While it remains complicated for overseas NGOs to register a representative office in China, conducting “temporary activities” is becoming a popular solution even for organizations that want to work in the country for the long-term.
The Overseas NGO Law that passed into effect in 2017 represented a crucial turning point for the community of international NGOs working in China. Over two years since the law came into force, the full impact of the new legal framework on the country’s NGO sector is arguably still to be seen.
The law stipulates that there are only two ways for overseas NGOs (a designation that covers any non-profit not from the Mainland, including ones from Hong Kong, Macau and Taiwan) to operate legally in Mainland China. The first one is to register a representative office in China with the Ministry of Public Security (MPS), and the second one is to conduct a “temporary activity”.
Article 9 of the law makes it very clear that there is no other legal avenue for overseas NGOs to work in China: “It is prohibited for overseas NGOs that have not registered and established a representative office or filed for temporary activities to conduct or covertly conduct activities within China, or commission or covertly commission any domestic Chinese units or individuals to conduct activities within China.”
Since the law came into force, in January 2017, a total of 475 overseas NGOs have successfully registered representative offices in China. It should be noted, however, that over half of that number is made up of commercial and trade-promotion associations, which are regarded as NGOs under Chinese legislation. Perhaps around 200 of the registered NGOs are actually involved with fields more traditionally linked to civil society, such as environmental protection or poverty alleviation. These include globally recognized names like the WWF, World Vision, Oxfam and the Bill and Melinda Gates Foundation.
Many other overseas NGOs with a long-term presence in China, however, have been unable to register a representative office under the new legislation. The law stipulates that before being able to register with the MPS, NGOs are required to find a government department willing to act as their Professional Supervisory Unit (PSU). It is this step of the process that most often constitutes an obstacle for NGOs seeking to register. Organizations whose field of work is considered to be in some way sensitive may find that no department is willing to take on the responsibility of acting as their supervisor, while smaller NGOs may simply find that they lack the prestige and the human resources necessary to navigate the bureaucratic obstacles and find a PSU.
Once an overseas NGO has registered its office it faces certain administrative requirements, including the submissions of an annual plan and an annual work report to its PSU in December and January. The annual work report also has to include an audited accounting report. Especially for smaller organizations, these requirements can constitute a significant administrative burden.
There has been a certain confusion regarding the scope and definition of “temporary activities” for overseas NGOs
The other option for overseas NGOs wishing to conduct a project in China is to file a temporary activity. The administrative process is significantly simpler than in the case of registering a representative office. The overseas NGO has to team up with a local organization that will act as the Chinese Partner Unit (CPU), and the CPU has to “file” (备案) the necessary documents with the Public Security Bureau within 15 days from the start of activity. No supervisory unit is necessary.
The second draft of the Overseas NGO Law, which was made public to solicit feedback, stated that conducting a temporary activity would also necessitate a PSU. This was however changed in the final version, possibly as a response to negative feedback from the sector and from experts, who warned that this would set an unreasonably high bar. Temporary activities may only last up to one year, but the law adds that “when there is a genuine need of an extension, a new filing must be made”.
An overseas NGO receives its registration certificate in Beijing
There has been a certain confusion regarding the scope and definition of “temporary activities” for overseas NGOs. The law does not contain a specific definition of temporary activities, although in the beginning it does set some general criteria for the activities that overseas NGOs can carry out in China, specifying that they must not fund for-profit or political activities. The confusion relates mostly to whether meetings or short-term trips also have to be regarded as temporary activities that need to be officially filed.
Jessica Batke, senior editor of ChinaFile’s China NGO Project and an expert on Chinese civil society, has analyzed this issue in depth. When reached, Ms. Batke explained that based on her understanding the PSB may use a number of different considerations when determining whether something constitutes a temporary activity or not. In her own words, “factors I have heard about include whether or not an overseas NGO is providing the funding for an activity, whether or not the overseas NGO is going to publicize the activity, and whether or not the overseas NGO employees are taking part in the activity in their personal or professional capacity. It’s possible that only one of these factors being present is enough for a PSB to decide that something does count as a temporary activity. It’s also possible that different provincial PSBs use different standards to make this judgment; I’m not entirely sure how formal these considerations are and whether they are coordinated across different PSBs.”
In spite of this ambiguity, the statistics demonstrate that the popularity of carrying out “temporary activities” has been growing among overseas NGOs that work in China. Professor Jia Xijin, from Tsinghua University, made this point in the talk she delivered at CDB’s forum for overseas NGOs on the 5th of November 2018. Professor Jia noted that in 2018 there was a sharp increase in the number of filings for temporary activities compared to 2017, while conversely the number of new registrations of representative offices decline considerably.
In 2017, the first year of the Overseas NGO Law’s implementation, 305 overseas NGOs registered representative offices, and 494 temporary activities were filed. By November 4th 2018, the day before Professor Jia’s talk, the total number of registered offices had risen to 427, while the number of temporary activities had grown much faster, reaching 1179. The Ministry of Public Security’s website currently (May 2019) lists 1740 temporary activities filed by overseas NGOs since the law was passed, showing that in the intervening time the number of temporary activities has been increasing faster than ever.
Based on the figures, Professor Jia suggested that many overseas NGOs that had encountered difficulties in officially registering an office in China were turning to temporary activities as a solution to achieve legality for their projects. She also predicted that filing temporary activities would continue to get more common in the coming years, and “could turn into a normalized channel towards legality”.
