The protection of human rights in China has been a topic of international concern since the crackdown on Tiananmen Square during the night between 3 and 4 June 1989. Before that night, violations of human rights in China had not been an issue at the international level.Footnote ¹ In the early 1980s, the world was welcoming China back into the international community after 30 years of isolation during the Mao era and hoping for a share in the fast-growing Chinese market. But 1989 changed the picture of China overnight. The Chinese leadership was met with harsh criticism and sanctions and responded with equally harsh denial and verbal counter-attacks. China also responded by beginning to issue Human Rights White Papers, explaining its policy and defending human rights protection in the country. European countries, in co-sponsorship with the United States, tried unsuccessfully to get a resolution on the human rights situation in China adopted by the UN Human Rights Commission in Geneva.

The Chinese side wanted to avoid worldwide criticism and lobbied intensively for a no-action motion.Footnote ² After several years of diplomatic manoeuvring in the Human Rights Commission, a new strategy was pursued and the EU–China human rights dialogue began to take place regularly in the autumn of 1997. Attempts at setting up a regular dialogue had been made before, but were put on hold by the Chinese government in response to the EU co-sponsoring a resolution on China in the 1996 Commission on Human Rights. However, after several failed attempts, the last made by Denmark in early 1997, the European Union decided not to pursue the road of a China-resolution in the UN system. As memories of June Fourth faded and new lucrative business deals tempted several European countries,Footnote ³ the former unity of the European countries had disappeared. The EU cast a split vote in 1997 and has since refrained from sponsoring resolutions on China. Without a united front, a UN resolution was a no-go and could even harm individual member countries economically.

From then onwards, the EU has promulgated a policy of “constructive dialogue” met by criticism from domestic constituencies and international human rights organizations.Footnote ⁴ While the EU has, in its public statements through the years, maintained that the agreement to enter into a regular human rights dialogue with China did not preclude support for a resolution or, indeed, other diplomatic actions,Footnote ⁵ the Chinese Ministry of Foreign Affairs (MFA) has consistently stressed during official talks that it was only ready to conduct the dialogue if the EU did refrain from supporting a human rights resolution on China.Footnote ⁶ Therefore, the human rights dialogue can be viewed as a political deal and substitute for the resolution.

While the inception of the EU–China human rights dialogue has been covered by previous research,Footnote ⁷ this article intends to close a gap in scholarship on the topic by focusing on the actual conduct of the dialogue. The special characteristic of the EU–China communicative engagement on human rights is a three-tiered structure, in which the bilateral dialogue among officials is underpinned by legal seminars and technical co-operation projects. The major players are the Chinese government (with the MFA in the lead, joined by representatives from line ministries and commissions) and the EU (which is represented by various agents, including the Council of the European Union and the Council Secretariat, the rotating EU presidency and the European Commission, including both its regional desk covering Asia and the human rights unit) as well as academics and NGO representatives in both regions. Public information on the dialogue process is scarce and all details are classified. The authors draw on a series of confidential interviews as well as on personal experience gained through participation in legal seminars set up as part of the bilateral dialogue and in technical co-operation projects. The study is further informed by Katrin Kinzelbach's detailed reconstruction of the dialogue covering the period 1995–2009.Footnote ⁸ This article focuses on the interaction between the three levels and aims to investigate the merits and obstacles of this set-up. The article concludes with a discussion of how the dynamic of this interaction affects the collaboration between European and Chinese human rights experts.

The Dialogue Process: Two Aims, One Practice

The replacement of a resolution with a regular, confidential dialogue on human rights represents not only a policy shift for the EU but also a more general policy shift in the West's human rights policy vis-à-vis China in the mid to late 1990s. Australia, Brazil, Canada, Norway, Switzerland, Japan, Hungary and the United States all set up similar mechanisms at the end of the 1990s. Some EU member states also set up bilateral dialogues on rule of law and human rights alongside the EU initiative, including the United Kingdom, Sweden, Germany and the Netherlands.Footnote ⁹ At that time, Chinese efforts to promote human rights dialogues coincided with a development within the EU to incorporate human rights and democracy more systematically into its foreign policy. As early as March 1991, the European Commission adopted a “Communication on Human Rights, Democracy and Development Co-operation.” This highlighted the specific importance the EU attached to dialogue on human rights:

