A Realistic Assessment of the ABA’s Legal Reform Efforts in China

Taming the Red Dragon: A Realistic Assessment of the ABA’s Legal Reform Efforts in China

Joyce, Arwen


“The United States and China agree that promoting cooperation in the field of law serves the interests and needs of both countries.”1 With these words at the Clinton-Jiang summit in 1997, the U.S. “Rule of Law Initiative” in China was born.2 In reality, informal cooperation between the two countries on legal reform was already taking place. The Clinton Administration’s announcement at the summit that the American Bar Association (“ABA”) would embark on a program of legal cooperation with its counterparts in China served to formalize and publicize this exchange.3 In fulfillment of that promise, the ABA created the Asian Law Initiatives Council (“ABA-Asia”) in 1998, which was modeled on similar AB A programs in Central and Eastern Europe and Africa.4

These post-Cold War programs do not represent the first U.S. attempts to bring legal reform to developing nations. A precursor to the U.S. Government’s Rule of Law Initiatives was the Law and Development Movement promoted in Asia, Africa, and Latin America in the mid-1960s.5 That movement was based on the notions that a functioning legal system is vital for development and that legal reforms would be an effective catalyst for change in other parts of society.6 Transplanting Western legal constructs to different parts of the world proved to be more difficult than the founders of the movement anticipated, however, and a decade later it “came to a virtual halt. . . after a crisis of disillusionment not only with the specific projects but with the whole vision of legal development which sustained them.”7 Critics of the movement attributed its demise to a “flawed theory of law and society, and a flawed ideal of liberal legalism,” as well as flat out legal imperialism.8 Forty years later, with a new set of objectives and programs, Rule of Law proponents, including the ABA, are attempting to succeed where their predecessors failed.

ABA-Asia’s programs fall under Goal VIII of the ABA’s Mission Statement and Goals, which is the promotion of the international rule of law.9 Specifically, ABA-Asia is designed to “[help] bar and other legal organizations develop transparent governance structures, provide continuing legal education, and become effective advocates for legal system reform.”10 ABA-Asia professes to take a balanced, tailored approach to its legal reform projects in other countries, applying four basic rules to every program:

1. All projects must be responsive to the needs and priorities of the countries of Asia, not those of U.S. participants and sponsors;

2. All projects seek to offer a comparative law perspective, in recognition of the fact that American legal experience and traditions offer but one approach that participating countries may wish to consider;

3. ABA-Asia seeks to establish effective partnerships among its project partners and other interested parties to ensure long-term impact beyond the term of the project; and

4. ABA-Asia is a public service project and not a device for developing business opportunities. Accordingly, ABA-Asia has adopted strict ethical guidelines designed to ensure that technical advice offered by its participants is neutral and that conflicts of interest are avoided. Additionally, when feasible, participants in ABA-Asia projects serve on a pro bono basis.”

Consistent application of these rules should lend legitimacy to the ABA’s programs in Asia and help overcome some of the criticisms about Westernization and legal imperialism that haunted the Law and Development Movement. However, even if the ABA’s programs in China are already a step ahead of their predecessor programs in terms of cultural sensitivity and legitimacy, there is much debate over whether they will achieve their immediate and long term goals. Critics of the ABA’s approach argue that, even if the immediate goals of the legal reform initiatives are realized, the underlying premise that these reforms will lead to democratization in other areas of Chinese governance is flawed.12

This Note will examine two of the ABA’s main projects in China: the China Environmental Governance Training Program and the China Legal Aid Project.13 A description of each program will be followed by an account of the current state of the Chinese legal system in that particular area and any existing local reform efforts. ABA-Asia also sponsors two other programs in China, the China Legal Ethics and Criminal Law Workshops and the China Trial Demonstration Program.14 These initiatives are relatively new, however, and so far have consisted solely of one-time workshops.15 Finally, this Note will provide a critique of ABA-Asia’s methodology and chances for success with regard to its two larger programs. It will examine whether the ABA has learned from the experience of previous reform initiatives, such as the Law and Development Movement in Latin America, or whether legal reformers in China will suffer the same defeat.



