Co bedzie dalej w zwiazku z nazwa ronda w Warszawie ?

Guangzhou city, Guangdong province, for example, a new rule allows the government to fine employers up to 20,000 yuan (US$2,968) if they refuse to conduct collective negotiations with workers to resolve wage arrears issues.\12\ While employment discrimination continued to be a serious problem during this reporting year, legal scholars noted that there appeared to be a growing number of cases brought by plaintiffs under China's Employment Promotion Law alleging discrimination in hiring. The law, which took effect in 2008, prohibits discrimination based on ethnicity, race, sex, religion, residency, infectious disease, and disability.\13\ One study indicated that civil society organizations have contributed to a greater awareness of employment discrimination and have helped bring cases to the courts.\14\ In some widely reported cases, plaintiffs have prevailed, suggesting that ``courts have taken a favorable view of the law'' and that the ``long-discussed implementation deficit of Chinese law is shrinking, slightly.'' \15\ China's Labor Contract Law, which also took effect in 2008, continues to be subject to interpretation at the local level. Interpretations over this reporting year have been inconsistent across some localities. For example, Article 14 of the law states that if a ``worker has worked for an uninterrupted term of 10 years for the employer'' and if the worker ``proposes or agrees to renew or conclude a labor contract,'' then the worker is entitled to an open-ended contract, that is, ``a labor contract without a fixed period.'' \16\ Addressing this provision, the Jiangsu High Court's Guiding Opinion on the Handling of Employment Disputes ruled in December 2009 that an employee may be entitled to an open-ended contract even if the employee's 10 years include leave from work due to pregnancy or other conditions allowed by the statute.\17\ A March 2010 opinion by the Shanghai High People's Court, however, construes the law more strictly, indicating that judges should deny employees' requests for open-ended contracts in such situations.\18\ Such variance in interpretation across locales potentially lays the groundwork for disputes leading ultimately to calls for further national-level clarification of ambiguity in the law's provisions. Recent Worker Actions Widespread reports of strikes and demonstrations continued during this reporting year, especially in manufacturing centers in southern China. Strikes were often prompted by factory slowdowns, closures, and nonpayment of wages or overtime.\19\ In these cases, trade unions often appeared during the period of negotiation and settlement of the strike as subordinate to the government.\20\ During the spring and summer of 2010, Chinese and international media and non-governmental organizations reported on a spate of worker actions--from a succession of strikes to suicides at a factory compound--at various enterprises in China, mostly foreign-owned, that garnered attention in China and around the world.\21\ Unofficial reports suggest that the striking workers' primary demand was higher wages. These reports also indicate that many of the workers decided to participate in the strikes after hearing coworkers who had worked at other factories recount similar situations at their previous places of employment-- namely, low wage levels and subsequent successful attempts to force employers to raise wages through work stoppages. In other words, the spread of the strikes seemed to have resulted from a ``copy-cat chain'' of events inspired by previous successes rather than an organized labor movement.\22\ Journalists, commentators, and academics in China and abroad have also pointed to changing attitudes of a new generation of workers, migrant workers' difficulties in adjusting to urban factory life, and the denial of the right to free association as factors contributing to worker actions.\23\ Freedom of Association and Collective Bargaining The Chinese government prevents workers in China from exercising the constitutionally protected freedom of association.\24\ Trade union activity in China is organized under the All-China Federation of Trade Unions (ACFTU), a quasi-governmental organization under the direction of the Communist Party.\25\ Leading trade union officials hold concurrent high-ranking positions in the Party. The ACFTU Constitution and the Trade Union Law of 1992 both highlight the dual nature of the ACFTU to protect the legal rights and interests of workers while supporting the leadership of the Party and the broader goals and interests of the Chinese government.\26\ The ACFTU monopolizes many worker rights issues in China, such as shopfloor organizing and ``formalistic'' collective contract negotiations, but it does not consistently or uniformly advance the rights of workers.\27\ In recent years, the central government has shown support for an enlarged trade union role in collective contracting, and in union organizing in private firms in China, including multinational companies.\28\ These changes are less a sign of opening up and liberalization than they are a collection of strategies to improve the standing and legitimacy of the ACFTU in workers' eyes. The government's strategy appears to be based on its expectation that a more vibrant and engaged ACFTU may limit demands for independent union organization and spontaneous collective action by aggrieved workers. At the shopfloor level, the ACFTU's unions remain weak and marginalized. While the ACFTU and its affiliated unions at lower administrative levels sometimes may play an important role in legislative and regulatory development, this role is not matched with power at the enterprise level. Generally speaking, firm-level union branches are weak, nondemocratic, and subordinate to management.\29\ Despite an increase in legislation and administrative regulations that gives the ACFTU more power at the firm level to resolve disputes, the structural weaknesses of the trade union branches make improvements in trade union autonomy and worker advocacy difficult and slow.\30\ In its last Annual Report, the Commission noted that during 2009, with the impact of the global economic crisis and increased government fear of social instability related to rising unemployment, the trade union's role focused on assisting the government in resolving labor disputes and conflicts. This was reflected in the renewed emphasis on mediation and local-level dispute resolution contained in local regulations and measures. During 2010 it was no longer clear that the global economic crisis still was the main driver of the increase in labor disputes, as it appeared to be during 2009. The Chinese economy showed some signs of recovery, and the migrant labor shortage first reported in 2004 began to reappear.\31\ Some of the strikes and demands for higher wages during 2010 may not be a sign of continued weakness on the part of workers vis-a-vis management.\32\ Rather, they may reveal that workers in some cases have been emboldened not only by protections for workers codified in labor laws that took effect in 2008, but also by a tighter labor market.\33\ Most workers who participated in recent strikes reportedly were not calling for the formation of independent trade unions per se, but rather were calling for unions to act more independently and democratically within the confines of Chinese law. A June 18, 2010, China Daily commentary noted that Chinese workers' demands for genuine union representation was not the same as a push for alternative unions.\34\ While acknowledging that the government-run ACFTU ``has a herculean task ahead if it wants to fulfill its assigned role of representing workers,'' the article, written by a prominent Australia-based expert on Chinese labor, states that Chinese workers ``are willing to become members of the ACFTU,'' but that the ACFTU should: \35\ Do away with the ``fake unions'' . . . [the ones] assigned by the local governments, whose paramount interest is to attract foreign investment . . . . These governments now rent out land to companies and appoint a few local union-ignorant people to run the trade union offices . . . . The local trade union offices should be put under the jurisdiction of the upper-level union instead of local governments. The ACFTU should allow workers to elect their representatives to their workplace union committees, too, as has happened in a very modest number of firms. Only then can the union branches demonstrably represent workers' interests rather [than] . . . employers' or governments' [interests].\36\ The lack of genuine labor representation is well documented. A representative of the Hong Kong-based labor organization China Labour Bulletin told the Toronto Star in a June 8 article that China's state-run labor unions ``will rarely, if ever, stand four-square with workers.'' \37\ In the past reporting year, however, Chinese officials have appeared to be more willing to address the issue of more genuine worker representation. As the global economic crisis deepened and the number of labor disputes continued to increase at an alarming rate, there has been greater emphasis on encouraging mutual cooperation and agreement between employers and workers. A key notion in recent regulatory development was that protection of both workers' rights and employers' lawful rights and interests was essential to maintain stable labor relations and to continue with industrial and economic development.