By Moritz Rudolf
On June 28, China’s national legislature, the Standing Committee of the National People’s Congress, adopted the Foreign Relations Law [对外关系法]. It went into force on July 1, 2023.
The Law underlines two important trends: China’s increasing global outreach and its willingness to embed this global outreach within a legal framework.
As a framework law, it restates China’s long-standing foreign policy positions and codifies its foreign policy praxis. It also highlights new priorities such as the recently launched Global Security Initiative [全球安全倡议], Global Development Initiative [全球发展倡议], and Global Civilization Initiative [全球文明倡议]. While it clarifies many aspects of the function and vision of China’s foreign policy apparatus, it also creates significant legal uncertainty, especially with regards to the application and implementation of international treaties. This is particularly relevant given the deterioration of U.S.-China relations and the renewed prioritization of “struggle” [斗争] in the PRC’s foreign policy vocabulary and as a new key element of Xi Jinping Thought.
The Law outlines China’s foreign policy framework and goals in 45 articles spanning six chapters, which I discuss in turn below.
Fundamentals of China’s Foreign Policy
Chapter I summarizes the fundamentals of the PRC’s foreign policy. They have been part of the standard repertoire of Communist Party documents and speeches by high-level officials for years. Putting them into law dovetails with the recent shifts under Xi Jinping towards a more proactive foreign policy approach by the PRC as well as the promotion of Xi Jinping Thought on the Rule of Law.
The Law applies to the PRC’s conduct of (art. 2)—
- diplomatic relations with other countries;
- its exchanges and cooperation with them in economic, cultural, and other areas; and
- its relations with the United Nations and other international organizations.
It explicitly requires that China’s foreign relations be conducted to (art. 1)—
- safeguard China’s sovereignty, security, and development interests;
- protect and promote the interests of the Chinese people;
- build China into a great modernized socialist country;
- realize the great rejuvenation of the Chinese nation;
- promote world peace and development; and
- build a community with a shared future for mankind.
Not surprisingly, the Law underscores the Communist Party’s “centralized and overall” leadership over the PRC’s conduct of foreign relations (art. 5), enumerating the key elements of Sino-Marxism as spelled out in the PRC and Party constitutions: Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory, the Thinking of Three Represents, the Scientific Outlook on Development, and Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era (art. 3).
In addition, the Law codifies the pillars of China’s foreign relations (art. 4):
- an independent foreign policy of peace;
- the five principles of peaceful coexistence;
- peaceful development;
- opening to the outside world;
- opening-up for mutual benefit;
- purposes and principles of the U.N. Charter;
- peace and security;
- global common development;
- new type of international relations;
- peaceful settlement of international disputes;
- opposition to the use and threat of force, hegemony, and power politics;
- the principle that all countries are equal regardless of size, strength, or level of development; and
- respect for the development paths and social systems of all countries.
According to the Law, all state institutions, armed forces, political parties, mass organizations, enterprises, public institutions, social organizations, and citizens have the responsibility and obligation to safeguard “national sovereignty, security, dignity, honor, and interests” in foreign exchanges and cooperation (art. 6). The reference to “dignity” and “honor” appears very vague and leaves room for political interpretation, and this vagueness permeates the law.
China’s Foreign Policy Praxis
Chapter II outlines the authority of various components of the Party-state to develop foreign relations. For instance, it codifies the fundamental role of the “central leading body on foreign affairs”—referring to the Party’s Central Foreign Affairs Commission—which includes:
- major decision-making and coordinating deliberations on foreign affairs work;
- researching, drafting, and guiding the implementation of foreign affairs strategies and related major directives and policies; and
- top-level design, planning and coordination, overall advancement, and urging implementation of foreign affairs efforts.
Reflecting the PRC’s praxis, article 10 provides that the NPC and its Standing Committee have the authority to—
- approve and abrogate treaties and important agreements concluded with foreign nations;
- exercise authority over foreign relations as provided by the Constitution and laws;
- actively carry out foreign exchanges; and
- strengthen exchanges and cooperation with the parliaments of other nations and with international and regional parliamentary organizations.
