|Pix credit here ("Revolutionary friendship (Friends from Asia, Africa and Latin America visit the Museum of the Chinese revolutionary army), 1964")
推进涉外法治工作，根本目的是用法治方式更好维护国家和人民利益，促进国际法治进步，推动构建人类命运共同体。必须坚定不移走中国特色社会主义法治道路。["The fundamental purpose of promoting foreign-related legal work is to use the rule of law to better safeguard the interests of the country and the people, promote the progress of the international rule of law, and promote the construction of a community with a shared future for mankind. We must unswervingly follow the path of socialist rule of law with Chinese characteristics."] (Xi Jinping, here)
The issue of engagement with foreign legal systems that intersect with Chinese national socialist legalities has become an important element of the construction of the New Era Communist International in the post global era. It forms an intimate part of the development of New Era Socialist Internationalism (here; compare 1960s approach e.g., here), and with it, Socialist human rights (here and here). That engagement requires a legal basis--that approach is consonant with New Era notions of Socialist rule of law and its core principle of shutting power within a cage (or system) or regulation (e.g., here). Socialist Rule of Law applied to the field of (and engagement with) international, transnational, and foreign law (that is to such law embedded in and operating as law systems (制) identifiable as distinct from the Socialist Law system of China) also required a cage or system of regulation.
That cage or system acquired part of its form with the coming into force (1 July 2023) of the revised Law on Foreign Relations of the People's Republic of China [中华人民共和国对外关系法] (discussed briefly here). The most relevant provisions might be found in Articles 29-39 of the Revised Foreign Relations Law (The System of Foreign Relations).
These provisions are meant to sketch out the application of principles of Socialist Rule of Law from the national to the international sphere--and back again (article 29). The relationship between treaty and constitution is specified (Article 30) suggesting that treaty law is subject to both "the Constitution and other laws." Article 31 builds in a universal reservation to all of the Treaty law of China, as well as to the application of other international rules and laws within the Chinese domestic legal order: "The implementation and application of treaties and agreements shall not undermine the sovereignty of the State, national security and public interests." It is only within that reservation that China commits, in Article 32, to "strengthen the implementation and application of its laws and regulations in foreign-related fields in conformity with the fundamental principles of international law and fundamental norms governing international relations." Indeed, it is from that universal reservation that China grounds its right "to take, as called for, measures to counter or take restrictive measures against acts that endanger its sovereignty, national security and development interests in violation of international law or fundamental norms governing international relations." (Article 33). This provision will likely serve as a blanket authority for the exercise of discretionary and administrative counter measures to sanctions regimes and other measures taken by foreign states (and principally the United States and its allies). The only exception are UN mandated sanctions (again subject to the universal reservation) and only to the extent they have "binding force adopted by the United Nations Security Council in accordance with Chapter VII of the Charter of the United Nations" (Article 35). Foreign relations on the basis of the one China principle is specified in Article 34. Article 37 focuses on the protection of foreign diplomatic personnel and property; Article 38 focuses on the right of China to protect the interests of its citizens and its property abroad. Foreigners and foreign organizations "shall abide by its laws, and shall not endanger China’s national security, undermine social and public interests or disrupt social and public order" (Ibid.). Again exchanges are emphasized, this time in the context of rule of law, law enforcement and the judicial field (article 39) and international cooperation in the judicial, criminal and corruption fields (ibid.).
Pix credit here
Nonetheless, the Foreign Relations Law might be understood as the start, rather than an ends, of the rationalization of foreign related legal systems within or as they might affect or intersect with Socialist Legality and rule of law principles within China and affecting Chinese activities abroad.
All of that might have provided the impetus for the object of the 10th collective study session of the CPC Poliburo, held 27 November 2023, one in which Xi Jinping was reported to have emphasized the strengthening the construction of foreign-related legal systems (涉外法制) to create favorable legal conditions and external environment after an in depth explanation of the issue by Huang Huikang, Distinguished Professor of Wuhan University ["武汉大学特聘教授黄惠康同志就这个问题进行讲解"] (Reported by Xinhua News Service on 28 November 2023 under the tile " 习近平在中共中央政治局第十次集体学习时强调 加强涉外法制建设营造有利法治条件和外部环境 [During the 10th collective study session of the Political Bureau of the CPC Central Committee, Xi Jinping emphasized strengthening the construction of foreign-related legal systems to create favorable legal conditions and external environment.]).