\38\ China's Labor Dispute Mediation and Arbitration Law, which went into effect in 2008, underlined the requirement first to exhaust all consultation, negotiation, and mediation avenues to resolve labor disputes. The law suggests that arbitration and litigation should be used only when the other alternatives failed.\39\ It also indicates the importance of the tripartite system of coordination between labor bureaus, trade unions, and enterprise representatives to solve labor dispute cases together.\40\ Earlier local interpretations echoed and encouraged the use of this structure,\41\ and in some instances, they also suggested major collaboration and involvement from local governments and other relevant departments and organizations.\42\ With the explosion of labor conflict cases in arbitration committees and courts, however, the central government has been trying to redirect these labor conflicts to other channels at lower levels, and to encourage more mediation in general and negotiation within enterprises.\43\ Local governments are encouraged to strengthen and provide better guidance to improve the competence of labor dispute mediation organizations,\44\ and there is emphasis on the communication and exchange of information between the relevant bodies.\45\ Thus, the government continues to seek inter-organizational collaboration, where arbitration committees, courts, mediation committees, trade unions, and enterprises research and work together to resolve labor disputes.\46\ In Jiangsu province, for example, the Human Resources and Social Security Office issued a circular calling for the establishment of a ``Five in One'' mechanism to resolve labor disputes, outlining the respective responsibilities of judicial administrative departments, the human resources and social security department, the people's courts, arbitration committees, and trade unions to first utilize mediation before proceeding to the arbitration and judicial stages.\47\ A Chongqing municipality notice also highlights the primary responsibilities of mediation committees, while delineating the rights of disputants and the procedures for all parties to follow in dispute cases.\48\ The Supreme People's Court issued a judicial interpretation in September 2010--its third since 2008--in an attempt to clarify the courts' responsibilities to ``properly [hear] labor dispute cases,'' the vast majority of which had failed to result in satisfactory outcomes during the mediation and arbitration stages.\49\ The interpretation specifies the types of dispute cases deemed to be acceptable by the courts, noting that people's courts shall accept, among others, cases concerning disputes arising out of the restructuring of enterprises,\50\ the failure of employers to pay wages as stipulated in labor contracts,\51\ and when employees are unable to obtain insurance benefits due to their employers' failure to properly handle the required social insurance application procedures.\52\ COLLECTIVE CONTRACTING Collective contracts and some process of collective consultation and negotiation have been part of Chinese labor relations since the 1990s when state enterprise reform deepened and labor conflict began to increase rapidly, especially in the private sector. The ACFTU has championed collective contracts and collective negotiations as important foundations for trade union work at the enterprise level. In recent years, the collective contract system has received more Chinese government and Communist Party support as part of an attempt to institutionalize a tripartite system of labor relations at the local level between the government, the ACFTU, and the employer associations.\53\ Nonetheless, the collective contract and consultation system remains weak and formalistic because enterprise-level trade union leaders are not positioned to serve the interests of their workers. Many collective contracts merely reflect the basic legal standards in the locality and often are the result of concerted government or Party work to encourage the enterprise to enter into formalistic contracts rather than the result of genuine bargaining between management and the enterprise trade union.\54\ In December 2009, Zhang Jianguo, Director of the ACFTU's Collective Contracts Department, stated that ``in mitigating labour disputes, the fundamental issue is to establish a collective bargaining system that would allow labour disputes to be managed and resolved within the enterprise. From this point of view, collective bargaining is the route we must take in defusing conflict and developing harmonious labour relations.'' \55\ Han Dongfang, a well-known Chinese labor activist and founder of the China Labour Bulletin, made this point in a more succinct way: The long-term trend is clear. The only way the government can prevent greater social conflict is by giving more power to the workers not less. If workers have the right to negotiate as equals with the boss the chances of disputes turning violent will be greatly reduced. If on the other hand, the government ignores workers' rights and gives the boss free rein, the consequences will be very serious.\56\ In July 2010, Chinese media reports indicated that drafters of Guangdong province's Regulations on the Democratic Management of Enterprises (Regulations) began seeking opinions from relevant government departments, workers, state-owned and non-state-owned enterprises.\57\ One labor advocacy group argued that these ``regulations . . . could, if implemented, finally open the door to genuine worker participation in collective bargaining in China.'' \58\ Article 38 of the draft Regulations states that if less than one-third of workers request wage consultations with management, they must notify the enterprise union, and the union may consult with management on the workers' behalf, and report the results to workers.\59\ However, if one-third or more of workers demand collective consultations, the union must demand collective consultations with the enterprise's management.\60\ The Guangdong government's decision to advance and demand faster action on the drafting process appeared to be a response to the recent worker actions in the spring and summer of 2010.\61\ The original draft of the Regulations initially was submitted to the Guangdong Province People's Congress Standing Committee in July 2008. However, with the onset of the global financial crisis in the fall of 2008, officials reportedly delayed further action on the draft.\62\ In July 2010, when worker actions revealed a ``sharpened concern over [the] problem of representation,'' officials recognized that, given that the ``changes in labor supply and demand'' have enabled workers to gradually gain more leverage in their relationships with management, the absence of genuine representation can easily turn common labor strife into a ``hard landing'' with ``intensified contradictions.'' \63\ Thus, by focusing on the right of workers to carry out collective actions as well as the representativeness and trustworthiness of unions, the draft Regulations reportedly reflects an attempt to defuse potential collective labor disputes by preemptively bringing workers into formal legal and regulatory channels.\64\ While some labor activists appeared to be optimistic about the draft's potential impact, an expert on Chinese labor relations at the University of Michigan cautioned that ``without significant institutional reforms to the trade union itself, including the system of leadership selection, compensation and job security of trade union leaders within the enterprise, and better support and training from higher level unions, these reforms are unlikely to succeed.'' \65\ Still, in recent years at least eight other provincial, city, and autonomous regional governments have also enacted or put forth for consideration their own regulations on enterprise democratic management and collective consultations, including the provinces of Guizhou,\66\ Hubei,\67\ Jiangsu,\68\ Shanxi,\69\ and Zhejiang,\70\ as well as the cities of Jinan \71\ and Tianjin.\72\ Shanghai reportedly is advancing similar regulations as well.\73\ However, Guandong's draft Regulations are particularly noteworthy in that they specifically grant workers the right to demand the initiation of collective wage consultations--a right that typically has been reserved for unions. In addition, some localities, including Beijing,\74\ Guangdong,\75\ Hainan,\76\ and Tianjin,\77\ also have issued guidance notices and regulations highlighting collective consultations' potential in fostering ``harmonious'' labor relations and specifying the legal rights of parties involved in collective consultations. In mid-September 2010, however, media reports indicated that the Guangdong Province People's Congress Standing Committee delayed further deliberation of Guangdong's draft Regulations. Heavy lobbying by some members of the Hong Kong industrial community, many of whom operate factories in southern China, reportedly played a role in the Standing Committee's decision.\78\ ------------------------------------------------------------------------ Migrant Workers ------------------------------------------------------------------------- The Chinese government characterizes as migrants rural residents who have left their place of residence to seek non-agricultural jobs in Chinese cities, sometimes in the same province and sometimes far from home. China had more than 229 million migrant workers at the end of 2009, an increase of almost 2 percent from the year before.