The ABA-ACLA Memorandum Of Understanding: A Strong Step Forward For The Rule Of Law

Thursday, March 1, 2007 - 01:00

Editor: Would you share with us the origins of the relationship between the American Bar Association and the All China Lawyers Association?

Greco: The ABA and ACLA entered into a Memorandum of Understanding (MOU) in 1998 that began a formal relationship whose potential had not been fully realized when I traveled to China as ABA President in October 2005. After long and productive meetings in Suchow and Beijing, ACLA President Yu Ning and I agreed to negotiate a new MOU that would supercede the earlier one. Our negotiations over a ten-month period led to an MOU that I executed on behalf of the ABA in August 2006 as I finished my term of office. The Chinese government approved the MOU in the fall of 2006 and it took effect in early December 2006.

Editor: Your initial trip to China was in 1986. What were your impressions then?

Greco: In 1986, coincidentally the year of ACLA's birth, I led a delegation of twenty-nine lawyers and judges on a formal 22-day mission to China. We were informed at that time by a leading scholar at the University of Beijing that "legal workers" numbered fewer than 3,000 because there was "no need for more" in China. He explained that because the central government protected the rights of the Chinese people, legal workers were not necessary for that purpose, and that the major role of the 3,000 legal workers was the preparation and review of commercial documents. Today there are more than 130,000 lawyers in China. The legal profession in China thus has experienced tremendous growth in two decades, not just in numbers but also in substance and influence. ACLA has had and continues to have a central role in that development.

Editor: What has ACLA been able to accomplish since its founding?

Greco: It must be remembered that ACLA and its members are part of and supervised by the Chinese central government, unlike the ABA which is independent of the U.S. government and able to determine its own agenda. Within the parameters in which it operates, ACLA has been instrumental in a number of ways in promoting the development of the legal profession and the substantive law of China.

ACLA committees have not only played an important role in China's economic reform and opening but have also become influential, particularly over the last five years, in advocating for an enhanced role for lawyers' participation in such areas as environmental protection, criminal justice, children's rights, and death penalty administration. In addition, during the same period, ACLA has developed capacity for continuing legal education.

While ACLA has been more constrained than the ABA regarding issues it has been able to address, where it has been able to act it has accomplished a great deal. It was the potential presented by greater ABA-ACLA cooperation in areas of mutual interest that led me as ABA President to reach out to ACLA in the fall of 2005 to develop a stronger and expanded working relationship between our two associations.

Editor: What fruit is the agreement expected to bear?

Greco: When I met in China with ACLA President Yu in the fall of 2005, I also met with leaders in the Chinese Ministry of Justice. They were enthusiastic about a stronger collaboration between ACLA and the ABA because the role of the profession in China continues to assume greater importance. They acknowledged the legal profession's vital role not only in China's economic growth but also in the development and protection of human and legal rights. I found those views encouraging.

President Yu and I determined that the ABA-ACLA Memorandum of Understanding should include greater opportunities for exchanges of information and education about the laws of our respective countries in numerous areas, for example, Intellectual Property. The U.S. legal system and laws are more advanced in protecting IP than is the case in China, and there is pressing need for lawyers in both countries to understand the two systems in order effectively to advise clients and influence development of substantive law.

Equally important from my perspective is the need for the Chinese government to understand and appreciate the concerns of U.S. clients contemplating doing business in China. ABA-ACLA co-sponsorship of educational conferences in China and the U.S., lawyer-to-lawyer exchanges, exchanges of information about laws and procedures, and ongoing discussions on subjects such as legal education, professional ethics, human rights and the importance of the rule of law are all projected in the new ABA-ACLA Memorandum of Understanding.

One of my priorities as ABA president was to stress that the legal profession is one profession throughout the world, and that all lawyers in all countries are colleagues who together can achieve magnificent things to advance the rule of law for the protection of all peoples. The ABA-ACLA MOU provides great opportunity for the legal profession in the U.S. and China to advance the rule of law, to contribute to significant economic and social development, and to making the legal systems in our two countries more accessible and comprehensible to the other. If our respective business communities achieve a higher comfort level in investing in the other's economy - and a central component of such a comfort level is that the legal system is perceived as stable and the judiciary as fair and impartial - and if the lawyers of the two countries can advance the rule of law and protection of human rights for our fellow citizens, then the ABA-ACLA MOU will have served important purposes.