This Chapter further lists the authority of the PRC president, the State Council, the Central Military Commission, the Ministry of Foreign Affairs (MOFA) and other central Party and state organs, diplomatic missions (e.g., embassies and consulates), and provinces (arts. 11–15). In particular, the Law memorializes the authority of the MOFA, which includes (arts. 14–15):
- handling diplomatic matters;
- undertaking diplomatic exchanges between Chinese leaders and foreign leaders;
- strengthening guidance, coordination, management, and services for foreign exchanges and cooperation conducted by other state organs and localities; and
- leading the efforts of diplomatic missions abroad.
China’s Desired Positions Within the International Order
Chapter III summarizes China’s goals and tasks for the development of foreign relations. Article 17 starts by stressing the need to uphold (1) the system of socialism with Chinese characteristics, (2) China’s national sovereignty, unity, and territorial integrity as well as (3) China’s economic and social development as the key determining factors for the direction of its foreign relations.
Articles 20–28 then codify the PRC’s abstract foreign policy goals—for instance, sound major-powers relations (e.g., with Russia or the United States), growing relations with neighboring countries (prioritizing Southeast Asia and increasingly Central Asia), solidarity and cooperation with developing countries, upholding and practicing multilateralism, and participating in the reform and development of the global governance system. Those articles also lay out the PRC’s foreign policy priority areas, positions, and visions with regard to security, development, human rights, common values, civilizations, environment and climate, economic relations, foreign aid, and cooperation with developing countries.
This Chapter, moreover, outlines the PRC’s ambitions to “preserve” and “reform” aspects of the international order, reiterating Beijing’s ambitions to act within the system. The relevant provisions demonstrate the PRC’s objective to be perceived as a responsible global power. Yet at the same time, the PRC has become more outspoken about its ambitions to make the international order less biased towards the interests of Western countries.
To illustrate, article 19 states the PRC aims to preserve (1) the international system with the United Nations at its core; (2) the international order based on international law; and (3) the basic norms of international relations based on the purposes and principles of the U.N. Charter. That article further highlights Beijing’s ambitions to reform the international order, by participating in the formulation of international rules as well as by promoting the “democratization of international relations” and economic globalization.
Other areas where the Law states that the PRC aims to become more active include:
- mechanisms for participation in global security governance (art. 20);
- coordinated and sustainable economic, social, and environmental development and the overall development of humankind (art. 21);
- the establishment of a fair, reasonable, coordinated, and mutually beneficial global environmental and climate government system (art. 25);
- the high-quality development of the Belt and Road Initiative (art. 26);
- the establishment of an open world economy (id.);
- the economic development and social improvement of developing nations (art. 27); and
- cooperation in international development (id.).
These contents are not new, particularly the prominence of “development.” They nevertheless reflect Beijing’s increasingly active global role, self-perception as an important pillar of the international order, and willingness to reform it.
A remarkable aspect of this Chapter is the codification of three recently launched global initiatives: Global Development Initiative (GDI), Global Security Initiative (GSI), and Global Civilization Initiative (GCI) (art. 18). They are the main pillars of the “community of shared future for mankind,” the PRC’s proposal for an international order free of what it sees as the inherent Western biases of the existing international order.
I discussed these initiatives in detail in my testimony before the U.S.-China Economic and Security Commission in May 2023, but here is a high-level overview. The GDI (announced in September 2021 at the U.N. General Assembly) projects China’s prioritization of development to the U.N. level, attempting to tie it to the 2030 Sustainable Development Goals. The GSI (launched in April 2022 during the Boao Forum) can be viewed as the PRC’s vision of collective security reform. And the GCI, most recently announced by Xi on March 15, incorporates Beijing’s “modernization does not equal westernization” narrative into a global initiative. It represents another outreach effort to the developing world and critique to western claims of universality.
The elevation of those initiatives to statutory schemes underlines their importance to China’s foreign policy. It should be noted that they remain abstract and open for political interpretation as they are still in the making.
China’s Legal Systems of Foreign Relations
Chapter IV largely restates the content of existing Chinese law and China’s foreign-related legal priorities under the umbrella of promoting “foreign-related rule of law” [涉外法治], an essential component of Xi’s Thought on the Rule of Law.
