Brief Analysis: NPCSC Approves new Law on Foreign Relations
Hi folks,
I was unable to do the newsletter for today owing to other commitments, but I did manage to go through the newly-approved Foreign Relations Law and have some preliminary thoughts, which I am sharing below.
This law was voted on and adopted by the NPCSC on Wednesday. The entire text is available in English, if you are interested. Below are some of my thoughts on the text.
I think we should look at this law as essentially providing a legal framework to what have been existing policies and practices. It codifies and clarifies the authority and responsibilities of institutions, outlines legal obligations of different entities, and clarifies pathways to pursue foreign relations and interests. For instance, Article 9 says: “The central leading body for foreign affairs is responsible for policy making, deliberation and coordination relating to the conduct of foreign relations. It considers and formulates the State's foreign relations strategy and related major principles and policies, and provides guidance for their implementation. It is responsible for top-level design, coordination and holistic advancement of work concerning foreign relations, and supervises its implementation.” — This essentially formally places the Central Foreign Affairs Commission at the top of the foreign affairs system’s hierarchy. This, in turn, tells us about the weakness of the Ministry of Foreign Affairs.
The law provides a legal stamp to the Party’s leadership over all foreign affairs. Another key element of this is found in Article 17, which says that the first goal of PRC foreign policy is to “uphold its system of socialism with Chinese characteristics.” And as we know, the most essential feature of the system of socialism with Chinese characteristics is the leadership of the CCP. Ergo, now legally, the fundamental purpose of Chinese foreign policy is sustaining the CCP-led regime.
Also, legally, now it is the “responsibility and obligation” of not just state institutions but also private institutions and citizens “to safeguard China's sovereignty, national security, dignity, honor and interests.” This gives sweeping legal authority to the Party-state to sanction and prosecute on what are honestly very broad and vague requirements. From my perspective, it has the potential to further stifle discussion, debate and disagreements on foreign policy issues. Article 8 makes this threat more tangible. It says: “Any organization or individual who commits acts that are detrimental to China's national interests in violation of this Law and other applicable laws in the course of engaging in international exchanges shall be held accountable by law.”
This law impacts foreign companies and individuals too, as evident by Article 8 mentioned above. But Article 38 also warns that “foreign nationals and foreign organizations in the territory of China shall abide by its laws, and shall not endanger China's national security, undermine social and public interests or disrupt social and public order.” This can be very broadly applied. I guess now foreign nationals must also worry about picking quarrels provoking trouble. Also, what would it mean to undermine public interests? I guess it depends on how courts interpret these terms.
It is now a legal requirement for the entire system to put into action BRI, GDI, GSI and GCI, which are Xi Jinping’s personal initiatives. In fact, building a community of shared future for mankind is listed as one of the purposes for which foreign policy is conducted.
Article 4 also says: “The People's Republic of China observes the purposes and principles of the Charter of the United Nations, and endeavors to safeguard world peace and security, promote global common development, and build a new type of international relations. It is committed to settling international disputes by peaceful means and opposes the use of force or threat of force in international relations, hegemonism and power politics. It remains true to the principle that all countries are equal regardless of size, strength or level of development and respects the development paths and social systems decided upon independently by the people of all countries.” — These are key planks of the current direction of Chinese foreign policy. Codifying this in law tells us that competition with the US, i.e., the challenges of hegemonism and power politics, and the desire to shape a new balance of power in international relations which entails heterogeneity as opposed to universality, is the fundamental challenge that Beijing believes will continue to be the dominant feature of its policies for the foreseeable future. One thing that’s worth noting is that there is no mention of the desire to fashion multipolarity in the law.
Article 22 says that the PRC is “committed to the principle of universality of human rights and its observance in light of the realities of countries.”
Also in this vein, Article 33 tells us that China has to right to take “measures to counter or take restrictive measures against acts that endanger its sovereignty, national security and development interests in violation of international law or fundamental norms governing international relations.” It promises new “administrative regulations and departmental rules” along with “working institutions and mechanisms” to adopt and enforce said measures.” To me, this implies not just more steps taken to respond to sanctions and export restrictions or other trade measures but also the potential to lend legal standing to target those who are seemingly violating the “one-China principle,” which the PRC defines as a “basic norm in international relations.” It also, therefore, implies greater potential for extraterritorial application of Chinese legal action going forward.
Article 35 is actually quite a positive one. It cracks down on the evasion of sanctions approved under the UNSC.
Finally, do note Article 31: “The implementation and application of treaties and agreements shall not undermine the sovereignty of the State, national security and public interests.” — What would be the definition of “public interests”? Does implementing UNCLOS undermine sovereignty and/or national security? Or for that matter certain trade agreements that China may have signed, which it later may argue are not compatible with domestic laws now–will those now be open for reconsideration?
Would be great to hear some of your thoughts on the law and its implications.
Cheers,
Manoj