Domestic Law
Territory & National Security
National Land Boundary Law of the People’s Republic of China
Document Number: Order No. 99 of the President of the People’s Republic of China, Date Issued: 23 October 2021; Effective Date: 1 January 2022
In 2014, the Foreign Affairs Committee of the National People’s Congress took the lead in relaunching the legislative process of the National Land Boundary Law of the People’s Republic of China. On 23 October 2021, the 31st Session of the Standing Committee of the Thirteenth National People’s Congress of the People’s Republic of China adopted the National Land Boundary Law of the People’s Republic of China, which came into effect on 1 January 2022. The National Land Boundary Law legalizes China’s guidelines, policies and relevant working systems for dealing with land boundary affairs and issues, incorporates the important provisions of the signed agreements on national boundary management systems into the domestic legal system, clarifies the leadership system, coordination mechanism and responsibilities of all relevant parties for China’s land boundary work. It also makes clear provisions on the delineation and demarcation of land boundaries, the defense and management of land boundaries and borders, international cooperation in land boundary affairs, and related legal responsibilities, providing a direct legal basis for the formulation of boundary-related regulations.
The General Provisions of the National Land Boundary Law consist of 15 articles (Article 115), including the purpose of the legislation, the basic principles, the leadership system and coordination mechanism, the division of responsibilities, important policies, and the policies and principles for foreign affairs. Also, the National Land Boundary Law specifies the management of national land boundaries and borders, generally divided into two parts: regulations of conduct and legal liability. The details include the following:
Delineation and Demarcation of National Land Boundaries.
Chapter II of the Law, covering Articles 16–25, deals with the institutional aspects of China’s boundary issues. The most notable aspect of this chapter is that the term “delimitation” is replaced by “delineation and demarcation,” instead of using the concept of “alteration” of the national boundary in accordance with the comments made during the preliminary examination of the draft National Land Boundaries Law.
Defense of National Land Boundaries and Borders.
This chapter includes Articles 22–25, highlighting the issue of China’s boundary-guarding system. Article 22 provides for the boundary-guarding duties of the PLA and the Armed Police Force, to wit, the PLA and the Armed Police Force shall be jointly responsible for border dominating, which fills the legislative gap between the National Defense Act and the Border Patrol Regulations.
Management of National Land Boundaries and Borders.
This chapter contains three sections with 22 articles (Articles 26–47), mainly regulating the management of land boundaries and borders. In terms of content, the main objective of the border management provisions is to improve the socio-economic development of the border areas while ensuring security.
International Cooperation in National Land Boundary Affairs
This chapter comprises Articles 48–56 and regulates the institutional aspects of the “use of boundaries.” This chapter was added in 2014 after the relaunch of the legislation on land boundaries, with the intention of translating the important provisions of the above-mentioned agreements into domestic law, so that the legislation can actively serve China’s diplomatic strategy and contribute to the establishment of a long-term sound surrounding environment. Article 48 firstly specifies the principle of equality and mutual benefit of cooperation, and the purpose of mutual benefit and win-win situation. Articles 49 to 56 set out the fields of cooperation that can be established with countries sharing a national land boundary with China – joint boundary committee mechanism, boundary defense cooperation mechanism, boundary defense talks and meetings mechanism, boundary (boundary defense) representative mechanism, the public security, customs, immigration, and other departments may establish a cooperation mechanism with the relevant departments of countries, mutual notification, information sharing, exchange of technology and talents, and other cooperation mechanisms in port construction and management, utilization of natural resources, ecological and environmental protection, epidemic prevention and control, emergency management, and other fields.
Legal Liability
Chapter VI including Articles 57–60, provides for legal liability for boundary-related violations.
In conclusion, the National Land Boundary Law promotes the better development of relations with countries sharing a national land boundary with China on the basis of treaties, contributes to the improvement of China’s land boundary governance capacity and actively serves China’s promotion of the “The Belt and Road initiative” and other relevant constructions.