\79\ Official Chinese government statistics break down the total number of migrants into those who spent less than half the year as migrants, i.e., those who spent less than six months during the year away from their place of legal residence (85 million in 2009), and those who spent more than half the year as migrants (144 million in 2009).\80\ The Chinese household registration (hukou) system places restrictions on migration between rural and urban areas in China. Therefore, migrant workers may work in a city for many years but remain unable to qualify for city residency. Without city residency, authorities may deny them many basic public benefits, such as inclusion in social insurance programs, education for their children, and healthcare.\81\ As a marginalized urban group, migrant workers are often abused or exploited by employers who take advantage of their insecure social position and lower levels of education.\82\ While the central government has allowed the hukou system to relax over time, this system of institutionalized discrimination continues to affect adversely the social, civil, and political rights of migrants.\83\ During the global economic crisis, wage arrears problems increased dramatically as factories shut their doors.\84\ Moreover, even though wages for migrant workers have been on the rise, they continued to work longer hours for less pay than local residents.\85\ Many localities have expanded efforts to include migrants in social insurance coverage. However, there are still significant problems in terms of participation (for both employers and employees), coverage, and portability between rural and urban areas and even within urban areas. Migrant workers generally are able to withdraw monies only from their individual accounts, losing the larger percentage of their pensions that is paid by their employers. With migrant workers facing uncertainty about whether they would return to the same locale to look for new work, and with the portability of pension accounts highly restricted, they chose to withdraw their pensions. ------------------------------------------------------------------------ ------------------------------------------------------------------------ Migrant Workers--Continued ------------------------------------------------------------------------- A Beijing Federation of Trade Unions survey of workers in Beijing reportedly found that the percentage of migrant workers surveyed who had signed formal employment contracts with their employers was significantly lower than the percentage of workers with a Beijing urban hukou who had done so.\86\ In February 2010, over 10,000 children of migrant workers reportedly were unable to resume classes after the Chinese New Year's holiday in some districts within Beijing as dozens of schools faced forced demolitions.\87\ These students have few alternatives--in Beijing, for example, state-run and legal private schools can accommodate only half of all admissions demand.\88\ Adding to the problem, many parents prefer to enroll their children in state- run schools, since these institutions are cheaper and safer and have a lower turnover of teachers.\89\ In an attempt to curb rising crime rates, officials in Daxing, a Beijing suburb, are planning to carry out a ``sealed management'' system (fengbi guanli) and build fences around 16 migrant communities, putting migrants behind ``tall metal fences and high walls'' while ``newly-installed closed-circuit cameras sweep the area for suspicious activity.'' \90\ A recent ACFTU study found that China's new generation of migrant workers, unlike their parents, have higher expectations with regard to wages and labor rights as they struggle to transition into urban life.\91\ China's Minister of Agriculture, Han Changfu, observes the several characteristics that set post-1990s workers apart from the previous generations, pointing out that many of them have never put down roots, are better educated, are the only child in the family, and are more likely to demand equal access to employment and social services--and even equal political rights--in the cities.\92\ Some reports indicate that the so-called ``post-1980s'' and ``post-1990s'' new generation of migrant workers is at the forefront of the recent strikes; in all, there are about 100 million young workers in China's total pool of migrant workers.\93\ As a Chinese demographer explained, the young workers have ``the greatest intention to become urban residents and their problems can only be solved by making them such.'' \94\ The Ministry of Human Resources and Social Security announced in March 2010 that it would provide job training to about 600,000 migrant workers each year,\95\ and high-level central government officials have called for reforming the household registration system.\96\ [See also Section II--Freedom of Residence and Movement.] ------------------------------------------------------------------------ Working Conditions There is increasing evidence of deteriorating working conditions for many Chinese workers and increasing bifurcation of the workforce as highly skilled workers still are in high demand while lower level workers bear the brunt of the global economic downturn. The trend of informalization also disadvantages the lower rungs of the labor market more severely as employers seek to retain highly sought technical workers and managers while reducing the size of the less skilled labor force.\97\ Academic experts define informal employment as employment that is not stable or secure, that lacks a written agreement or contract, and that does not provide social insurance or benefits.\98\ Since the mid-1990s, when China's economic reforms quickened, there has been a ``rapid and unprecedented rise'' in informal employment.\99\ Economists estimate that 45 percent of urban employment in China is now informal. Of workers in the state or collective sectors, 22 percent are employed informally, while the percentage rises to 84 percent for workers in the private sector. Informal employment is also more likely for women, for the very young and the very old, and among less educated workers.\100\ Workplace abuses also contributed to poor working conditions. During the first five months of 2010, 10 workers committed suicide at a Shenzhen factory compound owned by the Taipei-based Foxconn Technology Group, which manufactures electronic products for several foreign companies. Yang Jianchang, a member of the Shenzhen People's Congress, blamed authorities for failing to intervene, saying that ``the union and officials . . . actually understand little about what the youths really want and their sufferings.'' \101\ Nine labor advocates embedded themselves in the factory as workers and later published a report detailing that Foxconn ``uses military style management,'' that its ``managers always scold workers,'' and that the company sometimes forces workers to sign contracts against their will.\102\ In response to the worker suicides and criticism from Chinese and foreign media as well as non- governmental labor organizations that Foxconn's factory ``remains a typical sweatshop . . . that overlook[s] the basic needs of their workers for the sake of profit,'' the company in late May 2010 agreed to double workers' wages to 2,000 yuan (US$294) per month.\103\ Wages During the Commission's 2010 reporting year, minimum wages rose in 11 provincial-level areas across China. Shanghai, Guangdong, and Zhejiang have monthly minimum wage levels above the 1,000 yuan mark (US$148).\104\ Reports indicate that some cities proceeded to raise minimum wages because they struggled to compete for workers.\105\ A labor non-governmental organization also attributed the rise in wages to the sudden jump in prices at the end of 2009, when China's consumer price index increased 1.9 percent, year on year, in December.\106\ China's 1994 Labor Law guarantees minimum wages for workers and requires local governments to set wage standards for each region.\107\ China's Labor Contract Law (LCL) improves formal monitoring requirements by tasking local labor bureaus to monitor labor practices to ensure rates adhere to minimum wage standards.\108\ The law also imposes legal liability on employers who pay rates below minimum wage.\109\ In addition, the law guarantees minimum hourly wages for part-time workers.\110\ Illegal labor practices, however, continue to undermine minimum wage guarantees. Wage arrears remain a serious problem, especially for migrant workers. Subcontracting practices within industry exacerbate the problem of wage arrearages. When investors and developers default on their payments to construction companies, workers at the end of the chain of labor subcontractors lack the means to recover wages from the original defaulters. Some subcontractors neglect their own duties to pay laborers and leave workers without any direct avenue to demand their salaries. Kang Houming, a delegate representing migrants at the National People's Congress from Chongqing municipality, told a Hong Kong magazine that, as of March 2010, there has yet to be a ``fundamental solution to the wage arrears problems.'' \111\ The key concern is not only whether governments will raise minimum wages, but also whether local governments will enforce new wage levels even as enterprises complain that the increased costs make them less competitive, and as some local interests take abusive action against migrant workers who demand back wages.