Beijing’s Peculiar Definition of State Secrets
While the Chinese government has carried out a great deal of legal reform in the past decade, particularly as it prepared to join the World Trade Organisation in December 2001, less progress has been made towards a stable and predictable legal system. The Communist party is still uncomfortable with the idea that its judgment about the best interests of the state must bend to a real rule of law. The crime of disclosing state secrets is a near-perfect illustration of this attitude.
The Rio Tinto case gives China’s foreign investment community a crash course on the Kafkaesque nature of the Law on Guarding State Secrets. This law can classify as state secrets any information under ex-tremely broad criteria, including information that is related to “economic and social development”, as well as a non-specific “other matters” category.
National and local officials are allowed to decide after material has been published whether it is a state secret, and those determinations cannot be legally challenged. As recently as 2005, information related to domestic natural disasters was also on the state secrets list.
Caijing also looks at the vagueness of China’s state secrets law in light of this case:
A statement from the Shanghai State Security Bureau charged that “during China’s iron ore negotiations with foreign miners in 2009, Stern Hu gathered and stole state secrets from China through illegal means, including bribes given to staff members at Chinese steel companies, and thereby seriously damaged China’s economic interests and economic security.”
Not everyone in China and abroad agrees with the bureau’s conclusion that any data, plans and strategies concerning iron ore negotiations can be considered “state secrets.”
Overseas opinions generally hold that if Hu illegally obtained relevant information and “bottom line” data about China’s position in the price negotiations, he was at worst violating laws against commercial bribery or commercial secrets theft, but not breaking laws designed to protect state secrets.