Cyber Sovereignty and Security
Data Security Law of the People’s Republic of China
Document Number: Order No. 84 of the President of the People’s Republic of China, Date Issued: 10 June 2021; Effective Date: 1 September 2021
On 10 June 2021, the Data Security Law of the People’s Republic of China was officially published and came into force on 1 September 2021. The Data Security Law consists of seven chapters and 55 articles, of which three chapters, namely “General Provisions,” “Legal Liability” and “Supplemental Provisions,” are regular chapters. The other four chapters provide clear requirements on “Data Security and Development, Data Security Systems, Data Security Protection Obligations, Security and Public Availability of Government Data.” Article 1 of the Data Security Law begins by stating its legislative objectives, namely “safeguarding data security, promoting data development and utilization, protecting the lawful rights and interests of individuals and organizations, and maintaining national sovereignty, security and development interest,” stating that its legislative purposes include two aspects of maintaining national sovereignty, security and safeguarding data security and development. In the maintenance of national sovereignty and security, Article 4 of the Data Security Law clearly stipulates that “in the maintenance of data security, a holistic approach to national security shall be adhered to, a data security governance system shall be established and improved, and the capability to safeguard data security shall be enhanced,” a provision that reflects the legislator’s focus on data security as an initiative to implement national security. Also, in conjunction with the supervision system established in Articles 6 and 7 of the Data Security Law, it can be seen that the leading authority for data security is the central leading body for national security. The establishment of this authority also reveals more clearly the close link between national security and data security.
In terms of safeguarding data security and development, Article 13 of the Data Security Law provides that ‘the state shall coordinate development and security, and adhere to promoting data security with data development and utilization and industry development and safeguarding data development and utilization and industry development with data security.’ Meanwhile, different articles in Chapter II of the Data Security Law respectively demonstrate the dynamic balance between data security and development, as is seen from the “big data strategy implementation and general plan on digital economy development” (Article 14), “encouraging technological research and promotion” (Article 16), “advancing the construction of the data development and utilization technology and data security standards system” (Article 17), “promoting the development of data security testing and assessment” (Article 18), “cultivating data trading markets” (Article 19), and “promoting the professionals and exchange of talents” (Article 19).
Internationally, Article 2 of the Data Security Law provides that ‘those that conduct data processing activities outside the territory of the People’s Republic of China to the detriment of the national security, public interest, or lawful rights and interests of citizens and organizations of the People’s Republic of China shall be held legally liable in accordance with the law.’ This provision is a fundamental reflection of national sovereignty. However, the effective prosecution of offshore harmful activities in practice relies on the interface and cooperation with provisions such as extraterritorial enforcement at the international law level. More importantly, Articles 25 and 26 of the Data Security Law state that China will “impose export control in accordance with the law on data as controlled items related to safeguarding national security and interest and performing international obligations,” as well as “where any country or region takes any discriminatory prohibition or restriction or other similar measures against the People’s Republic of China in investment or trade, among others, related to data and data development and utilization technology, among others, the People’s Republic of China may take measures against the country or region reciprocally based on the actual circumstances.”
With respect to cooperation and assistance in extraterritorial law enforcement, the Data Security Law places greater emphasis on data sovereignty and national security, with Article 36 requiring that China ‘shall process a request for data from a foreign judicial or law enforcement authority in accordance with relevant laws and international treaties and agreements entered into or acceded to by the People’s Republic of China, or under the principle of equality and reciprocity.’ This requirement provides the applicable regulations for organizations and individuals involved in cooperation and assistance with extraterritorial law enforcement. Also, compared to the first and second review drafts of this Law, the Data Security Law imposes an obligation on subjects involved in cooperation and assistance with extraterritorial law enforcement, to wit, ‘without the approval of the competent authority of the People’s Republic of China, a domestic organization or individual shall not provide data stored in the territory of the People’s Republic of China to any foreign judicial or law enforcement authority,’ reaffirming the Data Security Law’s critical role in safeguarding national sovereignty and security.
Implementing International Economic Law
International Economic Law
Anti-foreign Sanctions Law of the People’s Republic of China
Document Number: Order No. 90 of the President of the People’s Republic of China, Date Issued: 10 June 2021; Effective Date: 10 June 2021
On 10 June 2021, the 29th session of the Standing Committee of the Thirteenth National People’s Congress of the People’s Republic of China adopted the Anti-foreign Sanctions Law of the People’s Republic of China, which came into effect on the date of its promulgation. The Anti-foreign Sanctions Law consists of 16 articles, mainly on the circumstances of adopting countermeasures, the applicable object of countermeasures and relevant countermeasures, applicable object of countermeasures and relevant countermeasures.
According to the second paragraph of Article 3 of the Anti-foreign Sanctions Law, countermeasures shall be taken ‘Where a foreign country in violation of international law and basic norms of international relations contains or suppresses China under various pretexts or pursuant to its own laws, adopts discriminatory restrictive measures against any Chinese citizen or organization, and meddles in China’s internal affairs, China shall have the right to adopt corresponding countermeasures.’ In addition, Article 15 of the Anti-foreign Sanctions Law provides that ‘Where foreign countries, organizations, or individuals conduct, assist in, or support acts that compromise China’s sovereignty, security, or development interests, and necessary countermeasures need to be adopted, the relevant provisions of this Law shall apply mutatis mutandis,’ that seems to underwrite the circumstances in which countermeasures are to be taken as set out in Article 3.