According to Xi’s speech at a Politburo group study session in December 2021, “foreign-related rule of law” includes four main components:
- ramping up “legislation in foreign-related fields,” especially legislation to protect Chinese citizens and entities from foreign sanctions, interference, and long-arm jurisdiction;
- expanding extraterritorial application of Chinese laws;
- improving the ability of Chinese courts to apply foreign laws; and
- training more Chinese jurists to understand and apply foreign and international law.
Chapter IV reflects these priorities. For instance, article 29 codifies, again, the PRC’s ambitions to strengthen “legislation in foreign-related fields” and the establishment of “foreign-related rule of law systems.” Articles 32 and 37 focus on protecting the rights and interests of Chinese citizens and organizations overseas, as well as guarding China’s overseas interests against “threats and infringements.” To increase foreign-related rule of law capacity, Article 37 specifically vows to “strengthen the establishment of systems, working mechanisms, and capacity for protecting overseas interests.”
In addition, article 33 restates existing legislation on “countermeasures and restrictive measures.” It declares that the PRC has the right to take such measures “against acts that harm [its] sovereignty, security, and developmental interests in violation of international law and fundamental norms of international relations.” This provision appears to have limited independent applicability, however, as it overlaps with preexisting provisions in more specific laws, such as the 2021 Anti–Foreign Sanctions Law [反外国制裁法].
Chapter IV also includes an article vowing to “strengthen” multilateral and bilateral dialogues on the rule of law as well as exchanges and cooperation on the rule of law with foreign countries (art. 39). Within the Belt and Road Initiative, for instance, those programs have been implemented under the umbrella of the “Clean Silk Road” [廉洁丝绸之路]. Priority areas include international cooperation on law enforcement, judicial cooperation, combating transnational crime, and anti-corruption.
Article 31, which touches on the implementation and application of international treaties, is the most concerning provision of the Law. It provides that treaty implementation or application must not “harm national sovereignty or security, or the societal public interest.” Due to the vagueness of the quoted language, this article creates a high level of legal uncertainty. The perception of “harm” may shift over time and the described interests may be expansively interpreted by the PRC. The wording is especially concerning, when seen in the light of deteriorating U.S.-China relations and an overall tenser geopolitical environment. The PRC sends the signal that the necessity to prepare for “international struggle” outweighs the other elements of the PRC’s foreign relations. This contradicts the intention of the law to provide more legal certainty and clarity when engaging in foreign relations with the PRC.
Support for the Conduct of Foreign Relations
Chapter IV governs state support for conducting foreign relations, including funding. It emphasizes building capacity to conduct foreign relations and safeguard national interests. It also mentions promoting public understanding and support for foreign affairs work (art. 43) and “promoting the world’s better understanding and knowledge of China” (art. 44). Those goals are not new, either. They demonstrate that Beijing is in a capacity-building mode and fit into the PRC’s general narrative to spread Chinese wisdom and promote understanding of China abroad.
The Foreign Relations Law puts the PRC’s foreign policy rhetoric and praxis into law. It underlines the PRC’s increasing ambitions to act globally and to use the law as a tool to reshape the international legal environment and promote its long-term development goals. This development may be particularly appealing to states in the Global South, where the Western narrative of promoting a “rules-based international order” is increasingly perceived cynically.
As pointed out by China’s top diplomat Wang Yi in his People’s Daily op-ed from June 29, 2023, the Law needs to be understood in the context of “foreign struggles.” Xi Jinping Thought frames the post-18th Party Congress “New Era” as one in which “struggle” plays a fundamental role. Balancing the focus of “struggle” with the attempt to develop into a key stakeholder in the realm of international law appears to be the PRC’s most critical challenge. This Law is just one tool of “struggle,” but it sheds light on a fundamental obstacle for the Chinese leadership if it wants to promote legal certainty at the international level: balancing the “struggle” with Beijing’s “responsible great power” narrative. The Law does not solve this contradiction. On the contrary, it makes it more obvious.
Dr. Moritz Rudolf is a Research Scholar in Law and Fellow at Yale Law School’s Paul Tsai China Center, where he focuses on the implications of China’s rise for the international legal order.