Ten years later, the EU issued its first official guidelines on human rights dialogues. This document describes the dialogue concept as an “instrument of the Union's external policy … an essential part of the European Union's overall strategy aimed at promoting sustainable development, peace and stability.”Footnote ¹¹ The objectives of the different dialogues vary. According to the 2001 Guidelines, their purpose may be “discussing questions of mutual interest and enhancing co-operation” or “registering the concern felt by the EU at the human rights situation in the country concerned.”Footnote ¹² In December 2008, the guidelines were updated. As per the update, the concrete issues to be discussed during the dialogues are determined on a case-by-case basis. Furthermore, the update states that:

In the case of the EU–China human rights dialogue, the Council issued specific benchmarks which confirm the EU's primary concern with civil and political rights.Footnote ¹⁴ According to a White Paper issued by the Chinese government on its relations with the EU, however, the objective of the EU–China human rights dialogue is of a rather different nature:

This statement performs three functions. First, it implicitly reminds the EU that China conducts the dialogue under the precondition that the EU will not support a resolution (this reminder is diplomatically coded in the phrase “appreciates the EU's persistent position for dialogue and against confrontation”). It also highlights that equality and mutual respect form the basis for dialogue, meaning that the human rights records of both dialogue counterparts should be discussed, not only the situation in China. Finally, it emphasizes co-operation on social and cultural rights as well as the rights of the “disadvantaged”; in practice co-operation projects have also been agreed on civil and political rights, particularly relating to the death penalty, torture prevention and criminal law reform. There is, nevertheless, a marked difference between the EU's and China's announced goals for the dialogue. While this appears particularly true when considering the ultimate political rationale that persuaded both sides to enter into the dialogue,Footnote ¹⁶ the two sides do not even agree on the substance, having announced publicly that they want to discuss rather different issues.

While there is, thus, no joint statement on the specific form and content of the dialogue, a consistent practice has emerged over the years. The present dialogue process was re-launched in autumn 1997 under the presidency of Luxembourg. Two meetings took place in 1997 between the Chinese Foreign Ministry, accompanied by representatives of select line ministries, and the EU Troika.Footnote ¹⁷ The dialogue meetings have since continued on a bi-annual basis, alternating between Beijing and the capital of the acting EU presidency. All details on the discussions are classified. Under the British presidency in the first half of 1998, the political dialogue was for the first time supplemented by a legal seminar. These seminarsFootnote ¹⁸ have also taken place bi-annually since then and are fully funded by the European Commission.

While the organizer on the Chinese side has remained the same over the years, namely the Law Institute of the Chinese Academy of Social Sciences (CASS), that on the European side has changed several times. From 1998 to 2001, the seminars were organized on a rotating basis by academic institutes from the country of the acting EU presidency. In December 2001, the Commission contracted the Irish Centre for Human Rights in Galway (ICHR) to co-ordinate an EU–China academic human rights network and to organize the seminars, a key concern at that time being the lack of continuity on the European side. Initially, however, this new set-up caused confusion and additional tension. According to an external evaluation of the seminars undertaken in 2003, the MFA in Beijing “viewed the new turn of events, with the Network taking on organizational responsibility of the Dialogue Seminar [on behalf of the EC] as a ‘privatization’ or ‘contracting out’ of intergovernmental meetings to NGO actors.”Footnote ¹⁹ This placed CASS in a difficult position: “In the absence of explicit MFA approval, CASS cautiously chose not to become involved in the logistics or sessions of the May 2002 Dialogue Seminar.”Footnote ²⁰ Eventually, agreement on the new set-up was found, notably by reassuring the MFA in Beijing that it would be fully consulted on the substance and participants of the seminars. In a joint statement released after the Fifth EU–China Summit, both sides declared that they welcomed the new EU–China network.Footnote ²¹

In 2005, however, the Commission awarded the contract for the seminars to the Belgium-based firm CECOFORMA, a vocational training company specializing in the area of health, not human rights. This company organized the seminars on behalf of the Commission in 2005 and 2006. Under the German and Portuguese presidencies in 2007, the seminar series was interrupted by the Chinese MFA in an express protest against individual NGO representatives invited by the EU, notably from the organizations Human Rights in China, the China Labour Bulletin and the Dui Hua Foundation. Negotiations on NGO participation in the seminars have always been thorny because the EU usually tried to secure the participation of highly specialized and well connected human rights activists focusing on China while the Chinese MFA tried to prevent their participation. The conflict climaxed in 2007, where a seminar scheduled to take place in Berlin was called off at the last minute, after all participants had already assembled.Footnote ²² This escalation was unprecedented, although the participation of Human Rights in China Director Sharon Hom, in particular, had already led to objections from China and almost resulted in her arrest by the Beijing State Security Bureau at a 2005 session of the seminar.Footnote ²³

