Why Chinese Foreign Relations Law Matters Now

That Chinese foreign relations law has long been given little attention can be attributed to two main factors. One is academic bias. In China, international law professors and national law professors traditionally are isolated from each other, narrowing their research and teaching to their “own” disciplines respectively. Few international lawyers know constitutional law well and, vice-versa, few constitutional law professors have much knowledge of international law. The other, more important factor concerns the manner in which China conducts foreign relations. It is widely recognized that the rule of law is far less developed in China than in many other countries. China was regarded as a rule-of-man state for a long period.Footnote ⁴ This situation was especially conspicuous in the field of foreign relations. Political expediency is routinely invoked to justify governmental activities in foreign relations, which is also characterized by low transparency to outside observers. For a long period, the Chinese people had hardly debated what role the law could play in foreign relations. For instance, it came as a surprise that China concluded and ratified treaties in a legal vacuum for a period of three years, starting from October 1987 when the Decision on the Ratification Procedure on Concluding Treaties with Foreign StatesFootnote ⁵ ceased to apply, to December 1990 when the Law of the People's Republic of China on the Procedures for the Conclusion of Treaties entered into force.Footnote ⁶

It is time to take Chinese foreign relations law seriously, however. The most fundamental reason is the rise of China as a great power. The enthusiasm for scrutinizing the foreign relations law of the United States is not only because this legal body in and of itself is sophisticatedly framed and enforced, but also because it is the legal body of the United States, a great power and the once sole superpower in the world. As China rises, foreign relations in which it is involved expand sharply in scope, content, and effect. How China manages foreign relations will have increasing effects on other states, nonstate actors in China and abroad, and China itself. Of particular interest, there is a trend whereby China is seeking to rely more heavily on legal means to argue for and pursue its national interests. In 2014, the Chinese Communist Party (CCP), the sole ruling party in China, adopted a grand legal reform strategy with the aim to develop the country into a real “socialist rule-of-law state.”Footnote ⁷ China, under this strategy, would “actively participate in international rule-making … increase China's power of discourse and influence in international legal affairs” and “protect the legal rights and interests of Chinese nationals and corporations abroad in accordance with the law.”Footnote ⁸ Chinese foreign relations law is thus beginning to grow in academic and practical importance.

The Current Structure of Chinese Foreign Relations Law

According to China's Constitution, the National People's Congress (NPC), with the Standing Committee as its permanent operational body, is the “highest organ of state power.”Footnote ⁹ Theoretically, the NPC could decide on any matters in foreign relations. Apart from stipulating that the NPC has the power to “decide on question of war and peace,”Footnote ¹⁰ however, the Constitution is silent on other powers of the NPC. Of particular note, it is silent about the NPC's power concerning treaty-making, which presumably is the most important modality of power in foreign relations in peacetime. The Constitution instead authorizes only the Standing Committee of the NPC to “decide on ratification or abrogation of treaties and important agreements.”Footnote ¹¹ And the Treaty-Concluding Procedure Law (1990) does not refer to a treaty power of the NPC, implying that even though the NPC might, relying on its constitutional status of the “highest organ of state power,” decide on the treaty ratification; it has no legal basis to do so under the Treaty-Concluding Procedure Law (1990). Similarly, the Constitution gives the President little substantive power in foreign relations. For instance, while it is not disputed that the Head of a State under customary international law has the power to conclude a treaty,Footnote ¹² the Chinese President does not have this power and instead is more of a rubber stamp to ratify treaties in accordance with decisions of the Standing Committee of the NPC. As far as the judiciary is concerned, the Constitution does provide that courts “exercise judicial power independently, in accordance with the provisions of the law, and are not subject to interference by any administrative organ, public organization or individual.”Footnote ¹³

In contrast to the NPC, the dominant player in Chinese foreign relations is the State Council, China's cabinet. It is authorized under the Constitution to “conduct foreign affairs and conclude treaties and agreements with foreign states.”Footnote ¹⁴ Under the Treaty-Concluding Procedure Law (1990), it approves “nonimportant” treaties and agreements.Footnote ¹⁵

There are discrepancies between norms and practice, however. The NPC has in fact been involved in treaty ratification in several cases. For instance, the State Council once submitted to the NPC rather than to the Standing Committee of the NPC the Joint Declaration on the Question of Hong Kong between the UK and China (1984), which, among others, provided the establishment of a special administrative region (SAR) in Hong Kong. The NPC adopted a decision on ratification in its own right.Footnote ¹⁶ Although it is justified for the NPC to do so under the Constitution and the Legislation Law (2000) because, in accordance with both laws, the establishment of SARs exclusively falls within the domain of the NPC,Footnote ¹⁷ it did not have authority to do so under the Treaty-Concluding Procedure Law (1990), as discussed above.