ABA-Asia and China’s Center for Environmental Education and Communications of the State Environmental Protection Administration began a project in early 2002 to encourage reform in China’s system of environmental regulation.16 The goal of the project was to provide training on environmental governance issues to local and regional governmental officials, lawyers, academics, nongovernmental organizations, and industry representatives in the Chinese cities of Shenyang, Wuhan, and Chifeng.17 The training program addressed how to draft and enforce effective environmental legislation and how to more successfully integrate public participation into that process.18 The three cities selected for the training program were chosen based on their diverse geographic locations, variety of environmental problems, size, and population density.19 The year-long training program was staffed by ABA lawyers in coordination with a Beijing-based ABA environmental attorney liaison.20

Following the classroom-based training sessions, the ABA organized hands-on programs designed to educate officials on the most effective methods for implementing and enforcing environmental laws.21 The curriculum was developed by a Project Advisory Council, a group made up largely of Chinese environmental policy makers and practitioners assembled by the ABA’s incountry liaison.22 The fact that the Chinese themselves were able to contribute to the development of the Environmental Governance training and follow-on programs lends legitimacy to the project. By leaving the legislative drafting to Chinese lawmakers, the program fulfills one of the ABA’s primary Asia Law Initiative objectives: to be responsive to the needs and priorities of the host country instead of those of the U.S. participants and sponsors.23

The inaugural environmental governance training session took place in Shenyang July 16-19, 2002, with sessions in Wuhan and Chifeng the following August.24 The sessions were led by the local Environmental Protection Bureaus in conjunction with the ABA.25 A composite videotape is being made of all the sessions and will be distributed to several more Environmental Protection Bureaus throughout China.26 Making this videotape available will increase the number of Chinese lawmakers and practitioners who will be exposed to the ideas of increased public participation and transparency in environmental governance. This is a small and inexpensive way to make the program more lasting and effective.27

In January 2003, the project realized a major victory when the Access to Information and Public Participation Law entered into effect in the northeastern Chinese city of Shenyang.28 The law, drafted by the Environmental Protection Bureau of Shenyang with support from the ABA, is said to be more specific and comprehensive than its predecessors.29 Functionally, the law requires businesses to provide information on the amount of pollution they create.30 This improved visibility into what the city’s environmental regulations require and who its worst polluters are will have the effect of increasing the accountability of local polluters and law enforcement while encouraging greater civic involvement. Local government officials even invited the public to participate in the legislative drafting process by publishing a draft of the law in the newspaper twice to solicit citizens’ opinions on the proposed verbiage and on how the new law should be enforced.31 Apparently, the law was considered such an exemplary provision that two different arms of local government, the Shenyang Municipal Government and the Shenyang People’s Congress, were vying for the right to promulgate it.32


Nationally, China’s environmental regulation scheme is rooted in its 1982 Constitution and implemented through laws such as the comprehensive Environmental Protection Law of 1989 and the more specific Air Pollution Prevention and Control Law of 1987.33 Although centralized regulations provide a basis for environmental protection, primary responsibility for enforcing the regulations and improving environmental quality is left to local governments.34 Local authorities are thus faced with the challenge of implementing “vague, inconsistent laws of often questionable legislative authority.”35 Enforcement of generally worded environmental provisions can seem arbitrary and unpredictable, making it difficult for businesses to foresee which of their polluting activities will be sanctioned and to what extent. Additionally, the laws seldom contain legal remedies that individual citizens can pursue.36

Paving the way for the AB A’s Environmental Governance program in China has been a gradual change in the way the Chinese government makes and enforces laws, inspired by its desire to become more integrated into world markets. In the last forty years, China has developed more “public, positive law” to address areas of concern such as pollution and the environment.37 In fact, according to one source, one of the main principles guiding modern environmental law in China is that “the public must have a meaningful opportunity to participate in environmental decision making.”38 Between 1994 and 1996, six years before ???-Asia’s China Environmental Governance program was launched, China’s supreme legislative body, the National People’s Congress, began to hold public hearings on the issue of whether to revise the water pollution law.39 Thus, the idea of public participation in environmental governance was already alive, if not thriving, in China before the ABA launched its legislative initiatives.