The seminars were resumed under the Slovenian presidency in the first half of 2008, after the EU had in effect ceded to China's demands regarding NGO participants. The Commission then issued a tender for the future organization of the seminars and in 2009 the ICHR was again charged to organize them. Explicitly stated in the Commission's call for proposals was that the seminars produce joint recommendations.Footnote ²⁴ This aim leads to quite a lot of friction, as discussed below. In addition, the revived academic network again became a matter of contestation between the Commission and the MFA in Beijing, putting CASS in the same uncomfortable position it had already experienced in 2002. The MFA in Beijing made it clear to all sides that it intended to continue overseeing the seminars, including the selection of topics and participants. This position underscored that the legal seminars were viewed by the Chinese government not as an academic gathering of experts but as a bilateral, if informal and low-key, meeting.

More independent from formal diplomatic channels are the co-operation projects, which are of varied nature and cover a whole range of human rights issues. They are funded not only by the European Commission but often also by the national MFAs or development agencies in various European member states, if not by private national or international foundations. There is no link between them and co-ordination is unsystematic and accidental. In Beijing a series of donor meetings (not restricted to European projects) on law and rights issues are convened at irregular intervals and with different agendas. As participation is voluntary and informal, not all projects are discussed, but they give a rough picture of what is going on in China in the field of human rights projects.

To what extent co-operation projects form part of the dialogue set-up remains ambiguous. There are no official announcements on this aspect from either of the dialogue partners. The 2008 update of the EU Guidelines on Human Rights Dialogues states that some dialogues seek to enhance human rights co-operation, but it does not state which of the EU's dialogues actually aim to do so.Footnote ²⁵ Interviews with EU officials have revealed that there is no consensus within the EU on this aspect. Some see the technical co-operation projects in China as being linked to the dialogue process, while others do not. Those that do see a link perceive it to be of varying quality, some identifying operational linkages where the dialogue serves as a forum to discuss new projects as well as implementation obstacles, others viewing the link at a more strategic level with the political dialogue and the technical co-operation projects pursuing the same aims but through different means. According to a 2007 statement by Commissioner Ferrero-Waldner in the European Parliament, the technical co-operation projects are perceived as a tangible result of the dialogue: “The dialogue has also allowed for the implementation of a number of co-operation projects in the field of the rule of law.”Footnote ²⁶ Former Commissioner Christopher Patten made a similar statement in 2000: “Of course the dialogue has enabled us to identify and implement EU co-operation programmes in the human rights and legal spheres.”Footnote ²⁷ According to interviews with European officials participating in the dialogue, Director General Li Baodong 李保东, who served as the long-term head of the Chinese delegation from 1995 to 2002, as well as his successor, Deputy Director General Wang Min 王民, who served in this function in 2003 and 2004, repeatedly singled out the co-operation projects as a concrete result of the dialogue. More recently, however, under the leadership of Director General Wu Hailong 吴海龙, the Chinese delegation has been less forthcoming with remarks on the concrete results of the dialogue.Footnote ²⁸

Summing up, the entire process of the EU–China communicative engagement on human rights can be understood as running on three tracksFootnote ²⁹: at the top diplomatic dialogue between officials from China and the EU; in the middle legal seminars; and at the bottom bilateral or multilateral technical co-operation projects. Conceptually, the three tracks could be linked so experiences from the projects (implemented by practitioners) feed into the legal seminars (with the participation of academics), where they are refined and made into policy recommendations at the political level. In other words, the seminars bring up new topics and report on empirical research to nourish the political level, which was the original intention behind establishing the seminar level. However, each level has its own institutional set-up, its own actors and rules. Time-wise, the projects run in their own cycles. The legal seminars and political dialogue are meant to be timed so that a political dialogue meeting is preceded by a legal seminar, preferably resulting in a written joint report or statement. This temporal connection has, however, not always been realized. It goes without saying that the actors at the different levels are not the same, though there are some overlaps. The project managers will not often appear in the legal seminars; the academics will not participate at the political level; but the legal seminars always include officials who then go on to participate in the political meeting. Chinese participants in the legal seminars are selected by CASS and the Chinese MFA; European participants are nominated in person either by their respective governments or by academic institutions and NGO organizations that are invited to take part in the seminar. The European participant list is then submitted by the European Commission and the acting presidency to the MFA in Beijing for approval.

