Characterizing China’s Rule of Law

Chinese President Xi Jinping is working in earnest to develop for China what his government calls “rule by law” (法治). It is sometimes translated into English as “rule of law,” though this is misleading, as Chinese law cannot restrict arbitrary exercise of power at the highest levels: the Party leads everything. As such, an awareness of the term’s precise meaning in the PRC’s legal-political context is crucial for understanding Xi’s intent. The Chinese president has stated that “the rule of law is an important component of the country’s core competitiveness” (People’s Daily, November 22, 2020). In light of this, the recently promulgated Foreign Relations Law (对外关系法), which emphasizes China’s competitiveness, provides an opportunity to interrogate Xi’s conception of the rule of law. [1]

The Foreign Relations Law (henceforth, the Law) is timely. The head of the powerful Legislative Affairs Committee said in an interview that out of the PRC’s 297 national laws, 52 were dedicated to foreign relations and 150 more had provisions relating to foreign relations. [2] The Law is therefore an important addition, “consolidating and describing the major policies and principles of China’s foreign affairs,” in the words of current (and former) foreign minister Wang Yi. [3] Moreover, it comes at a moment in which China is at once increasingly emboldened on the international stage, and whose relations with many developed countries are increasingly fraught. Support from abroad could be helpful for China as it attempts to navigate out of a mismanaged end to the Covid-19 pandemic, but there is little to reassure foreign partners that their investments in the country will be protected by its laws.

The Foreign Relations Law

China’s Foreign Relations Law was promulgated by the Standing Committee of the National People’s Congress on June 28, 2023, and took effect on July 1. The Law itself has six sections: provisions, authorities, goals and tasks, systems for foreign relations, safeguards for developing foreign relations, and a supplementary provision. It seeks to consolidate and focus China’s approach to foreign relations, while also “accelerating the construction of foreign-related rule of law, improving the level of legalization of foreign-related work, effectively responding to risks and challenges, and better safeguarding China’s sovereignty, security, and development interests through legal means.” [4]

In line with Xi’s concerns over regime stability, a major function of the Law is buttressing the position within the government of “Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era” (article 3), as well as the Chinese Communist Party (CCP) itself  (article 5; cf. Gleichschaltung, Qiushi, April 1, 2019). To this end, the Law enacts provisions to constrain government bodies to perform as the Party expects: Lawmaker Wu Zeng explains that the Law “clarifie[s] the division of duties and powers of relevant state organs in handling foreign relations.” [5]

One function of the Law is to codify responsibilities regarding international treaties. In articles 10-12, the legislative and executive responsibilities as stated in previous legislation are reiterated, with the exception that the Law grants authority to approve treaties to the NPC, and not just the NPC Standing Committee. Wu explains that this variance is based on the Constitution and “experience approving treaties.” [6] The Law also contains provisions which constrain the scope of treaties (articles 30-31), specifying that they may not “contravene the Constitution” or “damage national sovereignty, security or societal public interests.” By comparison, the U.S. Constitution places treaties on an equal footing with law, defining them as part of “the supreme Law of the Land.” [7] The vagueness of these prohibitions (what falls under the scope of “damaging societal public interests”?) is a feature of the Law as a whole.

The broadness of some of the language makes the Law’s impact difficult to ascertain for now, but some representative articles suggest that concern is warranted: sweeping powers, now enshrined in law, leave the government ample room to intervene as it sees fit in various domains — potentially even beyond PRC borders. For instance, articles 6 and 37 state:

National bodies and the armed forces, each political party and people’s organization, enterprises, professional institutions, and other social organizations, as well as citizens, have the responsibility and obligation in foreign exchanges and cooperation to protect national sovereignty, security, dignity, honor, and interests…

The state takes necessary measures according to law to protect the safety and legitimate rights and interests of Chinese citizens and organizations abroad, and to protect the country’s overseas interests from threats and infringements.