The text of the Xinhua reporting in the original Chinese and in a crude English translation follows below. It is worth careful study for the further development of theoretical and discursive frameworks within which the development of Socialist Rule of law principles will be applied first to identify, and then engage with, foreign-related legal systems (涉外法制)within the aegis of overarching New Era theoretical theoretical principles. A few brief observations drawn from the reporting text:
1. The further development of embedded and socialist positive foreign-related legal systems requires a complex balancing, grounded in the contemporary principal contradiction, and consistent with both domestic and foreign policy goals and objectives under the shadow of that contradiction and the necessity of its overcoming.要从更好统筹国内国际两个大局、更好统筹发展和安全的高度，深刻认识做好涉外法治工作的重要性和紧迫性，建设同高质量发展、高水平开放要求相适应的涉外法治体系和能力，为中国式现代化行稳致远营造有利法治条件和外部环境。[From the perspective of better coordinating the domestic and international situations, and better coordinating development and security, we must deeply understand the importance and urgency of doing a good job in foreign-related legal work, and build a foreign-related legal system that is consistent with the requirements of high-quality development and high-level opening up capable of creating favorable legal conditions and external environment for the steady and long-term progress of Chinese-style modernization.] (习近平在中共中央政治局第十次集体学习时强调 加强涉外法制建设营造有利法治条件和外部环境 , supra)Thus the balancing--(1) between the domestic and international situations (and with it the continued advantageous development of the dual circulation policy) AND (2) between development and security (implicating the recent construction of Socialist state secrets and anti-espionage laws, as well as the complicated structures of fostering development within Chinese domestic and international policy through the management of its productive forces; see, e.g., here). All of this aligns nicely, at least theoretically, with the overall policy challenges of navigating between development and security (between friendly and unfriendly forces) in an overall context in which the development of productive forces in advancing socialist modernization remains at the center (where modernization has been broadened to include cultural, political, moral, and cultural factors).
2. The fundamental ordering template remains the same even within the matrix from out of which the foreign related legal system is to evolve; that is that Socialist Rule of Law must serve national interests first, but within a context in which such national service may also produce value for foreigners of some sort (the win-win cooperation strategy) but now within the framework of rules. What the cage or system of regulation brings is socialist rationalization of relations within a rules based order: consolidating fundamentals and stabilizing expectations. It serves as the socialist globalization road--one that o necessity will have characteristics distinctive from that of liberal democratic post-1945 globalization. It is likely then that such development of this system will be undertaken with an eye to difference as well as to alignment with domestic normative structures. The challenges are already emerging--for example with respect to the alignment of foreign law based compliance regimes with Chinese anti-espionage, state secretes and data domestication law systems.; and now more pointedly, with the rules systems for the development and deployment of generative AI systems.
3. As in many other objectives of national policy, the object of regulation is not merely to provide a basis for the rules-based management of the exercise of administrative discretion but also to develop deep structures of coordination. What was emphasized within the overall framework was first objectives of linkages ("是一项涉及面广、联动性强的系统工程" [It is a systematic project with wide coverage and strong linkage]). The other core objective is coordination in two forms. One focuses on and coordination between domestic and international spheres and their regulatory manifestations ("必须统筹国内和国际"); the other focuses on coordination between development and security ("统筹发展和安全"). Again the emphasis is on risk based balancing among objectives within a system of differentiated legalities with regulable domestic and international impacts. Connected with these overall objectives is the construction, yet to be achieved, of deeper systematic legality. What is anticipated and likely to proceed from the Foreign Relations Law, touch on "efficient foreign-related legal enforcement system, improve the judicial efficiency of foreign-related law enforcement, promote the reform of foreign-related judicial trial systems and mechanisms, and improve the credibility of foreign-related justice"["要建设协同高效的涉外法治实施体系，提升涉外执法司法效能，推进涉外司法审判体制机制改革，提高涉外司法公信力。"] the character of which remains uncharted in specifics. Except with respect to (1) the development of foreign related legal services [" 要积极发展涉外法律服务"]，and arbitration systems ["培育一批国际一流的仲裁机构、律师事务所"] though whether in opposition or as an alternative to ICSID and other lieral democratic infused systems remains unclear.
4. The legal structures of political objectives are also clearly delineated. These center on the legal arrangements necessary to permit the projection of Chinese power to protect Chinese economic, political, and other interests undertaken through law-based inter-governmental and public-private relations globally through what is likely to be a re-imagined BRI system ("要深化执法司法国际合作，加强领事保护与协助，建强保护我国海外利益的法治安全链。"). That, in turn, is tempered by the further development of legal compliance systems, especially with local law (though there is no thing to suggest that local law cannot be made more flexible to accommodate Chinese interests in a "win-win" context (from the Chinese perspective certainly) ["要强化合规意识，引导我国公民、企业在“走出去”过程中自觉遵守当地法律法规和风俗习惯，运用法治和规则维护自身合法权益。"]. None of this is new and has been already in development with respect to the legal and political structures within which Chinese State Owned Enterprises have been engaging globally (see here).