According to Article 4 of the Anti-foreign Sanctions Law, ‘the relevant departments of the State Council may decide to include in a countermeasure list the individuals and organizations directly or indirectly involved in the development, decision-making, and implementation of the discriminatory restrictive measures as mentioned in Article 3 of this Law.’ In addition, according to Article 5, the scope of targets for countermeasures under the Anti-foreign Sanctions Law has been further expanded to include: (a) Spouses and immediate family members of individuals included in the countermeasure list. (b) Senior executives or actual controllers of organizations included in the countermeasure list. (c) Organizations, where individuals included in the countermeasure list, serve as senior executives. (d) Organizations that are actually controlled by individuals and organizations included in the countermeasure list or of which the said individuals and organizations participate in the formation or operation.
Further, the countermeasures under the Anti-foreign Sanctions Law are more limited in nature and extent, including refusing to issue a visa, denying entry, canceling a visa, or deportation, placing under seal, impounding, or freezing movables, immovables, and other types of property in the territory of China, prohibiting or restricting organizations and individuals in the territory of China from carrying out relevant transactions, cooperation, and other activities with them and other necessary measures. It is worth noting that, given the relatively stringent countermeasures of the Anti-foreign Sanctions Law, its compatibility with Bilateral Investment Treaty (BITs) is subject to further study.
International Cooperation Initiatives
International Environmental Law
The Kunming Declaration “Ecological Civilization: Building a Shared Future for All Life on Earth” CBD/COP/15/5/Add.1. 13 October 2021
The Kunming Declaration is an outcome of the high-level segment of the UN Biodiversity Conference 2020. It reflects the Conference’s topic and is the first political declaration to incorporate the notion of ecological civilization.
The Declaration commits to ensuring the development, adoption, and implementation of an effective post-2020 global biodiversity framework to reverse the current loss of biodiversity and ensure that biodiversity is put on a path to recovery by 2030 at the latest, towards the full realization of the 2050 Vision of “Living in Harmony with Nature.” Additionally, the declaration commits working across respective governments to continue to promote the integration, or “mainstreaming” of the conservation and sustainable use of biodiversity into decision-making; establishing effective systems of protected areas; enhancing the global environmental legal framework; and increasing the provision of financial, technological and capacity building support to developing countries necessary to implement the post-2020 global biodiversity framework.
Climate Change – Cooperation Initiatives
China–U.S. Joint Glasgow Declaration on Enhancing Climate Action in the 2020s 10 November 2021
On 10 November 2021, China and the U.S. jointly released China–U.S. Joint Glasgow Declaration on Enhancing Climate Action in the 2020s during COP 26 in Glasgow to the United Nations Framework Convention on Climate Change. The Declaration builds on and refines the Joint Statement Addressing the Climate Crisis (hereinafter referred to as the Statement) issued on 17 April 2021 and is dedicated to the effective implementation of the Statement.
The Declaration makes clear that China and the United States will cooperate on an equal footing under the United Nations Framework Convention on Climate Change and the Paris Agreement, and refers that the two sides engage in expanded individual and combined efforts to accelerate the transition to a global net-zero economy. In addition, the Declaration intends to establish a “Working Group on Enhancing Climate Action in the 2020s,” which will meet regularly to address the climate crisis and advance the multilateral process, focusing on enhancing concrete actions in this decade. This may include, inter alia, continued policy and technical exchanges, identification of programs and projects in areas of mutual interest, meetings of governmental and non-governmental experts, facilitating participation by local governments, enterprises, think tanks, academics, and other experts, exchanging updates on their respective national efforts, considering the need for additional efforts, and reviewing the implementation of the Joint Statement and this Joint Declaration.
Besides, the Declaration also promotes cooperation and exchange through the establishment of the “Working Group on Enhancing Climate Action,” and cooperation in standards, policies, technologies and specific areas such as methane, energy and power, to promote the implementation of China’s and the United States respective climate action and emission reduction targets, and to advance the global response to climate change.