The Link between Political Dialogue and Legal Seminars

There is no joint announcement from both partners on how exactly the dialogue among legal experts and the dialogue among officials should relate to each other. But statements from both sides on various occasions can serve as a useful indication. At the first legal seminar in February 1998 in Beijing, the then Director-General Li Baodong presented the Chinese position by saying that the seminars allowed civil society and experts to meet and discuss, thus developing mutual understanding and hopefully enhancing peaceful and constructive co-operation between states.Footnote ³⁰ A decade later, China's Special Representative on Human Rights Affairs, Shen Yongxiang 沈永祥, stressed in his concluding remarks to the May 2008 seminar held in Bled under the Slovenian presidency that the objective of the seminars was to serve as a platform to exchange views on the basis of equality and respect, leading to mutual inspiration. He also stated that the presentations made by Chinese experts were intended to help European participants better understand the efforts and accomplishments made by China. At the following seminar in Prague, Shen Yongxiang called the seminars “an important component of the dialogue.”Footnote ³¹ Without providing details on how exactly the seminars should be linked to the dialogue among officials, he nevertheless confirmed China's position that they form part of the framework of the human rights dialogue. The EU shares the view that the seminars form part of the dialogue, but it sets a different emphasis. According to a Commission document from 2007, the seminars aim to:

When the first seminars were organized in 1998, COHOM, the Council's Working Group on Human Rights, viewed them primarily as a mechanism to allow the involvement of “civil society” experts in the EU–China human rights dialogue. Civil society was understood to include both NGO representatives and academic experts. More specifically, the goal of engaging NGOs in the dialogue was merged with, or rather couched in, an academic framework. The expectations of the EU were twofold: first, it was assumed that the NGOs were going to be less critical of the confidential human rights talks with China if they could be integrated into the process; and, secondly, it was hoped that the engagement of NGO representatives and academics from both sides would revitalize the rather stiff and repetitive political talks by raising new issues and pushing for concrete progress.Footnote ³³

While the desire to forge agreement with Chinese dialogue counterparts is fairly uncontested in European academic circles, the exact link between political dialogue and legal seminars remains contentious. The first two seminars, held under the British and Austrian presidencies in 1998 (in February and October respectively), directly preceded the official dialogue. At the second, the link was further enhanced by organizing a NGO segment as part of the official dialogue during which Amnesty International and the World Organization against Torture briefed Chinese government officials on their concerns and recommendations. This set-up had already been tested at an informal round of the dialogue held in London in May 1998, where Amnesty International, the International Commission of Jurists and the Council of Churches for Britain and Ireland had been invited to participate for a short session. The Free Tibet Campaign and the June Fourth Support Group had also been included on the list submitted by the British presidency to the Chinese MFA but their participation was rejected with the explanation that they were hostile towards China.Footnote ³⁴

However, in contrast to these developments, the seminar was de-linked from the political dialogue both in terms of time and location under the German presidency in the first half of 1999. While the official dialogue took place in Berlin in early February, the seminar was organized in Bad Honnef in late May. Furthermore, in response to the repression of the China Democracy Party in late 1998/1999, NGO representatives rejected invitations to future sessions of the official dialogue. NGOs criticized the ineffectiveness of the dialogue approach and lobbied the EU to return to the resolution. They also objected that human rights NGOs specializing on China, as well as independent activists in China, were not allowed to participate in the talks.Footnote ³⁵ Following this, NGO participation remained restricted to the legal seminars.

The topics of the legal seminar change from round to round, not always in conjunction with the political dialogue topics. Some have come up several times, some only once, and there is a fairly wide variety. The selection is the result of negotiation between the MFA in Beijing and the respective EU presidency, and typically results in two topics per seminar, one favoured by the EU and the other favoured by the Chinese. The EU prioritizes issues such as the death penalty, torture, freedom of expression and right to fair trial. In the early years, the Chinese MFA typically picked racial discrimination where it could raise legitimate concerns regarding the situation in the EU. Later it went for other topics of low sensitivity such as right to health, the rights of persons with disabilities, women's and children's rights, and corporate social responsibility. The topics are typically approved at the last moment, leaving little time for preparation. Furthermore, there is no co-ordination between individual European and Chinese participants, who thus do not have a joint research agenda. Sometimes, the European seminar participants receive an informal briefing from the Commission or the Council Secretariat on the developments in the political dialogue just before attending the seminar. However, given that these briefings are typically of a very general nature it has structurally been impossible for seminar participants to “follow up on some of the discussions of the official dialogue in a more in-depth manner.”Footnote ³⁶