The codification of laws covering extraterritorial activities are not novel to China, but the language here is indicative of an emboldened state with increasing interests overseas that it deems critical to protect. In fact, these articles are redolent of China’s assertive “Wolf Warrior diplomacy” and its sometimes crude approach to foreign states and peoples: For instance, Wang Yi lamented in July that “When we go to the United States, they all think we’re Asians. They can’t tell the difference between Chinese, Japanese or Koreans.” (ifeng, July 4, 2023)

This rhetoric is at odds with Xi’s more grandiose, benevolent global vision, which include the Global Development Initiative (which includes the Belt and Road Initiative), the Global Security Initiative, and the Global Civilization Initiative. These initiatives are currently lacking in substance, but essentially aim to provide a framework for China’s economic, security, and cultural exchanges with countries around the world. Significantly, the new Foreign Relations Law codifies these concepts for the first time. A further tension with “Wolf Warrior” diplomacy is the Law’s calls for “high-level openness towards foreign countries” (article 26), particularly broad economic cooperation, and support for the rights of foreigners and foreign organizations within China (article 18). Similarly, while article 39 promotes international cooperation to crack down on international crimes, there is a clear conflict between extraterritorial actions and programs such as Operation Fox Hunt and attempted suppression of critical speech worldwide on the one hand, and China’s overtures to foreign countries under the guise of buttressing the international legal order on the other. A case in point is article 18, which states that the PRC participates in the “reform and development” of the global governance system, suggesting the PRC’s intentions to proactively shape the international political environment.

The Law also covers the state’s approach to sanctions. Article 35 authorizes the government to “implement binding sanctions resolutions and related measures issued by the UN Security Council under Chapter VII of the UN Charter.” This is curious because, as much as Beijing criticizes the United States for its use of official sanctions, [8] the PRC regularly uses unofficial sanctions to express its displeasure, for example against South Korea after it accepted the United States’s THAAD system and Australia after it called for an investigation into Covid-19’s origins (Peterson Institute, December 14, 2020). Since a key goal of the Law was to formalize authorities, one might have expected the Law to formalize this form of sanctioning, but it does not. To be sure, the Law authorizes the PRC to adopt “countermeasures and restrictive measures” in response to foreign sanctions and other negative acts (article 33), similar to provisions found in the Countering Foreign Sanctions Law of June 10, 2021. However, such a process is not defined. This underlines one of the Law’s inherent contradictions: Even while the Law can be seen as part of a wider project to build a comprehensive legal apparatus for the state, the Party nevertheless sits above the entire edifice (NPC, February 28, 2018). Political scientist Minxin Pei, in an interview with Willy Lam, notes that the law “provides Beijing a legal instrument to impose sanctions on its adversaries in the future.” Lam concurs, seeing it as a vehicle to legitimize tough measures that Beijing is taking against the ‘bullying’ of the ‘hegemonic West’” (China Brief, July 5, 2023).

Overall, as Lam has argued, the Law is geared to “legitimize – and reinforce – foreign policy goals set by Xi since he came to power in 2012,” while underscoring the PRC tradition that “the No. 1 leader in the party has sole responsibilities in formulating foreign and national-security policies.” The Law also has utility for supporting what he calls “Xi’s controversial decisions to back up his good friend Vladimir Putin and to engage in breakneck competition with the US-led ‘anti-China’ coalition” (China Brief, July 5, 2023).

On the Rule of Law

Intertwined in Xi’s goals for the law is his program to develop “the rule of law,” although that is a misleading translation of the Chinese term (法治). This has been a goal for PRC paramount leaders for some time. [9] According to the Party’s “Implementation Outline for the Development of Government under Rule of Law (2021-2025)”:

By 2025, government conduct will be fully integrated into the track of rule according to law… laying a solid foundation for the establishment of a country under the rule of law, a government under the rule of law, and a society under the rule of law by 2035. [10]

The PRC’s use of “rule of law” conflates what Wang Yi and Wu Zeng call “socialist rule of law with Chinese characteristics” with the Western democratic variety. In the Chinese tradition, the term hearkens back to the Legalist tradition, whereby the law is used instrumentally as a tool of governance. A closer translation of this concept might be “rule by law.” However, the modern English usage connotes a form of tyranny while the ancient Legalists saw it as a way to control the population and make the country “wealthy and strong.” [11] Thus the connotation of “rule by law” is positive in Chinese but negative in English. The translation of the term as “rule of law” in English is also seen in the formulation “ruling the country according to law” (依法治国). This translation follows modern PRC practice but again potentially glosses over profound differences in meaning.  Constitutional scholar Zhu Fuhui clarifies it this way: “China’s socialist constitutional governance is government-led, unlike those of Western countries in which the constitution rules over the government. In a nutshell…it is the political and law enforcement systems that reform and establish a modern system of government to ensure political legitimacy and socialist democracy are naturally interwoven.” [12]

Since the “rule of law” in the West refers to “the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws,” [13] we might see the Law’s clarification of responsibilities as signaling a crucial check on power. However, while assigning powers to government bodies can define a legitimate process, it cannot by itself prevent abuse. Thus, there is little expectation that the Law will be applied impartially in the liminal area between government corruption and malfeasance and Xi’s perception of political threats.