5. There is an element of integration as well. This is directed toward the objective of bridging (but keeping separate) the domestic and the international/foreign within and outside China. This is connected with the re-imagining of the old "Reform and Opening Up" doctrines but now within the structures of New Era principles.The rule of law is the best business environment. It is necessary to improve the open and transparent foreign-related legal system, strengthen the protection of intellectual property rights, safeguard the legitimate rights and interests of foreign-invested enterprises, make good use of both domestic and international rules, and create a market-oriented, legal and international first-class business environment. ["法治是最好的营商环境，要完善公开透明的涉外法律体系，加强知识产权保护，维护外资企业合法权益，用好国内国际两类规则，营造市场化、法治化、国际化一流营商环境。"]In one sense, this says nothing new--it is well known in liberal democratic states that a sound business environment thrives on certainty and predictability, even if the measures are less than ideal for business, society or politics in any stage of historical development. The challenge, which is the object of the study session, is to provide context in which they predictability and certainty can be extended to the foreign but consonant with the objectives of security, and vanguard led socialist modernization. More to the point, that certainty and predictability must bridge both its projection inward (the domestic market) and outward (China's protection of objectives based activity in spaces where it is the "foreign legal system). To that end old wine will be put in new bottles--to link but not join domestic and foreign--to preserve dual circulation as an all around concept and in the process elevate systems of security centering development with the foreign was a necessary element, but one that can be managed.
6. Nonetheless, the approach accords with the also linked development of Chinese internationalism. It is one based on a cage (system) of regulation, compliance with the legal requisites of which must be scrupulously observed. One points here to the development of the legalization of the policy of building a community with a shared future for mankind. To that end it is necessary to actively align the legalities of the international order with those of socialist rule of law. "Xi Jinping emphasized the need to firmly safeguard the international order based on international law, actively participate in the formulation of international rules, and promote the rule of law in international relations." [习近平强调，要坚定维护以国际法为基础的国际秩序，主动参与国际规则制定，推进国际关系法治化。]. The irony is that this is precisely the course set by liberal democratic vanguards guiding the international law project since the 1940s--juridification and legalization at the international level aligned with national constitutional frameworks--and changing them to reflect socialist sensibilities.
7. The key to all of this, though, remains the greatest challenge--the transposition of rule of law discourse within this matrix of risk-reward structures into systems (and here liberal democratic governance is converging with Chinese Marxist-Leninist ones) with operational systems that are essentially driven by infinite iterations of exercises of administrative discretion. The discourse of rule of law in Marxist-Leninist and in liberal democratic states continues to hold tight to the vision of law as a set of commands (or as the elaboration of the constituting structures for the execution of command and guidance). Yet law has increasingly been used to (1) set out sometimes broad and sometimes more targeted objectives, norms, or goals; and (2) constitute an administrative apparatus which is given authority (through systems of rules guiding the application of discretion) to direct productive forces (including natural persons) toward such gals, objectives, etc. In states of administrative supervision, there is a disconnect between the idealization of law as means to construct a cage, and the nature of the cage (or system) articulated within structures of administrative supervision. Everyone must act within and comply with law. But compliance itself may be beyond the reach of the cage--or better put--the cage of regulation constructs the administrative structures within which the directions that are provided by law may be converted into and applied to everyday life--not through law but through the decisions of supervisory personnel. This certainly has been the essence of the challenge in the New Era for Chinese rule of law socialist legality (as well as in its own variation for that of liberal democracy). It has now been transposed into the international arena as well in its socialist manifestations. For a more detailed discussion in the context of domestic law, see, The Imaginaries of Regulatory Spaces in an Age of Administrative Discretion: Social Credit ‘in’ or ‘as’ the Cage of Regulation of Socialist Legality.
8. That eaves for discussion the issue of legal systemicity (法制) in need of further exploration. One begins to understand the concept of system (制) in a Leninist sense as object--a cluster of related instructions that are self-referencing in the sense that they over a self contained set of propositions from which questions can be answered by reference to the totality of the instruction system itself. Nonetheless, these objects become relevant in a Leninist sense when they can be utilized as another productive state asset. That is, legal systemicity itself becomes an input in the operation of socialist modernization. At its highest level, it serves as a consumable, like labor or capital, the purpose of which is to enhance development (the key New Era normative foundation) which is in turn (the key Leninist focus) deployed toward the march along the "socialist path" that must lead to the establishment of a communist society--must lead there if the vanguard of progressive social forces organized as a communist party is to retain its legitimacy and authority. In that context, the development of foreign-related legal systems (涉外法制) serves as one element of a substantially growing and complex aggregation of legal objects, the coordination of which serves as the greater challenge for the managerial state. Liberal democracy also objectifies law, but uses it in a somewhat different sense (at least classically) to develop the space within which private actions may be aggregated toward welfare enhancing collective results (results the details of which are not necessarily driven by those who control the production and deployment f regulatory objects). That is changing now of course, as the evolution of the liberal democratic administrative apparatus shifts its role (in a compliance-delegation environment) from enforcer to manager of productive forces under the leadership of the state (exercised through norm directing objectives manifested as or in "law").