State Legislation on Maritime Zones, Rights & Obligations
Law of the Sea
The Coast Guard Law of the People’s Republic of China
Document Number: Order No. 71 of the President of the People’s Republic of China, Date Issued: 22 January 2021; Effective Date: 1 February 2021
The Coast Guard Law of the People’s Republic of China (hereinafter referred to as the Coast Guard Law), as adopted at the 25th session of the Standing Committee of the Thirteenth National People’s Congress of the People’s Republic of China on 22 January 2021 came into force on 1 February 2021. This Law aims to clarify the duties of coast guard agencies, so as to ensure maritime rights protection, law enforcement and international cooperation, simultaneously helping the Chinese coast guard agencies better perform their duties and obligations under international treaties and maintain maritime order. The Coast Guard Law consists of 11 chapters, comprising a total of 84 articles. Articles 1 and 2 stipulate the purpose of law enforcement by coast guard agencies and the nature of coast guard agencies. Article 3 formulates the scope of maritime rights protection and law enforcement by coast guard agencies. Articles 4 and 5 illustrate the principles of law enforcement by coast guard agencies and the basic tasks of law enforcement by coast guard agencies, and Article 6 explicitly clarifies that coast guard agencies shall be independent in law enforcement and no organization or individual may illegally interfere in their performances.
Chapters 3 to 9 also provide for maritime security, maritime administrative law enforcement, investigation of maritime crimes, use of police equipment and weapons, guarantees and cooperation, international cooperation and supervision. These provisions not only transform the previous situation where the laws related to China’s coast guard enforcement were scattered and limited, providing legal guarantees for China’s coast guard enforcement but promote the standardization of maritime law enforcement, preventing, stopping and punishing maritime crimes. It is also expedient to the greater protection of national sovereignty, security and maritime rights and interests.
It is worth noting that China’s Coast Guard Law is able to actively promote international cooperation in China’s coast guard enforcement. First, the Coast Guard Law explicitly takes international treaties as the basis for law enforcement cooperation and fixes the international law obligations of the Chinese coast guard agencies in the form of domestic law. The above-mentioned content places higher requirements on the Chinese coast guard agencies to fulfill their obligations in accordance with the law, which is conducive to promoting coast guard enforcement cooperation under the international legal framework. Second, the Coast Guard Law clarifies the scope of international law enforcement cooperation and advocates the establishment of a mechanism for law enforcement cooperation, which is capable of promoting concrete cooperation in coast guard enforcement between China and countries in the surrounding waters. Third, the Coast Guard Law gives the Chinese coast guard agencies a certain degree of autonomy and flexibility in terms of the areas and contents of cooperation, leaving room for better law enforcement cooperation with other countries.
However, the international community holds different views regarding the Coast Guard Law. In terms of content, first, the main responsibility of the coast guard agencies is maritime administration and law enforcement. Article 2 of the Law states that ‘the coast guard units of the People’s Armed Police Force, or marine police units, shall perform unified maritime rights enforcement duties.’ Accordingly, the activities of maritime rights protection and law enforcement are the main responsibility of the China Coast Guard. In addition, Articles 23, 34, 37, 53, 58, and 76 of Coast Guard Law provide for the maritime administrative law enforcement measures, the dispute over the jurisdiction over maritime administrative cases, the procedures for maritime administrative law enforcement, along with the information sharing and work cooperation mechanisms between the coast guard agency and other departments. According to Article 83 of the Coast Guard Law, ‘a coast guard agency shall perform defense operations and other tasks in accordance with the National Defense Law of the People’s Republic of China, the Law of the People’s Republic of China on the People’s Armed Police, and other applicable laws, military regulations, and orders of the Central Military Commission.’ In other words, the Chinese Coast Guard’s performance on defense operations in wartime is based on the National Defense Law of the People’s Republic of China and other relevant regulations. Also, the dual nature of the Chinese Coast Guard (administrative law enforcement and operational defense) is consistent with the maritime rights protection and law enforcement of other countries in the international community. Moreover, with regard to the issue of ‘conditions for the use of weapons,’ Articles 46, 49 and 50 of the Coast Guard Law provide strict and detailed regulations on the circumstances of the use of weapons, namely the criteria and methods for judging the use of police equipment and weapons, which regulates the elements and procedures for the use of different types of weapons.