The biggest disagreement and confusion relates to whether – and if so, how – the seminar should conclude with concrete recommendations. The Commission's expectation in this regard has been made clear, with the most recent statement included in a 2008 tender for the organizations of the seminars: each seminar “will immediately precede the official EU–China Human Rights Dialogues and that the purpose is to come up with joint recommendations, which feed into the discussions at the official political dialogue.”Footnote ³⁷ In reality, however, most of the legal seminars which preceded this reiteration of the Commission's objective ended with two separate sets of conclusions and no joint recommendations; hence, the objective to generate recommendations is more an EU aspiration than a realistic and tested possibility. At the 2008 spring seminar in Bled, for example, the director of the CASS Law School, Li Lin 李林, rejected a set of recommendations that had been read out by the European and Chinese rapporteurs from each of the two working groups. Li Lin announced that, out of principle, he personally objected to recommendations that addressed China. Given that he was the head of the Chinese academic delegation, this announcement was not only a personal remark but an instruction to all Chinese participants that the seminars should remain a talk-shop and not conclude with any tangible reform proposals addressed towards China. Chinese rapporteurs were subsequently instructed not to share their written notes on recommendations collected in the working groups.Footnote ³⁸ In the following seminar in November 2008 in Beijing, a similar back-door skirmish took place: instead of joint recommendations, the meeting concluded with unofficial, oral summaries by working group chairs; it did not produce concrete, action-oriented recommendations for discussion in the political dialogue.Footnote ³⁹

This lack of agreement on the adoption of joint recommendations has persisted, and not only at the level of officials. There is similarly no agreement between participating legal experts from China and Europe. Not even European seminar participants agree on the desirability of formulating recommendations and thereby linking the seminar with the political process. Some view it as a conditio sine qua non for the dialogue seminars to be meaningful human rights interventions. Manfred NowakFootnote ⁴⁰ and Xin Chunying 信春鹰Footnote ⁴¹ even suggested that the seminars function as a monitoring mechanism:

In this instance, we actually see agreement between the Chinese and European sides of a fairly radical nature, but the position of these two scholars obviously had no political backing. Other European academics firmly reject the link to the political dialogue as an infringement of academic freedom and the instrumentalization of academia for political purposes. In the words of one European participant:

Both positions have an inherent logic. Considering the actual set-up, however, it is clear that the seminars are structurally different from academic conferences. Calling for academic freedom in this context ignores the institutional and political background of the exchanges. The seminars are funded unilaterally by the European Instrument for Democracy and Human Rights and expenditure of public resources thus has to be justifiable in terms of human rights promotion, not merely as a research initiative without any normative objective. As the funder of the seminars, the Commission has officially stated that the process is conceived as an add-on to the political dialogue (see above). European participants are not just implicitly but rather explicitly asked to perform a political function. While European academics of course enjoy academic independence and European NGO representatives enjoy freedom of opinion, it is expected that their presentations be tailored to the specific purpose of the seminars, that is to the political objective of promoting human rights in China. Moreover, considering that the seminars are attended not only by independent experts but also by government officials, it is evident that both their purpose as well as their structure is inherently political.

Although the Chinese government does not co-fund the seminars, their political dimension is equally if not more pronounced for Chinese participants. In informal conversations, Chinese academics usually choose their words carefully to describe the dynamics of the seminars, such as “these exchanges take place in a very formal setting” which means, bluntly, that they are not viewed as forums for fruitful exchange. Chinese academics and NGO representatives who participate are selected to represent China abroad. They are fully briefed on the political context of the dialogue seminars and ministerial representatives keep an eye on who says what. This is in line with a general politicization of human rights research in China. As Svensson explains:

Given that this conclusion dates back eight years, it is of course conceivable that the situation has now changed. While a detailed review of this question goes beyond the scope of this article, there is no obvious evidence that suggests a radical change. Quite the contrary, it seems that human rights scholars in China have come under increasing pressure. In September 2004 the progressive publication Southern People's Weekly published a list of “50 public intellectuals who influenced China.” This list initiated a discussion on the role of public intellectuals vis-à-vis the state. By its very nature, human rights research relates directly to this discussion. But the public portions of the debate in China were quickly ordered to end in what has been labelled a “crack-down on China's intellectuals” by observers abroad.Footnote ⁴⁵ In December 2009, CASS dismissed a vocal political philosopher and constitutional scholar, Zhang Boshu 张博树, who subsequently made a public statement in which he cites the “Decision of the Chinese Academy of Social Sciences regarding the strengthening of the building of political discipline” dated 30 November 2006. By this decision, CASS scholars are reportedly instructed to observe “norms of political discipline in their behaviour.” They “must adhere to the guiding role of Marxism in philosophical and social science research, and may not publicly proclaim views which oppose or violate the fundamental theory, direction, or platform of the Party.” Most notably in the context of the EU–China human rights seminars, scholars must “during international scholarly exchange, … strictly follow ‘Regulations of the Chinese Academy of Social Sciences on foreign academic exchange’.”Footnote ⁴⁶