Conclusion

There is a fundamental contradiction between Xi Jinping’s desire for modern governance and his need for authoritarian control. He wishes China to have a full array of laws that constrain his government, but do not constrain him. This system of “socialist rule of law with Chinese characteristics” has a form of limited governance, individual rights (in the ability to vote), and juridical legitimacy. [14] But Xi’s ability to set the legislative agenda, to use the security apparatus to eliminate any perceived threat, to violate the rights of citizens en masse in the most extreme fashion [15], and to stifle any mention of violation of rights, all without legal recourse, demonstrate that the true potential power of the PRC state is unlimited by law.

Indeed, a system by which laws are established and periodically updated is the lifeblood of modern governance. While Xi’s system does that, its lack of checks on executive power negates the benefits. Without these safeguards, China’s laws are at best a vehicle to promote the paramount leader’s objectives. The PRC’s “securitization” of society and expanded definitions of security issues should give pause to anyone visiting or conducting business with the PRC.

Notes

[1] The Law on Foreign Relations of the People’s Republic of China ([CN link to gov.cn] English here: https://english.news.cn/20230628/28c7aedd386440ba9c370eb22476d430/c.html).

[2] “全国人大常委会法工委负责人就对外关系法答记者问 [Leader of the NPC Standing Committee Legislative Affairs Commission Answers a Reporter’s Questions on the Foreign Relations Law],” (hereafter “NPCSC LAC”) (http://www.npc.gov.cn/npc/c30834/202306/dfb5d69d9ba34a3ca36bbc76d6b567d5.shtml);

学习平台 [Learn from Xi Platform] website (http://www.12371.cn/special/xxzd/hxnr/wj/).

[3] Wang Yi, “贯彻对外关系法，为新时代中国特色大国外交提供坚强法治保障 [Implement the Foreign Relations Law to Provide a Strong Guarantee of Rule According to Law for Great Power Diplomacy with Chinese Characteristics in the New Era],” People’s Daily, June 29, 2023 (http://politics.people.com.cn/n1/2023/0629/c1001-40023485.html);

[4] NPCSC LAC.

[5] Wu Zeng, “关于《中华人民共和国对外关系法（草案）》的说明 [An Explanation of the PRC Foreign Relations Law (Draft)],” October 27, 2022 (given at the 37th meeting of the 13th session of the NPC Standing Committee, http://www.npc.gov.cn/npc/c30834/202306/6aa6c46e80574fc88e3821a9e47eb646.shtml?utm_source=substack&utm_medium=email).

[6] ibid.

[7] Constitution of the United States of America, section 4, article 6 (https://www.senate.gov/about/origins-foundations/senate-and-constitution/constitution.htm).; Constitution of the People’s Republic of China, 1982 (https://www.gov.cn/guoqing/2018-03/22/content_5276318.htm).

[8] PRC Ministry of Foreign Affairs, US Hegemony and Its Perils, February 20, 2023.

[9] “胡锦涛强调依法治国依法执政 [Hu Jintao Emphasizes Rule According to Law and Governance According to Law],” Xinhua, October 10, 2007 (https://www.gov.cn/test/2007-10/10/content_773239.htm);

See also Zhongguo Gongchandang Xinwen.

[10] “中共中央 国务院印发《法治政府建设实施纲要（2021－2025年）》[CCP Central Committee Publishes ‘Implementation Outline for the Development of Government under Rule According to Law (2021-2025)’],” Xinhua, August 11, 2021 (https://www.gov.cn/zhengce/2021-08/11/content_5630802.htm); draft translation at China Law Translate (https://www.chinalawtranslate.com/en/gov-rule-of-law-outline/)

[11] “Biography of Shang Jun,” chapter 68 in Sima Qian, 史记 [Chronicles of the Historian].

[12] Zhu Fuhui, et. al, Towards Constitutional Governance: Studies in Basic Issues of Chinese Socialist Constitutional Governance, (Xiamen: Xiamen University Press, 2011), foreword.

[13] Google.com definition by Oxford Languages.

[14] Zhu Fuhui, et. al, Towards Constitutional Governance: Studies in Basic Issues of Chinese Socialist Constitutional Governance, (Xiamen: Xiamen University Press, 2011), foreword.

[15] OHCHR Assessment of human rights concerns in the Xinjiang Uyghur Autonomous Region, People’s Republic of China, August 31 2022.

(https://www.ohchr.org/sites/default/files/documents/countries/2022-08-31/22-08-31-final-assesment.pdf);