Comments on the new Foreign Relations Law - why its called a one party-state
There are several good American lawyer blogs on Chinese law. Most prominent in my mind is Harris Bricken, which contains information on current and past cases dealing with businesses and law in China. The China collection features posts by several academic attorneys with China experience, including Donald Clarke, Ling Li, and Carl Minzner.
Don Clarke has some comments on the new Foreign Relations Law. I’m not a lawyer – I don’t even play one on tv – but three comments on Don Clarke’s comments.
(1) Most important – and this is something I’ve thought about for years, but never seen made explicit – is the intentional vagueness of law. Clarke –
Overall, the FRL doesn’t really do very much in terms of actual law. In a country like the United States, with a constitutionally divided government, you need a concept of foreign relations law and a set of associated doctrines in order to sort out which branch of government has the authority to do what. In a unitary Leninist state such as China, that kind of law is unnecessary and indeed makes no sense. There is a single party-state, and it has the inherent authority to do whatever it wants.
The FRL basically says that the state shall do this and that, and is empowered to do this and that, but pretty much all of that would have been the case without a FRL.
Laws of the United States are pretty general also, and require clarification and interpretation by administrative agencies and the court system. What is different in China is the ability of different ministries or agencies, both government and CCP, to administer a single law or regulation. You never know who might be watching and for what purpose. Vague law allows the leader to do as he wishes.
(2) Also of interest is CCP writing itself into the law, when usually in the past it has been the ghost in the machine rather than an operating agency. Clarke -
Article 5 writes into law the leading position of the Communist Party in China’s foreign policy. The reality of this is of course nothing new or unusual, but explicitly writing it into law, in realms both minor and major, is part of a pattern we have increasingly seen in the Xi era. For example, the 2022 revisions to the 1986 Regulations on the Administration of Geographic Names added a requirement that some names must be approved by the Party Center. Article 44 of the State Security Law, enacted in 2015, grants an unnamed “central state security leading organ” (中央国家安全领导机构)—by which is meant the Party’s State Security Commission, established in 2014—the power to establish and coordinate a national security system, and Article 63 gives it the power to deploy state resources in emergencies. And of course the 2018 revision to the Constitution wrote the Party’s role into the main text (Article 1) whereas previously it had been only in the preamble.
I suppose if CCP is defacto "leading the people" it might as well take a bit of credit ....
(3) One more element of interest (to some of us, anyway) – The new Foreign Relations Law writes that any treaty or foreign agreement that impinges on Chinese security or social welfare is inherently unconstitutional. Interpretation of “security” or “social welfare” is what lawyers are for in the US, and any number of administrative agencies in China are able to do. They don’t need to agree on definitions. Clarke, again -
… (A)rticle 31 states that the implementation and application of treaties and agreements may not harm state sovereignty, security, or social welfare. Let’s take these one by one.
First of all, the whole point of many treaties is precisely to limit the sovereignty of the parties. They used to be able to do as they liked in some realm, and now they have promised not to do whatever they like, but instead to comply with some promise. Thus, to say that treaty promises don’t have to be implemented where they infringe on sovereignty is to make those promises meaningless.
One might say, “Oh, they don’t mean that.” But China’s recent practice has made it clear that they do mean that.
Second, what does “security” or “social welfare” mean? These go beyond the straightforward idea that a government simply lacks the power to agree to violate its own constitution or law. We are now in the realm of judgment calls about vague terms. China is reserving to itself the power to renege on its promises essentially whenever it finds it inconvenient to keep them. China would not of course be the first or only state to do this, but as far as I know it’s pretty unusual to write this justification openly into domestic law. It should be taken seriously by any state thinking of entering into treaty relations with China about anything. Don’t say you weren’t warned.
Of course this gives China an out on any treaty or agreement, whether with businesses or governments or international organizations, when someone in CCP decides that security or social welfare are now being harmed by agreements formerly agreed to. You see this working in the raids earlier this year on three international consulting businesses in Beijing and Shanghai. Of particular interest to businesses and writers is the extraterritorial element of this new law. China intends to apply its laws to actions by businesses or word or deed done outside Chinese jurisdiction (Article 32 of the new law). China may arrest foreigners for what they have said or done when outside China. This is in line with the kidnappings in prior years of Chinese in foreign countries, and returning them to China for adjudication, but now that law will apply to ... well, everyone in the world. CCP, uber alles.
What we also see is further writing of CCP into its leading role in Chinese law. Everyone knows that CCP is in charge, but it is becoming more explicit under Xi. And further evidence for my contention that the best way to look at CCP is to see it as an occupier, occupying the Chinese people. Not a foreign occupier, but an elite that gathers special benefits and all power to itself without much reference to the wishes of the general population. CCP almost starts to look like the GOP occupying state legislatures on legislative districting and voting and law.
A translation of the Foreign Security Law from China Law Translate is available here.
