China’s Foreign Relations Law: some comments

China’s Foreign Relations Law: Some Comments

China’s Foreign Relations Law (FRL) [English | Chinese] came into effect this month. There has already been a reasonable amount of commentary on it, but there are a few issues that I haven’t seen covered or that I see a different way, so here are some thoughts.

(1) 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.

Article 8 purports to prohibit activities in foreign intercourse that harm state interests in violation of the FRL, but provides no new specific prohibitions or sanctions. It just says that “legal liability will be pursued according to law.”

Similarly, Article 35 says that the Ministry of Foreign Affairs (MOFA) shall promulgate rules to implement UN Security Council decisions, and that those rules must be obeyed. But it doesn’t provide any sanctions for not obeying, so presumably whatever existing law says about the matter still applies.

(2) 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.

(3) Chapter Two of the FRL sets forth which institutions of the party-state have jurisdiction over what, but it doesn’t do so very clearly. Article 9 says that “the central leading organ for foreign affairs work” (中央外事工作领导机构) is responsible for “major decision-making and coordinating deliberations on foreign affairs work; is to research, draft, and guide the implementation of foreign affairs strategies and related major directives and policies; and is responsible for the top-level design, planning and coordination, overall advancement, and urging the implementation of foreign affairs efforts.” It does not identify by name the “central leading organ” in question, but presumably it is the Central Foreign Affairs Commission, a Party body. Vague references of this kind are common in Chinese statutes; the referent is something that everyone just knows. Once again, we see a role for the Party specifically written into the law.

Article 10 states that the National People’s Congress and its Standing Committee approve and reject treaties and important agreements with foreign countries, and adds (tautologically) that they have jurisdiction over foreign affairs that is given to them by law and the Constitution.

Article 11 is noteworthy because to the best of my knowledge it is the only place in the Chinese legal system where the State Chairman (国家主席, usually translated as “President”, and currently of course Xi Jinping) is given actual power.

Until now, the power of the State Chairman has been purely symbolic and ceremonial. This is evident from reading the Constitution and officially acknowledged as well. An official central government website stated in 2019 (interestingly, the page has since been removed) that “the presidency does not decide any state affairs but acts according to decisions of the NPC and the Standing Committee.”

Article 11, however, states that the State Chairman “represents the People’s Republic of China in carrying out affairs of state” and (tautologically again) “exercises the foreign affairs functions stipulated by the Constitution and law.” This could be construed to mean nothing more than receiving ambassadors and things like that, but “carrying out affairs of state” could also be plausibly construed as granting substantive power. Obviously Xi Jinping has that substantive power and doesn’t need a law to give it to him, but I think the language here gives the State Chairman at least a smidgen more substantive power than previous law.

The language I have translated as “affairs of state” is 国事活动; it’s not clear to me how that differs from the various expressions used to describe foreign affairs such as 对外工作, 外事工作, 对外事务, or 外交事务, all of which appear in the FRL.

The distinction is interesting because Article 12 then gives the State Council the power to “administer” foreign affairs, expressed this time as 对外事务. Within the State Council, the Ministry of Foreign Affairs (MOFA) is given authority over “foreign relations”, expressed as 外交事务 (Article 14). The Party again appears here, as MOFA is put in charge of arranging meetings between foreign leaders and China’s state and Party leaders.

Finally, Article 13 gives the Central Military Commission a foreign affairs role in military-to-military relations.

(4) There has been some commentary on the provision in the FRL that limit China’s obligations to comply with treaties where compliance would be unlawful under China’s domestic law or would otherwise harm state interests or sovereignty.

Some of these limitations strike me as quite normal. It is true that under international law, a state generally cannot invoke its own domestic law as grounds for non-compliance with international obligations. But all that means is that non-compliance violates international law. It may be that a government simply does not have the domestic legal power to do what it has promised or is obliged to do. The United States could enter into a treaty with Canada under which each promises to execute a randomly selected citizen annually, but it’s clear (at least I hope it is) that neither federal nor state governments have the constitutional power to do that. Domestic law would force the government to violate its international obligations.

Moreover, the language in Article 13 stating that treaties may not go against the Constitution could be read as simply denying to the government the power to enter into such treaties in the first place. (The problem, of course, is that there’s no institution in China that could police such a requirement and make it legally meaningful.)

Some of the other limitations, however, are iffier. Article 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.

(5) There’s an interesting provision in Article 33 that I haven’t seen any commentary on yet. It gives the state the power to impose sanctions for various reasons. (Nothing new there.) And it gives the State Council and its ministries the power to formulate regulations at both the State Council level (行政法规) and the ministry level (部门规章) to implement those sanctions. (Again, they didn’t need the FRL to give them this power.) What’s legally meaningful here is that the FRL then specifically states that these measures are “final decisions” (最终决定). This is significant because under Article 13 of China’s Administrative Litigation Law (ALL), any administrative measured labeled “final decisions” by statute are not challengeable under the ALL.

Needless to say, only the most foolhardy citizen would dare to even think of mounting a challenge to this kind of decision. And the provision has a belt-and-suspenders feel to it, since measures involving state action in foreign affairs are already immune from challenge. But for some reason the drafters decided they had better put this in, so I thought it was worth explaining the significance of those particular words.