\112\ In February 2010, in a case reflective of the general problem, a group of migrant workers at a power plant in Chongqing municipality's Wuxi county went to the Sinohydro Foundation Engineering Company, which oversaw the operations at the Wuxi plant, to demand their back wages after their supervisor ``went missing'' during the Spring Festival.\113\ The workers, who staffed two 12-hour shifts daily without written contracts, reportedly were later beaten by a gang of people wielding knives and sticks.\114\ Working Hours China's Labor Law mandates a maximum 8-hour workday and 44- hour average workweek.\115\ Forced overtime and workdays much longer than the legally mandated maximum are not uncommon, especially in export sectors, where some employers avoid paying overtime rates by compensating workers on a piece-rate basis with quotas high enough to avoid requirements to pay overtime wages.\116\ According to a report, suppliers in China avoid exposing themselves to claims of requiring illegal long hours by hiring firms that help them set up double booking systems for foreign importers who aim to adhere to Chinese rules and regulations. Such firms not only help suppliers prepare books to pass audits, but also coach managers and employees on how to respond to auditors' questions.\117\ Disputes over working hour abuses continued to be a major reason for labor disputes, especially disputes involving overtime or wage arrears related to past abuses and to struggling enterprises avoiding legal responsibilities to cut costs.\118\ China's Labor Dispute Mediation and Arbitration Law lengthened the time allowed to file a dispute and also put more evidentiary responsibility on the employer to demonstrate that overtime abuses had not occurred, which also resulted in an increase in the number of workers seeking compensation.\119\ Many workplaces reduced hours and salaries in the wake of the global economic crisis, which led to workers' complaints over minimum wage violations.\120\ Occupational Safety LEGAL FRAMEWORK AND DEVELOPMENTS China's Law on Safe Production, which took effect in 2002, delineates a set of guidelines to prevent ``accidents due to lack of work safety'' and to keep ``their occurrence at a lower level, ensuring the safety of people's lives and property and promoting the development of the economy.'' \121\ Specifically, the law charges principal leading members of production and business units to educate workers on safety issues and formulate rules of operation; \122\ protects workers' right to speak up and address work safety issues; \123\ sets forth trade unions' right to pursue workers' complaints over safety issues; \124\ tasks local governments to inspect, examine, and handle violations and potential dangers in a timely manner; \125\ and lays out the consequences for noncompliance.\126\ In 2009, there were 2,631 reported deaths in Chinese mines, representing a decrease from a high of 6,995 in 2002.\127\ Workers in China, however, continued to face persistent occupational safety issues during this reporting year. Miners are limited in their ability to promote safer working conditions in part due to legal obstacles to independent organizing. Collusion between mine operators and local government officials reportedly remains widespread. As one Hong Kong-based labor advocacy group explained to Time Magazine, ``[T]he people who are tasked with doing the investigations [of mine accidents] are the same people who have financial interests in the mines themselves.'' \128\ The China Daily reported that even though the ``heaviest fine specified by the national safety laws amounts to 2 million yuan (US$294,117) . . . not a single coal mine in China has ever incurred such a heavy fine for safety violations,'' and ``fines of 1 million yuan (US$147,058), which have been seen in some areas, are regarded as harsh enough.'' \129\ During this reporting year, the Chinese government continued to control media coverage of workplace accidents. WORKERS COMPENSATION One major problem facing injured workers or their family members pushing to receive timely compensation is China's ``complicated and incredibly time consuming'' work-related injury compensation procedure; in some instances, cases can last for decades.\130\ It is difficult to determine the total number of cases in part because many cases never are reported due to the convoluted nature of the compensation process.\131\ Moreover, Chinese courts and doctors do not routinely recognize some occupational diseases; while traumatic work injuries and deaths have been widely recognized and reported, experts on workers compensation litigation in China report failures to diagnose diseases like silicosis, and failure to recognize that the condition may be caused by exposure at work.\132\ As a result, the extent of work-related diseases like silicosis remains difficult to measure and report and, therefore, in many cases goes largely unrecognized. A Chinese worker stricken with an occupational illness or injury must undergo a ``diagnosis . . . conducted by medical and health institutions approved by the public health administration departments of the people's governments at or above the provincial level.'' \133\ The worker, or a close relative, must then apply to the local human resources and social security bureau within one year after the issuance of the diagnosis in order to receive an official certification of work-related injury/disability.\134\ This certification, the ``key document'' that enables ``official classification of incapacity,'' allows the worker to apply for benefits, which is also a complicated process.\135\ If the worker's application is rejected, he or she must appeal to the labor dispute arbitration committee, though its rulings are nonbinding. Only if the committee makes a decision that is unfavorable can the worker proceed with civil litigation.\136\ The process becomes even more problematic given the reality ``faced by migrant workers, most of whom will have already left their jobs and moved back home by the time clinical symptoms of the disease become apparent.'' \137\ Central government directives encourage local governments to pressure bereaved families into signing compensation agreements and to condition out-of-court compensation settlements on forfeiture by bereaved families of their rights to seek further compensation through the court system.\138\ There have been reports of local officials preempting class actions by prohibiting contact among members of bereaved families in order to forestall coordination.\139\ In December 2009, Li Liang, a 26-year-old engineer, collapsed on a factory bus and died in Suzhou city ``amid a spate of workers falling seriously ill from chemical poisoning.'' \140\ The factory, which produces electronic touch screens for several foreign companies, reportedly assigned workers to clean the screens with the toxic solvent n-hexane ``in violation of local codes and without proper safety equipment.'' \141\ After Li's death, 2,000 workers went on strike to demonstrate their concerns over prolonged exposure to the chemical. Officially, management told other employees that Li had died of a heart attack. Authorities were never able to determine Li's cause of death, since management persuaded the victim's father to have the body cremated before the family received medical expenses and humanitarian aid from the company, some of which came from Li's coworkers.\142\ Child Labor Child labor remained a persistent problem during this reporting year.\143\ As a member of the International Labour Organization (ILO), China has ratified the two core conventions on the elimination of child labor.\144\ China's Labor Law and related legislation prohibit the employment of minors under 16 years old,\145\ and both national and local legal provisions prohibiting child labor stipulate a series of fines for employing children.\146\ Under China's Criminal Law, employers and supervisors face prison sentences of up to seven years for forcing children to work under conditions of extreme danger.\147\ Systemic problems in enforcement, however, have dulled the effects of these legal measures. The overall extent of child labor in China is unclear in part because the government classifies data on the matter as ``highly secret.'' \148\ Child laborers reportedly work in low-skill service sectors as well as small workshops and businesses, including textile, toy, and shoe manufacturing enterprises.\149\ Many underage laborers reportedly are in their teens, typically ranging from 13 to 15 years old, a phenomenon exacerbated by problems in the education system and labor shortages of adult workers.\150\ In April 2010, the National Labor Committee, a New York-based nonprofit that focuses on U.S. companies' treatment of foreign workers, alleged that two factories in Dongguan city, Guangdong province that manufacture products for Microsoft recruited ``hundreds--even up to 1,000--`work study students' 16 and 17 years of age, who work 15-hour shifts, six and seven days a week.'' \151\ They were required to produce 2,000 computer mice per shift and are ``prohibited from talking, listening to music or using the bathroom during working hours.'' \152\ The report also found that: These hours and conditions are blatantly illegal. Under China's laws, 14- and 15-year-olds may not work, while 16- and 17-year-olds are classified as ``non-adult'' workers, who cannot work more than eight hours a day.