On June 28, China's Foreign Relations Law (the "Law") was adopted at the third session of the Standing Committee of the 14th National People's Congress (NPC), with effect almost immediately on July 1, 2023.1 The Law is regarded as China's "first basic law ... with a foundational and guiding role" encompassing China's major policies, principles and positions to legalize and make rule-based China's diplomacy and foreign relations. Basic law means a law subordinate only to the Constitution, but superior to laws of narrower reach. China claims the Law is the first such law on foreign relations by any country.2 As Wang Yi, member of the Politburo and Director of the Office of the Foreign Affairs Commission of the Party's Central Committee, China's most senior foreign relations official, stated, the formulation of the Law will help to expand China's legal tool box and provide a legal basis for opposing hegemonism and power politics, unilateralism, protectionism, and bullying, with a preventive and deterrent effect.3 In other words, the Law is intended to legalize China's foreign policy under Article 1 in accordance with China's Constitution. Similarly, under Article 30, China may not accede to any treaty or agreement which contravenes the Constitution.
At a press conference held by the Legislative Affairs Committee (LAC) of the Standing Committee of the NPC, the head of the LAC stated that among China's 297 laws which are currently valid, 52 are exclusively concerned with foreign relations and more than 150 contain clauses related to foreign relations. However, he maintained that some shortcomings and gaps in China's foreign-related legal system remained, especially with respect to safeguarding China's national sovereignty, security, and development interests.4 Facing increasing challenges in foreign relations, China had over the past three years introduced the Law on Countering Foreign Sanctions in June 2021, the Measures on Blocking Improper Extraterritorial Application of Foreign Laws and Measures in January 2021 (also known as the Blocking Rules), and the Provisions on the List of Unreliable Entities in September 2020 as countermeasures against foreign sanctions and long-arm jurisdiction.
The promulgation of the Law is another and more fundamental landmark item of legislation in the foreign relations sector, apparently intended to give China more powerful legal weapons to counter sanctions imposed by the United States and other jurisdictions against China and Chinese companies and individuals, as past trade restrictions on countries ranging from Lithuania and Norway to Australia and South Korea have not proven very effective. Although not expressly linked, the decision on July 3 by China's Ministry of Commerce and General Administration of Customs to impose restrictions on exports of certain gallium and germanium products used in the semiconductor industry5 draws foundation from Article 33 of the Law:
The People's Republic of China has the right to employ corresponding countermeasures or restrictive measures against acts that violate fundamental principles of international law and international relations and harm the sovereignty, security, and developmental interests of the People's Republic of China.
The State Council and its departments are to draft necessary administrative regulations and departmental rules, establish corresponding work systems and mechanisms, strengthen departmental coordination and cooperation, and determine and implement the related countermeasures and restrictive measures.
Decisions made on the basis of the first or second paragraph of this article are final decisions.
The Law taken as a whole comprises 45 articles across six chapters: General Principles, Responsibilities for Foreign Relations, Goals and Tasks of Developing Foreign Relations, Foreign Relations System, Safeguards for Developing Foreign Relations, and Supplementary Provisions.
Twelve of the 45 articles in the Law are directly linked to the Constitution, such as China's long-espoused principles of non-aggression and non-interference (Article 4). There are express references to the guiding ideology of successive Party leaders, including Xi Jinping, in Article 3:
The PRC adheres to the guidance of Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory, the Theory of Three Represents [associated with Jiang Zemin], the Scientific Outlook on Development [associated with Hu Jintao], and Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era in developing foreign relations and promoting friendly exchanges.
The Law further provides that foreign relations falls under the Party's centralized and unified leadership (Article 5). The State Council and its departments are authorized under the Law to establish a relevant working mechanism, and formulate and implement countermeasures and restrictive measures (Article 33, para 2). In practice this means that the Ministry of Foreign Affairs is ultimately subordinate not to the State Council or cabinet, but to the Central Foreign Affairs Commission, which ultimately falls under the Standing Committee of the Politburo and Xi Jinping.
As opposed to the alleged trend of "de-coupling" (not "de-risking") in the United States and elsewhere in the world, the Law asserts China's allegiance to high-level openness, developing foreign trade, promoting and protecting foreign investment, encouraging outbound foreign investment, promoting the joint construction of the Belt and Road Initiative, preserving the multilateral trading system, and promoting the establishment of an open world economy (Article 26).
The Law clarifies that China preserves the international system with the UN as its core, the international order based on international law, and the fundamental norms of international relations based on the goals and principles of the UN Charter (Article 19). The Law reaffirms diplomatic privileges and immunities granted to foreign diplomats, foreign government officials, international organizations and their officials in accordance with relevant international laws and treaties (Article 36).
The Law also states that, on a foundation of respecting fundamental principles of international law and norms, China will strengthen the implementation and application of laws and regulations in foreign-related fields, and employ law enforcement and judicial measures in accordance with law to preserve national sovereignty, security, and developmental interests (Articles 32). Left unspoken is the fact that China holds veto power in the UN Security Council and therefore is in position to prevent approval of any action to which it objects.
The Law represents that China has the right to employ countermeasures or restrictive measures against acts that violate fundamental principles of international law and international relations and harm its sovereignty, security, and developmental interests (Article 33, para. 1). These representations may suggest that China, based on its own laws, will not acknowledge the so-called ruled-based international order proposed by any other country or bloc of small countries, and will implement countermeasures if it infringes upon China's own interests.6
China commits in the Law to implementing binding sanction resolutions and related measures issued by the UN Security Council under the UN Charter. Organizations and individuals in China must not engage in activities counter to such resolutions and measures (Article 35, paras. 3, 5). Whether this will lead to more stringent enforcement within China of sanctions against North Korea remains to be seen.
Notably, the extraterritorial effect of the Law means that China is authorized to take necessary measures in accordance with law to protect the security and legitimate rights and interests of Chinese citizens and organizations overseas, and to ensure that the nation's overseas interests are not threatened or encroached upon (Article 37).
Similarly, China protects the lawful rights and interests of foreigners and foreign organizations within China (Article 38, para. 1). Foreigners and foreign organizations in China are, however, obliged to abide by Chinese laws and may not endanger China's national security, harm its public interests, or disrupt its public order (Article 38, para. 3). In fact, any organization or individual which violates the Law and engages in activity that harms China's interest in foreign exchanges shall be held legally accountable (Article 8). Furthermore, China has the right to allow or refuse entry, stay and residence of foreigners, and manage the activities of foreign organizations inside China (Article 38, para. 2). Article 38 thus risks further dampening foreign sentiment with respect to China, including among the foreign business community whose members are required to comply with sanctions imposed by their home government or in accordance with international financial systems, especially at a time of high uncertainty when China's economy is slowing and China seeks foreign investment.
The Law provides that China will advance international cooperation with foreign countries and international organizations in law enforcement and judicial fields, and strengthen cooperation in combating transnational crimes and anti-corruption (Article 39, para. 3). China's history with respect to cooperation in mutual legal assistance, fentanyl enforcement, and hunts for its own fugitives indicates that such cooperation may continue to be selective.
Footnotes
1. http://www.npc.gov.cn/npc/c30834/202306/d4a1d80fd2764a7ca3c57387cf17109d.shtml
2. https://www.fmprc.gov.cn/eng/xwfw_665399/s2510_665401/2511_665403/202306/t20230629_11105690.html
3. http://politics.people.com.cn/n1/2023/0629/c1001-40023485.html
4. http://www.npc.gov.cn/npc/c30834/202306/dfb5d69d9ba34a3ca36bbc76d6b567d5.shtml
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