Contacted for this article, Professor Jia further expounded that “for some organizations, filing temporary activities may become a long-term operational method, but this will still only be for a definite period, because it cannot solve the issue of the organization’s legal identity, so if an organization has plans to work in China comprehensively and long-term, relying on filing temporary activities will not be able to entirely fulfil its needs, since this is project-based. Perhaps for some organizations it can be a routine choice for a certain period of time, but it cannot substitute the function of registering a representative office”.
It is instructive to look at the data on the temporary activities of overseas NGOs collected on the Ministry of Public Security’s website, and translated into English by ChinaFile. One fact that stands out is that quite a high proportion of the temporary activities recorded were scheduled to last an entire year (or just a few days short of a year). It would appear that many of these “temporary activities” actually stand for long-running projects, and after a year has passed a new filing is conducted to extend the activity for one more year.
Some overseas NGOs are noticeable for the large number of times that they have filed temporary activities, particularly activities lasting an entire year. One example is the Grace Charity Foundation, an organization based in Hong Kong that works to establish schools in remote districts of Southwestern China. It is recorded as having filed 93 temporary activities in Mainland China, out of which 44 last or have lasted for one whole year. Most of the year-long activities consist in providing financial aid to impoverished students, or providing “construction assistance” to specific elementary schools.
In most cases the Chinese partner units are organs of the local bureaucracy, but for some activities it is individual schools that serve as the local partners. It appears that in cases such as this one, filing for temporary activities has become a way of continuing to carry out an organization’s routine work in China without actually registering a representative office, either because it is considered too onerous to do so or because this has not yet been possible.
There are also cases of overseas NGOs that have in fact registered a representative office in China, and yet continue to conduct large numbers of temporary activities. This can be explained by the fact that each representative office is allocated a permitted area of operations, which is sometimes limited to the province or municipality where the office is registered, but other times may include various provinces or even the whole country. If an NGO wants to work in a province which is not included in its official area of operations, it may still have to resort to filing temporary activities.
A good example of this would be Sowers Action, another charity based in Hong Kong that focuses on education in rural China. The organization runs programs in Southern and Western China that include providing financial aid for students and teachers, assisting in the construction of rural schools and donating cotton clothing to children in impoverished communities.
In December 2017 Sowers Action registered a representative office in Yunnan Province, with the office’s permitted area of operations limited to that province, but they have continued to carry out their work in other Chinese provinces as well. Up to now they have filed a total of 24 temporary activities across nine provinces, including 15 lasting for a full year. Chinese partner units include provincial branches of the China Youth Development Foundation, county-level Communist Youth League Committees and other local state organs.
When contacted for this article, a representative of Sowers Action explained that conducting temporary activities could set clear guidelines and legality for project implementation in Mainland China, and provide better protection and legitimacy to their projects and volunteers. They added however that foreknowledge of the projects is required by the authorities at the beginning of the year, and this can affect the projects’ flexibility. They also cited the administrative costs and the time spent in applying and running the projects in different provinces as disadvantages, claiming that in the beginning some government departments or local partners may not be especially familiar with the law when they have to deal with the approval process. They said however that although the pace varied in different provinces, all of their temporary activities were eventually approved.
Temporary activities have allowed some overseas NGOs to forge strong links with their Chinese partners
Another NGO that has carried out a large number of temporary activities in China over the last two years is Greenpeace. The international environmental organization based in the Netherlands officially opened its first office in Mainland China in 2002. As of yet, Greenpeace has been unable to register a representative office under the new legal framework, but it has filed 23 temporary activities.
These temporary activities have been quite diverse, including capacity building programs, a survey of urban air pollution and population health, and an ad campaign in the Beijing subway to raise awareness of the need to protect the South Pole. The Chinese partners have mostly been universities, but also government departments and NGOs. Greenpeace is currently partnering with a grassroots NGO from Shanghai, BlueSky4Children, in a one-year temporary activity to encourage consumers not to make any new clothes purchases for one full year.
When contacted, Greenpeace’s communications officer explained that the constant use of temporary activities was indeed imposing a heavy burden on the organization in terms of the time and administrative costs needed to apply for such activities. She pointed out however that this new work mode did provide one major benefit: since every temporary activity necessitates a local partner, it had allowed Greenpeace to build up many valuable connections with local organizations. She also added that in some ways working through temporary activities allows more flexibility, since it means that every project constitutes an independent entity, while registered ONGOs have to make sure that all of their activities are included in the work plan they present to their PSU at the start of the year.
During the talk she gave at CDB’s Overseas NGO Forum in November, Greenpeace’s chief representative in China Li Yan spoke widely about Greenpeace’s use of temporary activities to run its work in China, stressing how important it had been to establish an atmosphere of trust with their Chinese partners. She also pointed out that the authorities in different places have different work styles and different ways of operating concerning the new law, meaning that a lot of situations cannot be foreseen and there is always a necessity to discuss things in detail.
On the positive side, Li Yan said that applying for temporary activities had allowed Greenpeace to form closer and more equal connections with its Chinese partners, whereas in the past, cooperation with local NGOs or universities had felt more like a contractual relationship. She ended the talk by affirming that Greenpeace’s long-term goal in China remains the registration of a representative office, and that resorting to temporary activities had only strengthened their determination to register.
This is certainly a complicated time for international civil society organizations in China, one in which flexibility and patience are paramount. While the new legal framework presents its own set of unique challenges, the over 1700 temporary activities officially filed since the new law came into force are proof that overseas NGOs are finding new ways to work in the country, while forging new partnerships with local organizations in the process. This bears testament both to their adaptability, and to the resilience of the links between Chinese and international civil society.