\153\ Investigators working for Dongguan's Human Resources Bureau told the Associated Press that factories are allowed to hire workers between 16 and 18 years of age as long as management registers them with the authorities.\154\ However, KYE factories reportedly hired 385 such workers, of which 326 were not ``properly registered.'' \155\ A company representative reportedly acknowledged management's failure to register these workers, and reportedly said they ``would now fix the problem.'' \156\ The Chinese government, which has condemned the use of child labor and pledged to take stronger measures to combat it,\157\ permits ``work-study'' programs and activities that in practical terms perpetuate the practice of child labor, and are tantamount to official endorsement of it.\158\ National provisions prohibiting child labor provide that ``education practice labor'' and vocational skills training labor organized by schools and other educational and vocational institutes do not constitute use of child labor when such activities do not adversely affect the safety and health of the students.\159\ The Education Law supports schools that establish work-study and other programs, provided that the programs do not negatively affect normal studies.\160\ These provisions contravene China's obligations as a Member State to ILO conventions prohibiting child labor.\161\ In 2006, the ILO's Committee of Experts on the Applications of Conventions and Recommendations ``expresse[d] . . . concern at the situation of children under 18 years performing forced labor not only in the framework of re-educational and reformative measures, but also in regular work programs at school.'' \162\ Prison Labor During this reporting year, the Commission monitored reports on prison labor in China.\163\ The export of prison products from China reportedly continues despite China's Provisions Reiterating the Prohibition on the Export of Products Made by Prisoners Undergoing Reeducation Through Labor, which prohibit the export of such products.\164\ Media reports during the reporting year also have described the alleged export of prison labor from China to worksites in other countries operated by Chinese state-owned enterprises. Chinese prisoners reportedly have worked on housing and other infrastructure projects such as ports and railroads in Sri Lanka and the Maldives, among other places.\165\ China's Law on the Control of Exit and Entry of Citizens states that ``approval to exit from the country shall not be granted to . . . convicted persons serving their sentences.'' \166\ Despite the existing law, however, and despite Chinese officials' encouragement for companies to increase the number of local residents that they hire and train in foreign countries, one academic who follows the issue wrote that it is the operating practice of some Chinese companies on overseas projects to ``keep the number of local workers to a bare minimum and to bring in much of the work force from China, including convicts `freed' on parole . . . .'' \167\ A Ministry of Commerce official dismissed such allegations made in media reports, telling People's Daily that, based on China's own laws and regulations, ``enterprises engaged in foreign contracted projects . . . must . . . assign employees who . . . have no misconduct record or criminal record to work overseas.'' \168\ ------------------------------------------------------------------------ China's International Commitments to Worker Rights ------------------------------------------------------------------------- As a member of the International Labour Organization (ILO), China is obligated to respect a basic set of internationally recognized labor rights for workers, including freedom of association and the ``effective recognition'' of the right to collective bargaining.\169\ China is also a permanent member of the ILO's governing body.\170\ The ILO's Declaration on the Fundamental Principles and Rights at Work (1998 Declaration) commits ILO members ``to respect, to promote and to realize'' these fundamental rights based on ``the very fact of [ILO] membership.'' \171\ The ILO's eight core conventions articulate the scope of worker rights and principles enumerated in the 1998 Declaration. Each member is committed to respect the fundamental right or principle addressed in each core convention, even if that member state has not ratified the convention. China has ratified four of the eight ILO core conventions, including two core conventions on the abolition of child labor (No. 138 and No. 182) and two on non-discrimination in employment and occupation (No. 100 and No. 111).\172\ The ILO has reported that the Chinese government is preparing to ratify the two core conventions on forced labor (No. 29 and No. 105).\173\ On its face, Chinese labor law appears to incorporate some of the basic obligations of the ILO's eight core conventions, but, in practice, many of these obligations remain unfulfilled.\174\ Importantly, Chinese labor law does not incorporate basic obligations of the ILO's provisions relating to the freedom of association and the right to collective bargaining. The Chinese government is a state party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), which guarantees the right of workers to strike, the right of workers to organize independent unions, the right of trade unions to function freely, the right of trade unions to establish national federations or confederations, and the right of the latter to form or join international trade union organizations.\175\ In ratifying the ICESCR, the Chinese government made a reservation to Article 8(1)(a), which guarantees workers the right to form free trade unions. The government asserts that application of the article should be consistent with Chinese law, which does not allow for the creation of independent trade unions.\176\ ------------------------------------------------------------------------ Criminal Justice Introduction During the Commission's 2010 reporting year, international and Chinese domestic media have documented a range of new as well as ongoing problems within China's justice system, including detention abuses, coerced confessions, and police torture. Closed trial proceedings and trial procedures that unfairly disadvantage criminal suspects and defendants continue to contravene protections in both Chinese and international law. Public security administrative powers remain unchecked despite growing media coverage and public controversy. Chinese and international media reported on various criminal justice policy developments during this reporting year, including reforms to stem the use of coerced confessions, to limit the number of executions, and to address public dissatisfaction with public security authorities.\1\ While there were some potentially positive developments, the Chinese criminal justice system in practice consistently contravened domestic legal protections and continued to fall short of upholding international human rights standards. The Chinese government adopted legislation and regulations that signal new challenges for human rights advocates and reformers within the justice system. The National People's Congress, for instance, passed new amendments to tighten controls over communications under its state secrets law and increased restrictions on lawyers and law firms that work on politically sensitive cases or cases involving mass incidents.\2\ The rights of criminal suspects and defendants continued to fall far short of the rights guaranteed in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, as well as rights provided for under China's Criminal Procedure Law and Constitution.\3\ Although China's 2009-2010 National Human Rights Action Plan (HRAP), released in April 2009, signaled the Chinese government's commitment to improving the ``process of law enforcement and judicial work,'' Chinese authorities have not implemented criminal justice provisions in the HRAP consistently.\4\ Abuse of Police Powers: Suppression of Dissent Chinese authorities' targeting of human rights advocates and defenders in the leadup to sensitive dates and events in 2009 continued through the 2010 reporting year. In the period surrounding sensitive events, such as the 60th anniversary of the founding of the People's Republic of China in October 2009, U.S. President Barack Obama's visit to China in November 2009, the annual meetings of the National People's Congress and the Chinese People's Political Consultative Conference (Two Sessions) in March 2010, the 21st anniversary of the 1989 Tiananmen protests, and the Shanghai 2010 World Expo, public security officers and unidentified personnel continued to use detention measures against human rights advocates, petitioners, and their families. Public security officers continued to engage in extralegal tactics such as harassment, assault, kidnappings, and illegal detention in order to punish Chinese citizens who expressed dissent or sought to defend their rights and the rights of others. Such arbitrary restrictions on personal liberty, freedom of expression, and freedom of peaceful assembly and association contravene the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, as well as China's Constitution.