Recognizing the severity of the AIDS problem facing China, and of the important role that civil society groups can play combating the epidemic, some senior Chinese officials have begun to acknowledge the need for NGOs. Speaking with the World Health Organization on the occasion of the launch of a new AIDS program that planned to include NGOs, Hao Yang, a senior Ministry of Health official, pledged that the Chinese government would strengthen cooperation with NGOs, would provide financial support to them, and would begin encouraging more NGOs to participate in AIDS prevention and control work.157 The number of NGOs has recently grown in China, and today there are over 800,000 officially registered NGOs. However, most of these are government-organized NGOs (GONGOs) that are closely tied to, if not outright controlled by, government agencies.158
Myriad bureaucratic obstacles face any activist who wishes to establish a new NGO. The central government has left in place national regulations that grew out of older government efforts to control civil society, and that continue to severely limit the establishment and growth of independent NGOs. While these outmoded national regulations affect all NGOs equally, their vagueness and the broad powers awarded local governments to implement them have enabled some local authorities to prevent the establishment and growth of groups arbitrarily. Because of the continuing stigma of HIV/AIDS in China, these restrictions have inevitably hampered many AIDS groups.
In addition, because of the large role government plays in regulating NGOs, authorities retain the ability to use regulations to harass independent NGOs or to create obstacles to their growth.
Chinese NGOs face three key problems: a restrictive system of registration, a requirement that government agencies administer and police their daily work, and a requirement that funding be routed through government agencies, creating opportunities for corruption.
Chinese NGO registration laws continue to limit the growth and activity of local NGOs by requiring new NGOs to obtain a government sponsor before they can register.159 Sponsoring agencies then submit the application to the Ministry of Civil Affairs.160 However, both sponsoring agencies and the Ministry of Civil Affairs can easily refuse applications for a range of reasons, or without providing clear reasons at all.
Chinas 1998 Regulations for Registration and Management of Social Organizations, which apply to many NGOs, stipulate that the registration and management agency may refuse registration to organizations for lack of adequate membership (the NGO must have more than fifty individual members or more than thirty institutional members) or lack of adequate funds (a minimum of 100,000 yuan [U.S. $12,000] is required).161 These provisions place NGOs in a difficult situation: because Chinese authorities widely restrict freedom of assembly, these restrictions award NGO status only to those groups which already have close enough government ties that they can mobilize large groups of people without having conflicts with the police. Many new NGOs, in particular AIDS groups, are likely to start with a few active members or staff and to develop and grow over time; some may function best if they are not mass, membership-based organizations. The unreasonably high funding requirement effectively limits NGO status to a wealthy few. The annual per capita income of farmers in China in 2004 was 1,345 yuan [U.S. $163].162 Even in Beijing, the nations capital, average annual per capita income in 2004 ranged only from U.S. $890 to $3,600.163
According to the same regulations, the sponsoring agency can also refuse an NGO registration if there is another organization in the region engaged in a similar area of work.164 However, the government has given no explanation of why there should only be one NGO working on an issue in any given region; in fact NGOs may well develop best where there is a community of activists who can pool their knowledge and resources and coordinate their efforts.
This system also permits local authorities to refuse to sponsor an NGO without offering any clear reason at all. Local government authorities who do not wish to see NGOs emerge can refuse an application for registration outright with only minimal explanation, or can embroil the NGO in a Catch-22, with each agency saying that their approval is conditional on the approval of other government agencies.165 AIDS activists have reported that local authorities may require them to register with a local health bureau that refuses to even read their registration application.166 The administrator of a lesbian and gay website said that when they tried to register as an NGO they were refused, because the government bureau did not want to take responsibility for us.167
Some rural AIDS activists report that registering their organization at all requires arduous lobbying of multiple government bodies at once. I remember in 2003, when we raised the issue of registering with the county, they refused us in a word, and when we went to the city, they also refused us with one word, says a Henan community AIDS activist; but:
Now we have applied to every related government agency for registration, and every agency has already signed off and has conducted an investigation of our qualifications. We have already been in contact with the county AIDS Prevention office, with the county health bureau, and [name deleted] village government has investigated our credentials. Now were going through the county personnel bureaus investigation. Other personnel bureaus have investigated and reported to the county government, and once the county has approved [our application] they will report to the city and the province.168
In addition to the burdensome registration process, NGOs must be administered, or work under the leadership of a government department that supervises all decisions made by the NGO, policing every aspect of its day-to-day work. Any work activities carried out without approval by the government agency place NGO leaders at risk of criminal sanctions.169
This gives the government broad leeway to close down NGOs for a variety of reasons, including political reasons. In one of the best-known examples, the Ministry of Civil Affairs threatened to close down Friends of Nature, Chinas first and most prominent environmental NGO, if it did not remove Wang Lixiong, a prominent critic of Chinese policy in Tibet, from its board of directors.170