Maritime Traffic Safety Law of the People’s Republic of China (2021 Revision)
Document Number: Order No. 79 of the President of the People’s Republic of China, Date Issued: 29 April 2021; Effective Date: 1 September 2021
The Maritime Traffic Safety Law of the People’s Republic of China was enacted in 1983 and was one of the first pieces of legislation to build the national maritime rule of law since China’s reform and opening up. In 2016, the Maritime Traffic Safety Law of the People’s Republic of China (hereinafter referred to as 2016 MTSL) was amended to remove the requirement for port entry and departure visas of maritime vessels from the former Article 12. On 29 April 2021, the Maritime Traffic Safety Law of the People’s Republic of China was revised and adopted by the 28th session of the Standing Committee of the Thirteenth National People’s Congress of the People’s Republic of China and came into force on 1 September 2021. This revision draws on the achievements of the international maritime rule of law, focuses on the coordinated expression between domestic maritime-related laws, and establishes a unified and efficient maritime traffic safety legislative system. The 2021 MTSL contains 10 chapters and 122 articles, with major revisions relating to optimizing maritime traffic conditions and navigation safeguards, improving maritime search and rescue mechanisms and strengthening accountability, and also comprehensively and systematically fulfilling the obligations of the international maritime conventions concluded or acceded to by China in terms of vessel registration, vessel inspection, navigation safety, crews safeguard and pollution prevention.
In terms of content, the 2021 MTSL has been improved. Although the 2021 MTSL has been reduced by two chapters compared to the 2016 MTSL, the number of articles has been increased from 53 to 122. Articles 3, 6, 7 and 8 in the General Provisions section of Chapter I are newly-enacted Articles. Compared to the previous General Provisions, the new General Provisions explicitly provide statements for the guarantee of the use of sea for traffic, the publicity and education of maritime traffic safety, the labor safety and occupational health of crews, and the modernization construction of maritime traffic safety in accordance with laws. In addition, Chapter II “Vessels, Offshore Installations and Crews” consolidates Chapters II and III of the 2016 MTSL and supplements Articles 11–12 and 14–17, setting out clear requirements on the prerequisites for canceling the nationality registration of the vessel, the legal consequences of not canceling the nationality, and the ship’s anti-pollution and safety management system. Chapter III titled “Maritime Traffic Conditions and Navigation Safeguards,” is a new chapter, which expands the requirements for pilotage, after adding the functions of the departments in charge of transportation and maritime administrative agencies in developing maritime traffic resources and demarcating maritime traffic functional areas.
At an international level, the 2021 MTSL has paid timely attention to the hot-spot issues in the international law of the sea and international shipping during the revision. For example, the 2021 MTSL requires establishing and improving the early warning and emergency response mechanisms for overseas emergencies of crews, and developing contingency plans for overseas emergencies of crews in order to prevent the negative impact of the COVID-19 epidemic on the safety and security of maritime traffic. The 2021 MTSL also has augmentation contents that ‘the pilotage institution shall designate pilots with corresponding capabilities and experience in a timely manner to provide pilotage services for vessels.’ In addition, the content of “safe operation and prevention and control of vessel pollution management systems” in 2021 MTSL implements the main anti-fouling measures of the International Safety Management Code. Further, the provision on “conditions on obtaining a maritime labor certificate” follows the specific requirement of the 2006 Maritime Labor Convention. Likewise, requirements for “international voyage vessels enter or exit ports” in 2021 MTSL fulfills the obligations in the content of the International Ship and Port Facility Security Code.
Importantly, the 2021 MTSL aligns with parts of the United Nations Convention on the Law of the Sea (UNCLOS). For example, the 2021 MTSL adds “maintaining the maritime traffic order” to its legislative articles, and its Articles 7, 19, 48, 53, 65, 66, 74, 91 and 117 also reflect the obligation to “protect the marine environment” to varying degrees. In addition, the 2021 MTSL, in compliance with the United Nations Convention on the Law of the Sea, clarifies the time limits for the processing of import and export permits for vessels on international routes and the provisions relating to the entry of foreign vessels. For instance, Article 46 of the 2021 MTSL regulates ‘a vessel sailing on international routes that enter or exit ports shall, according to the law, apply to the maritime safety administration for permission and the maritime safety administration shall, within five working days from the date of accepting an application, make a decision on whether to grant permission.’ Also, Article 53 states, ‘the transport department under the State Council may, in conjunction with the relevant competent departments, take necessary measures to prevent and stop the non-innocent passage of vessels of foreign nationality in the territorial sea.’ Articles 54 and 55 elaborate ‘special circumstances of vessels of foreign nationality entering or exiting the territorial sea of China’ and Article 92 provides that ‘the maritime safety administration may exercise the right of hot pursuit in accordance with the law.’
State Practice Rapporteur, Professor of KoGuan Law School, Shanghai Jiao Tong University.