\5\ In September 2009, for example, prominent activist Qi Zhiyong said Chinese authorities placed him under home confinement and told him to leave Beijing prior to China's National Day parade.\6\ In the leadup to President Obama's visit to China in November 2009, Chinese law enforcement officials reportedly detained dozens of rights defenders and reform advocates.\7\ On November 13, 2009, public security officers took away Zhao Lianhai, the head of an advocacy group for parents of children sickened by melamine- tainted milk, searched his house, and confiscated personal property. When Zhao refused to comply with the public security officers because the summons did not specify a charge, the police officers added ``provoking an incident'' to the summons.\8\ In February 2010, before the Two Sessions, Beijing and Shanghai police forcefully removed Mao Hengfeng, a longtime Shanghai petitioner, from her Beijing hotel room; subsequently, the Shanghai Municipal Reeducation Through Labor Committee ordered her to serve 18 months of reeducation through labor for her involvement in a protest that occurred outside a Beijing court in December 2009.\9\ [See box titled Liu Xiaobo in Section II--Freedom of Expression.] During the Two Sessions in early March 2010, the non-governmental organization Chinese Human Rights Defenders reported that public security officers detained more than 20 petitioners.\10\ Chinese police similarly acted to limit free speech and activism in the period before and during the Shanghai Expo. Shanghai public security officers reportedly detained, threatened, and placed under surveillance housing petitioners that sought to exercise their constitutional right to petition. [For more information on the Shanghai Expo, see Section III--Access to Justice--Abuse of Petitioners.] In early April 2010, Shanghai police sent human rights advocates notices warning them not to go near the Shanghai Expo.\11\ In June 2010, Human Rights in China, a U.S.- based non-governmental organization, reported that police authorities detained and abused members of the Guizhou Human Rights Symposium for planning to commemorate the 21st anniversary of the Tiananmen protests.\12\ Later in June 2010, state security officers reportedly abducted Beijing-based human rights advocate Liu Dejun and took him to the outskirts of Beijing, where he was beaten and threatened before being left on the side of the road.\13\ Lawyers and rights defenders who took on ``sensitive'' cases or who became involved with ``sensitive'' issues during the past year were harassed, abducted, or beaten by public security officers or unidentified personnel working under the direction of, or with the knowledge of, the public security bureau. In November 2009, public security officers detained Jiang Tianyong, a prominent human rights lawyer, for more than 13 hours, after he and other activists gathered outside the U.S. Embassy for a possible meeting with President Obama.\14\ In January 2010, Chinese lawyers met with imprisoned human rights lawyer Wang Yonghang who defended Falun Gong prisoners and verified reports that authorities beat Wang on three occasions following his kidnapping by plainclothes police officers.\15\ Prominent human rights lawyer Gao Zhisheng resurfaced in late March after ``disappearing'' into what experts on the case describe as official custody for more than a year, but news outlets reported that Gao once again ``disappeared'' in late April.\16\ [For more information, see Section III--Access to Justice--Human Rights Lawyers and Defenders.] Pretrial Detention and Prisons: Torture and Abuse in Custody Although China officially claims to have outlawed torture in 1996 with amendments to the Criminal Procedure Law and the Criminal Law, torture and abuse by law enforcement officers remain widespread. In November 2008, the UN Committee against Torture (UNCAT) stated it ``remains deeply concerned about the continued allegations . . . of routine and widespread use of torture and ill-treatment of suspects in police custody, especially to extract confessions or information to be used in criminal proceedings.'' \17\ While the Chinese government objected to the UNCAT report's findings in its November 2009 followup report, over this reporting year, the Commission observed cases of alleged torture during pretrial detention and the continued reporting of suspicious deaths in detention centers.\18\ Despite the government's public efforts to combat the practice of torture, international media, domestic news sites, and non-governmental organizations have documented ongoing problems of police torture and other forms of police mistreatment. Public security officers have allegedly employed various torture measures, including beatings, electric shock, cigarette burnings, and sleep deprivation.\19\ In December 2009, the Yancheng Evening News reported that 19 out of 26 suspects in Chongqing municipality's ``anticrime'' crackdown alleged that police used torture to extract confessions.\20\ In February 2010, a Dahe Net article (reprinted in the Global Times, which operates under the official People's Daily) reported that the Mengzhou Municipal People's Court sentenced three police officers to varying periods of fixed-term imprisonment or to suspended sentences for using torture to extract a confession after the officers ruptured a suspect's bladder with tear gas canisters.\21\ In May 2010, environmental activist Wu Lihong described his mistreatment in prison to international reporters: ``They used tree branches to whip my head, burned my hands with cigarettes and kicked and beat me until my arms and legs were swollen and my head was spinning.'' \22\ [For more information, see Section II--Climate Change and the Environment.] In a related case, Zhu Mingyong, a lawyer for alleged Chongqing criminal syndicate boss Fan Qihang, made public secret recordings of his client detailing numerous forms of torture in July 2010, after submitting recordings and pictures documenting Fan's torture to the Supreme People's Court for review.\23\ During this reporting year, an earlier case of torture emerged, sparking national interest in the justice system's overreliance on confessions in criminal trials. In May, the China Daily reported that officials in Shangqiu city, Henan province, admitted police officers had tortured criminal suspect Zhao Zuohai into confessing to a murder.\24\ Zhao, who spent 11 years in prison before being released after the supposed victim reappeared in late April, was reportedly beaten and forced ``to stay awake for more than 30 days'' during the interrogation process.\25\ Days after his release, the Henan High People's Court acquitted Zhao in a retrial, and the Shangqiu Intermediate People's Court awarded Zhao 650,000 yuan (US$96,000) in compensation. In June, the Procuratorial Daily reported that the ``wrongful case of Zhao Zuohai'' had sparked a ``great amount of public concern,'' particularly over the causes behind such an injustice.\26\ A May 2010 China Daily editorial advocated for greater oversight to prevent future abuses, stating, ``The police ought to police themselves to rid its [sic] reputation of such taints.'' \27\ Chinese print and online media outlets have continued reporting on several instances of ``bizarre'' or ``unnatural'' detention deaths over the year, which, according to the China Daily, have reportedly ``sparked nationwide discussion about inmates' human rights and the proper management of detention houses.'' \28\ In news reports and online forums, the detention deaths received high-profile monikers, following the widely reported ``hide-and-seek'' death of detainee Li Qiaoming in February 2009.\29\ During this reporting year, the Chinese media reported on unnatural death cases and official explanations that reportedly captured public attention, including deaths linked to ``taking a shower,'' ``drinking hot water,'' ``falling in the bathroom,'' ``hanging by shoelaces,'' and ``having a nightmare.'' \30\ According to a June Zhejiang Daily report, ``the naming convention[s]'' related to these official explanations that have emerged are a ``glib poke at the official line that time and again accompanies these tragedies, a line that clumsily obfuscates the most commonly suspected cause of the deaths, which is abuse at the hands of detention center personnel.'' The reports of unnatural deaths have shaken public confidence in China's judicial system, according to various media reports.\31\ In March 2010, Minister of Public Security Meng Jianzhu addressed the controversy, urging reform and stating that the unnatural deaths have ``seriously harmed the public's confidence in law enforcement by police authorities.'' \32\ During this reporting year, Chinese authorities announced new measures intended to limit inmate abuse and police torture by improving the criminal justice system. At the end of May, the Supreme People's Court, the Supreme People's Procuratorate, and the Ministries of Public Security, State Security, and Justice released two evidence guidelines that prohibit the use of illegally obtained evidence to convict defendants.\33\ In May, the Ministries of Public Security, Supervision, and Human Resources and Social Security jointly issued the first police discipline regulation, which went into effect in June 2010 and details punishments for 76 types of misconduct including sanctioning inmates to mistreat suspects.