The President has also exercised the treaty power beyond the Constitution and the Treaty-Concluding Procedure Law (1990). For instance, in 2007, then-President Hu Jintao, on behalf of China, signed the Treaty of Good Neighborliness, Friendship and Cooperation between China and Tajikistan,Footnote ¹⁸ and the Treaty of Long-Term Good-Neighborliness, Friendship and Cooperation between the Member States of the Shanghai Cooperation Organization. Moreover, the State Council did not submit many international agreements like bilateral taxation agreements and bilateral investment agreements to the Standing Committee of the NPC for a decision on ratification, even though these agreements should have been identified as “important.” Rather, it approved them in its own right.Footnote ¹⁹

Or course, discrepancies between norms and practice exist in other countries as well as in China. Presumably, what really matters is the unique, inherent dynamic underlying the mechanism of Chinese foreign relations law, which is imposed by China's socialist identity. According to China's Constitution, the executive and judicial organs at central and local levels (for instance, the State Council and the Supreme People's Court at the central level respectively) are created by, and shall be subject to, the People's Congress (for instance, the NPC at the central level).Footnote ²⁰ Furthermore, as the sole ruling party in China, the CCP, through its branches at central and local levels, controls the operation of legislative, executive, and judicial branches.Footnote ²¹ This mechanism was authoritatively elaborated by Deng Xiaoping, the recognized “Chief Designer” of China's Reform and Opening-up Policy, thirty years ago and Deng's explanation still largely applies to today's China. Deng stated:

The socialist identity creates the structure of public governance in China, which is sharply different from that in states like the United States. Roughly speaking, the former is characterized by the “cooperation and coordination” between different governmental bodies and the latter is characterized by “checks and balances.” As a result, although being the highest organ of state power, the de facto role played by the NPC in China's public governance is far less than that literally enshrined in the Constitution. By the same token, the judicial branch is not immune from routine external interferences,Footnote ²³ which are often conducted in the name of cooperation and coordination. Rather, the executive branch occupies the central stage of national governance, often exercising its power without meaningful check. Thus, the dynamic underlying Chinese foreign relations law is sharply different from that in the United States where foreign relations law is said to serve as “an internal constraint on the unilateral exercise of foreign relations powers through the distribution of authority within the national government.”Footnote ²⁴

Recent Developments

There are two recent developments in Chinese foreign relation law that merit attention, but it is too early to draw definite conclusions from them. The first concerns a recent important legislative initiative concerning foreign relations. In March 2017, the Legal Affairs Office (LAO) of the State Council published the Regulation (Draft) for the Implementation of the Treaty-Concluding Procedure Law (1990) for public comments. The LAO explained that this initiative is aimed at making the Treaty-Concluding Procedure Law (1990) “more tailored, practical, and operational.“”Footnote ²⁵

The Draft includes many encouraging elements. For instance, more treaties are explicitly required to be submitted by the State Council to the Standing Committee of the NPC for a decision of ratification.Footnote ²⁶ The State Council, on submitting treaties to the Standing Committee of the NPC, is required to explain the background on negotiation of treaties; the main content of treaties; the necessity to ratify or join the treaties and the potential impact on China; the priorities and difficulties in the course of negotiations; the potential need for enactment or amendment of laws; and explanations of declarations or reservations to be made.Footnote ²⁷ Furthermore, if it is found in the course of negotiations that important adjustments or changes need to be made to the negotiation proposal already approved by the State Council, the Ministry of Foreign Affairs or the relevant department under the State Council in conjunction with it shall report it to the State Council for a new authorization.Footnote ²⁸ This would-be law could both enhance the treaty power of the Standing Committee of the NPC and make treaty negotiators more accountable. However, whether it suggests a trend toward an overall reconstruction of the distribution of power in Chinese foreign relations law and, more generally, a substantial improvement of rule of law in Chinese foreign relations, remains to be seen.

The second development concerns two Judicial Interpretations recently issued by the Supreme People's Court (SPC).Footnote ²⁹ The two Judicial Interpretations provide in detail how Chinese courts exercise jurisdiction over disputes and matters occurring within the waters under Chinese jurisdiction. It has been argued that they are helpful to protect Chinese maritime rights and interests in waters such as South China Sea,Footnote ³⁰ where China recently has been in confrontation with several states like the Philippines. Notably, He Rong, then Vice-President of the SPC, recently argued that, as China increases its international status and, in particular, China advocates the “One Belt One Road” Initiative, Chinese courts should increase their participation in the international economic rule-making through more active application of international law.Footnote ³¹ My own view, as I discussed when commenting on a case reported in 2014 in which a Chinese court allowed a suit filed by dozens of Chinese forced laborers and their descendants against two Japanese companies accused of being involved in Japan's forced labor programs during World War II, is that Chinese courts have begun to be involved in foreign relations in a deliberate manner.Footnote ³² In short, it seems that Chinese courts have begun to be mobilized to cooperate and coordinate with other governmental bodies to expand and protect China's national interests, pursuing China's rise. It is unclear, however, whether and to what extent Chinese courts will provide meaningful checks and balances against the executive branch in foreign relations.