It is impossible to gauge with any accuracy to what extent the state intervenes in human rights research in China, but this much is clear: the Chinese academic community today engages on human rights issues in a variety of forums and these forums differ in terms of their political sensitivity. International seminars arranged under the auspices of the Chinese MFA surely rank not only among the most formal but also among the most politicized and controlled forums. Therefore, the EU–China dialogue seminar discussions are charged, from both sides, with political expectations that are, to a large extent, mutually exclusive. Lacking both a common substantive agenda and an agreement on procedural matters, in particular on linkages between political and academic dialogues, the two key elements are neither unambiguous nor mutually agreed upon. With no consensus on these issues, the dialogue is very unlikely to produce consensus on a substantive human rights agenda.

Contrary to the EU's original expectations, the seminars have not served to revitalize the bilateral human rights dialogue or to resolve differences; instead they downgrade bilateral negotiation between China and Europe on human rights issues. Today, political leaders from both sides can avoid an exchange on highly sensitive concerns by reassuring each other at the regular EU–China Summits that they place “a high value on the EU–China human rights dialogue, including the accompanying legal seminar.”Footnote ⁴⁷ It appears that leaders on both sides are willing to accept tensions on human rights issues as long as they only play out at lower-level meetings, leaving the high-level political contacts unaffected. Inherently political negotiations are delegated down to a level where both sides know they cannot be resolved – but where they also cannot cause much trouble to the bilateral relationship.

The Link between Dialogue and Co-operation Projects

At the same time as dialogue was re-established in 1998, the EU Commission and many EU countries began to engage directly with Chinese institutions in the justice sector in bilateral and multilateral co-operation projects. From October 1999 to July 2005, the European Union funded the €13.5 million “EU–China Legal and Judicial Co-operation Programme,” sending groups of Chinese lawyers, prosecutors and judges to European countries for training and practice, bringing them in touch with EU legal systems. The programme was the biggect engagement with China from the EU side and the biggest legal co-operation project in China at the time. Its partners were the EU Commission and the Chinese Ministry of Commerce; the aim was to support a better understanding of the concept of the rule of law in China, including attention to, but not special focus on, human rights. Another major project began in 2008 when a large grant supporting the establishment of a China–EU Law School in Beijing was approved. The school is hailed as the flagship of the strategic partnership between the EU and China, which also comprises projects with an indicative budget of €224 million over the years 2007–13.Footnote ⁴⁸ In line with the EU's 2006 policy paper on China, all EU activities in the field of rule of law and human rights have the overarching aim of “supporting China's transition towards a more open and plural society,”Footnote ⁴⁹ so in theory the human rights dialogue and the EU-funded projects are meant to contribute to the same objective. The policy paper even states that the dialogue should take on input from seminars and “sub-groups.”Footnote ⁵⁰ But there are no specific references on how this should be done, nor can any attempt be seen to link the activities either by topic or temporally.

During the same period, many national human rights centres and law schools forged links with Chinese counterparts and initiated bilateral co-operation involving human rights issues. Some of these contacts undoubtedly were made at the seminars, but there are no data on how many of the projects originated from such contacts; more research is needed to ascertain to what degree the EU-sponsored seminars facilitated their development. It appears to the authors that bilateral initiatives by EU member states were at least as, if not more, important in facilitating such contacts, particularly those by the United Kingdom, France, the Netherlands, Germany, Denmark and Sweden – the most active EU member states with regard to human rights programmes in China.

The design and aim of bilateral projects differ in important aspects from the dialogue process, and the link between this third layer and the second layer, the legal seminars, is not close, as explained below. A typical bilateral project will be implemented according to a contract between a European institution and a Chinese partner. The contract will be the legal guarantee of co-operation following a so-called logical framework analysis or similar fixed format. The project document will spell out the long-term and immediate objectives, describe activities and results, and means of verification of the results. It will also determine the responsibilities of the different actors involved in the project. A big difference from the dialogue process is thus the degree of transparency and accountability. When carried out correctly, it is possible to know exactly what will come out of the project and who can be held accountable. For example, a project on improving criminal procedure could include co-operation between a Chinese and a foreign prosecutor's office, during which three prosecutors from each side meet twice a year for three years and discuss how to make witnesses appear in court, how to inform detained persons of their rights, and/or how to secure that suspects are not ill-treated during police interrogation. The result could be a new set of guidelines for the local prosecutors' office in China, stipulating mechanisms to further rights protection concerning these three aspects of the criminal process. That kind of co-operation will only include professional staff and will to a large degree be free of political interference from either side. It will involve close co-operation between Chinese and foreigners who are familiar with the Chinese environment, speak Chinese and understand the political restrictions such projects are working under. Some of the weaknesses of the dialogue process are thus avoided; to what extent such projects can help improve human rights protection in China, however, continues to be a matter of controversial debate. Conclusions largely depend on whether systemic political reform is viewed as a precondition for improved human rights protection or not.Footnote ⁵¹