\34\ The amended State Compensation Law, which enters into effect in December 2010, stipulates that when a detainee dies or is incapacitated, the authorities shall be required to provide evidence proving they are not responsible.\35\ Arrest and Trial Procedure Issues ACCESS TO COUNSEL The right to legal counsel in criminal trials is not a guaranteed legal right for all defendants in China, even though China's Criminal Procedure Law (CPL) and Lawyers Law provide guidelines for legal representation in criminal trials.\36\ Many criminal defendants reportedly do not have access to legal assistance. This is counter to provisions under Article 14(3)(d) of the International Covenant on Civil and Political Rights, which China signed in 1998 but has not yet ratified.\37\ Most Chinese defendants confront the criminal process without the assistance of an attorney.\38\ According to a survey reported on Qianlong Web, lawyers participated in criminal defense in approximately 30 percent of criminal cases nationally, and in Beijing, the rate of legal representation was less than 10 percent.\39\ In March 2010, All China Lawyers Association (ACLA) President Yu Ning told China Newsweek that criminal defense may be in decline since many Chinese lawyers seek more profitable legal fields and hope to avoid the risks associated with criminal law.\40\ Chinese criminal lawyers continue to confront obstacles in handling cases, most notably in managing the ``three difficulties'' (san nan) of criminal defense--gaining access to detained clients, reviewing the prosecutors' case files, and collecting evidence.\41\ Although authorities amended the 2008 Lawyers Law to address these longstanding issues, ACLA Vice President Wang Junfeng said in December 2009 that, based on national ACLA surveys conducted in late 2009, the amended Lawyers Law had not ``fundamentally resolved'' the ``three difficulties'' and that some lawyers expressed concerns that the amended Lawyers Law posed new difficulties for the legal profession.\42\ Many lawyers in the survey expressed frustration with justice officials for failing to honor new rights under the Lawyers Law, due to incongruence between the CPL and the revised Lawyers Law.\43\ A senior lawyer with the ACLA, Li Guifang, told the China Daily in June 2010 that it is ``almost impossible'' for criminal defense attorneys to meet with their clients within the first 48 hours of detention--a period he characterized as ``a crucial time in getting to grips with a case and vital for warning a suspect of his legal rights and responsibilities.'' \44\ Chinese lawyers also remain vulnerable to prosecution under controversial Article 306 of China's Criminal Law (commonly referred to as the ``lawyer-perjury'' statute), a legal provision on evidence fabrication that specifically targets defense attorneys.\45\ Because of the risks presented by Article 306, most defense attorneys reportedly engage in passive defense: they focus on finding flaws and weaknesses in the prosecutors' evidence rather than actively conducting their own investigations.\46\ Human rights groups and Chinese legal experts estimate that more than 100 defense attorneys have been charged with evidence fabrication under Article 306 and suspect the statute has had a ``chilling effect for defense lawyers, who may decide to defend clients less forcefully than they otherwise would for fear of displeasing the prosecution.'' \47\ According to a March Legal Daily article, Article 306 may be responsible for declining rates of criminal representation: ``Because of Article 306, an increasing number of lawyers are leaning toward noncriminal procedure professions, which has led to an increasing decline in the rate of criminal defense.'' \48\ In late 2009 and early 2010, the case against prominent Beijing-based lawyer Li Zhuang and its handling figured prominently in national Chinese news and in ongoing debates over Article 306.\49\ In early February 2010, the Chongqing No. 1 Intermediate People's Court sentenced Li to a prison term of one year and six months for falsifying evidence and inciting others to bear false witness (under Article 306) in what reportedly was widely regarded as political targeting.\50\ FAIRNESS OF CRIMINAL TRIALS Chinese lawyers and criminal defendants continue to face numerous obstacles in defending the right to a fair trial. Closed trials, political influence, and a lack of transparency in judicial decisionmaking remain commonplace within the justice system. Although China has signed and committed to ratify the International Covenant on Civil and Political Rights (ICCPR), Chinese officials routinely sentence defendants in trials that fall far short of fair trial standards set forth in the ICCPR. During this reporting year, the Commission has observed several notable cases in which Chinese judicial authorities failed to uphold defendants' right to a fair trial in accordance with domestic and international law. In November 2009, the Wuhou District People's Court in Chengdu city, Sichuan province, sentenced veteran activist Huang Qi, whose human rights Web site advocated on behalf of grieving parents after the May 12 Sichuan earthquake, to three years' imprisonment for violating China's broad and vague ``state secrets'' legal framework.\51\ Throughout the legal process, owing to the broad definition of state secrets, authorities granted Huang's lawyers, witnesses, and associates limited access to evidence.\52\ [For more information see Section II--Freedom of Expression-- Abuse of Vague Criminal Law Provisions--Other Crimes: Splittism, State Secrets, and Slander.] On December 25, 2009, a Beijing court sentenced prominent intellectual Liu Xiaobo to 11 years in prison for ``inciting subversion of state power'' for his role in organizing Charter 08, a treatise advocating political reform and human rights, and publishing six articles online.\53\ Among various procedural violations, Liu was denied the right to hire the attorney of his choice. Liu's defense attorneys were also denied the right to present their opinions, as required by law, to prosecutors before the indictment was issued and were not given adequate time to prepare for trial.\54\ [For more information see box titled Liu Xiaobo in Section II--Freedom of Expression.] In June 2010, the Yanqi County People's Court, located in Bayinguoleng (Bayangol) Mongol Autonomous Prefecture, Xinjiang Uyghur Autonomous Region, sentenced Karma Samdrub, a Tibetan environmentalist, to 15 years' imprisonment for ``illegally excavating and robbing cultural sites or ancient tombs,'' charges that were initially dropped in 1998.\55\ Karma Samdrub's lawyer, Pu Zhiqiang, called the trial a ``miscarriage of justice'' due to a number of procedural irregularities: ``evidence was tampered with, inadequate translation was provided and the judge refused to look into [Karma Samdrub's] claims of beatings and sleep deprivation while in custody.'' \56\ [For more information see Section V--Tibet--Political Imprisonment of Tibetans: Law as a Tool of Repression.] Arbitrary Detention Arbitrary detention in China takes many forms and continues to be used widely by Chinese authorities to quell local petitioners, government critics, and rights advocates. Arbitrary detention includes various forms of extralegal detention, such as ``black jails'' (hei jianyu); ``soft detention'' (ruanjin), a form of unlawful home confinement; reeducation through labor, an administrative detention of up to four years for minor crimes; and forcible detention in psychiatric hospitals for nonmedical reasons. Another form of extralegal detention--shuanggui (often translated as ``double regulation'' or ``double designation'')--is used by the Communist Party for investigation of Party members, most often officials in cases of suspected corruption. The UN Working Group on Arbitrary Detention defines the deprivation of personal liberty to be ``arbitrary'' if it meets one of the following criteria: (1) there is clearly no legal basis for the deprivation of liberty; (2) an individual is deprived of his liberty for having exercised rights guaranteed under the Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR); or (3) there is grave noncompliance with fair trial standards set forth in the UDHR and other international human rights instruments.\57\ In addition, many forms of arbitrary detention also violate China's own laws.\58\ ``SOFT DETENTION'' AND CONTROL During the Commission's 2010 reporting year, the Commission noted various reports of law enforcement authorities using ``soft detention'' and surveillance measures to control and intimidate Chinese citizens. The ``soft detention'' that numerous human rights defenders, advocates, and their family members are subjected to has no basis in Chinese law and constitutes arbitrary detention under international human rights standards. In late April 2010, for example, public security officers held housing rights advocates and victims of forced evictions under ``soft detention'' at their homes in order to prevent them from drawing attention away from the Shanghai 2010 World Expo.\59\ In June, the South China Morning Post reported on New York University Law School Professor Jerome Cohen's visit with criminal lawyer Zheng Enchong, who has remained under ``soft detention'' since June 2006.