The ABA has tried to address the main criticisms of ineffective Chinese environmental regulations through its legislative initiative. Some have suggested that China’s laws could be improved by drafting more precise language and regulating polluters at the regional level.40 Critics have also called for improvements in environmental education of public officials, the judiciary, and the industrial sector.41 Finally, some have recommended increased citizen involvement, noting that public participation holds “particular promise for enhancing the effectiveness of environmental law in China.”42 The ABA has seemingly taken all of these suggestions into account through its training programs and assistance to Chinese drafters of new environmental legislation. Time will tell whether the local governments in Shenyang and elsewhere will have more success enforcing and implementing this new breed of legislation, and whether this will result in desperately needed environmental improvements.43

However, even if the ABA works to draft more precise environmental governance laws, and succeeds in making the rules and consequences for breaking them more transparent to the public, a danger remains that customary Chinese legal practice will hamper public involvement in environmental reform.44 The concept of “standing,” or determining if a party has a right to make a legal claim, receives very narrow construction in Chinese law.45 This means that a Chinese litigant has to prove that he was personally and46 directly affected by a polluting activity before the case can be brought in court, which is a higher bar than American litigants with environmental grievances face. The Chinese system also defines very narrowly the range of activities actionable under tort law, and the possibility of bringing mass tort cases is limited.47 Additionally, China’s Administrative Litigation Law limits the scope of review of official behavior and the Communist Party strongly discourages citizens from forming independent non-governmental groups.48 The lack of accountability of public officials and the difficulty Chinese citizens have in lobbying the government with their concerns will have to be improved before the legal reforms which the ABA is espousing can have a real effect.

For anyone seeking to promote change in the Chinese legal system, the first step must be an exploration of the rich historical and cultural context that surrounds the system. It will be important to “develop an approach toward environmental protection that takes account of Chinese circumstances without accommodating them so completely as to surrender all possibilities of fostering transformation.”49 If the ABA does not approach its environmental governance reform work on a system-wide basis, addressing problems in both the law and the legal system through which it is enforced, it risks contributing only to the growing body of Chinese environmental law without paving the way for true reform.50



The legal aid portion of ABA-Asia began in 2000 with a symposium discussing the legal aid systems in both the United States and China.51 More recently, ABA-Asia brought representatives from ten legal aid centers in China to the United States for two weeks to learn more about the U.S. systems for legal assistance to the indigent.52 This program, funded by the U.S. State Department, sought to educate Chinese legal aid providers from various organizations about the philosophy behind the U.S. system for legal aid, as well as the logistics of running a legal aid center.53

In visits to Boston, Chicago, and San Francisco in the fall of 2002, Chinese legal aid directors met with representatives from a diverse group of legal aid providers in the U.S., including private law firms, university clinics, public defenders, referral centers, and other non-profit organizations.54 These meetings explained how each aspect of the American legal system affects indigent persons and emphasized the essential nature of public-private cooperation in the U.S. legal aid system.55 The visitors also discussed legal aid issues with prosecutors, judicial officials, and members of the ABA Standing Committee on Legal Aid and Indigent Defendants.56

ABA-Asia planned to reach a much broader audience through a spring 2003 workshop on legal aid in Xi’an, China.57 The goal of the event was to have members of the Chinese legal aid community begin discussions about the appropriate role and functions of the legal aid system in China and determine the best way to develop national policies to promote those decisions.58


The concept of legal aid in China did not begin with the ABA’s programs. Since at least 1990, China has mandated that its lawyers engage in pro bono work.59 This mandate appears in China’s 1996 Lawyer’s Law, which specifically requires that “[a] lawyer must undertake the duty of legal aid in accordance with State regulations, and provide the recipient with legal services in fulfillment of his duty and responsibility.”60

In response to this Ministry of Justice direction, between 1995 and 1999 a diverse set of organizations offering a range of services came into existence and established the foundation for China’s indigenous legal aid system.61 During that time, Chinese government organizations created 180 legal aid centers and offices throughout the country and non-governmental organizations and the All-China Women’s Federation established a small number of clinics.62 Some Chinese lawyers in private practice also began to perform pro bono work.63

While most of China’s legal aid programs remain under the control of the central government, specifically the Ministry of Justice, they do not receive funding through the state.64 Most are supported by local governments or contributions from law firms.65 In addition, a few legal programs are associated with Chinese universities and funded by international organizations such as the Ford Foundation.66


Both internal and external factors could imperil the success of ABA-Asia’s legal aid programs. These pitfalls range from logistical issues, such as the structure and funding for AB A-Asia and the number of lawyers in China, to more fundamental concerns about the philosophies and infrastructure of the current Chinese legal system.