In the talks at the legal seminars, co-operation projects have not been presented or discussed in any systematic manner. Some project managers on both sides have shunned involvement with the dialogue process because of its politicized nature. For most, sheer ignorance of the projects was the main factor. Chinese academic participants were often scholars engaged in some bilateral project activities, but they did not refer to them in the forum of the legal seminars. Speakers on the European side were seldom involved in China projects, as the EU countries mostly sent people who were specialists on the selected topics but inexperienced in relations with the Chinese scene, in spite of the fact that the European Commission had hinted to participating academics that they should avoid talking about internal European problems.Footnote ⁵² Today, there appears to be no consensus within European academic and diplomatic circles on whether it is desirable to discuss European challenges in the seminars. Generally, however, European examples are presented more often as “best practice” and not as critical human rights violations that need correction. One exception to this are discussions on combating racism and racial discrimination, an issue that has been repeatedly put on the agenda by the Chinese MFA.

A study from 2004 examines those bilateral projects with China that focus on human rights and includes programmes funded by nine countriesFootnote ⁵³ and by the European Union. Sophia Woodman sees the selected projects as part of the human rights dialogue and co-operation “package” which has been developing since 1999, and more or less explicitly linked to the human rights dialogues in the respective countries or regions, which are even named “dialogue countries.”Footnote ⁵⁴ Her study highlights lack of transparency, poor planning, lack of clear objectives and benchmarks, and weak donor co-ordination as important weaknesses of the projects. Some of these failures might have been avoided if the link to the legal seminars and the dialogue processes had been stronger. This study seldom refers to the specific nexus between the three dialogue levels even though Woodman, as mentioned above, proceeds from the alleged fact that the co-operation projects are part of the post-1997 dialogue and co-operation approach. Only in the rule of law dialogue between China and Germany are co-operation projects regularly discussed. Her interviews, on the other hand, also point to a potential danger by linking the political and the project level. Some of her interviewees deliberately de-linked the different levels because of the “overly politicised” nature of the dialogue and warned against attaching co-operation projects to donor government politics because this could distort the evaluation of the impact towards an over-optimistic view. Finally, “many diplomats” interviewed were reportedly of the opinion that the dialogue sessions achieved very little while the co-operation projects had a much greater impact.

In summary, documents, reports and interviews as well as personal experiences draw a picture in which the real connection between the three dialogue levels is very weak, even though the political dialogue with its legal seminars is said to provide the foundation for the projects, and the legal seminars and the projects are supposed to provide “meat” for the less detailed political discussions. Of course, given the overlap of actors, there is a certain link in that information can flow from research activities at the project level into presentations at the legal seminars and, possibly, even inform discussions during the official talks.Footnote ⁵⁵ But such connections are merely incidental, based on decisions of individual actors, and not systematized or structurally encouraged.

Merits and Failings of the Three-tiered Dialogue Set-up

Even during the first few sessions of the legal seminars in the late 1990s, discussions were already taking place on the merits of the three-tiered set-up. For example during the fourth seminar held on 7–8 September 1999 in Rovaniemi, Finland, Morten KjaerumFootnote ⁵⁶ presented a detailed reflection on the merits of linking the political dialogue with a dialogue among academics and, furthermore, linking the latter with technical co-operation projects. In his view, the close collaboration developed in technical co-operation projects would result in a more detailed understanding of complex questions and, once linked more closely with the seminars, “could serve as inspiration for renewed discussion” in them. He also envisaged that such a link could serve to “qualify the expert dialogue on a particular topic.”Footnote ⁵⁷ Finally, he outlined the merits of a closer link between political dialogue and seminars as follows:

This vision essentially encapsulates the merits of Track Two diplomacy, a term widely used in the context of international relations. While official talks between government officials are called Track One diplomacy, Track Two refers to unofficial interactions between influential academics and other non-governmental representatives. These take place in an informal environment where participants can share information, perceptions, limitations and needs, increase mutual understanding and generate new ideas. Theoretically speaking, the potential merits of the three-tiered approach are palpable. But, as discussed above, the theoretical merit has in practice not been realized in the context of the EU–China human rights dialogue. This is so despite the fact that concrete proposals for improving the linkages have been tabled repeatedly throughout the years. Why then does the actual link fall short of the theoretical potential?

