NGOs, National Security, and International Law
The proposed Foreign NGO Management Law has been criticized for its vague and general language, and for putting the management of non-profit groups under the security apparatus. In an interview with Phoenix, Jia Xiqin, deputy director of Tsinghua University’s NGO Research Center, explains his concerns about the draft law, and notes that these issues cannot be resolved through revisions of the draft, as the legislative intent is too focused on tying foreign NGOs with national security concerns. China Law Translate has translated the interview:
NGOCN: [..T]he NGO management legislation has gotten a lot of attention. Could you give us a bit of background of the Law on the Foreign NGO Management Law (second reading draft)?
Jia: […] Attention is paid to foreign NGOs within the context of state security. The “Color Revolutions” at the start of this century caused foreign NGOs to come into the state’s field of vision, and have colored this concept. In 2010, India revised its “Foreign Contribution Regulation Act” with more stringent regulations on foreign funding of non-profit organizations, and in 2012, Russia increased legal restrictions on entities that receive foreign funding and participate in domestic political activities as “foreign agents”; this all led the Chinese government to take this seriously. In 2009, the State Administration of Foreign Exchange published the “Notice on Issues Related to the Administration of Foreign Currency Contributions to Mainland Entities”, which was a move to financially limit the activities of foreign non-profit organizations. Two days after the second draft of the Foreign NGO Management Law was made public, the second draft of the National Security Law was released for public comment; and the timing can’t be called a coincidence. In fact, the legislative background of the “Foreign NGO Management Law” occurs within the background of national security, and is one more link in this government’s’ series of measures including the establishment of a National Security Committee’s and strengthening of national security legislation. The legislative intent and approach determine the basic conceptual understanding and rule-making on foreign NGOs.
However there is a problem here, which is that when the legislation used a broad scope in identifying organizations, it covers every aspect of social life and public affairs. Yet the regulatory principles have very narrow viewpoint that is extremely focused on national security principles. As a result, this national security perspective covers all foreign social organizations. In the UK, the US and other developed nations, public association is an essential component of a social life and public affairs. This is therefore tantamount to hoisting up state security to become a major dimension of international relations. The ubiquitous impact of global economic integration, social interaction, cultural exchanges, and expansion of the internet in this age cannot be denied. There are two reasons for establishing the legislation from the national security perspective: first, it is considered preferable to impose excessive restrictions on a large number of positive organizations rather than risk the possibility of missing a rare potential threat to national security, and thus the scope of coverage has to be expanded to give law enforcement power to address the possibility. Second, there’s insufficient awareness of NGOs in China, entry points for foreign NGOs are also points for national security concern, and although one can only think of a few organizations, there is an understanding of what is meant by “foreign NGOs” The majority of people have never encountered foreign NGOs, yet they already have formed an idea of what they are. It is their knee-jerk response to correlate foreign NGOs with “hostile forces abroad”, “political change” and “state security”. This is the background in which the current version of the draft has taken shape. [Source]
Human Rights in China also issued an analysis which argues that the law as written violates China’s obligation under international agreements:
As a signatory to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and as a UN member state, China is obligated to ensure freedom of association for its citizens. The Special Rapporteur on the situation of human rights defenders has stated that “[a]ccess to funding, the ability of human rights organizations to solicit, receive and use funding, is an inherent element of the right to freedom of association.” The Special Rapporteur on the rights to freedom of peaceful assembly and of association has further stated that governments must “avoid measures that disproportionately target or burden civil society organizations, such as imposing onerous vetting rules, procedures or other CSO-specific requirements not applied to the corporate sector writ large [emphasis added].”
In addition to these standards regarding the right to freedom of association, the Human Rights Council passed a resolution in 2014 aimed at supporting an enabling environment for civil society. The resolution expressed concern regarding regulation efforts similar to the FNGO draft law, noting that, “in some instances, domestic legal and administrative provisions, such as national security and counter-terrorism legislation, and other measures such as provisions on funding to civil society, have sought to or have been misused to hinder the work and endanger the safety of civil society in a manner contrary to international law[.]” In light of this, the resolution called upon “States to ensure that provisions on funding to civil society actors are in compliance with their international human rights obligations and commitments and are not misused to hinder the work or endanger the safety of civil society actors, and underline[d] the importance of the ability to solicit, receive and utilize resources for their work [emphasis added].”
The FNGO draft law clearly contravenes these standards by (1) placing burdensome restrictions on civil society’s access to funding, (2) targeting the NGO sector in a discriminatory manner, and (3) exposing civil society to harm under the banner of national security. [Source]
Read more on “China’s Draft Foreign NGO Law’s Impact on a New World Order” via China Law & Policy, as well as “Enemies of the State: Beijing Targets NGOs” from the Wall Street Journal.