One structural concern is the mechanism ABA-Asia employs to implement its legal aid program-one-time conferences. Paul Gewirtz, former Special Representative for the Presidential Rule of Law Initiative at the United States Department of State, argues that rule of law initiatives in China should include “[i]n-depth and long-term projects” because they “are far more valuable than one-shot conferences or ‘study tours.’ “67 He believes that in-depth exchanges foster trust and allow the Chinese participants to develop expertise.68 To date, ABA-Asia programs on legal aid have consisted solely of conferences and symposia.69 Although these interactions may be beneficial to the Chinese participants, their short duration suggests that these programs will enjoy only limited success in their current structure because they do not produce lasting dialogue between the parties.

Even if the ABA-Asia program is structured as Gewirtz suggests, its success would also be limited by the fact that only a small number of Chinese citizens have access to free legal services.70 The Ministry of Justice has promulgated strict guidelines limiting legal aid services to those clients who demonstrate economic hardship,71 satisfy local residency requirements, and seek help with approved categories of cases.72 Perhaps more importantly, China’s few lawyers and legal aid programs are centered in relatively affluent urban areas, leaving the rural poor with little to no legal assistance options.73 ABA-Asia’s legal aid efforts cannot address these underlying issues.



The ABA is trumpeting its Asia Council programs in China as major breakthroughs into an otherwise opaque legal process,74 but its underlying assumption about the impact its programs will have on other parts of the Chinese legal system may be flawed. One of ???-Asia’s stated objectives for these legal reform initiatives is that they will have an effect far beyond the realm of environmental regulation and legal aid and will reverberate through the Chinese legal system, promoting transparency, civic participation, accountability, and democratization in other areas.75 An ABA article describing the Environmental Governance program states, “???-Asia’s core objective in this project [is] developing models that provide for greater governmental transparency, increased citizen participation in decision-making, and enhanced respect for and implementation of Chinese law.”76

While the ABA’s efforts through its Environmental Governance initiative in China may prove valuable on a small scale, the overall effect of the Access to Information and Public Participation Law passed in Shenyang is likely to be limited, both in the number of people it will reach and the extent to which environmental reforms will be successfully implemented. If managed correctly, the new law may bring more polluters in Shenyang into compliance with environmental regulations and may encourage more citizen involvement in the regulatory process. While this result would be laudatory, proclaiming any further-reaching, longer-lasting effects of the program for China’s legal system is premature and overly optimistic.

This is not to say that the program is a waste of time and effort or that it will be unsuccessful because it has such a limited scope, but rather, that its potential for success must be viewed realistically. The ABA’s program will be helpful for the towns where the laws are promulgated, and might even serve as an example for other areas of China that are struggling with environmental problems. Nevertheless, progress will be slow and proponents of the program should temper their optimism accordingly.

The BA-Asia legal aid program suffers from similar difficulties-there are few opportunities for widespread reform in this important area. The scarcity of legal aid programs available to the general population in China will limit the success ABA-Asia may have in improving the quality of these initiatives. For example, as of 2000, at least 170,000 legal aid centers existed in China,77 but only ten individuals participated in the ABA’s U.S. study tour.78 Recognizing these difficulties, any suggestion that the ABA’s limited legal reform programs in China will be a springboard for nation-wide democratization should be viewed skeptically.

Another problem is that even if ???-Asia succeeds in improving the quality of legal aid at some Chinese clinics, inadequate government funding will prevent legal aid from reaching the majority of those in need.79 The paucity of funding and trained personnel in China means that not all qualified legal aid applicants receive assistance.80 The central government, however, does seem to have realized the need for increased funding of legal aid. Recently it passed a regulation requiring the national and local governments to “guarantee” daily operating expenses for organizations providing legal aid.81 The government acknowledged, however, that this “guarantee” would still leave some legal aid centers without full funding due to the inability of local governments to contribute large amounts of money.82

As the challenges facing these two initiatives demonstrate, the ABA and other proponents of these types of legal reform efforts need to recognize their limitations and be realistic about their reach. While they may achieve success in the limited realm envisioned by their creators, these programs seem unlikely to create widespread change in the Chinese legal system as a whole.


