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

Georgetown Journal of Legal Ethics, The, Summer 2004 by Joyce, Arwen, Winfrey, Tracye

I. INTRODUCTION

"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.

II. CHINA ENVIRONMENTAL GOVERNANCE TRAINING PROGRAM

A. THE ABA'S PROGRAM

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