Government agencies can and have shut down AIDS NGOs for being too outspoken or critical of government policy precisely the outcome warned of by the U.N. Guidelines.171 One of the most prominent examples is that of the Aizhi Action Project, which was based at Beijing University until government officials pressured the university to shut the group down because of advocacy on behalf of people with AIDS in Henan.172
Because of the restrictive role stereotypically played by mothers-in-law in traditional Chinese families, many activists call this the mother-in-law system.173 Again, this restriction affects all Chinese NGOs, but especially so the work of AIDS activists, one of whose chief functions is often to explicitly criticize the national Ministry of Health and local health bureaus, the very agencies that may be required to approve their daily work. As one Chinese AIDS activist put it,
When youre preparing to choose a mother-in-law, you have to think first about whether or not you are likely to ever criticize that department and what they do. If you are, then you had better find another agency.174
Last but not least, the mother-in-law system gives local officials tremendous authority and opportunity to misuse their control of funding for AIDS NGOs. In response to Chinas AIDS crisis, and because domestic sources of funding for NGOs are scarce, international aid donors are beginning to increase their aid to Chinese NGOs that work on HIV/AIDS, and to encourage the development of new NGOs in areas of high prevalence. This is creating a flood of new funding. The European Union, U.S., British, and Australian government aid programs are some of the only sources of funding for Chinese NGOs, but funds from overseas are viewed with suspicion by some government officials as a sign of foreign interference in Chinese internal affairs.175 As a result, mother-in-laws sometimes prevent Chinese NGOs from raising funds from international donors. Furthermore, putting NGOs under the supervision of state sponsors places corrupt government officials in positions where they can easily appropriate domestic and international funds intended for NGOs.
China continues to face widespread problems with corruption: in a recent State Council conference on the issue, Premier Wen Jiabao said the fight against corruption continues to be an arduous task.176 The current regulations also create opportunities for official corruption: NGOs must route any funds raised through their mother-in-law agency or through the local government, which may appropriate some of the funds for itself. In some cases, as one Yunnan AIDS activist told Human Rights Watch, authorities keep the funds and tell the AIDS activist, We dont need you to manage this [AIDS work]; well take care of it ourselves.177
Some AIDS activists report that local authorities simply skim off part of the funds for their own purposes.178 Some international NGOs report that they are aware that this happens, but that they are reluctant to speak up about it for fear of jeopardizing their programs.179 An activist with a program funded by AusAid, the Australian government aid agency, reported that local authorities kept a portion of the funds intended for cost-of-living support for people with HIV/AIDS:
We didnt get all the promised funds from [an international aid donor]. All the funds were supposed to be used directly for people with HIV/AIDS but they were not. The funds were intended for training, for living expenses, for food in cafes, for meetings, and for private events. But as an example, if we were supposed to have fifty yuan per day for each person with HIV/AIDS, instead we got maybe thirty to forty.180
An AIDS activist in Henan who has attempted to hold local authorities accountable for what his group believed was misuse of aid funds designated for medical care for people with HIV/AIDS reported getting this response from county health officials:
They say, What has been spent is the Communist Partys money, what does it have to do with you? If [people with HIV/AIDS] dont get good medical care today, theres always tomorrow, and were not going to give the money to you for asking for it; stop nosing into other peoples business, or well take care of you well charge you with the crime of inciting social unrest, and so on so HIV-positive people feel furious but dont dare to speak.181
NGOs are critically important sources of information when it comes to monitoring the disbursement of funds intended for humanitarian aid. UNAIDS and the State Council have acknowledged the need to improve management of financial resources.182
In order to circumvent the obstacles described above, growing numbers of Chinese civil society groups take advantage of a legal loophole that permits them to register as small commercial enterprises. One of the first of these was the AIDS organization Aizhixing; when closed down by the university where it was originally registered, Aizhixing registered as a commercial enterprise and continues to function as one. Others have since followed suit. We registered as a commercial enterprise, said the founder of a group that does outreach work with gay male sex workers. Originally we wanted to apply as an AIDS NGO, but we got turned down.183
But according to one Chinese NGO, registering as a commercial enterprise, while creating a way out of the legal bind, can create its own problems:
Because of the regulation requiring that NGOs apply for a managing agency, and because many grass-roots organizations cannot find a managing agency and have no way to register and establish themselves, and moreover, because many other non-profit organizations have no way to register with government agencies, they have no choice but to register as commercial enterprises. They then must pay taxes, which seriously hampers the development of grass-roots organizations.184
As this writer notes, the tax requirement is particularly onerous for small, struggling NGOs and can lead to financial difficulties if international donors, who support most of the financing for civil society AIDS groups in China, do not permit their funds to be used to pay taxes.185 Registration as a for-profit enterprise also makes Chinese NGOs ineligible for international grant programs, and there are many that require aid recipients to show non-profit status.186
While the commercial enterprise loophole has enabled some small NGOs to register and begin their work, it is not a long-term solution; it effectively restricts their ability to raise funds and develop capacity, and leaves them vulnerable to interference by the state.