Critics of ABA-Asia’s programs think optimism about the far-reaching effects of isolated legal reform programs reveals a lack of understanding about the Chinese legal system.83 The reality is that the Chinese legal system and its attendant bureaucracy is extremely complex and functions differently from those in both Western and Eastern industrialized democracies.84 It is difficult to predict how legal provisions will be enforced, not just because of the customarily vague drafting style of Chinese legislators, but because Chinese law is generated by at least eleven different sources.85 As an illustration of the bureaucratic inefficiencies that can result, eight different ministries and national commissions have a role in carrying out China’s responsibilities under the Montréal Protocol on Substances that Deplete the Ozone Layer, which China ratified in 1991.86

Further, China’s system of codified laws, in contrast to the common law system of the United States, means that there is generally no recognition of precedent.87 Responsibility for interpreting Chinese laws and regulations rests, not with the judiciary, but with the Communist Party’s Standing Committee of the National People’s Congress and the regional agencies to which it delegates.88 Without the element of stability and predictability that judicial precedent can provide, enforcement of Chinese regulations can seem arbitrary and capricious. As China’s legal system continues to evolve at a rapid pace, as evidenced by the flood of new law schools, lawyers, and cases brought in China over the last decade, it will become increasingly difficult for outsiders to recommend effective legislation or predict how it will be implemented once it is passed.89

ABA-Asia’s legal aid program also could be subject to charges of American imperialism. In the view of Michael William Dowdle, international aid programs modeled on successful legal aid initiatives in the U.S. can be “suppressive” because they undermine indigenous programs addressing the same issue that are better suited to the domestic culture.90 Dowdle believes that international efforts to improve clinical legal aid in China are examples of this corrosive process.91 He argues that the American-style university clinics established in China, while successful in the cases they litigate, have not led to the creation of similar indigenous institutions.92 The litigious focus of these American-style clinics is described as confusing to average Chinese citizens who, unlike their U.S. counterparts, do not have an ingrained proclivity for using the courts to protect their rights and redress wrongs.93 Previously, all social services in China, including legal aid, were provided by the state, making Chinese citizens unsure about how to utilize litigation-focused legal aid clinics.94

The ABA-Asia legal aid initiative appears to fall into the category of those identified by Dowdle as potentially suppressive. The program works by exposing Chinese legal aid providers to various “U.S. systems for providing legal support to the indigent.”95 By focusing on U.S. models for legal aid, the ABA risks interfering with current and future Chinese attempts to provide legal assistance to those in need.

Dowdle suggests that a better model for clinical legal education in China rests in utilizing state-sponsored institutions such as student unions and law firms affiliated with universities.96 These are organizations that Chinese citizens are more accustomed to receiving social services from than American-style university clinics.97 As such, they would be more likely to spawn widespread change in China’s overall legal aid system.98 Rather than using exclusively American models for legal aid programs, international aid programs should “also devote equal effort to exploring experiences which appear in many ways to be more relevant to China’s transitional, civil law legal environment . . . for example those of South Africa, France, and Japan.”99 Such an approach would be in accordance with ???-Asia’s rules for legal reform projects, specifically the admonition “to offer a comparative law perspective, in recognition of the fact that American legal experience and traditions offer but one approach that participating countries may wish to consider.”100

Finally, along with the impediments to reform inherent in the Chinese legal system that ABA-Asia will encounter, there are also cultural differences that may hamper the success of ???-Asia’s legislative initiatives. One expert on the Chinese legal system, Professor James Feinerman, argues that due to legal and political instability in China since 1949, and even before that date, the Chinese populace is skeptical of potentially destabilizing reform measures.101 Feinerman points out that “frequent reversals and radical shifts in course . . . have engendered caution and suspicion, [and] propagandizing the new legal system has scarcely begun to penetrate those psychological barriers.”102 Even if the ABA can convince the Chinese populace that its proposed legal reforms will be beneficial, it will still have to overcome China’s historically and culturally rooted skepticism towards change.


