Foreign Relations & International Law

Understanding China’s Foreign NGO Activities Law

Chris Mirasola
Monday, May 16, 2016, 9:00 AM

Western and Chinese officials have battled over the meaning of China’s new Law on Foreign Non-Governmental Organizations’ Activities within Mainland China (NGO law) since it was recently approved by the National People’s Congress (NPC). Outside of China, many have argued that the law is designed to further restrict Chinese civil society.

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Western and Chinese officials have battled over the meaning of China’s new Law on Foreign Non-Governmental Organizations’ Activities within Mainland China (NGO law) since it was recently approved by the National People’s Congress (NPC). Outside of China, many have argued that the law is designed to further restrict Chinese civil society. The White House, for example, expressed its “deep[] concern” that the law would “further narrow space for civil society in China.” A joint statement from three Special Rapporteurs of the U.N. Office of the High Commissioner for Human Rights also worried that the law’s “excessively broad and vague provisions . . . can be wielded as tools to intimidate, even suppress, dissenting views and opinions.”

Chinese officials disagreed strongly, arguing that the NGO law is intended to support international organizations by providing a legal foundation for their activities in China. Deputy Director of the NPC Standing Committee Legislative Affairs Commission Zhang Yong stated that the law was designed to “facilitate the activities of foreign” and “guarantee” the “legal rights of foreign NGOs.” Xu Xianming, Deputy Director of the Legislative Affairs Commission, similarly argued that, “it is necessary to have a law to regulate and guide” foreign NGOs given their quick growth.

Other statements in Chinese media, however, suggest a slightly different motivating concern: national security. Director of the Ministry of Public Security Foreign NGO Management Office Hao Yunhong said that since a “minority” of foreign NGOs “are able to harm China’s national security interests,” “strengthening control . . . is something we should do.” Deputy Director of the China Association for NGO Cooperation Huang Haoming noted that, “the law was designed for national security.” An editorial in the Global Times, a state-run publication, also argued that the law was designed to avoid risks that NGOs might pose to Chinese security interests.

And the concern with national security is evident throughout the NGO law’s text. To understand what the law might mean in practice is it critical to analyze how it answers three questions: (1) What is a foreign NGO? (2) What activities can a foreign NGO undertake? (3) How will the government regulate foreign NGOs?

What is a foreign NGO?

Article 2 and Article 10 of the law stipulate that a foreign NGO must be a non-profit, non-governmental social organization legally established outside mainland China that has operated for two or more years with a charter devoted “to the development of social welfare” (业务范围有利于公益事业发展). It’s not immediately clear, however, which organizations this is meant to include. Article 2 mentions foundations, social groups, and think tanks, but the sentence structure suggests that this is a demonstrative, not definitive, list (基金会,社会团体,智库组织等). According to Article 53, however, we can be certain that foreign schools, hospitals, natural science and engineering research institutions, and academic organizations are not considered foreign NGOs when they are conducting exchanges with similar Chinese counterparts.

What can a foreign NGO do?

Article 3 stipulates that NGOs are allowed to undertake activities “beneficial to the development of social welfare” (有利于公益事业发展的活动). Again, the law does not articulate a definitive test for what this might mean. But by comparing this provision to a similar section of the Charity Law, it is reasonably clear that it includes activities related to economics, education, science, culture, health, sports, environmental protection, and poverty and disaster relief.

Equally important is what NGOs cannot do. Article 5 proscribes anything that would “endanger China’s national unity, security, or ethnic unity” (不得危害中国的国家统一、安全和民族团结) or “harm China’s national interests [and] societal public interest” (不得损害中国国家利益、社会公共利益). These terms, however, are not defined in the NGO law, prior regulations from the Ministry of Public Security, or Charity Law.

The 2015 Revision of China’s Criminal Law is more helpful as a reference point. Article 103 ties “endangering national unity” to separatism, suggesting that national unity is primarily concerned with secession. Furthermore, Article 107 includes treason, separatism, armed rebellion, and subverting state power as activities that endanger China’s “national security.” Finally, assuming that it is in China’s “national interest” and “societal public interest” to prohibit activities endangering public security (危害公共安全) or disturbing public order (扰乱公共秩序), the NGO law also prohibits an eclectic range of activities ranging from arson (Article 114) to destroying public transit (Article 117) and “picking quarrels” (Chapter 6 §1).

While this may seem rather confused, it is not wholly illogical. Throughout the legal code, China has used terms of art to prohibit a wide-ranging and shifting set of activities that, in a given situation, the state perceives as endangering its security. The NGO law continues that tradition.

How are foreign NGOs regulated?

Article 6 empowers the Ministry of Public Security to manage foreign NGO activities through an as-yet unspecified “mechanism.” Article 11 also requires that every foreign NGO be associated with a “professional supervisory unit” (业务主官单位) tasked with approving the NGO’s yearly work plan (Art. 19), reporting any hiring decisions (Art. 27), and ensuring that the NGO’s activities are undertaken lawfully (Art. 40, 指导、监督境外非政府组织及其代表机构依法开展活动). Article 46, furthermore, creates criminal penalties for Chinese supervisory units that knowingly aid a foreign NGO in contravention of any the above provisions. There are two important unknowns here. First, there are no details regarding the “mechanism” that the Ministry of Public Security must create to register and oversee foreign NGOs. Second, the law does not define which organizations will qualify as professional supervisory units or the extent of their liability for foreign NGO activities.

What Happens Next?

It is difficult to predict the law’s effect on international engagement in Chinese civil society. Considerable ambiguity remains in defining foreign NGOs, the activities they are permitted to undertake, and the system in which they will register and operate. If past legislation is any guide, some of these ambiguities will persist (e.g., “endangering national security”) so as to maximize the state’s discretion in applying the criminal law. It is common, however, for major pieces of legislation like this to be followed by detailed implementing regulations. For example, the Supreme People’s Court and other state ministries jointly published a set of guidelines defining and clarifying substantial portions of the Criminal Procedure Law after it was passed in 2013. Indeed, Director Hao indicated that a detailed work plan, including lists of professional supervisory units, will be released in the coming months.

The Foreign NGO Activities law was always intended to prioritize Chinese security concerns. Implementation over the next few months will show just how significantly these concerns will impact how international NGOs interact with Chinese civil society.

Chris Mirasola is a Climenko Fellow and lecturer on law at Harvard Law School. Previously, he was an attorney-advisor at the Department of Defense Office of General Counsel.

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