100, 101, 113 women’s NGOs 8–10, 95–96, 97, 100–102, 104–6, 108–10, 113–16, 128 ACWF 8–9, 95–96, 97–98, 100, 102–3, 110, 114 advocacy-type 8, 10, 96, 103, 104, 106–7

Index comprehensive-type 104 gender awareness 110–11 mutually-beneficial 99–100, 104, 107–8 professional association–type 99–100, 107–8 public interest 98–99, 108, 111–12 research-type 98–99, 103 service-type 103, 106–7 social problems 111–13 solidarity-type 99–100, 107–8 women’s public interest NGOs 98–99, 108, 111–12 Women’s Watch 106–7 ‘Workers’ Document Service Office’ 78, 129, 147, 152–53 Workers’ Occupational Safety and Health Center 129, 155n28

319

Working Group on the Health Condition and Right to Education of Citizens 127–28 World and China Institute see WCI World Conference on Women (Beijing 1995) 9, 29, 97, 101–2, 103, 105, 113, 114, 128 ‘Xiaochen Hotline’ 78, 129 Xie Haiding 10–11 Yiwu Model 160, 161–62 Youth Development Foundation 75, 93n34 Yuwen Li 1–20 Zhou Shaoqing 11–12 Zhuge Liang 53