Editor: The concept of the rule of law is relatively new to China.

Greco: When people in Western nations talk about the "rule of law," it is generally assumed that there is basic agreement that the "laws that rule" must respect the dignity and human rights of all people, and that those principles in turn are safeguarded by a legal system in which the judiciary and legal profession are free from government or other control, coercion or intimidation. That understanding is not universally shared, because other nations, including China, have a different perspective on what "rule of law" means. A major challenge for the legal profession in our two countries is to forge common ground and agreement on fundamental principles that indisputably must underlie the "rule of law."

In Paris in November of 2005, I addressed some 120 bar leaders from around the world regarding my view of the role of a unified legal profession throughout the world in defining, protecting and advancing the rule of law. We thereupon agreed to adopt, and I authored, a simple statement of core principles to which the legal profession throughout the world, in the public's interest, is irrevocably committed - an independent judiciary, an independent legal profession, and access to justice for all people in all nations - without which the rule of law cannot exist. The bar leaders present unanimously signed on to the "Statement of Core Principles," also referred to as "The Paris Declaration." In February of 2006 it was unanimously adopted by the ABA's House of Delegates and since then by numerous bar associations throughout the world.

Editor: How is this discussion perceived in China?

Greco: The three principles included in the Statement of Core Principles are intertwined. The rule of law cannot be a reality without an independent judiciary, an independent legal profession and access to justice for all that is both real and perceived as real. The legal profession in China today is one of the strongest forces in China for creating meaningful rule of law - for the important reason that lawyers are treating law as relevant and as a source of authority.

ACLA, on behalf of the legal profession in China, is unambiguously and understandably proud of its increasing openness and participation with its counterparts in the international community. Such participation is welcomed by the ABA and the national bars of the world, for many reasons. Foremost among these reasons is the great potential presented for a united legal profession in all nations to serve as a strong force for advancing and protecting the rule of law throughout the world. It is my hope that in time the U.S. and China will agree on a definition of the "rule of law" that acknowledges, and protects, the worth and dignity of each human being.

This will be an evolutionary process. The rule of law has been part of our political culture in the U.S. from the founding of the country, but the sharper and more intense focus on it is fairly recent. It was not until the collapse of the Soviet Union that the ABA created its first rule of law project, CEELI, or the Central European and Eurasian Law Initiative, to promote the rule of law in a region long dominated by the Soviet view of the "rule of law." That initiative has accomplished a great deal over the past 15 years, and I am hopeful that, with ACLA's efforts, similar progress will occur in China.

Editor: The rapid growth in the legal profession in China over the last 20 years would indicate that the majority of the profession is made up of young attorneys. Does this not indicate that an infusion of idealism is underway?

Greco: The vast majority of new lawyers in China are young. During my most recent visit I attended a legal conference jointly sponsored by the ABA and ACLA at which I heard more than a dozen Chinese lawyers speak. They all but made me think I was attending a conference in the U.S. of reform-minded attorneys intent on protecting human rights, environmental rights, criminal rights, the rights of children, and providing pro bono legal services to poor Chinese citizens. These young lawyers are going to be a very positive force for the profession and for society in China.

Editor: How would you like to see this relationship evolve over the next five years?

Greco: The ABA-ACLA MOU presents an excellent opportunity for the legal profession in China and the U.S. I envision a series of conferences and programs, jointly sponsored, that will serve to enhance the legal profession's ability, in both countries, to help to protect individual rights and commercial rights. I know that the highest priority for incoming ABA President Bill Neukom, who will take office this August, will be the advancement of the rule of law worldwide, and that is certainly going to have a positive impact on the ABA-ACLA relationship.

For its part, ACLA in recent years has been increasing substantially its outreach to and participation in the international community of lawyers and jurists, thus facilitating greater understanding between China and other nations on legal cultural differences and similarities, and helping China to integrate better into the world community. I am pleased that President Yu and his ACLA colleagues and the ABA's leadership enjoy a strong and growing friendship, based on mutual respect and trust that will enable the two associations to make great progress. And so there are reasons to be optimistic about what can be accomplished under the new ABA-ACLA Memorandum of Understanding.

Foremost among those reasons is the great potential presented for a united legal profession in all nations, particularly in China and the United States, to serve as a strong force for advancing and protecting the rule of law throughout the world. Because the rule of law not only protects the dignity of all human beings, it also ensures the stability of legal systems that is vital to the economic development of all nations.