One key obstacle to improving the link between the three levels appears to be a lack of political will on both sides, that is both in Beijing as well as in European capitals. While the Commission has repeatedly stated that it wants the seminars to underpin the political talks and, specifically, that it wants to see recommendations as an output of the legal seminars, it has not seriously pursued this objective in its negotiations with the Chinese MFA. In light of the disruption of the legal seminars under the German and Portuguese presidencies in 2007, a key concern of the Commission, the sponsor of the seminars, was to remove obstacles to their continuation and not to push for procedural aspects that had previously led to friction with the MFA in Beijing.

Furthermore, officials from both Europe and Beijing have rejected repeated calls for greater transparency of the political talks, a precondition for establishing an effective link between official dialogue and legal seminars. Without this transparency, seminar participants lack the information necessary to link themselves to the official talks or, indeed, influence the nature of this link. It is of course possible that some issues from the seminars are taken up in the official dialogue, but this does not happen systematically and the current set-up therefore does not meet preconditions for effectiveness. There remains a political interest on both sides to keep details of the talks confidential. Although Commission and Council Secretariat representatives regularly hold informal briefing sessions for NGOs based in Brussels, and in some cases have even given briefings to academics just prior to the seminar meetings, these have remained relatively general and have never included detailed information on whether the recommendations from previous seminar rounds were taken up in the subsequent talk among officials. It has informally been communicated to the authors that the recommendations are rarely referred to at all in the official talks.Footnote ⁵⁹ The secrecy surrounding the political dialogue makes it impossible to verify a link between the two processes, and the argument for having the legal seminars is thus significantly weakened.

For linking technical co-operation projects effectively with the two levels of the dialogue, many more actors would have to play in accord. As mentioned above, technical co-operation projects are implemented through various funding channels; donors in Europe are keen to keep certain independence in their decision-making on projects, thus resisting pan-European co-ordination. In China, the MFA holds overall responsibility for the dialogue but projects are implemented in co-operation with the Ministry of Justice, the Ministry of Public Security, the People's Supreme Court, the People's Supreme Procuratorate, various universities and other research units and civil society groups. These entities have no interest in subjecting decisions on co-operation projects to the MFA. And while the immediate project counterparts must demonstrate their serious commitment for co-operation to be successful, it is yet another ministry, the Ministry of Commerce, which is typically responsible for approving project formalities. With so many players on both sides, prospects for close co-ordination are relatively low and the likelihood of conflict of interest is relatively high.

In addition to political and institutional obstacles that impede an effective linkage between the levels, there are also clear dangers. Smoothly running technical co-operation projects can easily be stalled by tensions arising at the political level – and the closer the link between projects and political talks, the higher the risk. Factual assessment of project impacts, and any subsequent modification of projects, may also run counter to political aspirations to emphasize successes rather than failures.

By linking the academic seminars to the political talks, all the seminars have remained overshadowed by political tensions and have thus fallen short of being a safe space for frank discussions among legal experts from China and Europe. While there is no specific measure that could help pin down the consequences, it can safely be assumed that these regular encounters in a very politicized context work not for but against the establishment of mutual trust among academics in that they deepen rather than remove suspicions over hidden political agendas or, indeed, over the lack of independence from political institutions on both sides. The politicized set-up of the legal seminars also leads to erratic discussions, with academic quality standards largely not being met. One precondition to have the desired academic effect is that the seminars be de-politicized, with no Ministry officials or NGO representatives present. Both of these players pursue political agendas. Accordingly, arrangements could be made at the political level for these players to interact, such as through an NGO segment in the political talks, like the one that existed in the late 1990s. If the EU were serious about engaging NGOs in its political engagement on human rights with China, this is the debate it should be having with the Chinese MFA – not a debate about which NGO representatives to include or not to include in a so-called academic seminar. For an academic seminar, the presence of officials in one corner of the room and international interest organizations in another has proven to be counterproductive. As mentioned above, the EU's original intention with these seminars was not an academic but a political one, namely to integrate civil society into the dialogue and to re-substantiate the political talks. As we have argued, this political objective was not achieved over the last decade and, furthermore, has obstructed the creation of an independent and dynamic network among human rights academics from Europe and China.