In China the first attempt to enact a comprehensive legal framework regulating foreign NGOs is being carried out. This event has received a lot of attention from foreign media and will have. a direct impact on foreign NGOs if successful. The news regarding the Law of Foreign NGOs Regulation of China (draft) was first reported by Xinhua News Agency, one of the most influential official media organizations in China, on 22 December 2014. As a matter of fact, any comment on this law in the foreign media is based on the initial report by the Xinhua News Agency (translated into English by the authors):
‘To regulate the activities of foreign NGOs in China, protect their legal rights and interests, and promote communication and co-operation, the State Council submitted the bill of foreign NGOs Regulation of China to the Standing Committee of the National People’s Congress for review. Entrusted by the State Council, the Vice Minister of Public Security Ministry, Mr Yang Huanning, made an explanation of the bill at the 12th session of the 12th Standing Committee of the National People’s Congress on 22 December 2014. ‘Yang pointed out that the bill provides the permission procedures for the registration applications of foreign NGOs to set up representative offices and conduct one-time temporary activities in China; establishes the legal duties of the relevant governmental departments and their authorized organizations to supply policy advice, guidance on business and facilitative support for foreign NGOs to carry out legal activities; and lays the legal foundation for ensuring and regulating foreign NGOs to develop legal activities and to promote communication and cooperation. In addition, the bill also clarifies the legal responsibilities when foreign NGOs violate this law.’
Apart from this report, Xinhua News Agency have not provided any more detailed information, and it is not clear when the bill will take effect and what the specific rules regulating foreign NGOs will be. Nevertheless, we can still evaluate its policy backgound and the possible impacts based on the recent emerging policies in this area.
Strengthening national security
One of the policy contexts relating to this new law is that the new Chinese leadership is concerned about national security. It is clear that this bill is strongly motivated by the government’s wish to strengthen national security and to tackle domestic and external security challenges such as the ‘Colour Revolutions’ and conflicts between citizens and local governments, among which some foreign NGOs (especially those active in political and religious areas) play a role. In fact, China established the National Security Committee in 2013 to coordinate responses to security challenges from home and abroad. And China also investigated the basic state of foreign NGOs in 2014. In this context, the consideration of national security may be the main reason why the Public Security Department rather than the Ministry of Civil Affairs drafted this bill (although traditionally it is the latter that is responsible for policy-making and regulation relating to NGOs) and why this bill was submitted to the Standing Committee of the National People’s Congress together with the bill of National Security. Thus, it can be reasonably expected that foreign NGOs with politically sensitive purposes or carrying out similar activities (along with those involved in commonly recognized illegal activities such as money laundering, funding terrorism, fraud, etc) will face the biggest legal risks if this new law takes effect.
Building a partnership with NGOs
It can be reasonably stated that without the continuous efforts of foreign NGOs in terms of financial support, advanced technology and administrative skills over the last 30 years, China could not have made such great progress. Therefore, apart from the politically sensitive and other illegal activities, the Chinese government understands and generally welcomes the important role of foreign NGOs in social welfare delivery. Therefore, the government may not change its attitude of further promoting the development of charity and other public benefit undertakings which are the focus of most foreign NGOs carrying out activities in China. And the new law may also respect this fact and provide foreign NGOs with more facilitative support to carry out those activities.
Because of limited sources, the more specific impacts of the proposed new law remain to be seen. Nevertheless, the implementation of this law cannot be independent of the current trend in China in terms of developing the rule of law, protecting national security, and promoting foreign NGOs to continue their charitable and other public benefit activities. Although there always exist tensions between freedom of association and national security at any time in any country, we argue that in the long run a unified law on the regulation of foreign NGOs in China will have a positive impact on the majority of foreign NGOs in terms of getting legal status, unifying registration procedures, strengthening governmental responsibilities to supply facilitative support, promote efficient regulation and so forth, some of which have been reported by Xinhua News Agency. However, it is only foreign NGOs with politically sensitive purposes or illegal activities such as fraud and money laundering that are likely to be negatively affected.
More on this, in an upcoming issue of the International Journal of Civil Society Law (IJCSL) available at http://www.iccsl.org.
Karla W Simon (西 门 雅) is chairperson of ICCSL.
Dejian Li is a PhD candidate at the University of Liverpool’s Law School, Charity Law & Policy Unit.
While I agree that "only foreign NGOs with politically sensitive purposes or illegal activities" will be negatively affected, it seems that the definition of "politically sensitive" is broadening under the current administration to encompass groups not previously considered a threat. Therefore the new legislation could affect a larger proportion of foreign NGOs in China than the article suggests.