Despite the difficulties of operating within the Chinese legal system to promote change, some proponents of the ABA’s programs are optimistic about their chances for success. Paul Gewirtz has stated,

legal reform in China is of great importance to China and to the world. Legal reform can enhance economic development, advance human rights, contribute to political reform, counter corruption, and improve China’s interactions with the international community . . . . Legal reform in China can be valuable in its own right and can contribute to wider reforms.103

Gewirtz stands in stark contrast to critics who believe that the “vision of snowballing legal reform” leading to more dramatic political reforms is problematic and improbable.104 The optimism of Gewirtz and others is bolstered by the significant changes that are already taking place in the Chinese legal system. In 1979 there were only two law schools and fewer than 3,000 lawyers in China, but by 1999 there were more than 200 law schools and 100,000 lawyers.105 The multitude of newly trained legal practitioners correlates with the plethora of new laws and regulations China has enacted in the last twenty years. This new influx of lawyers is also needed to help facilitate the more than six million cases per year now heard in the Chinese court system.106 Due to the proliferation of student-initiated and student-run legal aid clinics, the newest crop of Chinese lawyers may also be a strong force for change.107 Participants in two of these clinics reported that the experience left them “more inclined to see lawyers as ethically obligated to serve society” and reinforced “the need for taking a more comprehensive approach toward legal reform.”108 Finally, newly trained lawyers have “the opportunity to practice a form of self-governance” through involvement in student run organizations, strengthening their participation in Chinese civil society.109

Gewirtz contends that all of these systemic changes indicate that the concept of “ruling the country according to law” has been elevated to a “prominent ideological and constitutional place” in China.110 In fact, the Chinese Communist Party officially embraced the goal of rule of law, and the Constitution was amended to state that China “shall be ruled in accordance with the law. . . [although observers] expect the [Chinese Communist Party] itself to remain above the law for the near future.111 Even if this endorsement of the rule of law is in name only, it portends greater public participation and access to the legal system for Chinese citizens in the future.

Gewirtz recommends that cooperative law reform is best accomplished outside the government, by organizations like the ABA.112 He argues that reform projects should be conducted away from the influence of the volatile U.S.-China political relationship because the Chinese have an easier time trusting their counterparts in non-governmental organizations.113 Also, much of the legal expertise that China seeks exists outside the U.S. government.114 Based on these criteria, the fact that the State Department is funding ABA programs in China instead of acting on its own behalf should increase the chances for the success of these legal reform efforts.


In the areas of environmental governance and legal aid reform, AB A-Asia has created programs that have the potential to contribute constructively to the dialog on reform in the Chinese legal system. ABA-Asia’s success with these programs will be proportionate to how closely it follows its four basic rules, which counsel for creating effective partnerships with Chinese practitioners and offering a comparative law perspective.115 The ABAs programs will be most effective if they explain the range of choices open to China in reforming its legal system, admit shortcomings in the U.S. system as well as touting its advantages, and seek to learn as much as possible about the historical and political context in China before giving advice.116

Recognizing that ABA-Asia is likely to succeed in realizing the limited and immediate goals of its initiatives, one must also be realistic about the ability of these programs to promote broader change throughout the Chinese legal system. As one critic of legal reform efforts abroad points out, “[i]t is premature to assume that the end of legal reforms is likely to be a liberal democratic rule of law.”117 Legal reform will progress in China on China’s own terms; it will not be a clone of Western legal systems.

Nevertheless, ABA-Asia’s programs will likely fare better than their predecessors from the Law and Development Movement of the 1960s because they are more culturally sensitive and adaptive. Further, the Chinese government and Chinese Communist Party “remain at least nominally committed to extending the ‘Rule of Law’ as they understand it.”118 As China continues to reform its economic system and moves slowly towards democracy in other areas, the rule of law will be strengthened as well.

ABA reformers can, and likely will, contribute positively to this effort. ABA-Asia’s programs will be most helpful if they remain focused on how they can effect change in such areas as the environmental governance of Shenyang and the legal aid initiatives of Xi’an. The promotion of the rule of law would be well served by concentrating on the local communities the ABA can influence and dismissing boastful visions of the democratization of a legal system as immense as that of the People’s Republic of China.


* J.D., Georgetown University Law Center, (expected May 2006); B. A., University of Virginia (2001).

** J.D., Georgetown University Law Center, (expected May 2006); B.S.F.S. Georgetown University (1996).

Copyright Georgetown University Law Center Summer 2004

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