Because the state plays such an active role in the registration and management of NGOs in China, local authorities can use these regulations to harass NGOs.
On March 21, 2005, Chinese authorities issued new regulations requiring all organizations registered as commercial enterprises to report to civil affairs bureaus for review and approval. Those with the words social science, research center, or research institute in their names in effect, many organizations that would have been registered as NGOs were they permitted to do so were specifically identified, suggesting they would come under particularly close scrutiny.187 Following on these orders, the Beijing Industry and Commerce Administration Management Bureau wrote to Aizhixing Health Education Institute and other NGOs and instructed them to change their name, removing words such as Health Education and Institute from their title. At the same time, Aizhixing was also informed that another company had registered with the name Aizhixing and that they would be required to change that, also.188
Some Chinese authorities have themselves acknowledged that the current legal framework for NGO registration is out of date. As early as August 2000, the deputy director of Chinas Nongovernmental Organizations Administrative Bureau publicly admitted,
The legal system is unsound .A disconnect exists between policies and regulations and the objective, practical requirements. The legal system is lagging behind and that definitely affects the smooth development of Chinas NGOs.189
International law and Chinas own constitution obligate China to uphold the right to freedom of association. According to the ICCPR, which China has signed but not ratified, the right to freedom of association may only be restricted when necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others 190 Any restrictions should be interpreted narrowly, and be proportionate to the reasons for them; a government should use no more restrictive means than are absolutely required. In addition, article 5 of the U.N. Human Rights Defenders Declaration states that all people have the right to assemble peacefully, to form, join or participate in NGOs, and to communicate with NGOs.191 While the state has the right to ensure that NGOs are honest and transparent, legal requirements should be minimal, clear, and attainable, permitting maximum flexibility for NGOs to establish themselves and perform their daily work. They should be enforced without discrimination.
As the U.N. HIV/AIDS and Human Rights International Guidelines point out, community consultation is a critical element in designing strong AIDS policies.192 NGOs are one way to channel community opinion into policy design. They face numerous obstacles in China, however, where the rights to freedom of association and expression are frequently violated in practice.193 While the Constitution upholds the right to freedom of association and the right to criticize and make suggestions to any state organ or functionary, and growing numbers of Chinese activists promote the Constitution in an effort to give it the status of law, the Constitution is not currently justifiable.194
The right to freedom of association is particularly relevant to the work of civil society groups working with and on behalf of people suffering from the impact of HIV/AIDS. Reflecting experience from around the world, the experts gathered at the Second International Consultation on HIV/AIDS and Human Rights in 1996 pointed out that the basic right to freedom of association, enshrined in Article 20 of the Universal Declaration of Human Rights,
[H]as been frequently denied to non-governmental organizations working in the field of human rights, AIDS service organizations, and community-based organizations with applications for registration being refused as a result of their perceived criticism of Governments or of the focus of some of their activities, e.g. sex work. In the context of HIV/AIDS, the freedom of assembly and association with others is essential to the formation of HIV-related advocacy, lobby and self-help groups to represent interests and meet the needs of various groups affected by HIV/AIDS, including [people living with HIV/AIDS]. Public health and an effective response to HIV/AIDS are undermined by obstructing interaction and dialogue with and among such groups, other social actors, civil society and Government.195
Under international and domestic law, and as a matter of practical impact, the Chinese government should allow HIV/AIDS activists to work without undue restrictions in order to face the countrys burgeoning public health crisis.
As Chinas own State Council and UNAIDS have jointly observed, one key challenge in Chinas response to the AIDS epidemic will be improving the environment for NGOs to operate, including the policy and legal framework.196 In place of the commercial enterprise registration loophole, China would be better served by reformed regulations on NGO registration that promote the growth of civil society. In October 2004, the vice director of the Chinese Ministry of Civil Affairs announced that it was considering revising the existing NGO structure, eliminating the requirement that NGOs be attached to government agencies.197 Such moves are urgently needed and should proceed quickly.
