Who exactly is “the state” in China?

One of the interesting issues that has cropped up in the various lawsuits filed in US courts against “China” (broadly defined for the moment) is the question of whether the defendant is immune under the Foreign Sovereign Immunities Act. In some cases, foreign states are immune; in other cases, not. Some plaintiffs have tried to finesse the question by naming the Communist Party of China as a defendant, arguing that it’s not a foreign state. (I discussed that issue in this blog post.) The whole subject can be quite confusing, because in a state where the government asserts the right, and usually has the power when it really puts its mind to it, to exercise control over all persons and institutions in society (this is standard Leninism), how indeed do we draw a boundary between state and non-state? Is it even meaningful to try? What do we do about all the state-controlled bodies that are formally non-governmental, such as the All-China Federation of Trade Unions?

Occasionally the state (broadly defined, again) helps us out. For example, the Law on Public Officials formally covers formal civil servants, but at the end it says that employees of certain formally non-state organs that do the kinds of work public officials do shall be administered “with reference to” (参照) that law. (“With reference to” is a formal term of art in Chinese law meaning basically “according to”; it’s used when for various reasons you can’t say “according to”. For example, investment from Hong Kong and Taiwan cannot, for ideological reasons, be governed “according to” laws on foreign investment, because that would mean calling them foreign. But since the same concerns apply to investment from those places that apply to investment from foreign states, China wants to use the same laws. The solution: just say the laws apply “by reference.”) Thus, if we find that the employees of any institution or entity are administered “with reference to” the Law on Public Officials, we know that the state itself considers them pretty state-y.

I just came across a document the other day that provides much the same clues as to who the state considers state-y. It’s a regulation issued by the Ministry of Natural Resources on the Beijing real estate holdings of central organs. It’s concerned with real estate owned or used by entities that constitute the state in some meaningful way, at least for the purposes the regulation seeks to advance. Who are the entities? Here’s the list: 中央本级党的机关、人大机关、行政机关、政协机关、监察机关、审判机关、检察机关以及各民主党派、工商联、人民团体和参照公务员法管理的事业单位及所属单位. Translation: Party organs at the central level, NPC organs, administrative organs (i.e., the hierarchy with the State Council at the top), Supervisory Commission organs, judicial (court) organs, procuratorial organs, democratic parties, All-China Federation of Industry and Commerce, people’s groups (renmin tuanti; presumably including GONGOs such as the Women’s Federation, ACFTU, ACLA, etc.) and all institutions (shiye danwei) that are administered by reference to (note: not “in accordance with” because they are not formally state organs) the Law on Public Officials as well as their subordinate units.