\60\ In Cohen and Yu-Jie Chen's South China Morning Post editorial on the meeting, the authors described the circumstances behind Zheng's house arrest: Around the clock, 12 guards, including uniformed police, plain-clothes public security officials and their hired hands, take turns manning the outer gate, building entrance and hallway outside Zheng's apartment. Strategically posted surveillance cameras ensure that no one in the vicinity can escape police eyes. Zheng, who is 60, only leaves when summoned by police and has been summoned at least 77 times since 2006 for interrogations that are intimidating and occasionally physically abusive. His home has been searched 11 times, and five computers have been confiscated. He generally has no Internet access, and his phone is monitored when not disconnected.\61\ Petitioners and activists across China continue to face the threat of police surveillance and home confinement for criticizing government policies, challenging officials, and advocating for human rights. Huang Yuqin, a Shanghai resident whose home was demolished on March 2, 2010, was placed under ``soft detention'' and prevented from leaving her home on at least one occasion.\62\ Public security officers placed Beijing activists Cha Jianguo and Gao Hongming, founders of the China Democracy Party, under ``soft detention'' in late January 2010. Although police stationed at Cha and Gao's apartment blocks did permit them to leave their homes, the police directed Cha and Gao to travel in police vehicles.\63\ In July 2010, authorities placed a number of civil society activists under ``soft detention'' during German Chancellor Angela Merkel's visit to Beijing. Those who reportedly faced harassment or restrictions on movement included Yang Jing, Qi Zhiyong, Wang Debang, and Xu Yonghai.\64\ REEDUCATION THROUGH LABOR Public security officers continue to use the reeducation through labor (RTL) system to silence critics and to circumvent the criminal procedure process. RTL is an administrative measure that allows Chinese law enforcement officials to order Chinese citizens, without legal proceedings or due process, to serve a period of administrative detention of up to three years, with the possibility of up to one-year extension.\65\ While Chinese sources maintain that the RTL system has been established ``to maintain public order, to prevent and reduce crime, and to provide compulsory educational reform to minor offenders,'' RTL is used frequently to punish, among others, dissidents, drug addicts, petitioners, Falun Gong adherents, and religious practitioners who belong to religious groups not approved by the government.\66\ During this reporting year, the Commission observed numerous accounts of RTL orders violating the legal rights of Chinese citizens, specifically their rights to a fair trial and to be protected from arbitrary detention.\67\ In October 2009, the non-governmental organization Chinese Human Rights Defenders reported that the Shenyang RTL Committee ordered democracy advocate Sun Fuquan to serve one year and nine months of RTL in February 2009 for ``inciting subversion of state power'' and ``splittist speech'' by posting information online about the violent suppression of the 1989 Tiananmen protests.\68\ In March 2010, the Shanghai RTL Committee ordered Shanghai petitioner Mao Hengfeng to serve one year and six months of RTL for ``disturbing social order'' after she shouted slogans outside a Beijing court on December 25, 2009. On April 13, 2010, the Shanghai RTL Committee ordered Shanghai petitioner Chen Jianfang to serve one year and three months of RTL for committing ``acts disruptive to social order,'' after he participated in a peaceful protest outside of Peking University on April 17, 2009.\69\ Human rights advocates and legal experts within China have been calling for an end to RTL for decades. In 2008, another public call to end RTL came in the treatise Charter 08, which was signed initially by 303 Chinese intellectuals, human rights advocates, and others. The Charter states: ``All persons should be free from unlawful arrest, detention, summons, interrogation, and punishment. The system of reeducation through labor should be abolished.'' \70\ In March 2010, the Chairman of the National People's Congress Standing Committee, Wu Bangguo, announced that the Illegal Behavior Correction Law, which in recent years has been discussed as possibly replacing the RTL regulations, had been included in the 2010 legislative agenda.\71\ In 2010, two prominent Chinese legal scholars publicly debated abolishing and reforming the reeducation through labor system in a series of public opinion editorials.\72\ ``BLACK JAILS'': SECRET DETENTION SITES During this reporting year, Chinese authorities continued to use ``black jails'' (hei jianyu), secret detention sites established by local officials, to detain and punish petitioners who travel to Beijing and provincial capitals to voice complaints and seek redress for injustices. Inside the black jails, detainees are denied access to legal counsel and in most cases, contact with family and friends. A November 2009 Human Rights Watch (HRW) report detailed conditions at the black jails: ``Detainees are kept under constant surveillance, and subject to often arbitrary physical and psychological abuse including beatings, sexual violence, threats and intimidation.'' \73\ The Chinese government continues to deny the existence of black jails. In November 2009, Foreign Ministry spokesperson Qin Gang told reporters: ``I can assure you there are no so- called black jails in China. We put people first, and we are an administration for the people.'' \74\ Still, the existence of black jails of various forms throughout China is well documented by international organizations and, increasingly, domestic media. Black jails arose as a substitute for the dismantled ``custody and repatriation'' (shourong qiansong) centers that had been used to detain petitioners and undocumented migrants until the centers were abolished in 2003.\75\ Law professor and human rights defender Xu Zhiyong defines black jails as: places used by provincial governments to illegally imprison petitioners; we call them black jails because, first, they are just like prisons--established by the government to restrict people's freedom--and, second, they are ``black'' because they have no basis in any laws or regulations and are totally illegal.\76\ According to the HRW report on black jails, guards at the detention centers ``routinely subject [the] detainees to abuses including physical violence, theft, extortion, threats, intimidation, and deprivation of food, sleep, and medical care.'' \77\ During this reporting year, the Commission observed reports by international and domestic Chinese media organizations on black jails, as well as on the network of personnel that intercept and abuse petitioners.\78\ In one prominent example of domestic reporting, a Southern Weekly article reported in August 2009 on the case of 21-year-old Li Ruirui from Anhui province.\79\ According to the report, a black jail security guard publicly raped Li after she had been detained for several days in a black jail in the Juyuan Hotel in Beijing. In December, a court in Beijing ordered the guard Xu Jian to serve eight years in prison and pay 2,300 yuan (US$337) in compensation.\80\ In late November, China's Oriental Outlook Magazine, published by the official Xinhua news agency, provided an investigative report on the network of black jails, stating that they ``seriously damage the government's image.'' \81\ The report noted that, at certain times of the year, local governments employ over 10,000 black jail ``retrievers'' to abduct citizens and pay fees from 100 to 200 yuan (between US$15 and US$30) per person per day of detention. The Oriental Outlook report stated there were at least 73 black jails in Beijing alone. Chinese human rights observers stated that this was the first time an official, high-level magazine acknowledged the existence of black jails; however, the article did not appear to influence official statements on the existence of black jails or prompt official calls to abolish the detention centers.\82\ SHUANGGUI: EXTRALEGAL INVESTIGATORY DETENTION OF PARTY MEMBERS During this reporting year, the Chinese media reported on the Communist Party's use of shuanggui (often translated as ``double regulation'' or ``double designation''), a form of extralegal detention that involves summoning Communist Party members under investigation to appear at a designated place at a designated time. Shuanggui investigations often precede formal Party disciplinary sanctions or the transfer of suspects to law enforcement agencies, if there has been a violation of the criminal law. Although those under investigation are reportedly held under conditions preferable to police detention, in 2006, Professor Jerome Cohen pointed out that the suspects are ``generally held incommunicado and denied some of the protections to which criminal suspects are entitled at least in principle.'' \83\ Shuanggui has no basis in Chinese law and violates protections found in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.\84\ Communist Party discipline inspection commissions continued to use shuanggui during the past year to detain high-ranking officials in the Communist Party's ongoing battle against corruption. In October 2009, for example, Ou Shaoxuan, a former top-level official of the Guangxi Zhuang Autonomous Region High People's Court, was put under shuanggui for alleged corruption in a property dispute.\85\ The China Daily reported in late April 2009 that