 NGOs to play important role in Chinas AIDS prevention, control, Xinhua, April 13, 2004; translated by China AIDS Info [online] www.china-aids.org.
 NGO Summary, Congressional-Executive Commission on China, [online] www.cecc.gov/pages/virtualAcad/rol/ngosumm.php (retrieved May 25, 2005).
 Regulations for registration and management of social organizations, State Council order no. 250, published September 25, 1998; translated by Zhang Yu and Nick Young, China Development Brief, www.chinadevelopmentbrief.org.
 NGO Summary, Congressional-Executive Commission on China, [online], www.cecc.gov/pages/virtualAcad/rol/ngosumm.php (retrieved May 20, 2005).
 Regulations for social organizations, article 10.
 Farmers per capita income up 16.1% January-June, Embassy of the Peoples Republic of China, September 20, 2004, [online] http://www.china-embassy.org/eng/gyzg/t159432.htm (retrieved May 20, 2005).
 Income gap grows wider in Beijing, China Daily, February 22, 2005 [online], http://english.sohu.com/20050222/n224372380.shtml (retrieved May 20, 2005).
 Regulations for social organizations, article 13.
 Human Rights Watch interview with Hua, gay rights activist, 2005; electronic communication with Tang, Henan AIDS activist, 2005; electronic communication with Li, health rights activist, 2003.
 Human Rights Watch interview with Wen, HIV-positive volunteer in AIDS program, 2004; Chen Wenjun, An exploration of legal questions, page 6; Dui 2004 nian guojia aizibing fangzhi shehui dongyuan xiangmude zhaozhi zhinande jidian yijian [Several suggestions invited and facilitated by participants in the 2004 national AIDS prevention community forum program], December 22, 2004, [online] www.aizhi.net.
 Human Rights Watch interview with Cao, website manager, 2004.
 E-mail message from An, Henan AIDS activist, to Human Rights Watch, January 2005.
 Regulations social organizations, article 35.
 NGO Summary.
 Awards for Action on HIV/AIDS and Human Rights: 2002 International Recipient, Wan Yanhai, Canadian HIV/AIDS Legal Network [online], http://www.aidslaw.ca/Maincontent/awards/internationalrecipient.htm (retrieved May 20, 2005).
 Awards for Action. Aizhi was subsequently registered as a commercial enterprise and re-opened.
 Chen Wenjun, An exploration of legal questions, page 4.
 Human Rights Watch interview with Su, AIDS activist, 2004.
 Chen Wenjun, An exploration of legal questions, page 5.
 Premier Wen calls for greater efforts to curb corruption, News Guangdong, February 28, 2005, retrieved at http://newsgd.com/news/china1/200502280008.htm. See also Transparency International, Global Corruption Report 2005 [online], http://www.globalcorruptionreport.org/download.html (retrieved May 20, 2005).
 Human Rights Watch, Locked Doors, p. 27.
 Human Rights Watch, Locked Doors, p. 27.
 Ibid, p. 30.
 Human Rights Watch interview with Wen, HIV-positive volunteer in AIDS program, 2004.
 E-mail message from Wu, to Human Rights Watch, 2005.
 Joint Assessment, p. 29.
 Human Rights Watch interview with Hua, gay rights activist, 2004.
 Chen Wenjun, An exploration of legal questions, page 5.
 Human Rights Watch communications with Su, AIDS activist, 2004.
 Human Rights Watch interview with Su, 2004.
 Qiu Xin, China curbs civil society groups, Asia Times, April 19, 2005.
 Vivien Cui, AIDS group told to change name or close, South China Morning Post, March 27, 2005.
 Guangyao Chen, Chinas nongovernmental organizations: status, government policies, and prospects for further development, International Journal of Not-for-Profit Law, vol. 3, issue 3, March 2001.
 ICCPR, article 22.
 9 December 1998, U.N. General Assembly, Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.
 HIV/AIDS and Human Rights International Guidelines, guideline 2.
 For more information, see Human Rights Watch 2005 World Report chapter on China, [online] http://hrw.org/english/docs/2005/01/13/china9809.htm.
 Constitution of the Peoples Republic of China, adopted December 4, 1982, english.peopledaily.com.cn.constitution/constitution.html; article 35 (freedom of association) and article 41 (right to criticize state organs).
 OHCHR and UNAIDS, HIV/AIDS and Human Rights International Guidelines, commentary on freedom of assembly and association, paragraph 117.
 Joint Assessment, p. iii.
 Amanda Cui and Adam Jung, Possible changes on NGO registration, Global Village of Beijing newsletter, October 2004.